State v. Ross
Decision Date | 25 July 2018 |
Docket Number | 28407 |
Citation | 916 N.W.2d 141 |
Court | South Dakota Supreme Court |
Parties | STATE of South Dakota, Plaintiff and Appellee, v. Shawn Raynard ROSS, Defendant and Appellant. |
MARTY J. JACKLEY, Attorney General, GRANT FLYNN, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
DOUGLAS N. PAPENDICK of Stiles, Papendick & Kiner, Mitchell, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] After the defendant pleaded guilty to third-degree burglary as part of a plea agreement, the court sentenced the defendant to five years in prison with three and one-half years suspended. The defendant left counsel's table accompanied by the sheriff. Before exiting the courtroom, the defendant made an obscene hand gesture toward the court. The court summoned the defendant back to counsel's table and resentenced him, imposing the entire five-year term. Before the court entered a judgment of conviction, the defendant filed a pro se motion for resentencing. The court entered a judgment of conviction but also granted a resentencing hearing. After the hearing, the court imposed a 60-month sentence with 40 months suspended. The defendant appeals, asserting that the sentencing court was without authority to increase his punishment beyond the court's initial sentence of five years with three and one-half years suspended. We affirm.
[¶ 2.] On February 17, 2017, the Brule County Grand Jury indicted Shawn Ross on one count of third-degree burglary in violation of SDCL 22-32-8 and one count of intentional damage to property in violation of SDCL 22-34-1(2). Ross pleaded not guilty. Thereafter, the State and Ross entered into a plea agreement. At a hearing on May 16, 2017, pursuant to the plea agreement, Ross pleaded guilty to third-degree burglary and agreed to pay $2,887.21 in restitution. The circuit court accepted Ross's plea and set a sentencing hearing for June 13, 2017.
[¶ 3.] At the sentencing hearing, Ross represented himself, although the sentencing court appointed advisory counsel. Before imposing sentence, the court relayed that it had previously accepted Ross's plea, found a factual basis to support the plea, and ordered a presentence investigation (PSI). The court asked Ross if he had reviewed the PSI. Ross replied that he reviewed it and had nothing to add or change. He also agreed that the PSI contained "all the information the [c]ourt needs to know in sentencing [him] today[.]" The State did not offer evidence in aggravation, and Ross did not present evidence in mitigation. Ross also chose not to make a statement. The transcript indicates that advisory counsel whispered to Ross. Thereafter, Ross requested and received credit for time served. Counsel again whispered to Ross, and Ross asked the court to waive the fine and costs, which the court granted.
[¶ 4.] After addressing those preliminary matters, the court asked whether either party was "aware of any just or legal cause why sentencing cannot be pronounced?" Ross and the State responded in the negative. The court continued:
The transcript indicates that Ross left counsel's table. It is undisputed that Ross left counsel's table with the deputy sheriff.
[¶ 5.] After Ross left counsel's table, counsel for the State and counsel advising Ross each asked the sentencing court a question. Although Ross was representing himself, counsel advising Ross asked the court, "Judge, is there a certain amount—never mind—probationary period, or?" The following exchange occurred:
[¶ 6.] Thereafter, the court said, The following exchange transpired:
The deputy sheriff escorted Ross out of the courtroom.
[¶ 7.] On July 11, 2017, Ross, acting pro se, filed a motion to withdraw his guilty plea and/or appeal his sentence. He also filed a motion for resentencing. The court had not yet entered a judgment of conviction on the charge of third-degree burglary. The court also had not yet entered an order on the contempt charge. On July 20, the circuit court issued findings of fact and conclusions of law and an order of contempt. The court ordered that Ross "serve an additional 30 days in the Brule County Jail for contempt of court [in] accordance with SDCL 23A-38-1." The court also entered a judgment of conviction on the charge of third-degree burglary and imposed a five-year sentence.
[¶ 8.] In regard to Ross's pro se motions, the court denied Ross's motion to withdraw his guilty plea. The court granted Ross's motion for resentencing. In the order granting the request to be resentenced, the court cited SDCL 23A-27-19 as authority to modify Ross's sentence. The court concluded that Ross "should be allowed another opportunity with substitute counsel to present his case for a possible different sentence." On August 14, 2017, the court appointed counsel to represent Ross.
[¶ 9.] On September 5, 2017, the court held a resentencing hearing. Ross appeared with court-appointed counsel. The court recognized that Ross had submitted a letter of apology and that the court accepted the apology. During the hearing, counsel for Ross argued that the sentencing court was without authority to increase Ross's sentence after the court had announced the sentence and remanded Ross to the custody of the sheriff. Therefore, counsel requested that the court reimpose the original sentence: five years with three and one-half years suspended. The court responded that it "thought about giving [Ross] the same time sentence" but determined that it would not. The court ordered that Ross serve 60 months in the penitentiary with 40 months suspended and credit for 194 days served. The court also ordered that Ross reimburse the court appointed attorney fees and pay restitution as previously ordered. The court entered an amended judgment of conviction imposing the same.
[¶ 10.] Ross appeals, and we restate his issues as follows:
KERN, Justice, writing the opinion on Issue 1.
[¶ 11.] Ross argues that the sentencing court was without authority to increase his punishment because the court had orally pronounced a valid sentence and remanded Ross to the custody of the sheriff. Ross directs this Court to our well-established rule that "[a]s against an unwilling defendant, a valid sentence cannot be...
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