State v. Sieler, 19150

• Decision Date: 09 October 1996
• Docket Number: No. 19150,19150
• Citation: State v. Sieler, 1996 SD 114, 554 N.W.2d 477 (S.D. 1996)
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Ricky Jay SIELER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 477

554 N.W.2d 477

1996 SD 114

STATE of South Dakota, Plaintiff and Appellee, v. Ricky Jay SIELER, Defendant and Appellant.

No. 19150.

Supreme Court of South Dakota.

Argued March 12, 1996.

Decided Sept. 4, 1996.

Rehearing Denied Oct. 9, 1996.

Mark Barnett, Attorney General, Jason M. Harris, Assistant Attorney General, Pierre, for plaintiff and appellee.

Timothy J. Langley, Sioux Falls, for defendant and appellant.

AMUNDSON, Justice.

¶1 Ricky Jay Sieler (Sieler) appeals his sentence for kidnapping, attempted first-degree murder, second-degree rape, first-degree burglary, and aggravated assault. We affirm.

FACTS

¶2 Victim claims she was raped and assaulted by Sieler, her former boyfriend, in her Sioux Falls apartment on the morning of June 24, 1994. Victim's wrist, arm, stomach and throat sustained serious lacerations. During this ordeal, Victim alleges that Sieler threatened to kill her and himself.

¶3 A jury trial commenced on January 9, 1995. The jury found Sieler guilty of attempted first-degree murder (SDCL 22-16-4 and 22-4-1), ¹ kidnapping (SDCL 22-19-1), ² second-degree rape (SDCL 22-22-1(2)), ³ first-degree burglary (SDCL 22-32-1(3)), ⁴ and aggravated assault (SDCL 22-18-1.1(2)), ⁵ all stemming from the June 24, 1994, attack on Victim. Sieler was sentenced to serve consecutively twenty-five years on the attempted murder conviction, twenty-five years on the rape conviction, twenty-five years on the burglary conviction, and thirty years on the kidnapping conviction, for a total of one hundred five years. In addition, Sieler was sentenced to fifteen years on the aggravated assault conviction, to be served concurrently with the twenty-five years for attempted murder. Each written judgment and sentence denoted that all of the offenses were separate transactions.

¶4 Sieler claims that there was no mention by the sentencing court at the original sentencing that all of the offenses were separate transactions. Since the offenses were classified as separate transactions, Sieler must serve twenty-seven years before he is eligible for parole instead of thirteen and one-half years. Sieler moved to have his sentence corrected pursuant to SDCL 23A-31-1 (Federal Rule 35) ⁶ and 23A-27-4.1, ⁷ at which time the sentencing court upheld its earlier decision as to classifying the kidnapping, rape and burglary as separate offenses and had the State redraft the attempted murder and aggravated assault judgments into one criminal transaction.

¶5 Sieler appeals, ⁸ raising the following issues: ⁹

I. Whether the addition of the words "separate transactions" to the written judgments and sentences illegally impose an enhanced sentence?

II. Was the sentencing as "separate transactions" illegal?

ARGUMENT

¶6 The two issues presented by Sieler both challenge his sentence. The first issue asserts that the sentence was illegally imposed. "Sentences imposed in an illegal manner are within the relevant statutory limits but are imposed in a way which violates defendant's right" to not have his sentence enhanced once the defendant has left the judicial branch of government and is within the jurisdiction of the executive branch. 8A J. Moore, Moore's Federal Practice p 35.04[a] (2d Ed. 1995); see State v. Bucholz, 403 N.W.2d 400, 403 (S.D.1987); State v. Oban, 372 N.W.2d 125, 129 (S.D.1985); State v. Ford, 328 N.W.2d 263, 267 (S.D.1982).

¶7 The second issue maintains that, even if the sentence was not illegally imposed, the sentence is illegal in and of itself because the offenses may not be termed as separate transactions. " '[I]llegal sentences are essentially only those which exceed the relevant statutory maximum limits or violate double jeopardy or are ambiguous or internally contradictory.' " State v. Thomas, 499 N.W.2d 621, 622 (S.D. 1993) (quoting 8A J. Moore, Moore's Federal Practice § 35.06(a) (2d Ed. 1992) (now found at § 35.04 (2d Ed. 1995))).

DECISION

¶8 I. Whether the addition of the words "separate transactions" to the written judgments and sentences illegally impose an enhanced sentence?

¶9 Sieler was sentenced to a total of one hundred five years for the crimes he committed against Victim. Since the sentencing court pronounced that the kidnapping, rape and burglary were separate offenses, in addition to the offenses of attempted first-degree murder and aggravated assault, he is considered to have committed three or more felonies. Prior to this conviction, Sieler had not been convicted of a felony. Because Sieler is considered to have committed three or more felonies, his parole eligibility date is twenty-seven years compared to thirteen and one-half years if he was a first-time felon. See SDCL 24-15-7 and 24-15-5. ¹⁰ Sieler claims the sentencing court did not make this clear during oral sentencing and, therefore, cannot enforce the convictions as separate transactions.

¶10 It is a well-established rule that a sentencing court cannot increase a valid sentence after the defendant has commenced serving the sentence. Ford, 328 N.W.2d at 267. However, Sieler's sentence was not enhanced or increased. The issue is whether Sieler's parole was illegally enhanced or increased.

¶11 Reviewing the oral sentencing transcript, it is clear that the sentencing court intended for these convictions to be separate transactions.

In determining what is a proper time of incapacitation and in determining what is a proper punishment in this case, I think the Court has to look at the crimes that [Sieler] was convicted of by the jury individually.

. . . . .

... [U]nder the current parole guidelines, that will make [Sieler] eligible for parole, if he makes parole, when he is old enough to draw Social Security. And it's my opinion that at that time he should no longer be a significant danger to women [with whom he is involved].... [M]y 20-some years in the criminal field has taught me that the type of crime committed here is normally committed by a gentleman under the age of 60. Therefore, in my opinion, this sentence serves the purpose of punishing [Sieler] to the extent that the law would permit, and it also incapacitates him until such time as I believe he would no longer be dangerous to women in which he has a relationship.

Sieler was thirty-four years old at the time of sentencing. Using Sieler's argument, he would be eligible for parole at the age of forty-seven. It was clear that the sentencing court intended Sieler to serve time until retirement age, which is approximately sixty. By classifying the convictions as separate transactions, this goal is accomplished. The sentencing court clearly indicated it was treating the offenses individually or separately.

¶12 In addition, even if the sentencing court was not patently clear at the oral sentencing as to its intent, there is guidance to interpret the intent. An orally pronounced sentence does control over the written judgment, however, if the verbal sentence is not clear, the intent of the sentencing court may be construed from the entire record. State v. Johnston, 478 N.W.2d 286, 288 (S.D. 1991); see also 8A J. Moore, Moore's Federal Practice § 36.02 (2d Ed. 1995); United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir. 1994). Examining the entire record leads to one conclusion: the sentencing court intended for the offenses to be punished as separate transactions.

¶13 Finally, SDCL 24-15-1.1 states:

Parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of his term of imprisonment. The prisoner remains an inmate under the legal custody of the department of corrections until the expiration of his term of imprisonment. A prisoner is not required to accept a conditional parole. A prisoner is never entitled to parole. However, parole may be granted if in the judgment of the board of pardons and paroles granting a parole would be in the best interests of society and the prisoner.

Neither this section or its application may be the basis for establishing a constitutionally protected liberty, property or due process interest in any prisoner. (Emphasis added.)

The United States Supreme Court has specifically held that a convicted person has no constitutional right to parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668, 675 (1979); see also Winters v. Solem, 444 N.W.2d 722, 724 (S.D. 1989). Sieler's sentence was not increased by the words "separate transaction," only his parole eligibility is affected by these words.

¶14 II. Was the sentencing as "separate transactions" illegal?

¶15 Alternatively, Sieler argues that the sentencing court erred as a matter of law by describing the four convictions as separate transactions. Specifically, he alleges that, since the offenses all occurred during a short period of time at one place to one victim, he cannot have committed separate offenses.

¶16 To evaluate Sieler's claim, we will start by analyzing SDCL 22-6-6.1. This is a matter of law to be reviewed de novo. State v. Karp, 527 N.W.2d 912, 913 (S.D. 1995). SDCL 22-6-6.1 provides:

If a defendant has been convicted of two or more offenses regardless of when the offenses were committed or when the judgment or sentence was entered, the judgment or sentence may be that the imprisonment on the subsequent conviction may run concurrently with the imprisonment on any prior conviction or the imprisonment for the subsequent offense may commence at the expiration of the imprisonment upon any other offense.

SDCL 22-6-6.1 is "specific on its face and ... it allows for consecutive sentences 'regardless of when the offenses were committed or when the judgment or sentence was entered.' " State v. Swallow, 405 N.W.2d 29, 43 (S.D. 1987) (quoting SDCL 22-6-6.1). This clear and unambiguous language allows the sentencing court to impose sentences consecutively and does not limit the scope as to what may be a separate transaction. Sieler concedes that consecutive sentences may be imposed for...