#27768-a-DG
2017 S.D. 3
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ANTWAUN UNDERWOOD, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA
…
THE HONORABLE JON R. ERICKSON
Judge
…
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
AARON P. PILCHER of
Bridgman & Anderson Law Firm
Miller, South Dakota Attorneys for defendant
and appellant.
…
CONSIDERED ON BRIEFS
ON NOVEMBER 7, 2016
OPINION FILED 01/25/17
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GILBERTSON, Chief Justice
[¶1.] Antwaun Underwood pleaded guilty to possessing a controlled
substance, and the circuit court sentenced him to imprisonment for four years.
Underwood appeals and argues the court failed to identify aggravating factors
sufficient to deviate from a presumptive sentence of probation. We affirm.
Facts and Procedural History
[¶2.] On January 23, 2015, Huron Police Officer Adam Doerr observed
Underwood’s vehicle travelling in excess of the speed limit. Officer Doerr initiated a
traffic stop and approached Underwood. While speaking to Underwood, Officer
Doerr noticed a green, leafy substance that he believed to be marijuana, as well as
paraphernalia, on the center console of the vehicle. Officer Doerr informed
Underwood that he was placing him under arrest. A subsequent search of
Underwood’s coat revealed a plastic baggy containing a green, leafy substance.
Underwood acknowledged that the baggy belonged to him.
[¶3.] Underwood was charged by complaint with one count of ingesting a
substance for the purpose of becoming intoxicated, one count of possessing two
ounces or less of marijuana, and one count of possessing a controlled substance. He
was also charged with driving with a suspended license. An information was later
filed that charged Underwood with possessing a controlled substance. Underwood
failed to appear for his preliminary hearing, but on November 1, 2015, he pleaded
guilty to one count of possessing a controlled substance. The circuit court departed
from a presumptive sentence of probation and sentenced Underwood to
imprisonment for four years.
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[¶4.] Underwood appeals, raising one issue: Whether the circumstances
enumerated by the circuit court justified a departure from the presumptive sentence
of probation under SDCL 22-6-11.
Standard of Review
[¶5.] The central issue in this case is a question of statutory construction.
We review such issues de novo. Good Lance v. Black Hills Dialysis, LLC, 2015 S.D.
83, ¶ 9,
871 N.W.2d 639, 643. Thus, we give no deference to the circuit court’s legal
conclusions.
Id.
Analysis and Decision
[¶6.] Underwood pleaded guilty to possessing a controlled substance, which
in this case is a Class 5 felony. For an offender not already in custody of the
executive branch, such an offense carries a presumptive sentence of probation.
SDCL 22-6-11. 1 However, “[t]he sentencing court may impose a sentence other
than probation . . . if the court finds aggravating circumstances exist that pose a
significant risk to the public and require a departure from presumptive probation[.]”
Id. In this case, the court cited 10 circumstances that it considered to be
aggravating:
1. Underwood has a five (5) page rap sheet;
2. Nine (9) bench warrants have been issued since 2008 in
various cases for failure to appear or comply with orders of the
court;
3. In 2010 Underwood was sentenced to the penitentiary on
conviction for being an Accessory to a Felony;
1. For an offender who has been committed to the supervision of the executive
branch, the sentencing court is presumptively required to fully suspend any
sentence imposed. SDCL 22-6-11.
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4. On the Accessory to a Felony charge he was incarcerated
twice on parole violations;
5. In 2011 Underwood was sentenced to the penitentiary for
Grand Theft;
6. On the Grand Theft charge he was returned to the
penitentiary on a parole violation;
7. Since 2008 Underwood has failed or refused to pay at least
$2,497.96 in fines, costs, restitution and/or attorney fees;
8. Since 2008 Underwood has had a history of failing to comply
with conditional release;
9. Underwood violated parole on each of his two previous felony
convictions; and
10. Underwood committed the underlying felony just after his
release from parole for Grand Theft.
Underwood argues that a circumstance is not aggravating within the meaning of
SDCL 22-6-11 unless it demonstrates a risk of violence or career criminality.
Therefore, Underwood concludes that the 10 circumstances relied on by the circuit
court were insufficient to warrant a departure from the presumptive sentence of
probation.
[¶7.] We agree with Underwood that some of the circumstances listed by the
circuit court are not aggravating circumstances justifying a departure from the
presumptive sentence. SDCL 22-6-11 does not specifically define the term
aggravating circumstances. However, under that statute, only circumstances that
“pose a significant risk to the public and require a departure from presumptive
probation” can justify imposing a sentence other than probation. Id. (emphasis
added). For example, Underwood’s failure to pay fines, costs, restitution, or
attorney fees hardly amounts to “a significant risk to the public[.]”
Id. Even if such
could be considered a significant risk to the public, incarcerating Underwood rather
than placing him on probation does nothing to remedy his failure to pay; therefore,
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Underwood’s failure to pay does not require a departure from the presumptive
sentence of probation. Id.
[¶8.] Even so, we must reject Underwood’s suggestion that SDCL 22-6-11
contemplates only circumstances demonstrating a risk of violence or career
criminality. We recently rejected a similar argument in State v. Whitfield,
2015 S.D. 17,
862 N.W.2d 133. In that case, the defendant was convicted of
possessing a controlled substance (cocaine) and drug paraphernalia. Id. ¶ 1,
862 N.W.2d at 135. Although SDCL 22-6-11 applied, the sentencing court departed
from the presumptive sentence of probation and sentenced the defendant to
imprisonment for five years (with two years suspended). Whitfield,
2015 S.D. 17,
¶ 23,
862 N.W.2d at 140. In departing from presumptive probation,
the court considered [the defendant’s] three prior felonies, which
included a prior drug offense. The court deemed [him], age 56, a
poor candidate for probation. He had a history of parole
violations in Texas and would be difficult to supervise in light of
his desire to return to Texas and continue employment as a
transient carnival worker. Lastly, the court considered the
amount of cocaine found in [his] possession.
Id. ¶ 22, 862 N.W.2d at 140. The defendant argued that these circumstances were
not aggravating circumstances within the meaning of SDCL 22-6-11 that justified a
departure from presumptive probation. Whitfield,
2015 S.D. 17, ¶ 21,
862 N.W.2d
at 140. We rejected his argument and affirmed his sentence. Id. ¶¶ 23-24,
862 N.W.2d at 140.
[¶9.] The present case involves circumstances similar to those present in
Whitfield. Here, the court considered Underwood’s “five-page rap sheet,” which
includes two felony convictions. Although it is not clear from the record what
underlying felony offense led to Underwood’s accessory conviction, his offense of
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grand theft is not a victimless crime. Underwood violated the terms of parole for
these offenses on multiple occasions. A presentence-investigation report also
indicated Underwood was involved in distributing a controlled substance. At
sentencing, the court commented: “You got a felony distribution case that’s being
dismissed. You got a five-page rap sheet. You’re still involved in drugs. . . . [Y]ou
were in the custody of the [Department of Corrections] and still selling drugs.”
Additionally, Underwood has demonstrated a complete disdain for court orders and
supervised release. It is clear that sentencing Underwood to additional probation
likely would not deter him from continuing his course of criminal activity.
Therefore, we agree with the circuit court that “circumstances exist that pose a
significant risk to the public and require a departure from presumptive probation[.]”
SDCL 22-6-11.
Conclusion
[¶10.] The term aggravating circumstances, as used in SDCL 22-6-11, does
not require a showing of likely violence or career criminality. Underwood’s criminal
history and complete disregard for supervised release indicate the court’s departure
from the presumptive sentence of probation was warranted. Therefore, we affirm.
[¶11.] ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶12.] KERN, Justice, concurs specially.
KERN, Justice (concurring specially).
[¶13.] Although this Court correctly acknowledges that the narrow legal issue
presented by this case—whether the word “aggravating” in SDCL 22-6-11 requires
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“violence or career criminality”—is a question of law reviewed de novo, I write to
clarify our standard of review in SDCL 22-6-11 cases. We apply the abuse of
discretion standard to review a circuit court’s decision to deviate from presumptive
probation under SDCL 22-6-11 rather than de novo review. An abuse of discretion
“is a fundamental error of judgment, a choice outside the range of permissible
choices, a decision, which, on full consideration, is arbitrary or unreasonable.”
Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11,
836 N.W.2d 611, 616
(internal citations and quotation marks omitted).
[¶14.] It is an obvious but critical point that SDCL 22-6-11 affects the
sentencing power of a circuit court. The statute creates a presumptive sentence
and, through the use of the word “may,” gives the court the ability to deviate from
the presumptive sentence. Deviation requires the court to follow specific procedures
(identifying why it found the presumptive sentence inappropriate), but SDCL 22-6-
11 leaves the choice in the circuit court’s discretion. It is well-established that a
sentence within the statutory maximum is reviewed under the abuse of discretion
standard. State v. McKinney,
2005 S.D. 73, ¶ 10,
699 N.W.2d 471, 476 (citing State
v. Goodroad,
1997 S.D. 46, ¶ 40,
563 N.W.2d 126, 135). We accord great deference
to the sentencing decisions made by trial courts. State v. Garber,
2004 S.D. 2, ¶ 13,
674 N.W.2d 320, 323; State v. Milk,
2000 S.D. 28, ¶ 10,
607 N.W.2d 14, 17 (citing
State v. Gehrke,
491 N.W.2d 421, 422 (S.D. 1992)). The decision to sentence within
the permissible statutory range, including within the options set forth in SDCL 22-
6-11, is a discretionary decision entitled to deferential review.
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[¶15.] Our prior decisions interpreting SDCL 22-6-11 likewise recognize that
a sentencing court’s decision to deviate from presumptive probation is reviewed
under the abuse of discretion standard. In State v. Whitfield, we held that a circuit
court did not abuse its discretion by deviating from presumptive probation under
SDCL 22-6-11:
To depart from a sentence of probation, the court must identify
aggravating factors that pose a significant risk to the public.
SDCL 22–6–11. Based on our review of the record and the
court's reasons for departing from a sentence of probation, we
cannot say the court abused its discretion.
2015 S.D. 17, ¶ 23,
862 N.W.2d 133, 140 (emphasis added). And in State v.
Beckwith, we again declared that “[w]e apply the abuse of discretion standard in
reviewing a sentencing court’s decision to depart from presumptive probation.”
2015 S.D. 76, ¶ 7,
871 N.W.2d 57, 59.
[¶16.] Yet the majority opinion seems to analyze the court’s decision to depart
from presumptive probation as a legal issue reviewable de novo. I agree that the
key question—interpreting “aggravating”—in this case is a question of law
reviewable de novo. But once the legal issue regarding the meaning of
“aggravating” is resolved, we must decide whether the circuit court abused its
discretion by deviating from presumptive probation. 2
2. In his brief, Underwood states that abuse of discretion is the proper standard
of review for a sentencing court’s departure from presumptive probation but
also that SDCL 22-6-11 imposes statutory limits on the sentencing court’s
discretion. Underwood argues that “SDCL 22-6-11 must include a discernible
standard” for its limits on sentencing authority, namely, that the identified
aggravating circumstances sufficiently pose a significant risk to the public.
Underwood claims that “significant risk to the public” only encompasses
circumstances showing career criminality or violence. This precise issue is a
(continued . . .)
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[¶17.] Applying de novo review as the predominate method of analyzing
sentences imposed under SDCL 22-6-11 would undermine the important role that
circuit court’s play in our criminal justice system. See State v. Craig, 2014 S.D. 43,
¶ 29,
850 N.W.2d 828, 837 (describing the important process used by circuit court
judges in imposing an appropriate sentence, including acquiring a thorough
understanding of a defendant, his prospects for rehabilitation, and the
circumstances of the crime). Often, depending upon the nature of the specific
question presented, it may be proper to apply other standards of review, including a
de novo review of a legal issue or a clearly erroneous review of factual findings that
a court relied on in imposing its sentence. But once those issues have been resolved,
if a party challenges a deviation from presumptive probation under SDCL 22-6-11,
we must determine whether the sentencing court abused its discretion.
________________________
(. . . continued)
question of law, which we can review de novo. Underwood, however, ends his
argument by stating that “the sentencing court failed to reference either
career criminality or violence, and thereby exceeded and abused it [sic]
discretion.” (Emphasis added.) Whether the court abused its discretion is
the foundational concern.
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