#29165-r-DG
2021 S.D. 14
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHAD A. RUS, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
AURORA COUNTY, SOUTH DAKOTA
…
THE HONORABLE PATRICK T. SMITH
Judge
…
RACHEL MAIROSE
Aurora County State’s Attorney
JOHN R. STEELE
Assistant Aurora County State’s Attorney
Plankinton, South Dakota Attorneys for plaintiff and
appellee.
BERT S. BUCHER
Yankton, South Dakota
STEVEN J. BUCHER
Plankinton, South Dakota Attorneys for defendant and
appellant.
…
ARGUED
OCTOBER 5, 2020
OPINION FILED 03/03/21
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GILBERTSON, Retired Chief Justice
[¶1.] The State charged Chad Rus (Rus) by complaint and information with
driving under the influence of an alcoholic beverage (DUI). A conviction on this
charge would be Rus’s third DUI within ten years. Rus moved for a preliminary
hearing on the DUI charge. He argued that SDCL 23A-4-3 entitled him to a
preliminary hearing because he faced a felony conviction. The circuit court denied
the motion. It held that SDCL 23A-4-3 did not entitle Rus to a preliminary hearing
because his underlying offense was a misdemeanor. Rus sought an intermediate
appeal of the circuit court’s order, which this Court granted. We reverse and
remand.
Background
[¶2.] On June 25, 2019, Les and Arla Crago’s mailbox was damaged. Les
Crago (Crago) notified law enforcement. He provided Rus’s name as the individual
he believed was responsible for the damage. Unbeknownst to Crago, Arla had
spoken with Rus on the phone. Rus said that, due to a flat tire, he drove into the
couple’s mailbox.
[¶3.] Acting on Crago’s belief, law enforcement went to Rus’s residence and
observed a damaged vehicle in his driveway. Law enforcement also obtained
surveillance footage from a nearby bar and elevator. The footage revealed that Rus
drove to the bar with an undamaged vehicle, consumed ten beers, and then exited
the bar with a six-pack of beer. Rus admitted to law enforcement that he hit
Crago’s mailbox, but he denied driving under the influence.
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[¶4.] On July 11, 2019, the Aurora County State’s Attorney filed a complaint
and then an information. The State charged Rus with three counts, including
driving a motor vehicle while under the influence of an alcoholic beverage. See
SDCL 32-23-1(2). Based on the complaint and law enforcement’s report, the Aurora
County magistrate judge issued, and law enforcement executed, a felony arrest
warrant.
[¶5.] Prior to the at-issue DUI charge, Rus had received two separate DUI
convictions on November 1, 2016, and February 1, 2011. Under SDCL chapter 32-
23, the severity of an individual’s penalty increases with each subsequent DUI
conviction. An individual’s third conviction becomes a class 6 felony, if committed
within ten years of the individual’s prior two convictions. SDCL 32-23-4, -4.1. For
the State to enhance the charged offense, it must file “a separate supporting
information” alleging, “in addition to the principal offense charged, any former
convictions.” SDCL 32-23-4.2. This supplemental information is referred to as a
part II information (part II). After the State files the part II, it may then seek a
felony conviction for a defendant’s third and subsequent DUI offenses. 1 SDCL 32-
23-4, see SDCL 32-23-4.2.
1. The State must file the part II “prior to arraignment.” SDCL 23A-6-3. The
defendant may then either plead or elect a trial on the underlying charge or
charges. SDCL 32-23-4.3. But prior to the defendant entering a plea, the
circuit court must inform the defendant of the contents of the part II. Id.
After a finding of guilt on the underlying charge, a defendant may then
proceed to trial or concede the part II information. SDCL 32-23-4.4. If the
fact finder finds the defendant was the individual who committed the offense
or offenses in the part II, the defendant is then convicted of a felony. SDCL
32-23-4.
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[¶6.] On July 31, 2019, Rus appeared before the circuit court. The case was
scheduled for arraignment, but Rus moved for a preliminary hearing. In the
alternative, Rus moved the circuit court to order that if he is convicted of the
misdemeanor charged in the complaint, his punishment must be limited to a class 1
misdemeanor. On September 9, 2019, the State moved to strike “felony” from Rus’s
arrest warrant.
[¶7.] The circuit court heard arguments on the motions on September 25,
2019. It struck “felony” from the arrest warrant, finding it to be surplusage. The
court then denied Rus’s motion for a preliminary hearing and his alternative motion
to limit his punishment to a misdemeanor. The circuit court cited this Court’s
holding in State v. Helling, 391 N.W.2d 648 (S.D. 1986). It found that Rus’s DUI
charge remained a misdemeanor until there was a finding of guilt on the part II
information. At the motions hearing, the prosecuting attorney stated that he had
prepared the part II but was waiting for the “appropriate time” to file it.
[¶8.] The State filed the part II on October 22, 2019. The part II alleged
that Rus had been convicted of two prior DUIs, thereby charging him with DUI
third offense, a class 6 felony.
[¶9.] Rus sought an intermediate appeal of the circuit court’s order denying
his motion for a preliminary hearing. We granted Rus’s petition for intermediate
appeal.
[¶10.] Rus raises the following issues:
1. Whether a defendant is guaranteed a preliminary hearing
when charged [by complaint or information] with an
offense punishable as a felony.
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2. Whether the denial of a preliminary hearing, for a
defendant charged with an offense punishable as a felony,
deprives him or her of due process of law guaranteed by
both the Sixth Amendment to the United States
Constitution, as applied to the states through the
Fourteenth Amendment, and the South Dakota
Constitution article VI, § 2.
Analysis and Decision
1. Whether a defendant is guaranteed a preliminary
hearing when charged [by complaint or
information] with an offense punishable as a felony.
[¶11.] “Statutory interpretation and application are questions of law, and are
reviewed by this Court under the de novo standard of review.” State v. Powers,
2008 S.D. 119, ¶ 7,
758 N.W.2d 918, 920.
[¶12.] Rus argues the plain language of SDCL 23A-4-3 entitles a defendant to
a preliminary hearing if he or she is charged with an offense that is punishable as a
felony. Because a third-offense DUI under SDCL 32-23-4 is a class 6 felony, he
claims that he is entitled to a preliminary hearing. The State responds that Rus’s
right to a preliminary hearing is purely statutory. It contends that a circuit court
must treat the underlying DUI offense procedurally as a misdemeanor and claims
that the court must treat the part II as a separate proceeding. The State advances
that, if a defendant is found guilty of the part II, his or her punishment is then
enhanced to a felony. The State classifies the part II, not as a separate offense, but
rather as a mechanism for allowing the court to impose a more severe penalty. The
State further advances that, at the time of the motions hearing, it had not filed a
part II. As a result, it claims Rus was only facing a misdemeanor charge.
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[¶13.] This Court’s rules of statutory interpretation are well settled. “In
conducting statutory interpretation, we give words their plain meaning and effect,
and read statutes as a whole.” Reck v. S.D. Bd. of Pardons & Paroles, 2019 S.D. 42,
¶ 11,
932 N.W.2d 135, 139. “[I]f the words and phrases in the statute have plain
meaning and effect, we should simply declare their meaning and not resort to
statutory construction.”
Id. (alteration in original). “[T]he starting point when
interpreting a statute must always be the language itself.” State v. Livingood,
2018
S.D. 83, ¶ 31,
921 N.W.2d 492, 499.
[¶14.] Our State’s preliminary hearing statute, in its pertinent part, provides:
No defendant is entitled to a preliminary hearing unless charged
with an offense punishable as a felony. If the defendant waives
the preliminary hearing, the committing magistrate shall
forthwith hold the defendant to answer in circuit court if the
offense charged is a felony. If the defendant does not waive the
preliminary hearing, the committing magistrate shall schedule a
preliminary hearing . . . .
SDCL 23A-4-3. We agree with Rus’s reading, which draws on this statute’s and
SDCL 32-23-4’s plain language.
[¶15.] Under SDCL 23A-4-3, a defendant is entitled to a preliminary hearing
if he or she is charged with an offense “punishable as a felony.” The State charged
Rus with driving a motor vehicle while under the influence of an alcoholic beverage
(SDCL 32-23-1(2)). SDCL 32-23-4 provides, “If conviction for a violation of § 32-23-1
is for a third offense, the person is guilty of a Class 6 felony[.]” (Emphasis added.)
As such, a defendant’s third DUI charge is “an offense punishable as a felony.”
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SDCL 23A-4-3. Under SDCL 23A-4-3, a defendant facing a third-offense DUI is
entitled to a preliminary hearing. 2
[¶16.] Further, the parties dispute whether this Court’s holdings in State v.
Helling, 391 N.W.2d 648 (S.D. 1986) and State v. Anders,
2009 S.D. 15,
763 N.W.2d
547, which the circuit court relied on, support that a defendant charged with a
third-offense DUI is entitled to a preliminary hearing. 3
[¶17.] Today, we reverse the Helling Court’s holding, which classified SDCL
32-23-4 as a “punishment enhancement statute[.]”
391 N.W.2d at 650. Helling, like
Rus, faced a third-offense DUI charge.
Id. at 648. He argued that a third-offense
DUI is a felony, which entitled him to a felony number of preemptory challenges.
Id. at 650. The Court rejected Helling’s claim and concluded that “SDCL 32-23-4 is
a punishment enhancement statute[.]”
Id. To reach its decision, the Court
2. The State is correct that it filed the part II within the required timeframe.
Under SDCL 23A-6-3, “All informations shall be filed with the court having
jurisdiction of the offense by the prosecuting attorney prior to arraignment.”
(Emphasis added.) In State v. Arguello, a prosecutor waited until the
arraignment proceeding to file the part II. 519 N.W.2d 326, 327-28 (S.D.
1994). This Court held that the State properly appraised the defendant of
the charges brought against him. Id. at 329. Therefore, the delayed filing
did not invalidate the part II. Id. Here, the State timely filed the part II
before Rus’s arraignment.
3. The State claims the holding of State v. Steffenson supports its proposition
that Rus is not entitled to a preliminary hearing. 85 S.D. 136,
178 N.W.2d
561 (1970). The State’s reliance on Steffenson is misplaced. Since the
Steffenson holding, the Legislature has amended our State’s preliminary
hearing statute. See SDCL 23-27-1 (1967); 1978 S.D. Sess. Laws ch. 178, §
577. Pursuant to the statute in effect at the time of Steffenson, the circuit
court provided Steffenson a preliminary hearing on the charged offense, and
he elected to waive his right. Id. at 137, 178 N.W.2d at 562-63. Here, Rus
was denied his right to have a preliminary hearing provided by our State’s
statutes. Therefore, Steffenson is inapplicable.
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incorrectly drew from our State’s habitual offender statutes. Id. This association
was in error. As the Court noted, our State’s habitual offender statutes “do[ ] not
create a new offense, but merely authorize[ ] the trial court, in its discretion, to
impose a more severe penalty upon one who is found to have the status of a habitual
criminal[.]”
Id. Conversely, our State’s DUI scheme does not merely “authorize[ ] a
trial court, in its discretion, to impose a more severe penalty[.]”
Id. Rather, our
State’s DUI statutes prescribe the level of punishment the individual faces if
convicted of the subsequent DUI offense. The plain language of SDCL 32-23-4
provides that a person convicted of a third-offense DUI “is guilty of a Class 6
felony[.]” A third-offense DUI is a class 6 felony.
[¶18.] Our rationale today aligns with the holding of Anders,
2009 S.D. 15,
763 N.W.2d 547. In Anders, we held that a third-offense DUI conviction is “a felony
under the laws of this state[.]” Id. ¶ 11,
763 N.W.2d at 551-52. As a result, we
concluded that a third-offense DUI conviction is “available for sentence
enhancement purposes” under our State’s habitual offender scheme (SDCL chapter
22-7). 4 Id. ¶ 11,
763 N.W.2d at 552. Because a third-offense DUI is a felony, it
4. Today, we resolve the discrepancy noted by the Anders Court, which stated:
In Carroll, we recognized that our holding was in line with State
v. Helling, 391 N.W.2d 648 (S.D. 1986), “where we held that a
person charged with a third offense DWI was not entitled to
additional (felony) peremptory challenges on the underlying
charge.” 424 N.W.2d at 157. We find the discrepancy troubling,
and conclude that, because a person charged with a felony DUI
faces a potential penitentiary sentence and should be treated the
same as those charged with other felonies, this is a procedural
defect needing to be cured.
(continued . . .)
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warrants the procedural safeguards provided to a felony offense, including ten
preemptory challenges when selecting a jury pursuant to SDCL 23A-20-20 and a
preliminary hearing under SDCL 23A-4-3. 5
[¶19.] The plain language of SDCL 23A-4-3 entitles a defendant facing a
felony conviction to a preliminary hearing. SDCL 32-23-4 provides that a person
convicted of a third-offense DUI is “guilty of a Class 6 felony[.]” As Rus faced a
potential felony conviction, he was entitled to a preliminary hearing.
2. Whether the denial of a preliminary hearing, for a
defendant charged with an offense punishable as a
felony, deprives him or her of due process of law
guaranteed by both the Sixth Amendment to the
United States Constitution, as applied to the states
through the Fourteenth Amendment, and the South
Dakota Constitution article VI, § 2.
[¶20.] “[W]e review questions concerning constitutional rights under the de
novo standard of review.” State v. $1,010.00 in Am. Currency, 2006 S.D. 84, ¶ 9,
722
N.W.2d 92, 94. Rus argues that he was subjected to two separate constitutional
violations under the Sixth and Fourteenth Amendments to the United States
Constitution and under article VI, §§ 2 and 7 of the South Dakota Constitution.
The circuit court did not address these issues.
________________________
(. . . continued)
2009 S.D. 15, ¶ 12 n.3,
763 N.W.2d at 552 n.3. We now hold that a third-offense DUI is a felony warranting our State’s felony procedural safeguards.
5. SDCL 23A-20-20 provides: “If an offense charged is a Class A, Class B, Class
C, or Class 1 felony, the prosecution and the defense each have twenty
peremptory challenges. In all other felony cases, the prosecution and the
defense each have ten peremptory challenges. In misdemeanor cases, the
prosecution and the defense each have three peremptory challenges.”
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[¶21.] Both this Court and the United States Supreme Court hold that “[t]he
right to a preliminary hearing is in itself a statutory, not a constitutional, right.”
State v. Holiday, 335 N.W.2d 332, 335 (S.D. 1983); see also Gerstein v. Pugh,
420
U.S. 103, 123,
95 S. Ct. 854, 868,
43 L. Ed. 2d 54 (1975) (“Although . . . the
Constitution does not require an adversary determination of probable cause, we
recognize that state systems of criminal procedure vary widely. . . . [T]he nature of
the probable cause determination usually will be shaped to accord with a State’s
pretrial procedure viewed as a whole.”). It is for the Legislature to enact the
pretrial procedures our courts must follow to determine probable cause. As we
reverse and remand on the grounds of a violation of SDCL 23A-4-3, we decline to
reach the merits of Rus’s constitutional claims.
Conclusion
[¶22.] The plain language of SDCL 23A-4-3 entitles a defendant to a
preliminary hearing if he or she is charged by complaint or information with an
offense “punishable as a felony.” The State charged Rus with a third-offense DUI.
Under the plain language of SDCL 32-23-4, a third-offense DUI is a “Class 6
felony[.]” Rus, therefore, is entitled to a preliminary hearing. We reverse and
remand for proceedings consistent with this decision.
[¶23.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,
Justices, concur.
[¶24.] MYREN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
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