#30308-a-SRJ
2024 S.D. 21
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TRISTEN S. SIMONSEN, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
…
THE HONORABLE DAWN M. ELSHERE
Judge
…
MANUEL J. DE CASTRO, JR.
Sioux Falls, South Dakota Attorney for defendant and
appellant.
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
…
CONSIDERED ON BRIEFS
JANUARY 8, 2024
OPINION FILED 04/10/24
#30308
JENSEN, Chief Justice
[¶1.] Tristen Simonsen pleaded guilty to two counts of solicitation of a
minor, one count of sexual contact with a minor under the age of sixteen, and one
count of rape in the fourth degree. At the sentencing hearing, the parties did not
raise, and the court did not address whether it intended to treat each charge as a
separate transaction. After sentencing, the court signed four separate judgments of
conviction and ordered each conviction to be served consecutively. The same day as
the sentencing hearing, the court held another hearing, with only counsel present,
to clarify whether it intended to treat each charge as a separate transaction. The
circuit court determined that each charge was the result of a separate transaction.
Simonsen appeals the court’s decision, alleging that it improperly enhanced his
sentence after it had already commenced. We affirm.
Factual and Procedural Background
[¶2.] On June 16, 2021, a Brookings County grand jury indicted Simonsen
for the following offenses: (1) rape in the first degree in violation of SDCL 22-22-
1(1); (2) rape in the second degree in violation of SDCL 22-22-1(2); (3) rape in the
second degree in violation SDCL 22-22-1(2); (4) solicitation of a minor in violation of
SDCL 22-24A-5(1); and (5) solicitation of a minor in violation of SDCL 22-24A-5(1).
Counts 1 and 5 related to acts committed against a minor child, A.Y.; Counts 3 and
4 related to acts committed against a minor child, S.A.; and Count 2 related to acts
committed against a third child. The acts were alleged to have occurred at different
times between May 2020 and January 2021.
-1-
#30308
[¶3.] The State later filed an information on October 4, 2022, charging
Simonsen with: (1) sexual contact with a child under the age of sixteen in violation
of SDCL 22-22-7; and (2) rape in the fourth degree in violation of SDCL 22-22-1(5).
A.Y. was alleged to be the victim in Count 1, while S.A. was alleged to be the victim
in Count 2.
[¶4.] On the same day the State filed the information, Simonsen signed an
advisement of rights and authorization to plead guilty. Later that day, the circuit
court held a change of plea hearing where Simonsen pleaded guilty to two of the
counts in the indictment: Count 4 (solicitation of S.A.) and Count 5 (solicitation of
A.Y.). Simonsen also pleaded guilty to Counts 1 and 2 of the information. In
exchange for Simonsen’s guilty plea, the State dismissed the remaining three
charges in the indictment.
[¶5.] During the change of plea hearing, the State set forth a factual basis
for the charges against Simonsen. The State indicated that “[o]n or about the 31st
of January 2021, [Simonsen] did engage in sexual contact with A.Y., such sexual
contact being that of the touching of the genitalia of [Simonsen] with the intent to
arouse or gratify the sexual desire of either party at a time when it was prohibited
based upon A.Y.’s age.” It further stated that “on or about January 31st of 2021 and
March 31st of 2021, [Simonsen] through electronic means did solicitate A.Y. to
encourage her to engage in a prohibited sexual act, that being . . . oral sex at a time
that it would have been prohibited based upon the age of the parties[.]”
[¶6.] In relation to the acts committed against S.A., the State advised that
“on or about October 1st of 2020, [Simonsen] did have sexual intercourse with S.A.
-2-
#30308
at a time when S.A. was 13 years of age or more, but less than 16 years of age, at a
time that [Simonsen] was 18 and more than 3 years older than S.A.” In relation to
the second solicitation charge, it stated “[Simonsen] did also solicit S.A. on or
between October 1st of 2020 and January 1st of 2021 to engage in a prohibited
sexual act, that being sexual intercourse, at a time when it would have been illegal
based upon the ages of [Simonsen] and S.A.” Simonsen admitted to the factual
basis. The court accepted Simonsen’s guilty pleas and set sentencing for a later
date.
[¶7.] At sentencing, the State requested each charge to run consecutively
and argued that “it’s important that [the solicitation charge] have its own sentence
as well and be recognized as a separate, a different incident.” In addition, the State
also argued that the second solicitation charge “happened after Count 1 of the
information and so that would be a different incident.” In reaching its sentencing
decision, the court stated:
On the sexual contact with a child under the age of 16, it will be
a judgment of the Court that the defendant be imprisoned in the
state penitentiary for a term of 15 years. I’m going to suspend 5
years of that sentence on terms and conditions that I’ll set forth
after I give all of the sentences.
On the rape in the fourth degree count, I’m going to sentence the
defendant to the penitentiary for a term of 15 years and I’m
going to suspend 5 years of that sentence on conditions.
As to the solicitation of a minor in Count 4, I’m going to sentence
the defendant to 5 years in the state penitentiary and suspend 3
of those years.
And then finally as to Count 5, I’m going to sentence the
defendant to 5 years in the state penitentiary and suspend 3 of
those years. All of those sentences will run consecutive to each
other.
-3-
#30308
After the sentencing hearing, the court signed and entered four separate judgments
of conviction that were consistent with its oral sentencing decision.
[¶8.] A few hours after sentencing, counsel requested an additional hearing
to discuss the court’s earlier sentencing decision. Both attorneys appeared, but
Simonsen was not present because he was being transported by law enforcement to
the South Dakota State Penitentiary. At the outset of the hearing, the court stated,
there was a request by [Simonsen’s counsel] regarding the
separate judgments of conviction that were prepared earlier and
signed by the court and so we scheduled this hearing to make
our positions known on the record and the court can make a
decision about it because the court did not address this in any
way, shape or form during the previous sentencing.
[¶9.] After hearing arguments from both parties, the court stated that the
decision to treat the charges as separate transactions “was not addressed earlier on
the record, but it was the court’s intent to treat these as separate transactions for
purposes of [SDCL 23A-27-4].”∗ The court reasoned that “these [incidents] took
place with different victims at different times . . . making it two different and
actually four different transactions. So for that reason, I will treat them all as
separate transactions under the statute and it was correct for the court to grant and
sign four separate judgments of conviction[].”
∗ SDCL 23A-27-4 provides in relevant part that “[i]n the case of multiple
convictions arising from different transactions, a separate judgment of
conviction shall be entered for each conviction.”
-4-
#30308
[¶10.] Simonsen appeals raising a single issue:
1. Whether the circuit court improperly enhanced
Simonsen’s sentence, after it had commenced, by
concluding that each conviction would be treated as a
separate transaction.
Standard of Review
[¶11.] Simonsen’s appeal asserts that the circuit court illegally imposed his
sentence because it was enhanced after he left the authority of the judicial branch.
State v. Sieler, 1996 S.D. 114, ¶ 6,
554 N.W.2d 477, 479. When a defendant asserts
that their sentence was illegally imposed, this Court is presented with a question of
law which we review de novo. State v. Cook,
2015 S.D. 46, ¶ 6,
865 N.W.2d 878, 880
(citing State v. Berget,
2014 S.D. 61, ¶ 48,
853 N.W.2d 45, 65).
Analysis
[¶12.] ‘“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.” Sieler, 1996
S.D. 114, ¶ 6,
554 N.W.2d at 479 (citation omitted). It is this Court’s “well-
established rule that ‘[a]s against an unwilling defendant, a valid sentence cannot
be increased in severity after [the defendant] has commenced serving thereof.’”
State v. Ross,
2018 S.D. 59, ¶ 11,
916 N.W.2d 141, 145 (alterations in original)
(quoting State v. Marshek,
2009 S.D. 32, ¶ 10,
765 N.W.2d 743, 746). A “sentence
commences as soon as the prisoner suffers some confinement in the custody of a
sheriff.” State v. Ford,
328 N.W.2d, 263, 267 (S.D. 1982). Thus, there is a general
prohibition against a written sentence increasing the severity of an earlier
-5-
#30308
pronounced oral sentence. State v. Puthoff, 1997 S.D. 83, ¶ 4,
566 N.W.2d 439, 441
(citation omitted).
[¶13.] Simonsen argues that the circuit court improperly enhanced his
sentence after he already began serving his sentence, when it held a motions
hearing on March 29 and confirmed that each of his convictions were treated as
separate transactions. He argues that the court’s declaration enhanced his
sentence by delaying his future eligibility for parole because the court did not state
its intent to treat each charge as a separate transaction until after he began serving
his sentence. The State responds by citing State v. Sieler and argues that the
motions hearing did not enhance or change Simonsen’s sentence because any
change only affected his parole eligibility date.
[¶14.] There is no dispute that Simonsen was serving his sentence at the time
the motions hearing was held. Thus, we must determine whether the circuit court’s
post-sentencing proclamation to treat each charge as a separate transaction was an
illegal enhancement of Simonsen’s sentence.
[¶15.] “[P]arole eligibility is not part of a defendant’s sentence[.]” State v.
Semrad,
2011 S.D. 7, ¶ 8,
794 N.W.2d 760, 763 (citing Puthoff,
1997 S.D. 83, ¶ 6,
566 N.W.2d at 442). Relying on this premise, this Court has routinely held that
when a sentencing judgment is amended to only affect a defendant’s parole
eligibility, it does “not violate the prohibition against the written sentence
increasing the severity of the oral sentence.” Puthoff,
1997 S.D. 83, ¶ 7,
566 N.W.2d
at 442; see also Sieler,
1996 S.D. 114, ¶ 13,
554 N.W.2d at 481 (“[Defendant’s]
-6-
#30308
sentence was not increased by the words ‘separate transaction,’ only his parole
eligibility is affected by these words.”).
[¶16.] The written judgments did not amend or modify the court’s oral
sentencing decision and the court’s subsequent declaration to treat each conviction
as a separate transaction only affected Simonsen’s future eligibility for parole, if
anything at all. And this Court has routinely held that “judicial acts delaying
parole eligibility do not increase a defendant’s sentence.” Semrad, 2011 S.D. 7, ¶ 8,
794 N.W.2d at 763–64 (citing Puthoff,
1997 S.D. 83, ¶ 7, 556 N.W.2d at 442).
Therefore, Simonsen’s sentence was not enhanced when the court expressed its
intent for each conviction to be treated as a separate transaction.
[¶17.] Nonetheless, Simonsen suggests that the circuit court was required to
indicate its intent to treat each conviction as a separate transaction at sentencing.
However, neither party asked the court to determine whether the convictions were
separate transactions nor did the parties ask the court to otherwise address parole
eligibility at sentencing. Further, while a circuit court may address these things at
sentencing, SDCL 23A-27-4 does not require the court to do so. SDCL 23A-27-4
only requires that “[i]n the case of multiple convictions arising from different
transactions, a separate judgment of conviction shall be entered for each
conviction,” and each judgment of conviction “shall be signed by the judge and filed
with the clerk.” Given the absence of any dispute on this record that each
conviction arose from separate transactions, Simonsen has failed to demonstrate
any error by the court in its oral sentence, or in signing four separate judgments of
conviction.
-7-
#30308
[¶18.] Finally, Simonsen argues that the post-sentence hearing was held in
violation of his constitutional rights. He asserts that “[o]ne of the most basic rights
guaranteed by the Confrontation Clause is the accused’s right to be present in the
courtroom at every stage of his trial.” See also Illinois v. Allen, 397 U.S. 337, 338,
90 S. Ct. 1057, 1058,
25 L. Ed. 2d 353 (1970). Based upon his assertion that the
subsequent hearing enhanced his sentence, he argues that he had a constitutional
right to be present at the hearing, and his absence was in violation of his
confrontation rights.
[¶19.] However, the circuit court’s post-sentencing hearing was not an aspect
of Simonsen’s trial. Nor was it an aspect of his sentencing. As previously discussed,
the only potential impact the hearing had on Simonsen was his future eligibility for
parole. “The United States Supreme Court has specifically held that a convicted
person has no constitutional right to parole.” Sieler,
1996 S.D. 114, ¶ 13,
554
N.W.2d at 481 (citing Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1, 7,
99 S. Ct.
2100, 2104,
60 L. Ed. 2d 668, 675 (1979)). Furthermore, SDCL 24-15-1.1 recognizes
that granting parole is a discretionary decision. Therefore, “[n]either [SDCL 24-15-
1.1] or its application may be the basis for establishing a constitutionally protected
liberty, property or due process interest in any prisoner.”
Id. Given that the
hearing only impacted Simonsen’s parole eligibility, the Confrontation Clause
cannot be used as a basis for challenging the validity of the circuit court’s
determination.
[¶20.] Simonsen was present when the court imposed his sentence. The scope
of a defendant’s Sixth Amendment right “requires the defendant ‘to be present in
-8-
#30308
his own person whenever his presence has a relation, reasonably substantial, to the
fulness [sic] of his opportunity to defend against the charge.’” Berget, 2014 S.D. 61,
¶ 52,
853 N.W.2d at 67 (alteration in original) (quoting Kost v. State,
344 N.W.2d
83, 84 (S.D. 1984)). When a defendant’s presence at a post-sentencing hearing
would be “useless, or the benefit but a shadow[,]” the court commits a harmless
error when it makes a decision outside of the defendant’s presence.
Id. ¶¶ 52–54;
see also State v. Wilson,
2020 S.D. 41, ¶ 42,
947 N.W.2d 131, 142 (holding that
defendant failed to demonstrate prejudice by his absence at a post sentencing
hearing with counsel to modify his sentence). Simonsen was present for his
sentencing. Thus, Simonsen’s presence at the hearing was unnecessary, and his
Sixth Amendment rights were not violated.
[¶21.] Lastly, Simonsen requests this Court to overrule its earlier decision in
Sieler which determined that a defendant’s sentence was not enhanced when the
only thing affected was parole eligibility.
1996 S.D. 114, ¶ 13,
554 N.W.2d at 481.
Simonsen does not provide any analysis for why Sieler was wrongly decided and
instead cites legally and factually dissimilar cases from other jurisdictions that pre-
date our decision in Sieler. Sieler relied upon well-established authority from the
United States Supreme Court. See Greenholtz,
442 U.S. at 7,
99 S. Ct. at 2104
(“There is no constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid sentence. The natural desire
of an individual to be released is indistinguishable from the initial resistance to
being confined.”). Therefore, we decline to accept Simonsen’s request to revisit
these holdings.
-9-
#30308
[¶22.] Affirmed.
[¶23.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
-10-
