State v. Semrad
2011 SD 7
| S.D. | 2011Background
- Semrad pleaded nolo contendere in 2007 to attempted sexual contact with a child under sixteen and was sentenced to six years in the penitentiary.
- The circuit court initially advised that Semrad could be paroled after serving 35% of the sentence due to a mistaken classification of the offense as nonviolent.
- DOC later informed Semrad that he would have to serve 60% of his sentence before parole; Semrad petitioned for habeas relief leading to a stipulated resentencing.
- In 2010, Semrad was resentenced to six years, with the court stating the same sentence but explaining that its parole estimate was not part of the sentence.
- At the resentencing, the court advised Semrad that he may be eligible for parole after 60% of the sentence, a correction to the prior estimate.
- Semrad contends the initial and corrected parole advisements increased his sentence; the court holds parole estimates are not part of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the 35% parole estimate bind as part of the sentence? | Semrad contends the oral sentence controlled parole after 35%. | State argues parole estimates are not part of the sentence and were advisory. | No; parole estimates are not part of the sentence. |
| Did the 60% parole estimate at resentencing increase the sentence? | Semrad asserts the 60% estimate improperly increased the sentence. | State argues the estimate is advisory and not controlling for the sentence. | No; the estimate did not increase the sentence. |
| Is SDCL 23A-27-48 applicable to new-system offenders after 1996? | Semrad relies on the statute requiring notices and initial estimates. | DOC and court are not bound by this statute for new-system offenders. | Not applicable; statute does not apply to Semrad. |
Key Cases Cited
- Roden v. Solem, 411 N.W.2d 421 (S.D. 1987) (parole is an executive function; sentence not increased by parole advisements)
- Puthoff, 566 N.W.2d 439 (S.D. 1997) (parole eligibility not increased by separate-transaction language)
- Sieler, 554 N.W.2d 477 (S.D. 1996) (parole eligibility affected, not sentence, by words 'separate transaction')
- Marshek, 765 N.W.2d 743 (S.D. 2009) (sentence cannot be increased by parole advisements after initial sentence)
- Munk, 453 N.W.2d 124 (S.D. 1990) (oral sentence controls; written judgment conforms to oral sentence)
- Cady, 422 N.W.2d 828 (S.D. 1988) (clarifies when written judgment clarifies ambiguity in sentence)
- Turner v. Weber, 635 N.W.2d 587 (S.D. 2001) (misinformation on parole date did not control; statute governs eligibility)