State v. Underwood
2017 SD 3
| S.D. | 2017Background
- Underwood pleaded guilty to possession of a controlled substance (Class 5 felony) after being stopped for speeding and officers found suspected marijuana and a baggy he admitted owning.
- He had two prior felony convictions (accessory to a felony and grand theft), multiple parole violations, and a five-page criminal history including bench warrants for failure to appear.
- A pending felony-distribution charge was dismissed; the presentence report indicated involvement in distribution and a pattern of noncompliance with court orders and supervised release.
- The circuit court departed from the presumptive sentence of probation under SDCL 22-6-11 and sentenced Underwood to four years imprisonment, citing ten aggravating circumstances related to his criminal history and noncompliance.
- Underwood appealed, arguing that SDCL 22-6-11’s term “aggravating circumstances” requires showing either risk of violence or career criminality, and that the court’s listed factors did not meet that standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “aggravating” in SDCL 22-6-11 requires proof of violence or career criminality | Underwood: aggravating must show violence or career criminality | State: broader factors may qualify if they pose significant public risk | Court: No—aggravating need not be limited to violence or career criminality; other factors showing significant public risk suffice |
| Whether the ten factors cited justified departure from presumptive probation | Underwood: many cited factors (e.g., unpaid fines) don’t pose significant public risk or justify incarceration | State/Circuit Ct.: history of felonies, parole violations, ongoing drug involvement, and contempt for supervision create significant public risk | Court: Affirmed; criminal history, parole violations, drug involvement, and noncompliance justified departure |
| Standard of review for statutory interpretation vs. sentencing decision | Underwood: asks legal review of statutory meaning; also argues abuse of discretion | State: statute interpretation is legal question; sentencing discretion remains | Court (majority): interprets statute de novo for meaning of “aggravating” and applies that to facts; concurrence stresses abuse-of-discretion for sentencing decisions |
| Whether specific cited items (e.g., failure to pay fines) independently require imprisonment | Underwood: such items do not justify departure | State: some items irrelevant, but overall record supports departure | Court: Some items (failure to pay) are not aggravating, but cumulative relevant factors justify departure |
Key Cases Cited
- State v. Whitfield, 862 N.W.2d 133 (S.D. 2016) (affirming departure where nonviolent factors and supervision difficulties supported finding of public risk under SDCL 22-6-11)
- Good Lance v. Black Hills Dialysis, LLC, 871 N.W.2d 639 (S.D. 2015) (issues of statutory construction reviewed de novo)
- Thurman v. CUNA Mut. Ins. Soc’y, 836 N.W.2d 611 (S.D. 2013) (definition and standard for abuse of discretion)
- State v. McKinney, 699 N.W.2d 471 (S.D. 2005) (sentences within statutory maximum reviewed for abuse of discretion)
- State v. Beckwith, 871 N.W.2d 57 (S.D. 2015) (applying abuse-of-discretion review to departures from presumptive probation)
- State v. Garber, 674 N.W.2d 320 (S.D. 2004) (deference to trial courts in sentencing decisions)