Application of Grosh

litigation reprimand, or cause of a and that he for all of the action.6 costs of this action under SDCL 16-19-70. It will so ordered. there a violation Canon 1?

Was HENDERSON, JJ., MORGAN and allegation third involves the al The KONENKAMP, Judge, report Community Circuit leged filing of a false 31, concur. condition as of March 1983. We Bank’s proof that Board’s agree with the referee WUEST, Justice, Chief concurs re allegation.

fails in this evidence specially. transactions, garding daily reveals that closing p.m., Community Bank's KONENKAMP, Judge, sitting Circuit despite the bank remained the fact SABERS, J., disqualified. (For open for time. business WUEST, (concurring spe- Chief Justice deposit p.m. if a made after 2 example, cially). deposit given day, would not a majority opinion concur with the but day.) show until the next business believe Dana should be for at Minneapolis Marquette Bank in noti years practice least three from the of law p.m. Community fied Bank 3:45 my opinion, South Dakota. he de- $2,800,- 31,1983, had March that it received public reprimand. serves more than a funds. the cer 000 of brokered When deposit for that tificates of were made time,

$2,800,000 they at a later were dated 1983, 31, being to March the date of

back by a

confirmation. When asked bank offi $2,800,000

cer as to whether bro reported

kered funds should be first not,

quarter or Dana chose to exclude agrees them. This court with the referee Application In the Matter of the that Dana did not cause to file a false Stephen G. GROSH for a Writ of report of the bank’s condition as of March Corpus. Habeas pointed 1983. As out Dana’s coun sel, $2,800,000 report being re No. 15606. may

ceived on March 31 well have been Supreme Court of South Dakota. Thus, filing report. of a false no violation l.7 Canon Argued April 1987. Having Supplemental Sept. concluded that Dana has vi Briefs Filed recognizing olated Canon our re Decided Nov. sponsibility general public, to the Bar, Bench and the we determine that dis

missal as recommended the referee is

inappropriate. circumstances, Under some however, appropriate,

disbarment would be

everything here, including considered age, reputation status,

Dana’s and current public

we hold that he subject to a However, arguably possible causing deprivation we feel that there violation without process rights. (appearance have been a violation of Canon 9 of his due impropriety) (engaged DR 1-102 in con- and/or fraud, involving dishonesty, duct plea pursuant deceit or mis- 7. Dana entered nolo contendere Mertz). representation regarding plea bargain charge Since Board on a misdemeanor specific having did not cite these canons as been concealment of bank transactions as he was potential felony charges violated and Dana has not had an faced with and a one- respond, discipline we cannot Dana for the month trial. McCullen,

Terry Bangs, L. Hofer of But- ler, Simmons, Foye, Rapid City, for applicant. Kern, Gen., Pierre, Atty. Asst.

Janine State; respondent Roger Tellinghuisen, A. Gen., Atty. on brief.

ORIGINAL PROCEEDING SABERS, Justice. application

This is an for a writ of habeas Supreme to the South Dakota Court pursuant general ch. to SDCL 21-27. The background of this case is set forth Grosh, (S.D.1986). 387 N.W.2d 503 State v. specific findings of fact and the ref- are eree’s recommendations this matter in file # 15606.

FACTS referee, by the the facts show As found (Grosh) Stephen R. sen years in the Dakota tenced to five South Penitentiary on December to this court. appealed his sentence affirmed his May this court On 29, 1986, May filed a On conviction. (court) to reduce his in circuit court motion provisions pursuant on A was held 23A-31-1.* The court modified 11 and June pro nunc this sentence on June 11, 1986, as follows: to June tunc probation Applicant 1. That (3) years three period for a date; (1) Defendant serve 2. That county jail and shall be year in the that time permitted to serve Jail, Bridgeport, Mor- Morrill re- County, with work rill rules with lease authorized consistent facility; of that obey all laws and 3. That the Defendant behavior; good on his remain * judgment or dismissal part: affirmance of provides SDCL 23A-31-1 appeal; or of the a sentence- ... reduce ... A (3)Within twenty days after one hundred (1) year after the sentence Within one Su- entry order or imposed; of, having the denying preme review judgment days twenty Within one hundred conviction; upholding, effect of receipt by of a remittitur issued is later.... whichever fully cooperate County Jail, the Defendant Sheriff Sterkel of the Morrill Department Bridgeport, the Court Services Nebraska requests recom- reasonable all 1986,the indicated In June to Sher- mendations; by telephone pret- iff that it wanted Sterkel judgment a entered That there be

5. Grosh, ty guidelines strict on that it did not $10,000.00 as restitution sum home, running him want back and that it costs, judgment investigative said for the sentence to wanted be uncomfortable. Drug of the State in favor to be serving jail commenced his time on Grosh Unit, Division of Crimi- Enforcement work release under such terms and condi- Pierre, Investigation, South Da- nal policies tions that were consistent with the kota; Jail, County of the Morrill which included pay the restitu- the Defendant 6. That spending p.m. p.m. daily from 1:00 to 5:00 up to be set upon a schedule tion County spent in the Morrill Grosh Jail. his Court Services Officer remaining day working hours of the either Court; by the approved store, restaurant, at the convenience or Restaurant, sleeping. the motel at Bell’s or per- Defendant submit his That the 7. telephone were received No calls Sheriff blood, his urine or test of son to a July, August, September, Sterkel in Octo- bodily specimens any at other or November of 1986 from either the by any ber requested to do so that he is or court ser- court or the court service officer. No- enforcement office law vember, that he refrain from Sheriff Sterkel indicated to Grosh vices officer and consumption any il- that it the sheriff if the use would accommodate [or] substance; drugs or did not come in for Grosh for days in three November of 1986because he Defendant submit his 8. That the staffing problems deputies had and no son, vehicle and home to warrant- In December of Sheriff available. search to determine whether or less telephone received a call from the Sterkel complying with the above not he is indicating upset it was that court provisions; spending jail was less time than it Grosh perform 100 the Defendant had Sterkel indicated that wanted. Sheriff community per year hours of service spending jail. more time in Grosh would be during year period of the three ap- suspension upon addition, a schedule advised the court Officer; proved by his Court Services that it if service officer wanted know paying in this mat- Grosh was restitution ter. The court service officer wrote to him- That the Defendant surrender concerning plan paying County self to the Morrill Jail on or $10,000. ordered restitution of before 5:00 o’clockP.M. on the 23rd plan his restitution Grosh wrote back with June, 1986, day of to commence ser- only pay which indicated that he could $50 vice the sentence [and] required pay per month because he was given days previous- for 21 credit per day day spent for each that he $25 ly County in the Fall served River jail on work release from June Penitentiary on this Jail and State brought When the court service officer file. plan judge, he Grosh’s restitution to the Bridgeport, living Nebras- hearing indicated that a review ka at the time his sentence was modified arrearages evaluate the scheduled to Supervision of Grosh’s $10,000. restitutionary This amount of bation was not transferred the state hearing was scheduled for December but was retained the Seventh County in the Fall River Courthouse. Judicial Circuit court service officer judge At the indicated South Dakota. Grosh accepted program by he was concerned as for a work release court, iff, appear officer, and the court not to be effort service does [T]here pay being this time to on the not Grosh. made at ten thousand Dollars arrearages —the further The referee found that did by this to be ordered has been sufficient funds to off Defendant, as paid by the well review- paying per restitution $25 they circumstances as exist ing the day to Morrill for the work release this time. privilege, per which amounted to thir- $775 month; ty-one day hearing, apparent ap- that there was no

During the it became proval was not of the restitution that the work release schedule to the court officer, preconceived any ap- no- the court service some in accordance with mind, proval concerning in of the schedule the court had commu- tion of work release hours; nity corners of the service and that there was an within the four but was ownership by The court indi- interest Grosh in the modifying sentence. Bell’s order program property providing was Restaurant and he release that cated that the work establishing generate money can a clear sufficient off priority more of a than by mortgage property. obligation owed on the paying the amount of indicated that The court further Grosh. REFEREE’S CONCLUSIONS ownership interest in have an Grosh did not Restaurant, and that Grosh had the Bell The referee concluded that Grosh did not pri- to the court at the misrepresented this provision violate the work release because that there hearing. The court concluded he had no notice that the work release court order and felt an abuse of the was modifying provisions of the order sentence deny just approach would be to 23, by 1986 were to be evaluated June any further work release. and that the elimination of the provision was an increase in work release Grosh to have The court then ordered in 23A- Grosh’s sentence violation SDCL only per day effec- work release ten hours Ford, 31-1. v. 328 N.W.2d 263 State 5, through tive 1986 December December Garvin, 1982); also State v. 329 N.W. see 27, 1986, and that work release (N.D.1983). our SDCL 23A-31-1 is 2d 621 privileges completely terminated as of adoption of Federal Rule of Criminal Proce 27, 28, On December December dure 35. 1986, returned to the Fall River Grosh was jail serve his sentence full- Jail to concluded that the December The referee January time until when was 1986, 5, was not a correction of sentence by Supreme granted bail Court. illegal 23A- either an SDCL 23A- or a clerical matter under SDCL

31-1 REFEREE’S FINDINGS 31-2, in the defenses of and found no merit corpus. to the writ of habeas the returnees The referee found that the work release recom- referee made numerous other in plan designed Sheriff Sterkel was sentence, amending the toward mendations modifying compliance with order sen- substantially bene- all of which would 1986, and that there was tence fitted Grosh. nothing provided in the order which spend applicant had to all of his non- DECISION working jail; any special in con- hours above, reasons set forth ditions, For the or limitations as to work terms in findings of fact adopt the referee’s contained within the we release should be entirety. agree that the elimina order, their We general policy or the controls provision an release was sheriff; in No- tion of work days that the three sentence in violation increase Grosh’s of 1986 Grosh did not serve vember which may not A trial court 23A-31-1. jail by staffing problems caused were length to increase the Grosh; use SDCL 23A-31-1 jail and not and that within the Tibbetts, N.W.2d v. 333 informing of sentence. State responsibility (S.D.1983); Ford, It supra. belonged problem to the sher- of this staff court to revoke the work The historical “creative sentences” of the for the trial error on a notice based misunder- Judicial release Seventh Circuit continue to foster without the work appeals great release standing consump- of the terms to this and a by the sheriff. This judicial duties as administered Highest resources of the when these misunderstand- especially so is Court in this State. caused court’s ings were I am convinced that the writ of habeas specify the terms failure to granted To this case. Therefore, writing. revoking release in me, important anything more than else impermissible release was of the work (1) did violate his work To do of sentence. this with- augmentation (2) proce- release and was entitled basic also a violation of due out notice was i.e., process, opportu- dural due notice and Schoen, v. Djonne rel. ex cess. State heard, nity apprising to be Mr. Grosh that (Due 217 N.W.2d 508 Minn. subject his to revocation. and a requires notice process Brewer, Morrissey v. 408 U.S. 92 S.Ct. of work re- before revocation be afforded (1972). 33 L.Ed.2d 484 McManus, lease); ex rel. Kaus v. his entitled to freedom and (1976). 487, 238 N.W.2d 597 Minn. $2,500 bond, posted, cash bail herein be remand to the trial court Accordingly, we returned to the Clerk of this of sentence as it this for reinstatement my opinion, In the Court. referee served re- December all existed on findings this Court well and often of fact appropriate credits for time spects, with mixed; and conclusions law are how- served, any, paid, if and such restitution ever, presented product to this inconsistent with other modifications not extremely helpful. Court is I do addition, the court opinion. this In trial opinion ceive the of Justice Sabers as sec- writing, more may specify, in detailed advance, the ond-guessing, judgment of release, restitution, and terms Judge fulfilling Tice as about the he sets long so provisions of the sentence as other of this We inter- Court. are not specifications such are not inconsistent the fering supervision probation, and the spirit with the letter modifica- probation, sug- monitoring we as nor are 23, 1986, and dated June gested by special writings, by one of the this decision. addressing requested relief under the Ha- Indeed, it Corpus Act. is true that beas MORGAN, J., concurs. improperly incarcerated because J., HENDERSON, in result. concurs procedures improper and he below J., MILLER, part and concurs Surely, remedy. majority to a entitled the part. dissents in opinion explicitly has not Justice Sabers Judge set the future forth details Tice’s WUEST, C.J., dissents. judgment herein. HENDERSON, in re- (concurring Justice sult). MILLER, (concurring part and Justice Oban, In N.W.2d 125 State v. dissenting part). 1985), attempted distinguish author this majority probation, sen- I concur with that concepts of tences, discussing opinion holding improp- the trial the con- parole. How- statutory provisions pertain- erly revoked Grosh’s work release. stitutional and ever, majority I result ing thereto, opinion, dissent from the ultimate in a four-one recognized fully which reinstates modified sen- specifically SDCL which, impliedly, prohib- of the three instances tence and at least as one 23A-27-19 jurisdiction examining its trial where courts maintain circuit ascertain, in sentencing appropri- context. conduct control Oban, 129; proceeding, SDCL 23A- ate whether work N.W.2d §§ -19; 27-18.1, -18.2, be revoked for such conduct. SDCL 23A-31-1. should disagree opportunity I a recess to afford defendant an Initially, I should state that (the proposals took interchangeable use of to make some no majority’s with the (of position). approxi- After recess and “reduction.” “modification” words hour) However, mately upon hearing synonymous. are not The terms the “modifica- various comments defendant and his the facts of this counsel, Judge again Tice “reduction.” There are other indicated that he tion” was a necessarily disappointed that Grosh had would not abused cases where that and, of work release since true. comply, only ap- Grosh had failed to majority that agree with the further proach towas revoke work release. No authority enter its the trial court had the testimony presented. or other evidence was Modifying Sentence on Order be- colloquy awas proceeding entire Irrespective styled, it is of how tween the Grosh and counsel. The court had to either sus- trial hearing” procedures totally of the “review 23A-27-18, pend under SDCL the sentence ignored process safeguards. due As a re- (which concedes) or to reduce the State sult, revocation of work release was im- (which the State it under 23A-27-20, 20.1; proper. SDCL McCor event, concedes). result In either also Olson, mick, supra; Ellefson, supra; su prayed for and or- is a “modification” pra. dered. Although findings of the referee view, majority tend my Grosh and the generally accurate as to most of the to) (or give slight shrift to overlook surrounding the merits of whether facts Judge Tice error made which true revoked, I work release should have been dilemma, namely that he mod- caused this (note accept cannot them toto that sever- probation and conditions of ified the terms are, reality, findings al of the conclu- good and cause without notice without XXVI, XXXIV, XXXV, (e.g. of law sions required by SDCL 23A-27-20.1. shown as XLI, XLIV, XLV, XLVI, XXXVII, and Further, arguably he accused of could XLVIII)). Remember also that these were (or revoking probation important term (through Judge Tice his own facts which probation) following appro- the without fault) opportunity had no to hear. priate process safeguards of SDCL due view, have an my trial courts should interpreted by this court McCormick, supervise pro- and 121 to monitor v. 385 N.W.2d State us, interference from 1986); Ellefson, N.W.2d 56 bation without v. 334 State corpus Olson, acting as a habeas (S.D.1983); N.W.2d 852 whether we are v. State proce- assuming proper (S.D.1981). appellate precedent are followed. dures following appropriate proce- than Rather my reading of the habeas From dures, Tice, sponte Judge sua conducted 21-27), (SDCL chapter ch. conclude (a proceeding foreign to hearing,” “review the is to determine whether our role here author.) Apparently, and this our statutes be- improperly incarcerated defendant is directed, attorney and his were via procedures followed improper were cause officer, appear the court services to before 21-27-16(2) (3)). (SDCL function Our probationary situ- Judge Tice to review the to re-sen- modify a sentence or is not to the they appeared before ation. When tence a defendant. judge, initially he reviewed with them Therefore, agree the or- condition, although I coupled with financial revoking the by Judge Tice entered Judge Tice then indi- der restitution issues. nullity that the June is a perturbed over recent work release cated that he was 23, 1986, reinstated as it indicating work re- order developments that his 5, 1986, I followed, would existed to December had not been lease intentions conducting an (to Judge Tice from Judge prohibit priority was a issue work release appropri- hearing, following the Tice), Tice) (Judge was consid- additional and since whether steps, to determine suggested procedural ate ering revoking work release he pose suspending period sentence for a previ- had been release conditions year date the ously violated. from effective conviction, notwithstanding judgment of (dissenting). WUEST, Chief Justice appeal the fact that the time from an from period such is limited to a shorter five defendant to sentenced time. Penitentia- Dakota State years in the South 5, 1984. On June ry on December year passed Since more than a following order which he entered judgment, the trial effective date of the following: things, vided, among other suspend no to execu- court had IT HEREBY ORDERED IS Huftile, v. sentence. State previously im- penitentiary Means, v. (S.D.1985); N.W.2d 193 be, (5) years, posed by this Court five (S.D.1978). Nor did the 268 N.W.2d hereby and the same is any authority imprison trial court have to conditions. terms and following county jail year. for one the defendant probation Defendant be 1. That the provi- He was limited to six months (3) years from this period of three The entire sions of SDCL 23A-27-18.1. date; by Judge entered Tice on June order serve one Defendant he did not is null and void because county jail and shall be year in the jurisdiction to enter the order sus- in the Morrill to serve that mitted pending execution of sentence. The sheriff County, Jail, Bridgeport, Morrill holding a void or- the defendant under release authorized with work der, defendant should be returned and the rules of that facili- consistent with complete the penitentiary balance ty!!.] credit for the time of his sentence with majority Contrary the assertion of which should under the void order served suspended- opinion, it is obvious by Judge Tice. computed pur- five-year sentence the execution than re- rather to SDCL 23A-27-18 suant provisions

duce the sentence There is a substantial 23A-31-1. jurisdiction to reduce He had

difference. suspend execution.

the sentence but provisions of SDCL

Under the pur- for the

the Court retains

Case Details

Case Name: Application of Grosh

Court Name: South Dakota Supreme Court

Date Published: Nov 25, 1987

Citation: 415 N.W.2d 824

Docket Number: 15606

Court Abbreviation: S.D.