Case Information
*1 #25876-rev & rem-GAS
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v. RICHARD LITSCHEWSKI, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT WALWORTH COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE JACK R. VON WALD
Judge
* * * *
MARTY J. JACKLEY
Attorney General
CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
DAVID M. HOSMER
Yankton, South Dakota Attorney for defendant
and appellant. * * * *
CONSIDERED ON BRIEFS ON AUGUST 22, 2011 OPINION FILED 12/21/11 *2 SEVERSON, Justice
[¶1.] Riсhard Litschewski appeals the circuit court’s denial of his motion to vacate or modify an illegal sentence. He argues that his sentence was illegal because the circuit court imposed consecutive sentences in an order that was inconsistent with the chronological order in which his crimes occurred. We reverse the circuit court’s denial of Litschewski’s motion to modify an illegal sentence and remand for further proceedings.
Facts and Procedural Background In 1997, a jury convicted Litschewski of three separate offenses. On
Count II, he was convicted of third-degree rape, based on an incident that occurred in 1989. On Count I, he was convicted of first-degree rape, based on an incident that occurred in 1991. And on Count III, he was convicted of sexual contact with a child, based on events that occurred in 1996. The circuit court imposed a 7 1/2-year sentence for Count I, a 12 1/2-year sentence for Count II, and a 7 1/2-year sentence for Count III. The sentence for Count II was to run consecutive to the sentence for Count I. The sentence for Count III was to run consecutive to Counts I and II. Litschewski appealed to this Court, which affirmed his conviction. In June 2010, he filed a motion to vacate or modify an illegal sentence, arguing that the circuit court lacked the authority to order his sentence for Count II to run consecutive to Count I because Count II occurred first in time. The circuit court denied the motion. Litschewski appeals.
Analysis and Decision
Timeliness of Appeal
[¶3.] The circuit court’s denial of Litschewski’s motion to vacate or modify an illegal sentence was entitled a “Judgment” and was filed on September 28, 2010. Litschewski did not file his notice of appeal until January 13, 2011. Thus, the State argues that Litschewski has failed to comply with the thirty-day notice of appeal requirement found in SDCL 23A-32-15. The statute provides in part:
[A]ny appeal other than from a judgment must be taken within thirty days after written notice of the filing of the order shall hаve been given to the party appealing. An appeal from the judgment must be taken within thirty days after the judgment is signed, attested, and filed.
SDCL 23A-32-15.
[¶4.] Litschewski agrees that SDCL 23A-32-15 provides the statutory authority for this Court’s exercise of jurisdiction, but argues that the circuit court’s entitlement of its decision аs a “Judgment” was erroneous. Litschewski argues that, under South Dakota law, the circuit court’s decision was actually an order. Therefore, the thirty-day time limit set forth under SDCL 23A-32-15 did not begin to run until Litschewski received written notice of the filing of the order. Because he did not receive written nоtice until January 5, 2011, Litschewski argues his appeal is timely. 1 Whether the circuit court’s decision was properly entitled a
“Judgment” is a question of statutory interpretation this Court reviews de novo. 1. The State concedes that if the circuit court’s decision is deemed an order, then Litschewski’s appeal is timely and this Court has jurisdiction.
State v. Goulding,
as “[a] court’s final determination of the rights and obligations of the parties in a
case.” An “order,” on the оther hand, is defined as a “written direction or command
delivered by a court or judge.” Id. at 1206. Here, the circuit court’s denial of
Litschewski’s motion to vacate or modify an illegal sentence was not a judgment
because it did not constitute a “final determination of the rights and obligations of
the parties . . . .” 2 The circuit court’s decision denying Litschewski’s motion was an
2.
In State v. Iverson,
Any appeal other than from a judgment must be taken within sixty days after written noticе of the filing of the order shall have been given to the party appealing. An appeal from the judgment must be taken within sixty days after the judgment is signed, attested and filed.
(continued . . .) *5 order. Litschewski had thirty days from the date he received notice of the filing of the order to file his notice of appeal. Therefore, Litschewski’s appeal is timely. Illegal Sentence
[¶7.]
Litschewski argues his sentence was illegal under the version of SDCL
22-6-6.1 that was in effect at the time he was sentenced. Specifically, Litschewski
argues the circuit court lacked the authority to order that his sentence for Count II
was to run consecutive to Count I because Count II occurred first in time. Whether
Litschewski’s sentence was illegal is a question of statutory interpretation we
review de novo. Goulding,
statute that was in effect when Litschewski was sentenced in 1997. It read as follows:
If a defendant has been convicted of two or more offenses regardless of when the offenses were committed or when the judgment or sentence was entered, the judgment or sentence may be that the imprisonmеnt on the subsequent conviction may run concurrently with the imprisonment on any prior conviction or the imprisonment for the subsequent offense may commence at the expiration of the imprisonment upon any other offense. 3
_________________________
(. . . continued)
SDCL 23-51-6 (repealed 1978). In Iverson, we held that the circuit court’s resentencing of the defendant, and not its initial sentencing, constituted the “final judgment” which started the clock running on the notice of appeal. 269 N.W.2d at 393. We interpreted the term “judgment” to mean “final judgment of conviction.” Id.
3. In 2001, the Legislature amended the statute to read:
(continued . . .) *6 SDCL 22-6-6.1 (1997) (emphasis added). We interpreted this version of SDCL 22-6-6.1 in State v. Arguello, 1996
S.D. 57,
(. . . continued)
If a defendant has been convicted of two or more offenses, regardless of when the offenses were committed or when the judgment or sentencе was entered, the judgment or sentence may be that the imprisonment on any of the offenses or convictions may run concurrently or consecutively at the discretion of the court.
2001 S.D. Sess. Laws ch. 111, § 1. The Legislature amended SDCL 22-6-6.1 again in 2005. The 2005 amended version of SDCL 22-6-6.1, which remains in effect today, provides as follows:
If a defendant is convicted of two or more offenses, regardless of when the offenses were committed or when the judgment or sentence is entered, the judgment or sentence may be that the imprisonment on any of the offenses or сonvictions may run concurrently or consecutively at the discretion of the court.
2005 S.D. Sess. Laws ch. 120 § 432. The 2001 and 2005 amended versions of SDCL 22-6-6.1 are not applicable in this case because they were not in effect when Litschewski was sentenced in 1997. We must decide this case by interpreting the language of SDCL 22-6-6.1 that was in effect at the time Litschewski was sentenced.
provides a specific instance when the trial court may impose a concurrent sentence and a specific instance when a consecutive sentence may be imposed.” Id. ¶ 11. We further explained that the first judge “had the authority to give Arguello a concurrent or a consecutive sentence because he was sentencing for a subsequent conviction and a subsequent offense.” Id. ¶ 13. However, the second judge “did not have the authority to givе a consecutive sentence since he was sentencing on a prior, not a subsequent, offense.” 4 Id.
[¶10.]
Just four months after Arguello, we decided State v. Sieler, 1996 S.D.
114,
4.
The State argues the first three cases decided after the 1983 amendment to
SDCL 22-6-6.1 recognized a broad grant of authority to circuit courts in
imposing consecutive sentences. See State v. Karp,
[¶11.] The State argues Sieler is incоnsistent with our holding in Arguello. We disagree. The circuit court in Sieler was not imposing a sentence for a prior offense. Rather, the circuit court imposed consecutive sentences for crimes that occurred during the same four-hour time period, but which the circuit cоurt deemed to be separate transactions. Sieler did not specifically address the issue of whether the 1983 amended version of SDCL 22-6-6.1 allowed the circuit court to impose a consecutive sentence for a prior offense. Thus, Sieler is distinguishable from Arguello.
[¶12.]
In State v. Meyers,
[¶13.]
The most recent case interpreting the 1983 amended version of SDCL
22-6-6.1 is State v. Perovich,
[¶15.] Litschewski’s conviction of first-degree rape in Count I was based on an incident that occurred in 1991. His conviction of third-degree rape in Count II was based on an incident that occurred in 1989. Count II was the offense that occurred first in time. Thus, under the version of SDCL 22-6-6.1 that was in effect when Litschewski was sentenced, the circuit court lacked the authority to order Litschewski’s sentence for Count II to run consecutive to Count I.
[¶16.] The circuit court’s denial of Litschewski’s motion to modify an illegal sentence is reversed. This case is remanded for further proceedings.
[¶17.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and WILBUR, Justices, concur.