State v. Miller

2006 SD 54 Dakota,

STATE of South Plaintiff Appellee,

Myron MILLER, Defendant Appellant.

No. 23846.

Supreme Court South Dakota. April

Considered on Briefs on 2006.

Decided June 2006.

of sixteen under SDCL 22-22-7.2 The charges resulted from an incident between B.K, daughter girl- of his friend. B.K. eight years was or nine old at the time of the molestation. Miller’s theo- ry of defense that urged was L.K. B.K. to General, Long, Attorney Lawrence E. fabricate the sexual molestation in an ef- Lund, Jeremy Special Attorney Assistant fort prevail in the custody dispute be- General, Division, Legal Department of tween Miller and L.K. over couple’s Services, Pierre, Dakota, Social South At- child, C.M. torneys plaintiff for and appellee. 5, 2004, April [¶ On 3.] at his arraign- Murphy, Rapid City, John R. South Da- ment, Miller was advised that the possible kota, Attorney for defendant appel- and penalty maximum for degree first rape lant. 22-22-1(1) under SDCL prison, was life in GILBERTSON, Chief Justice. and the sexual contact charge under SDCL 22-22-7 had a maximum sentence (Miller) Myron Miller was years. However, fifteen he was not charged by indictment arraigned and on possible advised of the penalties degree rape three counts of first and three under SDCL 22-22-1.2. SDCL 22-22-1.2 alternative counts of sexual contact with a provides: age child under of sixteen. He was possible informed of the penalty maximum any If adult is convicted of any of the arraignment at the mandatory violations, but following the court shall im- minimum. Miller pleaded guilty pose the following minimum sentences: proceeded to trial. He was convicted on (1) For a violation of 22-22- subdivision two counts of sexual contact with a child 1(1), years ten for a first offense and age under the of sixteen and sentenced to twenty years for a subsequent of- years five in the state penitentiary. Miller fense; and appeals contending his constitutional (2) § For a violation of 22-22-7 if the rights by were violated the failure of the victim is less than years ten of age, circuit court to advise him of the statutory years five for a first offense and ten mandatory minimum sentence he faced. years subsequent for a offense. We affirm. The State filed a Part II Habitual Offend- er Information eventually that was dis- AND

FACTS PROCEDURE upon by missed motion Miller. Miller was charged [¶2.] with three (Count V) I, counts III and degree trial, first [¶ 4.] Prior to Counts V and VI rape 22-22-1,1 under SDCL and three al- by were dismissed the State. Trial on the (Counts VI) II, ternative counts IV and of matter was held jury before a on February sexual contact with a child age under the 22 through 2005. acquitted Miller was 22-22-1(1) 1. SDCL provides part: in relevant 2. provides SDCL 22-22-7 part: in relevant "Rape penetration is an act of sexual accom- "Any older, person, years age sixteen plished any person with any under of the knowingly engages who in sexual contact following (1) circumstances: If the victim is person, person's with another other than that years age[.] less than ten ... A violation of spouse person if the age other is under the rape subdivision of this section is in the years sixteen felony.” is of a Class 3 degree, felony.” first which ais Class 1 objection him. rape charges testify against under Miller’s was degree the first on III, court, on by I but was found the circuit overruled which held Counts with a charges of sexual contact attorney-client the two privilege that the would not II and minor under Counts IV. prevent gathering the court from facts to judgment for a directed verdict moved determine whether Miller had received no- of the case acquittal at the close State’s tice of the minimum sentences of the defense case. Both and the close circuit court he faced. The found motions were denied. communication of “mere facts” between an attorney and client was not covered trial, a motion After Miller filed 5.]

[¶ attorney-client privilege and that ex- objections mandatory for new trial and sentence, presented change minimum which were of information on minimum sen- 1, 2005, July to the circuit court on and tences was not a confidential communica- circuit court de- September 2005. The tion. motion for new trial. The

nied Miller’s hearing, arraign- At the Miller’s [¶ 8.] pro- circuit court found Miller had a due ment counsel testified that he did not re- mandatory to notification of the cess mandatory minimum discussing call sen- upon minimum sentence of not arraignment tences with Miller. His objection. guilty, and sustained his counsel also testified that a letter par- The circuit court advised the [¶ 6.] during repre- from the State Miller his authority ties that it would follow the cited mandatory sentation did not reference the brief, Crawford, in his Miller State minimum trial sentences. Miller’s counsel (2005). Wash.App. 128 115 P.3d 387 plea negotiations testified to that occurred The circuit court narrowed the issue to A with the State on the eve of trial. letter whether Miller had received notice of the attorney from to trial the- state’s counsel mandatory minimum sentence such that 18, 2005, February dated was introduced process rights his due were not violated. vague in which two references to the man- The circuit court further held that under datory penalties minimum were made. notice, Crawford, any whether from the that he did not send Trial counsel testified State, court, counsel, the trial or defense Miller, but that he discussed the letter to requirement fulfill process would the due him contents of the letter with the- mandatory minimum provide notice of trial. weekend before the penalties. The circuit court then ordered arraignment Miller’s and trial counsel to Thereafter, circuit court 9.] [¶ testify hearing at a on the issue of notice. objection granted Miller’s and refused sentences, mandatory minimum apply the objected Miller to the circuit holding process that Miller’s due instead interpretation court’s broad of the notice given rights were violated when he was requirement Crawford, arguing in instead trial that he during notice either before or circuit duty that the to inform fell on the mandatory minimum faced a sentence. court and not on defense counsel. Miller received, testimony mitigation After was- clearly emphatically stated to the cir- orally imposed the circuit court a fifteen- raising cuit court that he was not an inef- II, penitentiary sentence on Count year claim. fective assistance of counsel De- entire As to suspended but sentence. objection, circuit court called spite his IV, to fifteen Count Miller was sentenced attorney represented the defense who Mil- years suspended. in five years prison with arraignment ler at the and the defense consecutively. attorney imposed at trial to The sentences were represented who Miller to defendants who enter a pertains the circuit court’s appeals 10.] [¶ or nolo contendere. for new trial contend- of his motion denial process Amendment due ing his Fifth The Due Clause of Process when he was not ad- rights were violated provides: the Fifth Amendment court that he faced by the circuit vised person No shall be held to answer for a minimum mandatory sentences. potential crime, capital, or otherwise infamous un- circuit court erred also contends the He or indictment of a presentment less on attorney-client priv- that the when it found Jury, except arising in cases in Grand ilege apply did not to communications be- forces, in the land or naval the Mili- as to the tween Miller and his counsel tia, when in actual service time of re- penalties. We any public danger; nor shall War frame his issue as follows: subject for the same offence person be pleads a defendant who Whether put jeopardy to be twice of life or of his Fifth guilty suffers violation limb; compelled nor be shall process to due such Amendment against criminal ease to a witness be that a new trial is warranted when the himself, life, liberty, deprived nor be circuit to him of the court fails advise law; property, process or without due statutory mandatory minimum sentences private property nor shall be taken for charges he for the faces. use, just compensation. public without Const, added). (emphasis amend US V STANDARD OF REVIEW The Due Process serves to safe- Clause asserting an in Appeals [¶ 11.] guard against an unintentional or coerced fringement right of a constitutional are relinquishment rights privi- of known and reviewed under the de novo standard of Alabama, 238, leges. Boykin v. 395 U.S. ¶ Dillon, 97, 12, review. State v. 2001 SD 1709, 5, 5, 243 n. 89 1712 n. 23 S.Ct. 37, (citing Stanga, 43 v. 632 N.W.2d State (1969) (citing L.Ed.2d 274 Johnson v. ¶ 486, 488). 129, 8, 2000 617 A SD N.W.2d Zerbst, 458, 464, 1019, 304 U.S. 58 S.Ct. appeal direct from a conviction must be (1938)). 1023, 82 L.Ed. 1461 greater scrutiny afforded than a collateral In context of crimi [¶ the 14.] by action. challenge corpus habeas State Process prosecutions, nal the Due Clause (S.D.1994). Moeller, 803, v. 511 N.W.2d 809 safeguards against involuntary an and un Thus, appeal on a direct from a conviction knowing important waiver of three federal presump the defendant is entitled all rights plea plea via a of nolo tions protections possible and under our 1) contendere, privilege against com constitution. Id. 2) self-incrimination, pulsory 3) trial, and to confront speedy AND ANALYSIS DECISION 243, one’s accusers. Id. at 89 S.Ct. at 1712, (citing Duncan v. argues that he was enti- 23 L.Ed.2d 274 Louisiana, 145, 1444, 20 tled under the Due Process Clause of the 391 U.S. 88 S.Ct. Texas, Amendment, (1968); Fifth v. applicable to the states L.Ed.2d 491 Pointer 380 Amendment, 400, 1065, L.Ed.2d through the Fourteenth to U.S. 85 S.Ct. 13 923 (1965); 1, mandatory minimum penal- Malloy Hogan, notice of the v. 378 U.S. 84 (1964)). 1489, upon entering ties he 12 L.Ed.2d 653 In faced not S.Ct. guilty. voluntary knowing that this order to affect a and Miller concedes issue is statute, rights guilty plea not controlled as SDCL 23A-7- waiver these via

619 contendere, 506, (1994)); the court must be 205 Ill.Dec. 643 N.E.2d 797 of nolo 567, Ariz. McKinney, that a defendant understands State v. 185 917 P.2d satisfied relinquishment (citing Draper, is a of these 1214 State v. 162 such 433, 259, (1989); rights rights these entail. Id. Ariz. P.2d what 784 266 State Morse, 25, 1141, v. 127 Ariz. 617 P.2d waiving In addition (1980)); State, 1147-48 Medina v. 688 rights, these three constitutional defen (Miss.1996) 727 (quoting So.2d Weather pleads guilty entering is also an dant who 561, 846, ford, 429 at 97 at U.S. S.Ct. 51 all of the formal admission to the elements 30); State, Carpenter L.Ed.2d v. 929 P.2d him. charge(s) against criminal Id. at 243 (Okla.Crim.App.1996) (citing State ex 5, 5, n. at 1712 n. 23 L.Ed.2d 274 89 S.Ct. 1365, Craytor, rel. Stout v. 753 P.2d Johnson, 466, at (quoting 304 U.S. 58 S.Ct (Okla.Crim.App.1988)). Only pros when a 1461). Therefore, at 82 L.Ed. a de ecutor offers a the opportunity defendant cannot make an admission to all fendant plea agreement, to enter into a must the possess of a crime unless he elements circuit court ascertain that the defendant the law in understanding es an relation voluntarily knowingly entered it 243-44, to the facts. Id. 89 S.Ct. at circuit court must advise the defendant 1712-13, 23 L.Ed.2d 274. The court must statutory of both the maximum and man ascertain that the defendant understands datory minimum sentence faced. State v. guilty plea what a entails and the conse Richards, 18, ¶ 7, 2002 SD 640 N.W.2d quences plea. he will face as a result of the 23A-7-4(1) (quoting 481-82 SDCL Wilson, (citing State 459 N.W.2d 457 (S.D.1990))). However, there is no right op constitutional to be offered the

portunity bargain. guilty v. To ensure that plea to Weatherford 545, 561, 837, pleas pleas 429 and of nolo Bursey, U.S. 97 S.Ct. contendere are 846, (1977); Nguyen voluntary 51 L.Ed.2d 30 v. to knowing safeguard and and (8th States, Cir.1997) against 114 F.3d 699 right United violations of defendant’s to Gonzales, (quoting process, United States v. 65 due Rule 11 of the Federal Rules (10thCir.1995)) (citations 814, F.3d 823 of Criminal Procedure was enacted.3 States, omitted); 509, 459, People Curry, McCarthy v. 178 Ill.2d v. 394 United U.S. (1997) 395, 1166, 1170, 465, 227 22 Ill.Dec. 687 N.E.2d 877 89 S.Ct. L.Ed.2d 418 Palmer, (1969) States, 465, (citing People (citing v. 162 Ill.2d v. Machibroda United (E) provides part: right 3. Rule in relevant to and 11 the trial confront cross- witnesses, plea guilty accepts protected the Before court examine adverse to be contendere, may self-incrimination, nolo the defendant be testify compelled to from oath, placed under and the court must ad- evidence, compel present and to the and personally open dress the defendant in witnesses; attendance address, During court. this the court must (F) rights defendant's waiver of these trial the of, inform defendant and determine that the accepts plea guilty or nolo if the court understands, following: the defendant the contendere; (G) charge the nature of each to which the (B) right guilty, plead having the to not pleading; defendant is persist already pleaded, plea; so to in that (H) including any possible penalty, maximum trial; (C) right jury the to a fine, supervised imprisonment, and term of (D) right represented by the to be counsel— release; necessary appoint and if have the court (I) any mandatory penalty[.] minimum every stage and at counsel—at trial other proceeding; the 620 court, 510, 513, in 487, 493, personally open sub- 7 defendant 82 S.Ct.

368 U.S. § Gillies, ject 23A-7- exception to the stated (1962); Von Moltke v. L.Ed.2d 473 of, 5, him and determine that and inform 316, 708, L.Ed. 309 S.Ct. 92 332 U.S. 68 understands, following: he the Johnston, 101, (1948); v. 316 U.S. Waley (1942)). 1302 How 62 86 L.Ed. (1) S.Ct. charge the to which The nature of 11 is ever, embodied Rule procedure offered, the the the is by law, the States Consti not mandated United if penalty provided by Heer, (citing Waddy v. tution. any, possible pen- and the maximum Cir.1967)). (6th Rather, law; it is by F.2d 789 alty provided making to assist the courts with designed (2) represented If the defendant is not constitutionally required determination the right the attorney, an that he has voluntary guilty plea that a defendant’s is attorney at represented by to an be complete knowing, produce and and to proceedings every stage of the determination. record of the voluntariness and, against necessary, him if one the advisement of importantly, Id. More him; represent to appointed will be under Rule 11 is rights penalties these and (3) right plead the not That he has only when a defendant intends applicable if it guilty persist or to guilty or nolo contende- to enter made, already and that he has been 11(a)(1). A defendant re. FedRCrimP right to assistance of coun- has proceed not plead who elects sel, and cross- right to confront procedur trial not the same provided is him, against examine witnesses al under Rule 11 as a defen safeguards to in- right compelled not to be guilty or nolo contendere. pleads dant who himself; criminate Robertson, 698 F.2d See United States con- pleads guilty That if he or nolo (5thCir.1983) (noting pro Rule 11 there not be a further tendere will to a defendant who applicable tections not kind, by pleading so that trial of guilty plea pleads even when guilty or nolo contendere he waives stipulation coupled inculpatory is with an trial, to a to con- facts) (citing Witherspoon v. United witnesses front cross-examine (6thCir.l980), States, 1247, F.2d 1252 633 him, against and the not to be denied, 933, 1396, 450 101 cert. U.S. S.Ct. himself; compelled to incriminate (1981); v. 67 L.Ed.2d 367 United States and (D.C.Cir. Strother, 397, F.2d 404-05 578 pleads guilty That if or nolo con- he Terrack, 1978); v. 515 F.2d United States tendere, may him the court ask 558, (9thCir.l975)); 560 Gerald v. United questions about the offense to which (E.D.N.C. 404, States, F.Supp. 405 406 if pleaded, he he answers has 1975) (noting “[u]pon plea that a of not oath, questions under on the these to guilty required explain the court is not record, presence and in of coun- offense, explore of the or the elements sel, may be used his answers later range possible with the defendant the of against prosecution per- him in a for defenses”). jury- 23A-7-4, SDCL South [¶ 18.] Dakota’s version of Rule 11 also South Dakota’s version of Rule 11 of the Federal procedural safeguard serves as a for deter- Procedure, provides: Rules of Criminal guilty plea plea a or of nolo mining that voluntary knowing. plea guilty Before a or nolo contendere is accepting DeNoyer, 541 N.W.2d 729 a court must address the State v. contendere

621 (S.D.1995). posed 23A- for violation of section 39-08-01 language of SDCL The [driving circuit court is under the influence or with a it clear that the 7-4 makes ..., an advisement of in give weight .10] to blood alcohol excess required the defen- mandatory minimum sentence must be at least four consecu- the sentence only face when the defendant might dant fine as days’ imprisonment tive and such guilty or nolo contendere plea enters a proper.” deems Id. the court Furthermore, SDCL ar appeal, On the defendant provides: 23A-7-15 circuit court committed gued the revers proceedings at A record of the verbatim it him of ible error when failed to inform plea shall a defendant enters be which minimum sentence he faced and, made if there is a 39-06^42(2) prior § to tri under N.D.C.C. contendere, in- the record shall nolo al. Id. at 564-65. The defendant relied clude, limitation, the court’s ad- without authority defen on from cases which defendant, inquiry into vice to the opportunity not afforded an to dants were plea including voluntariness of the au plead complaint, to an amended inquiry and the into any plea agreement, thority prior that with the use of dealt guilty plea. A the factual basis of offense-enhancing pur convictions for proceeding record of a verbatim Gahner, v. 413 poses. (citing State enters a which defendant (N.D.1987); Edinger, 359 State v. N.W.2d need not be taken unless misdemeanor (N.D.1983); State v. Gus 331 N.W.2d prosecuting attorney requested (N.D.1978); State tafson, 278 N.W.2d 358 or the defendant. Ruble, 79, 40 v. 77 N.D. N.W.2d requires the circuit court SDCL 23A-7-15 (1950)). Supreme The North Dakota into the voluntari- inquire on the record that there was no failure to Court noted guilty plea of a ness and the factual basis to a new plead allow the defendant fl> anew inqui- of nolo contendere. No such complaint at issue Bom- or amended required guilty plea. for a not See ry is mersbach, holding in and therefore the SDCL 23A-7-15. Gustafson, apply. did not 278 N.W.2d Supreme Dakota The North [¶20.] acknowledged that Id. at 565. That court City addressed a similar issue Court offense-enhancing (increasing the classifi Bommersbach, 511 N.W.2d 563 Fargo offense) cation of the and sentence-enhanc (N.D.1994). case, In that the defendant sentence) (increasing the use ing maximum driving a motor vehi- pleaded to the prior require conviction notice suspend- his driver’s license was cle while intends to use defendant the State license ed. Id. at 564. The defendant’s pur convictions for enhancement prior a suspended as the result of had been However, in that Id. Bommersbach poses. 39-08-01(1), § driv- violation of N.D.C.C. 39-06-42(2) § court held that N.D.C.C. by weight alcohol level of ing with a blood partic minimum for a “provides a sentence court, The trial without greater. .10 or Id. type driving-while-under-suspen ular to thir- objection, sentenced the defendant conviction; not with of it does deal sion days jail twenty-six days with sus- ty enhancing fense-enhancing or sentence remaining days to be pended, and the four Finally, the convictions.” Id. North prior consecutively in accordance with served that the 39-06-42(2). Supreme Dakota Court held § N.D.C.C. N.D.C.C. Id. 39-06-42(2) Proce North Dakota Rules Criminal provided part: § in relevant notice of a require specific im- dure do not suspension or revocation was the “[i]f only a The other case that Miller upon plea [¶ 23.] minimum sentence mandatory of his claim a support cites to of viola- Id. at 565. guilty. of not process rights tion of his due is State v. 11 of the language of Rule The Crawford, Wash.App. 115 P.3d Rules of Criminal Procedure Federal pleaded In the defendant 387. Crawford 11(b)4 parallel NDR Rule South CrimP robbery guilty first-degree not and sec- version, requires in that it the Dakota’s ond-degree assault. 115 P.3d at 388-89. trial, At the time of Crawford was unknow- defendant of the trial court to advise the mandatory a minimum ingly facing sen- penalty only upon minimum a mandatory prison parole of life in without under tence or nolo contendere. Miller plea Persistent Ac- Washington’s Offender right alleged process that his due concedes However, countability Act. Id. at 389. nei- court of the to be advised the circuit prosecutor ther the nor defense counsel minimum mandatory penalty does have that were aware the sentence would be However, its source SDCL 23A-7-4. as as subject mandatory to a enhancement as proposition for his that he had a support time of prosecution neither realized the right to an advisement of the constitutional previous that both of two con- Crawford’s mandatory penalty, minimum Miller cites victions, degree one for first sex abuse in Richards, 18, 640 to State v. 2002 SD Kentucky Washington and a for conviction exclusively a case that deals N.W.2d degree robbery, second would count both statutory right under 23A- with the SDCL Washington’s under persistent as “strikes” 7-4(1) mandatory to an advisement of the offender enhancement scheme. minimum penalty upon plea guilty. a question The before the Wash- statutory that Miller has waived the Given ington Appeals Court of was “whether a support Richards offers no for argument, process due if defendant receives he or she process that he had a due his contention mandatory is sentenced to a minimum to an advise- right under constitution parole term of life without without penalty ment of the notice, trial, during before or a such if upon guilty. of not Even Miller possible.” sentence is even Id. at 390. As statutory argument, had not waived fundamentally that court noted “it is unfair abundantly it the above discussion makes notify person for the not to before State right clear there is no such constitutional subject may trial that he be to a mandato- upon entering guilty. ry parole.” of not sentence of life without Id. at and, ceeding necessary, 4. North Dakota Rules of Criminal Procedure if to have 44; 11(b) appoint the court counsel under Rule provides part: Rule in relevant (D) at trial to confront and cross- (b) Advice defendant. witnesses, protected examine to be adverse may accept plea The court self-incrimination, compelled testify from first, by addressing without the defendant evidence, present compel and to personally [except provided as in Rule witnesses; attendance of 43(b)] court, open informing the defen- (E) the defendant’s waiver of these trial determining dant of and that the defendant rights accepts guilty; if the court following: the understands (F) charge the nature of each to which the (A) right plead guilty, having the to not pleading; defendant is already pleaded, persist plea; so to in that (G) any possible penalty, maximum includ- trial; (B) right jury fine, fee; the to a ing imprisonment, mandatory (C) by (H) (em- represented any mandatory penalty the to be counsel at minimum [.] added). every stage pro- phasis trial and at other of the argument Miller’s under reversed the conviction It therefore 391. noting proce- that clause must fail. grounds, process the due process on due to know was entitled durally the defendant for sexual contact with a prosecuted was prior a harsh sentence that he faced such years age. than victim less sixteen underlying rationale for trial. Id. The to gives 22-22-7 clear notice that the SDCL person that “the court’s decision was that punishable felony. is as a offense Class is know that such a sentence needs to gives 22-22-1.2 further notice that SDCL intensively to deciding how possible when person for sexual contact with a penalties deciding intensively how investigate, when age the of ten are more severe under deciding wheth- plea bargain, to and when cry nature. Miller cannot now foul and alternative.” trial or is the better er attempt penalty an end run around the for age sexual contact with a victim under the circuit by claiming of ten the court failed provides support no [¶25.] Crawford mandatory him minimum to advise of the despite the fact that for Miller’s contention clearly articulated in 22- penalty so SDCL pleaded in that not the defendant case 22-1.2, when Miller had no con especially to trial. The issue proceeded an Washington Appeals Court of stitutional such advisement. before sentencing enhancement un- was whether The circuit court erred statutory [¶ criminal scheme 28.]

der a habitual faced a without notice that the defendant it held that Miller was entitled to when mandatory minimum life sentence without upon plea a of not such advisements constitutional. 7dL5 parole was mandatory mini impose and refused to However, that given mum sentence. Mil case, In the instant Miller was an effective sentence of ten ler received facing potential not for years, prison amount of which is the same parole. minimum life sentence without had the cir time he would have received Miller faced with such an en- Nor was imposed cuit court two consecutive five- to the sentence due to the hancement mínimums, year mandatory the error is Rather, prior use of a conviction. State’s consequence and as a Miller suf harmless Miller, like the defendant Bommers- hold that prejudice. Because we fered no bach, facing “a minimum sentence for was not entitled statute the defendant was 22- type of SDCL particular [violation of the by the Due Process Clause Con 22-7 for sexual contact with-a-victim-less- of the mandato stitution to an advisement (Bommersbach, than-ten-years age.]” we ry upon guilty, 565). 22-22-7 and 511 N.W.2d SDCL Miller’s claim that do not need address provide offense or 22-22-1.2 do SDCL prohibited the attorney-client privilege prior based on sentence enhancements requiring testimony circuit court from facing his first convictions for defendant arraignment and trial counsel from his contact charge conviction on a of sexual affirm. concerning the advisement. We age a victim under the of sixteen. with habitual statutory pro We have also held that the scheme also 22-7-11. 5. South Dakota's notice, strictly given act should be construed must be offender vides that defendant fully aware arraignment, ensure that a defendant is order to either at the time of or before felony, prior pleading principal penalty to the to seek an enhanced the State’s intent possibility of an enhanced sen statutory scheme he faces the under the habitual offender Heftel, 402-03 tence. State v. 513 N.W.2d Chapter 22-7. Notice to the defen in SDCL ( 1994). required per provisions of SDCL dant is S.D. KONENKAMP, SABERS, Justices, MEIERHENRY, concur. Justice, ZINTER, with concurs writing.

ZINTER, (concurring). Justice I would generally I concur.

[¶31.] express- the circuit court

hold that because mini-

ly apply declined to sentence, preju- Miller suffered no

mum

dice.

2006 SD 55 GRAJCZYK, Plaintiff

Jolene Appellant, TASCA, Defendant

John G. Appellee.

No. 23638. of South Dakota.

Supreme Court 20, 2006.

Argued on March 21, 2006.

Decided June

Case Details

Case Name: State v. Miller

Court Name: South Dakota Supreme Court

Date Published: Jun 21, 2006

Citation: 717 N.W.2d 614

Docket Number: 23846

Court Abbreviation: S.D.