*1
Furthеr,
dividuals.
the scenario of an indi-
vidual who is released from incarceration on
matter,
together
the above-entitled
parole and thereafter
absconds
this
record,
having
appeal
concluded
years
six
regular
State for
means a
no
and the
it is manifest on
face
the briefs
occurrence.
appeal
on the
record that the
is meritorious
ap
1. that
on
following grounds:
the issues
Thereforе, I
ap-
would dismiss this
peal
by settled South
clearly
controlled
peal moot.
binding
Dakota law federal law
or
Lee,
states,
lacked credit, therefore, now it is reversing a judgment ORDERED that SD entered Judgment of lower court be Dakota, of South Plaintiff STATE forthwith. Appellee, Pierre, Dakota, this 11th DATED at South day July, 1995. Bradley PUTHOFF, Allen Defendant BY THE COURT Appellant. /§/ Robert A. Miller A. Robert Miller No. 19606. Chief Justice Supreme Court of Dakota. (Chief dissents.) Robert A. Justice Miller on Briefs Considered Dec. AMUNDSON, (dissenting). Justice July Decided dissent, respectfully as the issues appeal involved this are moot and should
not be considered. The record reveals that Watkins was peni incarceration in the state
released from
tentiary January six almost appealed Court.
months after to this
“Traditionally, the satisfaction a sentence prison of a the service term renders the precludes
case moot and a direct review
the conviction sentence.” Moeller So (cita (S.D.1985) lem, omitted). justici If longer tions there is no controversy, or if lacks a
able “ ” effect,’ ‘practical is moot. legal an action Wilson, (quoting
Id. (Iowa 1975)). Although possesses this Court questions
“discretion to consider moot
they general public importance, have are of occurrence, proba
probable future and risk mootness[,]” City ble future Boesch v.
Brookings, 534 N.W.2d 849-50
1995) (citations omitted), no issue in case rights public. legal general
affects the affects, most, in- paroled at
SDCL 24-15-21
MILLER, Chief Justice. appeals Bradley Puthoff the sen- aggravated burglary tences for as- his sault We affirm. convictions.
FACTS for two [¶ 2] Puthoff was indicted counts of degree burglary1 second and three of counts aggravated charges all assault2. arose surreptitious out of entries Puthoff s into occupant apart- residence of another complex poisoning ment and his some occupant’s refrigerator. the food that other plea bargain, pled Pursuant Puthoff to a guilty degree one count of second aggravated and one count of assault. The remaining charges were dismissed. At sen- tencing, the following trial court oral sentence: Puthoff, So in this Mr. I’m you concerning charge aggra- period imprisonment vated assault to a Penitentiary in the South Dakota for 15 years, charge, the other charge and on the you plead guilty, sentencing you I’m Penitentiary South Dakota years. consecutive term of 7 additional they’re doing sep- I’m I think this because crimes, Puthoff, I arate Mr. and think that you longer period are going to need time to with all these issues. deal You have to you serve the first sentence before one, can start the second Mr. Puthoff. actually say What I is it’s going meant to plus suspending to be 15 I’m counseling condition thаt he receive counseling gets continue when he out on years gets think those 8 after he out going quite critical. subsequently The trial court entered the fol- Barnett, General, Attorney Gary Mark lowing written sentence: Campbell, Attorney General, Assistant being fully [T]he Court advised in the Pierre, appellee. plaintiff considered, premises, it is this Court Howard, BRAD- Cynthia County you adjudged, A. Minnehaha ordered Falls, LEY Defender, ALLEN PUTHOFF imprisoned Public Sioux for dеfendant the SOUTH DAKOTA STATE PENI- appellant. charges degree burglary charges 1. The filed 2. The assault were second were filed un- felony 22-18-1.1(2). under SDCL 22-32-3 which is a Aggravated Class der SDCL assault un- punishable by years exceed fifteen not to in the provision felony. der this is also Class penitentiary state a fine of fifteen thou- and/or (5). sand SDCL 22-6-1 dollars. Falls, County eligi- located Sioux the determination of an TENTIARY inmate’s Minnehaha, Dakota, bility parole, for consideration for two or more convictions from the same degree; 2 Burglary AS TO CT in 2nd transaction, for which the sentences are (8) eight years years, Fifteen consecutively, made to run shall be consid- being suspended that the De- conditioned *3 ered as one conviction. Two sen- or more counseling attend as recommended fendant arising from tences different transactions Board; by Parole sentence to said fоr sentences are made to run on Ag- run consecutive to sentence Ct. 3 consecutively shall be as considered Assault; gravated eligi- rate convictions. In determining the Assault; Aggravated AS TO CT 3 bility person date receiving two or (15) years, Fifteen more sentences which are run made to Separate transactions with defen- consecutively, the sentences shall be added jail[J in to receive credit for dant together and the total number of convic- added). (emphasis then tions shall determine the total amount appeals. Puthoff eligi- of time becoming served before parole subject ble for consideration for ISSUE provisions §of 24-15-5. entry Did of the written [¶3] computations Puthoff asserts declaring acts criminal provision following under this lead to the “separate illegally in- transactions” severity in his case: results sen- crease of Puthoffs tence? [Treating convictions one [Puthoffs] as “It Dakota 4] is settled law in South [¶ would mean that transaction he must serve the oral sentence is years, days three one month and 15 before the written sentence must conform to it.” becoming eligible If for his convic- (S.D.1992). Reif, State 490 N.W.2d transactions, separate tions are treated as genesis of our was the settled law ease years, serve four eight he must months Hughes, of Statе 62 S.D. days becoming parole and seven before we held that N.W. wherein eligible, difference of nineteen months defendant, against an unwilling Penitentiary
[A]s with no chance for condi- valid sentence cannot be increased tional release. severity after he has commenced the dispute State does these calculations serving (emphasis thereof and, therefore, purposes its brief this
Hughes, supra was relied us decision, presume they we are accurate. Bucholz, State 1987) Ford, [State argument re We find Puthoffs (S.D.1982) ]. decision in solved our State v. Munk, been 125 SD Sieler had (S.D.1990)(emphasis murder, original). kidnapping, attempted convicted rape, All assault. Puthoff trial court contends the charges stemmed from an incident unlawfully increased in a man his sentence place morning took June not consistent with ner the oral sentence pеniten Sieler was sentenced to consecutive “[s]eparate it added the transac when words tiary total sentences each conviction for a argues to his written He tions” sentence. years. of one five As in this hundred designation is because the of his crimes sentencing there no mention separate increas transactions during oral that all of the length es the of time he must serve separate offensеs were transactions. Howev penitentiary eligible pa becoming before er, provi judgment each written and sentence de This on the role. based sions SDCL 24-15-7: noted that all the offenses were appeal, like Pu- written and sentence did not vio- transactions.3 On thoff, prohibition against of the words late the the written sen- the addition contended increasing oral judg- to the written tence sen- transactions” illegally enhanced his tence. ments and sentences rejected this contention on sentence. We ISSUE grounds including our observation
various juris- 8] Did trial court exceed its [¶ that: determining diction in Puthoff s convic- 24-15-1.1 states: tions were the result of trans- discretionary Parole is the conditional actions? peniten- from actual release of an inmate [¶ 9] Puthoff next contends the find expiration tiary custody before the ing that a defendant has bеen involved in two *4 prisoner imprisonment. term of re- separate or more criminal transactions is ex legal custody mains an inmate under the clusively finding parole a the board makes in department of of corrections until determining a defendant’s likelihood of reha expiration imprison- his of term Therefore, argues making bilitation. he prisoner A is not to ment. finding is an exclusive executive branch func accept parole. prisoner A a conditional tion and that the trial court violated this However, parole. is never entitled to separation powers by determining his con in parole may granted judg- be if separate victions were the result of transac pardons pa- ment of the board of tions. granting parole roles a would be society prison- best interests of and the contentions, support Pu- [¶ 10] er. governing thoff observes that the statutes dates, parole eligibility the determination of application Neither this section or its including the determination that or may establishing two more be the basis a con- separate crimes are the result of transac- stitutionally protected liberty, property tions, primarily 24- process any contained SDCL prisoner. or due interest in added.) properly points 15-6 and 24-15-7. He out (Emphasis chаpter that SDCL Ch. 24-15 is the code spe The United States Court has paroles governing penitentiary, from the cifically person held that a convicted has executive branch function. right no constitutional Green Inmates, holtz v. Nebraska Penal ignores Puthoffs [¶ 11] separate whether transactions are involved Solem, see also Winters multiple criminal offenses is an inherent con- (S.D.1989). Sieler’s sen prosecution sideration a criminal from the by “sep tence was not increased the words drawing of an indictment or transaction,” only parole eligibili arate his very regard, information. In that ty by is affected these words. provides: 23A-6-23 ¶ Sieler, 114 at SD 554 N.W.2d at charged Two or more offenses (emphasis original). the same indictment or information in Sieler’s, offense, Puthoffs [¶ 7] like counts for each the of- charged, not increased the addition of the words fenses whether felonies or misde- both, “separate judg- transactions” to the written meanors or are of the same or simi- Only parole eligibility ment and sentence. lar character or are based on the same Accordingly, act or affected. the addition of transaction or on two or more acts together words transactions” to the or transactions connected or con- that, However, provide рrejudice 3. SDCL "[i]n 23A-27-4 does we find no suffered Pu- multiple arising case of convictions from differ- thoff from this omission and determine it to be a transactions, separate judgment involving ent of convic- matter of harmless error form over Orelup, tion shall be entered for each conviction.” This substance. See State v. (S.D.1994)(prejudicial rule was followed in the case as error must sub- instant harm defendant). single rights of conviction was enterеd. stantial parts began next stituting a common scheme act shown the facts stat- added). plan. (emphasis ed above. 114 at SD permitted Pu- It is this statute (emphasis at 482 charged in single thoff to be indictment argu- the first instance. We find Puthoffs Applying this same rationale contrary merit. ment to the to be without instant Puthoff first broke into his vic- apartment by ISSUE tim’s making an unauthorized entry key with a master and with the ac- treating err in Did the trial court knowledged poison intent to his victim. This crimes as from was sufficient to constitute the offense of rate transactions? burglary under SDCL 22-32-3. As in Citing extensive authorities complete this offense was when Puthoff en- jurisdictions, from other Puthoff asserts the Second, apartment. tered the after Puthoff declaring trial court erred in burglary, opened committed offense offense and assault offense arose refrigerator poisoned the victim’s argues transaсtions. He these by putting victim’s food weed-killer in some merely individual crimes constituted essential ag- of the food items. This i.e., goal, poison his vic elements of one 22-18-1.1(2). gravated assault under SDCL Accordingly, tim’s food. he asserts the two Thus, Puthoffs crimes were each distinct *5 merely parts single of a crimes completed acts that were before the transaction. that, began. next act It follows as in simply the trial court did not err in Sieler, supra. holding consistent with our Puthoff on these convictions as Puthoff, Sieler, just apart- an like broke into transactions. felony ment with intent to commit [¶ 17] Affirmed. short, burglary. therein. committed burglary, raped After the a victim Sieler AMUNDSON, KONENKAMP and apartment within the committed various and GILBERTSON, JJ., concur. upon other acts of violence her. In deter- SABERS, J., dissents. mining whether the constituted a separate transaction from the balance of the SABERS, (dissenting). Justice offenses, other we held: for the dissent same reasons set apartment broke into Victim’s Sieler my special writing forth in State v. through a screened window around 4:45 1996 SD 554 N.W.2d 483- felony with a.m. the intent to commit a (Sabers, J., dissenting), reproduced in 85 therein, constituting burgla- the offense of part as follows: 22-32-1(3). ry. This offense The addition of the words complete upon entering apart- Sieler’s judgment transactions” to the written Second, after ment. Sielеr committed the after began serving defendant his sentence con- burglary, Victim and Sieler en- offense of stitutes an enhancement of sen- into a tered heated discussion over Sieler’s tence. breaking apartment. into her Sieler de-
manded Victim have sexual intercourse him, however, Victim refused. Sieler South Dakota case law is clear that a forcibly raped then the next ten Victim for it has sentence cannot be enhanced once completed to fifteen minutes. Sieler imposed has been and once the defendant After (SDCL 22-22-1(2)), rape Victim went begun serving enhanced it —even into the bathroom to clean herself because legal sentence would have been a appeared passed Sieler to have out on her imposed place. it in first had the court bed.... jurisdiction an offender is within the “Onсe government, Sieler’s crimes were each distinct of the executive branch of judicial completed
rate acts that were before the branch —the circuit court —loses 444 Oban, May Judge
jurisdiction
control.”
v.
a United States District
oral-
and
State
(S.D.1985) (citation
ly
probation
revoke the
of a Defendant
omitted).
stated, on numerous
open
We have
in the
and
occasions,
against
unwilling
impose
that “as
his counsel
Defendant and
defendant,
cannot be in-
peri-
a valid sentence
specific
confinement
com-
after he has
creased
enter a formal
od of
and thereafter
serving
thereof[.]”
menced the
State
judgment
and commitment
(S.D.1982) (cit-
Ford,
263, 267
larger
longer
which a
sentence of con-
Hughes, 62 S.D.
State v.
finement is
and set forth?
Jackson,
N.W.
negative stating,
answered in the
Watt,
(S.D.1978);
parte
Ex
error, in
enlarging
“This
the sentence
(1950)).
“A sеn-
S.D.
plain
petitioner,
light
absence of
was so
prisoner
as soon as the
tence commences
requirements 43 that it
Rule
should
custody
confinement in the
suffers some
Ap-
have been dealt with
the Court of
a sheriff.” Id.
peals,
though
alleged
even
it
not been
had
Marquez,
error.” Accord United States
examining
dispo
... After
federal courts’
(2nd Cir.1974)
(reversing
506 F.2d
issue, this
sition of the
court held “that the
remanding
for written
oral sentence is the
pro-
corrected in accordance with the oral
judgment must
that the written
conform
sentence). Similarly, in
nouncement of
[Ford,
(relying
iV’
445
Lynce
judgment was invalid While both Weaver and
involved the
(noting that the written
clause,
post
pushing
ex
facto
it is clear that
augmented
it
the sentencе
both because
presence
the date
which an inmate becomes eli
it was entered without
because
counsel).
parole
gible for
into the future constitutes
or his
of either defendant
punishment.
removal of
“[T]he
enhanced
present
right to be
The defendant’s
[good
provisions can constitute an in
time]
sentence is
speak
when his
punishment,
‘prisoner’s
crease
because
Allen,
Illinois v.
397
constitutionally based.
eligibility
imprisonment
sig
is a
for reduced
338,
1057, 1058,
337,
U.S.
90 S.Ct.
entering
nificant factor
into both
defen
915,
353, 356,
reh’g
398 U.S.
S.Ct.
plea bargain
dant’s decision to
(1970) (“One
1684,
the most
L.Ed.2d
to be im
judge’s calculation of the sentence
by the
rights guaranteed
of the
Con
basic
”
at -,
posed.’ Lynce,
519 U.S.
right
is the accused’s
to be
frontation Clause
Weaver,
(quoting
at
[¶
over,
increased
whether a sentence has been
change
parole eligibility
in Puthoffs
that the
degree-
“technical”
prohibition against
is not a matter of
not violate the
date “did
—even
vacating of written
incrеases warrant
increasing
the written sentence
¶
comply with the oral
Supra
judgments
7.
which do not
the oral sentence.”
See
See,
Graham,
24, 35-36,
e.g., Cook v. United
450 U.S.
101 sentence.
Weaver
(1st
(1981)
Cir.1948),
S.Ct.
67 L.Ed.2d
647,
transactions” should be Judgment and Sentence so that the
original sentence be reinstated “as it original sentencing], [the
existed on date Grosh, respects.”
in all at 828. majority may thought have
While the Sieler anomaly,
was an it is clear the mistake was majority
repeated in this case. The should reinstate the oral sen-
admit the error and
tence, compound by affirming the error sentence.
ta in the Interest of B.S. a/k/a
Child(ren), Concerning L.S.
F.M.
No. 19630. Dakota.
Considered on Briefs Jan. July
Decided