STATE OF SOUTH DAKOTA, Plаintiff and Appellee, v. RICHARD KEITH ROEDDER, Defendant and Appellant.
#28435-aff in pt & rev in pt-MES
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
01/30/19
2019 S.D. 9
THE HONORABLE JON S. FLEMMER, Judge
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, BROWN COUNTY, SOUTH DAKOTA. CONSIDERED ON BRIEFS ON AUGUST 27, 2018.
MARTY J. JACKLEY, Attorney General
PATRICIA ARCHER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
WILLIAM D. GERDES, Aberdeen, South Dakota, Attorney for defendant and appellant.
[¶1.] Richard Roedder received an enhanced forty-year prison sentence after pleading guilty to a charge of unauthorized possession of a controlled substance and admitting to five prior felony convictions listed in a part II habitual offender information. Roedder challenges his conviction, claiming his guilty plea was not supported by an adequate factual basis. He also argues the circuit court erred when it relied upon his five prior felony convictions to enhance his sentence and impose a forty-year sentence rather than the presumptive sentence Roedder sought. Roedder further claims the court‘s sentence violates the Eighth Amendment‘s prohibition on cruel and unusual punishment. We affirm Roedder‘s conviction but reverse his sentence and remand for resentencing.
Background
[¶2.] On August 24, 2017, Aberdeen police officers responded to a call from a resident who reported screaming and crying in a nearby apartment. Once there, officers found Roedder and Nashay Wurtz. Roedder was on parole for а 2011 distribution of a controlled substance conviction. Wurtz was also on parole and was taken into custody when police officers learned she had been drinking alcohol in violation of her supervision conditions.
[¶3.] Before Wurtz was transported to the Brown County Jail, a police officer accompanied her into the apartment so that she could retrieve some property. Inside the apartment, the officer noticed a hollowed-out pen tube lying on a dining room table. The officer recognized it as a device used to ingest narcotics, and an inspection of the tube revealed the prеsence of small white crystal flakes that field tested positive for methamphetamine.
[¶4.] Officers obtained a search warrant for the apartment and a vehicle parked nearby registered to Roedder. A search of the apartment yielded methamphetamine residue near the location of the hollowed-out pen and approximately twenty-two grams of methamphetamine in a packaged baggy inside a golden balloon. While searching Roedder‘s vehicle, officers discovered a bag of golden balloons similar to the one found filled with methamphetamine in the apartment. Roedder later admitted
[¶5.] Roedder was indicted and charged in a series of superseding indictments with the following drug-related offenses: (1) possession with intent to distribute a controlled drug or substance in violation of
[¶6.] The State also filed an amended part II information, alleging Roedder was a habitual offender and listing five prior felony convictions. Included were a 2000 Arizona conviction for conspiracy to commit armed robbery, along with four 2011 convictions for drug-related offenses in Brown County. The part II information listed the same date for all four Brown County convictions. Roedder challenged the part II information, arguing the four Brown County convictions arose out of the same transaction and therefore could only be counted as a single prior conviction for enhancement purposes. He also claimed the Arizona conspiracy conviction did not constitute a felony in South Dakota, citing differences in the two states’ conspiracy statutes. The circuit court rejected Roedder‘s arguments; deemed the Arizona conviction to be a crime of violence; and determined that Roedder‘s enhanced maximum potential punishment, if convicted, was the equivalent of a Class C felony, or life imprisonment.1
[¶7.] On September 5, 2017, Roedder pled guilty to unauthorized possession of a controlled substance in violation of
[¶8.] During the change of plea hearing, the circuit court advised Roedder that he could receive a sentence of up to life in prison for the possession of controlled substance offense. Roedder acknowledged the risk and continued with his plan to waive his rights and plead guilty. The court elicited a factual basis statement from the prosecutor with which Roedder agreed, adding only that he possessed “a small amount of methamphetamine,” not the twenty-two-gram amount described by the prosecutor. Roedder did not challenge any of the circuit court‘s findings regarding the sufficiency of the guilty plea and indicated he would not request a presentence investigation.
[¶9.] At Roedder‘s sentencing hearing, the circuit court imposed a forty-year prison sentence. Roedder was already being supervised on parole by the Department of Corrections and argued unsuccessfully for the imposition of a presumptive fully suspended penitentiary sentence for his Class 5 felony conviction. The State did not proceed with the other charges, and this appeal followed.
[¶10.] Roedder raises several issues which we restate as follows:
- Whether the circuit court lacked a sufficient factual basis to accept his plea.
- Whether the сircuit court erred when it determined Roedder‘s enhanced statutory maximum sentence.
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Whether the circuit court erred when it determined Roedder was ineligible for a presumptive fully suspended penitentiary sentence. - Whether the circuit court‘s decision to impose a forty-year sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.
Standard of Review
[¶11.] The text of
[¶12.] Roedder‘s argument that his sentence was incorrectly enhanced turns on the interpretation and application of statutes which provide for the enhancement. His additional claims—that the circuit court was obligated to impose a presumptive sentence under
[¶13.] We also review de novo Roedder‘s claim that his sentence violated the Eighth Amendment. State v. Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486.
Analysis
1. Whether the circuit court lacked a sufficient factual basis to accept Roedder‘s guilty plea.
[¶14.] Circuit courts may accept a guilty plea only after they are satisfied “there is a factual basis for the offense charged or to which the defendant pleads.”
Before accepting a guilty plea, a court must be subjectively satisfied that a factual basis exists for the plea. The court must find a factual basis for each element of the offense. The factual basis must appear clearly on the record.
Nachtigall, 2007 S.D. 109, ¶ 5, 741 N.W.2d at 219 (quoting Schulz, 409 N.W.2d at 658). “[T]he factual basis may come from ‘anything that appears on the record.‘” State v. Pentecost, 2016 S.D. 84, ¶ 30, 887 N.W.2d 877, 885 (quoting Nachtigall, 2007 S.D. 109, ¶ 5, 741 N.W.2d at 219). “[R]eading the indictment to the defendant coupled with his admission of the аcts described in it is a sufficient factual basis for a guilty plea, as long as the charge is uncomplicated, the indictment detailed and specific, and the admissions unequivocal.” State v. Olson, 2012 S.D. 55, ¶ 42, 816 N.W.2d 830, 841 (quoting Nachtigall, 2007 S.D. 109, ¶ 5, 741 N.W.2d at 219).
[¶15.] Here, the record easily supports a factual basis for Roedder‘s guilty plea to possession of a controlled substance. Under
[DEFENSE COUNSEL]: Actually, we have no disagreement with that information. But as far as the actual possession, Mr. Roedder possessed a small amount of methamphetamine that had been supplied to him. But he admits that he did possess methamphetamine on August 24, 2016, in Brown County, South Dakota, and he possessed that methamphetamine illegally.
[THE COURT]: Is that correct, Mr. Roedder?
[ROEDDER]: Yes, sir.
[¶16.] Roedder‘s argument challenging the factual basis for his guilty plea rests uneasily upon his unconnected claim that he cannot be found guilty under
[¶17.] First, Roedder unequivocally admitted to the circuit court that he, in fact, knowingly possessed methamphetamine. Indeed, his signed petition to plead guilty states in no uncertain terms that Roedder “will admit that he illegally possessed methamphetamine on August 24, 2016 in Brown County, South Dakota.”
[¶18.] Second, Roedder has long-since waived any separate argument that the circuit court erroneously allowed him to plead guilty to the wrong charge. See State v. Andrews, 2007 S.D. 29, ¶ 4, 730 N.W.2d 416, 418 (“It is ‘the general rule that a voluntary and intelligent plea of guilty waives a defendant‘s right to appeal all nonjurisdictional defects in the prior proceedings.‘” (quoting State v. Hoeft, 1999 S.D. 24, ¶ 12, 594 N.W.2d 323, 326)). With the benefit of counsel, Roedder unilaterally pled guilty to unauthorized possession of a controlled substance. Roedder‘s plea was not required as part of a plea agreement with the State, and it appears he simply opted for the unauthorized possession charge over the ingestion of a controlled substance charge. The circuit court determined the plea was the product of Roedder‘s own volition, without threats or coercion, and undertaken with a full understanding of the rights he was waiving and the maximum possible sentence of life in prison. Roedder does not challenge any of these findings, and under the сircumstances, we conclude he has waived any argument that the circuit court could not have accepted his guilty plea.3
2. Whether the circuit court erred when it determined Roedder‘s enhanced statutory maximum sentence.
a. The 2011 Brown County Convictions
[¶19.] The Legislature has created a means by which the statutory maximum sentence for a felony conviction may be
[¶20.] While there is no statutory definition of “same transaction,” we have held that two or more acts are separate transactions when each act was distinct and completed before the next act began. State v. Anderson, 2005 S.D. 22, ¶ 33, 693 N.W.2d 675, 684. The fact that the acts all occurred at the same location, with the same parties, and were separated by relatively brief periods of time does not necessarily mean the acts were part of the same transaction. See State v. Sieler, 1996 S.D. 114, ¶¶ 17-19, 554 N.W.2d 477, 481-82 (holding that the defendant could be convicted of kidnapping, rape, burglary, murder, and aggravatеd assault as separate transactions even though the crimes all involved one victim, one location, and occurred over a three or four-hour period). Similarly, the plain fact that the acts were the result of connected activities does not make them part of the same transaction. See Anderson, 2005 S.D. 22, ¶ 35, 693 N.W.2d at 684 (explaining that related conduct does not make separate offenses part of the same transaction).
[¶21.] The record relating to Roedder‘s 2011 Brown County convictions establishes four separate criminal acts. During the 2011 change of plea hearing, Roedder agreed that he knowingly possеssed one-half of a gram of methamphetamine, establishing the offense of unauthorized possession of a controlled substance. Roedder also acknowledged a second criminal act in which he possessed a larger quantity of methamphetamine, five-and-one-half ounces, for the purpose of distributing it. This conduct supported his conviction for possession with the intent to distribute a controlled substance. In a third criminal act, Roedder distributed a personal-use quantity of methamphetamine to another individual, providing support for one of his convictions for distribution of a controlled substance. Roedder‘s final criminal act relating to the 2011 convictions came when he distributed an additional, larger quantity of methamphetamine to the same individual to facilitate her retail distribution. This conduct supported a second conviction for distribution of a controlled substance.
[¶22.] Roedder argues the failure of the State to produce additional evidence relating to his 2011 convictions precludes their use for enhancement.4 This argument suggests that because his convictions arose out of a single arrest, they were necessarily part of the same transaction—especially in the absence of a carefully construсted sequence of events establishing otherwise. However, this view overlooks our decisions that recognize multiple convictions arising out of events occurring during a single incident can, in fact, be separate transactions. See Anderson, 2005 S.D. 22, ¶¶ 34-35, 693 N.W.2d at 684 (defendant who distributed drugs one time to an undercover officer but collected payment on successive days committed separate acts); State v. Vatne, 2003 S.D. 31, ¶ 21, 659 N.W.2d 380, 385 (providing two women with methamphetamine twice during the course of an evening was four separate transactions for sentence enhancement under
[¶23.] Indeed, during his March 3, 2011, sentencing hearing, Roedder asked that the convictions be effectively consolidated and considered one transaction for purposes of his initial sentencing. The sentencing court, however, rejected the request, advising Roedder, “[y]our plea agreement was that you would plead guilty to four crimes and that you would be found guilty of four crimes, and you will be sentenced on four crimes.” The court continued:
[I]f you don‘t think you could bе validly convicted of four individual crimes because it was all one occurrence, you should not plead guilty. Because by pleading guilty, you are accepting responsibility for the four different crimes . . . if you thought in your mind today as a legal matter that you could not be convicted of those four separate crimes as a result of what you did that day, by pleading guilty and having me going forward with your sentencing today, you don‘t get to argue about it anymore do you understand that?
Roedder acknowledged the court‘s determination of the separate nature of his offenses, and nevertheless proceeded with sentencing on each of the four charges.
[¶24.] Roedder‘s additional argument that the prior Brown County convictions cannot be considered separate transactions because they were not entered as separate judgments as required by
[¶25.] We, therefore, conclude the four 2011 Brown County convictions were properly considered by the circuit court in determining Roedder‘s enhanced sentence.
b. The Arizona conspiracy conviction.
[¶26.] A further restriction upon the use of prior fеlony convictions to enhance a sentence prevents the use of an out-of-state conviction which would not be a felony “under the laws of this state or under the laws of the United States at the time of conviction of such prior offense.”
[¶27.] Here, the Arizona and South Dakota statutes for conspiracy are
If two or more persons conspire, either to commit any offense against the state of South Dakota, or to defraud the State of South Dakota, or any country, township, school district or municipal corporation in any manner or for any purpose, and one or more of the parties do any act to effect the object of the conspiracy, each of the parties to such cоnspiracy shall be guilty[.]
A person commits conspiracy if, with the intent to promote or aid the commission of an offense, such person agrees with one or more persons that at least one of them or another person will engage in conduct constituting the offense and one of the parties commits an overt act in furtherance of the offense, except that an overt act shall not be required if the object of the conspiracy was to commit any felony upon the person of another, or to commit an offense under § 13-1508 or 13-1704.
[¶28.] Roedder contrasts these statutes and finds comfort in what he alleges is the presence of an essential element in the South Dakota statute that is missing in the Arizona conspiracy law. In Roedder‘s view, the text of
[¶29.] For example, in State v. Stanley, 597 P.2d 998 (Ariz. Ct. App. 1979), the Arizona Court of Appeals held that, “[a] conspiracy to commit armed robbery does not exist unless there is an agreement between two or more persons to commit armed robbery, and an overt action is taken in furtherance of the agreement.” Id. at 1007 (citing
[¶30.] Collateral information contained in the appellate record here further supports the idea that Arizona requires proof of an overt act to sustain a conviction for conspiracy to commit armed robbery. The indictment in Roedder‘s Arizona case reads, in relevant part, as follows:
Richard Roedder, Jr. . . . did . . . conspire with Daniel Van Eeuwen and William Gregory to rob David Calik, while armed with a deadly weapon or dangerous instrument . . . . And in furtherance of the conspiracy the following overt act occurred: 1. Co-conspirators Daniel Van Eeuwen and William Gregory kidnapped victim in Yuma County and demanded money from him at gunpoint.
(Emphasis added).
[¶31.] Though the record relating to the Arizona conspiracy prosecution is not complete beyond this, it seems clear that Roedder was ultimately convicted of the conspiracy charge following a guilty verdict. Under the circumstances, we can discern no error in the circuit court‘s decision to use the Arizona conviction to determine Roedder‘s enhanced statutory maximum sentence.
3. Whether the circuit court erred when it determined Roedder was ineligible for a presumptive fully suspended penitentiary sentence.
[¶32.] Criminal defendants convicted of class 5 or class 6 felonies who are subject to parole supervision are presumptively eligible for a fully suspended penitentiary sentence under the provisions of
If the offender is under the supervision of the Department of Corrections, the court shall order a fully suspended penitentiary sentence . . . . The sentencing court may impose a sentence other than . . . a fully suspended penitentiary sentence if the court finds aggravating circumstances exist that pose a significant risk to the public and require a deрarture from presumptive probation under this section. If a departure is made, the judge shall state on the record at the time of sentencing the aggravating circumstances and the same shall be stated in the dispositional order.
[¶33.] “To depart from a [presumptive] sentence . . . the court must identify aggravating factors that pose a significant risk to the public.” State v. Whitfield, 2015 S.D. 17, ¶ 23, 862 N.W.2d 133, 140. What constitutes aggravating factors is not defined by statute, but we have held that “only circumstances that ‘pose a significant risk to the public and require a departure from [a] presumptive [sentence]’ can justify imposing a sentence other than [the presumptive sentence].” Underwood, 2017 S.D. 3, ¶ 7, 890 N.W.2d at 242 (quoting
[¶34.] Here, Roedder was on parole at the time he was convicted in this case, but the circuit court did not sentence him to a fully suspended penitentiary sentence. Roedder argues the court incorrectly determined
[¶35.] In its sentencing analysis, the circuit court stated that Roedder‘s conviction would ordinarily be eligiblе for a presumptive sentence “as a class 5 felony . . . [b]ut
[¶36.] We have examined the sentencing record further and believe it lacks a sufficient statement of aggravating circumstances that would justify a departure from a presumptive sentence. During the sentencing hearing, the court commented generally on recidivism, mentioned the prior leniency Roedder obtained through a post-conviction sentencing reduction following his 2011 convictions, and referred to the traditional sentencing factor concerning “the protection of society from continued violations of the law.” Though topics such as criminal history and public safety are among the factors that can be relevant to a sentencing court‘s decision to depart from a presumptive sentence, the court‘s statements here are inadequate to constitute a finding that “aggravating circumstances exist that pose a significant risk to the public.”
[¶37.] The fact that the circuit court later accepted the prosecutor‘s statement of aggravating factors does not change the analysis. The exchange came at the end of the sentencing hearing:
[THE PROSECUTOR]: One other thing, Your Honor. In cases like this, even with a habitual offender, the State lists aggravating circumstances in the judgment of conviction. I just want to mаke sure that I can list the proper ones. The State intends on listing the repeated offenses of the same nature, the defendant‘s extensive criminal history, the fact that he committed these crimes while on parole, the fact that he has a conviction for a crime of violence, and the fact that he committed this crime shortly after being released from prison.
[THE COURT]: Well, I think those coincide with what the [c]ourt was trying to say here in sentencing, that those are certainly factors that the [c]ourt has considered.
[¶38.] Read in the context of the entire sentencing record, the prosecutor‘s effort to list aggravating faсtors in an apparent effort to satisfy
[¶39.] In this regard, Roedder‘s case differs from our decisions in Whitfield and State v. Beckwith, 2015 S.D. 76, 871 N.W.2d 57. In both of these cases, the sentencing courts provided statements of aggravating circumstances on the record but simply failеd to restate them in the “dispositional order.” See Whitfield, 2015 S.D. 17, ¶ 20, 862 N.W.2d at 140; Beckwith, 2015 S.D. 76, ¶ 18, 871 N.W.2d at 61-62. In each case, we determined the aggravating circumstances described in the sentencing
[¶40.] Here, we are confronted with the opposite situation--the judgment and sentence contains a purported statement of aggravating circumstances, but it was not provided by the sentencing court on the record. Viewed in this way, Roedder‘s case more сlosely resembles the circumstances in Flowers where the sentencing court overlooked the applicability of
[¶41.] Therefore, Roedder‘s sentence must be vacated and the case remanded to the circuit court for resentencing. The parties are free to develop the sentencing record by presenting aggravating or mitigating information or making sentencing arguments.
[¶42.] In order to foreclose its consideration on remand, we also consider Roedder‘s additional argument that the text of
Conclusion
[¶43.] Roedder‘s guilty plea for violating
[¶44.] We affirm in part, reverse in part, and remand.
[¶45.] GILBERTSON, Chief Justice, and KERN and JENSEN, Justices, concur.