State v. Red Kettle , 918 N.W.2d 393 ( 2018 )

#28374-a-SLZ
2018 S.D. 66IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BYRON RED KETTLE, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE CRAIG A. PFEIFLE
Judge
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MARTY J. JACKLEY
Attorney General
GRANT FLYNN
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
TODD A. LOVE Attorney for defendant
Rapid City, South Dakota and appellant.
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CONSIDERED ON BRIEFS ON
AUGUST 27, 2018
OPINION FILED 09/19/18
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ZINTER, Justice
[¶1.] Twenty-eight years ago, this Court reversed a defendant’s sentence
and remanded the case for resentencing consistent with the Court’s decision. For
reasons not disclosed in this record, the defendant did not get resentenced until
2017. In a pro-se motion made before the 2017 sentence-correction hearing, the
defendant requested court-appointed counsel and argued for his release because the
State failed to timely proceed after remand. The circuit court did not address these
additional requests; instead, it proceeded to resentence the defendant as directed in
this Court’s 1990 decision. The defendant now appeals, asserting he had a Sixth
Amendment right to counsel in the 2017 sentence-correction proceeding. We
disagree and affirm.
Facts and Procedural History
[¶2.] In 1988, Byron Red Kettle pleaded guilty to kidnapping and assault.
He was sentenced to life in prison for the kidnapping and thirty years for the
assault. The circuit court ordered the sentences to run consecutively to
corresponding federal sentences Red Kettle had previously received for the same
kidnapping and assault.
[¶3.] Red Kettle appealed, claiming the sentencing court erred in ordering
his state sentences to run consecutively to his federal sentences. This Court
reversed and remanded the case for resentencing. State v. Red Kettle, 452 N.W.2d
774, 776–77 (S.D. 1990). We held that a South Dakota state court may not impose a
consecutive sentence in state court when a defendant has been sentenced for the
same offense in federal court. Id. at 775. Because “Red Kettle’s state sentences
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must be concurrent, rather than consecutive, to the respective federal sentences[,]”
we directed the circuit court “to resentence Red Kettle consistent with this opinion.”
Id. at 776–77. Our remitter was issued on March 28, 1990.
[¶4.] In September 2016, Red Kettle informed the Pennington County Clerk
of Courts by letter that the circuit court had not resentenced him as directed in this
Court’s 1990 decision. He also filed a pro-se motion requesting the circuit court to
order his release because the court had failed to resentence him in a timely manner.
His motion included a request for court-appointed counsel.
[¶5.] The circuit court held a resentencing hearing on July 20, 2017, and
Red Kettle appeared telephonically without counsel. The court indicated it
intended to resentence him consistent with this Court’s 1990 decision. The court
subsequently entered an amended judgment of conviction, effective January 11,
1989, ordering Red Kettle’s sentences to run concurrently (rather than
consecutively) to the corresponding federal sentences. The court did not address
any other matters, including Red Kettle’s motion to be released and request for
court-appointed counsel.
[¶6.] Red Kettle now appeals. He argues that the circuit court’s failure to
provide court-appointed counsel in the sentence-correction proceeding violated his
Sixth Amendment right to counsel.
Decision
[¶7.] The Sixth Amendment requires the appointment of counsel for an
indigent defendant at every critical stage in a criminal proceeding. United States v.
Wade, 388 U.S. 218, 226–27, 87 S. Ct. 1926, 1932, 18 L. Ed. 2d 1149 (1967); Mempa
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v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257, 19 L. Ed. 2d 336 (1967). What
constitutes a critical stage depends upon whether the “substantial rights of a
criminal accused may be affected.” Mempa, 389 U.S. at 134, 88 S. Ct. at 257. More
specifically, courts examine “whether potential substantial prejudice to defendant’s
rights inheres in the particular confrontation and the ability of counsel to help avoid
that prejudice[,]” Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 2002, 26 L. Ed.
2d 387 (1970) (quoting Wade, 388 U.S. at 227, 87 S. Ct. at 1932), and whether the
proceeding is of the type “where certain rights may be sacrificed or lost[.]” Id.(quoting Hamilton v. Alabama, 368 U.S. 52, 54, 82 S. Ct. 157, 158–59, 7 L. Ed. 2d
114 (1961)). We, therefore, examine the nature of the proceeding below.
[¶8.] Certainly, Red Kettle’s sentences should have been corrected earlier
than twenty-seven years after this Court’s 1990 decision. However, the twenty-
seven-year delay did not change the limited nature of the resentencing proceeding
mandated by this Court’s 1990 remand. Indeed, “[w]hen the scope of remand is
limited, . . . the lower tribunal is only authorized to carry out the appellate court’s
mandate.” State v. Bausch, 2017 S.D. 86, ¶ 20, 905 N.W.2d 314, 319. Further, the
circuit court limited the proceeding to that one action required by our remand—
correct Red Kettle’s sentences so they were concurrent instead of consecutive.
[¶9.] Considering the limited scope of the sentence-correction proceeding, it
was not a critical stage in which Red Kettle had a Sixth Amendment right to court-
appointed counsel. Simply correcting the sentences from consecutive to concurrent
did not require “the aid of counsel in marshaling the facts, introducing evidence of
mitigating circumstances,” or presenting a case as to sentencing. See Mempa, 389
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U.S. at 135, 88 S. Ct. at 257. Similarly, the absence of counsel created neither the
potential to prejudice Red Kettle’s right to have his sentence corrected nor a risk
that Red Kettle would irretrievably sacrifice or lose other rights. See White v.
Maryland, 373 U.S. 59, 60, 83 S. Ct. 1050, 1051, 10 L. Ed. 2d 193 (1963) (citing
Hamilton, 368 U.S. at 53–54, 82 S. Ct. at 158) (explaining that a critical stage is one
“where rights are preserved or lost”)
[¶10.] Red Kettle, however, argues that even if the circuit court’s authority
was limited on remand, he had a right to the assistance of counsel to present his
additional argument for release from imprisonment because “the excessive delay in
resentencing violated his Constitutional rights.” But Red Kettle’s requested relief is
based on an allegation of a constitutional violation occurring after his conviction,
and that type of relief requires a separate challenge to the legality of his current
confinement. Red Kettle must pursue that type of collateral attack on the judgment
of conviction using some kind of postconviction remedy such as habeas corpus. See
SDCL 21-27-1.
[¶11.] We conclude Red Kettle had no Sixth Amendment right to counsel in
the circuit court proceeding to correct his sentences as directed in Red Kettle, 452
N.W.2d at 776–77. We affirm.
[¶12.] GILBERTSON, Chief Justice, KERN, JENSEN, and SALTER,
Justices, concur.
 We note that if Red Kettle has a non-frivolous habeas corpus claim, a
question on which we express no opinion, the habeas court may appoint
counsel under SDCL 21-27-4 if Red Kettle can satisfy all other statutory
requirements. See State v. Reed, 2010 S.D. 105, ¶ 13, 793 N.W.2d 63, 67.
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