State v. Pentecost , 868 N.W.2d 590 ( 2015 )

#27200-rem-GAS
2015 S.D. 71
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOHN T. PENTECOST, Defendant and Appellant.
****
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
ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
MATTHEW T. STEPHENS
Rapid City, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON APRIL 20, 2015
OPINION FILED 08/12/15
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SEVERSON, Justice
[¶1.] John Pentecost pleaded guilty to burglary in November 2012 and was
sentenced in December 2012. His attorney attempted to appeal but failed to file a
notice of appeal within the time provided by statute. Pentecost was resentenced in
August 2014 and now attempts to appeal based on the amended judgment. He
asserts that the circuit court accepted his guilty plea to second-degree burglary
without establishing a factual basis. This Court issued an order to show cause why
the appeal should not be dismissed on the grounds that no appeal of right exists
from the judgment sought to be appealed. Based on the responses to the order to
show cause, we remand.
Background
[¶2.] On April 19, 2012, Lisa Sea contacted law enforcement to report that
her ex-husband John Pentecost was in her home uninvited. Pentecost told Sea, via
text message, that he was in her residence and had changed the locks. Sea and
Pentecost had shared the residence prior to their divorce in April of 2011. Sea
advised police that Pentecost had not lived in the home for over a year. Law
enforcement officers arrived at the scene and were able to apprehend Pentecost.
Law enforcement observed that Pentecost brought a number of personal items into
the residence with him including a laptop computer, notepad, multiple bags,
suitcases, and clothing. Pentecost’s car was parked outside the residence. He
informed law enforcement that he had a shotgun in the vehicle. Law enforcement
removed the shotgun along with two boxes of shells.
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[¶3.] On April 22, 2012, Sea contacted law enforcement a second time to
report discovering a plastic bag in her garage. She suspected that Pentecost left it
there. The bag contained zip ties, a roll of duct tape, and rope. Receipts from
Menard’s, Safeway, and Cabela’s were also inside. The Menard’s receipt showed a
purchase of zip ties, cable wraps, and rope; the Safeway receipt showed duct tape
and electrical tape purchases. The Cabela’s receipt in the bag reflected the
purchase of the shotgun found in Pentecost’s vehicle. The Menard’s and Cabela’s
receipts indicated that they were purchased with a credit card bearing the same last
four digits of a credit card in Pentecost’s wallet. The Safeway purchase was made
with cash.
[¶4.] Pentecost was charged with second degree burglary, stalking, and
threatening or harassing contact. At arraignment on May 21, 2012, he pleaded not
guilty to all charges. The State subsequently offered Pentecost a plea agreement.
In exchange for pleading guilty to burglary and paying the costs of prosecution and
restitution, the State would dismiss the remaining charges and recommend no more
than a six-year sentence. Judge Craig Pfeifle held a change-of-plea hearing on
November 5, 2012; Pentecost pleaded guilty. The court accepted his plea, finding it
supported by a factual basis. The court filed a judgment on December 27, 2012.
Pentecost’s attorney (who is not the attorney on this appeal) filed a notice of appeal
on January 29, 2013, missing the deadline for appeal by one day. This Court
dismissed the appeal, #26614, for lack of jurisdiction due to the untimely filing.
Pentecost then petitioned for writ of habeas corpus. The habeas petition was placed
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in his criminal file rather than filing it as a separate civil action.* There is no
indication in the record that notification was sent to the State, and the State did not
file a return. A letter from the presiding circuit court judge, Jeff Davis, was also
filed, remanding the case for resentencing “because the two year jurisdictional time
frame ha[d] not ended.”
[¶5.] A hearing was held on July 31, 2014, for the purpose of resentencing.
The day before the hearing, Pentecost filed a motion to withdraw his guilty plea.
The motion alleged that there was an insufficient factual basis to accept Pentecost’s
plea. The court denied the motion, finding that a sufficient factual basis existed.
On August 15, 2014, Judge Pfeifle issued an amended judgment resentencing
Pentecost, imposing the same sentence as in 2012. Pentecost appeals from the
amended judgment.
Analysis
[¶6.] Pentecost attempted to appeal the original judgment but missed the
deadline to file a notice of appeal, which is a jurisdictional barrier for this Court to
consider an appeal. See SDCL 15-26A-6; People ex rel. S.D. Dep’t of Soc. Servs.,
2014 S.D. 95, ¶ 8 & n.2, 857 N.W.2d 886, 888-89 & n.2 (discussing this Court’s
appellate jurisdiction and the exception applied in criminal cases). We have
explained before that where a direct appeal is no longer an option, it leaves “habeas
corpus, a motion to correct an illegal sentence, or a motion to withdraw a guilty plea
* Since habeas proceedings are separate civil actions, they should be filed as
separate civil actions. See Steiner v. Weber, 2011 S.D. 40, ¶ 5, 815 N.W.2d
549, 551.
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as possible avenues for post-conviction relief.” State v. Anderson, 2005 S.D. 22, ¶
24, 693 N.W.2d 675, 682. Pentecost attempted a habeas corpus proceeding claiming
a constitutional violation based on ineffective assistance of counsel because his
attorney failed to timely file a notice of appeal. Pentecost’s habeas corpus
proceedings were not completed, but the presiding circuit judge, Jeff Davis, ordered
resentencing before Judge Pfeifle, who originally sentenced Pentecost. This was
presumably under SDCL 23A-31-1 as he referenced the time period the court had to
reduce a sentence, which is contained in that statute.
[¶7.] SDCL 23A-31-1 provides the authority for courts to correct an illegal
sentence at any time or to reduce a sentence within two years after imposing the
sentence. It states:
A court may correct an illegal sentence at any time and may
correct a sentence imposed in an illegal manner within the time
provided in this section for the reduction of sentence. A court
may reduce a sentence:
(1) Within two years after the sentence is imposed;
(2) Within one hundred twenty days after receipt by the
court of a remittitur issued upon affirmance of the
judgment or dismissal of the appeal; or
(3) Within one hundred twenty days after entry of any
order or judgment of the Supreme Court denying
review of, or having the effect of upholding, a
judgment of conviction;
whichever is later. A court may also reduce a sentence upon
revocation of probation or suspension of sentence as provided by
law. The remedies provided by this section are not a substitute
for nor do they affect any remedies incident to post-conviction
proceedings.
SDCL 23A-31-1.
[¶8.] This case does not fit within the provisions of SDCL 23A-31-1.
Examples of “[i]llegal sentences [include] those which exceed the relevant statutory
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maximum limits or violate double jeopardy or are ambiguous or internally
inconsistent.” State v. Kramer, 2008 S.D. 73, ¶ 12, 754 N.W.2d 655, 658 (quoting
State v. Sieler, 1996 S.D. 114, ¶ 7, 554 N.W.2d 477, 480). Moreover, “[a] defendant’s
motion to correct an illegal sentence does not permit a challenge to the underlying
conviction.” Id. ¶ 7, 754 N.W.2d at 657. “Rather, ‘it is an attack on the sentence or
the sentencing procedure.’” Id. (quoting State v. Oscarson, 898 A.2d 123, 126 (Vt.
2006)). An example of a “[s]entence[] imposed in an illegal manner [is one that is]
within the relevant statutory limits, but [is] imposed in a way which violates
defendant’s right to not have his sentence enhanced once the defendant has left the
judicial branch of government and is within the jurisdiction of the executive
branch.” State v. Thayer, 2006 S.D. 40, ¶ 14, 713 N.W.2d 608, 613 (quoting Sieler,
1996 S.D. 114, ¶ 6, 554 N.W.2d at 479). Pentecost’s sentence does not appear to fall
into these categories as either an illegal sentence or a sentence imposed in an illegal
manner. Further, under SDCL 23A-31-1 the court has discretion to reduce a
sentence, but it did not do so in this case. Instead, it imposed the same sentence,
and Pentecost does not appeal that decision.
[¶9.] Further, the circuit court denied Pentecost’s motion to withdraw his
plea. “The decision to allow a defendant to withdraw a guilty plea is a matter solely
within the discretion of the trial court and is reviewed under an abuse of discretion
standard.” State v. Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849. In this
appeal Pentecost does not contend that the circuit court abused its discretion by
denying his motion to withdraw his plea.
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[¶10.] Pentecost does not address how this Court has jurisdiction to consider
this appeal. He jumps straight to the merits of the case. First, he contends that the
circuit court failed to adequately address a potential defense with him when it
originally took his plea. Second, he contends that the circuit court failed to
establish a sufficient factual basis to support that he entered the residence with
intent to commit a crime—a necessary element to burglary. However, it does not
appear that we have the authority to review the merits of this case based on SDCL
23A-31-1 or his motion to withdraw his plea, which was denied.
[¶11.] “This Court takes notice of jurisdictional questions regardless of
whether the parties present them.” People ex rel. S.D. Dep’t of Soc. Servs., 2011
S.D. 26, ¶ 4, 799 N.W.2d 408, 409 (per curiam). We issued an order to show cause
why the appeal should not be dismissed on the grounds that no appeal of right
exists from the judgment sought to be appealed. In response to the order, the State
asserts that SDCL 23A-27-51 is applicable in this case and would allow us to review
this appeal. SDCL 23A-27-51 provides:
If the court finds that an applicant was denied the right to an
appeal from an original conviction in violation of the
Constitution of the United States or the Constitution of South
Dakota, the court shall issue a new judgment and impose the
same sentence if such relief is requested within a reasonable
time and an adequate record of the original trial proceeding is
available for review. The court shall advise the applicant of the
following:
(1) The rights associated with an appeal from a criminal
conviction; and
(2) The time for filing a notice of appeal from the
reimposed judgment and sentence.
Nothing in this section limits an applicant’s right to habeas
corpus.
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However, the circuit court must make certain determinations before proceeding
under SDCL 23A-27-51, and it did not do so in this case. The court must initially
determine whether “an applicant was denied the right to an appeal from an original
conviction in violation of the Constitution of the United States or the Constitution of
South Dakota[.]” SDCL 23A-27-51. Then, the court “shall issue a new judgment
and impose the same sentence if such relief is requested within a reasonable time
and an adequate record of the original trial proceeding is available for review.” Id.
The record does not show that the parties informed Judge Pfeifle prior to
resentencing that they were proceeding under SDCL 23A-27-51. Thus, the court did
not have the opportunity to address whether a constitutional violation occurred,
whether the relief was requested within a reasonable time, or whether an adequate
record was available for review. Therefore, we remand for the circuit court to enter
findings on these issues or to hold further proceedings on the matter.
[¶12.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
Justices, concur.
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