State v. Smith , 2014 S.D. LEXIS 13 ( 2014 )

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2014 S.D. 15
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MARK SMITH, 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 THOMAS L. TRIMBLE
Judge
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MARTY J. JACKLEY
Attorney General
ELLIE J. BAILEY
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TODD A. LOVE
Bettmann Hogue Law Firm, Prof. LLC
Rapid City, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON FEBRUARY 18, 2014
OPINION FILED 03/12/14
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GILBERTSON, Chief Justice
[¶1.] In this appeal, Defendant Mark Smith challenges the validity of a Part
II Information filed against him that alleged Smith had previously been convicted of
two DUI offenses. He claims the predicate convictions were invalid due to the
courts’ lack of subject matter jurisdiction. Smith also appeals the circuit court’s
denial of his request for a suspended imposition of sentence, claiming that the
statute relied on by the court violated the constitutional prohibition against ex post
facto legislation. We affirm.
Facts and Procedural History
[¶2.] Smith was arrested in April 2012, suspected of driving under the
influence of alcohol. A grand jury indicted Smith for driving while under the
influence of alcohol in violation of SDCL 32-23-1(2), or alternatively, for driving
while having .08% or more by weight of alcohol in his blood in violation of SDCL 32-
23-1(1). The grand jury also indicted Smith for obstructing a public officer in
violation of SDCL 22-11-6. In June 2012, a Part II Information was filed alleging
that Smith had been convicted of two prior DUI offenses.
[¶3.] In 2008, Smith was charged with alternative counts of driving or
control of a vehicle while under the influence of alcohol or driving or control of a
vehicle while having .08% or more by weight of alcohol in his blood. The record
reflects that the prosecution in that case handed the information to the judge at the
arraignment hearing. Smith pleaded guilty and was granted a suspended
imposition of sentence.
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[¶4.] In 2009, Smith was again arrested and charged with the same
alternative offenses, stemming from a separate driving incident. The record does
not indicate how the information was filed with the court, but the judgment of
conviction in that case states that an information was filed with the court on the
same day as the arraignment. Smith pleaded guilty and was sentenced to 180 days
in jail, with all jail time suspended on certain conditions.
[¶5.] Smith moved to dismiss the 2012 Part II Information. He argued that
the 2008 and 2009 convictions were invalid for enhancement purposes because the
magistrate courts in each of the actions failed to obtain subject matter jurisdiction
over the actions. Specifically, Smith argued that the judges’ failure to strictly follow
procedure meant the informations were not validly filed and the courts therefore
lacked jurisdiction. Following a hearing on the matter, the circuit court denied the
motion. In October 2012, the circuit court entered its findings of fact and
conclusions of law. The circuit court found that in each prior conviction, Smith was
fully advised of his constitutional and statutory rights and subsequently waived
those rights. The court also concluded that the State properly filed an information
with the court at the time of the hearings in both of the prior cases before Smith
entered his pleas to the charged offenses.
[¶6.] In February 2013, Smith pleaded guilty to driving or control of a motor
vehicle while having .08% or more by weight of alcohol in his blood as charged in
the 2012 indictment. Smith also admitted to the Part II Information. At the
sentencing hearing, the circuit court took under consideration Smith’s request to be
granted a suspended imposition of sentence. The circuit court ultimately denied
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Smith’s request, ruling that Smith was ineligible for a suspended imposition of
sentence pursuant to SDCL 23A-27-13. Smith was sentenced to two years in the
penitentiary, with the execution of sentence suspended on certain conditions.
[¶7.] Smith appeals raising two issues:
1. Whether the circuit court erred in denying Smith’s
motion to dismiss the Part II Information based on the
court’s lack of jurisdiction in the underlying convictions.
2. Whether application of SDCL 23A-27-13 violated the
constitutional prohibition against ex post facto
legislation.
Analysis and Decision
[¶8.] 1. Whether the circuit court erred in denying Smith’s motion
to dismiss the Part II Information based on the court’s lack
of jurisdiction in the underlying convictions.
[¶9.] Smith first argues that the circuit court erred in denying his motion to
dismiss the Part II Information in this case. He asserts that the magistrate judges
in both of his underlying convictions failed to “note thereon the filing date” of the
information, as mandated by SDCL 15-6-5(e). Smith contends that this failure
made the predicate convictions invalid for lack of jurisdiction. Accordingly, Smith
asks this Court to reverse the circuit court decision and order the dismissal of the
Part II Information. This ultimately raises an issue of jurisdiction, which we review
de novo. State v. Koch, 2012 S.D. 59, ¶ 4, 818 N.W.2d 793, 794 (citing Sazama v.
State ex rel. Muilenberg, 2007 S.D. 17, ¶ 9, 729 N.W.2d 335, 340).
[¶10.] SDCL 23A-6-3 states in part: “All informations shall be filed with the
court having jurisdiction of the offense by the prosecuting attorney prior to
arraignment.” SDCL 15-6-5(e) further provides that:
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The filing of pleadings and other papers with the court as
required by this chapter shall be made by filing them with the
clerk of the court, except that the judge may permit the papers
to be filed with him, in which event he shall note thereon the
filing date and forthwith transmit them to the office of the clerk.
Smith asserts that the judges in both of his underlying convictions failed to
personally “note thereon the date” before transmitting the informations to the office
of the clerk. He argues that this failure robbed the court of subject matter
jurisdiction. We disagree.
[¶11.] In both State v. Arguello, 519 N.W.2d 326 (S.D. 1994) and State v.
Heftel, 513 N.W.2d 397 (S.D. 1994), this Court examined the procedure in question
and held that the failure of a judge to personally note the filing date on the
information does not deprive the court of jurisdiction. As in this case, the
informations in Arguello and Heftel were given to the court during the course of the
arraignment, but date-stamped by the clerk of courts at a later time. Arguello, 519
N.W.2d at 328; Heftel, 513 N.W.2d at 402. In both Heftel and Arguello, we
distinguished the effect of failure to strictly comply with SDCL 15-6-5(e) with the
failure of the State to file an information, which had been held to deprive the court
of jurisdiction. Heftel, 513 N.W.2d at 402 (citation omitted); Arguello, 519 N.W.2d
at 329 (citation omitted).
[¶12.] We noted that “[t]he purpose of an Indictment or Information is to
apprise a defendant of the nature of the charges against him with sufficient
specificity so that he may defend against the charges and may later plead the
Indictment or Information as a bar to a subsequent charge.” Arguello, 519 N.W.2d
at 328 (citations omitted). Therefore, “when the purpose of the act has been fulfilled
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and the defendant can claim ‘no surprise, prejudice or disadvantage’” we will not
invalidate the jurisdiction of the court simply because the judge failed to personally
note the date on the information. See id. (quoting Heftel, 513 N.W.2d at 402-03).
[¶13.] Contrary to our holdings in Heftel and Arguello, Smith argues that the
failure of the judge to personally note the time of filing with the court is a
jurisdictional error, depriving the court of the ability to hear a case. Smith cites no
authority to directly support this proposition. Instead, he cites to In re Gillespi, 397
N.W.2d 476 (S.D. 1986), to argue that “failure to comply with the procedural
requirements robs the court of jurisdiction.” Gillespi does not stand for the rule as
so broadly stated by Smith, nor does Smith indicate in any way that Gillespi should
be read to modify or overrule our decisions in Heftel and Arguello. 1
[¶14.] Smith does not claim any other error in the lower courts’ procedures.
The settled law of this Court indicates that the claimed error does not rise to the
level of jurisdictional error. We therefore conclude that the courts in Smith’s
1. In Gillespi, this Court found there was no personal jurisdiction over Beadle
County or the Beadle County Treasurer where those parties were not
properly served by the opposing party. 397 N.W.2d at 477-78. Gillespi is not
applicable in this case, where Smith challenges the subject matter
jurisdiction of the court. Failure to serve a party is materially
distinguishable from the procedural issue at bar because failure to serve may
raise issues of surprise, prejudice, and disadvantage. See Straub v. Lyman
Land & Inv. Co., 31 S.D. 571, 141 N.W.2d 979, 980 (1913) (noting that proper
service of process is “reasonably calculated to bring notice of the
commencement of the action home to the defendant.”). We have specifically
found the issue of unfair surprise is not present when a judge simply fails to
note the date on the information before passing it to the clerk’s office as
mandated by SDCL 15-6-5(e). See Heftel, 513 N.W.2d at 402 (citing State v.
Graycek, 368 N.W.2d 815, 818 (1985)); Arguello, 519 N.W.2d at 328 (citation
omitted).
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predicate convictions assumed proper jurisdiction over the cases and that the circuit
court did not err in denying Smith’s motion to dismiss the Part II Information.
2. Whether application of SDCL 23A-27-13 violated the
constitutional prohibition against ex post facto legislation.
[¶15.] Smith next argues that the circuit court failed to exercise its discretion
by denying his request for a suspended imposition of sentence. The circuit court
held that Smith had already received a suspended imposition of sentence in 2008,
and was therefore ineligible for another suspended imposition of sentence pursuant
to SDCL 23A-27-13. Smith contends that the 2010 amendment to SDCL 23A-27-13,
as applied in this case, violates the constitutional prohibition on ex post facto
legislation. Smith asks this Court to remand the case with instructions to
reconsider his request for a suspended imposition of sentence, without applying the
2010 amendment. This Court reviews de novo Smith’s challenge to the
constitutionality of SDCL 23A-27-13. See State v. Schmidt, 2012 S.D. 77, ¶ 12, 825
N.W.2d 889, 894 (citing State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585).
[¶16.] The South Dakota Constitution, article VI, § 12 provides that “[n]o ex
post facto law . . . shall be passed.” We have explained this prohibition by stating:
[I]t is settled that criminal or penal legislation amending
existing law may not change the legal consequences of acts
completed before its effective date, a statute, however, is not
rendered unconstitutional as an ex post facto law merely
because it might operate on a fact or status preexisting the
effective date of the legislation, as long as its punitive features
apply only to acts committed after the statutory proscription
becomes effective.
State v. Arguello, 2002 S.D. 157, ¶ 14, 655 N.W.2d 451, 454 (quoting Lewis v. Class,
1997 S.D. 67, ¶ 23, 565 N.W.2d 61, 65).
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[¶17.] In 2010, the Legislature amended SDCL 23A-27-13, adding “No person
who has previously been granted . . . a suspended imposition of sentence is eligible
to be granted a second suspended imposition of sentence.” 2 See 2010 S.D. Sess.
Laws ch. 128, § 1. Smith argues that the 2010 amendment retroactively increased
the punitive effect of his 2008 conviction by denying him the “benefits and
opportunities that were granted to him in 2008 by the magistrate court.” He
asserts that at the time of his 2008 conviction, he “had the expectation that should
he ever be convicted of a felony offense, he would be eligible for a suspended
imposition of sentence.” Accordingly, Smith argues that the 2010 amendment
violates the ex post facto clause by adding consequences to his 2008 conviction that
did not exist at the time of conviction. Smith’s arguments are not convincing.
[¶18.] The 2010 amendment did not alter Smith’s suspended imposition of
sentence in 2008. Rather, any punitive effect of the amendment only operated upon
2. As amended, SDCL 23A-27-13 provides:
Upon receiving a verdict or plea of guilty for a misdemeanor or felony
not punishable by death or life imprisonment by a person never before
convicted of a crime which at the time of conviction thereof would
constitute a felony in this state, a court having jurisdiction of the
defendant, if satisfied that the ends of justice and the best interest of
the public as well as the defendant will be served thereby, may,
without entering a judgment of guilt, and with the consent of the
defendant, suspend the imposition of sentence and place the defendant
on probation for such period and upon such terms and conditions as
the court may deem best. No person who has previously been granted,
whether in this state or any other, a suspended imposition of sentence
is eligible to be granted a second suspended imposition of sentence. A
court may revoke such suspension at any time during the probationary
period and impose and execute sentence without diminishment or
credit for any of the probationary period.
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Smith’s 2013 conviction, guiding the court’s determination of the range of potential
penalties for Smith’s third arrest and conviction for driving under the influence. In
that regard, the 2010 amendment has a similar effect as an amendment to a
penalty-enhancement statute. We have rejected ex post facto challenges to
amended penalty-enhancement statutes, because they simply “appl[y] past
convictions to determine punishment for a conviction that occurs down the road”
such that “the punishment is for the then existing conviction and not prior
convictions.” See Arguello, 2002 S.D. 157, ¶¶ 11-15, 655 N.W.2d at 454; State v.
Nilson, 364 N.W.2d 532, 533 (S.D. 1985). 3 Similarly, the 2010 amendment in this
case only changed the legal consequences of Smith’s third DUI arrest and
conviction, which happened after the enactment of the amendment. Therefore, the
amendment is not retroactive in effect and does not implicate the ex post facto
clause.
[¶19.] Furthermore, Smith’s assertion that the 2010 amendment “directly
denied Smith benefits and opportunities that were granted to him in 2008 by the
3. In Arguello, the defendant was convicted of driving under the influence in
1993 and 1995, at which time the look-back period for sentencing
enhancement was only five years. 2002 S.D. 157, ¶¶ 2-3, 655 N.W.2d at 452.
In July 2001, the look-back period was extended to ten years. Id. ¶ 3. The
defendant was convicted of a third DUI in August 2001, and the circuit court
enhanced his penalty based on his 1993 and 1995 convictions. Id. ¶ 2. This
court unanimously held that the punishment was “imposed for the current
offense only” and therefore did not violate the prohibition on ex post facto
legislation. Id. ¶¶ 12-13. Nilson involved a similar challenge when a
habitual-offender statute allowed prior convictions to be used for five years,
rather than four. 364 N.W.2d 532, 532-34. In Nilson, we stated that
“[s]ubsequent offender provisions . . . do not undertake to punish again for
the prior offenses.” Id. at 533 (citation omitted).
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magistrate court” is misplaced. He argues that he had an “expectation” in his
eligibility for leniency in future convictions. Smith misconstrues the nature of
suspended imposition of sentencing. As we have stated, “[t]he granting of
suspended imposition of sentence is strictly a matter of grace and rests solely within
the discretion of the court. It is not a matter of right or entitlement[.]” State v.
A.B., 2008 S.D. 117, ¶ 25, 758 N.W.2d 910, 917 (quoting State v. Divan, 2006 S.D.
105, ¶ 16, 724 N.W.2d 865, 872). Because leniency is discretionary, Smith cannot
claim that any future “benefits and opportunities” were “granted” to him in 2008. It
was always within the sole discretion of the court to deny a request for the
suspended imposition of sentence. Thus, Smith’s assertion that the amendment
acted as an additional penalty by taking away these alleged “benefits and
opportunities” is without support.
[¶20.] The 2010 amendment to SDCL 23A-27-13 is prospective in effect. In
this case, its only effect was upon the sentencing for Smith’s third DUI arrest,
which occurred after the amendment was enacted. Contrary to Smith’s assertions,
the amendment did not retroactively deprive Smith of any right allegedly granted to
him in 2008. Accordingly, the circuit court’s application of SDCL 23A-27-13 did not
violate the constitutional prohibition against ex post facto legislation.
Conclusion
[¶21.] Based on the above stated reasons, we affirm.
[¶22.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
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