State v. Ainsworth , 879 N.W.2d 762 ( 2016 )

#27593-rem-GAS
2016 S.D. 40IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JAY ALAN AINSWORTH, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
BUTTE COUNTY, SOUTH DAKOTA
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THE HONORABLE MICHAEL W. DAY
Judge
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MARTY J. JACKLEY
Attorney General
JOHN STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TIMOTHY J. BARNAUD
Spearfish, South Dakota Attorney for defendant and
appellant.
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CONSIDERED ON BRIEFS ON
APRIL 25, 2016
OPINION FILED 05/11/16
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SEVERSON, Justice
[¶1.] Jay Ainsworth appeals his sentence for simple assault. He contends
that the sentencing court erred by failing to grant him credit for time served. He
also asserts that his two-year sentence violates the Eighth Amendment to the
United States Constitution. We remand for correction of the sentence.
Background
[¶2.] In the early morning hours of July 1, 2015, law enforcement responded
to a report of a domestic incident at an apartment. Inside the apartment, law
enforcement encountered a man, later identified as Ainsworth, and the victim.
Ainsworth and the victim were on the floor; Ainsworth was holding a cloth to the
victim’s face, which was bleeding. The victim told the responding officer that
Ainsworth had hit and choked her. Ainsworth initially admitted to law enforcement
that he had hit the victim, but he later recanted and stated that the victim fell and
her sharp tooth cut her face. An officer arrested Ainsworth and transported him to
jail.
[¶3.] On July 1, 2015, a complaint was filed charging Ainsworth with
aggravated assault—domestic violence, and the circuit court set bond at $10,000
cash or surety. On July 2, Ainsworth made his initial appearance. At that time,
Ainsworth submitted an application for court-appointed counsel. The court found
Ainsworth to be indigent and appointed counsel to represent him. On July 13, a
grand jury indicted Ainsworth of aggravated assault. The State filed a part II
habitual offender information alleging that Ainsworth had two prior felonies from
other states. On August 18, 2015, the State filed an information charging
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Ainsworth with simple assault—domestic violence and a part II information
alleging two prior domestic assaults. A change of plea hearing was held on August
19, 2015, at which time Ainsworth pleaded guilty to simple assault and admitted to
the convictions in the part II information. The State dismissed the aggravated
assault indictment and the initial habitual offender information.
[¶4.] The circuit court held a sentencing hearing on September 2, 2015. The
court sentenced Ainsworth to two years in the penitentiary with no credit for time
served. On appeal, Ainsworth alleges that the court’s failure to give credit for time
served violates his right to equal protection under the Fourteenth Amendment of
the United States Constitution. He also maintains that the sentence is grossly
disproportionate to the crime and thus unconstitutional under the Eighth
Amendment of the United States Constitution.
Analysis
[¶5.] “Unless there is some constitutional or statutory limitation, sentencing
power is discretionary with the trial judge.” State v. Sorenson, 2000 S.D. 127, ¶ 14,
617 N.W.2d 146, 149. Defendants in South Dakota do not have a statutory right to
credit for time served. Id. However, we have recognized an exception for indigent
defendants. “[W]here incarceration results from a defendant’s financial inability
and failure to post bond . . . ‘The Fourteenth Amendment equal protection clause
requires that credit be given for all presentence custody [that] results from
indigency.’” Id. ¶ 15 (quoting State v. Green, 524 N.W.2d 613, 614 (S.D. 1994)).
“The appointment of counsel is sufficient to establish a defendant as indigent prior
to sentencing, and such indigency dates from the time the court approves an
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application for court-appointed counsel.” Green, 524 N.W.2d at 614. “[T]he inability
of [a] defendant to post bail while awaiting trial is also an indication of presentence
indigency.” Id.
[¶6.] There is no dispute in this case that Ainsworth is indigent. The court
appointed counsel and specifically stated in the order that it was “satisfied that the
Defendant is indigent and financially unable to obtain counsel.” In addition,
Ainsworth did not post bond. The State seems to contend that Ainsworth was
denied bail and that he was kept in custody because he presented a danger to the
community. But Ainsworth was not denied bail; the court set bail at $10,000 cash
or surety. Ainsworth was not in custody for anything other than the incident on
July 1, and there is no indication that he would have remained confined if he could
have posted bond. See Sorenson, 2000 S.D. 127, ¶ 23, 617 N.W.2d at 151(Defendant was not entitled to credit for time served where “his confinement was
not attributable to his financial ability to post bond”). Accordingly, Ainsworth is
entitled to credit for time served.
[¶7.] Despite the circuit court’s error, the State asserts that Ainsworth has
not preserved this issue for appeal. However, at sentencing Ainsworth raised the
issue of credit for time served. He asked the court to grant him credit. Therefore,
we address the issue.
Eighth Amendment
[¶8.] Ainsworth also contends that his sentence is grossly disproportionate
to the crime of simple assault. He maintains that his struggles with depression and
anger issues and his willingness to seek counseling, perform community service,
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and take any other steps to address his behavior render the sentence
unconstitutional. The arguments raised by Ainsworth are those considered under
an abuse of discretion standard rather than under an Eighth Amendment
challenge. See State v. Rice, 2016 S.D. 18, ¶¶ 23-28 877 N.W.2d 75, 83-85. In
contrast, to determine whether a sentence violates the Eighth Amendment, we
must answer a threshold question of whether a sentence appears grossly
disproportionate. Id. ¶ 17, 877 N.W.2d at 81. To answer that question, we
“compare the gravity of the offense—i.e., ‘the offense’s relative position on the
spectrum of all criminality’—to the harshness of the penalty—i.e., ‘the penalty’s
relative position on the spectrum of all permitted punishments.’” Id. ¶ 13, 877
N.W.2d at 80 (quoting State v. Chipps, 2016 S.D. 8, ¶¶ 35-38, 874 N.W.2d 475, 487-
89).
[¶9.] First, we consider the gravity of the offense. Simple assault
encompasses attempts to cause bodily injury and actually causing bodily injury. See
SDCL 22-18-1. It is on the lower end of the criminality spectrum. However, in this
case, the crime is aggravated by Ainsworth’s past convictions. See Rice, 2016 S.D.
18, ¶ 18, 877 N.W.2d at 81. And Ainsworth did inflict injury on the victim. The
harshness of the penalty authorized by the Legislature reflects its position on the
lower end of the criminality spectrum. Simple Assault is a Class 1 misdemeanor
punishable by one year imprisonment and a $2,000 fine. SDCL 22-6-2. As in this
case, after the third offense, simple assault becomes a Class 6 felony punishable by
two years imprisonment and a $4,000 fine. SDCL 22-6-1. These punishments are
on the low end of the spectrum of all permitted punishments. A threshold
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comparison of the gravity of the offense and harshness of the penalty does not
demonstrate an appearance of gross disproportionality, and thus our review ends.
See State v. Coleman, 2015 S.D. 48, ¶ 11, 865 N.W.2d 848, 851.
[¶10.] Finally, we consider whether the court abused its discretion by
sentencing Ainsworth to the maximum sentence. “Within constitutional and
statutory limits, the trial courts of this state exercise broad discretion when
deciding the extent and kind of punishment to be imposed.” Rice, 2016 S.D. 18, ¶
23, 877 N.W.2d at 83. “[A] sentence within the statutory maximum [generally] will
not be disturbed on appeal.” Id. The sentencing court considered each of the things
that Ainsworth brings to the attention of this Court. Although Ainsworth told the
court that he would take steps to address his behavioral issues, the court did not
find him to be credible. It stated at sentencing:
Despite what I’m hearing, you did create a victim by your
actions on July 1 of this year. I have seen no remorse. From
your criminal record, you have been creating victims since 1991.
I believe that you will continue to create victims and that you
are a danger to others.
Ainsworth’s arguments to this Court are no different than what he presented to the
sentencing court, which gave them full consideration. Accordingly, we do not find
that the court abused its discretion by sentencing Ainsworth to the maximum
penalty.
[¶11.] Remanded for correction of Ainsworth’s sentence to give credit for time
served.
[¶12.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
Justices, concur.
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