State v. Kettle ( 1990 )

SABERS, Justice.

Byron Red Kettle claims that the trial court erred 1) in setting his state sentences to run consecutively to federal sentences for the same offenses, and 2) in refusing to appoint a psychiatric expert to assist in his defense.

Facts

After robbing the Conomart Store at Box Elder, South Dakota, on September 30, 1987, Red Kettle kidnapped the clerk of the store. Red Kettle fled to Nebraska, where the clerk eventually escaped and Red Kettle was captured. While Red Kettle was being held in the Pennington County jail under federal kidnapping charges, he attacked a correction officer in an attempt to escape.

Red Kettle pled guilty in federal court to charges of kidnapping the store clerk in violation of 18 U.S.C. § 1201(a)(1) (1988)¹ and assaulting a federal officer in violation of 18 U.S.C.A. § 111 (West 1969) (amended 1988).² He received a sentence of “natural life” for the kidnapping and a sentence of seven and one-half years in prison for the assault; the latter to run consecutively to the former.

Red Kettle was subsequently prosecuted in state court for the same kidnapping and assault. The kidnapping charge was under SDCL 22-19-1(2)³ and the assault charge was under SDCL 22 — 18—1.1(3).⁴ He moved for appointment of a psychiatric expert to assist in the preparation of his defense. The trial court denied the motion, prompting Red Kettle to plead guilty to the kidnapping and assault charges. The trial court sentenced Red Kettle to life in prison for the kidnapping and to thirty years in prison for the assault. Both sentences are to run consecutively to their corresponding federal sentence. Red Kettle appeals, claiming the trial court exceeded its authority in making the sentences run consecutively to the federal sentences.⁵ We agree.

1. Sentencing

A state and federal court may each sentence a defendant for the commission of a single act constituting an offense under both state and federal law. Bartkus v. Illinois, 859 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). Those sentences may run consecutively when the state and federal offenses are different. See United States v. Shillingford, 586 F.2d 372 (5th Cir.1978); cf. State v. Swallow, 405 N.W.2d 29 (S.D.1987) (Sentence for South Dakota murder conviction allowed to run consecutively to sentence for separate murder conviction in Texas).

When a state and federal offense are the same, however, a trial court may not impose consecutive sentences. A court may not exceed statutory boundaries when imposing a sentence. State v. Huftile, 367 N.W.2d 193 (S.D.1985). “Courts can only impose those sentences authorized by the legislature.” Williams v. State, 692 P.2d 233; 235 (Wyo.1984). The South Dakota Legislature has authorized the imposition of consecutive sentences, but only when “a defendant has been convicted of two or more offenses[.]” SDCL 22-6-6.1. Therefore, if a defendant has been convicted in state court of the same offense he was convicted of in federal court, a South Dakota court has no statutory authority to impose consecutive sentences.

To determine whether a defendant has been convicted of the same offense or different offenses, this court has adopted the “same evidence” test:

[T]he ... test requires this court to look to the “substance” of the offenses and to determine whether the “essential elements” are to be proved by the same evidence. In determining whether the elements are substantially the same, the court should take into consideration the respective purposes of the statutes as they relate to the particular course of conduct of the defendant.

State v. West, 260 N.W.2d 215, 221 (S.D.1977). In other words, the offenses are the same when, considering the purposes of the statute, the elements to be proved are substantially the same.

The federal and state kidnapping offenses are substantially the same. The state offense requires proof that the defendant 1) seized, confined, inveigled, decoyed, abducted, or carried away a person and 2) held that person for the purpose of facilitating the commission of a felony or flight thereafter. The elements of the federal kidnapping offense are that the defendant 1) unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away a person and 2) held the person for ransom or reward or otherwise. The state element requiring proof of a purpose to facilitate a felony fits within the “or otherwise,” language of the federal statute which was added to the statute to cover kidnapping, “not only for reward, but for any other reason.” United States v. Satterfield, 743 F.2d 827, 850 (11th Cir.1984) (emphasis added) (quoting Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 397, 80 L.Ed. 522, 525 (1936)), cert. denied 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985). Consequently, evidence that Red Kettle abducted the clerk to prevent her from identifying him as the robber proves both offenses. Furthermore, the respective purposes of the state and federal statutes, “as they relate to the particular course of conduct of the defendant,” are substantially the same — to prevent and punish kidnapping.

In determining whether the offenses are the same, the element of the federal offense requiring that the kidnapped person be transported in interstate or foreign commerce is ignored. In West, supra at 222, we concluded that the jurisdictional requirement in the federal statute that the property obtained by fraud be transported in interstate or foreign commerce was not an essential element of the offense. We reach the same conclusion in this case.

The state and federal assault charges also constitute the same offense. The state offense requires proof that the defendant 1) attempted to cause or caused bodily injury, 2) to a law enforcement officer, 3) engaged in the performance of his duties. The federal offense requires proof that the defendant 1) forcibly assaulted, resisted, opposed, impeded, intimidated, or interfered with 2) a federal officer, 3) engaged in the performance of his official duties. In other words, each offense requires the same proof — that Red Kettle attacked the correction officer while the officer was on duty.⁶ In addition, the purpose of each statute as it relates to Red Kettle’s conduct is substantially the same — to protect law enforcement officers in the performance of their job.

This decision does not diminish the sovereignty of the state or federal government. Each government retains its sovereignty by retaining its authority to independently prosecute and punish crimes. Neither sovereign is inhibited by the actions of the other. If South Dakota determines an assault on a law enforcement officer should be punished by a thirty-year prison sentence, then that sentence will have to be served regardless of the length of the federal sentence, or later changes therein. It should make little difference to the state whether its sentence is served in a federal or state penitentiary, as long as the state can control or insist that the full sentence is served.

Red Kettle's state sentences must be concurrent, rather than consecutive, to the respective federal sentences. Therefore, we reverse and remand to the trial court to resentence Red Kettle consistent with this opinion.

2. Appointment of a Psychiatric Expert

Red Kettle also claims the trial court erred in refusing to appoint a psychiatric expert to assist in the preparation of his defense. We do not reach the merits of this claim, however, because we have consistently held “that a plea of guilty, if voluntarily and understandably made, waives all nonjurisdictional defects in the prior proceedings.” State v. Grosh, 387 N.W.2d 503, 507 (S.D.1986); accord State v. Janssen, 371 N.W.2d 353 (S.D.1985); State v. Culton, 273 N.W.2d 200 (S.D.1979); State v. Losieau, 266 N.W.2d 259 (S.D.1978); State v. Jordan, 261 N.W.2d 126 (S.D.1978); State ex rel. Condon v. Erickson, 85 S.D. 302, 182 N.W.2d 304 (1970). Non-jurisdictional defects are defects that would not prevent a trial from taking place regardless of the trial court’s ruling. Grosh, supra at 507. In this case, a trial would not have been prevented regardless of the trial court’s ruling on Red Kettle’s motion for appointment of a psychiatric expert. Therefore, since Red Kettle has not claimed his guilty plea was involuntary or not understood, the alleged error, as a non-jurisdictional defect, was waived when he pled guilty.

MORGAN and MILLER, JJ., concur. WUEST, C.J., and HENDERSON, J., dissent.

1 . § 1201. Kidnapping

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—

(1)the person is willfully transported in interstate or foreign commerce;

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shall be punished by imprisonment for any term of years or for life.

2 . § 111. Assaulting, resisting, or impeding certain officers or employees

Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties shall be fined not more than $5,000 or imprisoned not more than three years, or both.

Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

3 . SDCL 22-19-1:

Any person who shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person, except in the case of an unmarried minor by a parent thereof, for any of the following reasons:

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(2) To facilitate the commission of any felony or flight thereafter;

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is guilty of kidnapping....

4 . SDCL 22-18-1.1:

Any person who:

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(3) Attempts to cause or knowingly causes any bodily injury to a law enforcement officer or other public officer engaged in the performance of his duties;

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is guilty of aggravated assault.

5 . Red Kettle’s brief specifically states that he "has not claimed that he could not be prosecuted by South Dakota after his conviction[s] and sentencing in Federal Court for the same offense[s].” (Emphasis in original).

6 . The assault on the state correction officer was considered to be an assault on a federal officer because Red Kettle was a federal prisoner at the time.