#26213-denied-DG

2012 S.D. 27

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff,

v.

ERIC DONALD ROBERT, Defendant.

* * * *

APPEAL FROM THE CIRCUIT COURT

SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRADLEY G. ZELL

Judge

* * * *

MARTY J. JACKLEY

Attorney General

PAUL S. SWEDLUND

Assistant Attorney General

Pierre, South Dakota Attorneys for Plaintiff.

MARK KADI

Minnehaha County Public Advocates

Sioux Falls, South Dakota Attorneys for Defendant.

RANDAL E. CONNELLY

Rapid City, South Dakota Amicus Curiae.

* * * *

CONSIDERED ON BRIEFS

ON APRIL 5, 2012

OPINION FILED 04/11/12
#26213

-1-

GILBERTSON, Chief Justice

[¶1.] Eric Robert is currently under a sentence of death entered by a circuit 

court judge of the Second Judicial Circuit. He has not filed an appeal to this Court

and the time to do so has expired. Nevertheless, this Court in this case is 

statutorily mandated by SDCL 23A-27A-12 to consider:

(1) Whether the sentence of death was imposed under the 

influence of passion, prejudice, or any other arbitrary 

factor; and

(2) Whether the evidence supports the . . . judge’s finding of a 

statutory aggravating circumstance as enumerated in 

§ 23A-27A-1; and

(3) Whether the sentence of death is excessive or 

disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.

[¶2.] Robert filed a motion with this Court to vacate this Court’s orders 

staying his execution and establishing a briefing schedule. Robert alleges this 

Court is without jurisdiction to enter these orders. Robert argues that this Court 

only has such jurisdiction explicitly provided by the Legislature and that the 

Legislature only requires this Court to review each death sentence. “If the death 

penalty is imposed, and if the judgment becomes final in the trial court, the 

sentence shall be reviewed by the South Dakota Supreme Court.” SDCL 23A-27A-9. 

Robert argues, however, that the obligation to review his sentence does not grant 

this Court additional jurisdiction to stay his execution or enter a briefing schedule. 

[¶3.] Robert specifically relies upon the first sentence of SDCL 23A-27A-21. 

SDCL 23A-27A-21 provides: 

No judge, officer, commission, or board, other than the Governor, 

may reprieve or suspend the execution of a judgment of death. 

However, the warden or deputy warden of the penitentiary is 
#26213

-2-

authorized so to do in a case and in the manner prescribed in 

this chapter or as provided in §§ 23A-27A-24 and 23A-27A-28. 

This section does not apply to a stay of proceedings upon appeal 

or to the issuance of a writ of habeas corpus, certiorari, or other 

original remedial writ of the Supreme Court.

Robert focuses on the first sentence of this statute, insisting that only the Governor 

can delay his execution. Robert argues that the “no judge” language of the statute

includes this Court and prohibits it from reprieving or suspending the execution. 

Regarding the last sentence of this section, Robert argues that because he has not 

filed a notice of appeal, this matter is not “upon appeal.” Therefore, Robert argues

the “stay of proceedings” contemplated by this statute is not available.

[¶4.] The plain language of SDCL 23A-27A-21 does not prohibit this Court 

from granting a stay in the present circumstances. Moreover, if this Court’s 

obligated sentence review is considered “proceedings upon appeal,” the statute 

explicitly contemplates a stay of execution. 

[¶5.] The South Dakota Constitution limits this Court’s jurisdiction to two 

categories – appellate jurisdiction as provided by the Legislature and jurisdiction to 

hear an original or remedial writ. “The Supreme Court shall have such appellate 

jurisdiction as may be provided by the Legislature, and the Supreme Court or any 

justice thereof may issue any original or remedial writ which shall then be heard 

and determined by that court.” S.D. Const. art. V, § 5. As Robert points out, no 

original or remedial writ has been filed in this matter. Rather, the Legislature 

granted this Court jurisdiction over this matter by mandating that it review 

Robert’s sentence. According to the South Dakota Constitution, the Legislature can 

provide this Court only with appellate jurisdiction. Therefore, this mandatory 
#26213

-3-

sentence review per SDCL 23A-27A-12 is necessarily an exercise of this Court’s 

appellate jurisdiction. 

[¶6.] Circuit courts, not this Court, have original jurisdiction over “all 

cases.” “The circuit courts have original jurisdiction in all cases except as to any 

limited original jurisdiction granted to other courts by the Legislature. The circuit 

courts and judges thereof have the power to issue, hear and determine all original 

and remedial writs.” S.D. Const. art. V, § 5. This Court’s legislatively mandated 

sentence review is an exercise of appellate, not original, jurisdiction. Even though 

no notice of appeal has been filed, this proceeding is an exercise of appellate 

jurisdiction to review a lower court’s decision – the definition of an appeal.

[¶7.] An appeal is “a proceeding undertaken to have a decision reconsidered 

by bringing it to a higher authority; esp., the submission of a lower court’s or 

agency’s decision to a higher court for review and possible reversal.” Black’s Law 

Dictionary 105 (8th ed. 2004). This Court’s mandatory sentence review fits this 

definition precisely. As Robert points out, when the defendant does not raise 

additional issues by filing a notice of appeal, this Court’s review of the circuit court’s 

sentence is limited by statute. See SDCL 23A-27A-12. However, it is still the 

submission of a lower court’s decision to a higher court for review and possible 

reversal. Should this Court so determine, it could set aside Robert’s death sentence 

and remand the matter for further sentencing proceedings. Id. Cf. Piper v. Weber, 

2009 S.D. 66, 771 N.W.2d 352. While it is true that this proceeding was not 

initiated by Robert filing a notice of appeal, it is an exercise of this Court’s appellate 

jurisdiction to review the decision of a lower court – a proceeding upon appeal. As 
#26213

-4-

such, the exception to the prohibition on delaying execution applies. SDCL 23A27A-21 (“This section does not apply to a stay of proceedings upon appeal.”).

1

[¶8.] Further, the Legislature’s use of “judge” in SDCL 23A-27A-21

reinforces the conclusion that this Court was not included in the prohibition against 

delaying an execution. The reading of SDCL 23A-27A-21 urged by Robert requires 

this Court’s inclusion in the phrase “no judge.” The Legislature clearly intended “no 

judge” to refer to a judge of a circuit court.2 This Court is comprised of justices, not 

judges. S.D. Const. art. V, § 2 (“The Supreme Court is the highest court of the state. 

It consists of a chief justice and four associate justices.”). “Judges” preside over 

circuit courts. Id. § 3 (“The circuit courts consist of such number of circuits and 

judges as the Supreme Court determines by rule.”). SDCL 23A-27A-21 specifically 

refers to “the Supreme Court” when referencing original remedial writs. Had the

Legislature meant to prohibit this Court from delaying an execution, it would have 

said so.3 

 

1. It is also significant that any issues raised by direct appeal are to be 

consolidated with this Court’s sentence review. SDCL 23A-27A-10. The 

Legislature intended for this proceeding to be conducted as an appeal. 

2. The statutory definitions of “judge” found in SDCL 15-12-20, 16-1A-1 and 

23A-35A-1 are clearly limited to those chapters in the code and are not 

relevant to the constitutional analysis of the term as outlined above.

3. Under the 1889 South Dakota Constitution, both members of the Circuit 

Court and Supreme Court held the title of “judge.” S.D. Const. art. V, §§ 3, 

14 (1889). In 1972, the Constitutional revision of Article V changed the title 

of members of the Supreme Court to “justice.” S.D. Const. art. V, § 2 (revised 

1972). Yet in 1979, when the Legislature amended SDCL 23A-27A-21, it 

retained the use of the word “judge” in the first sentence of that statute 

without adding the word “justice.” This is a clear indication that the 

prohibition in the first sentence of SDCL 23A-27A-21 applies only to judges of 

the circuit court.
#26213

-5-

[¶9.] Moreover, staying this execution comes within this Court’s inherent 

authority to preserve the status quo. “It has long been recognized that an appellate 

court has inherent power to preserve the status quo pending the appeal, and may 

without express statutory authority in a proper case stay proceedings pending 

appeal.” Gamet v. Allender, 50 S.D. 150, 208 N.W. 782, 783 (1926). This power 

“should always be exercised when any irremediable injury may result . . . .” 

Merrimack River Sav. Bank v. City of Clay Ctr., 219 U.S. 527, 534-35, 31 S. Ct. 295, 

296, 55 L. Ed. 320 (1911). Failure to preserve the status quo in the present 

situation would obviously result in an irremediable injury. Numerous death 

penalty cases have emphasized the uniqueness of the death penalty because of its 

finality. See, e.g., Piper v. Weber, 2009 S.D. 66, ¶ 19, 771 N.W.2d at 359-60 (“the 

finality of a death sentence requires that we accord higher scrutiny to capital 

sentencing determinations.”) (citing California v. Ramos, 463 U.S. 992, 998-99, 103 

S. Ct. 3446, 3452, 77 L. Ed. 2d 1171 (1983)).

[¶10.] Robert’s interpretation would lead to an absurd result. “[W]e have an 

obligation to interpret law in a manner avoiding ‘absurd results . . . .’” Murray v. 

Mansheim, 2010 S.D. 18, ¶ 7, 779 N.W.2d 379, 382. This Court is statutorily

required to conduct a review of the death sentence. SDCL 23A-27A-9. Without the 

authority to prevent execution of the defendant, this Court could not delay the 

execution to allow appropriate time to conduct that review. The death penalty 

statutes require the circuit court, after the sentence of death is imposed, to sign a 

warrant of execution. SDCL 23A-27A-15. This document must set forth a week 

during which the execution shall be completed. Id. Pursuant to statute, the week 
#26213

-6-

of execution must be between six and eight months from the date the sentence is 

determined. SDCL 23A-27A-17. Proceedings under the capital sentencing statutes 

are to be conducted in accordance with other applicable rules of appellate procedure. 

SDCL 23A-27A-11. The practicalities of abiding by the rules of appellate procedure 

do not allow for the mandatory sentence review to be effectively completed within 

such a short time period.4 Had the Legislature intended for different procedural 

rules to apply to this Court’s mandatory sentence review, it would have provided 

those rules. See, e.g., SDCL 23A-27A-9 (providing rules for transmittal of the trial 

court record to the Supreme Court when no notice of appeal is filed). 

[¶11.] “Where a statute can be construed so as not to violate the constitution,

we will adopt such a construction.” State v. Piper, 2006 S.D. 1, ¶ 50, 709 N.W.2d 

783, 804 (internal quotation marks and citations omitted). Robert’s position fails to 

recognize the constitutional significance of this Court’s sentence review obligation. 

Meaningful appellate review is an important component to the constitutional 

 

4. In a typical appeal, briefing schedules are triggered by completion of the 

transcripts. By statute, court reporters have 45 days from the date they 

endorse the order for transcripts to prepare the transcripts. SDCL 15-26A51. The order for transcripts may not come until ten days after the notice of 

appeal is filed. SDCL 15-26A-48. In a criminal appeal, the notice of appeal 

must be filed within 30 days of the date the judgment is signed, attested and 

filed. SDCL 23A-32-15. In this case, the order for transcripts was signed by 

the trial court after Robert’s 30-day period for filing a notice of appeal 

expired. Appellant’s brief is due 45 days from the date the completed 

transcript is sent to appellant’s attorney. SDCL 15-26A-75. Appellee’s brief 

is then due 45 days from the day appellant’s brief is served, and the reply 

brief 15 days from the date appellee’s brief is served. Id. Without any

extensions, a typical appeal becomes ready for review 150 days after the 

order for transcripts is filed, which usually occurs a month after the sentence 

is imposed. This does not consider the necessity of scheduling and hearing 

oral argument, or take into consideration any time for this Court to draft, 

circulate, and vote on an opinion. 
#26213

-7-

imposition of the death penalty. In 1972, the United States Supreme Court 

“concluded that capital punishment, as then administered under statutes vesting 

unguided sentencing discretion in juries and trial judges, had become 

unconstitutionally cruel and unusual punishment. The death penalty was being 

imposed so discriminatorily, so wantonly and freakishly, and so infrequently, that 

any given death sentence was cruel and unusual.” Pulley v. Harris, 465 U.S. 37, 44, 

104 S. Ct. 871, 876, 79 L. Ed. 2d 29 (1984) (citing Furman v. Georgia, 408 U.S. 238, 

92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)). In response, two-thirds of states enacted 

capital sentencing schemes aimed at “limit[ing] jury discretion and avoid[ing] 

arbitrary and inconsistent results.” Id. Georgia was one of those states. Four 

years after Furman, the United States Supreme Court upheld the Georgia capital 

punishment statutory scheme. See id. (citing Gregg v. Georgia, 428 U.S. 153, 96 S. 

Ct. 2909, 49 L. Ed. 2d 859 (1976)). The South Dakota capital punishment scheme, 

adopted in 1979, is “nearly identical” to Georgia’s. State v. Rhines, 1996 S.D. 55, ¶ 

75, 548 N.W.2d 415, 437.

[¶12.] The issue in Pulley was whether comparative proportionality review of 

a capital sentence is required by the United States Constitution. Pulley, 465 U.S at 

43-44, 104 S. Ct. at 876. The Supreme Court held that it is not. Id. at 46, 104 S. Ct. 

at 877. But the Pulley majority distinguished mandatory comparative 

proportionality review from appellate review. “While emphasizing the importance 

of mandatory appellate review under the Georgia statute, . . . we did not hold that 

without comparative proportionality review the statute would be unconstitutional.” 

Id. at 50, 104 S. Ct. at 879 (citing Zant v. Stephens, 462 U.S. 862, 876, 103 S. Ct. 
#26213

-8-

2733, 2742, 77 L. Ed. 2d 235 (1983)). The concurrence noted the value placed on 

appellate review in the decisions upholding death penalty statutes. “The statutes 

we have approved in Gregg, Proffitt, and Jurek were designed to eliminate each of 

these defects. Each scheme provided an effective mechanism for categorically 

narrowing the class of offenses for which the death penalty could be imposed and 

provided special procedural safeguards including appellate review of the sentencing 

authority’s decision to impose the death penalty.” Id. at 55, 104 S. Ct. at 882

(Stevens, J., concurring in part and concurring in judgment) (referring to the capital 

punishment schemes of Georgia, Florida, and Texas).

5 The United States Supreme 

Court has not gone so far as to hold that a capital punishment scheme without

mandatory appellate review is constitutionally flawed.

6 But the value placed on 

meaningful appellate review as a protection against unconstitutional imposition of 

the death penalty is clear. “To summarize, in each of the statutory schemes 

approved in our prior cases, as in the scheme we review today, meaningful appellate 

review is an indispensable component of the Court’s determination that the State’s 

 

5. The same day the Supreme Court handed down Gregg (July 2, 1976), the 

Court also upheld the capital punishment schemes of Florida and Texas. See 

Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913 (1976); 

Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976). 

6. The United State Supreme Court denied certiorari in a federal case where 

the Third Circuit Court of Appeals held that appellate review of a death 

sentence was not constitutionally required. See United States v. Hammer,

226 F.3d 229 (3d Cir. 2000), cert. denied, 532 U.S. 959, 121 S. Ct. 1488, 149 L. 

Ed. 2d 375 (2001) and cert. denied, 534 U.S. 831, 122 S. Ct. 75, 151 L. Ed. 2d 

40 (2001) (holding that appellate review of a death sentence imposed under 

the Federal Death Penalty Statute was not required). 
#26213

-9-

capital sentencing procedure is valid.” Id. at 59, 104 S. Ct. at 884 (Stevens, J., 

concurring in part and concurring in judgment).

[¶13.] According to Robert’s interpretation of the capital punishment scheme, 

his execution would be required at the time provided by the death warrant, even if 

that occurred before this Court completed its appellate review of the sentence. 

Therefore, Robert could likely be executed without a review of the sentence, or on 

the basis of appellate review conducted in such an abbreviated fashion as to 

question its validity.

7 From the authority outlined above, application of the capital 

punishment statutes in this manner would be constitutionally problematic. “[I]f a 

State wishes to authorize capital punishment it has a constitutional responsibility 

to tailor and apply its law in a manner that avoids the arbitrary and capricious 

infliction of the death penalty.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct. 

1759, 1764, 64 L. Ed. 2d 398 (1980) (plurality opinion) (citations and quotation 

marks omitted). 

[¶14.] This Court has “note[d] that the United States Supreme Court has 

approved a state capital punishment scheme that is nearly identical to South 

Dakota’s death penalty laws.” Rhines, 1996 S.D. 55, ¶ 75, 548 N.W.2d at 437. If

our capital punishment statutes are interpreted to allow for imposition of the death 

penalty without “meaningful appellate review” of the sentence, relying on the 

United States Supreme Court’s approval of the Georgia scheme may no longer be

constitutionally valid. As stated by the concurrence in Pulley, “[w]hile the Court did 

 

7. To be distinguished are instances where the appellant takes his own life 

during the appeals process prior to the issuance of an opinion. State v. 

Anderson, 2003 S.D. 65, 664 N.W.2d 48.
#26213

-10-

not focus on the comparative review element of the scheme in reaffirming the 

constitutionality of the Georgia statute, appellate review of the sentencing decision 

was deemed essential to upholding its constitutionality.” Pulley, 465 U.S. at 58, 104 

S. Ct. at 884 (Stevens, J., concurring in part and concurring in the judgment). 

Under Robert’s theory, the constitutional validity of South Dakota’s capital 

punishment scheme, as applied, may not be sustainable. 

CONCLUSION

[¶15.] Robert’s position interprets “appeal” to not include the present

statutory sentence review. This interpretation ignores that section of the South 

Dakota Constitution article V, § 5 that grants this Court “appellate jurisdiction as 

may be provided by the Legislature.” That interpretation is also not required by the 

plain language of SDCL 23A-27A-21, and would lead to an absurd result. 

Additionally, such a reading flies in the face of this Court’s inherent authority to 

preserve the status quo pending appellate review. Robert’s position is also not 

consistent with the constitutional analysis of the United States Supreme Court. It 

would, in essence, result in a post mortem opinion with but a pyrrhic victory for a 

successful appellant upon reversal. For all of the above reasons the Motion to 

Vacate is denied. 

[¶16.] KONENKAMP, ZINTER, SEVERSON, Justices, and MILLER, Retired 

Justice, concur.

[¶17.] MILLER, Retired Justice, sitting for WILBUR, Justice, disqualified.