#25990-rev & rem-DG

2012 S.D. 5

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

JOHN WILLEY, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JANINE M. KERN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

MAX A. GORS

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

JAMY PATTERSON

Pennington County Public

 Defender’s Office

Rapid City, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

ON JANUARY 9, 2012

OPINION FILED 02/01/12
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GILBERTSON, Chief Justice

[¶1.] John Willey appeals from a conviction on a Part II information 

charging that the accompanying driving under the influence (DUI) conviction was 

his third DUI offense. Willey argues that a conviction that occurred after his arrest 

on the principal offense was invalid for enhancement purposes. We reverse and 

remand. 

FACTS & PROCEDURAL HISTORY

[¶2.] Willey was first arrested for DUI in 2008 in Pennington County. He 

was convicted in February 2009. Willey was arrested for DUI in May 2010 in 

Meade County. He pleaded guilty on August 30, 2010, and was convicted on 

September 27, 2010. Willey was last arrested for DUI on August 8, 2010 in 

Pennington County.1

[¶3.] For Willey’s August 2010 arrest, the State initially charged him with 

DUI second offense, but later amended the complaint to DUI third offense, a class 6 

felony, because of Willey’s guilty plea on August 30. An arraignment hearing was 

held in November 2010 after the State filed a Part II information that alleged 

Willey had two prior DUI convictions (February 3, 2009 and September 27, 2010). 

Willey filed a motion to strike the Part II information. He argued that the 

conviction from Meade County on September 27, 2010 was invalid for enhancement 

 

1. Willey was also arrested for DUI in April 2010 in Pennington County. 

However, he was not convicted until March 21, 2011. Neither party contends 

that this DUI conviction could have been used to enhance the principal 

offense.
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purposes under SDCL 22-6-5.2. The motion was denied.2 The circuit court ruled 

that State v. Myers, 346 N.W.2d 436 (S.D. 1984), controlled, such that SDCL 32-23-

4.1 did not impose a restriction on the use of the September 27, 2010 conviction. 

[¶4.] After a stipulated court trial in February 2011, Willey was convicted of

DUI based on the August 8, 2010 arrest. The next day, a jury convicted him on the

Part II information, finding that he had two prior DUI convictions, one on February 

3, 2009 and one on September 27, 2010. Willey was sentenced to two years in the 

penitentiary. Willey appeals the enhanced conviction. 

STANDARD OF REVIEW

[¶5.] The parties do not dispute the findings of fact. The legal issue is 

whether the circuit court erred in concluding that, under case law and South 

Dakota statutes, the Part II information was valid. “Because the application of a 

statute to particular facts involves a question of law, we review the circuit court’s 

conclusions de novo.” State v. Talarico, 2003 S.D. 41, ¶ 10, 661 N.W.2d 11, 16.

ANALYSIS

[¶6.] The issue we address is whether a DUI conviction occurring after the 

arrest for the principal DUI offense could be considered to enhance the principal 

offense. Willey committed the principal offense before his guilty plea or conviction 

on his second offense. The circuit court overruled Willey’s objection to using the 

second offense conviction to enhance the principal conviction. The circuit court and 

State rely on SDCL 32-23-4.1 and Myers, 346 N.W.2d 436. SDCL 32-23-4.1 provides

 

2. Willey’s petition to allow an appeal from an intermediate order was denied by 

this Court in February 2011. 
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in relevant part: “No previous conviction for, or plea of guilty to, a violation of § 32-

23-1,

3 22-18-36, or 22-16-41 occurring more than ten years prior to the date of the 

violation being charged may be used to determine that the violation being charged 

is a second, third, or subsequent offense.”

[¶7.] SDCL 32-23-4.1 was last amended in 2010. The only relevant 

authority relying on this statute is Myers, 346 N.W.2d 436. In Myers, the Court 

framed the issue as “whether the [ten-]year period prior to the date of the most 

recent violation must include the date of prior offenses or the date of conviction on 

such offenses to determine if the most recent violation is a second, third, or 

subsequent offense.” Id. at 437. The Court concluded that the second conviction 

could be used to enhance even though the conviction occurred after the third offense 

 

3. SDCL 32-23-1 provides:

No person may drive or be in actual physical control of any 

vehicle while:

(1) There is 0.08 percent or more by weight of alcohol in that 

person’s blood as shown by chemical analysis of that person’s 

breath, blood, or other bodily substance;

(2) Under the influence of an alcoholic beverage, marijuana, or 

any controlled drug or substance not obtained pursuant to a 

valid prescription, or any combination of an alcoholic 

beverage, marijuana, or such controlled drug or substance;

(3) Under the influence of any controlled drug or substance 

obtained pursuant to a valid prescription, or any other 

substance, to a degree which renders the person incapable of 

safely driving;

(4) Under the combined influence of an alcoholic beverage and or 

any controlled drug or substance obtained pursuant to a 

valid prescription, or any other substance, to a degree which 

renders the person incapable of safely driving; or

(5) Under the influence of any substance ingested, inhaled, or 

otherwise taken into the body as prohibited by § 22-42-15.
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“because SDCL 32-23-4.1 is a limitations statute designed to preclude the use of 

state convictions occurring [ten] years prior to the date of the most recent offense. 

This enhancement statute imposes no restriction on the use of convictions or pleas 

occurring after the most recent offense but before the plea or conviction on the most 

recent offense.” Id.4

[¶8.] Willey asserts that SDCL 22-6-5.2, enacted in 2005, applies to limit the 

effect of Myers’ holding. SDCL 22-6-5.2 provides: “No enhanced penalty may be 

imposed for any second, third, or subsequent violation unless the defendant was 

convicted of or plead[ed] guilty or nolo contendere to the prior offense previous in 

time to committing the relevant second, third, or subsequent offense.” Although we 

concluded in Myers that SDCL 32-23-4.1 did not impose a restriction on the use of 

convictions or pleas occurring after the principal offense but before the principal 

plea or conviction, we were not analyzing the statute under the direction of SDCL 

22-6-5.2. 

[¶9.] SDCL chapter 22-6 governs authorized punishments for all crimes 

unless a more specific statute controls. We can see no reason why SDCL 22-6-5.2 

would not apply to SDCL chapter 32-23. The plain language of SDCL 22-6-5.2 

controls. The Part II information in this case constitutes an enhanced penalty. 

Under the facts of this case, Willey cannot receive an enhanced penalty for a third 

 

4. We note that Myers was a 3-2 decision. The dissent noted that “SDCL 32-23-

4.1 speaks of convictions occurring prior to the date of the violation being 

charged, not to the date of the plea or conviction on the currently charged 

violation.” Myers, 346 N.W.2d at 438. The dissent would not have allowed 

the enhancement. 
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offense DUI because he had not been convicted or pleaded guilty or nolo contendere 

to the second offense “previous in time to committing the relevant second, third, or 

subsequent offense.” 

[¶10.] We believe this outcome is consistent with State v. Gehrke, 474 N.W.2d 

722 (S.D. 1991). In Gehrke we examined whether the sentence for the principal 

offense could be enhanced under SDCL chapter 22-7, the habitual offender chapter, 

if the conviction on the prior felony occurred after the commission of the principal 

offense. Id. at 724-26. We adopted the rule of a majority of jurisdictions that SDCL 

chapter 22-7 requires that the prior felony conviction precede the commission of the 

principal offense. Id. at 726. In addition to the language of SDCL 22-7-11 and 

applicable case law, we noted that such a rule “promotes certainty and uniformity 

in the application of the habitual offender statutes . . . .” Id. 

[¶11.] We emphasize that reversing the circuit court would not change or 

“repeal by implication” SDCL 32-23-4.1. That statute is still relevant for calculating 

and limiting the use of convictions occurring outside the ten-year period when 

charging a new offense. When determining whether an offense may be used for 

enhancement purposes, we must rely on the more specific statute, SDCL 22-6-5.2. 

Based on the enactment of SDCL 22-6-5.2, we reverse and remand.5

[¶12.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.

 

5. Willey also argues that the circuit court abused its discretion by admitting 

certain fingerprint cards into evidence. Because we reverse and remand on 

the first issue, we do not address this argument.