#24790-a-PER CURIAM 

2008 SD 119

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

RANDY W. POWERS, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JEFF W. DAVIS 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

GARY CAMPBELL 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

BRYAN T. ANDERSEN 

Pennington County Public 

 Defender’s Office 

Rapid City, South Dakota Attorneys for defendant 

 and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON NOVEMBER 3, 2008 

 OPINION FILED 12/10/08
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PER CURIAM 

[¶1.] Randy W. Powers appeals the circuit court’s method of calculating the 

ten-year period for determining penalty enhancement in cases involving multiple 

driving under the influence offenses. We affirm. 

Facts and Procedural History

[¶2.] On June 30, 2007, Powers was arrested for driving under the influence 

of alcohol. Powers was later charged under SDCL 32-23-1(2), or in the alternative, 

SDCL 32-23-1(1). In addition, a Part II Information was filed alleging that Powers 

had four prior driving under the influence convictions (one of which was a felony) 

within ten years of his current violation. 

[¶3.] Powers’s prior driving under the influence convictions occurred on 

January 6, 2003, December 5, 2002, August 19, 1997, and July 22, 1996. Powers 

was sentenced to the penitentiary on the December 5, 2002, and January 6, 2003, 

convictions.1 He spent approximately twenty-one months in the penitentiary for 

those third and fourth convictions. 

[¶4.] Prior to trial, Powers moved to strike his July 22, 1996 conviction from 

the Part II Information. Powers correctly observed that the 1996 conviction 

occurred more than ten years prior to his 2007 violation. Although there is no 

dispute that the 1996 conviction occurred more than ten years before the current 

2007 violation, SDCL 32-23-4.1 excludes from the calculation periods of time during 

which a defendant is incarcerated for a previous driving under the influence 

 

1. Because of procedural issues, Powers pleaded guilty to his fourth offense DUI 

in December 2002. He pleaded guilty to the third offense DUI one month 

later, January 2003. The sentences for these convictions ran concurrently. 
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violation. Although Powers acknowledged this exclusion, he contended that his 

twenty-one month period of incarceration should not be excluded because that 

incarceration did not occur as a result of the 1996 conviction. The circuit court 

disagreed and denied Powers’s pretrial motion to exclude the 1996 conviction. 

[¶5.] Powers was subsequently convicted by a jury of the SDCL 32-23-1(1) 

violation (driving or being in actual physical control of a vehicle while having .08 

percent or more by weight of alcohol in his blood). Powers waived his right to a jury 

on the Part II Information. At the habitual offender trial, Powers again 

unsuccessfully objected to the inclusion of the 1996 conviction. 

[¶6.] Because the 1996 conviction was considered a prior conviction for 

purposes of sentence enhancement, Powers was sentenced as a fifth offender, which 

is a Class 4 felony under SDCL 32-23-4.7.2 If the 1996 conviction had been 

excluded, the current violation would have been considered Powers’s fourth 

conviction, a Class 5 felony. SDCL 32-23-4.6. The maximum penalty for a Class 4 

felony is ten years imprisonment, while the maximum penalty for a Class 5 felony is 

five years imprisonment. See SDCL 22-6-1. Because Powers’s current violation is a 

Class 4 felony, his eight-year sentence was authorized. Powers, on appeal, argues 

that the circuit court erred in not striking the 1996 conviction from the Part II 

Information. 

2. SDCL 32-23-4.7 provides in part: 

If conviction for violation of § 32-23-1 is for a fifth offense, 

or subsequent offenses thereafter, and the person has 

previously been convicted of a felony under § 32-23-4, the 

person is guilty of a Class 4 felony. . . 
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Decision 

[¶7.] Powers’s argument raises an issue of statutory interpretation. 

“Statutory interpretation and application are questions of law, and are reviewed by 

this Court under the de novo standard of review.” Rotenberger v. Burghduff, 2007 

SD 7, ¶8, 727 NW2d 291, 294 (quoting State v. $1,010 in Am. Currency, 2006 SD 84, 

¶8, 772 NW2d 92, 94). 

[¶8.] SDCL 32-23-4.1 governs the method of calculating the ten-year period 

for determining whether prior convictions may be considered for sentence 

enhancement. The statute provides: 

No previous conviction for, or plea of guilty to, a violation 

of § 32-23-1 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. However, any period of time 

during which the defendant was incarcerated for a 

previous violation may not be included when calculating if 

the time period provided in this section has elapsed. 

[¶9.] Powers’s 1996 conviction occurred more than ten years before his June 

30, 2007 violation. If, however, his twenty-one month incarceration for the 

December 2002 and January 2003 convictions is excluded from the calculation, the 

1996 conviction falls within the ten-year period. Powers argues that his time of 

incarceration on the 2002 and 2003 convictions may not be excluded from the 

calculation because that time of incarceration was not related to the 1996 

conviction, his oldest conviction. 

[¶10.] The interpretation suggested by Powers is not supported by the plain 

text of the statute. “We give words their plain meaning and effect. . .” Rotenberger, 
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2007 SD 7, ¶8, 727 NW2d at 294 (quoting Chapman v. Chapman, 2006 SD 36, ¶11, 

713 NW2d 572, 576). “When the language of the statute is clear, certain, and 

unambiguous, there is no occasion for construction, and the Court’s only function is 

to declare the meaning of the statute as clearly expressed in the statute.” MidCentury Ins. Co. v. Lyon, 1997 SD 50, ¶9, 562 NW2d 888, 891 (quoting In re

Famous Brands, Inc., 347 NW2d 882, 885 (SD 1984)). 

[¶11.] The second sentence of SDCL 32-23-4.1 plainly states that the ten-year 

period excludes any period of incarceration for a prior violation of SDCL 32-23-1. 

This language does not require that the period of incarceration must relate to the 

oldest violation. Instead, the language requires the exclusion of any period of 

incarceration for any violation of SDCL 32-23-1. Therefore, Powers’s twenty-one 

month incarceration for the 2002-2003 convictions was correctly excluded from the 

calculation, and the 1996 conviction was properly considered in determining the 

number of Powers’s prior convictions. 

[¶12.] Affirmed. 

[¶13.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER 

and MEIERHENRY, Justices, participating.