# 2 6 807

- a - DG
201 4 S.D. 67 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * STATE OF SOUTH DAKOTA , Plaintiff and Appellee ,

v. JOSE ANGEL GARZA , Defendant and Appellant

.
* * * * APPEAL FROM THE CIRCUIT COURT O F THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA * * * * THE HONORABLE BRADLEY G. ZELL Judge * * * *

MARTY J. JACKLEY Attorney General BETHANY L. ERICKSON Assistant Attorney General Pierre , South Dakota Attorneys for plaintiff and appellee

.
CHERI SCHARFFENBERG Olson, Waltner & Scharffenberg, LLP Tea , South Dakota Attorneys for defendant and appellant

.
* * * * CONSIDERED ON BRIEFS ON APRIL 28, 2014 OPINION FILED 

### 09 / 2 4 / 1 4#26807

- 1

- GILBERTSON , Chief Justice [¶ 1. ] Defendant Jose Garza was convicted of first

- degree arson and first

degree felony murder in a single trial for intentionally setting fire to an occupied
structure and the resulting death of an unidentified victim in the fire . Arson served

as the underlying felony to support the felony murder charge

. Garza was given concurrent life sentences without parole for each conviction. The circuit court denied Garza’s motion to correct an illegal sentence , rejecting his cla im that the
concurrent sentences violat ed the Double Jeopardy Clause. We affirm. FACTS AND PROCEDURAL HISTORY [¶ 2. ] The underlying facts of this case were described in State v. Garza , 1997 S.D. 54, ¶¶ 2

- 4, 563 N.W.2d 406: At approximately 9:00 a.m. on the morning of February 24, 1995, Jose Sanchez (Sanchez) hosted a party at his apartment located at 231 South Spring in Sioux Falls, South Dakota. Throughout the morning and early afternoon hours, a large amount of alcohol was consumed by the occ upants and guests. Garza arrived at Sanchez ’ apartment around 4:00 p.m. and found the majority of the participants intoxicated. Garza consumed alcohol with the other guests after his arrival. Later, Ansellmo Montinegro (Montinegro) and Garza had an alte rcation. After Montinegro broke the strings of a guitar, Garza grabbed it and broke it further. Another participant at the party attempted to stop Garza and a further altercation ensued. Next, the evidence showed that Garza went to the stove, turned on the gas, lit all four burners, and threatened he could burn down the house. Also, Garza was observed putting his lighter up to the fuse box in the apartment, but the fuse box door was closed by another person at the party to deter this act. At approximat ely 9:30 p.m., Garza left the party. Garza was later identified as having purchased forty

- five cents worth of gasoline at a nearby 7

- 11 store at 11:00 p.m. Within twenty minutes of his purchase, the apartment building at 231 South Spring was on fire. Al l of the occupants escaped the burning# 26 807

- 2

- building, except for John Doe, who died of carboxyhemoglobin poisoning. [¶ 3. ] The State charged Garza with one count of first

- degree felony murder, with arson as the underlying felony, and one count of firs t

- degree arson. SDCL 22

- 16

- 4 (1995); SDCL 22

- 33

- 1 (1995)

. The jury found Garza guilty of both offenses , and he received a life sentence without parole for each. Garza raised four issues o n direct appeal, but did not challenge his sentence as violating t he Double Jeopardy Clause. Garza , 1997 S.D. 54, ¶ 5 , 563 N.W.2d at 408 . This Court affirmed his conviction on all issues raised on direct appeal

. Id . ¶ 35 , 563 N.W.2d at 413 . In November of 2011, Garza filed a motion to correct illegal sentence , allegi ng that the imposition of sentences for both felony murder and arson viol ated the Double Jeopardy Clause . The trial court issued an order den ying the motion. Garza filed a timely appeal to this Court , alleging that the trial court erred in denying his mo tion to correct illegal sentence. ANALYSIS AND DECISION [¶ 4. ] 1. Whether this Court has jurisdiction over an appeal from an order denying a motion to correct illegal sentence. [¶ 5. ] As an initial matter, the State argues that th is Court does not have jurisdiction over this matter because SDCL 23A

- 32

- 2 gives a defendant the right to appeal only from a final judgment of conviction. We squarely rejected this same argument in State v. Kramer and held that challenges to a trial court ’s order granting or denying a motion to correct an illegal sentence under SDCL 23A

- 31

- 1 (Rule 35) may properly come before this Court on appeal. 2008 S.D. 73, ¶¶ 7

- 8, 754 N.W.2d 655, 657

. See also State v. Tibbetts , 333 N.W.2d 440, 441 (S.D. 1983)# 26 807

- 3

- (allo wing appeal of circuit court’s denial of a request to correct an illegal sentence under SDCL 23A

- 31

- 1). As w e noted in Kramer , this Court has consistently reviewed these challenges to the legality of a sentence

. 2008 S.D. 73, ¶ 8, 754 N.W.2d at 657 (citi ng State v. Sieler , 1996 S

. D

. 114, 554 N.W.2d 477 ; State v. Moon , 514 N.W.2d 705 (S.D. 1994); State v. Thomas , 499 N.W.2d 621 (S.D. 1993); In re Application of Grosh , 415 N.W.2d 824 (S.D. 1987) )

. Accordingly, we reject the State’s argument that we should decline to consider Garza’s appeal

. [¶ 6. ] However, Garza assert s that the proper remedy in this case would be to vacate both the conviction and sentence for first

- degree arson , leaving the conviction for first

- degree felony murder intact

. Sout h Dakota law authorizes a
court to provide a more limited remedy. SDCL 23A

- 31

- 1 (Rule 35). Under that rule, a court may “correct an illegal sentence at any time , ” but not an improper conviction

. Id. (emphasis added)

. See also Kramer , 2008 S.D. 73, ¶ 7, 754 N.W.2d
at 657 ( “ A defendant’s motion to correct an illegal sentence does not permit a challenge to the underlying conviction

. ” )

. 1 Garza’s challenge to the underlying conviction is not cognizable under the procedural mechanism used in this case. Acco rdingly, our review is limited to whether the sentence in this case was illegal and should be vacated

. [¶ 7. ] 2. Whether imposition of sentences for felony murder and the underlying felony of arson violates the constitutional prohibition against double jeopardy.

1

. This is distinguishable from a timely direct appeal from a conviction , where a party raising double jeopardy concern s may properly challenge both the underlying convictio n and the sentence imposed. See State v. Dillon , 2001 S.D. 97, ¶ 22, 632 N.W.2d 37, 46; State v. Well, 2000 S

. D

. 156, ¶ 25, 620 N.W.2d 192, 197

.# 26 807

- 4

- [¶ 8. ] Garza argues that the South Dakota Legislature did not intend to authorize multiple punishments for the single act of burning a building. Specifically, he argues that the Legislature intended arson and felony mur der to be treated and punished as a single offense. Garza contends that “the murder charge is really ‘aggravated arson’

— arson plus a resulting death.” Consequently, he asserts that imposing multiple punishments for his single act violated the Double Jeop ardy Clause. We disagree. [¶ 9. ] Because Garza alleges constitutional violations, raising issues of legislativ e intent and statutory interpretation , we review his claims under the de

novo standard

. State v. Long Fox , 2013 S.D. 40, ¶ 11, 832 N.W .2d 55, 58; Kramer , 2008 S. D. 73, ¶ 11, 754 N.W.2d at 658

. [¶ 10. ] The double jeopardy prohibition in the Fifth Amendment to the United States Constitution , and Article VI, Section 9 , of the South Dakota Constitution , “protect [s] against three type s of governmental abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” State v. Johnson , 2007 S.D. 86, ¶ 12, 739 N.W.2d 1 , 6 (quoting State v. Lafferty , 2006 S.D. 50, ¶ 4, 716 N.W.2d 782, 784). See also Jones v. Thomas , 491 U.S. 376, 380

- 81, 109 S. Ct. 2522, 2525, 105 L. Ed. 2d 322 (1989). In the first two contexts

— a second prosecution subsequen t to acquittal or conviction

— the United States Supreme Court has consistently found a violation of the Double Jeopardy Clause unless each of the charged offenses “requires proof of a fact which the other does not.” Blockburger v. United States , 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932) (citing# 26 807

- 5

- Gavieres v. United States , 220 U.S. 338, 342, 31 S. Ct. 421, 422, 55 L. Ed. 489 (1911)). If such proof is required, then the single act may be an offense against two statutes and “an acquittal or conviction under either statu te does not exempt the defendant from prosecution and punishment under the other.” Id. (quoting Morey v. Commonwealth , 108 Mass. 433 , 434 (Mass. 1871)). [¶ 11. ] The analysis is different, however, in the context of multiple punishments for the sam e criminal act. When “ it is not contended that [a defendant’s] right to be free from multiple trials for the same offe nse has been violated[,] ” but rather w here cumulative sentences are imposed in a single trial, “the Double Jeopardy Clause does no more t han prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 365

- 66, 103 S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983). Accordingly, “[t] he question of what punishments are constitution ally permissible is no different from the question of what punishments the L egislative B ranch intended to be imposed.” Id. at 368, 103 S. Ct. at 679 (quoting Albernaz v. United States , 450 U.S.
33 3 , 34 4 , 101 S. Ct. 1137, 1145, 67 L. Ed. 2d 275 (1981)); St ate v. Simons , 313 N.W.2d 465, 467 (S.D. 1981) (quoting Albernaz , 450 U.S. at 3 44 , 101 S. Ct. at 1145). While a question of multiple prosecutions , then, is a constitutional question that must be resolved according to the Blockburger test, the determinatio n of whether the same criminal act can be punished under two separate statutes in one trial is a question of state law to be determined in state courts. See Hunter , 459 U.S. at 368, 103 S. Ct. at 679 (citing O’Brien v. Skinner , 414 U.S. 524, 531, 94 S. Ct . 740, 743, 38 L. Ed. 2d 702 (1974) ) ( acknowledging that the United States Supreme Court was# 26 807

- 6

- bound by the Missouri Supreme Court’s conclusion that Missouri statutes authorized multiple punishments for one criminal act ). Thus, the primary issue before this Court is whether the South Da kota Legislature intended first

- degree arson and felony murder to be separately punishable offenses, not whether they constitute the same offense under the federal formulation of the Blockburger test

. [¶ 12. ] We have an “ [e] stablished double jeopardy jurisprudence [, which] confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.” State v. Deneui , 2009 S. D. 99, ¶ 65, 775 N.W.2d 221, 247 (quoting State v. Dillon , 2001 S.D. 97, ¶ 13, 632 N.W.2d 37, 43)

. “ The true intent of the legislature is ascertained primarily from the language of the statute.” Johnson , 2007 S.D. 86, ¶ 13, 739 N.W.2d at 6 ( quoting Laffe rty , 2006 S.D. 50, ¶ 6, 716 N.W.2d
at 784 ). At the time of Garza’s conviction, South Dakota’s felony murder statute provided in pertinent part: Homicide is murder in the first degree when perpetrated without authority of law and with a premeditated desig n to effect the death of the person killed or of any other human being, or when committed by a person engaged in the perpetration of, or attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, or unlawful throwing, placing, or discharging of a destructive device or explosive. SDCL 22

- 16

- 4 (1995). South Dakota’s first

- degree arson statute provided: Any person who intentionally sets fire to or burns or causes to be burned any occupied structure, knowing the same to be occupied at the time, is guilty of arson in the first degree. Arson in the first degree is a Class 1 felony. SDCL 22

- 33

- 1 (1995). Although the Legislature has authorized the imposition of either concurrent or consecutive sentences when a defendant is convicted of two or# 26 807

- 7

- m ore offenses , SDCL 22

- 6

- 6.1 , we are unable to find any expressly stated legislative intent to support the imposition of multiple penalties

. [¶ 13. ] However, a “second inquiry follows when legislative intent to impose multiple punishments is uncerta in.” Dillon , 2001 S.D. 97, ¶ 18, 632 N.W.2d at 45. In discerning legislative intent, “we employ the Blockburger analysis.” Id. Accordingly , we ask “whether each provision requires proof of an additional fact which the other does not.” Deneui , 2009 S.D . 99, ¶ 65, 775 N.W.2d at 248 ( quoting Dillon , 2001 S.D. 97, ¶ 13, 632 N.W.2d at 43 ). “ [T] wo offenses may be said to have occurred only if each statute requires proof of an additional fact which the other does not.” State v. Hoffman , 430 N.W.2d 910, 911 (S.D. 1988)

. See also Johnson , 2007 S.D. 86, ¶ 16, 739 N.W.2d at 7 ; State v. Weaver , 2002 S.D. 76, ¶¶ 10

- 19, 648 N.W.2d 355, 359

- 63; Dillon , 2001 S.D. 97, ¶ 14, 632 N.W.2d at 43 ; State v. Augustine , 2000 S.D. 93, ¶¶ 13

- 24, 614 N.W.2d 796, 798

- 99 ; State v. Darby , 1996 S.D. 127, ¶ 16, 556 N.W.2d 311, 317

. Although we commonly refer to this analysis as the Blockburger test, in reference to its application by the United States Supreme Court , s ee Blockburger , 284 U.S. at 304, 52 S. Ct. at 182 , 2 this usage can be misleading. In utilizing the Blockburger test to ascertain the intent behind

2

. Our use of the Blockburger test in multiple

- prosecution double jeopardy analysis actually predates the Bl ockburger decision. See State v. Caddy , 15 S.D. 167, 87 N.W. 927, 928 (1901) (quoting Morey , 108 Mass. a t 434) (“ A single act may be an offense against two statutes, and, if each statute requires proof of an additional fact which the other does not, an ac quittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”). See also State v. Seidschlaw , 304 N.W.2d 102, 106

- 07 (S.D. 1981) (noting that the United States Supreme Court ’s Blockburger decisi on adopted a “similar test” to ours to determine whether there were two distinct offenses).# 26 807

- 8

- South Dakota law, we part ways with the federal analysis to the extent that we examine “only the statutory elements comprising the offenses without regard to how the offenses were charged, how the jury was instructed, or how the underlying proof for the necessary elements was established.” Dillon , 2001 S.D. 97, ¶ 18, 632 N.W.2d at 45. In other words, while our Blockburger “formula” is the same, the “variables”
we feed into th at formula differ slightly from the federal application

. 3 Thus, while a federal application of Blockburger might lead us to conclude that two South Dakota statutes punish the same offense for the purpose of determining the constitutionality of subsequent prosecutions, South Dakota’s application of Blockburger , under the same facts, might lead us to conclude that the two statutes were meant to punish different offenses for the purpose of determining whether punishment under both statutes exceeds the degree of punishment intended by the South Dakota Legislature. [¶ 14. ] According to our application of the Blockburger test in this case , and for the purpose of ascertaining the intent behind South Dakota law, the plain langua ge of the statutes reveals th at each statutory offense requires proof of an element not required to establish a violation of the other

. It is possible to commit a felony murder without committing a first

- degree arson and vice versa. 4 F irst

-

3

. The special writing argues that “[i]t is not possible to prove felony murder under SDCL 22

- 16

- 4 without also proving arson under SDCL 22

- 33

- 1 .” Yet , we held i n Dillon that we examine “ only the statutory elements comprising the offenses without regard to how the offenses were charged [

. ] ” 2001 S.D. 97, ¶ 18, 632 N.W.2d at 45 (emphasis added). 4

. The special writing disagree s with this statement, arguing that th e United States Supreme Court has “consistently treated the conviction of a predicate (continued . . .)# 26 807

- 9

- degree felony murder requires the State to prove that the death of an individual occurred, an element not required to prove first

- degree arson. First

- degree arson requires the burning of an occupied structure , which is not a required element of felony murder. First

- degree felony murder does not n ecessarily require proof of the burning of an occupied structure because first

- degree felony murder can instead be proven with any of a number of enumerated completed or attempted crimes. SDCL
22

- 16

- 4 (1995). In other words, because arson is sufficient t o serve as the predicate felony to felony murder, but is not necessary, it cannot be said that the burning of an occupied structure is a requirement of felony murder. See Simons , 313 N.W.2d at 467

- 68 ( noting, in a prosecution charging both murder and the commission of a felony while armed for the shooting death of the victim, that “[w]hile the use of a firearm was necessarily alleged in the information, it is not an element of the statutory offense of murder because a homicide can be perpetrated by myriad means”)

. Accordingly, Garza’s challenge fails under our application of the Blockburger test , because each offense necessitate s “proof of an additional fact which the other does not.” Dillon , 2001 S.D. 97, ¶ 14, 632 N.W.2d at 43. Contrary to Garza’s posi tion, first

- de gree arson is not a necessarily included lesser offense of felony murder. As we quoted in Johnson , “[A] lthough the two statutes may be

________________________ (. . . continued) felony for felony murder and a conviction of the felony murder charge itself as the same offense under the Double Jeopardy Clause.” However, both cases cited in support of this view involve multiple prosecutions rather than multiple punishments . As discussed above, the question of whether multiple punishments conform to the requirements of the Double Jeopardy Clause turns not on the federal application of the Blockburger test, but rather on the discernment of state legislative intent through state rules of construction.# 26 807

- 10

- violated together, they are not necessarily violated together.” 2007 S.D. 86, ¶ 1 8 , 739 N.W.2d at 8 (quot ing State v. Armendariz , 141 P.3d 526, 533

- 44 (N.M. 2006))

. [¶ 15. ] Garza argues that , under the United State s Supreme Court ’s decision in United States v. Whalen , we should conclude that multiple punishments in this

case would violate double jeop ardy

. 445 U.S. 684, 691

- 9 2, 100 S. Ct. 1432, 1437

- 38, 63 L. Ed. 2d 715 (1980). In Whalen , the defendant was convicted of rape and felony murder with rape as the underlying felony. The Supreme C ourt , interpreting a District of Columbia felony

- murder stat ute similar to South Dakota’s , concluded that a felony murder in that case could not be proven without proving all the elements of rape, and therefore each statutory offense did not require the proof of a fact which the other did not

. Id

. at 69 3

- 9 4. The Supreme Court rejected the government’s argument that not all felony murders required proof of a rape, and therefore the crimes could be charged as separate offenses with separate punishments. Id. Therefore, the Blockburger test was not met and the impos ition of multiple punishments violated double jeopardy. Id. [¶ 16. ] Garza argues that this Court should come to the same result as Whalen

. 5 A lthough Whalen presented the United States Supreme Court with a similar statutory scheme to the one cha llenged in this case, we decline to apply the holding of Whalen

. First we point out that, as a federal enclave, the laws of the District of Columbia derive from acts of Congress and are inherently federal in

5

. We note that the Whalen decision was barely one and one

- half years old when we rejected its approach of examining the indictment, rather than the stat utory text. Thus, we have never followed Whalen

. See Simons , 313 N.W.2d at 467

- 68.# 26 807

- 11

- nature. Consequently, the Supreme Court determ ined that Congress intended the “rule of statutory construction stated by [the Supreme Court] in Blockburger v. United States ” to apply when determining whether two statutes punish the same offense in the District of Columbia. Whalen , 445 U.S. at 691, 100 S. Ct. at 1437. Second , and in contrast, we again note that questions of legislative intent are left to the determination of state courts. Hunter , 459 U.S. at 368, 103 S. Ct. at 679

. See also Whalen , 445 U.S. at 687

- 88, 100 S. Ct. at 1435 (recognizing that the United States Supreme Court is “barred from reviewing a state court’s interpretation of a state statute”). Thus, w e are not bound by the United States Supreme Court’s application of Blockburger to the District of Columbia statutes. See id. (noti ng that th e Supreme Court had “utilized [the Blockburger ] rule only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear” (emphasis added) )

. Looking to this Court’s application of Blockburger , w e

co nclude that the Whalen analysis is not in line with our precedent of interpreting statutes for double jeopardy purposes. [¶ 17. ] Whalen departed from a n abstract approach of applying the Blockburger test to the statutory elements and instead appl ied the test to how the crimes were actually charged. 445 U.S. at 694, 100 S. Ct. at 1439 ( “ I n the present case, however, proof of rape is a necessary element of proof of the felony murder

. . . . ”). See also id. at 711

- 12 , 100 S. Ct. at 1448 (Rehnquist, J., dissenting) (noting that the majority opinion “chooses instead to apply the test to the indictment”). As indicated above, t his Court has clearly stated that , when applying the Blockburger test to ascertain legislative intent , we do not consider how t he# 26 807

- 12

- offenses were proven at trial. Dillon , 2001 S.D. 97, ¶ 18, 632 N.W.2d at 44

- 45. See also Johnson , 2007 S.D. 86, ¶ 17, 739 N.W.2d at 7 (applying Blockburger to statutes in the abstract)

. “The test is whether the same act or transaction may constitute two distinct offenses if each offense as defined by statute requires the proof of some fact or element not required to establish the other.” Augustine , 2000 S.D. 93, ¶ 13, 614 N.W.2d at 798 (emphasis added) (quoting Seidschlaw , 304 N.W.2d at 106) (interna l quotation marks omitted)

. [¶ 18. ] Our primary focus when determining legislative intent is on the language used in the statute. See, e.g. , Lafferty , 2006 S.D. 50, ¶ 6, 716 N.W.2d at 784 (citing State v. Bordeaux , 2006 S.D. 12, ¶ 8, 710 N.W.2d 16 9, 172) (“ T h e true intent of the Legislature is ascertained primarily from the language of the
statute

. ”). Our traditional application of the Blockburger test leads to a consistent interpretation of legislative intent that keeps the statutory language cre ating the offenses at the forefront of the analysis, rather than focusing on how the offenses were charged in a particular case

. We see no compelling reason to abandon this approach. As the Michigan Supreme Court noted: [W] e must not lose sight of the fact that the Blockburger test is a tool to be used to ascertain legislative intent. Missouri v. Hunter, 459 U.S. 359, 368, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983). Because the statutory elements, not the particular facts of the case, are indicative of l egislative intent, the focus must be on these statutory elements. People v. Ream , 750 N.W.2d 536, 545 ( Mich. 2008) (rejecting double jeopardy claim where the defendant was convicted of both felony murder and the predicate felony of criminal sexual conduct )

. We therefore decline Garza’s request to apply Whalen ’s# 26 807

- 13

- conclusion that felony murder and the underlying felony are the same offense , under South Dakota law, for the purpose of imposing multiple punishments

. [¶ 19. ] The conclusion that the Leg islature intended felony murder and arson to be separate offenses is reinforced by the separate evils addressed by the homicide and arson statutes in South Dakota

. “S tatutes that are ‘ directed toward protecting different social norms and achieving differe nt policies can be viewed as separate and amenable to multiple punishments. ’ ” Johnson , 2007 S.D. 86, ¶ 18, 739 N.W.2d
at 8 (quoting Armendariz , 141 P.3d at 533

- 34 ). See also Albernaz , 450 U.S. at 343, 101 S. Ct. at 1144 (not ing “ separate evils ” of drug i mportation and distribution as supporting a finding of no double jeopardy violation in a conviction for both). The homicide statutes seek to protect human life by prohibiting the killing of another human being

. See SDCL chapter 22

- 16. The arson statutes encompass a similar concern for the protection of human life, especially by p rohibit ing the act of burning occupied structures

. SDCL 22

- 33

- 1 (1995). However, arson also encompasses burning unoccupied structures, and even personal property. 6 These prohi bitions demonstrate a legislative concern not only for human life, but also for the property interests harmed by arson. This policy concern is not encompassed by the homicide
statutes. T he se different societal interests addressed by the two offenses furt her

6

. SDCL 22

- 33

- 3 (1995) (prohibiting the burning of unoccupied structures and burning of personal property valued in excess of twenty

- five dollars). The different societal interests protected by the homicide and arson statutes are highlighted in the case at bar. The owner and tenants of the building burned by Garza suffered significant harm to their property interests. At the same time, an unidentified person was killed a s a result of Garza’s intentional act

— a harm the homicide statutes aim to protect against.# 26 807

- 14

- support our conclusion that the L egislature intended to authorize cumulative punishment for violation s of felony murder and the underlying felony of arson

. CONCLUSION [¶ 20. ] Under our application of the Blockburger test, felony murder and fir st

degree arson are not the “same offense” for the purpose of cumulative punishment analysis. The imposition of punishment under both statutes, in the same prosecution, does not exceed the punishment prescribed by the South Dakota Legislature and, consequ ently, does not violate the Due Process Clause. Therefore, the circuit court was authorized by the Legislature to impose concurrent sentences for both crimes. Accordingly, we affirm the circuit court’s denial of Garza’s motion to correct an illegal sente nce. [¶ 21. ] ZINTER, SEVERSON, and WILBUR, Justices, concur. [¶ 22. ] KONENKAMP, Justice, concurs in result.

KONENKAMP, Justice (concurring in result). [¶ 23. ] Although I agree with the result the Court reaches, I disagree with its declaration that “ [i]t is possible to commit a felony murder without committing a first

- degree arson and vice versa.” See supra Majority Opinion ¶ 14. Under the Blockburger rule, convictions of two criminal offenses arising from the same act are prohibi ted only when the greater offense necessarily includes all the elements of the
lesser offense. 7 Blockburger v. United States , 284 U.S. 299, 304, 52 S. Ct. 180, 182,

7

. Contrary to the Court’s claim, this writing does not part ways with the federal Blockburger analysis. Contra Roberts v. State , 712 N.E.2d 23, 30 (Ind. (continued . . .)# 26 807

- 15

- 76 L. Ed. 306 (1932). For felony murder, t he United States Supreme Court has consistently treated the conviction of a predicate felony and a conviction of the felony murder charge itself as the same offense under the Double Jeopardy Clause. See Harris v. Oklahoma , 433 U.S. 682, 682

- 83, 97 S. Ct. 2912, 2912

- 13, 53 L. Ed. 2d 1054 (1977) (per cu riam) (defendant convicted for felony murder based on underlying offense of robbery with firearms; subsequent prosecution for robbery with firearms precluded by the Double Jeopardy Clause); see also Payne v. Virginia , 468 U.S. 1062, 1062, 104 S. Ct. 3573, 3573

- 74, 82 L. Ed. 2d 801 (1984) (per curiam) (same). [¶ 24. ] In South Dakota, arson is one of the necessary predicate offenses of first

- degree felony murder. SDCL 22

- 16

- 4(2). Therefore, a pplying the Blockburger rule here, arson constitutes the same offense as felony murder for purposes of double jeopardy analysis, where the felony murder statute requires the act be committed by a person “engaged in the perpetration of . . . any arson,” SDCL 22

- 16

- 4 (1995), and the first

- degree arson statute req uires an act of arson

— “intentionally set[ting] fire to . . . any occupied structure[.]” SDCL 22

- 33

- 1 (1995). It is not possible to prove felony murder under SDCL 22

- 16

- 4 without also proving arson under SDCL 22

- 33

- 1. Our issue in this case concerns no t the conviction of two offenses, but the resulting punishment

.

________________________ (. . . continued) Ct. App . 1999) (applying a more stringent test) (cited by this Court in Dillon , 2001 S.D. 97, ¶ 20, 632 N.W.2d at 46 ). Rather, Blockburger is not conclusive on whether multiple punishments are precluded for different offenses arising out of the same conduct. Di llon , 2001 S.D. 97, ¶ 14, 632 N.W.2d at 43.# 26 807

- 16

- [¶ 25. ] Nor do I agree with the Court’s reasons for declining to follow Whalen v. United States , 445 U.S. 684, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980). Whalen is distinguishable for different reasons. First, it can be read narrowly to apply only to consecutive sentences. Here the sentences were concurrent. Second, the Whalen Court construed District of Columbia law, in which the Court found that a district sentencing statute “ clear ly confirms that Congress intended the federal courts to adhere strictly to the Blockburger test when construing the penal provisions of the District of Columbia Code.” Id. at 692, 100 S. Ct. at 1438. South Dakota has no equivalent statute. [¶ 26. ] Yet, as the Court points out, a pplication of the Blockburger rule does not end our double jeopardy analysis. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Ga rrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d 764 (1985). If the “[L]egislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger , a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter , 459 U.S. 359, 368

- 69, 103 S. Ct. 673, 6 79, 74 L. Ed. 2d 535 (1983). [¶ 27. ] I agree with the Court’s rationale for concluding that our Legislature intended felony murder and arson to be separately punishable offenses. Other courts have reasoned likewise. See, e.g ., State v. Greco , 579 A.2d 84, 89

- 92 (Conn. 1990); State v. McCovey , 803 P.2d 1234, 1239 (Utah 1990).