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2015 S.D. 60

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

SIERRA C. ANDERSON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BROOKINGS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE GREGORY J. STOLTENBURG

Judge

* * * *

MARTY J. JACKLEY

Attorney General

JARED TIDEMANN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

BENJAMIN L. KLEINJAN of

Helsper, McCarty, Mahlke

 & Kleinjan, P.C.

Brookings, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS 

ON MAY 26, 2015

OPINION FILED 07/15/15
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SEVERSON, Justice

[¶1.] Sierra Anderson appeals the circuit court’s departure from 

presumptive probation. She contends that her sentence for a term of imprisonment

violates her constitutional right to a jury trial because the court departed from

presumptive probation based on facts that were neither found by a jury nor 

admitted by Anderson. We affirm.

Background

[¶2.] Sierra Anderson, who was 22 years of age at the time, sold threequarters of a gram of methamphetamine to a confidential informant. After the sale, 

law enforcement executed a search warrant and found a remaining quarter of a 

gram in her purse. The charges brought against Anderson included a charge for

distribution of a schedule I or II substance and a charge for possession of a 

controlled substance. Anderson pleaded guilty to both offenses. On the distribution 

charge, the court sentenced Anderson to a term of six years in the penitentiary with 

two years suspended. That sentence is not being appealed. 

[¶3.] Possession of a controlled substance, the second charge, is prohibited 

by SDCL 22-42-5 and is a class 5 felony. A class 5 felony is punishable by a 

maximum of five years imprisonment and a fine of ten thousand dollars. SDCL 22-

6-1. However, SDCL 22-6-11 directs judges to sentence an offender convicted of a 

class 5 or class 6 felony to probation, unless the offender is convicted under certain 

enumerated statutes. SDCL 22-42-5 is not one of the exceptions. Nonetheless, 

SDCL 22-6-11 further provides that “[t]he sentencing court may impose a sentence 

other than probation if the court finds aggravating circumstances exist that pose a 
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significant risk to the public and require a departure from presumptive probation 

under this section.” 

[¶4.] Instead of imposing probation, the circuit court imposed a sentence of 

four years in the penitentiary, with two years suspended. The court stated that the 

following aggravating circumstances warranted a departure: (1) Anderson pleaded 

guilty to distribution of a controlled substance, (2) she was unemployed and had a 

history of sporadic employment, (3) she violated probation as a juvenile, and (4) she 

was not a good candidate for probation and would require a high-supervision level if 

placed on probation. Anderson now appeals the court’s sentence on the possession 

charge. She asserts that the court’s departure from presumptive probation in this 

case is unconstitutional. 

Standard of Review

[¶5.] We review challenges to the constitutionality of a statute de novo. 

State v. Outka, 2014 S.D. 11, ¶ 24, 844 N.W.2d 598, 606. There is a strong 

presumption that statutes are constitutional. Id. “To be invalidated a statute must 

be proved a breach of legislative power beyond a reasonable doubt. Only when the 

unconstitutionality of a statute is plainly and unmistakably shown will we declare 

it repugnant to our Constitution.” Id. (quoting State v. Stark, 2011 S.D. 46, ¶ 10, 

802 N.W.2d 165, 169). However, “[i]f a statute can be construed so as not to violate

the Constitution, that construction must be adopted.” Id. 

Analysis

[¶6.] South Dakota’s presumptive probation statute provides in full:

The sentencing court shall sentence an offender convicted of a 

Class 5 or Class 6 felony, except those convicted under §§ 22-
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11A-2.1, 22-18-1, 22-18-1.05, 22-18-26, 22-19A-1, 22-19A-2, 22-

19A-3, 22-19A-7, 22-19A-16, 22-22A-2, 22-22A-4, 22-24A-3, 22-

22-24.3, 22-24-1.2, 22-24B-2, 22-24B-12, 22-24B-12.1, 22-24B-23, 

22-42-7, subdivision 24-2-14(1), 32-34-5, and any person 

ineligible for probation under § 23A-27-12, to a term of 

probation. The sentencing court may impose a sentence other 

than probation if the court finds aggravating circumstances 

exist that pose a significant risk to the public and require a 

departure from presumptive probation under this section. If a 

departure is made, the judge shall state on the record at the 

time of sentencing the aggravating circumstances and the same 

shall be stated in the dispositional order. Neither this section 

nor its application may be the basis for establishing a 

constitutionally protected liberty, property, or due process 

interest.

SDCL 22-6-11. Anderson maintains that this statute is unconstitutional in light of 

the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the line of cases that have followed. 

See Alleyne v. United States, ___ U.S. ____, 133 S. Ct. 2151, 186 L. Ed. 2d 314 

(2013); Oregon v. Ice, 555 U.S. 160, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009); Blakely 

v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

[¶7.] In Apprendi, the Supreme Court struck down a New Jersey sentencing 

scheme that allowed judges to give an increased sentence term to a defendant if the 

judge found that the defendant committed a crime with a certain purpose. 530 U.S. 

at 468-69, 120 S. Ct. at 2351. The defendant in Apprendi pleaded guilty to

“possession of a firearm for an unlawful purpose,” a second-degree offense 

punishable by imprisonment “between five years and 10 years.” Id. at 468-69, 120 

S. Ct. at 2351-52. A separate statute allowed an “‘extended term’ of imprisonment if 

the trial judge [found], by a preponderance of the evidence, that ‘the defendant . . .

acted with a purpose to intimidate an individual or group of individuals because of 
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race, color, gender, handicap, religion, sexual orientation or ethnicity.’” Id. at 468-

69, 120 S. Ct. at 2351. The Supreme Court found that enhancement based on a 

judge’s fact-finding unconstitutionally “remove[d] from the jury the assessment of 

facts that increase the prescribed range of penalties to which a criminal defendant 

is exposed.” Id. at 490, 120 S. Ct. at 2363. It explained: 

If a defendant faces punishment beyond that provided by statute 

when an offense is committed under certain circumstances but 

not others, it is obvious that both the loss of liberty and the 

stigma attaching to the offense are heightened; it necessarily 

follows that the defendant should not—at the moment the State 

is put to proof of those circumstances—be deprived of protections 

that have, until that point, unquestionably attached. 

Id. at 484, 120 S. Ct. at 2359. Therefore, “[o]ther than the fact of a prior conviction, 

any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. 

at 490, 120 S. Ct. at 2362-63. 

[¶8.] The Supreme Court has further explained that “[a] ‘statutory 

maximum’ for Apprendi purposes is the maximum sentence a judge may impose 

solely on the basis of the facts reflected in the jury verdict or admitted by the 

defendant.” Blakely, 542 U.S. at 303, 124 S. Ct. at 2537. However, the Supreme 

Court clarified that “[i]f appropriate waivers are procured, States may continue to 

offer judicial factfinding as a matter of course to all defendants who plead guilty. 

Even a defendant who stands trial may consent to judicial factfinding as to sentence 

enhancements, which may well be in his interest if relevant evidence would 

prejudice him at trial.” Id. at 310, 124 S. Ct. at 2541.
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[¶9.] More recently, the Supreme Court has held Apprendi inapplicable to a 

sentencing scheme that requires concurrent sentencing absent additional fact

finding by a court. Ice, 555 U.S. at 169, 129 S. Ct. at 718. In Ice, the Supreme 

Court explained that Apprendi’s rule and its application in the cases that followed 

were distinguishable from a scheme that allowed departure from concurrent 

sentencing of multiple crimes because “[a]ll of th[o]se decisions involved sentencing 

for a discrete crime, not—as here—for multiple offenses different in character or 

committed at different times.” Id. at 167, 129 S. Ct. at 717. It explained that “twin 

considerations—historical practice and respect for state sovereignty—counsel 

against extending Apprendi’s rule to the imposition of sentences for discrete crimes. 

The decision to impose sentences consecutively is not within the jury function that 

‘extends down centuries into the common law.’” Id. at 168, 129 S. Ct. at 717 (citing 

Apprendi, 530 U.S. at 477, 120 S. Ct. at 2348). The Supreme Court surveyed the 

history of imposing sentences and determined: 

There is no encroachment here by the judge upon facts 

historically found by the jury, nor any threat to the jury’s 

domain as a bulwark at trial between the State and the accused. 

Instead, the defendant—who historically may have faced 

consecutive sentences by default—has been granted by some 

modern legislatures statutory protections meant to temper the 

harshness of the historical practice. 

Id. at 161, 129 S. Ct. at 713. The Court reiterated that the “core concern” of 

Apprendi is “a legislative attempt to ‘remove from the province of the jury’ the 
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determination of facts that warrant punishment for a specific statutory offense.” Id. 

at 170, 129 S. Ct. at 718. 1

[¶10.] Finally, the Supreme Court has addressed Apprendi in two additional 

cases. In Alleyne, the Supreme Court applied Apprendi to mandatory minimum 

sentences—those that set a “floor” on a sentence. ___ U.S. at ____, 133 S. Ct. at 

2158. Alleyne overruled previous decisions where the Supreme Court had 

determined that a difference existed between facts that increase a mandatory 

maximum sentence and facts that increase a mandatory minimum sentence. See 

Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), 

overruled by Alleyne, __ U.S. at __, 133 S. Ct. at 2163. The Court has also applied 

Apprendi to the imposition of civil fines. Southern Union Co. v. United States, 

___U.S.___, 132 S. Ct. 2344, 2352 n.5, 183 L. Ed. 2d 318 (2012).

[¶11.] When confronted with a question of whether the jury must make 

certain factual findings, the Supreme Court has told us that “the scope of the 

constitutional jury right must be informed by the historical role of the jury at 

common-law. It is therefore not the case that . . . the federal constitutional right 

 

1. Before the Supreme Court issued its opinion in Ice, at least two state 

supreme courts and one state appellate court addressed whether departure 

from presumptive probation requires a jury determination. See State v. Carr, 

53 P.3d 843, 846-47 (Kan. 2002) (holding that the right to a jury does not 

extend to upward dispositional departures, only upward durational 

departures); State v. Allen, 706 N.W.2d 40, 47 (Minn. 2005) (“[U]pward 

dispositional departure upon finding an aggravating factor without the aid of 

jury . . . [was] unconstitutional as applied.”); State v. Buehler, 136 P.3d 64, 

65-66 (Or. Ct. App. 2006) (holding that additional fact-finding necessary to 

impose anything more than presumptive sentence of probation “must conform 

to the requirements elucidated in Blakely and Apprendi”). 
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attaches to every contemporary state-law ‘entitlement’ to predicate findings.” Ice,

555 U.S. at 170, 129 S. Ct. at 718 (emphasis added). Therefore, even though South 

Dakota’s presumptive probation statute requires the determination of predicate 

circumstances before imposition of a prison term, if “[t]here is no encroachment here 

by the judge upon facts historically found by the jury, nor any threat to the jury’s 

domain as a bulwark at trial between the State and the accused[,]” then sentencing 

a defendant based on those judge-found factors is not a violation of Apprendi. See 

Id. at 169, 129 S. Ct. at 713.

[¶12.] Under the common law, probation was developed and granted by 

judges; “the modern humane practice of probation was developed in Massachusetts

by judges as a natural part of the business of administering justice[.]” Frank W. 

Grinnell, The Common Law History of Probation-An Illustration of the Equitable 

Growth of Criminal Law, 32 J. Crim. L. & Criminology 15, 30 (1941). “It was . . . 

through judicial experiment, which was evidently believed to be within the common 

law powers of Massachusetts judges, that the principle of probation was applied 

experimentally in practice until, as a result of gradually forming public opinion, the 

practice became so generally approved that the legislature took it up and provided 

for its development . . . .” Id. at 28 (citing Com. v. Dowdican’s Bail, 115 Mass. 133, 

136 (1874)). Thus, the judge, rather than the jury, traditionally decided which 

circumstances warranted probation rather than imprisonment. Likewise, the 

Supreme Court has recognized that “[p]robation, like incarceration, is ‘a form of 

criminal sanction imposed by a court upon an offender after verdict, finding, or plea 

of guilty.’” United States v. Knights, 534 U.S. 112, 119, 122 S. Ct. 587, 591, 151 L. 
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Ed. 2d 497 (2001) (emphasis added) (quoting Griffin v. Wisconsin, 483 U.S. 868, 874, 

107 S. Ct. 3164, 3169, 97 L. Ed. 2d 709 (1987)). By the time that a sentencing court 

is determining whether probation is appropriate for the offense committed, the jury 

has already performed its historic function—“determining whether the prosecution 

has proved each element of an offense beyond a reasonable doubt.” Ice, 555 U.S. at 

163, 129 S. Ct. at 714.

[¶13.] The history of probation as an innovative alternative to 

incarceration—developed by judges and then legislatively approved—confirms that 

it is a prime example of “the role of the States as laboratories for devising solutions 

to difficult legal problems.” Id. at 171, 129 S. Ct. at 718-19. The Supreme Court 

has recognized that “[b]eyond question, the authority of the States over the 

administration of their criminal justice systems lies at the core of their sovereign 

status. See e.g., Patterson v. New York, 432 U.S. 197, 201, 97 S. Ct. 2319, 2322, 53 

L. Ed. 2d 281 (1977) (‘It goes without saying that preventing and dealing with crime 

is much more the business of the States than it is of the Federal Government.’).” 

Ice, 555 U.S. at 170-71, 129 S. Ct. at 718. South Dakota has also recognized that 

“[p]robation . . . is an alternative to confinement in cases where the [sentencing 

court] deems that both the defendant and the public would benefit.” State v. 

Marshall, 247 N.W.2d 484, 487 (S.D. 1976). It allows an offender an opportunity to 

rehabilitate and protects the public “through supervision by a probation officer and 

the continuing jurisdiction of the [circuit] court to revoke probation[.]” Id. 

Consequently, when sentencing courts determine facts relevant to probation, the 

courts are properly administering the criminal justice system rather than 
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“encroach[ing] . . . upon facts historically found by the jury[.]” See Ice, 555 U.S. at 

169, 129 S. Ct. at 718.

[¶14.] Those “twin considerations—historical practice and respect for state 

sovereignty—counsel against extending Apprendi’s rule to the imposition of” a 

sentence of probation. Ice, 555 U.S. at 168, 129 S. Ct. at 717. When a sentencing 

court finds the facts necessary to impose a prison term rather than that of 

probation, the core concern of Apprendi—“a legislative attempt to ‘remove from the 

province of the jury’ the determination of facts that warrant punishment for a 

specific statutory offense[,]”—is not implicated. Ice, 555 U.S. at 170, 129 S. Ct. at 

718. South Dakota’s presumptive probation statute “seek[s] to rein in the discretion 

judges possessed at common law to impose” probation and “serves the ‘salutary 

objectives’ of promoting sentences proportionate to ‘the gravity of the offense,’ and of 

reducing disparities in sentence length.” See id. (citing Blakely, 542 U.S. at 308, 

124 S. Ct. at 2531).

[¶15.] Our decision is consistent with Supreme Court cases recognizing that 

there is no right to a jury trial for probation revocation. “[P]robationers . . . face 

revocation of probation, and possible incarceration, in proceedings in which the trial 

rights of a jury and proof beyond a reasonable doubt, among other things, do not 

apply[.]” Knights, 534 U.S. at 120, 122 S. Ct. at 592. In both cases—initially 

denying probation and revoking probation—the court is determining whether 

incarceration is appropriate, and it is within the court’s purview to decide facts 

relevant to that decision. Further, such a decision does not alter the range of years 

of imprisonment that a court may impose for a particular offense.
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[¶16.] Lastly, this case exemplifies the sentencing court’s role in

administering the criminal justice system and fashioning a sentence within the 

legislative and constitutional framework. Anderson faced multiple sentences in this 

case. She pleaded guilty to distribution of a schedule I or II substance—a class 4 

offense carrying a mandatory penitentiary sentence of at least one year.2 SDCL 22-

42-2. Anderson was sentenced to six years in the penitentiary with two years 

suspended for the distribution charge and could not have been placed on probation 

for the possession charge because doing so would have subjected her to 

simultaneous supervision of the executive and judicial branches.3 We have 

previously reversed such sentences. See State v. McConnell, 495 N.W.2d 658 (S.D. 

1993) (“[C]oncurrent penitentiary term and probation requirement effectively put 

[defendant] under simultaneous supervision of both the executive and judicial 

branches of government. . . . a defendant convicted of a crime should not be under 

simultaneous supervision of agencies of two separate branches of government.”).

“[S]pecification of the regime for administering multiple sentences has long been 

considered the prerogative of state legislatures.” Ice, 555 U.S. at 168, 129 S. Ct. at 

717. Therefore, the sentencing court appropriately sentenced Anderson. We affirm.

 

2. A sentencing court can depart from the penitentiary sentence if it “finds that 

mitigating circumstances exist which require a departure[.]” SDCL 22-42-

2.3. 

3. Defendants sentenced to the state penitentiary are under the supervision of 

the executive branch, see South Dakota Constitution article IV, § 9; SDCL 

chapter 1-15, while those sentenced to probation are under the supervision of 

the judicial branch, see South Dakota Constitution article V, § 5; SDCL 

chapter 23A-27.
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[¶17.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, 

Justices, concur.