#30013-r-JMK 2024 S.D. 16
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MATTHEW T. FEUCHT, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA
THE HONORABLE JEROME A. ECKRICH III Retired Judge
MANUEL J. DE CASTRO, JR. Sioux Falls, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General
JENNIFER M. JORGENSON Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS MARCH 21, 2023 REASSIGNED JULY 21, 2023 OPINION FILED 04/03/24 #30013
KERN, Justice (on reassignment).
[¶1.] Matthew Feucht pled guilty to possession of a controlled substance,
and the circuit court sentenced him to nine years in the penitentiary with four
suspended. Feucht appeals, asserting the circuit court erred in imposing a
penitentiary sentence without finding aggravating circumstances within the
meaning of SDCL 22-6-11 and further erred by not listing the aggravating
circumstances in the judgment of conviction. We reverse and remand.
Factual and Procedural Background
[¶2.] On January 23, 2021, Feucht was at his home in Hudson, South
Dakota, with his son and sixteen-year-old daughter, A.F., when A.F. found bags of
marijuana in a box in a closet in the home. 1 A.F. texted her mother, Feucht’s ex-
wife, photographs she had taken of the marijuana in the box and of a glass pipe she
later found. In one picture, the butt of a gun was visible. The mother called
dispatch, requesting to speak to an officer about her children being in the home
with Feucht. Deputy Leah Stroschein spoke with the mother and then called A.F.
Because A.F. could not talk at the time, Deputy Stroschein sent her a text message
asking her what she had located in the house. In response, A.F. sent the deputy a
text containing the pictures she had sent her mother. Using the information
provided, Deputy Stroschein applied for a search warrant for Feucht’s home.
1. The factual background for this case comes from the information contained in the presentence investigation report (PSI), including attached law enforcement reports. Feucht did not object to any of the information in the PSI and had previously consented to the circuit court using the law enforcement reports to find a factual basis for his guilty plea.
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[¶3.] Deputy Stroschein’s report states that while she was waiting for the
warrant, A.F. texted her: “He found out”; “He[’]s mad”; “He[’]s hiding the box”;
“He[’]s going to be livid”; “He[’]s pisse[d].” Although, at the time, it was unclear who
tipped off Feucht, law enforcement later learned that the dispatcher was Feucht’s
uncle, who told Feucht about the call and suggested Feucht get rid of the drugs. 2
[¶4.] Deputy Stroschein’s report also noted that A.F. called her because
Feucht was leaving the house with the box of marijuana. A.F. told the deputy that
she did not know where Feucht was going. A.F. also told Deputy Stroschein that
she would be hiding under the deck of the residence because she was scared of
Feucht. A.F. then hung up and texted Deputy Stroschein that Feucht had returned
and was moving other items, including a box, to his vehicle. Around this same time,
officers arrived at the home to execute the search warrant and Feucht was placed in
the back of a patrol vehicle.
[¶5.] During the search, the officers recovered firearms, ammunition, drug
paraphernalia, and approximately $6,800 in small bills. Deputy Stroschein
discovered what she believed to be an old marijuana growing operation in Feucht’s
basement based on the presence of several fluorescent lights, jugs of PH balance
liquid, and an additional electrical panel. While still at the home, law enforcement
obtained a warrant to search Feucht’s vehicle and found several illegal substances,
including THC wax and mushrooms. Feucht was placed under arrest.
2. The dispatcher’s conduct was reported to and investigated by the South Dakota Division of Criminal Investigation.
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[¶6.] Officers eventually learned from A.F. that Feucht might have taken
the box of marijuana to his friend’s house in Hawarden, Iowa. Officers relayed this
information to the Hawarden Police Department, and a search warrant was
executed on the friend’s home on January 28, 2021. The search recovered sixteen
pounds of marijuana in a box consistent with the one in the photograph taken by
A.F. and over nine ounces of psilocybin mushrooms.
[¶7.] On February 1, 2021, Feucht’s phone was seized pursuant to a
warrant. The search revealed photographs of drugs and text messages between
Feucht and others using drug slang and coordinating times to come to Feucht’s
property. Law enforcement determined that multiple phone numbers found in
Feucht’s contacts belonged to people with prior drug arrests.
[¶8.] Feucht was indicted by a Lincoln County grand jury on February 17,
2021, for thirteen misdemeanor and felony counts including: two counts of
possession with intent to manufacture, distribute, or dispense a controlled
substance; distribution or possession with intent to distribute marijuana; felony
possession of marijuana; two counts of abuse or cruelty to a minor age seven or
above; tampering with a witness; two counts of keeping a place for sale or use of a
controlled drug or substance; two counts of unauthorized possession of a controlled
substance; possession of a firearm by one with a prior drug conviction; and simple
assault, domestic. The State filed a part II information, alleging that Feucht had
two prior felonies. Feucht pled not guilty and denied that he was a habitual
offender.
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[¶9.] On January 7, 2022, the circuit court held a change of plea hearing.
Counsel for Feucht related that under the terms of the agreement, Feucht would
plead guilty to unauthorized possession of a controlled substance in violation of
SDCL 22-42-5 and admit to the part II information. In exchange, the State would
dismiss the remaining twelve charges. Under the terms of the agreement, both
Feucht and the State were free to make sentencing recommendations. The circuit
court confirmed the terms of the plea agreement with Feucht and his understanding
that, based on the plea agreement and his admission to the part II information, the
sentence for the offense would be enhanced from that imposed for a Class 5 felony to
a Class 4 felony, which carries a maximum penalty of ten years in prison, a $20,000
fine, or both.
[¶10.] The court accepted Feucht’s guilty plea, determining that it was
voluntary, knowing, and intelligent. The court indicated that, with Feucht’s
consent, it would use the police reports, test results from the investigation, and
grand jury testimony as the factual basis for the plea. Prior to the conclusion of the
hearing, during a discussion about Feucht’s bond status pending sentencing,
defense counsel reminded the circuit court that “this is a presumptive probation
case[,]” to which the circuit court responded, “Yeah, I know.” The circuit court
ordered a PSI and scheduled a sentencing hearing.
[¶11.] At the sentencing hearing on February 18, 2022, the State requested a
ten-year penitentiary sentence based on the circumstances surrounding the offense
and Feucht’s criminal history, which included a third-degree burglary conviction
and multiple convictions for possession of a controlled substance. The State also
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asserted that Feucht was a drug dealer who “would stop at nothing to get rid of this
evidence . . . even at the cost of his daughter.”
[¶12.] Feucht’s counsel requested that the court “consider some type of
probationary sentence[.]” Counsel acknowledged that Feucht has a criminal
history; however, he noted that the last conviction was in 2012 for an incident
Feucht indicated had occurred in 2009. Counsel also stressed that Feucht did not
have any violations while on parole for that offense and had done what was
required of him while out on bond pending sentencing. Counsel therefore argued
that Feucht could “succeed on any probationary sentence[.]”
[¶13.] The circuit court began the imposition of its oral sentence by speaking
personally with Feucht. During that discussion, the court asked whether Feucht
had read the letters written on his behalf, highlighting the letter from Feucht’s
mother. The court also indicated that it did not believe Feucht was evil and that he
has an opportunity for redemption. Before continuing, however, the court told
Feucht that he would be imposing a penitentiary sentence stating:
And you might have good in your heart, but you’ve still got stinkin’ thinkin in your head and that means that you’re going to, before you can, in my view, become a truly good person and be ready for redemption if it will, that your head and your heart have to get together. That means accepting responsibility. Accepting blame. Expect - - accepting your agency and the circumstances you find yourself in.
Now, I believe you when you say that you did not threaten your kids. Now, under the circumstances you can certainly see how either your daughter or your son might have thought you were threatening them, pretty tough day, right. Getting rid of all that stuff. Got the kids there. Cops coming, da da da da, but I believe you. I believe you. That’s not really exactly everything that’s going on here. We’re - - what’s going on here to me is how when I read all those letters, and I see those various good things
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you’ve done, and the people that have seen the good things that you have done, and this is what comes back to me time after time, after time, after time. People who commit crimes a lot of times they don’t begin to consider the ripple effect. The wave effect. The tidal wave effect that they have on other people’s lives. You in a way punish people, the people around you way more than I can ever punish you.
Take your mom. She’s behind you all the way. She could use some help, couldn’t she now?
[Feucht replied, “Yes.”]
...
Sure she’s not going to have that. Why did that happen? You. Were you thinking about that when you’re putting all this stuff together, and you know this isn’t a crime that happened like that. It takes a little while to put together an operation that you had and who knows how long it was going on. I don’t frankly care.
Your kids. Could they use their old man? Could they know their old man despite all his faults is behind them in a pretty tough time. You bet.
Why is that not going to happen, at least conveniently, you. Call, the call you made. Your dogs. All these various things that you did. You at some point in time and maybe for the, for your whole life, I don’t know. You’re thirty-eight years old. You haven’t seemed to get it yet. Decided that making some money off pot, mushrooms, wax, was worth the risk. You made that call.
Who’s paying the most? I think me, personally, I think probably it’s your kids. Your ma. Your friends. Your dogs. Okay. So, that’s the bad.
Here’s the good. I believe in redemption. I believe in it. I believe that you can redeem yourself. . . . Now, you have to buck up and you have to do your Pen time. You’re going to get out. You’re going to be on parole. People are already going to think that, . . . Matt Feucht, he’s a . . . drug dealer. He went to the Pen twice. Three times, whatever it is, but if you have that grain of good, if you have and you’re willing to grow that grain, and you’re willing to accept some responsibility, get away a little
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bit of this stinking thinking that you’ve got . . . [the court does not] . . . have any reason to think that you can’t be a productive citizen . . . [and] . . . come back in to your kids’ lives and be a positive force.
Ultimately, the court sentenced Feucht to nine years in the penitentiary with four
years suspended and credit for time served. Feucht appeals.
Analysis and Decision
[¶14.] Feucht notes that the crime for which he pled guilty is a Class 5 felony
that requires a probationary sentence unless the circuit court finds that
aggravating circumstances exist that pose a significant risk to the public and
require departure from presumptive probation. He then claims that the circuit
court erred in sentencing him to prison because the court did not, at the sentencing
hearing, find the presence of aggravating circumstances that pose a significant risk
to the public and did not list the aggravating circumstances in its judgment of
conviction. In Feucht’s view, the circumstances of his case are “almost identical” to
those in State v. Flowers, wherein this Court remanded for resentencing because the
circuit court did not mention probation, aggravating circumstances, or departing
from probation, and the written judgment of conviction did not list aggravating
circumstances. 2016 S.D. 63, 885 N.W.2d 783.
[¶15.] In response, the State claims that Feucht failed to preserve this
argument for appellate review because he did not raise below the question of
whether the circuit court complied with SDCL 22-6-11. 3 According to the State, if
3. The State further contends that Feucht waived the issue on appeal by omitting in his appellate brief, as required by SDCL 15-26A-60(4), a “concise statement” of how the circuit court decided the legal issue being challenged (continued . . .) -7- #30013
Feucht thought the circuit court “did not treat the case as a presumptive probation
case pursuant to SDCL 22-6-11”; “did not find aggravating circumstances on the
record at sentencing”; and “did not include aggravating circumstances in the
dispositional order[,]” he “had ample opportunity to raise . . . the issue at sentencing
and could have filed a motion to amend the judgment to correct the clerical errors.”
The State then directs this Court to our past cases declining to review on appeal an
issue not first brought to the attention of the circuit court. See, e.g., State v.
Podzimek, 2019 S.D. 43, ¶ 27, 932 N.W.2d 141, 149 (declining to address claim that
subpoenas were deficient because the issue was not raised below); State v. Wright,
2009 S.D. 51, ¶ 68, 768 N.W.2d 512, 534 (recognizing that even fundamental rights
“may be deemed waived if . . . raised for the first time on appeal” (citation omitted)).
[¶16.] In his reply brief, Feucht asserts that he did not need to take action to
preserve this type of error for appeal. As support, he directs this Court to the
absence of language in our past cases indicating that defendants had objected below
or that they were required to first raise the issue to the circuit court before being
permitted to assert on appeal that the court failed to comply with mandates in
________________________ (. . . continued) on appeal. On the contrary, Feucht complied with SDCL 15-26A-60(4). Under that rule of appellate procedure, Feucht was required to include in his brief “[a] concise statement of the legal issue or issues involved . . . followed by a concise statement of how the trial court decided it[.]” Here, Feucht identifies the legal issue involved as whether the circuit court complied with SDCL 22-6-11 at the sentencing hearing and argues that the court sentenced him to the penitentiary without identifying aggravating circumstances at the time of sentencing or listing those circumstances in the judgment of conviction.
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SDCL 22-6-11. See, e.g., Flowers, 2016 S.D. 63, 885 N.W.2d 783; State v. Beckwith,
2015 S.D. 76, 871 N.W.2d 57.
[¶17.] While Feucht’s assessment of what is not contained in this Court’s past
cases is correct, we do not regard this, in and of itself, as precedential. A review of
these cases reveals that we were not asked to examine whether the defendant was
required to raise this issue below to preserve it for appeal. We are now squarely
confronted with that question and thus examine whether an error related to the
circuit court’s noncompliance with SDCL 22-6-11 must be preserved for appeal by
first raising the issue to the circuit court.
Whether SDCL 22-6-11 Error Must Be Preserved
[¶18.] As this Court recognized in State v. Hernandez, SDCL 22-6-11 was
enacted in 2013 as part of Senate Bill 70 (The Public Safety Improvement Act), and
it imposed new sentencing requirements on circuit courts for offenders convicted of
certain offenses. 2014 S.D. 16, ¶ 11, 845 N.W.2d 21, 22. While a circuit court’s
failure to comply with SDCL 22-6-11 initially resulted in multiple appeals to this
Court, 4 it is now well known that defendants convicted of qualifying offenses are
entitled to probation unless the circuit court finds aggravating circumstances that
pose a significant risk to the public and require departure from probation. It is also
4. After Hernandez, this Court issued multiple opinions concerning SDCL 22-6- 11, including five decisions in 2015 alone. State v. Moran, 2015 S.D. 14, 862 N.W.2d 107; State v. Whitefield, 2015 S.D. 17, 862 N.W.2d 133; State v. Anderson, 2015 S.D. 60, 867 N.W.2d 718; Beckwith, 2015 S.D. 76, 871 N.W.2d 57; State v. Orr, 2015 S.D. 89, 871 N.W.2d 834. Since 2015, we have only issued four decisions related to SDCL 22-6-11. Flowers, 2016 S.D. 63, 885 N.W.2d 783; State v. Underwood, 2017 S.D. 3, 890 N.W.2d 240; State v. Krause, 2017 S.D. 16, 894 N.W.2d 382; State v. Roedder, 2019 S.D. 9, 923 N.W.2d 537.
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well known that when a circuit court departs from presumptive probation, the court
must state the aggravating circumstances on the record and include them in the
dispositional order. Finally, our past decisions have made it clear that strict
compliance with the provisions of SDCL 22-6-11 is necessary.
[¶19.] For example, in one of our earliest cases examining SDCL 22-6-11, we
rejected the State’s argument that the doctrine of substantial compliance could
apply when a circuit court stated the aggravating circumstances on the record but
then failed to include them in the judgment of conviction. State v. Whitefield, 2015
S.D. 17, ¶ 18, 862 N.W.2d 133, 139. However, because the error was merely clerical,
we remanded for the circuit court to issue an amended judgment of conviction that
complied with SDCL 22-6-11. Id.; see also Beckwith, 2015 S.D. 76, ¶ 18, 871 N.W.2d
at 61–62 (“The court’s failure to restate the . . . aggravating circumstances in the
written judgment was only a clerical error.”).
[¶20.] More recently, we declined to construe a circuit court’s acceptance of
the prosecutor’s statement of aggravating circumstances at the sentencing hearing
as compliance with SDCL 22-6-11, even though the circuit court listed the
aggravating circumstances in the judgment of conviction. State v. Roedder, 2019
S.D. 9, ¶ 38, 923 N.W.2d 537, 548. The Court explained that “the sentencing court,
not the prosecutor, must state on the record the aggravating circumstances which
impact public safety as a predicate to departing from a presumptive sentence and
include those factors in the written judgment.” Id. We then vacated the
defendant’s sentence and remanded for a new sentencing hearing, id. ¶ 41, 923
N.W.2d at 549, because the court’s statements at sentencing were “inadequate to
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constitute a finding that ‘aggravating circumstances exist that pose a significant
risk to the public[,]’” id. ¶ 36, 923 N.W.2d at 548. However, this precedent does not
stand for the proposition that any deviation from the requirements of SDCL 22-6-11
constitutes reversible error regardless of a party’s failure to raise the alleged error
to the circuit court. Although the Legislature imposed a burden on circuit courts to
comply with SDCL 22-6-11, this does not perforce mean that parties are excused of
their duty to raise alleged errors first to the circuit court to preserve error for
review on appeal.
[¶21.] In fact, in State v. Nelson, this Court specifically applied plain error
review when, like here, the circuit court failed to comply with mandatory statutory
directives, albeit ones related to the reading of jury instructions and the dismissing
of an alternate juror, and the defendant did not raise the issue to the circuit court.
1998 S.D. 124, 587 N.W.2d 439. In that regard, the Court in Nelson stated that an
objection is necessary when a court “materially deviates from the statutory
procedures it is bound to uniformly and fairly administer[.]” 1998 S.D. 124, ¶ 13,
587 N.W.2d at 444. To conclude otherwise runs counter to the well-established rule
that “[t]o preserve issues for appellate review litigants must make known to trial
courts the actions they seek to achieve or object to the actions of the court, giving
their reasons.” Id. ¶ 7, 587 N.W.2d at 443. Indeed, there are compelling reasons for
requiring parties to first raise alleged errors related to SDCL 22-6-11 to the circuit
court.
[¶22.] First, these types of errors—failure to state aggravating circumstances
on the record at sentencing or failure to include them in the judgment of
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conviction—relate to sentencing procedure, not to whether the circuit court abused
its discretion in imposing a penitentiary sentence under the circumstances before
the court. See, e.g., Beckwith, 2015 S.D. 76, ¶ 7, 871 N.W.2d at 59 (explaining that
“[w]e apply the abuse of discretion standard in reviewing a sentencing court’s
decision to depart from presumptive probation”). Therefore, requiring an objection
at the time the error occurs aligns with the purpose of our rule that parties must
raise issues first to the circuit court to give “the circuit court . . . an opportunity to
correct any error.” State v. McCrary, 2004 S.D. 18, ¶ 15, 676 N.W.2d 116, 121.
[¶23.] Second, objecting at the time the circuit court fails to identify on the
record the aggravating circumstances warranting a deviation from presumptive
probation as required under SDCL 22-6-11 promotes judicial efficiency. It is neither
efficient nor a prudent use of judicial resources to allow a party to remain silent
when fully aware that the circuit court has failed to comply with SDCL 22-6-11—
whether at sentencing or in entering the written judgment of conviction. 5 The
circuit court, not this Court, is in the best position to correct a failure to state
aggravating circumstances when pronouncing sentence, and an objection at the
5. It is less likely that the State will be the party appealing a circuit court’s error related to pronouncing a sentence under SDCL 22-6-11. However, the State surely has an interest in ensuring the circuit court complies with SDCL 22-6-11 and should alert the circuit court during sentencing when it appears that the statute has not been complied with. Moreover, because the State traditionally prepares the judgment of conviction for the circuit court’s signature, it is uniquely positioned to ensure that the aggravating circumstances stated on the record are included in the judgment of conviction. Also, in those cases where the aggravating circumstances are not stated on the record or included in the judgment of conviction, such an error would likewise be obvious to the State and defendant.
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time the error occurs serves to remind the circuit court of its obligations under
SDCL 22-6-11 and gives the court the ability to immediately correct its error.
[¶24.] For these reasons, we conclude that when a circuit court fails to comply
with the procedural requirements of SDCL 22-6-11, parties must first raise the
issue to the circuit court to preserve the error for appeal and avoid plain error
review. See Nelson, 1998 S.D. 124, ¶ 7, 587 N.W.2d at 443; see also State v. Wilson,
2020 S.D. 41, ¶ 17, 947 N.W.2d 131, 136 (“Where an issue has not been preserved by
objection at trial, our review is limited to whether the trial court committed plain
error.” (quoting State v. Thomas, 2011 S.D. 15, ¶ 20, 796 N.W.2d 706, 713)).
[¶25.] However, it is well settled that this Court has the inherent power to
apply our decisions prospectively or retrospectively. See Hohm v. City of Rapid
City, 2008 S.D. 65, ¶ 21, 753 N.W.2d 895, 906; City of Rapid City v. State, 279
N.W.2d 165, 166 (S.D. 1979). In this Court’s past decisions involving alleged
failures to comply with SDCL 22-6-11, we have not applied the plain error standard
despite the lack of an indication in the record that the issue had been raised below.
Thus, defendants like Feucht have not been warned that they must object below to
avoid having the issue reviewed on appeal under the plain error standard. See
United States v. Flores-Mejia, 759 F.3d 253, 258–59 n.7 (3d Cir. 2014) (en banc) (not
reviewing alleged procedural sentencing error for plain error “[b]ecause defendants
sentenced before the issuance of this opinion had not been warned that they had a
duty to object” after the sentence is pronounced). Nevertheless, going forward,
alleged procedural errors regarding the application of SDCL 22-6-11 that were not
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first brought to the attention of the sentencing court will be reviewed only for plain
error.
Compliance with SDCL 22-6-11
[¶26.] On the question whether the circuit court complied with SDCL 22-6-11
here, the State concedes that the circuit court erred in regard to its obligation to
state aggravating circumstances in the judgment of conviction and agrees that
remand is necessary for the court to issue an amended judgment. However, the
State asserts that Feucht is not entitled to a new sentencing hearing because, in its
view, the circuit court knew Feucht was eligible for presumptive probation and
stated the required aggravating circumstances on the record at the sentencing
hearing. As support, the State relies on the circuit court’s acknowledgement at the
change of plea hearing that the charged offense to which Feucht pled guilty was a
presumptive probation offense.
[¶27.] The State then points to the following matters discussed by the court
at the sentencing hearing: Feucht’s large-scale drug dealing operation, his criminal
history and prior penitentiary sentences; his “stinkin’ thinkin”; his actions having a
“tidal wave effect . . . on other people’s lives”; his daughter feeling threatened; and
the fact that he devoted his time to crimes when he could have been spending it
with his children or helping his mother. In the State’s view, these statements made
by the circuit court are sufficient to support a departure from presumptive
probation because they show Feucht’s criminal mindset, his negative behaviors that
are harmful to others, his failure to accept responsibility, and his continued
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criminal activity. But in the context of SDCL 22-6-11, we have previously required
greater clarity in the sentencing record.
[¶28.] This Court has observed that SDCL 22-6-11 requires circuit courts “to
sentence defendants convicted of certain Class 5 and 6 felonies (including
possession of a controlled substance) to probation unless ‘the court finds
aggravating circumstances exist that pose a significant risk to the public and
require a departure from presumptive probation.’” Flowers, 2016 S.D. 63, ¶ 6, 885
N.W.2d at 784 (quoting SDCL 22-6-11). In this regard, when we have not been able
to discern from the sentencing record whether the circuit court was in fact applying
the statutory requirements in SDCL 22-6-11 when imposing sentence, we have
remanded for a new sentencing hearing. Roedder, 2019 S.D. 9, ¶ 36, 923 N.W.2d at
548 (concluding also that the court incorrectly determined that SDCL 22-6-11 did
not apply). Similarly, in Flowers, we remanded for a new sentencing hearing,
noting that the circuit court “did not mention probation, a departure from
presumptive probation, or aggravating circumstances warranting a departure from
probation.” 2016 S.D. 63, ¶ 4, 885 N.W.2d at 784.
[¶29.] Here, although the circuit court did not indicate that SDCL 22-6-11
was inapplicable (as did the circuit courts in Roedder and Flowers), it is not
apparent from our review of Feucht’s sentencing transcript that the circuit court
applied SDCL 22-6-11 when it imposed a penitentiary sentence instead of
probation. This is not to say that circuit courts are required to use “magic
language” to comply with SDCL 22-6-11. But the statute mandates that defendants
convicted of certain low-level felonies receive a sentence of presumptive probation
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unless “the court finds aggravating circumstances exist that pose a significant risk
to the public[.]” State v. Whitfield, 2015 S.D. 17, ¶ 19, 862 N.W.2d 133, 140
(alteration in original).
[¶30.] Although the circuit court noted circumstances that have been
determined, in this Court’s prior cases, to constitute aggravating circumstances
posing a significant risk to the public, the question is not whether the court could
have made such a finding, but whether the court actually found aggravating
circumstances that pose a significant risk to the public. The court’s colloquy seemed
to focus on giving Feucht reasons why he is capable of redemption and why he
should change his life’s course and be the father, son, and friend that the letters of
support indicated he had the potential to be. The record also presented mitigating
factors including that Feucht had “done well on pretrial release” and did not have a
positive drug urinalysis for more than a year after his arrest. Feucht was
employed, deemed reliable and skilled by his employer, and had not been “in trouble
. . . for a decade, nine years prior to this, and he did well on supervision last time.”
[¶31.] Thus, despite the presence of potential aggravating factors at play, this
situation is unlike our past cases where circuit courts have clearly identified on the
record that they were departing from presumptive probation based on the existence
of aggravating circumstances posing a significant risk to the public. See Whitfield,
2015 S.D. 17, ¶ 20, 862 N.W.2d at 140 (the court recognized that SDCL 22-6-11
applies by “identif[ying] the aggravating circumstances that pose a significant risk
to the public, and stat[ing] those circumstances on the record at sentencing”);
Beckwith, 2015 S.D. 76, ¶ 5, 871 N.W.2d at 58–59 (the court found three
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aggravating circumstances warranted departing from presumptive probation); State
v. Underwood, 2017 S.D. 3, ¶ 6, 890 N.W.2d 240, 241 (noting that “the court cited
[ten] circumstances it considered to be aggravating”).
[¶32.] Because a review of the sentencing record reveals no mention of SDCL
22-6-11 by the court or of aggravating factors found by the circuit court that pose a
significant risk to the public requiring a departure from probation, we vacate
Feucht’s sentence and remand for a new sentencing hearing. See Roedder, 2019
S.D. 9, ¶ 41, 923 N.W.2d at 549; Flowers, 2016 S.D. 63, ¶ 11, 885 N.W.2d at 786.
[¶33.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,
Justices, concur.
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