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State v. Anderson2/16/2005
Considered on Briefs on January 10, 2005
[ .] David Lynn Anderson appealed the denial of a second motion to correct his 125-year sentence on a 1995 conviction for vehicular homicide. Defendant's sentence was enhanced under the habitual offender provision after he pled guilty to a Part II Information that included a 1988 felony conviction for grand theft, and two 1990 felony drug convictions. Defendant contended his sentence was illegally enhanced using three prior felony convictions under SDCL 22-7-8.1, rather than two prior felony convictions under SDCL 22-7-7. Defendant argued his two 1990 felony drug convictions stemmed from one transaction, and therefore could not be counted as two separate convictions for purposes of enhancing his sentence under SDCL 22-7-8.1. Defendant requested his illegal sentence be corrected using two felony convictions. In the alternative, Defendant argued his guilty plea to the Part II habitual offender information must be set aside due to a manifest injustice, and that he be permitted to plead anew. We affirm.
FACTS AND PROCEDURE
[ .] On September 22, 1989, David Lynn Anderson sold a quantity of methamphetamine to an undercover police officer at the Alpine Inn in Sioux Falls, South Dakota. The agreed upon price was $275 for one-eighth of an ounce. After the sale was concluded and the money and methamphetamine had been exchanged, Defendant contacted the undercover officer and explained that he had inadvertently given the undercover officer one-fourth of an ounce for $275 instead of the one-eight of an ounce as negotiated. The undercover officer agreed to meet with Defendant and provide an additional $250. Defendant also informed the undercover officer that he had additional methamphetamine for sale and would be able to provide it at their meeting set for the next day at the Holiday Inn.
[ .] On September 23, after the undercover officer arrived at Defendant's hotel room at the Holiday Inn, the undercover officer gave Defendant the additional $250 in cash as final payment for the one-quarter ounce of methamphetamine purchased on September 22. Defendant then showed the undercover officer four plastic bindles each purportedly containing one-eighth of an ounce of methamphetamine and offered the drugs for $250 per one-eighth ounce. The undercover officer told Defendant he would have to retrieve his money from his car, and left the hotel room telling Defendant he would return with the money. After the undercover officer left the room, Defendant was arrested.
[ .] Defendant was charged with 1) distribution of a controlled substance on September 22, 1989; 2) possession of a controlled substance on September 22, 1989; and, 3) possession of a controlled substance with intent to distribute on September 23, 1989. Defendant was represented by Patrick Schroeder, of the Minnehaha County Public Defender's Office. Defendant pleaded guilty to Count 1, distribution of a controlled substance on September 22, 1989, and Count 3, possession of a controlled substance with intent to distribute on September 23, 1989. Defendant was sentenced to seven years for the distribution charge, and five years for the possession with intent to distribute charge. The two sentences were ordered to be served consecutively, with the seven year sentence to be served first. At the sentencing hearing, Judge Gene Paul Kean, Second Judicial Circuit, specifically noted that he was imposing the two sentences consecutively as this was a case of two different crimes occurring on two different occasions.
[ .] In 1995, Defendant was convicted of vehicular homicide and vehicular battery for the death of Galen Barta and injury to one of his sons in an automobile a
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