To read the entire opinion and the entire dissent, go here on the South Dakota Supreme Court’s Internet site. In a decision publicly released today, the justices split 3-2 on whether a court services officer improperly imposed a requirement on an admitted felon that he receive a sex offender evaluation and participate in sex offender treatment. The majority of justices John Konenkamp, Steven Zinter and Glen Severson ruled it was improper delegation and only the court — in this instance, the circuit judge — has the authority to impose a condition of probation. Wrote Justice Konenkamp in the majority opinion:
“This Court has never addressed the issue of improper delegation of
judicial power to a non-judicial officer in the context of a CSO’s authority to impose
a treatment program, counseling, or evaluation as a condition of probation.”
In one key respect, this case turns on the definition of the word “any” that the circuit judge used in the sentencing. The three- justice majority decided “any” didn’t automatically include sex offender treatment and therefore the court service officer exceeded the authority granted by the judge.
The two dissenters, Chief Justice David Gilbertson and Justice Lori Wilbur, argued that the defendant never brought up the issue of unlawful delegation. Wrote Chief Justice Gilbertson in his dissent:
“At no point during the three separate hearings did Blakney mention that the CSO should not have imposed the sex offender treatment condition.”
This was a rape case in which Christopher Blakney pleaded guilty to two assault charges in order to avoid prosecution for rape crimes involving a 16-year-old babysitter at his girlfriend’s residence and for raping his girlfriend in another incident. In each instance he allegedly held a box-cutter to his victim’s throat. He was placed on probation with the possibility of a 13-year prison sentence if he didn’t meet the terms. The circuit judge ruled he violated probation when he didn’t take part in the sex offender treatment ordered by the court services officer. The 3-2 decision by the Supreme Court overturns the circuit judge’s decision.
But it is worth noting that Justice Konenkamp also makes clear in the majority opinion’s final sentences that the circuit judge can modify the sentence:
“This is not to say that the circuit court could not have ordered Blakney
to undergo a sex offender evaluation and complete sex offender treatment. Indeed,
SDCL 23A-27-20.1 provides that “[t]he court, upon notice to the probationer, a
hearing and good cause, shown, may modify the terms and conditions of a
probation[.]” But because the CSO was given ultimate authority to determine
Blakney’s condition of probation, the court erred when it unlawfully delegated its
judicial authority, and in turn, when it revoked Blakney’s suspended sentence.”