Requesting Presumptive Probation Preserves Appellate Review, and Nonviolent Recidivism May Justify Departure

Introduction

State v. Lucero clarifies both the preservation and substantive application of South Dakota’s presumptive-probation statute, SDCL 22-6-11. Jeremy Lucero pleaded guilty to possessing methamphetamine, an offense ordinarily subject to presumptive probation. The circuit court instead imposed five years’ imprisonment, with three years suspended, after finding that Lucero’s criminal history, continued methamphetamine use while on bond, and other circumstances created a significant risk to the community.

On appeal, Lucero argued that prior nonviolent convictions and personal drug use were insufficient, without more, to justify departure from presumptive probation. The State responded that he had failed to preserve that argument because he did not object after the court announced its sentence.

The Supreme Court rejected the State’s preservation argument and affirmed the sentence. It clarified that a defendant who requests presumptive probation and presents the relevant argument to the sentencing court need not additionally object after the court departs from probation in order to obtain appellate review for abuse of discretion.

Factual and Procedural Background

Police discovered methamphetamine and drug paraphernalia in Lucero’s vehicle, and a urine test was positive for methamphetamine. Lucero was charged with possession, ingestion, and possession of drug paraphernalia. Under a plea agreement, he pleaded guilty to possession of a controlled substance, while the remaining charges were dismissed. Both sides remained free to recommend any lawful sentence.

The State requested imprisonment, emphasizing Lucero’s seven prior felony convictions—including drug, burglary, and theft offenses—and his high-risk Level of Services Inventory-Revised score. Lucero requested probation with drug testing and counseling. He argued that his record did not contain violent crimes and that criminal history alone should not defeat the Legislature’s presumption of probation.

The circuit court recognized Lucero’s cooperation and remorse but found substantial aggravating circumstances: seventeen prior felony charges, seven felony convictions, a high LSI-R score, continued methamphetamine use while awaiting sentencing, and a history that included burglaries and possession with intent to distribute. It concluded that Lucero posed a significant risk to the community and imposed a penitentiary sentence.

Summary of the Opinion

1. Preservation: Lucero preserved his appellate claim by requesting probation and expressly arguing that his criminal history and drug use did not establish the public-safety risk required by SDCL 22-6-11. No additional objection after sentencing was necessary.
2. Standard of review: A departure from presumptive probation is reviewed for abuse of discretion.
3. Departure justified: The circuit court considered the complete record, identified mitigating and aggravating circumstances, made the required significant-risk finding, and recorded its reasons both orally and in the judgment.
4. Sentence affirmed: The departure was within the range of permissible sentencing choices and was neither arbitrary nor unreasonable.

Analysis

The Governing Statute: SDCL 22-6-11

SDCL 22-6-11 creates a presumption that qualifying defendants will receive probation. A court may depart from that presumption only when it finds aggravating circumstances that pose a significant risk to the public and require a different sentence. The judge must state those circumstances both:

• on the record at sentencing; and
• in the written dispositional order.

These express statutory requirements are an exception to the usual rule that South Dakota sentencing courts need not make detailed factual findings to justify a sentence.

Preservation of the Appellate Claim

The Court distinguished between two types of issues. First are failures to apply SDCL 22-6-11 at all or failures to make its required findings. Because such omissions can often be corrected immediately, litigants generally must alert the circuit court before seeking appellate relief.

Second are substantive claims that the court abused its discretion in finding sufficient aggravating circumstances. A defendant preserves such a claim by requesting the presumptive sentence and presenting the supporting argument. Requiring a second objection after sentence is pronounced would add little because the court has already been given an opportunity to address the issue.

Lucero did more than merely request probation. He specifically argued that nonviolent criminal history and personal drug use did not establish the necessary public danger. His appellate argument therefore matched the position he presented below.

Why the Departure Was Not an Abuse of Discretion

The Supreme Court did not treat criminal history or drug use as automatically sufficient. Instead, it approved the circuit court’s evaluation of the totality of Lucero’s circumstances:

• he was 46 years old and had accumulated seven felony convictions;
• his prior conduct included burglaries and controlled-substance possession with intent to distribute;
• his record demonstrated a continuing range of criminal behavior rather than a single isolated lapse;
• he continued using methamphetamine while on bond and awaiting sentencing;
• that continued use suggested that prior consequences had not changed his conduct; and
• the court expressly found that these circumstances created a significant risk to the community.

The absence of a conviction for direct interpersonal violence did not make Lucero’s conduct harmless to the public. Burglary, drug distribution, repeated offending, and continued illegal drug use under court supervision could collectively demonstrate a substantial public-safety risk.

The Limited Role of the LSI-R Score

The Court included an important caution concerning the Level of Services Inventory-Revised. The LSI-R is designed to assess supervision levels and appropriate responses during community supervision. It has not been validated as a tool for determining a criminal sentence.

A sentencing court may consider the score insofar as it bears on the feasibility and risks of community supervision. It may not substitute the score for an individualized examination of the defendant’s character, history, conduct, and circumstances. Lucero did not separately challenge the LSI-R’s use, and the circuit court relied on numerous individualized factors beyond the score. The decision therefore does not hold that a high LSI-R score alone permits departure from presumptive probation.

Precedents Cited

State v. Bear Robe

State v. Bear Robe supplied two related principles. Ordinarily, sentencing courts are not required to make detailed findings supporting a sentence. SDCL 22-6-11, however, expressly requires findings when a court departs from presumptive probation. The case also emphasized the need for a thorough acquaintance with the defendant’s character, history, life, and personal characteristics. That individualized inquiry explains why an actuarial score such as the LSI-R cannot replace judicial sentencing judgment.

State v. Whitfield and State v. Beckwith

The Court cited State v. Whitfield and State v. Beckwith as examples of appeals involving departures that did not comply with SDCL 22-6-11’s express findings requirements. They demonstrate that the presumption cannot be displaced silently or without the statutorily required explanation.

State v. Beckwith also provided the standard of review. Departure decisions are reviewed for abuse of discretion, meaning a fundamental error of judgment, a choice outside the range of permissible options, or a decision that is arbitrary and unreasonable.

State v. Flowers, State v. Roedder, and State v. Feucht

These cases involved circumstances in which the sentencing court either incorrectly concluded that SDCL 22-6-11 did not apply or left the appellate court unable to determine whether the statute had been applied. They illustrate why a contemporaneous request for correction is important when the alleged error is the court’s failure to follow the statutory procedure.

State v. Feucht had referred to such defects as errors in “sentencing procedure.” In Lucero, the Court clarified that this terminology did not create a special category under which every unobjected-to presumptive-probation issue receives only plain-error review. Feucht merely reaffirmed ordinary preservation requirements for failures to apply the statute or make the required findings.

State v. Pretty Weasel and State v. Bryant

These decisions supplied the general preservation rule: litigants must tell the circuit court what action they seek or object to the court’s action and explain why. Preservation allows the court closest to the dispute to correct errors efficiently. Lucero satisfied that rule because he requested probation and articulated the same basis for relief later advanced on appeal.

Complex Concepts Simplified

Presumptive probation

Probation is the legislatively preferred starting sentence for certain offenses. It is not mandatory, but imprisonment requires statutorily adequate reasons.

Aggravating circumstances

Facts making the defendant or offense more serious and supporting a harsher sentence. Under SDCL 22-6-11, they must establish a significant public risk requiring departure.

Preservation

Presenting an issue to the trial court before raising it on appeal. Lucero preserved his issue by requesting probation and explaining why departure would be unjustified.

Abuse of discretion

A highly deferential appellate standard. The question is not whether the appellate court would impose the same sentence, but whether the sentencing choice was outside the permissible range or was arbitrary and unreasonable.

Plain error

A narrow form of review generally used for serious errors not properly preserved. The Court rejected the suggestion that every departure claim automatically requires plain-error review unless the defendant objects after sentencing.

LSI-R

A risk-and-needs assessment primarily used to guide supervision. It may provide relevant context, but it is not a validated substitute for individualized sentencing findings.

Potential Impact

• Clearer preservation rules: Defense counsel may preserve a substantive challenge by requesting presumptive probation and explaining why the evidence does not satisfy SDCL 22-6-11. A repetitive objection after sentencing is unnecessary.
• Procedural omissions should still be raised promptly: If a court overlooks the statute or fails to state the required findings, counsel should alert it so the omission can be corrected without an appeal.
• Violence is not required: Repeated burglaries, drug distribution, recidivism, and misconduct while on bond may collectively establish a significant public risk even without convictions for direct physical violence.
• Individualized findings remain essential: Prior convictions or risk scores should not operate as automatic triggers. The court must connect the defendant’s circumstances to the statutory public-safety standard.
• Limits on risk-assessment tools: Future sentencing courts should avoid treating the LSI-R as an independent sentencing instrument and should rely principally on individualized evidence.

Conclusion

State v. Lucero clarifies that a defendant preserves an abuse-of-discretion challenge to departure from presumptive probation by requesting probation and presenting the underlying argument; no additional objection after sentence is required. It also confirms that public risk under SDCL 22-6-11 is not limited to violent conduct. A persistent pattern of felony behavior, drug-related activity, and continued offending while under court supervision may collectively justify imprisonment when the sentencing court makes individualized findings on the record and in its written order.

At the same time, the decision cautions that an LSI-R score cannot replace a judicial assessment of the defendant’s character and history. The central lesson is that both departure and appellate review turn on a developed record, explicit statutory findings, and individualized reasoning.