A 27-year-old judicial error in the South Dakota court system, if practically speaking an abstraction, surfaced again last week in an opinion from the state Supreme Court.
In 1987, Byron Red Kettle, now 51, kidnapped a Box Elder gas-station clerk, fled to Nebraska and sexually assaulted the woman. Thirty years later, after stays in a federal prison as far away as Louisiana and for nearly a decade at state prisons in Nebraska, Red Kettle is back in South Dakota in the the Sioux Falls penitentiary, serving a life sentence for kidnapping with gross physical injury.
But it's still unclear why the 7th Judicial Circuit in Rapid City took nearly three decades to follow up on a 1990 South Dakota Supreme Court ruling that ordered his state and federal sentences run concurrently (i.e., at the same time), not consecutively.
"When I first read the case, I thought, 'What in the world is going on here?'" said Roger Baron, professor emeritus at the University of South Dakota Law School. "The more I read, I realized something that should've been done automatically by the trial court wasn't."
It's the case of three jurisdictions colliding on one crime spree. When Judge Roland Grosshans of the 7th Circuit in Rapid City sentenced Red Kettle in 1989, he'd already had reached a plea deal with federal officials on three felony counts, including kidnapping. Assuring maximum — if largely symbolic — penalty, Grosshans ordered his life sentence to run after his 20-year federal sentences. But Red Kettle appealed, arguing the time he owed the state should begin with his federal sentence. In 1990, the South Dakota Supreme Court agreed, remanding the case back to Grosshans to correct the sentence.
But this never happened. It took until 2017 for the 7th Circuit Court — which covers Pennington, Custer, Fall River and Oglala Lakota counties and is now presided over by Judge Craig A. Pfeifle — to fix the sentence in a hearing in a Rapid City courtroom that Red Kettle appeared in via a telephone.
Red Kettle also appealed this decision, arguing he should've had a court-appointed attorney present. Last week's South Dakota Supreme Court opinion ruled on this narrow matter, saying Red Kettle did not need counsel present in the courtroom or on the phone, given the correction of the sentence was not a "critical stage."
But even the high court announced its puzzlement at Red Kettle's circuitous journey back to their docket.
"Twenty-eight years ago, this Court reversed a defendant's sentence and remanded the case for resentencing consistent with the Court's decision," opens the unanimous opinion from Justice Steven L. Zinter. "For reasons not disclosed in this record, the defendant did not get resentenced until 2017."
Various legal authorities across the state have struggled to provide answers, too. A staffer in the 7th Circuit said it was not Pfeifle's policy to comment to the media. A spokeswoman for the attorney general's office said the prosecuting attorney did not want to "speculate" on the whereabouts of Red Kettle or the justice's decision. Finally, the judge accountable for the resentencing — Grosshans — died in 2012, according to an article published in the Journal.
Attorney Todd Love, who was appointed to Red Kettle's case following his 2017 resentencing, wrote in an email, "Between his attorney at the time, the State’s Attorney at the time, the court, and the clerk’s office, somebody should have scheduled it for a resentencing back in 1990 after the original supreme court decision. Obviously that slipped through the cracks and didn’t get done."
Deciding whether Red Kettle began serving a life sentence in 2017 or 1988 may feel like an academic debate. However, the 27-year delay on sentencing might, Baron said, warrant a separate complaint by Red Kettle. Zinter's decision seems to leave open just that possibility, as well, however remote a chance for its success.
"Red Kettle must pursue that type of collateral attack on the judgment of conviction using some kind of postconviction remedy such as habeas corpus," Zinter writes in last week's opinion.
A spokesman for the Department of Corrections in South Dakota confirmed that a life sentence in South Dakota — what Red Kettle is now serving in Sioux Falls — only has one option for an early release: a commutation from the governor would allow an inmate to go up for parole.