Court sets Oct. 1 appeal hearing for guard’s killer

• Rodney Berget

In this April 13 photo, Rodney Berget, accused of killing a South Dakota prison guard during an unsuccessful escape in 2011, is escorted to court in Sioux Falls. A judge on Monday sentenced Berget to death for his part in the murder. (AP Photo/The Argus Leader, Elisha Page)

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PIERRE — The South Dakota Supreme Court will hear arguments Oct. 1 in the appeal of a man sentenced to death for murdering a State Penitentiary guard during a failed escape attempt.

The court has scheduled arguments in the case of Rodney Scott Berget, 50, at the Jeschke Fine Arts Center at the University of Sioux Falls.

Berget pleaded guilty to killing Ronald “R.J.” Johnson on April 12, 2011 — Johnson’s 63rd birthday — and Circuit Judge Bradley Zell, of Sioux Falls, sentenced Berget to death. Eric Robert, 50, also pleaded guilty in Johnson’s death, was sentenced to death and is scheduled to be executed the week of Oct. 14.

Berget’s appeal does not challenge his conviction, but asks the state’s highest court to order that his sentence either be changed to life in prison or that he get a new sentencing hearing because of errors made by Zell in the original one.

The state’s written brief has not yet been filed with the Supreme Court, but Attorney General Marty Jackley said Monday the state will argue that Berget’s death sentence is constitutional and not excessive when compared with similar cases, and that the judge considered evidence properly in Berget’s sentencing hearing.

“The state proved beyond a reasonable doubt the existence of at least one aggravating factor,” Jackley told the Associated Press.

South Dakota law says the death penalty cannot be imposed without the existence of at least one from a list of 10 aggravating circumstances. Zell found two aggravating circumstances in Berget’s case, ruling that he killed a correctional officer and the murder was committed by an inmate.

Johnson was working alone the morning of his death in a part of the prison known as Pheasantland Industries, where inmates work on upholstery, signs, custom furniture and other projects. Prosecutors said that after Robert and Berget bashed Johnson’s head with a pipe and covered his mouth with plastic wrap, Robert put on the guard’s uniform and carted a large box toward the prison gate with Berget inside. Both inmates were apprehended before leaving the grounds.

Robert asked to be put to death, and the Supreme Court last month upheld his sentence after a mandatory review.

Berget told Zell he deserved to be sentenced to death, but did not ask to be executed.

“I’m guilty of taking Ronald Johnson’s life. I knew what I was doing that day and I continued to do it. I destroyed a family. I took away a father, a husband, a grandpa,” Berget told the judge, according to court records.

However, Berget decided to appeal his sentence. In his appeal, Berget argues he should be sentenced to life in prison because his death penalty is excessive when compared with penalties imposed in similar cases. Johnson’s murder was not as brutal as in some other cases, no gun was used and the killing was accomplished quickly, the appeal contends.

It also says that if the Supreme Court does not order that Berget’s sentence be changed to life in prison, it should send the case back to circuit court for a new sentencing hearing because Zell improperly considered evidence not in the court record, Berget’s prior criminal record and inadmissible statements by Johnson’s relatives.

Zell also presided in Robert’s case, and Berget’s appeal contends the judge was heavily influenced by his decision in Robert’s case. That violated Berget’s rights to be judged only by the facts in his case, his lawyer argued.

Jackley countered that Berget got an individualized hearing because the judge heard different witnesses and considered different evidence in the two cases.

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