#27371-aff & rem-SLZ

2015 S.D. 76

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

DAVID S. BECKWITH,                          Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                                   ****

                 THE HONORABLE JEROME A. ECKRICH, III
                               Judge

                                   ****

MARTY J. JACKLEY
Attorney General

JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


JOHN R. MURPHY
Rapid City, South Dakota                    Attorney for defendant
                                            and appellant.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 31, 2015

                                            OPINION FILED 10/14/15
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ZINTER, Justice

[¶1.]        David Beckwith pleaded guilty to possession of a controlled substance.

In imposing sentence, the circuit court articulated three “aggravating

circumstances” to justify departing from presumptive probation. The court did not

restate the aggravating circumstances in its written judgment. On appeal,

Beckwith argues that the court’s stated aggravating circumstances did not warrant

a departure from presumptive probation. Beckwith also argues that the court erred

in failing to include the aggravating circumstances in the judgment. We affirm the

circuit court’s decision to depart from presumptive probation, but we remand to

include the aggravating circumstances in the written judgment.

                            Facts and Procedural History

[¶2.]        A highway patrolman stopped Beckwith for having illegal handlebars

on his motorcycle. During the stop, the officer observed Beckwith remove a small

plastic bag from his pocket, bite a hole in the bag, and throw the bag on the ground.

The bag’s contents were recovered and tested positive for methamphetamine. The

officer arrested Beckwith, and a subsequent urinalysis confirmed the presence of a

methamphetamine metabolite in his body. The State charged Beckwith with

possession and ingestion of a controlled substance, both Class 5 felonies.

[¶3.]        Pursuant to a plea agreement, the State dismissed the ingestion

charge and Beckwith entered an Alford plea to the possession of a controlled

substance charge. See State v. Engelmann, 541 N.W.2d 96, 101 (S.D. 1995) (“An

Alford plea is no less a guilty plea, notwithstanding assertions of innocence. It

allows a defendant the opportunity to avoid the risk of trial and obtain the benefit of


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a favorable plea bargain ‘even if he is unwilling or unable to admit his participation

in the acts constituting the crime.’” (quoting North Carolina v. Alford, 400 U.S. 25,

37, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162 (1970))). Beckwith acknowledged that he

ingested methamphetamine the night before his arrest. Beckwith indicated he

entered an Alford plea to possession because “[t]he contraband found on his person

came something of a surprise to him, but considering the circumstances of the night

before, was not a shock.” Beckwith's counsel indicated that the previous evening,

the methamphetamine somehow “came into [Beckwith’s] possession through a favor

. . . of someone else[.]” Beckwith’s counsel explained that the Alford plea was

entered because of a “problem with the knowledge element” of the possession

charge.

[¶4.]        Beckwith’s court services officer (CSO) reported that Beckwith failed to

call when scheduled to do so for the presentence investigation. The CSO’s

subsequent attempts to contact Beckwith were also unsuccessful. The CSO

indicated that Beckwith’s noncompliance prevented an accurate assessment of

Beckwith’s “level of substance abuse, his education and employment history, his

financial status or his attitude toward the crime he committed or toward the

possibility of probation.” Beckwith’s “lack of follow through” also raised “concern[s]

that [Beckwith was] not going to follow through with conditions of probation.” The

CSO further noted that Beckwith had “a history of violating his probation/parole[.]”

Nevertheless, the CSO recommended that Beckwith serve 120 days in jail followed

by two years of probation.




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[¶5.]        Because Beckwith pleaded guilty to a Class 5 felony, he was entitled to

presumptive probation unless the court found aggravating circumstances “that pose

a significant risk to the public.” See SDCL 22-6-11. At sentencing, the court

concluded that three aggravating circumstances overcame presumptive probation:

(1) failure to cooperate with the CSO during the presentence investigation, (2) two

prior felonies, and (3) making an Alford plea when the evidence reflected that

Beckwith was aware of his wrongdoing. The court sentenced Beckwith to thirty-six

months in prison with eighteen months suspended. The court did not restate the

aggravating circumstances in the written judgment.

[¶6.]        Beckwith appeals his sentence, arguing that (1) the stated aggravating

circumstances were insufficient to overcome the probation presumption, and (2) the

court failed to state the aggravating circumstances in the judgment in violation of

SDCL 22-6-11 and due process. Beckwith seeks a remand for resentencing.

                                       Decision

Sufficiency of Aggravating Factors

[¶7.]        Beckwith argues that the court’s stated aggravating circumstances are

insufficient to establish “a significant risk to the public.” We apply the abuse of

discretion standard in reviewing a sentencing court’s decision to depart from

presumptive probation. State v. Whitfield, 2015 S.D. 17, ¶ 23, 862 N.W.2d 133, 140.

An abuse of discretion “is a fundamental error of judgment, a choice outside the

range of permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.” Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d

611, 616 (citations and internal quotation marks omitted).


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[¶8.]        The first aggravating circumstance involved Beckwith’s failure to

cooperate in preparing his presentence investigation. Beckwith, however, argues

that he only missed a single phone call and he was confused about the legal

proceedings. Beckwith contends he cooperated because he made multiple trips from

Florida to South Dakota to attend court hearings. Beckwith further contends that

failing to call his CSO does not suggest a significant risk to the public. We disagree.

[¶9.]        According to the CSO, Beckwith not only failed to call his CSO as

scheduled, but the CSO’s subsequent attempts to contact Beckwith were

unsuccessful and Beckwith made no further effort to contact his CSO whatsoever.

Consequently, as the CSO noted, Beckwith’s failure to communicate prevented an

assessment of Beckwith’s “level of substance abuse, his education and employment

history, his financial status or his attitude toward the crime he committed or

toward the possibility of probation.”

[¶10.]       The sentencing court has a responsibility to become thoroughly

acquainted with the character and history of a defendant in order to impose an

appropriate sentence. Whitfield, 2015 S.D. 17, ¶ 23, 862 N.W.2d at 140 (citation

omitted). This inquiry includes an examination of the defendant’s character,

mentality, habits, tendencies, age, inclination to commit crime, life, family,

occupation, past criminal record, and social environment. Id. But by failing to

provide this information to his CSO, Beckwith deprived the court of the ability to

assess the risk to the public of granting probation. And without such an

assessment, placing a convicted felon on probation poses a significant risk to the

public.


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[¶11.]        Beckwith, however, points out that despite his failure to communicate,

his CSO recommended probation. Although the CSO recommended some probation,

he also recommended jail. More importantly, Beckwith’s arguments do not counter

the CSO’s “concern that [given his lack of follow through in completing the

presentence investigation, Beckwith was] not going to follow through with

conditions of probation.” The likelihood of not complying with the conditions of

probation is an appropriate aggravating circumstance to consider as it may signal a

significant risk to the public. Id.

[¶12.]        The second aggravating circumstance involved Beckwith’s prior felony

convictions in 1988 and 1994. Although we acknowledge that the convictions were

old, they involved drugs and violently resisting a law enforcement officer. Thus, the

drug conviction demonstrates that despite a warning, Beckwith continued to engage

in illegal drug usage for a lengthy period of time. The other conviction

demonstrates a willingness to engage in violent conduct towards authorities.

Additionally, the record reflects that Beckwith violated probation on the most

recent felony conviction. We have previously explained that probation failures and

prior felony convictions are aggravating circumstances justifying a departure from

presumptive probation. See State v. Moran, 2015 S.D. 14, ¶ 12, 862 N.W.2d 107,

111 (noting the circuit court found that two prior felonies and a probation violation

were aggravating circumstances justifying a departure from presumptive

probation).

[¶13.]        The third aggravating circumstance involved Beckwith’s entry of an

Alford plea. The circuit court was concerned that Beckwith had not taken


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responsibility or shown remorse for engaging in the illegal drug activity. Beckwith,

however, argues that the court should not have viewed his Alford plea as a failure

to acknowledge culpability for “possession,” thereby demonstrating a risk to the

public. Beckwith points out that he never disputed possessing or ingesting

methamphetamine. He explained that he thought the controlled substance he

possessed was cocaine, not methamphetamine. Beckwith contends that finding

methamphetamine in his pocket (possession) was “something of a surprise to him[.]”

Beckwith suggests that he simply engaged in “an awkward attempt to establish a

basis for an Alford plea.”

[¶14.]       Beckwith misapprehends the significance of the court’s concern. The

court was concerned that Beckwith’s conduct demonstrated a failure to show

remorse and acknowledge a truthful explanation for his actions. The court noted

that despite his claims of surprise to possessing methamphetamine, Beckwith “bit

open [the] bag of meth and threw it up in the air.” The court then indicated: “Well,

what’s that about if you don’t know what’s in it? You don’t bite open a bag of baking

powder and then try to get rid of it.” We agree with the circuit court that under the

facts of this case, Beckwith’s conduct and the Alford plea were appropriate

circumstances for consideration because they reflected a lack of culpability and

remorse for possessing controlled substances. See State v. Knight, 701 N.W.2d 83,

89 (Iowa 2005) (“[T]he defendant entering an Alford plea amidst claims of innocence

is no different than a defendant found guilty amidst claims of innocence. The

defendant’s lack of remorse is a pertinent sentencing factor in both situations.”); see

also State v. Stahl, 2000 S.D. 154, ¶ 7, 619 N.W.2d 870, 872 (per curiam) (citations


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omitted) (“A defendant’s lack of remorse is also appropriately considered by the

sentencing court.”). Accordingly, Beckwith’s attempt to destroy evidence and

refusal to admit wrongdoing were appropriate considerations in determining

whether probation posed a significant risk to the public.

[¶15.]         Taken in their totality, the foregoing aggravating circumstances

demonstrate that placing Beckwith on probation would have posed a significant risk

to the public. First, Beckwith deprived the CSO and the court of the information

necessary to determine an appropriate sentence. Granting probation without such

information would, by itself, pose a serious risk to the public. Second, Beckwith had

prior felonies (one of which led to a probation violation) showing a long history of

illegal drug usage. Beckwith also demonstrated a willingness to use violence

against a law enforcement officer. Finally, his conduct at the time of the arrest and

the circumstances of his plea reflected his failure to acknowledge culpability and

remorse for his acts. Considering these circumstances, the circuit court did not

abuse its discretion in departing from presumptive probation.*

Failure to Restate the Aggravating Circumstances in the Written Judgment

[¶16.]         SDCL 22-6-11 requires that “[i]f a [presumptive probation] departure

is made, the judge shall state on the record at the time of sentencing the

aggravating circumstances and the same shall be stated in the dispositional order.”

(Emphasis added.) Although the circuit court stated the aggravating circumstances


*        We recently found a significant risk to the public in three analogous cases. In
         Whitfield, 2015 S.D. 17, ¶ 22, 862 N.W.2d at 140; Moran, 2015 S.D. 14, ¶ 12,
         862 N.W.2d at 111; and State v. Hernandez, 2014 S.D. 16, ¶ 12, 845 N.W.2d
         21, 23, the defendants had a history of noncompliance with the court system
         and past felonies dealing with drugs or alcohol.

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on the record at the time of sentencing, the court did not restate the aggravating

circumstances in the dispositional order. We recently held in Whitfield that “[t]his

error . . . does not warrant either a new trial or resentencing. Rather, the matter

[should be] remanded to the sentencing court to amend the dispositional order to

include the aggravating circumstances considered on the record at the time of the

sentencing hearing.” 2015 S.D. 17, ¶ 20, 862 N.W.2d at 140.

[¶17.]       Beckwith urges us to reconsider the Whitfield remedy. He argues that

we should remand for resentencing because correction of the judgment “is

inadequate to address the due process violation that occurs when trial courts do not

follow the plain language within a statute such as SDCL 22-6-11.” Beckwith points

out that the word “shall,” which is in SDCL 22-6-11, is generally interpreted to be a

mandatory directive. See State v. Nelson, 1998 S.D. 124, ¶ 12, 587 N.W.2d 439, 444

(“We interpret the word ‘shall’ as ‘a mandatory directive’ conferring no discretion.”

(quoting SDCL 2-14-2.1)). Beckwith contends that the failure to follow this

mandatory, procedural directive violates due process. We agree that restating the

aggravating circumstances is mandatory, but we disagree that this clerical failure

violates due process.

[¶18.]       Beckwith relies on State v. Nelson. In Nelson, we held that the failure

of the circuit court to follow a mandatory directive (requiring the reading of all jury

instructions at the close of evidence) along with another error violated due process.

Id. ¶ 20, 587 N.W.2d at 447. However, Beckwith misapprehends the nature of the

procedural process due under SDCL 22-6-11. There is no dispute that the court

erred in not restating the aggravating circumstance in the judgment. See Whitfield,


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2015 S.D. 17, ¶ 20, 862 N.W.2d at 140. The word “shall” in SDCL 22-6-11 makes

this requirement mandatory. But the circuit court provided the essential

procedural process that was due under the statute when the court stated the

aggravating circumstances at the time of sentencing. The court’s failure to restate

the same aggravating circumstances in written judgment was only a clerical error.

Thus, the “plain error” that, together with another violation, undermined “the

fairness, integrity, or public reputation” of the trial in Nelson is not present here.

See Nelson, 1998 S.D. 124, ¶ 20, 587 N.W.2d at 447 (citations omitted). Unlike the

error in Nelson, the clerical error here was not capable of influencing the outcome of

Beckwith’s court proceeding. Beckwith pleaded guilty, the court orally stated the

aggravating circumstances on the record at sentencing, and the oral sentence of the

court controls. See State v. Thayer, 2006 S.D. 40, ¶ 7, 713 N.W.2d 608, 611.

Additionally, the remand remedy we adopted in Whitfield is supported by our

precedents. In Thayer, this Court ordered a remand to conform a written judgment

to the court’s oral sentence. Id. ¶ 19, 713 N.W.2d at 614. In Duxbury v. McCook

Cty., 48 S.D. 523, 205 N.W. 242, 244 (1925), we stated: “It is apparent that the error

in the findings, conclusion, and judgment is merely a clerical or stenographic error,

and the cause is remanded to the trial court for the correction thereof, and, as so

corrected, the judgment will be affirmed[.]” We continue to believe that these types

of clerical errors may be corrected by a remand to include the omitted material in

the judgment.




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[¶19.]       Affirmed but remanded to restate the aggravating circumstances in

the judgment.

[¶20.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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