#28198-a-LSW
2017 S.D. 93

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

BERTON C. TOAVS,                            Defendant and Appellant.


                                   ****

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

                                   ****

                 THE HONORABLE JEROME A. ECKRICH, III
                            Retired Judge

                                   ****

MARTY J. JACKLEY
Attorney General

MATTHEW W. TEMPLAR
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.

PAUL EISENBRAUN of
Grey & Eisenbraun
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.


                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON NOVEMBER 6, 2017
                                            OPINION FILED 12/27/17
#28198

WILBUR, Retired Justice

[¶1.]        Berton Toavs appeals his sentences issued on two counts of first-degree

manslaughter in violation of SDCL 22-16-15(3). Toavs argues the sentencing court

abused its discretion in ordering him to serve two consecutive sentences of 110 and

100 years. According to Toavs, the sentencing court did not adequately consider

whether Toavs was capable of rehabilitation prior to imposing the sentences. We

conclude the sentencing court did not abuse its discretion and affirm Toavs’s

sentences.

                                   Background

[¶2.]        On April 26, 2016, Toavs shot and killed his girlfriend Eliza Edgins

and his friend Nathan Gann at Toavs’s home in Faith, South Dakota. Toavs and

Edgins were in an off-and-on romantic relationship for some time, and Gann had

been staying at Toavs’s home for approximately six weeks prior to the incident.

During the time Gann had been staying with Toavs, a romantic relationship

developed between Edgins and Gann. Gann and Edgins apparently planned to

leave South Dakota and continue their relationship. After hearing this news, Toavs

left the house. He returned the following morning. Toavs and Edgins argued.

Edgins told Toavs that he meant nothing to her and that she and Gann were going

to be together. Angered, Toavs went to his bedroom and grabbed his .45 caliber Colt

revolver. Toavs returned to the living room and shot Edgins multiple times. He

then shot Gann, who had been sleeping on the living room floor. Both Edgins and

Gann died from the gunshot wounds inflicted by Toavs.




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[¶3.]         Toavs confessed to killing both Edgins and Gann, and he was indicted

April 27, 2016, on two counts of premeditated first-degree murder. Subsequently,

on December 21, 2016, Toavs signed a written plea agreement with the State.

Toavs agreed to: (1) plead guilty to two counts of first-degree manslaughter, each a

class C felony, in violation of SDCL 22-16-15(2);∗ (2) establish that his guilty pleas

were free and voluntary and provide a sufficient written factual basis; (3) waive his

right to a trial within 180 days of his initial appearance; and (4) waive his right to

appeal. In return, the State dismissed both charges of first-degree murder and

refrained from filing any additional charges. Toavs and the State also agreed to

jointly recommend that Toavs’s sentences on the two counts of first-degree

manslaughter run consecutive to each other and that the two convictions be reduced

to two separate judgments. However, Toavs and the State remained free to

comment on the appropriate sentence and to present aggravating and mitigating

evidence at the time of sentencing.

[¶4.]         The sentencing court held a hearing on March 15, 2017. The State and

Toavs each presented evidence of aggravation and mitigation. After considering

Toavs’s presentence investigation report, the sentencing court imposed a sentence of

110 years on one conviction of first-degree manslaughter and a sentence of 100

years on the second conviction. The court ordered the sentences to run consecutive

to each other.




∗       The record reflects that Toavs pleaded guilty to two counts of first-degree
        manslaughter under SDCL 22-16-15(2), but the judgments of conviction
        reflect convictions for violating SDCL 22-16-15(3).
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[¶5.]        Toavs appeals his sentences, raising one issue: Whether the sentencing

court abused its discretion in failing to consider the possibility of rehabilitation

prior to sentencing.

                                 Standard of Review

[¶6.]        Sentencing courts “exercise broad discretion when deciding the extent

and kind of punishment to be imposed.” State v. Bausch, 2017 S.D. 1, ¶ 39, 889

N.W.2d 404, 415, cert. denied, 138 S. Ct. 87 (2017) (quoting State v. Rice, 2016 S.D.

18, ¶ 23, 877 N.W.2d 75, 83). Therefore, “[w]e generally review a circuit court’s

decision regarding sentencing for abuse of discretion. An abuse of discretion is a

fundamental error of judgment, a choice outside the range of permissible choices.”

State v. Talla, 2017 S.D. 34, ¶ 8, 897 N.W.2d 351, 353 (citations omitted).

                                       Analysis

[¶7.]        Before we examine Toavs’s issue, we address the State’s argument that

Toavs waived the right to appeal his sentences in a written plea agreement. The

plea agreement stated that Toavs “will waive his right to appeal herein.”

“Generally, plea agreements are contractual in nature and are governed by ordinary

contract principles.” Kleinsasser v. Weber, 2016 S.D. 16, ¶ 30, 877 N.W.2d 86, 96

(quoting State v. Waldner, 2005 S.D. 11, ¶ 8, 692 N.W.2d 187, 190). As such, the

Eighth Circuit Court of Appeals has stated that “[p]lea agreements will be strictly

construed and any ambiguities in these agreements will be read against the

Government and in favor of a defendant’s appellate rights.” United States v. Andis,

333 F.3d 886, 890 (8th Cir. 2003); accord Campion v. Parkview Apartments, 1999

S.D. 10, ¶ 34, 588 N.W.2d 897, 904 (“Ambiguities arising in a contract should be


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interpreted and construed against the scrivener.”); United States v. Banks, 743 F.3d

56, 58 (3rd Cir. 2014) (appellate waivers are construed strictly); United States v.

Keele, 755 F.3d 752, 754 (5th Cir. 2014) (appellate waivers should be construed

narrowly against the Government); United States v. Hahn, 359 F.3d 1315, 1325

(10th Cir. 2004) (quoting Andis, 333 F.3d at 890) (appellate waivers are construed

against the Government and ambiguities resolved in favor of a defendant’s

appellate rights). Thus, “the burden of proof is on the Government to demonstrate

that a plea agreement clearly and unambiguously waives a defendant’s right to

appeal.” Andis, 333 F.3d 886 at 890. To meet this burden, it must be clear that

“the appeal falls within the scope of the waiver and that both the waiver and plea

agreement were entered into knowingly and voluntarily.” Id. at 889-90. “Even

when these conditions are met, however, we will not enforce a waiver where to do so

would result in a miscarriage of justice.” Id. at 890.

[¶8.]        From our review, the State has not met its burden that Toavs’s general

waiver of his “right to appeal herein” means that Toavs unambiguously waived his

right to appeal his sentences. The waiver language is ambiguous as to what

appellate rights Toavs specifically waived. See Read v. McKennan Hosp., 2000 S.D.

66, ¶ 23, 610 N.W.2d 782, 786 (stating mutual assent or a meeting of the minds is

needed for a contract to be binding); see also Hahn, 359 F.3d at 1325 (recognizing

the first step is determining if the disputed appeal falls within the scope of the

waiver). Because of this ambiguity, we strictly construe a reading of the waiver

against the State and in favor of Toavs’s appellate rights. See Andis, 333 F.3d at

890.


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[¶9.]        We next turn to the merits of Toavs’s claim that the sentencing court

abused its discretion in not considering all of the legitimate ends of sentencing.

Toavs contends that the sentencing court did not consider the possibility of

rehabilitation when it imposed a combined sentence of 210 years. Toavs argues

that the sentencing court only considered retribution, as evidenced by its colloquy

before sentencing Toavs:

             You know, when a person dies, the world loses more than one
             person. And when a person’s life is taken, those who remain
             behind the life—particularly the kids—the children in this
             case—that live in that world, they lose pieces, large pieces of
             their lives, too. So the consequences of the crimes that you’ve
             committed, the homicides of Eliza Edgins and Nathan Gann are
             not simply grievous, they’re incalculable.

[¶10.]       We have stated that “[r]etribution, deterrence, incapacitation,

and rehabilitation are each legitimate penological goals.” Talla, 2017 S.D.

34, ¶ 14, 897 N.W.2d at 355 (citing Harmelin v. Michigan, 501 U.S. 957, 999,

111 S. Ct. 2680, 2704, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in

part and concurring in the judgment)). However, none of these goals have

preeminence over the others. State v. Anderson, 1996 S.D. 46, ¶ 31, 546

N.W.2d 395, 402. “[T]he sentencing court determines, on a case-by-case

basis, which theory is accorded priority.” Id. ¶ 31, 546 N.W.2d at 403.

Therefore, a sentencing court need not consider rehabilitation in every case.

Talla, 2017 S.D. 34, ¶ 14, 897 N.W.2d at 355.

[¶11.]       Toavs’s capacity for rehabilitation “is a fact question to be decided by

the sentencing court.” Id. ¶ 13, 897 N.W.2d at 355 (quoting State v. Pulfrey, 1996

S.D. 54, ¶ 20, 548 N.W.2d 34, 39). “[F]actual determinations are subject to a clearly


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erroneous standard.” Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W. 846, 850

(quoting State v. Guthrie, 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203). Here, while the

court did not cite Toavs’s capacity for rehabilitation, it did consider Toavs’s

presentence investigation report and allowed Toavs to comment on this report prior

to sentencing. Toavs’s counsel also commented on Toavs’s capacity for

rehabilitation in support of a more lenient sentence and a sentence from which

Toavs would be eligible for parole. The sentencing court listened to testimony

regarding the support Toavs would have if he were to be rehabilitated and released

on parole. Finally, the sentence itself reflects the sentencing court had

rehabilitation in mind when fashioning an appropriate sentence. The court could

have granted the State’s request and imposed a life sentence for each count. See

SDCL 22-16-15; SDCL 22-6-1. Yet, the court imposed a sentence that was

substantially similar to that recommended in the presentence investigation report

and that was for considerably less time than the maximum allowed. Thus, we are

not convinced that the [sentencing] court clearly erred.

[¶12.]       Still, Toavs contends that the sentencing court deprived him of the

possibility of rehabilitation in sentencing him to 210 years combined—a sentence no

person could survive. In this regard, Toavs fails to appreciate that a court must

consider many factors relevant to crafting a sentence, not just rehabilitation. “In

fashioning an appropriate sentence, courts must also look to the character and

history of the defendant. This requires an examination of a defendant’s ‘general

moral character, mentality, habits, social environment, tendencies, age, aversion or

inclination to commit crime, life, family, occupation, and previous criminal record.’”


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Rice, 2016 S.D. 18, ¶ 27, 877 N.W.2d at 84 (quoting State v. Bruce, 2011 S.D. 14, ¶

29, 796 N.W.2d 397, 406).

[¶13.]       The sentencing court in this case considered all of the factors, as

articulated in the presentence investigation report, before sentencing Toavs. The

report specifically addressed the severity of Toavs’s offenses and his prospect for

rehabilitation. So even though Toavs’s total sentence is longer that his expected

lifespan, the sentencing court’s imposition of a sentence to a term of years rather

than life gives Toavs an opportunity to rehabilitate himself. See, e.g., State v.

Lemley, 1996 S.D. 91, ¶ 15, 552 N.W.2d 409, 413.

[¶14.]       “Absent specific authority, it is not the role of an appellate court to

substitute its judgment for that of the sentencing court as to the appropriateness of

a particular sentence.” State v. Blair, 2006 S.D. 75, ¶ 20, 721 N.W.2d 55, 61

(quoting State v. Garber, 2004 S.D. 2, ¶ 13, 674 N.W.2d 320, 323). Therefore, we

cannot agree with Toavs’s claim that the sentencing court abused its discretion

during sentencing. There is nothing in the record to suggest the sentencing court

made “a choice outside the range of permissible choices.” Talla, 2017 S.D. 34, ¶ 8,

897 N.W.2d 351, 353 (quoting Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d at 83). The

sentencing court did not abuse its discretion in sentencing Toavs to serve

consecutive sentences of 110 and 100 years.

[¶15.]       We affirm.

[¶16.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.

[¶17.]       JENSEN, Justice, did not participate.


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