#27758-a-DG
2016 S.D. 86

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

RYAN G. JONES,                              Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                    THE HONORABLE HEIDI LINNGREN
                               Judge

                                   ****


MARTY J. JACKLEY
Attorney General

ANN C. MEYER
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
                                            NOVEMBER 7, 2016
                                            OPINION FILED 12/07/16
#27758

GILBERTSON, Chief Justice

[¶1.]         Ryan Jones pleaded guilty to one count of aggravated incest and four

counts of abusing his children. The circuit court sentenced Jones to a total of

47 years imprisonment in consecutive sentences and ordered him to pay $19,555 to

the Department of Social Services for counseling and treatment costs incurred in

caring for the children. Jones appeals the reimbursement order, arguing that the

Department is not statutorily entitled to such payment. We affirm.

                           Facts and Procedural History

[¶2.]         This case arises out of Jones’s repeated abuse—sexual and otherwise—

of his children from April 27, 2009, to November 17, 2014. 1 On January 7, 2015, a

grand jury indicted Jones on eight counts relating to this abuse. First, the

indictment charged Jones with one count of first-degree rape under SDCL 22-22-

1(1) and one count of second-degree rape under SDCL 22-22-1(2). Alternatively, the

indictment charged Jones with one count of fourth-degree rape under SDCL 22-22-

1(5), one count of aggravated incest under SDCL 22-22A-3(1), and four counts of

abusing a minor under SDCL 26-10-1.

[¶3.]         Jones and the State subsequently entered into a plea agreement. The

circuit court held a change-of-plea hearing on September 14, 2015, during which the

State described the agreement:

              The plea agreement is Mr. Jones will be pleading . . . guilty to
              Count 4, aggravated incest, and, also, Counts 5 through 8, child
              abuse, felony level.


1.      Neither Jones nor the State delves into the specifics of Jones’s conduct.
        Because the issue raised by the parties is one of statutory construction, such
        details are not necessary to resolve this appeal.

                                           -1-
#27758

              The State would agree to dismiss the remaining charges. He
              will obtain a sex offender evaluation, be responsible for any and
              all costs. At the time of sentencing, both sides would remain
              free to comment.

The court canvassed Jones and explained that by pleading guilty, Jones could be

subjected to a total of 55 years imprisonment and fines totaling $110,000. Jones

agreed and signed a written fact statement, which the State supplied, to provide a

basis for his plea.

[¶4.]         On January 4, 2016, the circuit court sentenced Jones to 15 years

imprisonment for aggravated incest and 8 years imprisonment for each of the four

counts of abusing a minor—all to be served consecutively—totaling 47 years. The

court gave Jones credit for time served. Finally, it also required Jones to pay court

costs, attorney fees, and transcript costs, and to reimburse the Department for

$19,555 spent on counseling and treating Jones’s victims.

[¶5.]         Jones appeals, raising one issue: Whether his trial counsel rendered

ineffective assistance by failing to object to the court’s reimbursement order. 2

                                Standard of Review

[¶6.]         The central issue in this case is a question of statutory construction.

We review such issues de novo. Good Lance v. Black Hills Dialysis, LLC, 2015 S.D.

83, ¶ 9, 871 N.W.2d 639, 643. Thus, we give no deference to the circuit court’s legal

conclusions. Id.




2.      In his brief, Jones also directly attacks the court’s reimbursement order,
        claiming it was plain error. Because both versions of his argument fail for
        the same reason, we do not separately analyze his plain-error argument.

                                           -2-
#27758

                               Analysis and Decision

[¶7.]        Jones argues the Department was not entitled to the $19,555

reimbursement order “because it was not a victim of the crimes of Jones.” Jones

argues that this case is governed by SDCL chapter 23A-8. Under this chapter,

“restitution shall be made by each violator of the criminal laws to the victims of the

violator’s criminal activities to the extent that the violator is reasonably able to do

so.” SDCL 23A-28-1. A victim is “any person, as defined in subdivision 22-1-2(31),

who has suffered pecuniary damages as a result of the defendant’s criminal

activities, including any person who has by contract or by statute undertaken to

indemnify another or to pay or provide a specified or determinable amount or

benefit upon determinable contingencies.” SDCL 23A-28-2(5). However, a state

agency is not considered a person for purposes of this statute unless its property is

the subject of the crime or petty offense at issue. SDCL 22-1-2(31).

[¶8.]        We need not determine whether the Department qualifies as a victim

under SDCL 23A-28-2(5). As the State correctly points out, the court’s

reimbursement order was actually required by another statute:

             Anyone convicted under § 26-10-1 or 22-22-7, or subdivision 22-
             22-1(1) or (5), shall be required as part of the sentence imposed
             by the court to pay all or part of the cost of any necessary
             medical, psychological, or psychiatric treatment, or foster care of
             the minor resulting from the act or acts for which the defendant
             is convicted.

SDCL 23A-28-12. Jones pleaded guilty to violating SDCL 26-10-1 in regard to each

of his four victims. Therefore, under SDCL 23A-28-12, he was explicitly required to

pay their treatment costs. While Jones additionally committed aggravated incest

(which is not enumerated in SDCL 23A-28-12) against one of these four victims, he

                                           -3-
#27758

has not argued that the victim’s treatment costs would have been any less had

Jones been convicted solely under SDCL 26-10-1. Therefore, even if the

Department does not qualify as a victim under SDCL 23A-28-2(5), Jones is still

responsible for paying the entirety of his victims’ treatment costs under SDCL 23A-

28-12. Moreover, as noted above, Jones agreed to pay “any and all costs” as part of

the plea agreement. See supra ¶ 3.

                                     Conclusion

[¶9.]        Jones pleaded guilty to violating SDCL 26-10-1 in regard to each of his

four victims. Therefore, the circuit court was required to order Jones to pay for

their treatment costs under SDCL 23A-28-12, and Jones’s trial counsel’s failure to

object in no way suggests Jones received deficient assistance of counsel.

[¶10.]       We affirm.

[¶11.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




                                         -4-
