#26248-a-GAS

2012 S.D. 77

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****

STATE OF SOUTH DAKOTA,                     Plaintiff and Appellee,

      v.

SARAH ELIZABETH SCHMIDT,                   Defendant and Appellant.


                                  ****

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

                                  ****

                    THE HONORABLE RANDALL L. MACY
                                Judge

                                  ****
MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.

KAREN PAIGE HUNT of
Wilde & Hunt, Prof LLC
Spearfish, South Dakota                    Attorneys for defendant
                                           and appellant.


                                  ****
                                           CONSIDERED ON BRIEFS
                                           ON AUGUST 27, 2012

                                           OPINION FILED 11/07/12
#26248

SEVERSON, Justice.

[¶1.]         Sarah Elizabeth Schmidt was charged by an indictment dated July 1,

2010 with ten counts of grand theft, in violation of SDCL 22-30A-1 and 22-30A-

17(1); three counts of identity theft, in violation of SDCL 22-40-8; and sixty-seven

counts of forgery, in violation of SDCL 22-39-36. Pursuant to a plea agreement with

the State, Schmidt pleaded guilty but mentally ill to ten counts of grand theft, a

Class 4 felony, on May 26, 2011. Schmidt filed a motion to withdraw her guilty but

mentally ill pleas prior to sentencing. The motion was denied. Schmidt was

sentenced to ten years in the penitentiary on Counts I through IX, to run

concurrent, and to ten years in the penitentiary on Count X, to run consecutive to

Counts I through IX. With new counsel, Schmidt appeals, raising the following

issues: 1) whether the circuit court abused its discretion in denying Schmidt’s

motion to withdraw her pleas of guilty but mentally ill; 2) whether Schmidt’s due

process rights were violated when she was denied the opportunity to review and

comment on the entire presentence investigation report; 3) whether the

representation afforded Schmidt constituted ineffective assistance of counsel; 4)

whether Schmidt’s sentence was cruel and unusual punishment under the Eighth

Amendment.

                                       FACTS

[¶2.]        Schmidt was hired in 2004 to serve as the personal secretary for Rod

Galland, the founder, president, and majority shareholder of IMPAK, International

Molded Packaging Corporation, located in Central City, South Dakota. As

Galland’s personal secretary, Schmidt had considerable control over corporate


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accounts and several of Galland’s personal accounts and was primarily responsible

for remitting payroll taxes to the IRS.

[¶3.]        In April 2010, Galland’s daughter, Brook Sebade, Director of

Operations for IMPAK, discovered several payments had been made to her father’s

American Express card, which was primarily used when Galland was on business

trips. Galland, however, was suffering from cancer and had not made any recent

business trips. Sebade eventually discovered Schmidt had been using the American

Express card to purchase personal items. When Sebade confronted Schmidt,

Schmidt confessed to making charges on the card.

[¶4.]        Upon learning about the thefts, Galland contacted Timothy R. Johns,

Galland’s corporate and personal counsel. Johns arranged to meet with Schmidt on

April 9, 2010. At that time, Schmidt admitted she had been embezzling funds for

the past two years from IMPAK’s American Express credit card account in the

amount of $20,000 and from Galland’s personal checking account, his Capital One

credit card account, and Chase credit card account in the amount of $40,000. On

April 19, 2010, Schmidt signed an Admission of Liability, wherein she admitted to

having embezzled over $60,000.

[¶5.]        Johns soon realized Schmidt had been embezzling from ten different

corporate and personal accounts belonging to Galland since January 2005, while

still on felony probation for a November 2004 grand theft conviction in Butte

County, South Dakota. She also forged Galland’s signature on sixty-seven checks

from Galland’s checking account and failed to pay employee payroll taxes. As a




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result, IRS liens were filed against IMPAK. The total amount embezzled exceeded

$224,000 and the various tax liens equal $62,550.91.

[¶6.]        Schmidt was charged by an indictment dated July 1, 2010 with ten

counts of grand theft, three counts of identity theft, and sixty-seven counts of

forgery. The State also filed a Part II Information alleging Schmidt was a habitual

offender. Schmidt was arraigned on August 31, 2010. She pleaded not guilty to

each of the charges against her. At the arraignment, she requested court-appointed

counsel. Eric Whitcher was appointed to represent Schmidt.

[¶7.]        At a January 11, 2011 status hearing, the circuit court granted defense

counsel’s motion for a psychiatric evaluation and ordered Schmidt to undergo a

competency and forensic evaluation to determine her competency to proceed to trial

and her state of mind at the time of the alleged crimes. The evaluation was

completed by Stephen P. Manlove, M.D. of Manlove Psychiatric Group, P.C. in

Rapid City, South Dakota.

[¶8.]        The report revealed Schmidt had attended approximately eight

counseling sessions nearly twenty years ago and had been prescribed

antidepressants by her primary care doctor, but stopped taking them voluntarily.

The report indicated, however, that Schmidt was logical and coherent, without

evidence of a thought disorder; she did not have auditory or visual hallucinations;

she was of average cognition; and her psychiatric history revealed no previous

hospitalizations or residential treatment. Dr. Manlove stated that in his opinion

Schmidt was experiencing “a great deal of anxiety regarding the criminal charges

against her and the consequences of those charges.” Dr. Manlove suggested a


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combination of psychotherapy and medication to treat Schmidt’s anxiety so she

could “function much better in the legal process.” Schmidt did not begin taking the

prescribed medication until the day before sentencing.

[¶9.]        Schmidt entered a plea agreement with the State. The terms of the

plea agreement specified that Schmidt would plead guilty but mentally ill to ten

counts of grand theft. In exchange, the State would dismiss all remaining charges

and the Part II Information alleging she was a habitual offender.

[¶10.]       A change of plea hearing was held on May 26, 2011. During this

hearing, the circuit court explained to Schmidt the nature of the charges against

her, the penalties for each charge, her constitutional rights, and the terms of the

plea agreement. The following exchange then took place between the circuit court

and Schmidt:

             THE COURT: Is your plea voluntary?

             DEFENDANT: Yes, sir.

             THE COURT: And you understand your rights, and you waive the

             rights that I’ve explained to you today?

             THE DEFENDANT: Yes, sir.

Schmidt eventually pleaded guilty but mentally ill to ten counts of grand theft. The

circuit court ordered a presentence investigation (PSI).

[¶11.]       Prior to sentencing on September 1, 2011, Schmidt filed a pro se

motion to withdraw her guilty but mentally ill pleas contending she did not enter

into the plea knowingly or willingly because she was suffering from a mental

illness; was under severe emotional and physical distress; and felt a tremendous


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amount of pressure and coercion at the time she entered her pleas of guilty but

mentally ill. As a result, Whitcher filed a motion to withdraw as counsel. The

sentencing court denied both motions. Schmidt was sentenced to ten years in the

penitentiary on Counts I through IX, to run concurrent, and to ten years in the

penitentiary on Count X, to run consecutive to Counts I through IX.

                             STANDARD OF REVIEW

[¶12.]       “We review a [circuit] court’s refusal to permit a defendant to withdraw

his guilty plea prior to sentencing under an abuse of discretion standard.” State v.

Bailey, 1996 S.D. 45, ¶ 11, 546 N.W.2d 387, 390. “The term ‘abuse of discretion’

refers to a discretion exercised to an end or purpose not justified by, and clearly

against, reason and evidence.” Id. (quoting State v. Engelmann, 541 N.W.2d 96, 100

(S.D. 1995)). “We apply a de novo standard of review to claims of constitutional

violations.” State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585 (citing State v.

Dillon (Dillon I), 2001 S.D. 97, ¶ 12, 632 N.W.2d 37, 43). “A claim that a sentence is

grossly disproportionate is reviewed by the standards set out in State v. Bonner,

1998 S[.]D[.] 30, ¶ 17, 577 N.W.2d 575, 580.” Id.

                                     ANALYSIS

[¶13.]       1.     Whether the circuit court abused its discretion in
                    denying Schmidt’s motion to withdraw her pleas of guilty
                    but mentally ill.

[¶14.]       SDCL 23A-27-11 provides:

             A motion to withdraw a plea of guilty or nolo contendere may be
             made only before sentence is imposed or imposition of sentence
             is suspended; but to correct manifest injustice a court after
             sentence may set aside a judgment of conviction and permit the
             defendant to withdraw his plea.


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[¶15.]       As we most recently stated in State v. Olson,

             The withdrawal of a guilty plea before the imposition of sentence
             is within the sound discretion of the [circuit] court. When a
             defendant moves to withdraw a plea prior to sentencing, a court
             should exercise its discretion liberally in favor of withdraw. But,
             SDCL 23A-27-11 does not create an automatic right to withdraw
             a guilty plea. When deciding whether to allow a criminal
             defendant to withdraw his plea, the [circuit] court must look at
             the reasons why the plea is sought to be withdrawn and if the
             request to withdraw is obviously frivolous, the circuit court need
             not grant it.

2012 S.D. 55, ¶ 18, 816 N.W.2d 830, 835-36 (alteration in original) (citations

omitted) (internal quotation marks omitted).

[¶16.]       A request to withdraw a guilty plea is frivolous if a defendant fails to

provide “‘a tenable reason why withdrawal should be permitted, a reason’” the court

deems fair and just. Everett v. U.S., 336 F.2d 979, 982 (D.C. Cir. 1964); State v.

Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433 (quoting Engelmann, 541 N.W.2d

at 100).

             A defendant who stands before a court freely admitting his
             [crime] does not remotely meet the standard of offering a “fair
             and just reason” for withdrawing his plea of guilty prior to
             sentence. He must give some reason other than a desire to have
             a trial the basic purpose of which is to determine the very facts
             the defendant has just volunteered to the court on the record
             and while attended by his own counsel.

Everett, 336 F.2d at 984. Furthermore, “a defendant who has pleaded guilty no

longer enjoys the presumption of innocence and, on a motion to withdraw the plea,




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bears the burden of production and persuasion.” Thielsen, 2004 S.D. 17, ¶ 19, 675

N.W.2d at 434 (citing Bailey, 1996 S.D. 45, ¶ 13, 546 N.W.2d at 391). 1

[¶17.]         In State v. Grosh, 387 N.W.2d 503, 506 (S.D. 1986), we set forth a non-

exclusive list of potential factors a circuit court should consider in deciding whether

to allow a defendant to withdraw a guilty plea. Those factors include: 1) actual

innocence; 2) the guilty “plea was contrary to truth[;]” 3) “misapprehension of the

facts[;]” 4) incorrect advice from counsel; 5) misunderstanding of the guilty “plea’s

effect or mistake or misconception of the nature of the charges[;]” and 6) the “plea

was procured by fraud, mistake, misapprehension, fear, or improper means[.]” Id.

(additional citations omitted).

[¶18.]         Because Schmidt pleaded guilty, and thus is no longer presumed

innocent, she had the burden of providing “a persuasive reason why withdrawal

should be permitted[.]” Bailey, 1996 S.D. 45, ¶ 13, 546 N.W.2d at 391. Schmidt did

not point to a single factor set forth in Grosh in support of her motion. Instead,

Schmidt contends an alleged mental impairment rendered her incapable of entering

her guilty pleas knowingly and voluntarily. 2 Our review is limited to whether




1.       Here, we note that when the circuit court gave Schmidt an opportunity to
         address her motion to withdraw her pleas of guilty but mentally ill, she
         conceded that she would “like a chance to be heard on the matter in front of a
         jury.”

2.       From the record, it appears Schmidt also maintained she was under severe
         emotional and physical distress and felt a tremendous amount of pressure
         and coercion at the time she entered her guilty but mentally ill pleas;
         however, she did not provide any additional factual support for those claims
         during the motion hearing or raise them on appeal.

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Schmidt’s mental state at the time she pleaded guilty but mentally ill is a tenable

reason to allow withdrawal.

Schmidt’s Mental State

[¶19.]       “Whether an accused is capable of making the ‘reasoned choice’

essential to the validity of a guilty plea and the waiver of constitutional rights such

as the plea entails ‘depends upon the particular facts and circumstances

surrounding the case, including the background, experience, and conduct of the

accused.’” Id. ¶ 23 (quoting United States v. Masthers, 539 F.2d 721, 726 (D.C. Cir.

1976)). “‘[W]e will look to the totality of the circumstances to determine whether a

guilty plea was knowingly and voluntarily entered.’” Id. (quoting State v. Lohnes,

344 N.W.2d 686, 688 (S.D. 1984)).

[¶20.]       “‘A plea is intelligent and voluntary when the accused has a full

understanding of his constitutional rights and, having that understanding, waives

those rights by a plea of guilty.’” Olson, 2012 S.D. 55, ¶ 19, 816 N.W.2d at 836

(quoting State v. Beckley, 2007 S.D. 122, ¶ 8, 742 N.W.2d 841, 843). A defendant

must ‘“be advised of his rights relating to self-incrimination, trial by jury, and

confrontation,’” and ‘“intentionally relinquish or abandon [those] rights.’” Id.

(quoting Monette v. Weber, 2009 S.D. 77, ¶ 10, 771 N.W.2d 920, 924) (quoting

Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274

(1969)). The record must demonstrate “in some manner that the defendant

understood [her] rights” and the consequences of her guilty plea “in order for the

defendant’s plea to be entered intelligently and voluntarily.” Id. ¶ 20 (quoting State

v. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287).


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[¶21.]         Schmidt was forty-two at the time she entered her guilty plea. Her

highest level of education is a Bachelor’s degree. Schmidt’s criminal record reveals

she had previous experience with plea negotiations and understood the

consequences of entering a guilty plea. 3 Schmidt was represented by counsel at all

relevant stages of the legal proceeding and had sufficient time to discuss the plea

agreement with counsel. The circuit court explained to Schmidt each of her

constitutional rights during both the arraignment and change of plea hearing. In

addition, the circuit court advised Schmidt of the rights she was giving up by

pleading guilty but mentally ill immediately before she entered her plea. Schmidt

assured the court she fully understood her rights and the consequences of her guilty

plea. Thus, the record supports the circuit court’s finding that Schmidt entered her

guilty but mentally ill pleas knowingly and voluntarily.

[¶22.]         However, Schmidt maintains her decision-making ability was reduced

at the time she entered her guilty but mentally ill pleas because her anxiety was

untreated. The circuit court rejected Schmidt’s argument noting “there was no

indication by Ms. Schmidt that she was under pressure or that she was unable to

consult with her attorney or understand the proceedings.” Furthermore, the report

prepared by Dr. Manlove suggests Schmidt was able to understand the proceedings.

Dr. Manlove’s report revealed Schmidt was logical and coherent, without evidence

of a thought disorder; she did not have auditory or visual hallucinations; and she

was of average cognition. There was no showing of mental illness impacting



3.       Schmidt entered into a plea agreement and pleaded guilty to grand theft in
         Butte County, South Dakota on September 30, 2004.

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Schmidt’s ability to proceed. Based upon the facts and circumstances surrounding

the case, Schmidt has not set forth a tenable reason to withdraw her guilty but

mentally ill pleas.

Prejudice

[¶23.]       Alternatively, Schmidt contends the circuit court should have exercised

its discretion liberally in favor of withdrawal because the State failed to produce

evidence of detrimental reliance or prejudice. As we explained in Bailey,

             Although we have previously stated that the [circuit] court’s
             discretion should be exercised liberally in favor of withdrawal
             unless the State has been prejudiced, this does not mean, ipso
             facto, that where the State fails to show prejudice, the
             withdrawal should be automatically granted. There is no
             absolute right to withdrawal of a guilty plea.

1996 S.D. 45, ¶ 29, 546 N.W.2d at 393 (citing State v. Losieau, 266 N.W.2d 259, 262

(S.D. 1978)). “‘While possible prejudice to the prosecution is . . . a factor to be

considered [when deciding a presentence motion to withdraw a guilty plea], absence

of prejudice to the prosecution, by itself, is insufficient to mandate permission for

withdrawal of a guilty plea.’” Id. (quoting State v. Clark, 722 P.2d 322, 326 (N.M.

1989)) (alteration in original) (citations omitted).

[¶24.]       There was no showing of detrimental reliance or prejudice on the part

of the State in the record, and the State does not argue that it was prejudiced on

appeal. Nevertheless, this factor, standing by itself, cannot mandate withdraw of

Schmidt’s guilty but mentally ill pleas.

[¶25.]       The circuit court did not abuse its discretion in concluding that

Schmidt’s attempt to withdraw her plea was without sufficient support in light of

the totality of the circumstances. Schmidt did not provide a persuasive reason why

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withdrawal should be permitted and the absence of prejudice does not create an

automatic right to withdraw a guilty plea. See Grosh, 387 N.W.2d at 506 (holding

that even in the absence of detrimental reliance or prejudice, the circuit court did

not abuse its discretion when no tenable reason to withdraw a guilty plea was

provided).

[¶26.]         2.    Whether Schmidt’s due process rights were violated
                     when she was denied the opportunity to review and
                     comment on the entire presentence investigation report.

[¶27.]         Schmidt contends her due process rights were violated when she was

not given an opportunity to review the PSI in its entirety and provide meaningful

comment. SDCL 23A-27-7 provides,

               Before imposing sentence a court shall disclose the report of the
               presentence investigation to the defendant, the defendant’s
               counsel, if represented by counsel, and the prosecuting attorney,
               but the court may exclude any recommendation as to sentence,
               and other material that, in the opinion of the court, contains a
               diagnostic opinion which might seriously disrupt a program of
               rehabilitation, sources of information obtained upon a promise of
               confidentiality, or any other information which, if disclosed,
               might result in harm, physical or otherwise, to the defendant or
               other persons. The court shall afford the defendant, the
               defendant’s counsel, or the prosecuting attorney an opportunity
               to comment thereon and, in the discretion of the court, to
               introduce testimony or other information relating to any alleged
               factual inaccuracy contained in the presentence report.

As we noted in Brakeall v. Weber, “[O]ur rule does not require that the sentencing

court verify that counsel and defendant have discussed and reviewed the report.

Instead, SDCL 23A-27-7 requires disclosure of the report to the defendant and his

counsel, if represented.” 4 2003 S.D. 90, ¶ 25, 668 N.W.2d 79, 87.



4.       The Brakeall Court distinguished SDCL 23A-27-7 from its federal
                                                          (continued . . .)
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[¶28.]       At the sentencing hearing, the circuit court and defense counsel

engaged in the following colloquy regarding the PSI:

             THE COURT: Mr. Whitcher, have you and your client reviewed

             the presentence investigation?

             MR. WHITCHER: Not exactly, Your Honor. Ms. Schmidt had

             filed a motion for withdrawal of her guilty plea last week, and

             then I had also filed a motion to withdraw in this matter, so I’d

             ask the Court to address those issues.

             THE COURT: Well, the presentence investigation was

             completed the 9th day of August, 2011. Have you and your

             client reviewed it?

             MR. WHITCHER: I have reviewed it, Your Honor. She has read

             a small portion of it in the hall just now.

[¶29.]       Schmidt contends merely providing access to the PSI is not

“disclosure” within the meaning of SDCL 23A-27-7; whereas, the State argues that

the requirements of SDCL 23A-27-7 are met if the defendant is provided access to

the PSI. Therefore, we must consider what constitutes “disclosure” under SDCL

23A-27-7.

________________________
(. . . continued)
         counterpart, Fed. R. Crim. P. 32(c)(3)(a). At that time, Rule 32(c)(3)(a)
         provided, “before imposing sentence the Court must verify that the defendant
         and defendant’s counsel have read and discussed the presentence report.”
         The federal counterpart to SDCL 23A-27-7 is now Fed. R. Crim. P. 32(i)(1)(A)
         which provides that the sentencing court “must verify that the defendant and
         the defendant’s attorney have read and discussed the presentence report and
         any addendum to the report.”


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[¶30.]         Schmidt cites State v. Skaff, 447 N.W.2d 84 (Wis. Ct. App. 1989) to

support her position. In Skaff, the trial court refused to allow the defendant to read

his PSI. Id. at 85. The trial court reasoned that a defendant, represented by

counsel, was not allowed to read his PSI on the premise that confidentiality needed

to be maintained in order for the report to be effective. Id. at 86. On appeal, the

court determined the defendant was entitled to obtain a copy of the PSI stating, “it

would be contrary to the purpose and policy of sec. 972.15(2) to withhold a PSI from

a defendant simply because he or she is represented by counsel.” 5 Id. at 88. Skaff,

however, “did not establish an affirmative duty [either] on the court to insure that a

copy of the PSI [was] timely delivered to [a] defendant” or on “defense counsel to

share the PSI with [a] defendant.” State v. Flores, 462 N.W.2d 899, 901 (Wis. Ct.

App. 1990), overruled on other grounds by State v. Knight, 484 N.W.2d 540, 544 n.6

(Wis. 1992) (emphasis added).

[¶31.]         The PSI was completed twenty-three days before sentencing. Unlike

in Skaff and Brakeall, Schmidt was not denied access to the PSI. Before

sentencing, Schmidt was able to review the PSI, albeit briefly, in the hallway.

Neither Schmidt nor defense counsel requested additional time to review the PSI.

Nevertheless, Schmidt contends that “once the court found out that [she] had only

read a small portion of the report before sentencing, it had further obligation to

disclose the report to her, in full, pursuant to SDCL 23A-27-7.”


5.       W.S.A. 972.15(2) provides, “When a presentence investigation report has
         been received the judge shall disclose the contents of the report to the
         defendant’s attorney and to the district attorney prior to sentencing. When
         the defendant is not represented by an attorney, the contents shall be
         disclosed to the defendant.”

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[¶32.]       Indeed, where, as here, the court becomes aware that a defendant has

reviewed only a small portion of the PSI, the better practice is to suspend the

hearing and provide the defendant more time to review the PSI. However, neither

Skaff, nor our decision in Brakeall, require the circuit court to ensure a copy of the

PSI was timely delivered to Schmidt or that she had an opportunity to review the

entire PSI. See People v. Daniels, 386 N.W.2d 609, 611 (Mich. 1986) (“The statute

[M.C.L. § 771.14(4); M.S.A. § 28.1144(4)] merely requires that the court ‘shall

permit’ the defendant to review the presentence investigation report prior to

sentencing. It does not require the court to verify on the record that the defendant

has reviewed or been given the opportunity to review the presentence report prior

to sentencing but, rather, prohibits the court from denying counsel or the defendant

access to the report.”). Once the court provided Schmidt access to the PSI, the court

had no further obligation under SDCL 23A-27-7. Therefore, under these

circumstances, Schmidt’s due process rights were not violated when she did not

review the entire PSI prior to sentencing.

[¶33.]       Even if the requirements of SDCL 23A-27-7 were not met, Schmidt is

not automatically entitled to resentencing. We must consider whether the court’s

error requires a remand for re-sentencing. Brakeall, 2003 S.D. 90, ¶ 25, 668

N.W.2d at 87. “[R]elief on the basis of an asserted due process violation requires a

showing of prejudice.” Id. ¶ 26. The record demonstrates that neither Schmidt nor

defense counsel objected to the PSI or indicated to the circuit court inaccuracies

existed therein. Furthermore, Schmidt does not indicate what, if any, additional

matters she would have raised at sentencing had she been given an opportunity to


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read the entire PSI. Finally, Schmidt’s brief argues broadly that she was unable to

refute, explain, or supplement the PSI because she was not aware of its full

contents, but she fails to dispute a single component of the PSI. Thus, there is no

showing of prejudice on these facts entitling Schmidt to relief.

[¶34.]       3.     Whether the representation afforded Schmidt
                    constituted ineffective assistance of counsel.

[¶35.]       Schmidt contends she received ineffective assistance of counsel and the

case should be remanded to allow her to present her motion to withdraw her pleas

of guilty but mentally ill with new counsel. She alleges defense counsel was

deficient for three reasons: 1) he provided virtually no representation during her

motion to withdraw her guilty but mentally ill pleas; 2) he did not ask for a

continuance or provide her an opportunity to review the entire PSI; and 3) he failed

to fully examine potential witnesses and assess her mental health status.

[¶36.]       “Ineffective-assistance-of-counsel claims generally are not considered

on direct appeal.” State v. Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d 706, 714 (citing

State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250, 256). “‘The preferred arena for

an ineffective assistance claim is a habeas corpus proceeding.’” Arabie, 2003 S.D.

57, ¶ 20, 663 N.W.2d at 256 (quoting Dillon, 2001 S.D. 97, ¶ 28, 632 N.W.2d at 48).

“The reason is to allow ‘attorneys charged with ineffectiveness [to] explain or defend

their actions and strategies, and thus a more complete picture of what occurred is

available for review.’” Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d at 714 (quoting

Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d at 256) (alteration in original). “This Court

will ‘depart from this principle only when trial counsel was so ineffective and

counsel’s representation so casual as to represent a manifest usurpation of [the

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defendant’s] constitutional rights.’” Id. (quoting Arabie, 2003 S.D. 57, ¶ 20, 663

N.W.2d at 256) (alteration in original).

[¶37.]       Schmidt maintains that her claim should be decided on direct appeal

because defense counsel’s representation was a manifest usurpation of her

constitutional rights. From the record, this does not appear to be “one of those rare

cases where an ineffective-assistance-of-counsel claim is ripe for review on direct

appeal[.]” Id. ¶ 20. Moreover, the record is insufficient to allow for the appropriate

appellate review. See State v. Petersen, 515 N.W.2d 687, 688 (S.D. 1994) (“[I]t is

only through habeas corpus that a sufficient record can be made to allow the

appropriate review.”). Thus, we decline to consider this claim on direct appeal.

[¶38.]       4.     Whether Schmidt’s sentence was cruel and unusual
                    punishment under the Eighth Amendment.

[¶39.]       Schmidt contends the sentences she received constitute cruel and

unusual punishment in violation of the Eighth Amendment. “‘Sentencing decisions

are perhaps the most difficult responsibility for trial judges, encompassing

circumstances both obvious and elusive.’” State v. Bruce, 2011 S.D. 14, ¶ 28, 796

N.W.2d 397, 405-06 (quoting Bonner, 1998 S.D. 30, ¶ 11, 577 N.W.2d at 578). “‘It is

not for us to engage in appellate resentencing, or to micromanage the

administration of criminal justice in South Dakota, even when individual trial

judges impose widely different punishments for the same offense.’” Id. “Instead,

‘[w]e take an extremely deferential review of sentencing–generally, a sentence

within the statutory maximum will not [be] disturbed on appeal.’” Id. (quoting

Bonner, 1998 S.D. 30, ¶ 10, 577 N.W.2d at 578) (alterations in original).



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[¶40.]       In evaluating Schmidt’s claim,

             We first determine whether the sentence appears grossly
             disproportionate. To accomplish this, we consider the conduct
             involved, and any relevant past conduct, with utmost deference
             to the Legislature and the sentencing court. We also consider
             the gravity of the offense and the harshness of the penalty; and
             other relevant factors, such as the effect this type of offense has
             on society. If the sentence does not appear grossly
             disproportionate, no further review is necessary. If the sentence
             does appear grossly disproportionate, an intra- and inter-
             jurisdictional analysis shall be conducted.

Olson, 2012 S.D. 55, ¶46, 816 N.W.2d at 842 (citations omitted) (internal quotation

marks omitted).

[¶41.]       We cannot conclude Schmidt’s sentences were grossly disproportionate.

Grand theft in violation of SDCL 22-30A-1 and 22-30A-17 is a Class 4 felony. SDCL

22-30A-17. The maximum penalty for a Class 4 felony is ten years in the state

penitentiary. SDCL 22-6-1. Thus, Schmidt’s sentences “were within the statutory

limitations and are [ ]afforded ‘substantial deference.’” Olson, 2012 S.D. 55, ¶47,

816 N.W.2d at 842 (citing State v. Brim, 2010 S.D. 74, ¶ 22, 789 N.W.2d 80, 87).

[¶42.]       In addition, at sentencing, the circuit court heard testimony from

Sebade, Galland’s daughter, explaining that her mother was required to sell most of

her property; IRS liens exceeding $50,000 were imposed upon IMPAK; jobs were

jeopardized; and bankruptcy was and is within the realm of possibility because of

Schmidt’s unlawful activity. The circuit court also considered the “extraordinary

amount of theft and deception that ha[d] gone on for at least the last six years” and

the likelihood that restitution [would] not be paid.




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[¶43.]       Additionally, we have stated:

             To arrive at an appropriate sentence: the sentencing court
             should acquire a thorough acquaintance with the character and
             history of the man before it. This study should examine 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.

State v. Larsen-Smith, 2011 S.D. 93, ¶ 8, 807 N.W.2d 817, 819 (citation omitted)

(internal quotation marks omitted).

[¶44.]       There is no showing that the sentencing court failed to acquire a

thorough acquaintance with Schmidt. In addition to the sentencing hearing, the

court was provided with a PSI that the record shows the court had reviewed.

[¶45.]       Finally, the circuit court observed that Schmidt had a prior criminal

history. She was convicted of grand theft on November 4, 2004 in Butte County,

South Dakota and sentenced to five years in the South Dakota Women’s Prison.

Her sentence was modified to a suspended imposition of sentence and she was

placed on probation for four years. Although Schmidt successfully completed

probation, the circuit court found that she was stealing from Galland while on

felony probation.

[¶46.]       The circuit court did not abuse its discretion when it sentenced

Schmidt to twenty years in the penitentiary. “The circuit court properly considered

the gravity of [Schmidt’s] offenses, the effect those offenses have on society,

[Schmidt’s] criminal record, and the likelihood of rehabilitation.” Olson, 2012 S.D.

55, ¶ 49, 816 N.W.2d at 843. Schmidt received the statutorily authorized sentences.

The sentences imposed do not appear grossly disproportionate. Thus, no further

review is necessary.

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[¶47.]      Affirmed.

[¶48.]      GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

WILBUR, Justices, concur.




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