#27371-aff & rem-SLZ
2015 S.D. 76
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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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
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THE HONORABLE JEROME A. ECKRICH, III
Judge
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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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