#24062-aff in pt & rev in pt & rem-SLZ
2007 SD 122
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JOSHUA STEVEN BECKLEY, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE PETER H. LIEBERMAN
Judge
* * * *
LAWRENCE E. LONG
Attorney General
CRAIG M. EICHSTADT
Deputy Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.
STEVEN R. BINGER Attorney for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2007
OPINION FILED 12/5/07
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ZINTER, Justice
[¶1.] Joshua Beckley (Beckley) appeals his conviction of possession of a
controlled substance. He contends that the trial court failed to properly advise him
of his right to compel witnesses prior to receiving his guilty plea. He also contends
that the trial court abused its discretion in refusing to continue the sentencing
hearing to allow a psychological evaluation. We affirm on the advisement of rights
issue, but reverse and remand for resentencing for the failure to grant the
continuance.
[¶2.] After being previously told to leave, Beckley was observed videotaping
a young woman at a retail store in Sioux Falls. He was again asked to leave and
law enforcement responded. Earlier that day Beckley was involved in another
incident where he stopped two young women in a car, approached them with a video
camera, and asked them to get out of their vehicle. He claimed he was a city
employee investigating littering. The women refused his request, left the scene,
and reported the incident to law enforcement.
[¶3.] During a search incident to his subsequent arrest, methamphetamine
was found in Beckley’s sock and a methamphetamine pipe with residue was found
in his vehicle. While he was free on bond on these charges, Beckley was observed
taking pictures of a young girl from behind. In yet another incident, Beckley was
observed staring in windows and attempting to enter a university dormitory
wearing only underwear and a tank top. In a final incident, Beckley was arrested
for driving under the influence. As a result of the foregoing conduct, Beckley was
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charged with possession of methamphetamine, possession of drug paraphernalia,
unlawful occupancy, window peeking and third offense driving under the influence.
[¶4.] On April 6, 2005, Beckley was arraigned before Magistrate Judge Julie
Irvine. During the arraignment he was advised of his constitutional and statutory
rights, including the right to compel witnesses. On May 16, 2005, Beckley appeared
before Circuit Judge Peter H. Lieberman for a second arraignment. Beckley was
again advised of his constitutional and statutory rights, including the right to
compel witnesses. Thereafter, Beckley entered into a plea agreement under which
he agreed to plead guilty to possession of methamphetamine in exchange for a
dismissal of the remaining charges and reduction of the third offense DUI to a
misdemeanor.
[¶5.] On January 13, 2006, Beckley appeared with counsel at his change of
plea hearing. Judge Lieberman again informed Beckley of his constitutional and
statutory rights, but this time did not inform him of his right to compel witnesses.
The court did, however, canvass defense counsel concerning Beckley’s
understanding of his rights. Counsel indicated Beckley understood the
consequences of his plea after their “considerable discussion.” Beckley then entered
a guilty plea to possession of methamphetamine. The DUI charge was the subject
of a separate proceeding that is not at issue in this appeal.
[¶6.] On March 8, 2006, Beckley appeared for sentencing on the
methamphetamine offense. Judge Lieberman asked Beckley’s separate counsel on
the DUI charge if she and Beckley had also discussed his constitutional and
statutory rights. She indicated they had. Defense counsel on the
methamphetamine charge then attempted to call two sentencing mitigation
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witnesses and sought a continuance to obtain psychological testing at the
defendant's own expense to be utilized at sentencing. This motion for the
continuance was accompanied by a subpoena for Jack Dodge, a former doctor and
one of Beckley’s fellow inmates who was awaiting sentencing on federal drug
charges. Counsel sought to call Dodge as a witness to Beckley’s mental state, which
would have further supported the request for the psychological testing in mitigation
of punishment. A handwritten note from Dodge explained the nature of his
proposed testimony. The motion was finally supported by an affidavit of counsel
indicating that the continuance was necessary because of a conflict in the
scheduling of a professional examination. The circuit court denied the request to
call the witness and denied the request for a continuance. Beckley was sentenced to
eight years in the state penitentiary. He appeals raising two issues.
I.
[¶7.] Whether Beckley should be allowed to withdraw his guilty plea
because the sentencing court did not advise him of his right to
compel witnesses prior to receiving the guilty plea.
[¶8.] “[I]n order for a conviction based upon a guilty plea to stand the plea
must be intelligent and voluntary. Such a plea is intelligent and voluntary when
the accused has a full understanding of his constitutional rights and, having that
understanding, waives these rights by a plea of guilty.” Lodermeier v. State, 273
NW2d 163, 164 (SD 1978) (citations omitted). 1 SDCL 23A-7-4 (Rule 11(c))
1. Furthermore, “a plea of guilty cannot stand unless the record in some
manner indicates a free and intelligent waiver of the three constitutional
rights mentioned in Boykin self-incrimination, confrontation and jury trial
and an understanding of the nature and consequences of the plea.”
Lodermeier, 273 NW2d at 165. Beckley does not contend he was not properly
advised of these Boykin rights. See Boykin v. Alabama, 395 US 238, 243, 89
SCt 1709, 1712, 23 LEd2d 274, 280 (1969).
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“establishes a procedure for the judge to follow to ensure that a guilty plea is
knowing and voluntary.” State v. Goodwin, 2004 SD 75, ¶7, 681 NW2d 847, 850.
That statute provides:
Before accepting a plea of guilty or nolo contendere a
court must address the defendant personally in open
court, subject to the exception stated in 23A-7-5, and
inform him of, and determine that he understands, the
following:
(1) The nature of the charge to which the plea is
offered, the mandatory minimum penalty provided
by law, if any, and the maximum possible penalty
provided by law;
(2) If the defendant is not represented by an
attorney, that he has the right to be represented by
an attorney at every stage of the proceedings
against him and, if necessary, one will be appointed
to represent him;
(3) That he has the right to plead not guilty or to
persist in that plea if it has already been made, and
that he has the right to assistance of counsel, the
right to confront and cross-examine witnesses
against him, and the right not to be compelled to
incriminate himself;
(4) That if he pleads guilty or nolo contendere
there will not be a further trial of any kind, so that
by pleading guilty or nolo contendere he waives the
right to a trial, the right to confront and cross-
examine witnesses against him, and the right not
to be compelled to incriminate himself; and
(5) That if he pleads guilty or nolo contendere,
the court may ask him questions about the offense
to which he has pleaded, and if he answers these
questions under oath, on the record, and in the
presence of counsel, his answers may later be used
against him in a prosecution for perjury.
[¶9.] Although SDCL 23A-7-4 does not specifically require an advisement of
the right to compel witnesses, both the United States and South Dakota
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Constitutions guarantee that right. US Const amend VI; SD Const art VI, sec 7.
This Court has reiterated the United States Supreme Court's characterization of
the right to compulsory process:
The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain terms
the right to present a defense, the right to present the
defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth
lies. Just as an accused has the right to confront the
prosecution’s witnesses for the purpose of challenging
their testimony, he has the right to present his own
witnesses to establish a defense. This right is a
fundamental element of due process of law.
State v. Wiegers, 373 NW2d 1, 8 (SD 1985) (quoting Washington v. Texas, 388 US
14, 19, 87 SCt 1920, 1923, 18 LEd2d 1019, 1023 (1967)). 2
[¶10.] Although compulsory process has been recognized as a fundamental
element of due process, the failure to advise a defendant of all constitutional and
statutory rights does not necessarily vitiate a guilty plea. For example, SDCL 23A-
7-4 has been characterized as only a “procedural safeguard” for determining that a
guilty plea is knowing and voluntarily entered. State v. Miller, 2006 SD 54, ¶18,
717 NW2d 614, 620. “There is no requirement that the record show an express
enumeration by the court nor an express waiver by the defendant . . . as a condition
precedent to a voluntary and intelligent guilty plea.” State v. Moeller, 511 NW2d
803, 810 (SD 1994) (citation omitted). Furthermore, even “[s]pecific articulation of
the Boykin rights by the trial judge is not an indispensable requisite for the record
to establish a valid plea.” Id. “It is sufficient when the record in some manner
shows the defendant entered his plea understandingly and voluntarily.” Id. “The
2. Federal Rule of Criminal Procedure 11(b)(1)(e) specifically requires an
advisement of the defendant’s right to compel the attendance of witnesses.
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record need only show that he knew of his rights and the consequences of his guilty
plea.” Id.
[¶11.] Beckley, however, cites this Court’s decision in State ex rel. Henning v.
Jameson, 71 SD 144, 22 NW2d 731 (1946), for the proposition that the failure to
advise of the right to compel witnesses before receiving a guilty plea requires
automatic reversal. In that case, this Court held that a failure to advise a pro se
defendant of various rights, including the right to confront the witnesses against
him, the right to compulsory process for the witnesses on his behalf, and the right to
a speedy public trial by an impartial jury of the county was a jurisdictional defect
entitling the defendant to habeas relief when the record indicated the defendant did
not sufficiently understand these rights. Id. at 732-33. At the time Henning was
decided, this Court recognized a presumption that a defendant represented by
counsel waived these rights by a guilty plea; however, a pro se defendant did not.
Id. This dichotomy was abandoned following the United States Supreme Court
decision in Boykin, which required the record to affirmatively establish the waiver
of the three constitutional rights mentioned in Boykin- self-incrimination,
confrontation and jury trial. Nachtigall v. Erickson, 85 SD 122, 128, 178 NW2d
198, 201 (1970).
[¶12.] Under the modern framework, the more analogous South Dakota cases
are Lodermeier, 273 NW2d at 165, and State v. Gagne, 421 NW2d 502, 503 (SD
1988). In Lodermeier, the defendant was not advised of his right to confront
witnesses (a Boykin right) or his right to compel witnesses on his behalf (a non-
Boykin right). 273 NW2d at 165. In Gagne, the defendant was not advised of his
right to confront and cross-examine witnesses (a Boykin right) or his right to
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compulsory process to secure witnesses (a non-Boykin right). 421 NW2d at 503. In
both cases, the Court reversed in accord with Boykin. However, in this case Beckley
was advised of his Boykin rights, and Boykin rights do not include compulsory
process.
[¶13.] Additionally, in both Lodermeier and Gagne, the record did not
indicate the defendants were otherwise aware of their rights. “The standard was
and remains whether the plea represents a voluntary and intelligent choice among
the alternative causes of action open to the defendant.” Moeller, 511 NW2d at 810.
Therefore, although it is advisable to inform a defendant of his right to compulsory
process, not doing so is not automatic reversible error. As the Colorado Supreme
Court explained:
[W]e reject the defendant’s claim that the trial court’s
advisement did not satisfy the requirements of due
process because the trial court failed to advise the
defendant that he could subpoena out-of-state witnesses
at the state’s expense. Due process of law does not
require that a court inform a defendant of every
conceivable constitutional right that might be waived by a
guilty or nolo contendere plea. Carried to its logical
extreme, this argument would require a court before
accepting a guilty or nolo contendere plea, to inform a
defendant, among other things, of his right to be free from
cruel and unusual punishment, his right to be free from
unreasonable searches and seizures, his right to be
protected against being placed twice in jeopardy for the
same crime, and his right to reasonable bail.
People v. Drake, 785 P2d 1257, 1272 (Colo 1990). See also State v. Moses, 127 P3d
330, 335-40 (Kan 2006) (recognizing the failure to advise a defendant of compulsory
process and other rights does not automatically result in the withdrawal of a guilty
plea and examining the circumstances surrounding that plea including a written
waiver, representation by counsel, familiarity with the criminal justice system and
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defendants familiarity with the case against him and the benefit of the plea
agreement); State v. Salter, 515 So2d 609, 610 (LaCtApp 1987) (concluding “[t]he
right to compulsory process is not one of the rights required by the trial judge in
order to [e]nsure that a guilty plea is knowingly and intelligently made.”); State v.
Rau, 367 NW2d 613, 616 (MinnCtApp 1985) (holding failure to advise of right to
subpoena witnesses does not affect the validity of a guilty plea); State v. Miller, 518
P2d 127, 129 (Ariz 1974) (holding failure to advise of right to compel witnesses and
plead not guilty are not required by Boykin and there “is absolutely no requirement
that [defendant] be advised of any other rights in order to be able to enter a valid
guilty plea.”).
[¶14.] Rather than mechanically determining whether certain rights were
given, we look to “the totality of the circumstances when ascertaining whether a
plea was made knowingly and voluntarily.” Goodwin, 2004 SD 75, ¶11, 681 NW2d
at 852. “In examining the ‘totality of the circumstances’ we have taken into
consideration the following factors: the defendant’s age; his prior criminal record;
whether he is represented by counsel; the existence of a plea agreement; and the
time between advisement of rights and entering a plea of guilty.” Goodwin, 2004
SD 75, ¶ 11, 681 NW2d at 852 (internal citations omitted).
[¶15.] In this case, Beckley was thirty years old; he was represented by
counsel; and although this was his first felony, he had a prior criminal history of
driving under the influence, theft, reckless driving and driving without a license. In
addition to the knowledge gained from the foregoing experiences, he was advised on
three occasions, including the day he entered his guilty plea, of the required
constitutional and statutory rights in accord with Boykin and SDCL 23A-7-4. Most
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significantly, he negotiated a plea agreement and was twice advised of his right to
compel witnesses. Thereafter, Beckley actually subpoenaed a witness to testify at
his sentencing hearing, demonstrating that he was aware of this right. On this
record, we conclude that Beckley's plea was not unknowingly or involuntarily
entered simply because the trial court did not advise him of his right to compel
witnesses a third time.
II.
[¶16.] Whether the trial court abused its discretion in refusing to
continue the sentencing hearing to allow Beckley to obtain a
psychological evaluation.
[¶17.] On March 2, 2006, six days before sentencing, Beckley moved to
continue the sentencing hearing in order to obtain a psychological evaluation at his
own expense. The motion was supported by an affidavit from defense counsel
indicating that a professional evaluator (Michael McGrath) had been contacted but
was unable to complete the evaluation in time for the sentencing hearing. Counsel
indicated he only learned of this on March 1, 2006. The motion was also supported
by the letter from Dodge, the fellow inmate and former doctor, recommending that
Beckley receive a psychological examination.
[¶18.] At the sentencing hearing, defense counsel again sought permission to
call Dodge as a witness to Beckley’s mental state. The trial court immediately
asked to see both attorneys in chambers for an off-the-record discussion. Upon
returning, the court indicated a record needed to be made to support the need for
the psychological evaluation. After argument from counsel, the trial court denied
the request to call Dodge, finding he lacked credibility and the presentence
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investigation was “extremely complete.” The trial court also denied permission to
allow Beckley’s foster father to testify.
[¶19.] After the testimonial requests were denied, defense counsel proceeded
to argue the request for continuance to obtain the psychological evaluation from the
professional evaluator. The trial court denied that motion stating:
I have a report from the Human Services Center and I
also have an extensive letter from your client. Okay, so
[defense counsel] we are going to proceed with sentencing
and if you would, please, proceed with your sentencing
comments.
This possession of other psychological information is the only reasoning reflected in
the record for denial of the motion for continuance. Although Beckley is not
appealing the trial court’s denial of the witness’ testimony, he argues that the trial
court erred in refusing to continue the hearing. Beckley contends that an
evaluation would have allowed him to present psychological evidence in mitigation
at the sentencing hearing, particularly concerning his sexual proclivities.
[¶20.] A trial court’s decision to grant or deny a continuance is reviewed
under an abuse of discretion standard. State v. Letcher, 1996 SD 88, ¶29, 552
NW2d 402, 407. “An abuse of discretion refers to a discretion exercised to an end or
purpose not justified by, and clearly against reason and evidence.” State v.
Asmussen, 2006 SD 37, ¶13, 713 NW2d 580, 586 (citations omitted).
[¶21.] “In deciding whether to grant a continuance, a trial court must
consider: (1) whether the delay resulting from the continuance will be prejudicial to
the opposing party; (2) whether the continuance motion was motivated by
procrastination, bad planning, dilatory tactics or bad faith on the part of the moving
party or his counsel; (3) the prejudice caused to the moving party by the trial court’s
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refusal to grant the continuance; and, (4) whether there have been any prior
continuances or delays." In re J.G.R., 2004 SD 131, ¶15, 691 NW2d 586, 591.
Furthermore, before imposing sentence, the trial court must acquire a thorough
acquaintance with the character and history of the defendant:
[T]he circuit court must “acquire a thorough acquaintance
with the character and history of the [person] before it.”
The Hinger/Bonner factors are the appropriate factors for
the circuit court to consider when determining
sentencing, which include the defendant’s “general moral
character, mentality, habits, social environment,
tendencies, age, aversion or inclination to commit crime,
life, family, occupation, and previous criminal record.” In
addition, the trial court considers the rehabilitation
prospects of the particular defendant.
State v. Blair, 2006 SD 75, ¶27, 721 NW2d 55, 63-64 (internal citations omitted).
[¶22.] In this case, the trial court was presented with a presentence
investigation detailing Beckley’s comments regarding the offense. It also included
personal information such as Beckley's family, marital, educational, military,
religious, medical, employment and financial history. The presentence report
finally included Beckley's plea agreement, prior criminal record, and a discussion of
his drug and alcohol problems. Although the professional evaluations contained in
the presentence report mentioned past problems with depression, as well as sexual,
emotional and physical abuse, they did not go into any detail about those issues.
Those evaluations focused on Beckley’s drug and alcohol addiction, which was
understandable considering the fact that Beckley was being sentenced for the
possession of a controlled substance. The presentence report did, however,
specifically recommend further assessment in the areas of Beckley's sexual abuse
and depression. It was also recommended that Beckley “[b]e seen by a
physician/psychiatrist through the Community Health Clinic for medical assistance
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and possible medication management for mental health issues.” There is no
indication that such assessments were conducted, and the presentence report does
not include any detail on these issues. 3
[¶23.] Despite these omissions and the denial of Beckley's request for his own
psychological evaluation, the sentencing transcripts indicate that the court
proceeded with sentencing focusing on Beckley’s sexual proclivities. In fact, that
was the trial court’s main concern and motivating factor for the sentence it imposed.
The trial court’s statement in sentencing speaks for itself:
I don’t even know where to start here. If this were just a
methamphetamine case, I would treat it as I do with
other possession of methamphetamine cases where we
have a jail sentence and a person goes into treatment and
I try to keep them out of the penitentiary. I am sorry to
say that this is more—more than a methamphetamine
case. He is being sentenced on methamphetamine, but as
we all know I am required to take into consideration all of
the facts of someone’s life and it isn’t the possession of
methamphetamine that is of greater concern to me, in
this case, it is the sexual proclivity of Mr. Beckley. It
appears to me that during the period of time that he was
under the jurisdiction of this Court or immediately before
that time he was involved in three separate sexual
incidents and I share [victim’s father’s] concern about the
defendant involving his daughter. When I hear that this
man had weapons on him, that he was stopping young
girls and video taping them and saying that he was a
personal investigator for the City and I heard he had
knives on his person, [victim’s father], you are not the
only one who got the chills, I did also.
3. SDCL 23A-27-6 provides:
The report of a presentence investigation shall contain any prior
criminal record of the defendant and such information about his
characteristics, his financial condition, and the circumstances affecting
his behavior as may be helpful in imposing sentence or in granting
probation or in the correctional treatment of the defendant, and such
other information as may be required by the court.
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* * *
We then have the incident at the [university] where Mr.
Beckley is in underwear and he is peeking into the
windows of young women, and then I also remember that
the State brought Mr. Beckley before this Court to have
his bond revoked based on the fact that he was out at the
driver’s license bureau and, again, was taking
photographs and it should be noted that he wasn’t taking
pictures of any women’s behinds, but, again, my memory
serves me that he was taking photographs of the behinds
of very young women. This is a real problem here and the
particular problem is that Mr. Beckley, under the
jurisdiction of this Court, knew that he was facing
penitentiary time and despite that was unable to control
his sexual proclivities.
Frankly, in this case, I have reached the point where I am
frightened. I am frightened for the young women of this
community as to where this is going. Mr. Beckley has
knives, he’s stopping women saying he is a private
investigator, taping them, and all the while he was under
the supervision of this Court. This situation has gotten
too scary for me to take any chances.
You talk about throwing someone else away, I don’t throw
people away, I work with people who have
methamphetamine problems, but when someone keeps
committing sexual crimes, the Court gets scared and I am
scared. Now, at some point the balance has to shift. I
have some concern for Mr. Beckley and I realize that he
has serious problems, but at some point the balance of the
scale has to shift towards the safety of girls in our
community, and I am afraid that through his repeated
actions over and over and over again that has caused that
balance to shift traumatically. If he needs help, he’ll have
to receive that help at the penitentiary. At this point he
needs to get himself under control. He’s too scary at this
point to be on the streets of this city and community. I
am imposing a sentence of eight years in the South
Dakota State Penitentiary.
These concerns continued after sentencing. The trial court's judgment of conviction
recommended that the Parole Board obtain a psychosexual evaluation and have
Beckley placed in a sex offender group. This record demonstrates that Beckley’s
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psychosexual state was the major motivating factor and weighed heavily in the trial
court's formulation of its sentence.
[¶24.] Notwithstanding this focus, the court denied the continuance twice
stating its belief that it had adequate information on this subject. The record does
not support the trial court's conclusion. The information in the presentence report
(or otherwise before the Court) was wholly lacking concerning the psychological
aspects of Beckley's sexual proclivities, the area of main concern to the trial court in
determining punishment. More importantly, the denial of Beckley's requests for
continuance to present highly relevant and potentially mitigating evidence violated
SDCL 23A-27-1. That statute provides in relevant part:
At such hearing, the court shall allow the defense counsel
an opportunity to speak on behalf of the defendant and
shall address the defendant personally and ask him if he
wishes to make a statement in his own behalf and to
present any information in mitigation of punishment.
[¶25.] Although we are not suggesting that the failure to include particular
information in a presentence investigation is a matter that is generally appealable,
in this case we consider that fact because it was the sole basis for the trial court's
denial of the continuance and Beckley had a right to present that information to the
sentencing court. “Fundamental principles of procedural fairness apply with no less
force at the penalty phase of a criminal trial than they do in the guilt-determining
phase of a criminal trial.” State v. Phelps, 297 NW2d 769, 776 (ND 1980) (citing
Presnell v. Georgia, 439 US 19, 99 SCt 235, 58 LEd2d 207 (1978)). 4
4. It is important to note that this is not a case where a defendant sought to
contest the factual allegations contained in a presentence report. See Hansen
v. Kjellsen, 2002 SD 1, ¶11, 638 NW2d 548, 552 (recognizing “the defense has
a right to comment on the presentence report and may introduce evidence.”);
State v. Jensen, 1998 SD 52, ¶58, 579 NW2d 613, 623 (“[D]ue process
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[¶26.] Unable to procure the mitigating psychological evaluation allowed
under SDCL 23A-27-1, counsel proceeded to the request for a continuance. This
was denied by the trial court without an analysis of the In re J.G.R. factors. See
supra ¶21. We have also been pointed to no evidence in the record that a
continuance would have been prejudicial to the State or that it was motivated by
bad faith or dilatory tactics. 5 Yet, there is evidence that such an evaluation would
have provided the trial court with relevant psychological information concerning
Beckley’s mental state and sexual proclivities. 6 The trial court recognized that fact,
requires a defendant who contests the accuracy of factual information relied
upon by a sentencing court be given an opportunity to rebut or explain that
information.”). Rather, Beckley sought to supplement that report with
relevant evidence relating to the topic of most concern to the trial court-
information that was otherwise absent.
5. While there is some contention in the brief that the motion for a continuance
was not filed as quickly as it could have been because of informal discussions
occurring between the State and Beckley’s trial counsel relating to further
psychological testing, that evidence is not contained in the record and we do
not consider it here.
6. Even if the dissent were correct in noting that the trial court "was well
informed as to the detail and extent of Beckley's perverse conduct," infra ¶36,
that is not the question. The question is whether Beckley was denied the
statutory right to present mitigating evidence relating to that conduct.
Moreover, that right was not satisfied because "both Beckley and defense
counsel had an opportunity to speak at the . . . sentencing hearing." See infra
¶39. Neither Beckley nor his counsel was competent to provide a
psychological evaluation, and without that type of evaluation we can only
speculate whether the trial court's ultimate sentence would have been
different. Further, the dissent’s assertion that our decision here will
discourage trial courts from ordering presentence reports in the future is
untenable. A defendant’s statutory right to present mitigation evidence is
not dependent upon a trial court’s decision to order a presentence report.
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recommending such an evaluation after Beckley was incarcerated. 7
[¶27.] On this record, the trial court abused its discretion in denying the
continuance to allow Beckley to obtain the psychological evaluation to mitigate the
evidence relating to his sexual misconduct. The trial court failed to consider the
relevant continuance factors, its sole reason for denying the continuance was not
supported, and its denial of Beckley's attempt to present this mitigation witness
violated the statutory right to present mitigation evidence. Compare, State v. Milk,
2000 SD 28, ¶23, 607 NW2d 14, 21 (foreclosing the defendant from seeking to re-
open the sentencing phase to allow psychological evidence because he did not
attempt to call the witness or seek a continuance of the sentencing hearing).
Therefore, we reverse and remand for resentencing after Beckley has been provided
an opportunity to obtain a psychological evaluation.
[¶28.] Affirmed in part, reversed in part and remanded.
[¶29.] SABERS, KONENKAMP and MEIERHENRY, Justices, concur.
[¶30.] GILBERTSON, Chief Justice, concurs in part and dissents in part.
7. This case is distinguishable from State v. Jensen, 1998 SD 52, ¶57, 579
NW2d at 623 (holding decision denying expert witness testimony during
sentencing concerning impact of prison term on juvenile offender was not a
denial of due process) and State v. Iron Necklace, 430 NW2d 66, 81-82 (SD
1988) (holding trial court did not abuse its discretion in denying a
continuance to allow defendant to present mitigating evidence in the form of
letters and affidavits from family members when they were not requested
until the day before the hearing). Beckley’s motion was filed six days prior to
the sentencing hearing and one day after learning that his expert could not
complete the evaluation in time. Finally, the purpose of the requested
continuance was to obtain mitigating evidence concerning conduct that was
not the subject of the guilty plea but nevertheless was the most aggravating
sentencing factor in the view of the court and was an area virtually
untouched in the presentence report.
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GILBERTSON, Chief Justice (concurring in part and dissenting in part).
[¶31.] While I concur with the Court’s holding on Issue 1, I write to dissent
with its holding on Issue 2 – that the circuit court abused its discretion by refusing
to continue the sentencing hearing to allow Beckley to obtain a psychological
evaluation pertaining to his sexual proclivity. The Court’s decision is based on its
position that the presentence report was incomplete and that the circuit court had
inadequate information to pass sentence without the psychological evaluation that
Beckley argues would have provided the justification for mitigating his sentence. I
cannot agree.
[¶32.] It is the duty of a sentencing court to insure that the punishment
“fit[s] the offender and not merely the crime.” State v. Anderson, 1996 SD 46, ¶32,
546 NW2d 395, 403 (quoting Williams v. New York, 337 US 241, 247, 69 SCt 1079,
1083, 93 LEd 1337, 1342 (1949)). In order to impose an appropriate sentence, the
sentencing court must “acquire a thorough acquaintance with the character and
history of [the defendant.]” State v. Blair, 2006 SD 75, ¶27, 721 NW2d 55, 63
(citing State v. Bonner, 1998 SD 30, ¶19, 577 NW2d 575, 580 (quoting State v.
Chase in Winter, 534 NW2d 350, 354-55 (SD 1995))). Appropriate factors to
consider when determining sentence include, “the defendant’s ‘general moral
character, mentality, habits, social environment, tendencies, age, aversion or
inclination to commit crime, life, family, occupation, and previous criminal record.’”
Id. (citing Bonner, 1998 SD 30, ¶19, 577 NW2d at 580 (quoting Chase in Winter,
534 NW2d at 354-55)). “This consideration may include . . . ‘uncharged conduct.’” 8
8. While the sentencing court has “wide latitude” in determining an appropriate
sentence, see McKinney II, 2005 SD 74, ¶17, 699 NW2d at 466 (citing State v.
Milk, 2000 SD 28, ¶10, 607 NW2d 14, 17 (citation omitted)), in order to
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Id. ¶27, 721 NW2d at 64 (quoting State v. McKinney, 2005 SD 74, ¶17, 699 NW2d
460, 466 (McKinney II) (citing United States v. Schaefer, 291 F3d 932, 944 (7thCir
2002))). However, “[t]he primary criterion in sentencing is good order and
protection of the public and society, and all other factors must be subservient to
that end.” Anderson, 1996 SD 46, ¶31, 546 NW2d at 403 (citations omitted).
[¶33.] Whether, a presentencing investigation and report is ordered is a
discretionary matter. SDCL 23A-27-5. 9 When there is sufficient evidence in the
record, enabling the meaningful exercise of sentencing discretion, the presentence
report is superfluous. Id. See supra note 9 (setting out that when there is sufficient
evidence in the record on which to base a sentence, a sentencing court need only
then state said basis for the record).
consider uncharged conduct, the State must prove such conduct by a
preponderance of the evidence. Id. ¶18, 699 NW2d at 466 (citations omitted).
Although Beckley argues that the circuit court did not adequately consider
the psychological underpinnings of his perverse sexual behavior, he did not
object to the sentencing court’s consideration of this uncharged conduct nor
does he on appeal claim error in the sentencing court’s consideration of same.
9. SDCL 23A-27-5 provides:
A presentence investigation may be ordered in the discretion of a court. The
court services officer of a court shall make a presentence investigation and
report to the court before the imposition of sentence or the granting of
probation unless, with the permission of the court, the defendant waives a
presentence investigation and report, or the court finds there is in the record
information sufficient to enable the meaningful exercise of sentencing
discretion, and the court explains this finding on the record.
The report shall not be submitted to a court or its contents disclosed to
anyone unless the defendant has pleaded guilty or nolo contendere or has
been found guilty, except that a judge may, with the written consent of the
defendant, inspect a presentence report at any time.
(Emphasis added).
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[¶34.] In this case, the sentencing court ordered a sentencing hearing that
was held on March 8, 2006. In advance of this hearing, the court reviewed a
presentence report. After reviewing the record, it is apparent, as the court pointed
out at the hearing, the report is “very complete.” It contains voluminous
information about Beckley including family and marital history, his level of
education, military service, employment and financial and medical records as well
as information about his religious background. In addition, the report also noted
that Beckley had had periods of depression and that he had been sexually abused. 10
Further, the report discussed in detail Beckley’s problems with drugs and alcohol.
Nevertheless, the Court concludes that since the sentencing court emphasized its
concern over Beckley’s history of perverse sexual behavior when imposing sentence,
Beckley was entitled to a continuance in order to include a psychological evaluation
aimed at explaining his sexual proclivity, thereby providing a basis to mitigate his
sentence.
[¶35.] Despite the fact that Beckley offered no explanation as to why the
evaluation had not been completed in advance of the March 8, 2005 sentencing
hearing, 11 the Court bases its conclusion that Beckley was entitled to the
continuance on an interpretation of SDCL 23A-27-6 that it believes required the
presentence report to include more findings about Beckley’s sexual proclivity.
SDCL 23A-27-6 provides:
10. The report indicates that Beckley received a substantial monetary award as a
participant in a class-action law suit seeking damages for victims of sexual
abuse that occurred in a group home operated by the State of Washington.
11. The fact that Beckley’s expert was unable to attend the sentencing hearing
does not constitute a reason for why the psychological evaluation had not
been completed by that late date.
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The report of a presentence investigation shall contain
any prior criminal record of the defendant and such
information about his characteristics, his financial condition,
and the circumstances affecting his behavior as may be
helpful in imposing sentence or in granting probation or
in the correctional treatment of the defendant, and such
other information as may be required by the court.
(Emphasis added). The only requirement under this statute is that the presentence
report “shall contain any prior criminal record.” After ordering a presentence
investigation and report, the sentencing court then has the discretion to direct that it
include whatever other information “as may be helpful” and “required” in imposing
sentence.
[¶36.] In addition to the detailed presentence report in this case, the record
indicates that the sentencing court was well informed as to the detail and extent of
Beckley’s perverse conduct. As reflected in the Court’s opinion, supra note 10, the
sentencing court went to great lengths to establish for the record the basis for its
sentence.
[¶37.] The sentencing court discussed at length how Beckley had pulled over
a car with two young girls on April 5, 2005, under the false pretence of working
undercover for the City of Sioux Falls. The court discussed how he attempted to
videotape the girls. Later that day, Beckley was arrested for methamphetamine
possession at the Best Buy in Sioux Falls after police had been summoned there to
investigate his strange behavior, which included videotaping other young women.
There, Beckley was found in possession of the video camera and knives. The
camera’s videotape contained footage of the rear ends of young women at Best Buy.
The videotape also included footage of Beckley engaged in sex acts. After being
released on bail, Beckley was again taken into custody on May 10, 2005, when
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police were summoned to the driver’s licensing office in Sioux Falls after Beckley
was observed photographing another young girl. Finally, on September 13, 2005,
Beckley was arrested for window peeking and attempting to force his way into a
women’s dormitory on the campus of a Sioux Falls University. During this episode,
Beckley was wearing only underwear and a tank top.
[¶38.] Despite the obvious and extensive justification for the sentence handed
down by the court, this Court now determines that Beckley was entitled to a
continuance on the chance that a psychological evaluation of his perverse sexual
behavior would have rendered some finding that the sentencing court would have
justified as a reason to impose a lesser sentence. This defies reason. The record is
replete with evidentiary support for the sentencing court’s determination that
Beckley’s behavior posed a clear and present danger to the community, thereby
justifying the lengthy sentence that he received.
[¶39.] The Court also concludes that the sentencing court’s refusal to grant a
continuance violated SDCL 23A-27-1. 12 However, the Court is mistaken in this
assessment as well since, as required by that statute, both Beckley and defense
12. SDCL 23A-27-1 provides in pertinent part:
Sentences shall be imposed without unreasonable delay, but not within forty-
eight hours after determination of guilt. A defendant may waive the forty-
eight hour delay. Before imposing a sentence, a court may order a hearing in
mitigation or aggravation of punishment. At such hearing, the court shall
allow the defense counsel an opportunity to speak on behalf of the defendant
and shall address the defendant personally and ask him if he wishes to make
a statement in his own behalf and to present any information in mitigation of
punishment.
(Emphasis added).
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counsel had an opportunity to speak at the discretionary sentencing hearing. See
supra note 12 (SDCL 23A-27-1). While under the statute Beckley was entitled “to
present any information in mitigation of punishment,” see supra note 12 (SDCL
23A-27-1), the only thing that the Court can point to that Beckley was not able to
present was the psychological evaluation. Again, it is beyond reason to conclude
that the evaluation would have contained any finding for which the sentencing
court would have justified imposition of a shorter sentence.
[¶40.] There was support in the record for the sentence imposed by the court;
the presentence report notwithstanding. The Court’s holding imposes mandatory
content in a discretionary report. The result of this holding will be that sentencing
courts will forego ordering presentence reports in favor of determination based on
the trial court record in order to avoid the threat of reversal established by this
Court today.
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