#24753-aff in pt & vac in pt-RWS
2008 SD 117
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
A.B., Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOHN J. DELANEY
Judge
* * * *
LAWRENCE E. LONG
Attorney General
MEGHAN N. DILGES
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
KENNETH E. JASPER of
Jasper Law Office
Rapid City, South Dakota Attorney for defendant
and appellant.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 3, 2008
OPINION FILED 12/10/08
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SABERS, Justice.
[¶1.] Defendant A.B. was charged with first degree robbery, or, in the
alternative, second degree robbery. He was also charged with conspiracy to commit
first degree robbery and simple assault. A.B.’s request to be transferred to juvenile
court was denied. He pleaded guilty to first degree robbery, in exchange for the
State dropping all other charges. A.B. was sentenced to 10 years in prison, with 6
years suspended. He appeals, raising three issues: (1) Whether the circuit court
erred in refusing to transfer A.B. to juvenile court; (2) Whether the circuit court
abused its discretion in not granting A.B.’s request for a suspended imposition of
sentence; and (3) Whether the circuit court erred by amending the judgment to
include restitution not imposed in the oral sentence. We affirm the circuit court on
the first two issues. As to the third issue, we vacate the amended judgment.
FACTS
[¶2.] On June 9, 2007, A.B. and several others were partying at the Christy
Steele residence in Rapid City. A.B. later reported that he drank four or five 40-
ounce beers at the party. When the beer ran out, A.B., Anthony One Feather, and
S.B.B. (co-Defendants) decided to go on a “beer run.” Witnesses from the party
stated that the co-Defendants were passing around a silver and black BB gun and
telling people they were going to use it to rob the liquor store. Shortly after
midnight, the co-Defendants robbed the Loaf ‘N Jug convenience store and stole two
12-packs of beer, cash, and cigarettes. 1 Store clerk Darren Good followed the co-
1. One Feather acted as the lookout, while A.B. and S.B.B. carried out the
robbery. S.B.B. had possession of the BB gun. S.B.B. brandished the weapon
(continued . . .)
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Defendants out of the store. The co-Defendants beat, kicked, and broke a bottle of
beer on Good’s face, breaking Good’s nose, causing massive bruising and lacerations
to Good’s face, causing Good’s right eye to swell shut, and causing Good memory
loss.
[¶3.] On June 28, 2007, A.B. was indicted for one count of first degree
robbery, or, in the alternative, second degree robbery, one count of conspiracy to
commit first degree robbery, and one count of simple assault. A.B. requested a
transfer to juvenile court. A transfer hearing was held on October 2, 2007. In
addition to evidence relating to the June 9 incident, evidence and testimony were
presented regarding A.B.’s family, school, and social history.
[¶4.] At the time of this incident, A.B., an American Indian male, was 17
years old. He admitted to being a member of the North Side Gangster Cripps gang
since age 14. 2 He also admitted to first using alcohol and marijuana when he was
14, and up to the date of the incident, had continued his use on nearly a daily basis.
Until this incident, A.B. had no prior felony history. At age 16, however, A.B. was
arrested for a disturbance at school, and subsequently violated his probation twice
when he was reported as a runaway. A.B. also disclosed he was arrested on two
________________________
(. . . continued)
when he and A.B. walked up to the counter and demanded cash and
cigarettes. Store clerk John Prondzinski testified that he believed the gun
was real.
2. Several witnesses testified that A.B. was wearing a blue and white jersey on
the evening of the incident. The trial court intimated that blue and white are
recognized gang colors.
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separate occasions for minor in possession of alcohol, but both charges were
dismissed.
[¶5.] A.B. dropped out of school in the tenth grade. He was involved with
Job Corps for a limited period of time. The record indicates that at the time of the
proceedings, A.B. was working toward his General Education Development
certificate. From 2005 until the date of the incident, A.B. had been employed at
Denny’s, Grand Gateway Hotel, Golden Corral, and Ramada.
[¶6.] Beginning at age 14, A.B. was faced with some difficult life events: his
mother and step-father (the only father he had known) divorced; his grandparents
divorced; and his aunt and uncle divorced. During this same time period, his
favorite uncle died of a heart attack and one of his cousins died in a car accident.
[¶7.] William Moss, Psy.D., conducted a psychological assessment of A.B.
Dr. Moss determined that A.B. has an alcohol and drug dependence and a
depressive disorder, is easily influenced by others, has no significant intellectual
disabilities, and is functional within the norms for his age group. Dr. Moss testified
that much of A.B.’s present status is attributable to A.B.’s loss of a cousin and
uncle. Dr. Moss recommended that A.B. obtain chemical dependency treatment,
psychological treatment for depression, and that he be supervised. Ultimately, Dr.
Moss testified that it would be in the public’s and A.B.’s best interest for A.B. to be
tried in juvenile court.
[¶8.] On cross-examination, Dr. Moss admitted that, in conducting his
assessment, he only met with A.B. on one occasion and with A.B.’s mother for an
hour and fifteen minutes. Furthermore, at the time of his assessment, Dr. Moss did
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not have A.B.’s juvenile history records and did not know that A.B.’s mother had
reported A.B. as a runaway on more than one occasion. Dr. Moss further admitted
that if adjudicated as an adult, A.B. would have access to the same court services
(i.e., substance abuse treatment, psychological therapy, etc.) as he would if
transferred to the juvenile system. Importantly, Dr. Moss recognized that if A.B.
was adjudicated as a juvenile, the juvenile system would only supervise him until
age 21, which in A.B.’s case would be three years at most.
[¶9.] Circuit Court Judge John J. Delaney denied A.B.’s transfer request
because he did not believe it was in A.B.’s best interest, in particular, to be
transferred to the juvenile system. Thereafter, A.B. changed his not-guilty plea to
guilty. The sentencing hearing was held on December 3, 2007. A.B. requested a
suspended imposition of sentence. His request was denied. He was sentenced to 10
years in the penitentiary, with 6 years suspended. Furthermore, he was ordered to
pay $58.03 for transcript costs. During sentencing, Judge Delaney acknowledged,
“And I don’t have any restitution claims. If somebody is going to submit a
restitution claim, they will have to do it. But right now there isn’t any, and as far
as I am concerned, it’s closed. The sentence is done.” The written judgment setting
forth the $58.03 3 fine was filed on December 5, 2007.
[¶10.] A.B. filed a notice of appeal to this Court on December 31, 2007. On
January 8, 2008, an amended judgment with an effective date of December 3, 2007,
3. The written judgment actually stated the cost as $53.08. The defense agrees
that the transposition of numbers was a typographical error, correctable per
SDCL 23A-31-2.
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was signed and filed without a hearing or notice of a hearing. The amended
judgment added the victim’s restitution claim of $1,263.67 for medical expenses. On
appeal, A.B. raises three issues. We restate them as follows:
1. Whether the circuit court erred in refusing to transfer A.B. to
juvenile court.
2. Whether the circuit court abused its discretion in not granting
A.B.’s request for a suspended imposition of sentence.
3. Whether the circuit court erred by amending the judgment after
notice of appeal was filed to include restitution not imposed by
the oral sentence.
STANDARD OF REVIEW
[¶11.] Our standard of review for issues 1 and 2 is well established:
“An abuse of discretion occurs when ‘discretion [is] exercised to
an end or purpose not justified by, and clearly against, reason
and evidence.’” In re L.M.G., 2007 SD 83, ¶6, 738 NW2d 71, 73-
74 quoting Miller v. Jacobsen, 2006 SD 33, ¶18, 714 NW2d 69,
76. The test for an abuse of discretion is not whether we would
reach the same result, but rather, “whether we believe a judicial
mind, in view of the law and the circumstances, could
reasonably have reached that conclusion.” State v. Crawford,
2007 SD 20, ¶13, 729 NW2d 346, 349 quoting Huber v. Dep’t of
Pub. Safety, 2006 SD 96, ¶22, 724 NW2d 175, 180.
State ex rel. White v. Brandt, 2008 SD 33, ¶11, 748 NW2d 766, 770. In addition,
findings of fact are reviewed under the clearly erroneous standard. Osman v.
Karlen and Assocs., 2008 SD 16, ¶15, 746 NW2d 437, 442 (quoting Fin-Ag, Inc. v.
Feldman Bros., 2007 SD 105, ¶19, 740 NW2d 857, 862). “[W]e will only reverse
when we ‘are left with a definite and firm conviction that a mistake has been
made[.]’” Id. The third issue presents a question of law, which is reviewed de novo.
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[¶12.] 1. Whether the circuit court erred in refusing to transfer
A.B. to juvenile court.
[¶13.] A.B. contends the circuit court erred in denying the transfer to juvenile
court. A.B. was 17 at the time of the incident, and he was charged with, among
other lesser charges, first degree robbery, a Class 2 felony. South Dakota law
requires that a child of at least 16 years of age who commits a Class 2 felony be
tried in circuit court as an adult. SDCL 26-11-3.1. Under the mandates of this
statute, “the possibility of a juvenile being tried in adult court is presumed.” People
ex rel. J.M.J., 2007 SD 1, ¶18, 726 NW2d 621, 629. However, “[t]he law allows the
child to request a transfer hearing ‘to determine if it is in the best interest of the
public that the child be tried in circuit court as an adult.’” State v. Krebs, 2006 SD
43, ¶6, 714 NW2d 91, 94 (quoting SDCL 26-11-3.1).
[¶14.] SDCL 26-11-4 sets forth seven factors that the court may consider in
coming to its conclusion:
(1) The seriousness of the alleged felony offense to the
community and whether protection of the community
requires waiver;
(2) Whether the alleged felony offense was committed in an
aggressive, violent, premeditated or willful manner;
(3) Whether the alleged felony offense was against persons or
property with greater weight being given to offenses against
persons;
(4) The prosecutive merit of the complaint. The state is not
required to establish probable cause to show prosecutive
merit;
(5) The desirability of trial and disposition of the entire felony
offense in one proceeding if the child’s associates in the
alleged felony offense are adults;
(6) The record and previous history of the juvenile;
(7) The prospect for adequate protection of the public and the
likelihood of reasonable rehabilitation of the juvenile, if the
juvenile is found to have committed the alleged felony
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offense, by the use of procedures, services, and facilities
currently available to the juvenile court.
SDCL 26-11-4. The decision to transfer A.B. to juvenile court is within the circuit
court’s discretion. See id. However, the decision cannot be arbitrary. The record
must contain “substantial evidence” supporting the court’s decision. State v. Milk,
519 NW2d 313, 318 (SD 1994) (citations omitted). “If the court determines that the
child should be tried as an adult in circuit court, the court is required to enter an
order and findings of fact.” Krebs, 2006 SD 43, ¶7, 714 NW2d at 95 (citing SDCL
26-11-4). The court’s findings of fact upon which the denial to transfer to juvenile
court was based shall “not be set aside upon review unless clearly erroneous, and
due regard shall be given to the opportunity of the trial court to judge the credibility
of the witnesses.” SDCL 26-11-4.
[¶15.] As identified in Krebs, we must first review the circuit court’s findings
of fact. 2006 SD 43, ¶8, 714 NW2d at 95. In its findings, the circuit court
considered each of the statutory factors applicable to this case. The court found
that the alleged offense was (1) “a serious threat to the community and to those who
commit the crime[;]” (2) premeditated, involved a gun, involved the victim being
“badly beaten,” and “appear[ed] to be gang-related[;]” (3) “a robbery from people
with the use of a fake but realistic appearing handgun” and in addition to the
“subsequent physical assault[,]” it was “a violent crime, with a realistic threat of
death, against people[;]” and (4) had prosecutive merit because “it appear[ed] to be a
slam dunk[.]” All of these factors weighed against the case being transferred to
juvenile court. Factor (5) did not impact the transfer analysis. The court
determined that factor (6) slightly weighed against the transfer; even though A.B.’s
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prior record was not particularly serious, A.B. did have two prior confrontations
with the juvenile system.
[¶16.] As to factor (7), the circuit court specifically found: (1) A.B. “is a
member of . . . a gang[,]” is “unwilling to testify against his codefendants[,]” and is
likely to “return to the environment from which this matter developed[;]” (2) A.B.
“has a multi-year history of daily drugs and frequent excessive use of alcohol[,]” “is
both alcoholic and drug addicted[,]” and his “long[-]term recovery beginning with
this event is, at best, highly unlikely[;]” (3) “[a]bsent a quantum shift in lifestyle,
goals, education, friends, acquaintances and habits, the community at large is at
risk from [A.B.;]” and (4) if transferred to juvenile court, supervision over A.B.
“would likely be very short,” but if kept in the circuit court, “supervision and control
can continue for as many years as may be necessary[.]” In addition to the factors,
the circuit court found that in light of A.B.’s age, “better, longer and closer
supervision of [A.B.] can be established in adult court when compared to the
juvenile court.” Therefore, the court determined that it was in the best interests of
both A.B. and the public that A.B. be tried as an adult.
[¶17.] A.B. claims that the circuit court clearly erred “in [its] application of
these factors to this case” in light of the “case law establishing and considering
these factors[.]” First, A.B. contends that the majority of the cases analyzing this
issue involved juveniles with “significant juvenile histor[ies], more serious crimes,
and long term needs for rehabilitation of the juvenile or to protect the public from a
real perceived threat of further violence.” In support of this contention, he cites
State v. Harris, 494 NW2d 619 (SD 1993); In Interest of A.D.R., 499 NW2d 906 (SD
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1993); State v. Jones, 521 NW2d 662 (SD 1994); State v. Jensen, 1998 SD 52, 579
NW2d 613; In Interest of Y.C., 1998 SD 76, 581 NW2d 483; In re S.K., 1999 SD 7,
587 NW2d 740; and Krebs, 2006 SD 43, 714 NW2d 91.
[¶18.] Upon review of these cases, we recognize that several of the juveniles
involved therein did in fact have lengthy juvenile histories. However, in one case
the defendant had no criminal record, and was still tried as an adult. See Krebs,
2006 SD 43, ¶¶8, 14, 714 NW2d at 95, 97. Even though A.B.’s prior infractions were
minor, he did have a juvenile history and had admitted to other indiscretions not
noted in his record. Furthermore, although some of the crimes involved in the cited
cases were more serious than first degree robbery, some of these cases in which the
juvenile was, or this Court found should have been, tried as an adult involved first
degree robbery and lesser crimes. See S.K., 1999 SD 7, 587 NW2d 740 (first degree
robbery, escape, simple assault); Y.C., 1998 SD 76, 581 NW2d 483 (first degree
robbery; commission of felony while armed with firearm). See also Milk, 519 NW2d
at 313 (assault); State v. Flying Horse, 455 NW2d 605 (SD 1990) (first degree
burglary, third degree burglary, grand theft of an automobile). Lastly, regarding
the need for long-term rehabilitation, Judge Delaney specifically found, in addition
to other conditions, that A.B. was “both alcoholic and drug addicted.” One of the
reasons for denying the transfer was because significant progress would not likely
be made in treating A.B.’s conditions due to the limited time he would be in the
juvenile system.
[¶19.] Second, A.B. contends that the court’s findings are clearly erroneous
because the court made findings contrary to Dr. Moss’s expert testimony, which in
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certain respects was not countered by the State’s evidence. “[T]he mere fact that an
expert testifies does not mean that his or her opinion must be accepted by the trial
court.” Jensen, 1998 SD 52, ¶54, 579 NW2d at 622. In Jensen, we further explained
that “[a] trial court, when also sitting as the fact finder, is the sole judge of the
credibility of the witnesses and can accept or reject all or part of the expert’s
testimony.” Id. (citations omitted). A.B. has not proven that the court erred in
adopting or rejecting Dr. Moss’s testimony as it deemed fit based on the witness’s
credibility.
[¶20.] Lastly, A.B. claims the court clearly erred because certain findings
lacked evidentiary basis. Specifically, A.B. argues there was no evidentiary basis
underlying the following findings: (1) that the crime was gang-related and that
there was no indication that A.B.’s gang connection had been broken; (2) that A.B.
“contemplated the [robbery];” and (3) that the safety of the community could not be
protected with A.B. being transferred to the juvenile system. First, A.B. admitted
to being a member of the North Side Gangster Cripps gang, he was wearing blue
and white on the night of the robbery, and he refused to testify against his co-
Defendants. Furthermore, the record indicates that witnesses from the party heard
the co-Defendants say they were going to use the gun to rob the liquor store. This
factor indicates contemplation and premeditation of the robbery. Lastly, the third
point is a conclusion made within the circuit court’s discretion upon hearing all the
evidence. We hold there was sufficient evidence before the court allowing it to
establish all these findings.
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[¶21.] We cannot say that the circuit court’s findings were clearly erroneous
or that its decision to not transfer A.B. to juvenile court was an abuse of discretion.
The circuit court is affirmed on this issue.
[¶22.] 2. Whether the circuit court abused its discretion in not
granting A.B.’s request for a suspended imposition of
sentence.
[¶23.] A.B. contends that the circuit court erred in its sentence because it did
not indicate whether it considered A.B.’s request for a suspended imposition of
sentence. A.B. claims that failure to indicate consideration of the request prevents
determination of “whether or not the ends of justice, and the best interest of the
public and A.B. would be served thereby.” We disagree.
[¶24.] Article 5, Section 5 of the South Dakota Constitution provides, in part:
“Imposition or execution of a sentence may be suspended by the court empowered to
impose the sentence unless otherwise provided by law.” The legislature’s
restrictions on imposing a suspended sentence lie in SDCL 23A-27-13. SDCL 23A-
27-13 states in pertinent part,
Upon receiving a verdict or plea of guilty for a misdemeanor or
felony not punishable by death or life imprisonment by a person
never before convicted of a crime which at the time of conviction
thereof would constitute a felony in this state, a court having
jurisdiction of the defendant, when satisfied that the ends of
justice and the best interest of the public as well as the
defendant will be served thereby may . . . suspend the
imposition of sentence . . . .
A.B.’s situation does not meet any of the statutory limitations; therefore, the court,
if it so desired, could have suspended the imposition of A.B.’s sentence. However,
the statute does not require the sentencing judge to set forth the reasons for
granting or denying the suspended imposition of sentence.
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[¶25.] The statutory language “may” places the decision to suspend the
sentence within the circuit court’s discretion. This has been addressed in our case
law:
The granting of suspended imposition of sentence . . . is strictly a
matter of grace and rests solely within the discretion of the
court. It is not a matter of right or entitlement and the exercise
of that discretion includes the imposition of conditions.
State v. Divan, 2006 SD 105, ¶16, 724 NW2d 865, 872 (quoting White Eagle v.
State, 280 NW2d 659, 660 (SD 1979)). In this case, A.B. admitted to using drugs
and alcohol on an almost daily basis since age 14. This case involved a dangerous
crime involving not only a gun, but a serious assault to another human being.
Further, A.B.’s family was not emotionally available to A.B. and did not help him
obtain the treatment and counseling he needed. Lastly, when compared to the
juvenile system, the adult system would have longer supervision over A.B. to ensure
he received the necessary treatment and counseling. In light of all of these reasons,
it is plausible that Judge Delaney was not “satisfied that the ends of justice and the
best interest of the public as well as the defendant [would] be served” by suspending
imposition of sentence. See SDCL 23A-27-13. The statutory maximum for first
degree robbery is 25 years in prison and $50,000 fine. A.B. was sentenced to 10
years in the penitentiary, with 6 years suspended. To deny suspension of
imposition of sentence was within Judge Delaney’s discretion. The circuit court is
affirmed as to this issue.
[¶26.] 3. Whether the circuit court erred by amending the
judgment after notice of appeal was filed to include
restitution not imposed by the oral sentence.
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[¶27.] At sentencing, A.B. was ordered to pay the standard fees and costs,
including one-third of the transcript costs, or $58.03. Judge Delaney then asked the
State for the amount of restitution claims, to which the State responded it did not
have a number. The court then stated, “And I don’t have any restitution claims. If
somebody is going to submit a restitution claim, they will have to do it. But right
now there isn’t any, and as far as I am concerned, it’s closed. The sentence is done.”
The written judgment containing the $58.03 was filed on December 5, 2007, with
December 3, 2007 being the effective date. A.B. filed a notice of appeal to this Court
on December 31, 2007. On January 8, 2008, an amended judgment with an effective
date of December 3, 2007, was signed by Judge Delaney and filed without a hearing
or notice of a hearing. The amended judgment added the victim’s restitution claim
of $1,263.67 for medical expenses.
[¶28.] The general rule is that “the written sentence must conform to the
court’s oral pronouncement.” State v. Thayer, 2006 SD 40, ¶8, 713 NW2d 608, 612
(citing State v. Ford, 328 NW2d 263, 267 (SD 1982); State v. Cady, 422 NW2d 828,
830 (SD 1988); State v. Munk, 453 NW2d 124, 125 (SD 1990); State v. Bucholz, 403
NW2d 400, 402-03 (SD 1987); State v. Hughes, 62 SD 579, 584, 255 NW 800, 802
(1934)). It is unnecessary for us to apply that general rule here, however, because
the circuit court did not have jurisdiction to amend the sentence. The victim’s
restitution was added on January 8, 2008, more than a week after A.B. filed his
notice of appeal. In Tosh v. Schwab, we stated:
An appeal from a judgment strips the trial court of power over
the subject matter of the judgment, and this Court has
jurisdiction until the appeal is decided. Reaser v. Reaser, 2004
SD 116, ¶28, 688 NW2d 429, 437; In re Estate of Hoffman, 2002
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SD 129, ¶17, 653 NW2d 94, 100; Ryken v. Ryken, 440 NW2d
307, 308 (SD 1989); Matter of D.H., 354 NW2d 185 (SD 1984).
Consequently, once a notice of appeal has been filed, a “trial
court is restrained from entering any order that would change or
modify the judgment on appeal or have the effect of interfering
with review of the judgment.” Reaser, 2004 SD 116, ¶28, 688
NW2d at 437-38 (citing Hoffman, 2002 SD 129, ¶17, 653 NW2d
at 100 n7).
2007 SD 132, ¶33, 743 NW2d 422, 431-42. See also Zephier v. Catholic Diocese of
Sioux Falls, 2008 SD 56, ¶22, 752 NW2d 658, 667. In this case, the circuit court
lacked jurisdiction to amend the sentence by adding the victim’s restitution claim.
The amended judgment is vacated.
[¶29.] This decision does not preclude the victim from a remedy. A civil suit
in accordance with South Dakota law is still available for Good to recoup his
medical expenses and to bring any other claims he may have against the co-
Defendants.
[¶30.] Affirmed in part and vacated in part.
[¶31.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
MEIERHENRY, Justices, concur.
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