State v. Holsing

#24334, 24367-a-MACY, Circuit Judge
2007 SD 72

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellant,

v.

JEFFREY J. HOLSING, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA

* * * *

HONORABLE RODNEY J. STEELE
Judge

* * * *

WILLIAM J. JANKLOW
Brandon, South Dakota

CLYDE R. CALHOON
Brookings County State's Attorney

WM. MARK KRATCHOVIL
Brookings County Deputy State's Attorney Attorneys for plaintiff
Brookings, South Dakota and appellant.

MELISSA E. NEVILLE and
RICHARD A. SOMMERS of
Bantz, Gosch & Cremer Attorneys for defendant
Aberdeen, South Dakota and appellee.

* * * *

ARGUED
APRIL 25, 2007

OPINION FILED 7/18/07
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MACY, Circuit Judge

[¶1.] The trial court concluded it did not have jurisdiction to order Jeffrey J.

Holsing (Holsing) to pay additional restitution. Accordingly, it dismissed the State's

motion for an order to show cause why Holsing should not be held in contempt for

failure to pay restitution. We affirm.

FACTS AND PROCEDURE

[¶2.] On May 26, 1998, Holsing pleaded nolo contendere to three counts of

sexual contact with a minor. One of the three victims was R.S. On August 12,

1998, the trial court sentenced Holsing to three concurrent 7-1/2 year terms in the

South Dakota State Penitentiary. The trial court suspended three years of each

sentence on certain conditions, one of which was Holsing make restitution to the

victims for the costs of counseling. The trial court further ordered that restitution

be paid according to a schedule to be determined by the Board of Pardons and

Paroles (Board), should Holsing make parole.

[¶3.] On December 13, 2002, the Board held a restitution hearing. The

victims were given notice of the hearing. The amount of restitution for R.S. was set

at $5,709.25. R.S. did not object to the Board's plan of restitution. Holsing paid

restitution of $5,709.25 to R.S. while on parole. A certificate of discharge from

parole was issued on July 25, 2004. On August 12, 2004, Holsing's citizenship

rights were restored.

[¶4.] On July 8, 2005, the State filed an application for order to show cause

against Holsing seeking to have the trial court order Holsing to pay an additional

$190,768.83 in restitution to R.S. The trial court dismissed the State's application
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concluding that it no longer had jurisdiction to order Holsing to pay additional

restitution.

ISSUE

[¶5.] Whether the trial court had jurisdiction to order Holsing to
pay additional restitution.

STANDARD OF REVIEW

[¶6.] Questions of jurisdiction are reviewed by this Court de novo. State v.

Neitge, 2000 SD 37, ¶10, 607 NW2d 258, 260.

DECISION

[¶7.] At the time Holsing was sentenced he was advised that restitution

would be a part of his sentence. SDCL 22-6-1 and 22-6-2 authorize trial courts, as

part of the sentence, to order a felony or misdemeanor defendant to pay restitution

to a victim. In imposing sentence the courts shall enter an order of restitution in

accordance with SDCL 23A-27-1 and SDCL ch 23A-28. Defendants have due

process rights concerning restitution. See State v. Tuttle, 460 NW2d 157 (SD 1990).

Imposition of restitution requires similar procedural protections as those employed

in criminal sentencing. Id. at 158 ; see also State v. Ruttman, 1999 SD 112, ¶3, 598

NW2d 910, 911.

[¶8.] The trial court advised Holsing that restitution would be a part of his

sentence. As part of the sentence it ordered Holsing to pay restitution to the victims

for the costs of counseling. It sentenced Holsing to the penitentiary and ordered the

Board to determine the schedule of payment of restitution. The trial court's order

complied with SDCL 23A-28-3, which in 1998 1 provided in relevant part:

1. In 1999 the legislature revised SDCL 23A-28-3. 1999 SDSessL ch 124 § 1.
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If the sentencing court orders the defendant to the state
penitentiary and does not suspend the sentence, the
Board of Pardons and Paroles shall require as a condition
of parole that the defendant, in cooperation with the
executive director of the Board of Pardons and Paroles,
prepare the plan of restitution as described in this section.

[¶9.] Pursuant to SDCL 23A-28-6 the Board gave notice to the victims of the

restitution hearing, and following the hearing, set forth the amount of restitution

owed to R.S. and determined the schedule of payments. "If the victim is not

satisfied with . . . the plan of restitution, the victim's exclusive remedy is a civil

action against the defendant, which if successful, may include attorney's fees."

SDCL 23A-28-6.

[¶10.] The State does not allege the Board violated SDCL 23A-28-3 when it

set Holsing's schedule of payment for restitution. Rather, the State claims that

when the trial court sentenced Holsing, it intended Holsing to pay past and future

costs of counseling for the victims. 2 The State argues the trial court has continuing

jurisdiction to establish additional restitution. Holsing argues, however, that he

complied with the restitution order while on parole and under the jurisdiction of the

executive branch of government. As a result, Holsing contends the trial court does

not have jurisdiction to order him to pay additional restitution.

[¶11.] This Court must review Holsing's sentence to determine if Holsing

complied with the trial court's order of restitution. Holsing was sentenced on

August 12, 1998. At the sentencing the trial judge orally ordered:

2. The trial court said in its memorandum decision dismissing this action for
lack of jurisdiction that it did intend for Holsing to pay past and future
counseling costs of the victims. However, the trial court's memorandum
decision is dated October 18, 2006, eight years after Holsing was sentenced.
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You will pay for the costs of counseling for the victims.
And at least one of these victims has had to have
counseling, the fact you utterly disregard.

[¶12.] The State contends the oral sentence includes past and future

counseling costs. Holsing contends, and this Court agrees, the oral sentence is open

to more than one interpretation. An oral sentence is ambiguous if "the extent of the

sentence cannot be ascertained from the language used." State v. Thayer, 2006 SD

40, ¶10, 713 NW2d 608 (quoting United States v. Villano, 816 F2d 1448, 1453 (10th

Cir 1987)). The trial court's oral sentence that "[y]ou will pay the costs of

counseling for victims" does not adequately set forth the extent of the restitution.

As a result, we find that the trial court's oral sentence is ambiguous. "[I]f the [trial

court's] oral sentence is ambiguous, the written judgment may be relied on to clarify

the ambiguity." State v. Munk, 453 NW2d 124, 125 (SD 1990). Further, the

"written sentence must conform to the court's oral pronouncement." State v. Ford,

328 NW2d 263, 267 (SD 1982).

[¶13.] The trial court's written sentence was entered on the same day as the

court's oral sentence. The written sentence provides:

5. That said Defendant shall make restitution in full
to the victims for the costs of any counseling that
said victims may have incurred as a result of said
offenses. (emphasis added.)

The phrase "may have incurred" implies past tense. The suffix "ed" added to incur

is used to form the past tense of regular weak verbs. Webster's Ninth New

Collegiate Dictionary, 296 (1986 ed). When using the plain ordinary meaning of the

words of the written sentence, which we are required to do, we conclude that

counseling costs were limited to those incurred and not future costs. See SDCL 2-

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14-1. The written sentence clarifies the oral sentence. Any other interpretation

would require us to insert words into the oral and written sentence that the

defendant was not advised of at the time of sentencing.

[¶14.] Further, when ordering restitution, the court "shall set forth in the

judgment the names and specific amounts of restitution owed to each victim."

SDCL 23A-28-3; see also Thayer, 2006 SD 40, at ¶16. By interpreting the trial

court's restitution order as requiring Holsing to pay counseling costs incurred, the

trial court's sentence complied with SDCL 23A-28-3. The victim's initials are set

forth in the sentence and the amount of restitution was ascertainable.

[¶15.] As part of the written sentence the trial court ordered the Board set up

a schedule for payment of costs and restitution. When Holsing became eligible for

parole, the Board gave notice to the victims of the restitution hearing. Following

the hearing, the plan of restitution set forth the amount owed to R.S. and

established the schedule of payment. Holsing paid the costs and restitution

ordered by the trial court pursuant to the schedule established by the Board. The

trial court's order and the Board's setting the restitution payments were all in

compliance with the law. SDCL 23A-28-3; 23A-28-5; 23A-28-6. The State never

objected to nor asked for clarification of the trial court's oral or written sentence.

The State did not object to the amount or schedule of payments of restitution set by

the Board. Our statutes on restitution would be rendered meaningless if the State

could seek additional restitution after a defendant has complied with the terms and

conditions of his sentence.

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[¶16.] The State relies on State v. Gullickson, 2003 SD 32, 659 NW2d 388 for

the proposition that circuit courts have inherent jurisdiction to enforce restitution

orders. The State seeks to overextend the holding in Gullickson. In Gullickson, we

held that a trial court has broad latitude in fashioning a method of dealing with the

issue of unpaid restitution and has jurisdiction over an ex-prisoner to compel him to

pay court-ordered restitution where the ex-prisoner is no longer under the

supervision of the Board. Id. In Gullickson, the defendant agreed, pursuant to a

plea agreement, to make full restitution in the amount of $101,930.38 to his victims.

Approximately seven months after release from prison, the defendant stopped

making payments. This Court held that the trial court had jurisdiction over the

defendant to compel him to pay the court-ordered restitution. The holding in

Gullickson applies where a defendant fails to pay court-ordered restitution after he

is released from parole or probation. Unlike Gullickson, however, Holsing complied

with his sentence and paid the amount ordered while he was under the jurisdiction

of the Board.

[¶17.] This Court is sympathetic to the victims' injuries and by this holding

we do not excuse Holsing's criminal behavior. South Dakota law and due process,

however, require that as part of the sentence, defendants be advised of the names of

victims and specific amounts of restitution owing. SDCL 23A-28-3. The State

argues Holsing's due process rights are protected because the State is requesting a

hearing to set further restitution. However, due process rights attach at the time of

sentencing, when restitution is set, not seven years after sentencing. In setting

restitution, "[d]ue process safeguards, however, include the need for finality."

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Commonwealth v. Wozniakowski, 860 A2d 539, 545 (PA 2004). The trial court's

sentence must comply with due process protection "by informing the defendant of

the restitution he faced at the time of sentencing." State v. Wolff, 438 NW2d 199,

202 (SD 1989). Allowing the State to bring Holsing back into court for the purpose

of increasing restitution seven years after he was sentenced would unlawfully

increase his punishment and violate due process protections. Id., see also Thayer,

2006 SD 40.

[¶18.] The trial court's jurisdiction over Holsing ended when he complied

with the schedule of payments of restitution and he was discharged from parole.

This is consistent with the principle of separation of powers enunciated in State v.

Oban, 372 NW2d 125, 129 (SD 1985); see also State v. Hurst, 507 NW2d 918, 923

(SD 1993)("[o]nce an offender is within the jurisdiction of the executive branch of

government, the judicial branch – the circuit court – loses jurisdiction and control").

Our holding gives full effect to the trial court's sentence and order of restitution.

The trial court does not have jurisdiction to increase the amount of Holsing's

restitution.

[¶19.] Affirmed.

[¶20.] SABERS, Justice, concurs.

[¶21.] KONENKAMP and MEIERHENRY, Justices, concur specially.

[¶22.] GILBERTSON, Chief Justice, dissents.

[¶23.] MACY, Circuit Judge, for ZINTER, Justice, disqualified.

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MEIERHENRY, Justice (concurring specially).

[¶24.] I concur because I agree that the trial court no longer had jurisdiction

to set a restitution amount. This case points out the need for the State to request

specific amounts of restitution in the sentencing phase and for the trial courts to

include exact amounts as part of the sentence. We need look no further than the

judge’s pronouncement at sentencing. There, the judge merely ordered the

defendant to “pay for the costs of counseling for the victims.” It is apparent from

the judge’s further comments that he had not been presented with evidence of how

many victims would actually need counseling or the projected cost of the counseling.

[¶25.] The judge left the cost of counseling and how it was to be paid for the

Board of Pardons and Paroles to determine. Perhaps, it was set too low; but as the

majority opinion points out, those affected had notice and could have appeared at

the Board’s hearing to request a more appropriate amount. See supra ¶9.

[¶26.] The law contemplates that full restitution may not be ordered in all

cases. The law defines restitution as “full or partial payment of pecuniary damages

to a victim.” SDCL 23A-28-2(4) (emphasis added). The defendant’s situation is

also part of the equation, and the law required the court or Board to take into

consideration the following factors:

the physical and mental health and condition of the defendant,
the defendant’s age, the defendant’s education, the defendant’s
employment circumstances, the defendant’s potential for
employment and vocational training, the defendant's family
circumstances, the defendant’s financial condition, the number
of victims, the pecuniary damages of each victim, what plan of
restitution will most effectively aid the rehabilitation of the
defendant, and each victim, and such other factors as may be
appropriate.

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SDCL 23A-28-5.

[¶27.] There were several opportunities here for the State on behalf of the

victims or the victims, themselves, to seek a higher amount of restitution.

Additionally, SDCL 23A-28-6 provides that “[i]f the victim is not satisfied with the

approved or modified plan of restitution, the victim’s exclusive remedy is a civil

action against the defendant, which, if successful, may include attorney’s fees.”

(Emphasis added). For the State to wait until after the defendant had served his

time, paid the set restitution and been restored his citizenship rights is too late and

contrary to the law.

[¶28.] KONENKAMP, Justice, joins this special writing.

GILBERTSON, Chief Justice (dissenting).

[¶29.] SDCL 23A-28-12 provides:

Anyone convicted under . . . [SDCL] 22-22-7 . . . shall be
required as part of the sentence imposed by the court to
pay all or part of the cost of any necessary medical,
phychological, or psychiatric treatment, or foster care
of the minor resulting from the act or acts for which the
defendant is convicted.

Id. (emphasis added). 3 The trial court in its sentence complied with 23A-28-12 in

imposing its sentence from the bench upon Holsing when it unequivocally and

without qualification declared: “You will pay for the costs of counseling for the

3. See also SDCL 23A-28-1 which provides in pertinent part, “It is the policy of
this state that restitution shall be made by each violator of the criminal laws
to the victims of the violator’s criminal activities to the extent that the
violator is reasonably able to do so.”

To date Holsing has paid $5,709.25 in restitution. There remains
outstanding $190,768.83 in counseling bills incurred by R.S.
Interestingly, Holsing in his brief does not challenge the fact the bills
were incurred by R.S. or the reasonableness of the charges.
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victims. And at least one of these victims has had to have counseling, the fact you

utterly disregard.” (emphasis added).

[¶30.] I disagree with the Court’s analysis of the jurisdictional issue in this

case. The Court’s fundamental error is its determination that the sentencing court’s

oral pronouncement was ambiguous with respect to restitution.

[¶31.] The Court also errs when it references State v. Ford, 328 NW2d 263

(SD 1982), to place emphasis on a sentencing court’s written judgment over its oral

sentence. Actually, in Ford, we declared the opposite.

[¶32.] In Ford, the trial court orally imposed a three-year prison sentence

upon the defendant. 328 NW2d at 264. Subsequently, and without legal authority

after the defendant had begun serving his sentence, the trial court had the

defendant delivered back to the court and increased his sentence to ten years

imprisonment. 4 Id. at 267. Thereafter the trial court signed and entered its

written judgment, reflective of the second oral pronouncement. Defending the trial

court’s written sentence on appeal, the State argued that the ten-year sentence

4. In making the determination that the trial court was without legal authority
to increase the defendant’s sentence in this manner, we relied on SDCL 23A-
31-1, the only provision in our criminal code that authorized a court to modify
a sentence after its initial pronouncement. Ford, 328 NW2d at 267. While
making provision for a reduction of an illegally imposed sentence, we
observed that SDCL 23A-31-1 included no provision for increasing a
sentence. Id. We also cited State v. Jackson, 272 NW2d 102 (SD 1978); Ex
parte Watt, 73 SD 436, 44 NW2d 119 (1950); and, State v. Hughes, 62 SD 579,
584, 255 NW 800, 802 (1934) for the proposition that “a valid prison sentence
cannot be increased in severity after the defendant has commenced serving it.
Id.
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should stand because the first oral sentence was not signed as required by statute.5

However, in reversing the trial court on its imposition of the ten-year sentence, we

recognized that our rules of criminal procedure were patterned after the Federal

Rules of Criminal Procedure and we adopted the position taken by federal courts,

holding that “the oral sentence is the only sentence.” Id. at 267-268. Thereafter we

subordinated the written sentence to the oral sentence by further holding that the

written sentence must conform to the oral and that the original oral sentence must

stand despite the trial court’s failure to make the written pronouncement comport

with the oral. Id. at 268.

[¶33.] Relating this holding to the instant case, the sentencing court’s

unambiguous oral pronouncement, that Holsing pay the costs of counseling, controls

over any perceived inconsistency with the written sentence. An unambiguous oral

sentence cannot be converted to an ambiguous one by reference to the subsequent

written sentence of the court. The oral sentence stands alone; either it is

ambiguous or it is not. Since the sentencing court suspended a portion of Holsing’s

sentence on the condition that he pay these costs without qualification as to when

they were incurred, the Board of Pardons and Paroles (the “Board”), retained

jurisdiction over this matter, as we observed in State v. Gullickson, 2003 SD 32, 659

NW2d 388. In Gullickson, we noted that SDCL 23A-27-19, which applies when a

5. In Ford, we noted that SDCL 23A-27-4 provided, in pertinent part:

[J]udgment of conviction shall set forth the plea, the
verdict or findings, and the adjudication and sentence. . . .
A judgment shall be signed by the judge and entered by the
clerk.

328 NW2d at 267 (quoting SDCL 23A-27-4) (emphasis added).
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sentence is conditionally suspended under SDCL 23A-27-18, 6 provides in pertinent

part:

Any person whose sentence is suspended pursuant to
this section is under the supervision of the [B]oard of [P]ardons
and [P]aroles, . . . The board is charged with the responsibility
for enforcing the conditions imposed by the sentencing judge
and the board retains jurisdiction to revoke the suspended
portion of the sentence for violation of the terms of the
suspension.

Id. at ¶17, n3, 659 NW2d at 392, n3 (quoting SDCL 23A-27-19) (emphasis added).

[¶34.] Based on the foregoing analysis I would reverse the trial court’s

dismissal of the State’s application for an order requiring Holsing to pay additional

restitution to R.S. and remand with instructions for the trial court to transfer the

State’s application to the Board for further consideration.

6. SDCL 23A-27-18, provides in pertinent part:

Upon conviction, the court having jurisdiction to try the
offense may suspend the execution of any sentence
imposed during good behavior, subject to such conditions
or restitution as the court may impose.
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