State v. Thayer

#23720-rev & rem-JKK

2006 SD 40

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

STEVEN E. THAYER, d/b/a VILLA
CLEANERS, VILLA RANCHAERO
CENTER, BOX ELDER, SOUTH
DAKOTA, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JEFF W. DAVIS
Judge

* * * *
LAWRENCE E. LONG
Attorney General

ANN C. MEYER
Assistant Attorney General Attorneys for plaintiff
Pierre, South Dakota and appellee.

JEREMIAH J. DAVIS
Pennington County Public
Defender’s Office Attorneys for defendant
Rapid City, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2006

OPINION FILED 04/19/06
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KONENKAMP, Justice

[¶1.] Defendant was convicted of sales tax evasion. The court orally

sentenced him to the state penitentiary for two years, without specifically ordering

any payment of restitution. The written judgment, however, did not conform to the

oral sentence because it contained a detailed restitution obligation. Because the

judgment unlawfully imposed a harsher sentence than that imposed in the oral

sentence, we reverse and remand.

Background

[¶2.] Steven Thayer obtained a South Dakota sales tax license in September

2001, for Villa Cleaners, a business in Box Elder, South Dakota. As the holder of

the sales tax license, he was required to file a sales tax return with the Department

of Revenue and Regulation and remit payment for the reported tax on a monthly

basis. See SDCL 10-45-27(1). For the months of May, June, and July 2003, Thayer

filed the sales tax returns, but did not remit the amounts owed. 1 He was

subsequently charged with four counts of sales tax evasion, consisting of three class

1 misdemeanors and one class 6 felony. 2

[¶3.] In a plea agreement, Thayer consented to plead guilty to the felony

count, and, in exchange, the State agreed to dismiss the three misdemeanor

1. The amount of sales tax due for May, June, and July 2003 was $508.28,
$461.16, and $555.17, respectively. Thayer claimed that he was no longer
responsible for Villa Cleaners. Yet Thayer remained the holder of Villa’s
sales tax license until after July 2003.

2. Under SDCL 10-45-48.1(2), failure to pay the sales tax within sixty days of
the due date is a class 1 misdemeanor. Failure to pay two or more times
(continued . . .)

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charges. Thayer’s counsel indicated that his client was seeking leniency because he

had no ability to pay the delinquent taxes.

[¶4.] Before the court accepted Thayer’s plea, it informed him that the

sentence would be entirely up to the court and that Thayer could not change his

plea if he received a sentence more harsh than anticipated. Thayer said he

understood the consequences of his guilty plea. The court accepted his plea to the

class 6 felony: failure to pay sales tax two or more times in a twelve-month period.

In setting the sentencing date, the court remarked that the date would be “a month

down the road to give restitution a chance to see if it can be sorted out.”

[¶5.] At the sentencing hearing, Thayer confirmed that he desired to

continue with his guilty plea. The prosecutor told the court that Thayer “made no

effort whatsoever to get square with the State since this thing has been pending.”

Thus, the prosecutor requested that Thayer’s “obligation to make restitution [be]

separate from the sentence. Neither one is connected to the other.” Defense counsel

summarized Thayer’s position: “Send me to prison. I don’t want to pay. I can’t

pay.”

[¶6.] The court orally sentenced Thayer to two years in the penitentiary and

left the issue of restitution for the Board of Pardons and Paroles. Specifically, the

court stated, “I am going to impose the two years in the South Dakota State

Penitentiary, give credit for any jail time previously spent and allow the

__________________
(. . . continued)
within a twelve month period constitutes a class 6 felony. SDCL 10-45-
48.1(8).

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restitution issue to be before the Board of Pardons and Paroles. If they [the Board]

want to apply for time in the penitentiary as a back charge against the restitution, I

have no objection to that.” However, the written judgment, in addition to ordering

the two-year penitentiary sentence, also ordered Thayer to pay restitution of

$4,263.71 to the Department of Revenue and Regulation. Thayer appeals, claiming

that the court erred by entering a judgment of conviction contrary to the oral

sentence.

Analysis and Decision

[¶7.] When a court’s written sentence differs from its oral sentence, we

review it under the premise that the oral sentence controls. See State v. Ford, 328

NW2d 263, 268 (SD 1982); State v. Cady, 422 NW2d 828, 830 (SD 1988). Thayer

asserts that the inconsistency between his oral and written sentences unlawfully

imposed a harsher sentence against him. He argues that the court had no authority

to extend his sentence and require that he “shall pay” tax, penalty, and interest of

$4,263.71, with interest continuing to accrue.3

3. The written sentence provides in relevant part:
ORDERED that Defendant, Steven E. Thayer, shall be and is hereby
sentenced to two (2) years in incarceration in the South Dakota State
Penitentiary; it is further
...
ORDERED that in addition, the Defendant shall pay the State of South
Dakota, Department of Revenue and Regulation, all of the tax, penalty and
interest due and owing or accrued to the time of the payment thereof, which
obligation is owing as a result of the operation of the business known as Villa
Cleaners during the period of time when [Thayer] was the holder of the South
Dakota Sales tax license for said business. Said tax, penalty and interest was
in the amount of $4,263.71 as of the date of sentencing with interest
continuing to accrue on the portion of this obligation represented as tax as is
provided by South Dakota until the date of payment thereof.

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[¶8.] It is well settled that the written sentence must conform to the court’s

oral pronouncement. See Ford, 328 NW2d at 267; Cady, 422 NW2d at 830; 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). Only in certain

limited circumstances will this rule not apply. See Cady, 422 NW2d at 830; Munk,

453 NW2d at 125 (stating “if the oral sentence is ambiguous, the written judgment

may be relied upon to clarify the ambiguity”); SDCL 23A-31-1 (“[a] court may

correct an illegal sentence at any time and may correct a sentence imposed in an

illegal manner”); SDCL 23A-31-2 (allowing correction of clerical mistakes).

[¶9.] According to the State, the recognized exceptions apply here and the

written judgment controls. The State first contends that the court contemplated

imposing restitution at the plea hearing when it allowed Thayer additional time to

see if restitution could be sorted out. Under this theory, the State argues that the

court’s oral sentence, in essence, included a restitution obligation. Then, because

the court did not set a precise amount, the State asks that we deem the oral

sentence ambiguous and use the written sentence for clarification. 4 See Cady, 422

NW2d at 830.

[¶10.] To determine if an oral sentence is ambiguous, we examine certain

guiding factors. Id. An ambiguity exists:

(1) when the words used have more than one meaning;
(2) when otherwise unambiguous words are used in an unusual
way;

4. Along the same lines, the State requests that the Court remand this matter
for a restitution hearing so that the circuit court can clarify the restitution
requirement.

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(3) the extent of the sentence cannot be ascertained from the
language used; or
(4) the plain meaning of the words used lead to an irrational or
absurd result.

Id. (quoting United States v. Villano, 816 F2d 1448, 1453 n6 (10thCir 1987)).

[¶11.] Considering the above factors together with a plain reading of the oral

sentence, we conclude that there was no ambiguity. First, the oral sentence did not

contain words that implicated more than one meaning. Each word used by the

court can be understood by its ordinary use in the English language. Further, the

court did not use unambiguous words in an unusual way. Third, the extent of

Thayer’s sentence can be ascertained from the language used. Thayer was ordered

to serve two years, with no court-imposed obligation to pay restitution. Finally, the

plain meaning of the words used does not lead to an irrational or absurd result. It

is within the court’s discretion to require a defendant to pay restitution.

[¶12.] Next, the State argues that the oral sentence is ambiguous because the

court acted without authority when it empowered the Board of Pardons and Paroles

to set restitution. State v. Gullickson, 2003 SD 32, ¶15, 659 NW2d 388, 391 (stating

that the Board’s power to prepare and administer a plan of restitution “does not

extend to the authority to set restitution in the first place”) (citing State v. Wolff,

438 NW2d 199, 201 (SD 1989)). Assuming the State is correct on this point, it

nonetheless cites no authority that a court’s purported legal misconception makes

an oral sentence ambiguous. Instead, the oral sentence clearly sentenced Thayer to

serve two years in the penitentiary and left the question open whether the Board of

Pardons and Paroles might impose restitution. See State v. Hurst, 507 NW2d 918,

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923 (SD 1983) (holding that circuit court’s suggestion that Board require defendant

to pay restitution was dicta).

[¶13.] As an alternative, the State asserts that by placing power in the

Board, the court has either pronounced an illegal sentence or imposed Thayer’s

sentence in an illegal manner, requiring correction under SDCL 23A-31-1. 5

However, the State cites no authority to support its theory that by leaving the issue

of restitution to the Board the court acted illegally. More importantly, the State’s

reliance on this statute is mistaken. SDCL 23A-31-1 may not be used to increase a

defendant’s sentence. See State v. Tibbetts, 333 NW2d 440, 441 (SD 1983) (citing

Ford, 328 NW2d 263); see also Bucholz, 403 NW2d at 402.

[¶14.] Nevertheless, in addressing the State’s argument, we are unable to

conclude that the oral sentence was illegal or was imposed in an illegal manner.

State v. Sieler defined what makes a sentence illegal and what could cause a

sentence to be imposed in an illegal manner under SDCL 23A-31-1. 1996 SD 114,

¶6, 554 NW2d 477, 479 (citations omitted). “‘Sentences imposed in an illegal

manner are within the relevant statutory limits[,] but are imposed in a way which

violates defendant’s right to not have his sentence enhanced once the defendant has

left the judicial branch of government and is within the jurisdiction of the executive

branch.” Id. (emphasis added) (citations omitted). Illegal sentences are “essentially

5. SDCL 23A-31-1 (Rule 35) allows a court to “correct an illegal sentence at any
time and may correct a sentence imposed in an illegal manner within the
time provided in this section for the reduction of sentence.”

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only those which exceed the relevant statutory maximum limits or violate double

jeopardy or are ambiguous or internally contradictory.’” Id. (citations omitted).

[¶15.] First, the court’s oral sentence was not imposed in an illegal manner.

It in no way violated Thayer’s right not to have his sentence enhanced, and it is

within the statutory limit. Second, we cannot say that by suggesting that

restitution be considered by the Board the court pronounced an illegal sentence.

The sentence does not exceed the statutory maximum, does not violate Thayer’s

right to be free from double jeopardy, and creates no ambiguity or internal

contradictions.

[¶16.] Moreover, had the court contemplated imposing restitution against

Thayer, it was required to act in accordance with SDCL 23A-27-1 and SDCL ch.

23A-28. See Wolff, 438 NW2d at 201 (citing SDCL 23A-27-1). Here, no such

compliance is evident. For example, while a court has broad discretion in

determining whether restitution will be imposed against a defendant, SDCL 23A-

28-3 requires that when imposing restitution the court “shall set forth in the

judgment the names and specific amounts of restitution owed each victim.”6

(Emphasis added). Here the court did not identify the victim in its oral

pronouncement, nor did it discuss or allude to an amount of restitution that Thayer

would owe. Only after the court satisfies this statutory obligation, can the Board of

Pardons and Paroles establish a plan for a defendant’s payment of restitution. See

id. (“The Department of Corrections shall establish the collection schedule for court-

6. Under SDCL 23A-28-1, the court may require a defendant pay restitution, to
the extent that the defendant is able to do so.

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ordered restitution while the defendant is in the penitentiary or on parole.”

(Emphasis added)).

[¶17.] Additionally, when restitution will be imposed as part of the sentence,

the court has a duty to inform the defendant of this possibility and then afford the

defendant an opportunity for a hearing on the matter. See State v. Tuttle, 460

NW2d 157 (SD 1990) (stating “that a hearing on restitution is necessary because

‘due process requires, at a minimum, that absent a countervailing state interest of

overriding significance, persons forced to settle their claims of right and duty

through the judicial process must be given a meaningful opportunity to be heard’”).

At no time, in either the plea hearing or sentencing hearing, did the court mention

to Thayer that he might be ordered to pay restitution in addition to the maximum

prison sentence. Nor did the court offer him an opportunity to contest the

possibility of such an obligation.

[¶18.] This is not a case where the defendant volunteered to pay restitution.

Thayer wanted prison time in lieu of restitution, making him an unwilling

defendant. In Munk, 453 NW2d at 125, the defendant willingly agreed to pay

restitution and we stated that the requirement that a sentence not be increased

against an unwilling defendant did not apply. Here, on the other hand, by adding

to the written judgment that Thayer was required to pay restitution to the

Department of Revenue and Regulation as part of his sentence, the court unlawfully

increased his punishment.

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[¶19.] Because the written sentence unlawfully enhanced the court’s oral

sentence, we reverse and order that the judgment be amended to remove the portion

of the sentence requiring Thayer to pay restitution.

[¶20.] Reversed and remanded.

[¶21.] GILBERTSON, Chief Justice, and SABERS, ZINTER and

MEIERHENRY, Justices, concur.

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