State v. A.B., 24753.

CourtSupreme Court of South Dakota
Citation758 N.W.2d 910,2008 SD 117
Docket NumberNo. 24753.,24753.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. A.B., Defendant and Appellant.
Decision Date10 December 2008
758 N.W.2d 910
2008 SD 117
STATE of South Dakota, Plaintiff and Appellee,
v.
A.B., Defendant and Appellant.
No. 24753.
Supreme Court of South Dakota.
Considered on Briefs on November 3, 2008.
Decided December 10, 2008.

[758 N.W.2d 911]

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.

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-Defendants

758 N.W.2d 912

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 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 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

758 N.W.2d 913

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 $58.033 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, 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 N.W.2d 71, 73-74 quoting Miller v. Jacobsen, 2006 SD 33, ¶ 18, 714 N.W.2d 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 N.W.2d 346, 349 quoting Huber v. Dep't of Pub. Safety, 2006 SD 96, ¶ 22, 724 N.W.2d 175, 180.

State ex rel. White v. Brandt, 2008 SD 33, ¶ 11, 748 N.W.2d 766, 770. In addition, findings of fact are reviewed under the clearly erroneous standard. Osman v. Karlen and Assocs., 2008 SD 16, ¶ 15, 746 N.W.2d 437, 442 (quoting Fin-Ag, Inc. v. Feldman Bros., 2007 SD 105, ¶ 19, 740 N.W.2d 857, 862). "[W]e will only reverse

758 N.W.2d 914

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.

[¶ 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 N.W.2d 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 N.W.2d 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...

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