State v. Schmidt, No. 26248.

CourtSupreme Court of South Dakota
Writing for the CourtSEVERSON
Citation2012 S.D. 77,825 N.W.2d 889
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Sarah Elizabeth SCHMIDT, Defendant and Appellant.
Decision Date07 November 2012
Docket NumberNo. 26248.

825 N.W.2d 889
2012 S.D. 77

STATE of South Dakota, Plaintiff and Appellee,
v.
Sarah Elizabeth SCHMIDT, Defendant and Appellant.

No. 26248.

Supreme Court of South Dakota.

Considered on Briefs Aug. 27, 2012.
Decided Nov. 7, 2012.


[825 N.W.2d 891]


Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Karen Paige Hunt of Wilde & Hunt, Prof LLC, Spearfish, South Dakota, Attorneys for defendant and appellant.

[825 N.W.2d 892]


SEVERSON, Justice.

[¶ 1.] Sarah Elizabeth Schmidt was charged by an indictment dated July 1, 2010 with ten counts of grand theft, in violation of SDCL 22–30A–1 and 22–30A–17(1); three counts of identity theft, in violation of SDCL 22–40–8; and sixty-seven counts of forgery, in violation of SDCL 22–39–36. Pursuant to a plea agreement with the State, Schmidt pleaded guilty but mentally ill to ten counts of grand theft, a Class 4 felony, on May 26, 2011. Schmidt filed a motion to withdraw her guilty but mentally ill pleas prior to sentencing. The motion was denied. Schmidt was sentenced to ten years in the penitentiary on Counts I through IX, to run concurrent, and to ten years in the penitentiary on Count X, to run consecutive to Counts I through IX. With new counsel, Schmidt appeals, raising the following issues: 1) whether the circuit court abused its discretion in denying Schmidt's motion to withdraw her pleas of guilty but mentally ill; 2) whether Schmidt's due process rights were violated when she was denied the opportunity to review and comment on the entire presentence investigation report; 3) whether the representation afforded Schmidt constituted ineffective assistance of counsel; 4) whether Schmidt's sentence was cruel and unusual punishment under the Eighth Amendment.

FACTS

[¶ 2.] Schmidt was hired in 2004 to serve as the personal secretary for Rod Galland, the founder, president, and majority shareholder of IMPAK, International Molded Packaging Corporation, located in Central City, South Dakota. As Galland's personal secretary, Schmidt had considerable control over corporate accounts and several of Galland's personal accounts and was primarily responsible for remitting payroll taxes to the IRS.

[¶ 3.] In April 2010, Galland's daughter, Brook Sebade, Director of Operations for IMPAK, discovered several payments had been made to her father's American Express card, which was primarily used when Galland was on business trips. Galland, however, was suffering from cancer and had not made any recent business trips. Sebade eventually discovered Schmidt had been using the American Express card to purchase personal items. When Sebade confronted Schmidt, Schmidt confessed to making charges on the card.

[¶ 4.] Upon learning about the thefts, Galland contacted Timothy R. Johns, Galland's corporate and personal counsel. Johns arranged to meet with Schmidt on April 9, 2010. At that time, Schmidt admitted she had been embezzling funds for the past two years from IMPAK's American Express credit card account in the amount of $20,000 and from Galland's personal checking account, his Capital One credit card account, and Chase credit card account in the amount of $40,000. On April 19, 2010, Schmidt signed an Admission of Liability, wherein she admitted to having embezzled over $60,000.

[¶ 5.] Johns soon realized Schmidt had been embezzling from ten different corporate and personal accounts belonging to Galland since January 2005, while still on felony probation for a November 2004 grand theft conviction in Butte County, South Dakota. She also forged Galland's signature on sixty-seven checks from Galland's checking account and failed to pay employee payroll taxes. As a result, IRS liens were filed against IMPAK. The total amount embezzled exceeded $224,000 and the various tax liens equal $62,550.91.

[¶ 6.] Schmidt was charged by an indictment dated July 1, 2010 with ten counts of grand theft, three counts of identity theft, and sixty-seven counts of forgery.

[825 N.W.2d 893]

The State also filed a Part II Information alleging Schmidt was a habitual offender. Schmidt was arraigned on August 31, 2010. She pleaded not guilty to each of the charges against her. At the arraignment, she requested court-appointed counsel. Eric Whitcher was appointed to represent Schmidt.

[¶ 7.] At a January 11, 2011 status hearing, the circuit court granted defense counsel's motion for a psychiatric evaluation and ordered Schmidt to undergo a competency and forensic evaluation to determine her competency to proceed to trial and her state of mind at the time of the alleged crimes. The evaluation was completed by Stephen P. Manlove, M.D. of Manlove Psychiatric Group, P.C. in Rapid City, South Dakota.

[¶ 8.] The report revealed Schmidt had attended approximately eight counseling sessions nearly twenty years ago and had been prescribed antidepressants by her primary care doctor, but stopped taking them voluntarily. The report indicated, however, that Schmidt was logical and coherent, without evidence of a thought disorder; she did not have auditory or visual hallucinations; she was of average cognition; and her psychiatric history revealed no previous hospitalizations or residential treatment. Dr. Manlove stated that in his opinion Schmidt was experiencing “a great deal of anxiety regarding the criminal charges against her and the consequences of those charges.” Dr. Manlove suggested a combination of psychotherapy and medication to treat Schmidt's anxiety so she could “function much better in the legal process.” Schmidt did not begin taking the prescribed medication until the day before sentencing.

[¶ 9.] Schmidt entered a plea agreement with the State. The terms of the plea agreement specified that Schmidt would plead guilty but mentally ill to ten counts of grand theft. In exchange, the State would dismiss all remaining charges and the Part II Information alleging she was a habitual offender.

[¶ 10.] A change of plea hearing was held on May 26, 2011. During this hearing, the circuit court explained to Schmidt the nature of the charges against her, the penalties for each charge, her constitutional rights, and the terms of the plea agreement. The following exchange then took place between the circuit court and Schmidt:

THE COURT: Is your plea voluntary?

DEFENDANT: Yes, sir.

THE COURT: And you understand your rights, and you waive the rights that I've explained to you today?

THE DEFENDANT: Yes, sir.

Schmidt eventually pleaded guilty but mentally ill to ten counts of grand theft. The circuit court ordered a presentence investigation (PSI).


[¶ 11.] Prior to sentencing on September 1, 2011, Schmidt filed a pro se motion to withdraw her guilty but mentally ill pleas contending she did not enter into the plea knowingly or willingly because she was suffering from a mental illness; was under severe emotional and physical distress; and felt a tremendous amount of pressure and coercion at the time she entered her pleas of guilty but mentally ill. As a result, Whitcher filed a motion to withdraw as counsel. The sentencing court denied both motions. Schmidt was sentenced to ten years in the penitentiary on Counts I through IX, to run concurrent, and to ten years in the penitentiary on Count X, to run consecutive to Counts I through IX.

STANDARD OF REVIEW

[¶ 12.] “We review a [circuit] court's refusal to permit a defendant to

[825 N.W.2d 894]

withdraw his guilty plea prior to sentencing under an abuse of discretion standard.” State v. Bailey, 1996 S.D. 45, ¶ 11, 546 N.W.2d 387, 390. “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. (quoting State v. Engelmann, 541 N.W.2d 96, 100 (S.D.1995)). “We apply a de novo standard of review to claims of constitutional violations.” State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585 (citing State v. Dillon (Dillon I), 2001 S.D. 97, ¶ 12, 632 N.W.2d 37, 43). “A claim that a sentence is grossly disproportionate is reviewed by the standards set out in State v. Bonner, 1998 S[.]D[.] 30, ¶ 17, 577 N.W.2d 575, 580.” Id.

ANALYSIS
[¶ 13.] 1. Whether the circuit court abused its discretion in denying Schmidt's motion to withdraw her pleas of guilty but mentally ill.

[¶ 14.] SDCL 23A–27–11 provides:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice a court after sentence may set aside a judgment of conviction and permit the defendant to withdraw his plea.

[¶ 15.] As we most recently stated in State v. Olson,

The withdrawal of a guilty plea before the imposition of sentence is within the sound discretion of the [circuit] court. When a defendant moves to withdraw a plea prior to sentencing, a court should exercise its discretion liberally in favor of withdraw. But, SDCL 23A–27–11 does not create an automatic right to withdraw a guilty plea. When deciding whether to allow a criminal defendant to withdraw his plea, the [circuit] court must look at the reasons why the plea is sought to be withdrawn and if the request to withdraw is obviously frivolous, the circuit court need not grant it.

2012 S.D. 55, ¶ 18, 816 N.W.2d 830, 835–36 (alteration in original) (citations omitted) (internal quotation marks omitted).


[¶ 16.] A request to withdraw a guilty plea is frivolous if a defendant fails to provide “ ‘a tenable reason why withdrawal should be permitted, a reason’ ” the court deems fair and just. Everett v. U.S., 336 F.2d 979, 982 (D.C.Cir.1964); State v. Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433 (quoting Engelmann, 541 N.W.2d at 100).

A defendant who stands before a court freely admitting his [crime] does not remotely meet the standard of offering a “fair and just reason” for withdrawing his plea of guilty prior to sentence. He must give some reason other than a desire to have a trial the basic purpose of which is to determine the very facts...

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9 practice notes
  • State v. Kvasnicka, No. 27304.
    • United States
    • Supreme Court of South Dakota
    • 6 Enero 2016
    ...suspended[.]" The grant or denial of a motion to withdraw a guilty plea is within the discretion of the circuit court. State v. Schmidt, 2012 S.D. 77, ¶ 15, 825 N.W.2d 889, 894. Although "a court should exercise its discretion liberally in favor of withdrawal[,]" State v. Olson, 2012 S.D. 5......
  • State v. Bauer, No. 26719.
    • United States
    • Supreme Court of South Dakota
    • 16 Julio 2014
    ...to be “one of those rare cases where an ineffective-assistance-of-counsel claim is ripe for review on direct appeal.” State v. Schmidt, 2012 S.D. 77, ¶ 37, 825 N.W.2d 889, 899 (citation omitted). The record can be more fully developed in a habeas proceeding to allow for meaningful appellate......
  • State v. Golliher-Weyer, No. 27412.
    • United States
    • Supreme Court of South Dakota
    • 3 Febrero 2016
    ...current record is insufficient to allow for an appropriate review, we decline to address Weyer's claim at this time. See State v. Schmidt, 2012 S.D. 77, ¶ 37, 825 N.W.2d 889, 899.2. Denial of a Hearing under SDCL 19–19–412¶ 10.] According to Weyer, "[o]nce it became clear that defense couns......
  • Legrand v. Young, 4:14-CV-04160-RAL
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 14 Mayo 2015
    ...a court should allow withdrawal of a plea are "actual innocence" and if the guilty plea was "contrary to the truth." State v. Schmidt, 2012 S.D. 77, ¶17, citing State v. Grosh, 387 N.W.2d 503, 506 (S.D. 1986).(3) The trial court failed to honor the legal presumption in favor of withdrawal w......
  • Request a trial to view additional results
9 cases
  • State v. Kvasnicka, No. 27304.
    • United States
    • Supreme Court of South Dakota
    • 6 Enero 2016
    ...suspended[.]" The grant or denial of a motion to withdraw a guilty plea is within the discretion of the circuit court. State v. Schmidt, 2012 S.D. 77, ¶ 15, 825 N.W.2d 889, 894. Although "a court should exercise its discretion liberally in favor of withdrawal[,]" State v. Olson, 2012 S.D. 5......
  • State v. Bauer, No. 26719.
    • United States
    • Supreme Court of South Dakota
    • 16 Julio 2014
    ...to be “one of those rare cases where an ineffective-assistance-of-counsel claim is ripe for review on direct appeal.” State v. Schmidt, 2012 S.D. 77, ¶ 37, 825 N.W.2d 889, 899 (citation omitted). The record can be more fully developed in a habeas proceeding to allow for meaningful appellate......
  • State v. Golliher-Weyer, No. 27412.
    • United States
    • Supreme Court of South Dakota
    • 3 Febrero 2016
    ...current record is insufficient to allow for an appropriate review, we decline to address Weyer's claim at this time. See State v. Schmidt, 2012 S.D. 77, ¶ 37, 825 N.W.2d 889, 899.2. Denial of a Hearing under SDCL 19–19–412¶ 10.] According to Weyer, "[o]nce it became clear that defense couns......
  • Legrand v. Young, 4:14-CV-04160-RAL
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 14 Mayo 2015
    ...a court should allow withdrawal of a plea are "actual innocence" and if the guilty plea was "contrary to the truth." State v. Schmidt, 2012 S.D. 77, ¶17, citing State v. Grosh, 387 N.W.2d 503, 506 (S.D. 1986).(3) The trial court failed to honor the legal presumption in favor of withdrawal w......
  • Request a trial to view additional results

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