State v. Stevenson

• Decision Date: 02 October 2002
• Docket Number: No. 22126.,22126.
• Citation: 652 N.W.2d 735,2002 SD 120
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Janice STEVENSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

652 N.W.2d 735

2002 SD 120

STATE of South Dakota, Plaintiff and Appellee, v. Janice STEVENSON, Defendant and Appellant.

No. 22126.

Supreme Court of South Dakota.

Considered on Briefs April 22, 2002.

Decided October 2, 2002.

Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Patrick M. Ginsbach of Farrell, Farrell & Ginsbach, Hot Springs, South Dakota, Attorneys for defendant and appellant.

PER CURIAM.

[¶ 1.] Janice Stevenson appeals her sentence for one count of second degree arson. We affirm.

FACTS

[¶ 2.] In June 2001, Stevenson was charged with one count of second degree arson in connection with a devastating forest fire in the Black Hills in the summer of 2000.¹ The charge was specifically related to the burning of a cabin owned by a couple in Custer County. Plea bargaining followed the filing of the charge and the State and Stevenson ultimately entered into a four page plea agreement. The agreement contained provisions requiring Stevenson to enter a guilty plea, to cooperate in the plea proceedings, to plead guilty in federal court to federal charges relating to the same fire and to agree to the maximum federal sentence for her federal offenses. For its part, the State agreed to grant Stevenson use immunity for any arson related disclosures during her debriefing and to request a seventeen year penitentiary sentence. In addition, the plea agreement contained the following specific provisions pertinent to this appeal:

3. [Stevenson] will fully and truthfully apprise law enforcement officials of her involvement with forest fires set in South Dakota for the years previous to 1993 including the specific names, dates, times and places surrounding such activities. Any material misrepresentation or omission made will result in revocation of the plea bargain agreement in the State's discretion.

4. [Stevenson] will, at the request of law enforcement, voluntarily submit to a polygraph examination concerning her involvement with forest fires set in South Dakota for the years previous to 1993. [Stevenson's] failure of this test may result in a revocation of this agreement in the State's discretion.

* * *

This grant of immunity is expressly conditional upon [Stevenson's] complete and open honesty in the scope of her cooperation with law enforcement. Any material misrepresentation or omission made by [Stevenson] to law enforcement shall be grounds for revocation of this agreement. If this agreement is revoked for any reason set forth in this agreement, [Stevenson] will lose her grant of immunity and will be prosecuted to the fullest extent of the law. In that event, any and all statements made or evidence obtained pursuant to this agreement, including any statements made during any court proceeding, may then be used against [Stevenson] consistent with United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).

* * *

The parties specifically acknowledge that the length and conditions of any sentence are solely within the discretion of the sentencing judge, and that no promises as to length or type of sentence have been made to [Stevenson] by the State.

[¶ 3.] The plea agreement was signed by Stevenson, her counsel and the prosecutor on the same date as Stevenson's arraignment, May 25, 2001. During the arraignment, the trial court advised Stevenson of the charge, the maximum possible penalty, and her constitutional rights. Stevenson acknowledged her understanding of these matters. Stevenson's counsel then explained various aspects of the plea agreement as did the prosecutor who noted that, "the State is agreeing to ask for 17 years which would be concurrent, that Miss Stevenson would go serve her time in the Federal custody." Prior to accepting Stevenson's plea, the trial court initiated the following exchange to insure her understanding of the non-binding nature of the sentencing agreement:

THE COURT: You understand that I can impose — this is not binding on the Court, I assume.

MR. BACHAND [the prosecutor]: It is not, Your Honor.

MR. CONNELLY [defense counsel]: That's correct.

THE COURT: I may, if I choose to, impose 25 years in the state penitentiary.

THE DEFENDANT: Yes, Your Honor.

THE COURT: And you understand that you may be forced to serve that if you don't get parole or good time, that kind of thing?

THE DEFENDANT: I understand.

After this discussion, a factual basis was provided for Stevenson's plea which was accepted by the trial court.

[¶ 4.] Following the arraignment and prior to sentencing, Stevenson submitted to a polygraph examination pursuant to the requirements of the plea bargain. During the course of that examination, Stevenson admitted her arson in three prior fires in Wyoming. However, she denied setting a pre 1993 fire in the Black Hills of South Dakota known as the "Westberry Trails fire." The polygraph indicated Stevenson was untruthful in this denial.

[¶ 5.] At the sentencing hearing on August 22, 2001, the State presented testimony from the polygraph examiner to establish Stevenson's deception and violation of the plea agreement. On that basis, the State sought leave to depart from its plea agreement to request a sentence of seventeen years. The trial court ruled from the bench that there had been a violation of the plea agreement sufficient to allow the State to withdraw its pledge not to seek an aggravated sentence. The State then presented testimony from the victim of the arson and, referencing the severity of the forest fire caused by Stevenson, argued for a lengthy penitentiary sentence to run consecutive to her federal sentence. Thereafter, the trial court heard a statement from Stevenson in which she expressed perfunctory remorse for her actions. The trial court then imposed its sentence with the following pertinent comments:

I'm not sentencing you today based upon whether you did or did not commit the other fire. I'm doing this solely based upon what you told me you have done and what the presentence investigation reveals, not the Westberry Trails fire because that's not what we're here for. The only reason that's an issue is a question of truth, not a question of being a pyromaniac or being an arsonist.

* * *

[S]even percent of the state — the forest was lost, which is a huge chunk of the beautiful Black Hills which everyone here respects and appreciates. Forty-two million dollars in losses, direct losses. That doesn't count the beauty and the critters and creatures and the grass and trees and the flowers and the decades it will take for those to commence or to return to where they were.

* * *

Only by the grace of God was someone not killed or injured seriously in this. Fire fighters risked themselves to keep it from spreading which it did because of the real abandoned area, the natural area. The isolated area it was able to grow and prosper, the fire was. You knew that when you started it.

I don't accept you've taken responsibility for it.

[¶ 6.] With these and other similar comments, the trial court sentenced Stevenson to twenty-five years in the penitentiary, concurrent with her federal sentence, plus restitution. Stevenson appeals.

ISSUE

[¶ 7.] Was the trial court clearly erroneous in finding that Stevenson breached her plea agreement?

[¶ 8.] Stevenson advances several arguments to establish that the trial court was clearly erroneous in finding that she breached her plea agreement and that the State could depart from the agreement and seek an aggravated sentence.

[¶ 9.] Generally, plea agreements are contractual in nature and are governed by ordinary contract principles. See Margalli-Olvera v. I.N.S., 43 F.3d 345, 351 (8th Cir.1994)

. Whether a contract has been breached is an issue of fact for the trier of fact to resolve. Moe v. John Deere Co., 516 N.W.2d 332, 335 (S.D.1994). A trial court's findings of fact are reviewed under the clearly erroneous standard. State v. Webster, 2001 SD 141, ¶ 19, 637 N.W.2d 392, 397.

[¶ 10.] Stevenson first contends that the trial court's finding of a breach of the plea agreement is clearly erroneous because it entered no written findings or conclusions for this Court to review for the existence of clear error. This Court has previously expressed its preference for the entry of written findings of fact and conclusions of law on certain issues resolved by trial courts. See e.g. State v. Albright, 418 N.W.2d 292, 294 (S.D.1988)

(Court insists on separate, appropriate and specific findings of fact and conclusions of law on suppression issues in order to aid appellate review and insure against speculation and conjecture). Notwithstanding such expressions, this Court has accepted verbal findings and conclusions where the record leaves no room for speculation and conjecture concerning what the trial court found or concluded. See e.g. State v. Hartley, 326 N.W.2d 226, 228 (S.D.1982)(whether findings and conclusions are formally entered or orally made on the record, they must be such that there is no room for speculation and conjecture concerning what the trial court found or concluded).

[¶ 11.] Here, a review of the record leaves no doubt that the basis of the trial court's finding of a breach of the plea agreement was Stevenson's failure of the polygraph examination. In that regard, the trial court specifically ruled from the bench as follows:

The Court takes the agreement as a contract between the parties. It ultimately in the mind of this Court sets up the opportunities for the State to set aside its agreement to not aggravate beyond the 17.5 in the event the State feels because it's clear it's discretionary that there is a violation of the agreement. The Court is cautious about the reliance or consideration of the polygraph which is a tool that is not exact in nature nor is it admissible generally speaking before the Court. But at least under these circumstances with the contract agreement between the parties and the

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