#30974-aff in pt & rev in pt-SRJ 2026 S.D. 9
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHADWICK A. JANES, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
THE HONORABLE MARK BARNETT Retired Judge
NICOLE J. LAUGHLIN Sioux Falls, South Dakota Attorney for defendant and appellant.
MARTY J. JACKLEY Attorney General
ANGELA R. SHUTE Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
CONSIDERED ON BRIEFS JANUARY 12, 2026 OPINION FILED 02/18/26 #30974
JENSEN, Chief Justice
[¶1.] Chadwick Janes was convicted of abuse or cruelty to a minor involving
his stepchild, B.S. On appeal, he argues the circuit court committed plain error by
allowing the admission of a forensic interview and a supplemental report as
evidence, portions of which he claims included inadmissible hearsay and other act
evidence. Janes also argues the circuit court abused its discretion in its sentencing
and restitution order and asserts he was denied his Sixth Amendment right to
effective assistance of counsel. We affirm in part, reverse in part, and remand.
Factual and Procedural History
[¶2.] In 2019, Janes and Tanya were married and moved to a home together
in Colton, South Dakota. Tanya had two children from a prior marriage who also
lived in the home—B.S., born in 2010, and N.S., born in 2011. Janes and Tanya’s
child J.J., born in 2019, also lived in the home. Janes’s two children from a prior
marriage—B.J. and A.J.—lived in the home half of the time pursuant to a shared
parenting arrangement with the children’s biological mother.
[¶3.] In 2023, Janes and Tanya began contemplating divorce. In April,
Tanya moved to Brandon, South Dakota, with B.S., N.S., and J.J. Janes served
Tanya with divorce papers on May 16, 2023. That night, N.S.’s grandmother
(Grandmother) drove N.S. to a school concert while Tanya drove B.S in a separate
car. In their respective cars on the way to the concert, N.S. reported to
Grandmother, and B.S. simultaneously reported to Tanya, that Janes physically
abused N.S. and B.S. when they lived in Colton. After arriving at the concert,
Grandmother told Tanya that she needed to call the police about the incidents.
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Tanya called law enforcement the next day. Law enforcement made a referral to
Child’s Voice, a child advocacy center.
[¶4.] On June 6, 2023, B.S. was interviewed at Child’s Voice by forensic
interviewer Rin Calderon. B.S. was 13 years old at the time of the interview. B.S.
told the interviewer that Janes beat him with a belt more than one time on his
buttocks and thighs. Additionally, B.S. reported that Janes once pushed him into
the kitchen cupboard, causing B.S.’s head to hit the cupboard, and choked him to
the point that he could not breathe.
[¶5.] N.S. was interviewed by Calderon at Child’s Voice on June 26, 2023.
The interview of N.S. was video recorded (Interview). N.S. was 12 years old at the
time of her interview. N.S. reported that Janes hit her on her lower back with a
belt more than one time and that Janes would grab N.S. and drag her around by the
arm, hand, or wrist. Additionally, N.S. stated that she saw Janes spank B.S. with a
belt more than one time and that it would leave red marks, bruises, or tiny scars.
N.S. also reported that Janes would slam B.S.’s head into countertops and cabinets
and that Janes once choked B.S. with his hands to the point that B.S. looked like he
was going to pass out. N.S. further reported that Janes pushed J.J., dragged him by
his ear, and spanked him and that J.J. had bruises and red marks. N.S. also
reported that Janes once grabbed a child at a party by the ear, turning the child’s
ear red. Child’s Voice prepared a report summarizing the interviews of both B.S.
and N.S. (Report).
[¶6.] On August 16, 2023, the State filed a three-count indictment against
Janes. Count 1 charged aggravated assault and involved the alleged choking of B.S.
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Counts 2 and 3 charged abuse or cruelty to a minor aged seven or above. Counts 1
and 3 were charged in the alternative. The State dismissed count 2 prior to trial.
[¶7.] The State filed pretrial notices seeking to introduce certain evidence at
trial. The first notice sought to offer hearsay statements made by N.S. to Tanya,
Grandmother, and Calderon. The second notice sought to offer other act evidence.
[¶8.] Following hearings on the notices, the circuit court referenced four
separate hearsay statements of N.S. in its ruling: (1) Janes choking B.S.; (2) Janes
hitting B.S. with a belt; (3) Janes spanking N.S.; and (4) bruising on J.J. The circuit
court held these statements made by N.S. to Tanya, Grandmother, and Calderon
would be admissible under the SDCL 19-19-806.1 hearsay exception if N.S. testified
at trial, finding the statements to have sufficient indicia of reliability. The court
explicitly included all the statements that N.S. made to Calderon during the
Interview in this ruling.
[¶9.] The circuit court also considered the admissibility of the following
other act evidence provided in the Interview and Report: (1) testimony that Janes
once became angry with B.S. for not eating his green beans and poured a can of
green beans on B.S.’s head (the green bean incident) and (2) testimony that Janes
spanked B.S. with a “belt more than one time, leaving red marks, bruising or tiny
scars” and that Janes “hit B.S. with the back of his hand, push[ed] and drag[ged]
B.S. around with his hands, and slam[med] B.S.’s head into countertops and
cabinets” (the belt incidents). The circuit court held the green bean incident was
irrelevant, but found the belt incidents were admissible under SDCL 19-19-404(b)
“to indicate motive, opportunity, plan, and absence of mistake.”
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[¶10.] At trial, in addition to the testimony of N.S., Calderon, Grandmother,
and B.S., the State also introduced the entirety of N.S.’s Interview and the Report—
which summarized both interviews—without objection. The Report contained a
reference to the green bean incident that was ruled inadmissible at the pretrial
hearing. The Report also contained statements made by B.S. about his abuse by
Janes. Additionally, the Interview and Report each contained other act evidence
from N.S. regarding abuse of N.S., J.J., and a child at a party. None of this
evidence was considered by the circuit court in its pretrial ruling, and because
Janes did not object to the admission of the Interview and Report, the circuit court
did not rule on the admissibility of this evidence.
[¶11.] The jury found Janes not guilty of aggravated assault, but guilty of
abuse or neglect of a child. The court ordered a presentence investigation report
prior to sentencing. Janes was sentenced to ten years in the state penitentiary with
three years suspended. The circuit court also orally ordered restitution of $2,000 for
Tanya’s lost wages and restitution for any future counseling costs for B.S., N.S., and
J.J. The restitution order for counseling costs was not included in the court’s
written judgment of conviction.
[¶12.] Janes appeals, raising several issues which we restate as follows:
1. Whether the circuit court plainly erred by admitting hearsay statements and other act evidence contained in the Interview and Report.
2. Whether the circuit court abused its discretion by sentencing Janes to ten years with three years suspended.
3. Whether the circuit court abused its discretion by imposing restitution for future counseling expenses of the children and Tanya’s lost wages.
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4. Whether Janes was denied his Sixth Amendment right to effective assistance of counsel.
Analysis
Evidentiary issues
[¶13.] Normally, “[w]e review a circuit court’s decision to admit other act
evidence for an abuse of discretion.” State v. Bordeaux, 2025 S.D. 55, ¶ 45, 27
N.W.3d 45, 56 (citation omitted). But Janes does not challenge the circuit court’s
pretrial rulings admitting certain hearsay statements and other act evidence of N.S.
Instead, he argues portions of the Interview and Report contained inadmissible
hearsay of B.S. and other act evidence from N.S. that the circuit court either did not
address or determined to be inadmissible in its pretrial ruling.
[¶14.] Janes acknowledges that he did not preserve objection to this evidence
at trial but asks that we review the evidentiary issues for plain error. “This Court
reviews unpreserved issues for plain error.” State v. Guziak, 2021 S.D. 68, ¶ 10, 968
N.W.2d 196, 200 (citations omitted). “To demonstrate plain error, [the appellant]
must establish that there was: ‘(1) error, (2) that is plain, (3) affecting substantial
rights; and only then may we exercise our discretion to notice the error if (4) it
seriously affect[s] the fairness, integrity, or public reputation of the judicial
proceedings.’” Id. (citations omitted).
[¶15.] “Not every error that occurs during trial constitutes plain error;
therefore[,] the plain error analysis ‘must be applied cautiously and only in
exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25, 931 N.W.2d 725,
733 (citations omitted). “[Plain error] is permissive, not mandatory. If the forfeited
error is ‘plain’ and ‘affects substantial rights,’ the court of appeals has authority to
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order correction but is not required to do so.” Id. (quoting United States v. Olano,
507 U.S. 725, 735 (1993)).
[¶16.] Janes raises four issues regarding the admission of evidence that was
included in the Interview and Report admitted during trial. First, Janes argues the
green bean incident referenced in the Report was inadmissible because the circuit
court excluded it in its pretrial ruling. Second, Janes contends the summary of
B.S.’s disclosures of abuse included in the Report was inadmissible under SDCL 19-
19-806.1 because B.S. was 13 years old at the time of disclosure and no other
hearsay exception applied. Third, Janes argues the Interview and Report contained
other act evidence involving N.S. that the circuit court did not consider in its
pretrial ruling. Finally, Janes challenges the other act evidence involving J.J. and
another child at a party contained in the Interview and Report.
[¶17.] Based upon a review of the record, we need not determine whether the
admission of any of this evidence was error or plain error because Janes has not
established that this evidence affected his substantial rights under the third prong
for plain error review. To prevail on this prong, a defendant “must show that the
error “affected the outcome of the proceedings[.]” Guziak, 2021 S.D. 68, ¶ 21, 968
N.W.2d at 202 (citations omitted). “‘Prejudice’ in the context of plain error requires
a showing of a ‘reasonable probability’ that, but for the error, the result of the
proceeding would have been different.” Id. ¶ 21, 968 N.W.2d at 202–03 (citations
omitted).
[¶18.] As for the green bean incident, the State did not elicit any testimony at
trial regarding that incident aside from the brief reference to it in the Report. Nor
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did the State reference the green bean incident during opening or closing
statements or at any other time during the trial. We cannot say there is a
reasonable probability that the result of the proceeding would have been different if
the incident was not in the Report.
[¶19.] Regarding the summary of B.S.’s claims of abuse by Janes, the Report
contained the following hearsay statements from B.S.:
During [B.S.]’s forensic interview, [B.S.] disclosed [Janes] beat [B.S.] with a belt more than one time on [B.S.]’s butt and thighs, the first time being when [B.S.] was 10-years-old and last time when [B.S.] was 13-years-old. [B.S.] stated [B.S.] saw red marks on [B.S.]’s thighs after [Janes] beat with a belt. [B.S.] disclosed [Janes] would “thrash,” showing the interviewer a back and forth motion, [B.S.] around more than one time. [B.S.] stated one time [Janes] pushed [B.S.] with [Janes]’s hands into the kitchen cupboard and [B.S.]’s head hit the cupboard. [B.S.] stated [Janes] then choked [B.S.]’s neck and [B.S.] could not breathe. [B.S.] stated after [Janes] choked [B.S.], [B.S.] went downstairs and cried. [B.S.] stated [Janes] came downstairs and [Janes] called [B.S.] a little pussy and [B.S.] was terrified to say something.
[¶20.] At trial, B.S. testified without objection that Janes would punish him
by hitting him with a belt on his buttocks, legs, and back. B.S. testified that this
occurred for approximately 2 1/2 to 3 years. Additionally, B.S. testified that on one
occasion, Janes chased B.S. around the kitchen, pushed him against the cabinets,
and choked his neck to the point that it was difficult to breathe. B.S. also testified
that after the choking incident, he ran downstairs and laid on the couch and cried.
B.S. testified that Janes later came downstairs and called him a pussy for crying
after being choked. B.S. was also cross-examined by the defense about this
testimony. The acts described by B.S. in his trial testimony were nearly identical to
the statements of B.S. referenced in the Report about his abuse by Janes. On this
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record, we cannot say there is a reasonable probability that, but for the error, the
result of the proceeding would have been different.
[¶21.] Similarly, the other act evidence regarding the abuse of N.S. contained
in the Interview and Report was not prejudicial based upon N.S.’s trial testimony.
The Interview and Report provided the following other act evidence regarding the
abuse of N.S. by Janes:
[N.S.] disclosed stepdad [Janes] hit [N.S.]’s lower back with a belt more than one time and that it would hurt and she would sometimes see little red spots. [N.S.] disclosed [Janes] grabbed [N.S.] by [N.S.]’s arm, hand, or wrist and [Janes] would drag [N.S.] around. [N.S.] disclosed [Janes] pushed with [Janes]’s hands on [N.S.]’s upper arm to move [N.S.] around and sometimes [N.S.] would fall over.
N.S. testified at trial to these same acts by Janes without objection.
[¶22.] For many of the same reasons, we conclude Janes has not established
prejudice concerning the other act evidence provided by N.S. regarding the abuse of
J.J. and another child. The Report provided:
[N.S.] stated [N.S.] saw [Janes] drag [J.J.] by [J.J.]’s hands or by [J.J.]’s ear more than one time. [N.S.] stated one time [Janes] pushed [J.J.] with [Janes]’s hand. [N.S.] stated [Janes] pushed [J.J.] and [N.S.] saw bruises on [J.J.]’s back and side. [N.S.] stated [Janes] spanked [J.J.] with [Janes]’s hand and [N.S.] saw little red marks.
Additionally, N.S. stated in the Interview and Report, “[Janes] grabbed . . . a kid at
a party[] by the ear because [the kid] was running around the house and [N.S.]
reported [the kid]’s ear was red.” These acts are similar to much of the other
testimony of abuse at trial. Moreover, aside from the brief reference in the Report,
this evidence was not referenced again during the trial.
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[¶23.] Even if we were to conclude that it was plain error for the circuit court
to fail to sua sponte redact this evidence in the Interview and Report in the absence
of an objection, much of the evidence is cumulative to the testimony at trial. As
such, we cannot say there is a reasonable probability that, but for any error, the
result of the proceeding would have been different. See State v. Shepard, 2009 S.D.
50, ¶ 16, 768 N.W.2d 162, 167 (citations omitted) (“Where inadmissible evidence
admitted at trial is cumulative only and other admissible evidence supports the
result, the cumulative evidence, though inadmissible, is nonprejudicial.”).
Sentencing
[¶24.] Janes argues the circuit court abused its discretion by making its
sentencing decision based upon its belief that Janes might be paroled early because
of the court’s experience with a prior, unrelated case. Additionally, Janes argues
the circuit court abused its discretion by finding that the children would likely
suffer from post-traumatic stress disorder (PTSD) without any evidence in the
sentencing record to support such a diagnosis.
[¶25.] We review a circuit court’s sentencing decision for an abuse of
discretion. State v. Klinetobe, 2021 S.D. 24, ¶ 26, 958 N.W.2d 734, 740 (citation
omitted). “Within constitutional and statutory limits, the trial courts of this state
exercise broad discretion when deciding the extent and kind of punishment to be
imposed.” State v. Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d 75, 83 (citation omitted).
“Consequently, ‘a sentence within the statutory maximum [generally] will not be
disturbed on appeal.’” Id. (citations omitted).
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[¶26.] “[T]he sentencing court should acquire a thorough acquaintance with
the character and history of the [person] before it.” Klinetobe, 2021 S.D. 24, ¶ 29,
958 N.W.2d at 741 (citations omitted). “The sentencing court should have access to
‘the fullest information possible concerning the defendant’s life and characteristics.
Information which should be available to the court includes general moral
character, mentality, habits, social environment, tendencies, age, aversion or
inclination to commit crime, life, family, occupation, and previous criminal record.’”
Id. (citations omitted). “Courts should consider the traditional sentencing factors of
retribution, deterrence—both individual and general—rehabilitation, and
incapacitation.” Id. ¶ 28, 958 N.W.2d at 741 (citation omitted). “[T]he sentencing
court determines, on a case-by-case basis, which theory is accorded priority.” State
v. Talla, 2017 S.D. 34, ¶ 14, 897 N.W.2d 351, 355 (citation omitted).
[¶27.] In preparation for the sentencing hearing, the circuit court reviewed
the presentence investigation report, victim impact statements, and character
letters in support of Janes. The presentence investigation report discussed Janes’s
comments regarding the offense, family history, educational information,
employment history, leisure and recreation, drug and alcohol use, mental and
physical health, attitudes and orientation, and previous criminal record.
[¶28.] At the sentencing hearing, the circuit court recognized positive steps
Janes had taken since committing the offense and predicted that he would continue
to do so. Additionally, the court found that Janes had shown some remorse for his
actions, but also believed Janes had minimized his wrongdoing by blaming others
and failed to fully take responsibility for his actions. The court also discussed its
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concerns about the impact on the victims and their fears of not being believed. The
court noted that B.S. had requested a seven-year sentence in his victim impact
statement and that such a punishment seemed appropriate. The circuit court
further emphasized that the victims will likely be affected by Janes’s actions for the
rest of their lives.
[¶29.] Interspersed within these appropriate sentencing considerations, the
circuit court also speculated, “I would be surprised if [the children] don’t have
PTSD.” Additionally, the court noted its frustrations with the penitentiary system
and questioned whether Janes would actually serve the amount of time imposed by
the court, stating, “[I]n a case out of White River, I sentenced a guy to seven years
in the state penitentiary and he was back in White River in under 90 days on
penitentiary approved house arrest . . . . So, I don’t trust the penitentiary sentence
system.” In fashioning Janes’s sentence, the court added:
Well, as you’ve all heard me complain rather vocally, anything I give to this young man is not what I’m giving him because the rest of the system says no, we don’t think so. We’re going to put a bracelet on him, or we’re going to kick him back out to White River in three months. ... I’m giving him a fictional sentence, but I am going to sentence him to the penitentiary because I don’t really trust the jail. And I frankly [] don’t think six months in some sort of jail or modified jail gathers this.
[¶30.] The extraneous comments by the circuit court about the children
potentially suffering from PTSD and the penitentiary system are not based upon
any facts or law presented at the hearing. While these gratuitous comments
complicate our review of the sentence by the circuit court, it is not clear that any of
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the comments impacted the court’s sentence or actually played a role in its
sentencing decision.
[¶31.] The circuit court’s sentence of ten years with three years suspended
was within the legislatively authorized maximum sentence. See SDCL 22-6-1(7).
Further, the court inquired into many relevant facts about the physical abuse, the
victims, and Janes himself in considering an appropriate sentence such that the
court was well acquainted with the offense and Janes’s character and history before
imposing sentence. The court also noted some mitigating and aggravating factors.
On review of the whole sentencing record, we cannot say the court abused its
discretion.
Restitution
[¶32.] Janes argues the circuit court abused its discretion when it imposed
restitution for the future counseling expenses of the children because the expenses
were arbitrarily imposed and unascertainable in amount and scope. Additionally,
Janes argues the circuit court abused its discretion when it imposed restitution in
the amount of $2,000 for Tanya’s lost wages because the State failed to establish a
causal connection between Tanya’s damages and the crime. The State concedes
that the circuit court did not order a specific amount for counseling and points out
that the written judgment does not include the court’s oral order of restitution for
counseling costs.
[¶33.] A circuit court “has broad discretion in imposing restitution.” State v.
Falkenberg, 2021 S.D. 59, ¶ 55, 965 N.W.2d 580, 596 (citation omitted). “When a
defendant contests the amounts requested, the State must produce evidence that
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allows the court to be ‘reasonably satisfied’ that such restitution is proper.” Id.
¶ 57, 965 N.W.2d at 596–97 (citation omitted).
[¶34.] “It is well settled that the written sentence must conform to the court’s
oral pronouncement.” State v. Washington, 2024 S.D. 64, ¶ 50, 13 N.W.3d 492, 507
(citation omitted). “When there is a difference between the written and oral
sentences, we review the sentence ‘under the premise that the oral sentence
controls.’” Id. (citations omitted). We rely on the written judgment only “if the oral
sentence is ambiguous[.]” Id. (citation omitted).
[¶35.] At sentencing, the circuit court stated, “I’m going to order restitution
in the form of counseling for these two kids [B.S. and N.S.]. I don’t know if [J.J.] is
even old enough to take counseling, but if he is, and if you find a program that
works, I will hold Mr. Janes responsible for those counselling [sic] costs.” Because
the court’s oral sentence unambiguously made Janes responsible for “restitution in
the form of counseling” for the kids, the oral sentence controls. The court also orally
ordered Janes to pay $2,000 in restitution to Tanya for lost wages, which was
included in the written judgment of conviction. Janes challenges both orders.
a. Future counseling expenses
[¶36.] Here, the court’s oral order for restitution to the children was for
future counseling expenses. SDCL 23A-28-12 provides, “Anyone convicted under
. . . § 26-10-1 shall be required as part of the sentence imposed by the court to pay
all or part of the cost of any necessary medical, psychological, or psychiatric
treatment, or foster care of the minor resulting from the act or acts for which the
defendant is convicted.” (Emphasis added.) In State v. Jones, this Court
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interpreted that statute to require the court to order a defendant convicted of abuse
or cruelty to a minor under SDCL 26-10-1, “to pay for [the victims’] treatment costs
under SDCL 23A-28-12[.]” 2016 S.D. 86, ¶ 9, 888 N.W.2d 207, 209. We have also
recognized that a sentencing court may order a defendant to pay future counseling
expenses based upon “SDCL 23A-28-2(3) [which] defines ‘pecuniary damages’ as ‘all
damages which a victim could recover against the defendant in a civil action arising
out of the same facts or events, except punitive damages and damages for pain,
suffering, mental anguish, and loss of consortium.’” Falkenberg, 2021 S.D. 59, ¶ 60,
965 N.W.2d at 597.
[¶37.] When sentencing a defendant to the state penitentiary, the circuit
court must “set forth in the judgment the names and specific amount of restitution
owed each victim.” SDCL 23A-28-3. Further, the court must determine the limits
of restitution at sentencing, as a defendant’s “due process rights attach at the time
of sentencing, when restitution is set, not . . . after sentencing. In setting
restitution, ‘[d]ue process safeguards, however, include the need for finality.’” State
v. Holsing, 2007 S.D. 72, ¶ 17, 736 N.W.2d 883, 887 (quoting Commonwealth v.
Wozniakowski, 860 A.2d 539, 545 (Pa. Super. Ct. 2004)). The trial court’s sentence
must comply with due process protections “by informing the defendant of the
restitution he faced at the time of sentencing.” Id. (quoting State v. Wolff, 438
N.W.2d 199, 202 (S.D. 1989)). Allowing the State to bring a defendant back into
court after sentencing for the purpose of “increasing restitution . . . after he was
sentenced would unlawfully increase his punishment and violate due process
protections.” Id. (citations omitted).
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[¶38.] In Falkenberg, we reversed a restitution order that required the
defendant to pay “up to $40,000 for future counseling expenses for all three of the
victim’s family members” because the order was not supported by any evidence in
the record or based on a request by the State. 2021 S.D. 59, ¶¶ 59–60, 965 N.W.2d
at 597. We explained that the “circuit court’s restitution order imposed arbitrary
caps without specifying timeframes or mechanisms by which specific amounts to be
reimbursed . . . to [the victim]’s family could be ascertained.” Id. ¶ 62, 965 N.W.2d
at 598. We then remanded the restitution order for an evidentiary hearing for the
court to determine “a projected amount based upon evidence submitted to the court,
or language setting forth the parameters or contingencies that must be met so that
such amounts can be ascertained by a definitive point in time.” Id. ¶ 63 n.20, 965
N.W.2d at 598 n.20.
[¶39.] At the time of sentencing, the children had not engaged in any
counseling and no evidence was presented showing that any of the children would
engage in future counseling. As a result, the circuit court did not identify a
projected amount for these counseling costs or any parameters or contingencies
allowing such amounts to be ascertained at a definitive time. Because the circuit
court failed to order an ascertainable amount of restitution for the children’s
counseling costs, we reverse the restitution order and remand for a restitution
hearing and any corresponding restitution order consistent with this opinion.
b. Lost Wages
[¶40.] Restitution in criminal cases is governed by SDCL chapter 23A-28. “It
is the policy of this state that restitution shall be made by each violator of the
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criminal laws to the victims of the violator’s criminal activities to the extent that
the violator is reasonably able to do so.” SDCL 23A-28-1. Additionally, under the
South Dakota Constitution, a victim has “[t]he right to full and timely restitution in
every case and from each offender for all losses suffered by the victim as a result of
the criminal conduct[.]” S.D. Const. art. VI, § 29. This Court has held that “South
Dakota’s restitution statutes require a causal connection between a defendant’s
crime and a victim’s damages.” State v. Joyce, 2004 S.D. 73, ¶ 16, 681 N.W.2d 468,
471 (citations omitted).
[¶41.] “Restitution” is the “full or partial payment of pecuniary damages to a
victim[.]” SDCL 23A-28-2(4). “Pecuniary damages” are broadly defined as “all
damages which a victim could recover against the defendant in a civil action arising
out of the same facts or event[.]” SDCL 23A-28-2(3). A “victim” is “any person . . .
who has suffered pecuniary damages as a result of the defendant’s criminal
activities[.]” SDCL 23A-28-2(5). Further, the South Dakota Constitution, in a case
involving a minor victim, defines the term “victim” to “include[] any spouse, parent,
child, sibling, or as designated by the court, grandparent, grandchild, or guardian.”
S.D. Const. art. VI, § 29.
[¶42.] Tanya, as the parent of B.S., requested $6,514.96 in lost wages,
reporting that she had taken 31 days of unpaid leave from work for meetings
related to this case and to take care of the children when they were too anxious to
go to school. Although Janes objected to Tanya’s request for lost wages at
sentencing, the State presented sufficient evidence to allow the court to be
reasonably satisfied that such restitution was proper—including Tanya’s victim
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impact statement and payroll documentation—to find that Tanya was a collateral
victim of Janes’s crime, and to order Janes to pay $2,000 in restitution for Tanya’s
lost wages.
[¶43.] Additionally, the record supports the circuit court’s determination that
there was a causal connection between Janes’s crime and Tanya’s lost wages. The
record shows that Janes’s crime of abuse or cruelty to a minor inflicted symptoms of
anxiety on the children, which caused them to miss school days. Tanya claimed
that she missed multiple work days related to these anxiety symptoms, as she had
to take off work on the days the children missed school. On this record, the circuit
court did not abuse its discretion in ordering Janes to pay $2,000 in restitution for
those lost wages.
Ineffective assistance of counsel on direct appeal
[¶44.] Janes argues he was denied his Sixth Amendment right to effective
assistance of counsel at trial because his counsel failed to object to the admission of
the Interview and Report that contained inadmissible hearsay and other act
evidence. Janes argues his claim is proper for direct appeal because there is no
In support of Janes’s argument that there was insufficient evidence of a causal connection between Tanya’s damages and the crime, Janes relies on State v. Joyce, 2004 S.D. 73, ¶ 16, 681 N.W.2d at 471, which is inapposite here. In Joyce, the defendant rear-ended the victim’s vehicle, fled the scene, and was later apprehended. Id. ¶ 2–3, 681 N.W.2d at 469. The defendant pled guilty to leaving the scene of an accident and was ordered to pay restitution for vehicle damages and medical expenses. Id. ¶¶ 4, 7, 681 N.W.2d at 469. We reversed the restitution award because the victim’s damages were not caused by his crime of leaving the scene of an accident. Id. ¶ 10, 681 N.W.2d at 469–70. -17- #30974
reasonable strategy that could account for failing to object to evidence the defense
had already fought to exclude.
[¶45.] Normally, we do not review a claim for ineffective assistance of counsel
on direct appeal. State v. Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d 706, 714 (citation
omitted). But even if we were to review the ineffective assistance claim on direct
appeal, we have already determined that any error in admitting the hearsay and
other act evidence in the Interview and Report was not prejudicial.
[¶46.] “[T]o be entitled to relief on a claim of ineffective assistance of counsel,
a defendant must show both that his counsel provided ineffective assistance and
that he was prejudiced as a result.” State v. Stevens, 2024 S.D. 3, ¶ 31, 2 N.W.3d
372, 382 (citation omitted). We have held that the showing of prejudice under
Strickland v. Washington, 466 U.S. 668 (1984), “is the same as that required to
establish prejudice under plain error review.” Neels v. Dooley, 2022 S.D. 4, ¶ 15,
969 N.W.2d 729, 735. Therefore, our determination that the admission of the
hearsay and other act evidence was not prejudicial precludes an ineffective
assistance of counsel claim related to counsel’s failure to object to this evidence.
Conclusion
[¶47.] We affirm the evidentiary issues raised by Janes on plain error review.
We also affirm the circuit court’s sentence and restitution order for $2,000 in lost
wages. We reverse the circuit court’s order of restitution for the children’s
counseling expenses and remand for a restitution hearing consistent with this
opinion.
[¶48.] SALTER, DEVANEY, MYREN, and GUSINSKY, Justices, concur.
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