#28198-a-LSW 2017 S.D. 93
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BERTON C. TOAVS, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA
THE HONORABLE JEROME A. ECKRICH, III Retired Judge
MARTY J. JACKLEY Attorney General
MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
PAUL EISENBRAUN of Grey & Eisenbraun Rapid City, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017 OPINION FILED 12/27/17 #28198
WILBUR, Retired Justice
[¶1.] Berton Toavs appeals his sentences issued on two counts of first-degree
manslaughter in violation of SDCL 22-16-15(3). Toavs argues the sentencing court
abused its discretion in ordering him to serve two consecutive sentences of 110 and
100 years. According to Toavs, the sentencing court did not adequately consider
whether Toavs was capable of rehabilitation prior to imposing the sentences. We
conclude the sentencing court did not abuse its discretion and affirm Toavs’s
sentences.
Background
[¶2.] On April 26, 2016, Toavs shot and killed his girlfriend Eliza Edgins
and his friend Nathan Gann at Toavs’s home in Faith, South Dakota. Toavs and
Edgins were in an off-and-on romantic relationship for some time, and Gann had
been staying at Toavs’s home for approximately six weeks prior to the incident.
During the time Gann had been staying with Toavs, a romantic relationship
developed between Edgins and Gann. Gann and Edgins apparently planned to
leave South Dakota and continue their relationship. After hearing this news, Toavs
left the house. He returned the following morning. Toavs and Edgins argued.
Edgins told Toavs that he meant nothing to her and that she and Gann were going
to be together. Angered, Toavs went to his bedroom and grabbed his .45 caliber Colt
revolver. Toavs returned to the living room and shot Edgins multiple times. He
then shot Gann, who had been sleeping on the living room floor. Both Edgins and
Gann died from the gunshot wounds inflicted by Toavs.
-1- #28198
[¶3.] Toavs confessed to killing both Edgins and Gann, and he was indicted
April 27, 2016, on two counts of premeditated first-degree murder. Subsequently,
on December 21, 2016, Toavs signed a written plea agreement with the State.
Toavs agreed to: (1) plead guilty to two counts of first-degree manslaughter, each a
class C felony, in violation of SDCL 22-16-15(2);∗ (2) establish that his guilty pleas
were free and voluntary and provide a sufficient written factual basis; (3) waive his
right to a trial within 180 days of his initial appearance; and (4) waive his right to
appeal. In return, the State dismissed both charges of first-degree murder and
refrained from filing any additional charges. Toavs and the State also agreed to
jointly recommend that Toavs’s sentences on the two counts of first-degree
manslaughter run consecutive to each other and that the two convictions be reduced
to two separate judgments. However, Toavs and the State remained free to
comment on the appropriate sentence and to present aggravating and mitigating
evidence at the time of sentencing.
[¶4.] The sentencing court held a hearing on March 15, 2017. The State and
Toavs each presented evidence of aggravation and mitigation. After considering
Toavs’s presentence investigation report, the sentencing court imposed a sentence of
110 years on one conviction of first-degree manslaughter and a sentence of 100
years on the second conviction. The court ordered the sentences to run consecutive
to each other.
∗ The record reflects that Toavs pleaded guilty to two counts of first-degree manslaughter under SDCL 22-16-15(2), but the judgments of conviction reflect convictions for violating SDCL 22-16-15(3). -2- #28198
[¶5.] Toavs appeals his sentences, raising one issue: Whether the sentencing
court abused its discretion in failing to consider the possibility of rehabilitation
prior to sentencing.
Standard of Review
[¶6.] Sentencing courts “exercise broad discretion when deciding the extent
and kind of punishment to be imposed.” State v. Bausch, 2017 S.D. 1, ¶ 39, 889
N.W.2d 404, 415, cert. denied, 138 S. Ct. 87 (2017) (quoting State v. Rice, 2016 S.D.
18, ¶ 23, 877 N.W.2d 75, 83). Therefore, “[w]e generally review a circuit court’s
decision regarding sentencing for abuse of discretion. An abuse of discretion is a
fundamental error of judgment, a choice outside the range of permissible choices.”
State v. Talla, 2017 S.D. 34, ¶ 8, 897 N.W.2d 351, 353 (citations omitted).
Analysis
[¶7.] Before we examine Toavs’s issue, we address the State’s argument that
Toavs waived the right to appeal his sentences in a written plea agreement. The
plea agreement stated that Toavs “will waive his right to appeal herein.”
“Generally, plea agreements are contractual in nature and are governed by ordinary
contract principles.” Kleinsasser v. Weber, 2016 S.D. 16, ¶ 30, 877 N.W.2d 86, 96
(quoting State v. Waldner, 2005 S.D. 11, ¶ 8, 692 N.W.2d 187, 190). As such, the
Eighth Circuit Court of Appeals has stated that “[p]lea agreements will be strictly
construed and any ambiguities in these agreements will be read against the
Government and in favor of a defendant’s appellate rights.” United States v. Andis,
333 F.3d 886, 890 (8th Cir. 2003); accord Campion v. Parkview Apartments, 1999
S.D. 10, ¶ 34, 588 N.W.2d 897, 904 (“Ambiguities arising in a contract should be
-3- #28198
interpreted and construed against the scrivener.”); United States v. Banks, 743 F.3d
56, 58 (3rd Cir. 2014) (appellate waivers are construed strictly); United States v.
Keele, 755 F.3d 752, 754 (5th Cir. 2014) (appellate waivers should be construed
narrowly against the Government); United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (quoting Andis, 333 F.3d at 890) (appellate waivers are construed
against the Government and ambiguities resolved in favor of a defendant’s
appellate rights). Thus, “the burden of proof is on the Government to demonstrate
that a plea agreement clearly and unambiguously waives a defendant’s right to
appeal.” Andis, 333 F.3d 886 at 890. To meet this burden, it must be clear that
“the appeal falls within the scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily.” Id. at 889-90. “Even
when these conditions are met, however, we will not enforce a waiver where to do so
would result in a miscarriage of justice.” Id. at 890.
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#28198-a-LSW 2017 S.D. 93
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BERTON C. TOAVS, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA
THE HONORABLE JEROME A. ECKRICH, III Retired Judge
MARTY J. JACKLEY Attorney General
MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
PAUL EISENBRAUN of Grey & Eisenbraun Rapid City, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017 OPINION FILED 12/27/17 #28198
WILBUR, Retired Justice
[¶1.] Berton Toavs appeals his sentences issued on two counts of first-degree
manslaughter in violation of SDCL 22-16-15(3). Toavs argues the sentencing court
abused its discretion in ordering him to serve two consecutive sentences of 110 and
100 years. According to Toavs, the sentencing court did not adequately consider
whether Toavs was capable of rehabilitation prior to imposing the sentences. We
conclude the sentencing court did not abuse its discretion and affirm Toavs’s
sentences.
Background
[¶2.] On April 26, 2016, Toavs shot and killed his girlfriend Eliza Edgins
and his friend Nathan Gann at Toavs’s home in Faith, South Dakota. Toavs and
Edgins were in an off-and-on romantic relationship for some time, and Gann had
been staying at Toavs’s home for approximately six weeks prior to the incident.
During the time Gann had been staying with Toavs, a romantic relationship
developed between Edgins and Gann. Gann and Edgins apparently planned to
leave South Dakota and continue their relationship. After hearing this news, Toavs
left the house. He returned the following morning. Toavs and Edgins argued.
Edgins told Toavs that he meant nothing to her and that she and Gann were going
to be together. Angered, Toavs went to his bedroom and grabbed his .45 caliber Colt
revolver. Toavs returned to the living room and shot Edgins multiple times. He
then shot Gann, who had been sleeping on the living room floor. Both Edgins and
Gann died from the gunshot wounds inflicted by Toavs.
-1- #28198
[¶3.] Toavs confessed to killing both Edgins and Gann, and he was indicted
April 27, 2016, on two counts of premeditated first-degree murder. Subsequently,
on December 21, 2016, Toavs signed a written plea agreement with the State.
Toavs agreed to: (1) plead guilty to two counts of first-degree manslaughter, each a
class C felony, in violation of SDCL 22-16-15(2);∗ (2) establish that his guilty pleas
were free and voluntary and provide a sufficient written factual basis; (3) waive his
right to a trial within 180 days of his initial appearance; and (4) waive his right to
appeal. In return, the State dismissed both charges of first-degree murder and
refrained from filing any additional charges. Toavs and the State also agreed to
jointly recommend that Toavs’s sentences on the two counts of first-degree
manslaughter run consecutive to each other and that the two convictions be reduced
to two separate judgments. However, Toavs and the State remained free to
comment on the appropriate sentence and to present aggravating and mitigating
evidence at the time of sentencing.
[¶4.] The sentencing court held a hearing on March 15, 2017. The State and
Toavs each presented evidence of aggravation and mitigation. After considering
Toavs’s presentence investigation report, the sentencing court imposed a sentence of
110 years on one conviction of first-degree manslaughter and a sentence of 100
years on the second conviction. The court ordered the sentences to run consecutive
to each other.
∗ The record reflects that Toavs pleaded guilty to two counts of first-degree manslaughter under SDCL 22-16-15(2), but the judgments of conviction reflect convictions for violating SDCL 22-16-15(3). -2- #28198
[¶5.] Toavs appeals his sentences, raising one issue: Whether the sentencing
court abused its discretion in failing to consider the possibility of rehabilitation
prior to sentencing.
Standard of Review
[¶6.] Sentencing courts “exercise broad discretion when deciding the extent
and kind of punishment to be imposed.” State v. Bausch, 2017 S.D. 1, ¶ 39, 889
N.W.2d 404, 415, cert. denied, 138 S. Ct. 87 (2017) (quoting State v. Rice, 2016 S.D.
18, ¶ 23, 877 N.W.2d 75, 83). Therefore, “[w]e generally review a circuit court’s
decision regarding sentencing for abuse of discretion. An abuse of discretion is a
fundamental error of judgment, a choice outside the range of permissible choices.”
State v. Talla, 2017 S.D. 34, ¶ 8, 897 N.W.2d 351, 353 (citations omitted).
Analysis
[¶7.] Before we examine Toavs’s issue, we address the State’s argument that
Toavs waived the right to appeal his sentences in a written plea agreement. The
plea agreement stated that Toavs “will waive his right to appeal herein.”
“Generally, plea agreements are contractual in nature and are governed by ordinary
contract principles.” Kleinsasser v. Weber, 2016 S.D. 16, ¶ 30, 877 N.W.2d 86, 96
(quoting State v. Waldner, 2005 S.D. 11, ¶ 8, 692 N.W.2d 187, 190). As such, the
Eighth Circuit Court of Appeals has stated that “[p]lea agreements will be strictly
construed and any ambiguities in these agreements will be read against the
Government and in favor of a defendant’s appellate rights.” United States v. Andis,
333 F.3d 886, 890 (8th Cir. 2003); accord Campion v. Parkview Apartments, 1999
S.D. 10, ¶ 34, 588 N.W.2d 897, 904 (“Ambiguities arising in a contract should be
-3- #28198
interpreted and construed against the scrivener.”); United States v. Banks, 743 F.3d
56, 58 (3rd Cir. 2014) (appellate waivers are construed strictly); United States v.
Keele, 755 F.3d 752, 754 (5th Cir. 2014) (appellate waivers should be construed
narrowly against the Government); United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (quoting Andis, 333 F.3d at 890) (appellate waivers are construed
against the Government and ambiguities resolved in favor of a defendant’s
appellate rights). Thus, “the burden of proof is on the Government to demonstrate
that a plea agreement clearly and unambiguously waives a defendant’s right to
appeal.” Andis, 333 F.3d 886 at 890. To meet this burden, it must be clear that
“the appeal falls within the scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily.” Id. at 889-90. “Even
when these conditions are met, however, we will not enforce a waiver where to do so
would result in a miscarriage of justice.” Id. at 890.
[¶8.] From our review, the State has not met its burden that Toavs’s general
waiver of his “right to appeal herein” means that Toavs unambiguously waived his
right to appeal his sentences. The waiver language is ambiguous as to what
appellate rights Toavs specifically waived. See Read v. McKennan Hosp., 2000 S.D.
66, ¶ 23, 610 N.W.2d 782, 786 (stating mutual assent or a meeting of the minds is
needed for a contract to be binding); see also Hahn, 359 F.3d at 1325 (recognizing
the first step is determining if the disputed appeal falls within the scope of the
waiver). Because of this ambiguity, we strictly construe a reading of the waiver
against the State and in favor of Toavs’s appellate rights. See Andis, 333 F.3d at
890.
-4- #28198
[¶9.] We next turn to the merits of Toavs’s claim that the sentencing court
abused its discretion in not considering all of the legitimate ends of sentencing.
Toavs contends that the sentencing court did not consider the possibility of
rehabilitation when it imposed a combined sentence of 210 years. Toavs argues
that the sentencing court only considered retribution, as evidenced by its colloquy
before sentencing Toavs:
You know, when a person dies, the world loses more than one person. And when a person’s life is taken, those who remain behind the life—particularly the kids—the children in this case—that live in that world, they lose pieces, large pieces of their lives, too. So the consequences of the crimes that you’ve committed, the homicides of Eliza Edgins and Nathan Gann are not simply grievous, they’re incalculable.
[¶10.] We have stated that “[r]etribution, deterrence, incapacitation,
and rehabilitation are each legitimate penological goals.” Talla, 2017 S.D.
34, ¶ 14, 897 N.W.2d at 355 (citing Harmelin v. Michigan, 501 U.S. 957, 999,
111 S. Ct. 2680, 2704, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in
part and concurring in the judgment)). However, none of these goals have
preeminence over the others. State v. Anderson, 1996 S.D. 46, ¶ 31, 546
N.W.2d 395, 402. “[T]he sentencing court determines, on a case-by-case
basis, which theory is accorded priority.” Id. ¶ 31, 546 N.W.2d at 403.
Therefore, a sentencing court need not consider rehabilitation in every case.
Talla, 2017 S.D. 34, ¶ 14, 897 N.W.2d at 355.
[¶11.] Toavs’s capacity for rehabilitation “is a fact question to be decided by
the sentencing court.” Id. ¶ 13, 897 N.W.2d at 355 (quoting State v. Pulfrey, 1996
S.D. 54, ¶ 20, 548 N.W.2d 34, 39). “[F]actual determinations are subject to a clearly
-5- #28198
erroneous standard.” Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W. 846, 850
(quoting State v. Guthrie, 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203). Here, while the
court did not cite Toavs’s capacity for rehabilitation, it did consider Toavs’s
presentence investigation report and allowed Toavs to comment on this report prior
to sentencing. Toavs’s counsel also commented on Toavs’s capacity for
rehabilitation in support of a more lenient sentence and a sentence from which
Toavs would be eligible for parole. The sentencing court listened to testimony
regarding the support Toavs would have if he were to be rehabilitated and released
on parole. Finally, the sentence itself reflects the sentencing court had
rehabilitation in mind when fashioning an appropriate sentence. The court could
have granted the State’s request and imposed a life sentence for each count. See
SDCL 22-16-15; SDCL 22-6-1. Yet, the court imposed a sentence that was
substantially similar to that recommended in the presentence investigation report
and that was for considerably less time than the maximum allowed. Thus, we are
not convinced that the [sentencing] court clearly erred.
[¶12.] Still, Toavs contends that the sentencing court deprived him of the
possibility of rehabilitation in sentencing him to 210 years combined—a sentence no
person could survive. In this regard, Toavs fails to appreciate that a court must
consider many factors relevant to crafting a sentence, not just rehabilitation. “In
fashioning an appropriate sentence, courts must also look to the character and
history of the defendant. This requires an examination of a defendant’s ‘general
moral character, mentality, habits, social environment, tendencies, age, aversion or
inclination to commit crime, life, family, occupation, and previous criminal record.’”
-6- #28198
Rice, 2016 S.D. 18, ¶ 27, 877 N.W.2d at 84 (quoting State v. Bruce, 2011 S.D. 14, ¶
29, 796 N.W.2d 397, 406).
[¶13.] The sentencing court in this case considered all of the factors, as
articulated in the presentence investigation report, before sentencing Toavs. The
report specifically addressed the severity of Toavs’s offenses and his prospect for
rehabilitation. So even though Toavs’s total sentence is longer that his expected
lifespan, the sentencing court’s imposition of a sentence to a term of years rather
than life gives Toavs an opportunity to rehabilitate himself. See, e.g., State v.
Lemley, 1996 S.D. 91, ¶ 15, 552 N.W.2d 409, 413.
[¶14.] “Absent specific authority, it is not the role of an appellate court to
substitute its judgment for that of the sentencing court as to the appropriateness of
a particular sentence.” State v. Blair, 2006 S.D. 75, ¶ 20, 721 N.W.2d 55, 61
(quoting State v. Garber, 2004 S.D. 2, ¶ 13, 674 N.W.2d 320, 323). Therefore, we
cannot agree with Toavs’s claim that the sentencing court abused its discretion
during sentencing. There is nothing in the record to suggest the sentencing court
made “a choice outside the range of permissible choices.” Talla, 2017 S.D. 34, ¶ 8,
897 N.W.2d 351, 353 (quoting Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d at 83). The
sentencing court did not abuse its discretion in sentencing Toavs to serve
consecutive sentences of 110 and 100 years.
[¶15.] We affirm.
[¶16.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
[¶17.] JENSEN, Justice, did not participate.
-7-