author: VANDE WALLE, Chief Justice.

text:
    2005 ND 25
    STATE of North Dakota, Plaintiff and Appellee v. Mark Joseph TUPA, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Brandon Kok, Defendant and Appellant.
    Nos. 20040106, 20040132.
    Supreme Court of North Dakota.
    Jan. 24, 2005.

      James O. Johnson, State’s Attorney, Stanton, ND, for plaintiff and appellee.
    Todd A. Schwarz, Bismarck, ND, for defendant and appellant Mark Joseph Tupa.
    Loren Cay McCray, Bismarck, ND, for defendant and appellant Brandon Kok.
   VANDE WALLE, Chief Justice.

[¶ 1] Mark Tupa and Brandon Kok appealed from restitution orders that directed them each to pay $12,000 in victim compensation stemming from their pleading guilty to felony criminal mischief. Both appeals raise identical issues, whether the trial court abused its discretion in determining the amount of restitution or the defendants’ ability to pay restitution. We affirm the restitution orders.

[¶ 2] Tupa and Kok pleaded guilty to felony criminal mischief resulting from their role in the destruction of a rural farmstead owned by Terence Schmidt and the Schmidt family. In addition to Tupa and Kok, two juveniles were involved in the crime. Criminal judgments entered against Tupa and Kok ordered them each to pay 1/4 of an amount to be determined at a restitution hearing. At this restitution hearing, Schmidt testified that damage to his real and personal property, plus a $30 per hour allotment for cleaning costs, totaled $93,275.27. Schmidt went to local businesses to obtain the costs of replacing damaged items and went to a local contractor for an estimate to repair the house. Schmidt, therefore, used replacement values to calculate many of his damages. The defendants presented expert testimony regarding the amount of damage to the real and personal property. These experts testified the real property diminished in value by $15,000, while the Schmidt family’s personal property decreased in value by $9,349, for an overall damage total of $24,349. Tupa and Kok were each ordered to pay $12,000 in compensation to the owners of the farmstead, payable at $500 per month during their 24-month probations. Thus, the district court placed total damages at $48,000.

I.

[¶ 3] Under N.D.C.C. § 12.1-32-08(1), courts have the authority to order a criminal defendant to pay restitution. Section 12.1-32-08(1), N.D.C.C., states, in part:

Before imposing restitution or reparation as a sentence or condition of probation, the court shall hold a hearing on the matter with notice to the prosecuting attorney and to the defendant as to the nature and amount thereof. The court, when sentencing a person adjudged guilty of criminal activities that have resulted in pecuniary damages, in addition to any other sentence it may impose, shall order that the defendant make restitution to the victim or other recipient as determined by the court, unless the court states on the record, based upon the criteria in this subsection, the reason it does not order restitution or orders only partial restitution. In determining whether to.order restitution, the court shall take into account:
a. The reasonable damages sustained by the victim or victims of the criminal offense, which damages are limited to those directly related to the criminal offense and expenses actually incurred as a direct result of the defendant’s criminal action....
b. The ability of- the defendant to restore the, fruits of the criminal action or to pay monetary reparations, or to otherwise take action to restore the victim’s property.
c. The likelihood that attaching a condition' relating to restitution or reparation will serve a valid rehabili-tational purpose in the case of the particular offender considered.

Thus, under N.D.C.C. § 12.1-32-08(1), a restitution hearing is required to be held prior to imposing restitution as a sentence, and this provision is applicable “in situations where'the defendant either is found guilty or pleaded guilty to a criminal charge and the amounts or the issues of restitution or reparation are uncertain or are in dispute.” State v. Thorstad, 261 N.W.2d 899, 901 (N.D.1978). This Court’s review of a restitution order is limited to whether the district court acted within the limits set by statute, which is similar to an abuse of- discretion standard. State v. Bingaman, 2002 ND 210, ¶ 4, 655 N.W.2d 57; State v. Kensmoe, 2001 ND 190, ¶7, 636 N.W.2d 183. A district court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, if its decision is not the product of a rational mental process leading to a reasoned determination, or if it misinterprets or misapplies the law. Bingaman, at ¶ 4; Ken-smoe, at ¶ 7. “[T]he State has the burden in a restitution hearing to prove the amount of restitution by a preponderance of the evidence.” State v. Gill, 2004 ND 137, ¶ 7, 681 N.W.2d 832.

[¶ 4] Tupa and Kok assert the district court abused its discretion in setting the amount of restitution by improperly relying on the victim’s damage figures, which were based on replacement values. Replacement cost is defined as the cost of acquiring an asset that is as equally useful or productive as an asset currently held. Black’s Law Dictionary 349 (7th ed.1999). To avoid giving the victim a windfall, Tupa and.Kok believe the district court should have relied upon costs to repair or diminutions in fair market value to calculate restitution. The defense’s experts applied these techniques in their calculations.

[¶ 5] At the restitution hearing, Tupa and Kok presented a number of examples where the district court’s reliance on Schmidt’s valuations or replacement costs would have possibly been erroneous. Tupa and Kok uncovered, for instance, that Schmidt claimed over $20,000 in damages to a camper, yet he paid only $4,700 for this item, which had. a fair market value of $3,900 at the time it was destroyed. Another item, a deep freeze, only had a dent on its side and was still in working order, but $350 of replacement costs .were reported. Tupa and Kok pointed out the victim did not -inspect some of the items listed as damaged, though he claimed $1,000 for these miscellaneous items. They emphasized that very few of the items reported as damaged were new. Finally, the defendants noted that Schmidt allocated 193 hours, at $30 per hour, for cleaning his property, despite no specialized labor being required. The defense attorneys, therefore, effectively highlighted many areas where Schmidt’s replacement values and claimed expenses were potentially inappropriate.

[¶ 6] The district court judge commented regarding the appropriateness of using replacement costs, as opposed to diminutions in fair market value, to calculate restitution:

I do not believe [diminution in fair market value] is a correct measure of damaging restitution in a criminal case because I believe victims are. entitled to be restored. That doesn’t mean- that if you have property, carpet that’s 12 years old, that they’re entitled to have new carpet restored but they are to be restored to the condition that it had been in and in this particular case that would be my decision. I’ll allow you to present evidence that would relate to [diminution in fair market .value] but a crime victim would be treated differently, I believe, than if you were bi'inging a tort action.
What I’m saying is I don’t think [diminution in fair market value is] a fair measure. I don’t think that a crime victim is required then to take diminution in value because they’re entitled to be restored and that’s my decision with regard to that and. you can certainly take exception.
Well, I don’t think that a crime victim is somehow required to sell off their possessions at auction price rates, that somehow they don’t deserve any more compensation for that and you can continue to take exception with -it but — you know, that’s fine.

[¶ 7] Despite this unequivocal language, it is apparent the trial judge listened to, and was persuaded by, the defendants’ complaints regarding Schmidt’s figures. The trial court’s restitution award was certainly not the 'product of a blind reliance on Schmidt’s data. Indeed, the trial court did not exclusively rely on the testimony offered by Schmidt or the defense experts in setting restitution. The trial court arrived at its own measure of damages, which was between the values offered by Schmidt and the defense witnesses. Cf. City of Jamestown v. Leevers Supermarkets, 552 N.W.2d 365, 375 (N.D.1996) (“We ordinarily sustain an award of damages [in an eminent domain proceeding] if it is' within the range of the evidence presented to the trier of fact.”); City of Devils Lake v. Davis, 480 N.W.2d 720, 725 (N.D.1992) (same). Implicit in such a calculation is the- utilization of multiple measures of damages, designed to make a particular victim whole in the varying and unique aspects of his loss. The trial judge placed restitution at $48,000. This represents a $45*275.27 reduction from Schmidt’s replacement-cost figures, which-more than covers the specific complaints identified above.

[¶ 8] Examining the restitution statute, the Legislature authorized restitution in an amount that would be commensurate with “reasonable damages,” which is to be limited to those “expenses actually incurred as a direct result of the defendant’s criminal action.” See N.D.C.C. § 12.1-32-08(l)(a). Reasonableness in this context cannot be reduced to any one formulation. Given the wide spectrum of factual situations and damages, and mindful of the term “expenses actually incurred,” trial courts are vested with a wide degree of discretion in arriving at restitution awards. While diminution in value remains one of the measures of damage, there are situations where replacement costs will be needed to make a criminal victim whole or, stated differently, to reimburse a victim for reasonable expenses “actually incurred.” For example, if a person has owned a set of dishes for the previous decade, the fair market value of this item would be very small. However, a victim who has these dishes destroyed will have little choice but to procure replacement dishes, which are presumably not readily, or desirably, found in a secondary market. The same can be said of many personal items, such as clothing or certain home furnishings like sofas, mattresses, or bed sheets. The Schmidt family suffered many such personal losses.

[¶ 9] In other situations, replacement costs will be excessive and diminutions in fair market value or repair costs will be in order. For example, if an item, such as the deep freeze mentioned above, can be cost-effectively repaired or restored, this approach should be favored over awarding replacement value. Further, if an item has a ready and acceptable secondary market, such as exists for automobiles or certain pieces of equipment or machinery, diminution in fair market value may be an adequate measure of the victim’s reasonable expenses actually incurred. We refrain from constraining a trial judge’s discretion with any universal pronouncement on how to properly arrive at reasonable restitution. Rather, the factual situation at hand must be examined to determine whether the trial judge acted according to reason. Where, as here, an array of losses occur, we will not require the trial court to itemize each intricate, individual calculation. The trial judge’s restitution award is within the range of reasonableness and is supported by a preponderance of the evidence, and, therefore, the trial court acted within the confines of the restitution statute and did not abuse its discretion.

[¶ 10] Our holding today is within the spectrum of approaches taken by other states confronted with the issue of calculating criminal restitution. Some states statutorily mandate a precise standard to be , used. See Cal.Penal Code § 1202.4(f)(3)(A) (replacement cost or, if possible, actual cost to repair); Wis. Stat. § 973.20(2)(b) (replacement cost or repair cost, unless diminution in value is greater); Del.Code Ann. tit. 11,. § 224(1) (value means market value or, if not ascertainable, replacement cost). Other states have largely proceeded via case law. See Vermont v. Curtis, 140 Vt. 621, 443 A.2d 454, 455 (1982) (measure of damages to an automobile is diminution in fair market value); Sutton v. Georgia, 190 Ga.App. 56, 378 S.E.2d 491, 492 (1989) (same); North Carolina v. Maynard, 79 N.C.App. 451, 339 S.E.2d 666, 667-68 (1986) (same); Illinois v. Hamilton, 198 Ill.App.3d 108, 144 Ill.Dec. 426, 555 N.E.2d 785, 789 (1990) (out-of-pocket losses and expenses should be determined by the fair market value of the property at. the time of the crime, but fair market value of destroyed items could be determined by what an insurance company would pay under a policy providing for equal-value replacement); Arizona v. Ellis, 172 Ariz. 549, 838 P.2d 1310, 1311-12 (Ct.App.1992) (fair market value of property at time of loss will usually reflect victim’s actual loss, but this may not always be the case and a court has wide discretion in setting restitution);' Florida v. Hawthorne, 573 So.2d 330, 332-33 (Fla.1991) (victim’s loss and fair market value -of property at time of crime will normally be the same, but situations exist where market value inadequately reflects loss and consideration of depreciation is inequitable). To the’ extent the defendants rely upon the cases listed above that utilize diminution in fair market value, it is noteworthy that many of these cases involve items, such as automobiles, that possess viable secondary markets, while other of these cases explicitly allow for exceptions to the fair-market-value formulation. Our holding, which allows for the use of replacement costs where appropriate, fits within the range of approaches taken by many of these states. See also Colorado v. Stafford, 93 P.3d 572, 575-76 (Colo.Ct.App.2004) (replacement cost is the proper measure of restitution where victim must' or will replace an item that is not readily replaceable in a broad and active market at a fair-market-value cost).

[¶ 11] Tupa and Kok also analogize that, because repair, costs or diminutions in fair market value are used at civil law to- measure damage to property in a tort action, they should be utilized in the criminal restitution context as well. See N.D.C.C. § 32-03-09.1. The defense’s reliance on this statute is misplaced. A more applicable criminal statute, N.D.C.C. § 32-03-09.2, appears immediately after the civil provision cited by the defense. The civil tort statute, N.D.C.C. § 32-03-09.1, explicitly references repair costs and diminutions in fair market value, but N.D.C.C. § 32-03-09.2, which provides for criminal liability for willful property damage, simply states that “[a]ny person convicted of criminal mischief shall be responsible for the actual damages [caused] to real and personal property.” We believe the Legislature chose the broader term “actual damages” because it sought to ensure that criminal victims and courts would have greater flexibility in measuring damages in cases of criminal mischief. Implicitly, this flexibility encompasses use of replacement costs, among other measures, where appropriate.

[¶ 12] Further, there is a fundamental connection between the aim of N.D.C.C. § 32-03-09.2 and N.D.C.C. § 12.1-32-08, the criminal restitution statute. And, specifically, there is a strong correlation between the term “actual damages” in N.D.C.C. § 32-03-09.2 and the requirement that damages be “actually incurred” under the restitution statute. Thus, if replacement costs are applicable in one of these contexts, it seems only reasonable to permit their use in the other context as well. States that do limit restitution awards to the damages recoverable in civil actions seem to do so expressly via statute. See, e.g., Grace v. Alabama, 2004 WL 1909333 (Ala.Crim.App.2004) (discussing Ala.Code §§ 15-18-67, 15-18-66, which expressly limit restitution awards to the damages recoverable in a civil action); Jackson v. Georgia, 250 Ga.App. 617, 552 S.E.2d 546, 547 (2001) (same limitation under Ga.Code Ann. §§ 17-14-9, 17-14-2(2); Oregon v. Wilson, 193 Or.App. 506, 92 P.3d 729, 730 (2004) (same limitation under Or. Rev.Stat. §§ 137.106(1), 137.103(2)). North Dakota does not have such a statute.

II.

■ [9] [¶ 13] Tupa and Kok also claim the district court abused its discretion in determining each defendant’s ability to pay restitution. As a result, they argue the $500 monthly payments are excessive. Tupa and Kok contend they are full-time college students with limited financial resources. Por example, Tupa testified he would make approximately $300 per month during his probationary period, but he anticipated making considerably more upon completion of his studies. Kok testified he was making $75 per month at the time of the restitution hearing, that he would make $12 per hour during the summer months, and that he would be. unemployed during the fall and winter semesters. The defense argues that setting the. restitution payments at a high level only places the probationers in a situation where they are likely, to fail and threatens the Schmidt family’s opportunity to be repaid.

[If 14] Section 12.1-32-08(1), N.D.C.C., states that “[t]he court shall fix the amount of restitution or reparation, which may not exceed an amount the defendant can or will be able to pay, and shall fix the manner of performance of any condition or conditions of probation established pursuant to this subsection.” The defendant has the burden to raise and prove an inability to pay restitution at both the initial restitution hearing and any subsequent revocation proceedings triggered by the defendant’s failure to pay ordered restitution. State v. Gill, 2004 ND 137, ¶ 14, 681 N.W.2d 832.

[¶ 15] Essentially, the defendants’ argument reduces to the following: The trial court abused its discretion by setting restitution payments at a level that will effectively force the defendants to delay their academic pursuits, which, in turn, threatens the Schmidt family’s reimbursement. This argument lacks merit. Although a college education is desirable, it does not take precedence over answering for one’s criminal’misdeeds. As the district court correctly reasoned, the defendants’ future choices are l'imitéd by their past actions. Under the restitution statute, a restitution payment can be based on what one “can or will be able to pay,” which implies a consideration of future factors. Although the defendants may not currently possess the means to pay $500 per month, they can nonetheless seek gainful employment and begin repayment. We do not believe that delaying college, if that is necessary, will threaten the Schmidt family’s award. The defendants possess the ability to successfully meet this obligation much sooner than the end of college. The district court did not abuse its discretion in setting the restitution payments.

[¶ 16] We affirm the restitution orders.

[¶ 17] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ„ and EVERETT NELS OLSON, S.J., concur.

[¶ 18] The Honorable EVERETT NELS OLSON, S.J., sitting in place of SANDSTROM, J., disqualified.,


source: Caselaw Access Project

author: KONENKAMP, Justice. GILBERTSON, Chief Justice ZINTER, Justice

license: Public Domain

text:
    2004 SD 131
    The PEOPLE of the State of South Dakota, ex rel SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES In the Interests of J.G.R., a Minor Child, and Concerning M.R. and C.R., Respondents.
    No. 23209.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 28, 2004.
    Decided Dec. 22, 2004.

      Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Marty J. Jackley and Jason Smiley, Rapid City, South Dakota, Attorneys for appellant C.R.
    Donald E. Covey, Winner, South Dakota, Attorney for minor child J.G.R.
   KONENKAMP, Justice.

£¶ 1.] C.R. (mother) appeals the termination of her parental rights. We affirm.

FACTS

[¶ 2.] On April 25, 2002, mother took the day off from her employment in Winner, South. Dakota. Her daughter, J.G.R., age eight, had been expelled from school. In an apparent effort to leave her with some other, caretaker, mother had the child pack a suitcase. They traveled to Hot Springs, South Dakota. At the Fall River Feedlot, mother dropped off the child and drove away. Carrying her suitcase, J.G.R. walked into the office by herself and sat down. After half an hour, an office employee noticed the child sobbing. She had a note her mother had told her to give to “Connie,” stating, “Looking for someone who cares.” No one named Connie worked there. Mother knew the manager of the feedlot, but she hqd made no prior arrangements for the child to stay there; no one at the feedlot had prior knowledge that the child was going to be left there; and no one had any idea that they would be expected to care for the child. The child had been to the feedlot once or twice in the past.' J.G.R. was taken into protective custody by the sheriffs office. Mother was eventually located six hours later, one hundred fifty miles away, in Belvidere, South Dakota.

[¶ 3.] Mother received a court appointed attorney, Rose Ann Wendell, who appeared at the advisory hearing. Wendell was replaced by private counsel, Stanley Whiting. The adjudicatory hearing was continued as a result. Later, Whiting moved to withdraw based on mother’s request. A1 Arendt subsequently appeared on behalf of mother at a scheduling hearing. Shortly thereafter, Arendt also moved to withdraw based on a conflict with mother. Arendt was allowed to withdraw but the trial court indicated that the adjudicatory hearing would proceed as scheduled. Mother was not present at the hearing on the motion to withdraw. Mother filed a pro se motion for a continuance to obtain counsel. That motion was denied. The trial court adjudicated J.G.R. an abused or neglected child through the acts and/or omissions of mother.

[¶ 4.] After additional attorneys appeared for mother, this matter was set for a dispositional hearing. Mother was eventually represented by attorneys Marty Jackley and Jason Smiley at the disposi-tional hearing. The trial court heard evidence concerning mother’s prior decisions to leave J.G.R. with other caretakers for extended periods of time. Mother also failed to timely obtain a psychological evaluation or follow through with the recommendations. Mother was diagnosed with bipolar disorder, general anxiety disorder, and borderline personality traits. Mother took no steps to follow through with any treatment plan for her conditions. Additionally, mother refused to accept three different Department of Social Services (DSS) case service plans. Instead, she proposed her own plan to DSS to return the child or “see you later in federal court.” The trial court terminated mother’s parental rights.

ANALYSIS

ISSUE ONE

[¶ 5.] Whether the trial court’s decision to proceed with the adjudicatory hearing despite mother’s lack of counsel was a violation of her statutory or constitutional rights.

[¶ 6.] Mother appeared at the adjudicatory hearing without counsel. The trial court had previously allowed attorney Ar-endt to withdraw without appointing substitute counsel. At this adjudicatory hearing, mother persisted in her demands that she 'did not want' to proceed without the benefit of counsel. Although the trial court had initially appointed her counsel, that attorney was replaced by privately retained counsel. However, mother’s privately retained attorney was allowed to withdraw before the adjudicatory phase without the requirement of substitute counsel by the trial court. Mother did not obtain counsel before the adjudicatory hearing. As a result, and despite her objections, mother proceeded at the adjudicatory hearing pro se.

[¶ 7.] The following statements were made to the trial court by mother:

I don’t — I don’t know, but without right to counsel — you have noticed I am not very good at courtroom procedure, and. I need to talk to counsel before I even — I probably should even shut up my mouth. I, you know, I am sorry, my daughter, when it comes to my daughter, I want the best and I want somebody to aggressively represent me.
Objection. I am objecting to every witness, everything that the State calls. Every motion except for my motions for continuance and motion for change of venue, and motions for increased visitations. I request that they be tabled until I can obtain counsel.

[¶ 8.] The trial court proceeded in this matter. Its reasoning was summarized as follows:

I appointed an attorney for you out of Pierre at your request, which I never do down here. So I went above and beyond what I would normally do to give you the representation that you wanted. And then, for some reason, that representation did not work out. I don’t know what happened. I think that you then went and hired an attorney, so she was allowed to withdraw as counsel. So, the Court then went over and above what it normally does to get you an attorney to represent you in this case.

Essentially, the trial court determined that its obligation to ensure counsel for the adjudicatory hearing had ended.

[¶ 9.] SDCL 26-7A-31 specifically provides for a court appointed attorney for parents in an abuse and neglect proceeding. In addressing the right to effective assistance of counsel provided by this statute, this Court has adopted criminal procedures as a means to safeguard this right. See Interests of A.D., 2004 SD 39, ¶ 10, 678 N.W.2d 594, 598 (adopting Korth, 2002 SD 101, 650 N.W.2d 528 procedures to abuse and neglect appeals because “the difference in the nature of the case, i.e. civil rather than criminal, makes no difference in the duties court-appointed counsel owes his or her client”). Therefore, it is instructive to consider how this situation could have been dealt with in a criminal proceeding.

[¶ 10.] On this record, it is clear that mother was having conflicts with the various attorneys employed to represent her. However, in the criminal context such problems, which can lead to delay in a proceeding, can be dealt with through either the trial court’s denial of a motion to withdraw by counsel or a denial of a motion to substitute counsel made by the defendant. See State v. Loftus, 1997 SD 94, ¶ 14, 566 N.W.2d 825, 828 (affirming the trial court’s denial of defense counsel’s motion to withdraw after breakdown in attorney client relationship caused by defendant’s failure to cooperate with the attorney); State v. Irvine, 1996 SD 43, ¶ 12, 547 N.W.2d 177,181 (affirming trial court’s denial of substitute counsel when it would protract the litigation and it was defendant who caused the disruption). The trial court did not use these procedures to deal with mother’s revolving door of attorneys.

[¶ 11.] The criminal context also highlights the important consequence of proceeding pro se and what must be done in order to make such a decision.

At a minimum a defendant must be aware of the dangers and disadvantages of self-representation. On appeal, waiver of the right to counsel will not be •found knowingly and intelligently made unless the trial court (1) warns the defendant of the dangers of self-representation or, (2) unless the record indicates circumstances from which this court can find the defendant was aware of the danger and made a knowing and intelligent waiver. While in some cases there may be a record showing a defendant is aware of the pitfalls .of self-representation, an admonition from the trial court is preferred as it eliminates any doubt.

State v. Bruch, 1997 SD 74, ¶15, 565 N.W.2d 789, 792. Additionally, a trial court, even after obtaining a valid waiver of counsel, may appoint counsel to assist as a legal advisor. In the Matter of John R. v. Jennifer A., 218 A.D.2d 694, 630 N.Y.S.2d 379, 381 (1995). However, the record must demonstrate that the party entitled to counsel “voluntarily, knowingly, and intelligently” waived that right. State v. Christian, 1999 SD 4, ¶ 23, 588 N.W.2d 881, 885. Without such a showing a defem dant is presumed not to have waived the right to counsel, a right that “is not to be taken lightly.” State v. Raymond, 1997 SD 59, ¶ 9, 563 N.W.2d 823, 825. Although mother had a right to proceed pro se, that is not a right she exercised willingly but fought against the entire way.

[¶ 12.] A trial court’s consideration of a request for substitute counsel or a motion to withdraw can properly take into account the effect further delay in the proceeding will have upon the child. In re Conley, 216 Mich.App. 41, 549 N.W.2d 353, 356 (1996). In this instance, the trial court should have considered the effects of further delay in this proceeding as well as mother’s statutory right to counsel when addressing attorney Arendt’s motion to withdraw. By way of comparison, the facts of this cáse are closely analogous to In re Baby Girl Elliott, 2004 WL 1485858 (OhioApp.2004) (unpublished). In that case, mother’s attorney also moved to withdraw because of a conflict with mother; Id. *8. Mother had a pattern of firing her attorneys and was on her third appointed attorney. Id. Moreover, there was a concern that this was a delaying tactic and it was necessary to resolve the matter for the sake of the child. Id. Therefore, the trial court denied the attorney’s motion to withdraw. Id. In affirming this decision, the court noted that although mother had a right to counsel, she did not have a choice of counsel. Id. It was also significant that mother would not likely be able to obtain counsel before the hearing date. Id. These factors all supported the denial of a motion to withdraw, which allowed the matter to continue while still preserving mother’s right to counsel. Although the denial of a motion to withdraw is not the only way to prevent delay and also preserve a parent’s right to counsel, this case is illustrative of what the trial court could have done here.

[¶ 13.] We therefore conclude that trial courts should be guided by the principles aptly stated in J.A.H. v. Calhoun County DHR, 846 So.2d 1093, 1095 (Ala.Civ.App.2002), wherein the court held that:

In the criminal context, when a defendant has established that his appointed attorney should be relieved of representation because of a conflict of-interest, the trial court must substitute new counsel. Although the basis of the constitutional right to counsel in criminal cases differs from the statutory right to counsel in termination-of-parental-rights cases, we see enough of a parallel between the two rights in this context to require a trial court that relieves an appointed attorney in a termination case of representation to appoint a substitute counsel so as to protect the parent’s already exercised right to counsel.

The trial court erred in allowing the adjudicatory heáring to continue without ensuring the assistance of counsel as required by SDCL 26-7A-31. This could have been accomplished by denying counsel’s motion to withdraw, denying a motion for substitute counsel, appointing new counsel, or obtaining a valid waiver.

ISSUE TWO

[¶ 14.] Whether the trial court abused its discretion in denying mother’s motion for a continuance before the adjudicatory hearing.

[¶ 15.] Mother alleges the trial court erred in denying her motion for a second continuance of the adjudicatory hearing so that she could obtain counsel. This Court has recognized that:

The granting or refusal of a continuance is within the sound discretion of the circuit court, and its rulings will not be reversed absent a clear abuse of discretion. The term abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. The burden rests on mother to insure her availability at the time of the hearing as a dependency and neglect hearing can proceed without the presence of the parent if the interests of the parent are accommodated.

Interest of E.D.J., 499 N.W.2d 130, 133 (S.D.1993) (internal citations omitted). Additionally:

In deciding whether or not to grant a continuance, a trial court must consider: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the eontinu-anee motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving .party or his counsel; (3) the prejudice caused to the moving party by the trial court’s refusal to grant the continuance; and, (4) whether there have been any prior continuances or delays.

Evens v. Thompson, 485 N.W.2d 591, 594 (S.D.1992) (internal citations omitted).

[¶ 16.] Here, further delay would have created a detrimental impact on the other parties to this proceeding. The State had three witnesses present that had traveled over 200 miles. Father was present and wanted to proceed. Child had been in the custody of DSS for more than seven months without adjudication. This hearing had been continued once before but there was no finding this was the result of bad faith or a dilatory tactic by mother. Under these circumstances, generally the trial court would not have abused its discretion in denying the motion for a continuance of the adjudicatory hearing. However, in light of the trial court’s error under issue one, the grant of a continuance or some other curative remedy to provide counsel to mother should have been ordered by the trial court. Proceeding without counsel or a valid waiver by mother was error justifying a continuance or-additional methods to safeguard mother’s right.

ISSUE THREE

[¶ 17.] Whether the error in failing to ensure representation by counsel at the adjudicatory phase requires reversal of the trial court’s disposition when mother was represented by counsel at the dispositional hearing.

[¶ 18.] An adjudicatory hearing is “a hearing to determine whether the allegations of a petition alleging that a child is abused or neglected are supported by clear and convincing evidence.” SDCL 26-7A-H2). Interest of D.M., 2004 SD 34, ¶ 6, 677 N.W.2d 578, 580. Moreover, “the adjudicatory hearing looks to the past, e.g. whether there has been abuse or neglect, while the dispositional hearing looks to the child’s future.... The focus of the disposi-tional hearing is the best interest of the child.” Interest of T.A., 2003 SD 56, ¶ 16, 663 N.W.2d 225, 232.

[¶ 19.] On rare occasions, this Court has applied harmless error analysis to the adjudicatory phase to affirm the termination of parental rights despite errors occurring below. See Interest of C.V., 1998 SD 47, ¶ 11, 579 N.W.2d 17, 22. The question is “if reversing for an adjudicatory hearing will truly produce any rational possibility of a different result.” Id. ¶ 9. With due regard for the facts of this case, and the overarching inquiry of what is in the best interests of this child, we conclude that the error was harmless in that it would not have changed the adjudication in this matter.

[¶ 20.] The adjudication phase “is brought on behalf of the child, not to punish the parents.” Id. Here, mother clearly abused or neglected her child by abandoning her some 200 miles from her home at a feedlot. Even with the benefit of counsel, it is inconceivable that the child would not have been adjudicated abused or neglected. See Hughes v. Division of Family Services, 836 A.2d 498, 512 (Del.2003) (holding that the absence of court appointed counsel during a dependency and neglect proceeding was harmless error). Furthermore, it is important for the purposes of this analysis to recognize that counsel was provided for the dispositional hearing in this matter, and thus mother was not left entirely to her own devices. See Briscoe v. State of Arkansas, 323 Ark. 4, 912 S.W.2d 425, 427 (1996) (finding harmless error when counsel had opportunity at the final hearing to present evidence mother left out when she improperly was required to proceed pro se during the initial phases). Although the trial court erred by not ensuring representation by counsel at the adjudicatory phase, that error was harmless because it did not taint the disposition of this matter, and remanding for an adjudicatory hearing would accomplish nothing.

ISSUE FOUR

[¶ 21.] Whether termination of parental rights was the. least restrictive alternative.

[¶ 22.] Mother contends that long term foster care would have been a less-restrictive alternative. Similar arguments have been rejected numerous times by this Court because long term foster care is generally not in a child’s best interests. Matter of S.W., 428 N.W.2d 521, 527 (S.D.1988). Children have a right to have a stable family environment. Matter of S.A.H., 537 N.W.2d 1, 6 (S.D.1995). Additionally, “the least restrictive alternative is viewed from the child’s point of view.” Id “Children have a right to be a part of a family and should not be required to wait for parents to acquire parenting skills that may never develop,” Id The testimony at trial established that mother made little, if any, progress in improving her parenting skills. Termination of parental rights was the least restrictive alternative when considering the best interests of the child.

ISSUE FIVE

[¶ 23.] Whether the trial court erred in determining reasonable efforts to reunite the family had been made.

[¶ 24.] DSS must exercise reasonable efforts to return children to their parents. SDCL 26-8A-21. Mother argues that she completed a substantial portion of the goals set for her by DSS. Mother did complete parenting classes and attend most of her visits with the child, except for two months of no visitation whatsoever. However, she failed to cooperate with DSS, keep them informed of her whereabouts, sign her case service plans, and, most importantly, refused to follow the recommendations of her psychiatric evaluation. Mother made no attempts to complete her necessary treatments or counseling and DSS’s efforts toward reunification were frustrated almost every step of the way by mother’s actions. The trial court did not err in determining that reasonable, but unsuccessful, efforts were made.

[¶ 25.] Affirmed.

[¶ 26.] SABERS, Justice, concurs.

[¶ 27.] GILBERTSON, Chief Justice and MEIERHENRY, Justice, concur in result.

[¶ 28.] ZINTER, Justice, concurs ■ specially. ■

GILBERTSON, Chief Justice

(concurring in result).

[¶ 29.] I concur with the Court that the lack of representation by court-appointed counsel at the adjudicatory hearing under the facts of this case does not require reversal, but for different reasons. Mother’s constitutional and statutory rights under SDCL 26-7A-31 were adequately provided to her without court appointment of additional counsel at the adjudicatory hearing. I would also hold that the trial court did not abuse its discretion in denying Mother’s motion for a continuance'under Issue 2.

[¶ 30.] I agree with >the Court that it would have been sufficient for the trial court to deny counsel’s motion to withdraw, deny Mother’s motion for substitute counsel, or obtain a valid waiver as a means of further safeguarding Mother’s rights. I do not agree that the trial court was required to appoint substitute counsel at the adjudicatory phase under the facts of this case, as Mother’s right to counsel had been adequately protected throughout the proceedings.

[¶ 31.] The facts of this case are lengthy and complex as it pertains to the revolving door of attorneys retained by Mother for the adjudicatory abuse and neglect proceedings. On May 13, 2003, attorney Rose Ann Wendell was court appointed, to represent Mother and the case was scheduled for adjudicatory hearing on July 23, 2002. By July 17, 2002, attorney Stanley E. Whiting entered an appearance on behalf of Mother after she privately retained his services. A continuance of the adjudicatory hearing was granted. On September 16, 2002, Whiting requested leave to withdraw as counsel per Mother’s request.

[¶ 32.] A hearing was set for October 10, 2002 to schedule a trial date on the petition to adjudicate Child as abused and neglected. Mother privately retained attorney Al Arendt who represented her at the scheduling hearing on October 10, 2002, and the adjudicatory hearing was scheduled for December 3, 2002. Less than one week later, Arendt filed a motion to withdraw as counsel for Mother on grounds of “conflict between the attorney and client relative to compliance with Court Orders.” The order allowing Ar-endt to withdraw provided that the adjudicatory trial scheduled for December 3, 2002, would proceed as scheduled.

[¶ 33.] After changing attorneys three times in seven months, Mother proceeded pro se. Mother then filed pro se motions for a change of venue, for a continuance, for an immediate hearing on the motions on change of venue and continuance, for an independent psychological examination of Child, for reasonable visitation, and for a subpoena to depose Child’s therapist Emily Williams.

[¶ 34.] At the adjudicatory hearing on December 3, 2002, Mother appeared pro se. Mother attempted to explain why she had been unable to hire private counsel. She then requested court appointed counsel and a continuance in order to retain counsel. Mother’s requests were denied. Mother’s intermediate appeal of the trial adjudicating Child as abused and neglected, filed pro se, was denied 'by this Court on February 6, 2003.

[¶ 35.] There is no absolute constitutional right to court appointed counsel in the absence of a potential deprivation of physical liberty. Lassiter v. Dep’t. of Soc. Servs. of Durham County, North Carolina, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640, 648 (1981) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). The Due Process Clause of the Fourteenth Amendment does not require the appointment of counsel in every parental termination proceeding. Lassiter, 452 U.S. at 33, 101 S.Ct. at 2162, 68 L.Ed.2d at 654. Instead, the appropriate due process evaluation requires the weighing of three factors, the private interests at stake, the government’s interest, and the risk that the procedures will lead to erroneous decisions, against a “right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.” Id. at 27, 101 S.Ct. 2153 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976)). The United States Supreme Court has noted a majority of states utilized a higher standard by statute than that required by the Constitution and that such statutes are “enlightened and wise,” but not mandatory. Id. at 34, 101 S.Ct. 2153.

[¶ 36.] -South Dakota is counted among those “enlightened and wise” states. .SDCL 26-7A-31 “specifically provides for a court appointed attorney for parents in an abuse and neglect proceeding.” Supra ¶ 9. However, the statutory right to counsel in such proceedings is not absolute. SDCL 26-7A-31. The appointment is conditioned on two factors. First the indigent party must request the court appointment, and second the court must find “the party to be without sufficient financial means to employ an attorney.” Id.

[¶ 37.] This Court has adopted the procedural safeguards utilized in criminal proceedings to ensure effective assistance of counsel in abuse and neglect proceedings. See Interests of A.D., 2004 SD 39, ¶ 10, 678 N.W.2d 594, 598. Despite the diligence a trial court must use in criminal cases.when determining whether a valid waiver of the right to counsel has been made, a defendant will not be indulged every time he requests a new court appointed attorney. State v. Bruch, 1997 SD 74, ¶ 18, 565 N.W.2d 789, 793 (quoting Berry v. Lockhart, 873 F.2d 1168, 1171 (8th Cir.1989)). A defendant will not be permitted to engage in dilatory tactics as a means of manipulating the right to counsel to delay or disrupt the trial. Id. (citing United States v. White, 529 F.2d 1390, 1393 (8th Cir.1976)). These standards should apply equally to parental rights terminations as well as criminal prosecutions given our adoption of criminal procedural safeguards to ensure effective assistance of counsel in such adjudicatory proceedings. See Interests of A.D., 2004 SD 39, ¶ 10, 678 N.W.2d at 598.

Some jurisdictions go so far as to deny the statutory, right of counsel for parental rights termination proceedings when the indigent parent has received adequate and timely notice of the right to counsel, yet fails to request such counsel until the day of trial. Interest of BM-P-, 704 S.W.2d 237, 248 (Mo.Ct.App.1986). Others interpret the failure of the parent to request such representation via the statutorily prescribed method prior to trial date to be a valid waiver of the right to counsel. Interest of KMM, 957 P.2d 296,-298 (Wyo.1998) (fathers failure to file the appropriate motion for court appointed counsel was deliberate decision to proceed pro se despite initial request by letter, as father filed several other motions that indicated he understood the procedural requirement). Other jurisdictions view the repeated discharge of attorneys, both 'court-appointed and privately retained, as a waiver of the statutory right to counsel. In re Adoption of Olivia, 53 Mass.App.Ct. 670, 761 N.E.2d 536, 542 (2002) (holding reasons advanced by father in support of his motion for substitution of appointed counsel in proceedings for termination of his parental rights did not constitute good cause for removal of appointed counsel); Keen v. Marion County Dept. of Public Welfare, 523 N.E.2d 452, 456 (Ind.Ct.App. 1988) (holding no violation of statutory right to counsel of mother who was denied a second court appointed attorney after using court appointed counsel for four years, being granted numerous continuances, electing to use private counsel, and then failing to hire counsel prior to trial date).

[¶ 38.] Our statutory scheme for termination of parental rights is grounded upon the best interests of the child. SDCL 26-7A-5; Interest of E.D.J., 499 N.W.2d 130, 135 (S.D.1993). We have repeatedly held that we will not force the child to wait for his parents to acquire parenting skills that may never develop. In re J.Y., 502 N.W.2d 860, 862 (citing Interest of A.D., 416 N.W.2d at 268). Should we now hold that we will force a child to wait for his parents to acquire the counsel of their choice?

[¶ 39.] I find the Court’s reliance on J.A.H. v. Calhoun County DHR, 846 So.2d 1093, 1095 (Ala.Civ.App.2002) for the proposition that a trial court must appoint counsel to a parent who has formerly repeatedly fired such counsel up until the day of the dispositional hearing to be of great concern. That case is materially distinguishable from the facts of the current case. In J.A.H., the father had requested court appointed counsel at the initial phase of the proceedings and had been found financially qualified for such representation. Id. at 1094. However, due to a conflict of interest court appointed counsel was allowed to withdraw and no replacement counsel was appointed by the trial court. Id. Father never rejected or discharged his court appointed attorney, nor did he waive his statutory right to counsel by his actions. Id.

[¶ 40.] In the present case, Mother did not request court appointed substitute counsel until the day of the trial. Up to that point Mother had given no indication that she would avail herself of an appointment, and had been hiring and firing privately retained counsel throughout the seven months of proceedings and hearings. Additionally, Mother filed six pro se motions prior to her request for court appointed counsel. Mother’s actions were not on par with the father in J.A.H. such that it would be “unduly burdensome and overly technical to require [Mother] to repeatedly request the appointment of counsel.” See J.A.H., 846 So.2d at 1095. Mother’s multiple requests for court appointed counsel all occurred on the day of the trial, and all were in my opinion sufficiently untimely and served as a valid waiver of her right to counsel.

[¶ 41.] A child should not be forced to dangle in legal limbo while this revolving door process of attorney after attorney repeats itself solely by the acts of Mother. Neither should the taxpayers of this State be forced to fund an endless stream of attorneys who, for whatever subjective reason, fail to pass muster with a parent facing an abuse and neglect proceeding. SDCL 26-7A-31 contemplates as much as it provides for the appointment of “an attorney” not “numerous attorneys” of the parent’s choosing.

[¶ 42.] As no error was committed by the trial court under Issues 1 and 3, in my opinion the trial court did not abuse its discretion in denying Mother’s motion for a continuance before the adjudicatory hearing in Issue 2. I concur with the Court’s holdings in Issues 4 and 5.

[¶ 43.] MEIERHENRY, Justice, joins this special writing.

ZINTER, Justice

(concurring specially).

[¶ 44.] I join the opinion of the Court because this is not just a case about the right to court-appointed counsel, it is a case about the denial of all counsel (appointed and retained) to represent Mother at an adjudicatory hearing.

[¶ 45.] Although one may fairly debate whether Mother made an effective request for court-appointed counsel on or before the December 3 adjudicatory hearing, the record is very clear that Mother did make three requests to retain new counsel. Moreover, all three requests were made shortly after her last retained lawyer withdrew, but two to three weeks before the adjudicatory hearing. Specifically, on November 13, 2002, the day before Mother was served with formal notice of attorney Arendt’s withdrawal, she made a motion for change of venue “so that she [could] obtain legal counsel.” (Emphasis added.) The affidavit supporting that motion explained that Mother had been unable to obtain replacement counsel in the rural Winner, South Dakota area because of conflicts of interests. Then, on November 23, 2002, Mother raised the issue again, moving to continue the December 3 adjudicatory hearing so .that she could “retain legal counsel.” (Emphasis added.) Finally, on November 26, 2002, apparently because the preceding motions had not been heard, Mother filed a motion for an immediate hearing. She indicated that she sought an immediate pretrial ruling on these motions because she desired to take an intermediate appeal if her request to retain counsel was denied.

[¶ 46.] Because no pretrial disposition of these motions occurred, when Mother appeared on December 3, she reasserted her objections to proceeding without counsel to represent her. Mother also explained her efforts to find replacement counsel. The trial court overruled the motions and conducted the adjudicatory hearing without counsel present. Thus, the record reflects that during the approximately one month period between Axendt’s withdrawal and the adjudicatory hearing, Mother made three motions seeking the opportunity to retain counsel for the hearing. In my view, these requests do not support the concurrence in result’s conclusion that Mother’s request for counsel was sufficiently untimely to serve as a valid waiver of her right to all counsel.

(¶ 47.] On the contrary, in a similar criminal case we stated that when a defendant discharges retained counsel and appears at trial requesting a continuance to obtain their own counsel, a waiver may not be necessarily presumed. State v. Bruch, 1997 SD 74, ¶ 20, 565 N.W.2d 789, 793. Instead, the trial court should, at the very least, warn the defendant of the dangers of self-representation. Id. ¶ 15. Additionally, “the trial court has the responsibility of inquiring into the circumstances surrounding potential forfeiture or waiver [of counsel] and ensuring that a defendant’s decision is knowing and intelligent.” Id. ¶ 20 (citations omitted). Thus, we previously held that unless the defendant is .advised of the hazards of self-representation, a trial court may not allow retained counsel to withdraw and fail to grant a request for a continuance, assuming that the defendant has waived his right to counsel and will represent himself pro se. Id. ¶ 17.

[¶ 48.] I also join the Court’s analysis because the trial court expressly recognized that the motion for continuance was properly filed in advance of the hearing under SDCL 15-11-6, and that there were good reasons for the delays caused by Mother. Although the transcript reflects significant difficulties in dealing with Mother as a pro se litigant, the trial court indicated that the delays were “legitimate” because of a change of counsel and complications associated with Mother’s pregnancy. It is also significant that the trial court expressed concerns about Mother’s competency to proceed as early as the advisory hearing on July 11, 2002.

[¶ 49.] Thus, this is not a case where the trial court entered findings that the objecting party was using dilatory tactics to manipulate the court. Although the trial court was properly concerned with prejudice to the child from further delays, the State itself concedes on appeal there was no bad faith on Mother’s part, and that the reasons for the previous continuances “appear to have been bona fide.”

[¶ 50.] Considering these concessions and Mother’s three pretrial requests to retain counsel, I concur.

      . Mother petitioned for intermediate appeal from the adjudicatory order. That petition was denied by this Court on March 21, 2003, appeal no. 22711.

      . A trial court is not at the attorney’s mercy when it comes to ensuring mother's right to counsel. SDCL 16-18-31 provides "[n]o attorney who has appeared of record in any civil or criminal proceeding shall be permitted to withdraw in any pending action except by order of the court after notice to all parties concerned.” Additionally, ''[a] lawyer must comply with applicable law requiring notice to or permission of a.tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.” SDCL ch 16-18 App. Rule"l. 16(c).

      . If this case were to be remanded it would be limited to the circumstances effecting the child at the time of the filing of the petition. Interest of C.V., 1998 SD 47, ¶ 11, n. 6, 579 N.W.2d at 22.

      . SDCL 26-7A-31 provides in relevant part:
      If the child or the child’s parents, guardian, or other custodian requests an attorney in proceedings under this chapter or chapter 26-8A, 26-8B, or 26-8C and if the court finds the party to be without sufficient financial means to employ an attorney, the court shall appoint an attorney for the party-

      . A criminal defendant has the constitutional right to counsel or to self-representation. State v. Van Sickle, 411 N.W.2d 665, 666 (S.D. 1987) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The right to counsel may be waived, but only through a knowing, voluntary and intelligent waiver. Id. The trial court must engage in specific procedure in order to ascertain the defendant has made a knowing, voluntary and intelligent waiver. Id.

      . Mother’s oral objections and argument apparently included some factual allegations. Consequently, the trial court attempted to administer an oath before it would permit Mother to argue her motions. In response, Mother objected, asking the court "to table” the oath "until I have an opportunity to consult with counsel. I don't know if I should be giving testimony or not.” The trial court declined that request. Mother then relented and she was sworn as a witness to argue her motions.

      . Mother indicated that she had contacted two lawyers in Winner and lawyers in the neighboring communities of Murdo, Chamberlain, and Gregory, as well as Sioux Falls and Rapid City.

      . SDCL 15-11-6 provides:
      All applications for continuance must be made, by motion, not less than ten calendar days prior to the day set for commencement of the trial, unless the cause for continuance shall have arisen or come to the knowledge of the party subsequent to that time, in which case the motion shall be made as soon as practicable. All such motions shall be in writing and accompanied by affidavits in support of the motion, which affidavits shall set forth with particularity the grounds, and cause for such motion as well as the efforts of the party or the party's attorney to avoid such delay. Upon receipt of such a motion, the court shall schedule a hearing, which may be by telephone conference, and shall decide the motion without delay in order to avoid trial delay awaiting such decision. The adverse party may be heard by affidavits or by argument presented, filed, and served at the time of the hearing.

      . "Of course, this is not to say that every time a defendant requests a new lawyer, he should be indulged. These requests will sometimes, perhaps often, be dilatory tactics. A defendant has no right to manipulate his right to counsel in order to delay or disrupt the trial." Bruch, 1997 SD 74, ¶ 18, 565 N.W.2d at 793 (quoting Berry v. Lockhart, 873 F.2d 1168, 1171 (8thCir.l989)).


author: ZINTER, Justice.

text:
    2005 SD 2
    In the Matter of the Application of Katheryn BENTON.
    No. 23232.
    Supreme Court of South Dakota.
    Argued Nov. 16, 2004.
    Decided Jan. 5, 2005.

      Mark W. Haigh and Mitchell Peterson of Davenport, Evans, Hurwitz & Smith, L.L.P. Sioux Falls, South Dakota, Attorneys for appellant Benton.
    Neil Fulton of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for appellee'South Dakota Board of Medical and Osteopathic Examiners.
   ZINTER, Justice.

[¶ 1.] Katheryn Benton appeals the South Dakota Board of Medical and Osteopathic Examiner’s denial of her application for a paramedic license. We affirm, but remand for further proceedings to consider new evidence disclosed at oral argument.

Facts and Procedural History

[¶ 2.] Katheryn Benton has lived in Kimball, South Dakota since 1995. She is committed to serving her community through a variety of community projects and service organizations. She is employed as an emergency medical technician (EMT).

[¶ 3.] Benton’s employment involves a 140 mile drive to Rosebud, South Dakota, where she works in that community’s emergency medical assistance service. Benton received her EMT basic license in 1998 and her EMT intermediate license in 2000. In 2003, she became interested in obtaining a paramedic license, which required more training. Benton applied for a paramedic license and the paramedic “student status” necessary for paramedic training. Her initial application was denied because she had a number of felony convictions.

[¶ 4.] Benton requested a hearing before the Board. Following an administrative hearing, the Board denied her application concluding that “Benton’s felony convictions constitute unprofessional or dishonorable conduct and lack of good moral character and constitute a basis to deny her application for ... licensure as an emergency medical technician — paramedic.”

[¶ 5.] Benton’s felony convictions occurred in Oklahoma in 1994, where she lived before coming to South Dakota. The convictions arose after Benton’s friend, Loretta Grandstaff, told Benton that Grandstaff needed money for rent, groceries, and other items. Grandstaff told Benton that Grandstaff s bank would not make her pay for checks that were stolen and used by someone else. Benton ultimately forged several checks with Grandstaffs name. Benton also obtained a false driver’s license for Grandstaff. Grandstaff used the forged checks to purchase goods, some of which were given to Benton. Benton also received partial repayment of a loan she had previously made to Grand-staff.

[¶ 6.] Benton later contacted an attorney, turned herself in, and pleaded guilty to the felony charges. The felonies included one count of false application for a driver’s license, two counts of obtaining property under false pretenses, and four counts of second degree forgery. She received a sentence that included ten years probation, 100 hours of community service, and a restitution obligation of $3600. Benton was placed on unsupervised probation in 1999.

[¶ 7.] Benton appealed the Board’s decision to circuit court. The circuit court affirmed the Board’s decision. Benton now appeals to this Court questioning whether the Board was clearly erroneous in adopting certain findings of fact and whether it abused its discretion in denying her application.

Decision and Analysis

[¶ 8.] The standard of review for administrative appeals is governed by SDCL 1-26-36. Streeter v. Canton School Dist., 2004 SD 30, ¶ 14, 677 N.W.2d 221, 224.

SDCL 1-26-36 .,. requires us to give great weight to the findings and inferences made [by] the [agency] on factual questions. We examine agency findings in the same manner as a circuit court to decide if they were clearly erroneous in light of all of the evidence. If after careful review of the entire record we are definitely and firmly convinced a mistake has been committed, only then will we reverse. Questions of law, of course, are fully renewable.

Id. (citing Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228). A decision of an agency may also be reversed or modified if the decision was' an “abuse of discretion or clearly unwarranted exercise of discretion.” City of Frederick v. Schlosser, 2003 SD 145, ¶ 7, 673 N.W.2d 283, 285; SDCL 1-26-36(6).

The Board’s Findings of Fact

[¶ 9.] Benton initially argues that the Board “beefed up” its findings of fact and conclusions of law “after legitimate concerns were raised by Benton” through her objections and her proposed findings of fact and conclusions of law. Benton specifically, argues that we should infer that the Board’s decision was not based upon its findings of Benton’s lack of candor before the tribunal and her lack of moral character because those findings were not included in the Board’s original proposals. The Board included those findings in its final decision after receiving Benton’s submissions that pointed out those omissions. Thus, the record reflects that the Board apparently considered Benton’s submissions and ultimately modified its final findings of fact and conclusions of law to rectify the omissions noted by Benton.

[¶ 10.] SDCL 1-26-25, the relevant provision of the Administrative Procedures Act, requires that an agency decision shall include findings of fact and conclusions of law. Additionally, if in accordance with agency rules a party submits proposed findings of fact, the final decision must include a ruling on the issues raised by the opposing party’s submissions. In 'the present case, the Board apparently elected to follow this procedure because it first issued a proposed decision in the form of proposed findings of fact and conclusions of law. The Board then modified those proposed findings and conclusions after considering Benton’s objections and proposals.

[¶ 11.] We note that this procedure reflects compliance with SDCL 1-26-25, rather than any improper bolstering of the Board’s ultimate decision. Although this procedure allowed the Board to correct the omission in its proposed decision, the procedure is specifically contemplated by SDCL 1-26-25 (and the corresponding Rule of Civil Procedure, SDCL 15-6-52). Moreover, the procedure is specifically intended to enable an agency to take a second look at the facts and law of a case to correct errors or omissions raised by an objecting party.

[¶ 12.] Therefore, we do not believe that any improper inference should be permitted to be drawn from this accepted procedure. There are many reasons why an agency may add or delete language from its proposed decision. In any given case, it is just as likely that omitted language reflects an oversight as a failure to understand and apply the appropriate law. We decline to adopt any adverse inference because an agency complied with this procedure. Rather, we believe that our review should be confined to the agency’s final findings of fact and conclusions of law because they reflect an agency’s final decision after a reconsideration of the competing views. A different rule would also require us to speculate as to the reason for the agency’s first proposal.

[¶ 13.] Benton -next contends that two of the Board’s final findings of fact are clearly erroneous. Benton first argues that finding number five — that other person’s applications were also denied because of felony convictions — is clearly erroneous. However, the following testimony between counsel for the investigating committee and an employee of the Board supports that finding.

Counsel: [reading from the minutes of the March 5, 2003 board meeting] Discussion was held regarding EMT student status request made by [J.H.], Katheryn Benton, and [M.W.S.]. Are you familiar with that discussion?
Employee: Yes.
Counsel: All of those applications were denied, as I understand it?
Employee: Yes.
Counsel: Was there a consistent reason for those three folks as to why the denial was made?
Employee: Felony conviction.
Counsel: All three of them?
Employee: Yes.

Therefore, finding of fact number-five was not clearly erroneous.

[¶ 14.] Benton next attacks finding of fact number seven, which states that Benton did not disclose all of her felony convictions at the Board hearing. The record reflects that on her application, Benton only indicated that she had a felony conviction for forgery and that the “National Registry has info.” Furthermore, during the hearing, Benton essentially indicated that her only felony- conviction was for forgery. Benton, however, contends that she “fully disclosed every fact relating to her wrongdoing,” and simply because “she d[id] not understand that her plea agreement was for particular offenses or charges does not mean that she was not forthcoming.” (Emphasis added.) Benton finally contends that because her post-hearing affidavits indicated that she obtained a driver’s license in someone else’s name and that she had signed checks for her Mend, she “fully disclosed the conduct that led to her convictions.” (Emphasis added.)

[¶ 15.] We are not persuaded by such parsing of words. The record reflects that neither Benton’s hearing testimony nor her post-hearing affidavits ever disclosed that she had been convicted of one count of felony false application for a driver’s license and two counts of felony obtaining property under false pretenses. Furthermore, Benton called a number of character witnesses at the hearing who were unaware of the driver’s license and obtaining property under false pretenses felonies. We finally note that, when asked during the hearing if she had received a benefit from the forgeries, Benton only responded that she “did not get back the funds” that she was owed. However, after the hearing, Benton disclosed that she had received $300 and five bags of groceries from the check-writing scheme. Given the partial disclosures and the fact that some of the “conduct” details were only disclosed after the hearing, this finding concerning Benton’s testimony during the hearing was not clearly erroneous.

Denial of Licensure for Multiple Felony Convictions-AbUse of Discretion

[¶ 16.] Benton raises two arguments in support of her contention that the Board abused its discretion in denying her application. She first argues that, based on the Board’s conclusions of law, the Board believed that it was required to deny a felon’s license application regardless of all subsequent professional conduct and evidence of good moral character.

[¶ 17.] We first note that SDCL 36-4B-31 and 36-4-30 expressly authorize the denial of licensure for the conviction of a felony. Furthermore, our prior decision on this question indicated that felony convictions may be considered conclusive evidence of the absence of good moral character. See Katz v. South Dakota State Bd. of Medical and Osteopathic Examiners, 432 N.W.2d 274, 280 (S.D.1988). In fact, Benton’s identical argument was rejected in Katz. In that ease, Katz argued “that the Board abused its discretion in focusing on [other] acts instead of Katz’s good medical record over the last fourteen years.” Id. Katz also argued that the proper inquiry when determining one’s moral character for professional licensure is “the applicant’s character at the time of the application” rather than past conduct. Id. This Court rejected these arguments stating that:

One who has violated a criminal law may thereafter reform and, in fact, become possessed of good moral character. The legislature, however, has “power in eases of this kind to make a rule of universal application, and no inquiry is permissible back of the rule, to ascertain whether the fact of which the rule is made the absolute test does or does not exist.” Although, in a certain sense, such a rule is arbitrary in determining what shall be evidence of good moral character, the legislature can make a test such as the conviction of a crime conclusive. • Evidence of current good moral character does no more than raise a conflict in the evidence upon such an issue.

Id. (internal citations omitted). Therefore, were we to apply Katz, the Board would have been authorized to deny Benton’s application based on the felony convictions alone. However, we also acknowledge that other, perhaps , better reasoned decisions would not support consideration of the conviction alone.

[¶ 18.] We heed not, however, resolve this conflict of views in this case because Benton has provided insufficient evidence to support her assertion that this “Board was under the impression that a finding of conduct listed in SDCL 36-4-30 requires denial of an application.” On the contrary, two parts of the record reflect that the Board was not under the impression that it was required to deny her application based on her convictions alone.

[¶ 19.] First, this is not a case where the Board refused to consider Benton’s current moral character and professional conduct. On the contrary, almost all of the two-hour administrative hearing was devoted to the Board’s receipt of such evidence.

[¶ 20.] Moreover, the Board’s written decision reflects that it understood that it had discretion to consider Benton’s evidence of good character and conduct. Conclusion of law two states in two places that a license may be denied for conviction of a felony. Because the term “may” means that an act is discretionary, Farmland Ins. Companies of Des Moines, Iowa v. Heitmann, 498 N.W.2d 620, 625 (S.D. 1993), the Board’s use of that discretionary term in describing the law that it was applying reflects that it had knowledge of, and applied its discretion in making its decision.

[IT 21.] Benton’s second argument is that she had the good moral character and absence of dishonorable or unprofessional misconduct to be licensed. Benton begins by emphasizing that “the use of the word ‘may’ in SDCL 36-4B-13, -36-4B-6, and 36-4B-31 indicates that the Board must exercise its discretion and judgment when evaluating the entire application.” Benton then argues that consideration of her entire application requires the conclusion that the denial of her application was “clearly erroneous in light of the overwhelming evidence of her good' moral character.” Benton specifically relies upon evidence that she: volunteered at the senior citizen center, supervised the street painting for the Kimball homecoming each year, chaired the local emergency planning commission for Brule and Buffalo Counties, coordinated the Kimball Ambulance Service (which included check writing authority), taught at Sinte Gleska University, gave away bike helmets in Kimball, and served as past president of the library board and Kimball in Progress, a service oriented women’s organization. Benton finally points out that eleven character witnesses testified to her good moral character at the Board hearing.

[¶ 22.] However, the existence of mitigating evidence does not require the conclusion that the Board must exercise its discretion in any particular manner. The Board was free to consider the mitigating evidence, yet impose a sanction permitted by statute. See Ameson v. Ameson, 2003 SD 125, ¶ 14, 670 N.W.2d 904, 910 (stating that abuse of discretion “is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, is arbitrary or unreasonable”); Schlumbohm v. City of Sioux Falls, 2001 SD 74, ¶ 14, 630 N.W.2d 93, 96 (“[a]n abuse of discretion is ‘discretion exercised to an end or purpose not justified by, and against, reason and evidence’ ”).

[¶23.] Here, the record indicates that the Board considered Benton’s multiple felony convictions along with extensive evidence of her current conduct. Considering our deferential standard of review and Benton’s six-felony convictions, we cannot say that the Board was arbitrary and capricious in cdncluding that Benton did not meet her burden of proving good moral character and an absence of unprofessional or dishonorable conduct. We therefore hold that the Board did not err in denying Benton’s application based on the information available at the hearing.

[¶ 24.] However, we were also advised by counsel at oral argument that Benton has recently received a pardon for her convictions and that she has completed paramedic training in Nebraska. The Board did not have the benefit of that information at the time it heard the matter, and those facts are not in the record. “It is elementary that ... this [C]ourt will only deal with matters properly presented by the record.” State ex rel. Scott v. Rooney, 65 S.D. 510, 275 N.W. 349, 350 (1937). Therefore, we cannot consider the effect of these facts on this appeal. However, when an actual fact is not presented in the record, but is disclosed on appeal, we have affirmed and remanded to conduct further proceedings on the “actual facts.” Id. We therefore remand this matter to the circuit court with directions to remand to the Board for further proceedings.

[¶ 25.] Affirmed and remanded.

[¶ 26.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      .Benton enrolled in a paramedic program in Fort Meade, South Dakota and began the written portion of the training. She was unable to do her clinicals because she was not granted student status. However, the parties have advised this Court that after this appeal was filed, Benton completed a paramedic training program in another state. Therefore, the parties have agreed that all issues relating to the denial of student status are moot.

      . The record reflects that Benton has seven felony convictions, however, at oral argument the Court was informed that the correct number of convictions may be six.

      . We were informed at oral argument that, after the Board rendered its decision and after this appeal was filed, Benton received a pardon for her convictions. Because that fact is not in the record, we have decided this case without considering the effect of Benton's pardon.

      . SDCL 1-26-25 provides:
      A final decision or order adverse to a party in’a contested case shall be in writing or stated in the record. It may affirm, modify, or nullify action previously taken or may direct the taking of new action within the scope of the notice of hearing. It shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying.facts supporting the findings. If, in accordance with agency rules, a party submitted proposed findings of fact, the decision shall include a ruling upon each proposed finding. Parties shall be notified either personally or by mail of any decision or order. Upon request a copy of the decision or order shall be delivered or mailed forthwith to each party and to his attorney of record. ,

      . Although the Board's proposed findings and conclusions are not labeled as such, those findings and conclusions were served without being dated or signed. Additionally, Benton's objections to those findings and conclusions referred to them as “proposed” findings and conclusions. Therefore, we consider them proposed findings of fact and .conclusions of law.

      . The complete finding states:
      The South Dakota Board of Medical and Osteopathic Examiners has previously denied license applications for individuals with felony convictions based on the conclusion that it constitutes unprofessional or dishonorable conduct and lack of good moral character in violation of SDCL 36-4B-31, 36-4B-6, and 36-4-30.

      . The complete finding states:
      During her testimony before the South Dakota Board of Medical and Osteopathic Examiners, Benton did not disclose' her convictions for obtaining property through false pretenses and use of a false or fictitious name to obtain a driver's license.

      . SDCL 36-4B-31 provides:
      The board may deny the issuance or renewal of a license or suspend or revoke the license of any advanced life support personnel issued under this chapter upon satisfactory proof of such individual's gross incompetence, or unprofessional or dishonorable conduct as defined in § 36-4-30 or proof of a violation of this chapter.

      . SDCL 36-4-30 defines unprofessional or dishonorable conduct to include, among other things:
      (6) Conviction of any criminal offense of the grade of felony, any conviction of a criminal offense arising out of the practice of medicine or osteopathy, or one in connection with any criminal offense involving moral turpitude.

      . See, Application of Allan S., 282 Md. 683, 387 A.2d 271, 275 (1978) (holding that conviction of a crime may be. taken into consider-, ation in determining whether applicant for a Bar license has good moral character). How-' ever, Allan elaborated:
      Although a prior conviction is not conclusive of a lack of present good moral character, particularly where the offense occurred a number of years previous to the applicant's request for admission, it adds to his burden of establishing present good characr ter by requiring convincing proof of his full and complete rehabilitation. See Application of Davis, 38 Ohio St.2d 273, 313 N.E.2d 363 (1974); Application of Alpert, supra. Thus, a prior conviction must be taken into account in the overall measurement of character and considered in connection .with other evidence of subsequent rehabilitation and present moral character. See In re Dreier, 258 F.2d 68 (3rd Cir.1958), and In re Florida Board of Bar Examiners, 183 So.2d 688 (Fla. 1966).

        Id.

      . Conclusion of law two states:
      An applicant for licensure as an emergency medical technician — paramedic may be denied licensure upon proof of unprofessional or dishonorable conduct pursuant to SDCL 26-4B-31. Unprofessional or dishonorable conduct includes conviction of any criminal offense of the grade of felony pursuant to SDCL 36-4-30. An applicant for student status may be denied for lack of good moral character pursuant to SDCL 36-4B-6. Benton’s felony convictions constitute unprofessional or dishonorable conduct and lack of good moral character and constitute a basis to deny her application for student status and licensure as an emergency medical technician. — paramedic, (emphasis added).

      . SDCL 36-4B-13 provides:
      The board may issue an appropriate advanced life support license to any person who files a verified application upon a form prescribed by the board, pays the required fee, and furnishes evidence satisfactory to the board that the person has met the following qualifications:
      (1) Meets the age, high school, or equivalency test arid moral character requirements of § 36-4B-6;
      (2) Completes successfully an appropriate course of study approved by the board for the license sought; and
      (3) Completes successfully a written and practical examination testing the applicant's knowledge in theorétical and applied prehospital primary care as it applies to the practice of the advanced life support license sought.
      SDCL 36-4B-6 provides:
      The board may grant authorization for student status in advanced life support upon verification that the applicant meets the following criteria: is at least eighteen years of age; has successfully completed emergency medical technician-basic training; has completed an approved high school course of study or has passed a standard equivalency test; is of good moral character; and has been tentatively accepted in an approved advanced life support training program.
      SDCL 36-4B-31, incorporating SDCL 36-4-30 are set forth at notes 8 and 9, supra.

      . We also reject Benton’s argument that the Board abused its discretion because the Board failed to introduce evidence of other bad moral character. Benton overlooks the fact that the applicant bears the burden of proving good moral character. SDCL 36-4B-13 provides that the Board may issue a license to any person who furnishes evidence satisfactory to the Board that they have met the qualifications for a paramedic license. Because Benton bore the burden of establishing good moral character, the Board had no obligation to offer evidence on this subject.


author: PER CURIAM.

text:
    2005 SD 1
    STATE of South Dakota, Plaintiff and Appellee, v. Oscar KAUK, Defendant and Appellant.
    No. 23141.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 15, 2004.
    Decided Jan. 5, 2005.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Randall B. Turner, Aberdeen, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Oscar Kauk appeals the sentence imposed on his conviction for one count of third degree rape and one count of furnishing an alcoholic beverage to a person under age eighteen. We affirm.

FACTS

[¶ 2.] The two female victims in this case, ages seventeen and thirteen, lived in a juvenile care facility in Aberdeen. The older victim was acquainted with seventy-three-year-old Kauk because he had once dated her aunt. On two different occasions in June 2003, the victims left their care facility on a pass and visited Kauk’s residence where they engaged in various sexual acts with him in exchange for alcoholic beverages and money.

[¶ 3.] The victims’ supervisors at their care facility learnéd of these incidents and reported the matter to law enforcement. An investigation followed during which Kauk made damaging admissions to the allegations against him. Kauk was ultimately indicted for two counts of third degree rape and four counts of furnishing alcoholic beverages to a person under age eighteen. Plea bargaining ensued and, in exchange for a dismissal of all other charges, Kauk pled guilty to one count of third degree rape and one count of furnishing alcohol to a person under age eighteen. A presentence investigation was ordered and conducted and sentencing took place on January 14, 2004.

[¶ 4.] During the sentencing hearing, Kauk’s counsel made the following motions: to seal the presentence investigation report; for the preparation of a new report; and for the court to recuse itself to allow re-sentencing by a different judge. In support of his motions, counsel asserted that, due to Kauk’s age, poor health, limited education and illiteracy, he had asked to be present during Court Services’ pre-sentence interview with Kauk. Counsel further asserted that, despite his request, Court Services conducted the interview in his absence.' Counsel indicated that he had instructed Kauk that under no circumstances should he talk to Court Services without him being there and that he had only permitted Kauk to meet with Court Services in the belief that Kauk was going to get some paperwork that he could complete with counsel’s assistance. Nevertheless, Kauk met with the Court Services officer and went through an interview in which he 'professed his innocence and lack of remorse for his crimes. Counsel claimed Court Services’ actions constituted a denial.of Kauk’s right to counsel under the state and federal constitutions.

[¶ 5.] Following counsel’s motions, the sentencing court engaged in a colloquy with Kauk in which Kauk admitted that counsel had told him that he wanted to be present when he spoke with Court Services. Kauk further admitted that he had gone to meet with Court Services on his own and stated that counsel did not come because “he had something else to do.” When asked by the court whether he knew that he could have refused to make any comments, Kauk stated, “I suppose.”

[¶ 6.] Based upon counsel’s argument and the colloquy with Kauk, the court made the following oral findings and decision on counsel’s motions:

Well, I realize that Mr. Kauk does not write very well or read very well, but I do think he understands the nature of the proceedings, the nature of what’s involved with the charges. He understands the plea that he made. We had two hearings on the arraignment. We had to continue the arraignment after one because we had a problem establishing a factual basis, and of course that’s the whole basis essentially for [counsel] making the motion. Because now as the Court reads the presentence investigation and report, there is essentially a denial by the defendant that he did anything wrong and a denial that he committed the crime of rape, and he said he didn’t touch the girls, and he said he was — it was sort of a frame-up deal, which of course is information that the Court does deem relevant as far as whether or not this defendant is showing any remorsefulness for his acts or whether he is acknowledging the wrongfulness of his acts which based upon the interview with [Court Services] he then denied.
However, I would find that after visiting today with Mr. Kauk that it appears to me that he knew that his attorney could have been present. He knew that he had a right to say nothing to [Court Services] if he made that election, and he appeared voluntarily for the presen-tence investigation, and on that basis I think it was voluntary.
So I’m going to deny the motion to seal the presentence report, deny the motion that the matter be assigned to a new judge.

[¶ 7.] After ruling on counsel’s motions, the court sentenced Kauk to four years in the penitentiary and a fine and costs of $655 for third degree rape. The court also sentenced Kauk to a suspended sentence of thirty days in the county jail and a fine and costs of $175 for the furnishing alcohol offense. Kauk appeals.

ISSUE ONE

[¶ 8.] Did Court Services’ interview with Kauk without the presence of his attorney constitute a denial of his right to counsel under the state and federal constitutions?

[¶ 9.] Relying primarily on Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) and State v. Wiegers, 373 N.W.2d 1 (S.D.1985), Kauk argues that his presentence interview with Court Services without the presence of his attorney constituted a denial of his right to counsel under the state and federal constitutions.

[¶ 10.] Mitchell held that a guilty plea does not constitute a waiver of the Fifth Amendment privilege against self incrimination and that a sentencing court may not draw adverse inferences from a defendant’s silence in determining facts about the crime that bear upon the severity of the sentence. Mitchell did not address a defendant’s Sixth Amendment right' to counsel during a presentence interview.

[¶ 11.] This Court held in Wiegers that the State’s pretrial interrogation of a defendant in the absence of, and without notice to, his counsel constituted a violation of his right to counsel under the state constitution requiring suppression of any statements obtained. The present case, however, does not involve a pretrial interrogation by the State, but a post-guilty plea/presentence interview by a Court Services worker acting on behalf of the sentencing court.

[¶ 12.] Federal authorities specifically addressing the issue generally hold that there is no Sixth Amendment right to counsel at a presentence interview. As outlined in United United, States v. Leonti, 326 F.3d 1111, 1119-1120 (9th Cir.2003):

[W]e adopted the holdings of the other circuits to consider the question and implicitly endorsed their reasoning. See [United States v. Benlian, 63 F.3d 824, 827-28 (9th Cir.1995) ](citing United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993); United States v. Bounds, 985 F.2d 188, 194 (5th Cir.1993); United States v. Tisdale, 952 F.2d 934, 940 (6th Cir.1992); United States v. Johnson, 935 F.2d 47, 50 (4th Cir.1991); United States v. Jackson, 886 F.2d 838, 844-45 (7th Cir.1989)). Rather than the discretionary nature of sentencing, these circuits focused primarily on the non-adversarial nature of a pre-sentence interview, which is commonly conducted by a probation officer. In United States v. Gordon, 4 F.3d 1567 (10th Cir.1993), the Tenth Circuit noted that the right to counsel attaches only at ‘critical stages of the prosecution. ’ ” Id. at 1571 (quoting [Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972))](emphasis in original). Because the probation officer “is not an agent of the prosecution [,] ... has no adversarial role in the sentencing proceedings!]] ... [and] acts as a neutral information gatherer for the judge,” the right to counsel does not attach. Id. at 1571-72; see also Tisdale, 952 F.2d at 939-40 (holding that because the probation officer “does not act on behalf of the prosecution,” a presentence interview is not a critical stage); Jackson, 886 F.2d at 844 (“A federal probation officer is an extension of the court and not an agent of the government.”); Brown v. Butler, 811 F.2d 938, 941 (5th Cir.l987)(holding that there is no right to counsel at a presentence interview because the probation officer is “an arm of the court charged with assisting the court in arriving at a fair sentence”).

Accord United States v. Archambault, 344 F.3d 732, 736 n. 4 (8th Cir.2003)(no court has found the Sixth Amendment right to counsel applies to routine presentence interviews). See also United States v. Tyler, 281 F.3d 84, 96 (3d Cir.2002)(no court has found the Sixth Amendment right to counsel applies to routine presentence interviews); United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.l993)(presen-tence interview is not a critical stage of the proceeding within the meaning of the Sixth Amendment and, therefore, a defendant has no Sixth Amendment right to the presence or advice of counsel during his pre-sentence interview); United States v. Hicks, 948 F.2d 877, 885 (4th Cir.1991)(there is no Sixth Amendment right to counsel at a routine presentence interview because the presentence interview is not a critical stage of the criminal proceedings); In re Carter, 848 A.2d 281, 299 (Vt.2004)(state cases tend to follow federal majority cases holding there is no Sixth Amendment right to counsel in a presen-tence interview). But see State ex rel. Russell v. Jones, 293 Or. 312, 647 P.2d 904, 907 (1982)(Sixth Amendment requires that counsel may not be barred from attendance at a presentence interview); Carter, supra (holding presentence interview to be a critical stage of the sentencing process and that the Sixth Amendment right to counsel attaches to the interview).

[¶ 13.] ' Based upon the majority rule followed by the foregoing authorities, we hold that there was no denial of Kauk’s right to counsel during his presentence interview.

ISSUE TWO

[¶ 14.] Whether Kauk’s right to remain silent was violated during his presentence interview?

[¶ 15.] Once again relying on Wiegers, supra and also relying on State v. Garber, 2004 SD 2, 674 N.W.2d 320, Kauk argues that his state and federal constitutional rights to remain silent were violated during his presentence interview. Wiegers, however, has been previously distinguished as relating to the right to counsel and the right to remain silent at an investigatory stage prior to conviction rather than during a presentence interview conducted after entry of a guilty plea.

[¶ 16.] Garber, supra followed the Supreme Court’s holding in Mitchell, supra extending the right to remain silent to sentencing proceedings and holding that negative inferences cannot be drawn from the exercise of that right during such proceedings. However, Garber also recognized that the right to remain silent is waived unless invoked and that a person must claim the right or he will not be considered to have been compelled to be a witness against himself. See Garber, 2004 SD 2 at ¶ 23, 674 N.W.2d at 326 (citing United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943); Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984); State v. Dilworth, 83 S.D. 363, 366, 159 N.W.2d 795, 796 (1968)).

[¶ 17.] In Garber, this Court found that the record failed to indicate that the defendant or his attorney affirmatively asserted the right to remain silent at a sentencing hearing when neither the defendant nor his attorney objected to any of the court’s questions and when the defendant voluntarily took the opportunity to speak on his own behalf. See id at ¶ 24. Here, the record fails to show any affirmative assertion of the right to remain silent during the presentence interview until after Kauk had already stated that his situation was a “frame up deal,” that the victims simply took the alcohol and that he did not touch them or have sex with them. Only after that point did Kauk ask whether he should have his attorney with him and state that he did not want to answer any more questions. There was no further questioning of Kauk about his offenses after that point in time.

[¶ 18.] Given the standards in Garber and Kauk’s belated assertion of his right to remain silent during his presentence interview, we hold that the sentencing court was not clearly erroneous in finding that Kauk’s appearance and unremorseful statements were voluntary. See State v. Erickson, 525 N.W.2d 703, 707 (S.D.1994)(findings concerning voluntariness of statements reviewed under clearly erroneous standard with evidence considered .in light most favorable to findings). Clearly Kauk’s statements were not made in the absence of knowledge about his right to remain silent because counsel instructed Kauk of his rights prior to the presentence interview. Moreover, Kauk actually asserted his right to remain silent during the interview and questioning ceased. In addition, it is generally settled that Miranda warnings are not required before presentence interviews. See Tyler, 281 F.3d at 95 (we have never held a probation officer must administer Miranda warnings before conducting presen-tence interviews)(citing United States v. Frierson, 945 F.2d 650, 660 n. 5 (3d Cir.l991))(observing this position is consistent with that in other circuits). See also United States v. Jones, 266 F.3d 804, 812 n. 7 (8th Cir.2001)(questionable whether Miranda is even implicated in a presen-tence interview by a probation officer)(citing Baumann v. United States, 692 F.2d 565, 575-77 (9th Cir.l982)(Miranda not applied to routine presentence interviews); United States v. Rogers, 921 F.2d 975, 979 (10th Cir.l990)(Miranda warnings not required prior to routine presentence interviews)); Jackson, 886 F.2d at 842 n. 4 (finding that Fifth Amendment is not implicated by federal probation officer).

[¶ 19.] Based upon the foregoing, there were no violations of Kauk’s right to counsel or of his right.to remain silent during his presentence interview.

[¶ 20.] Affirmed:

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . The third degree rapes were charged as Class 3 felonies under SDCL 22-22-1 ©(victim ten years of age, but less than sixteen, and perpetrator at least three years older than victim). The furnishing alcohol offenses were charged as Class 1 misdemeanors under SDCL 35-9-1 (Class 1 misdemeanor to give alcoholic beverage to any person under age eighteen).

      . Although Kauk argues both his state and federal constitutional rights to counsel.and to remain silent were violated, he provides no separate analysis of those' rights under the State Constitution or justification for a more expansive construction of them under the State Constitution than under the U.S. Constitution. See State v. Schwartz, 2004 SD 123, 689 N.W.2d 430 (Konenkamp, J. concurring in result).