author: ZINTER, Justice.

text:
    2006 SD 103
    Jackie L. EDINGER, Plaintiff and Appellant, v. James W. EDINGER, Defendant and Appellee.
    Nos. 24016, 24030.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2006.
    Decided Nov. 21, 2006.

      Rick A. Cain of Cain & Broz, Mobridge, South Dakota, Attorneys for plaintiff and appellant.
    Melissa E. Neville of Bantz, Gosch & Cremer, LLC, Aberdeen, South Dakota, Attorneys for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Jackie Edinger appeals the division of property in her divorce. She contends that the trial court erred in valuing her nursing degree as a marital asset to be divided and erred in dividing the parties’ property. By notice of review, James appeals the calculation of child support and the award of attorney’s fees to Jackie. We reverse the division of property and remand for an equitable division. We affirm all other issues.

Facts and Procedural History

[¶ 2.] Jackie and James were married August 21,1999. They had two children, a son (born May 20, 1996) and a daughter (born January 19, 2000). Jackie received a nursing degree in the spring of 2001 and was licensed one year later. She has since been employed full time as a nurse. James is engaged in farming. Although Jackie was not involved with the farm, her wages were used for household expenses.

[If 3J The parties agreed to a divorce on grounds of irreconcilable differences. They also agreed to joint custody of the children. Jackie was awarded primary physical custody and James was awarded visitation.

[¶ 4.] With respect to marital property, the record reflects that at the time of their marriage, Jackie and James each had a negative net worth. At the end of the marriage the parties had a combined net worth of $146,700. In dividing the property, Jackie was assigned debts greater than assets, leaving her with net debt of $7,420, and James received the parties’ entire net worth of $146,700.

Issues

[¶ 5.] Jackie appeals this property division raising two issues:

1. Whether the trial court improperly considered her educational degree in making the division of the marital property.
2. Whether the trial court abused its discretion in making an equitable division of the marital property.

James raises the following issues:

3. Whether the trial court erred in calculating child support.
4. Whether the trial court abused its discretion in awarding Jackie $2,400 in attorney’s fees.

Valuation of a Professional Degree

[¶ 6.] “[T]he valuation of property involved in a divorce proceeding will not be overturned unless it is clearly erroneous.” Priebe v. Priebe, 1996 SD 136, ¶ 8, 556 N.W.2d 78, 80 (citing Grode v. Grode, 1996 SD 15, ¶ 5, 543 N.W.2d 795, 799). However, “an educational degree earned during the course of a marriage is not property which is subject to division upon dissolution of marriage.” Kanta v. Kanta, 479 N.W.2d 505, 508 (S.D.1991) (citations omitted). Jackie contends that the trial court improperly valued her nursing degree as a marital asset to be divided.

[¶ 7.] However, the trial court did not do so. In the court’s memorandum opinion, after determining the value of the combined marital assets to be divided, the court specifically stated that its valuation of marital property did “not assign any monetary value to Jackie’s education.” Instead, the trial court properly limited its consideration of Jackie’s degree to the two property division factors that require the court to consider the parties’ post divorce income and ability to earn a living. We acknowledge that in considering the income that would be available to the parties after the divorce, the trial court did state that the parties’ only income producing assets were the farm and Jackie’s degree. However, the court specifically declined to value the nursing degree and the court’s remaining analysis reflects that it only considered the degree to determine the parties’ post divorce income and ability to earn a living. Because the trial court was required to consider Jackie’s educational degree for these purposes, we affirm on this issue.

Equitable Division of Property

[¶8.] Our standard of review for the division of property is well established.

A trial court’s division of property will not be overturned by this court unless it appears the trial court abused its discretion. Billion v. Billion, 1996 SD 101, ¶ 14, 553 N.W.2d 226, 230; DeVries v. DeVries, 519 N.W.2d 73, 75 (S.D.1994). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” DeVries, 519 N.W.2d at 75 (citing Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984)). The determination is not “whether we would have made the same ruling, but whether ‘a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Id. (citing Steffens v. Peterson, 503 N.W.2d 254, 257 (S.D.1993)).

Pellegrin v. Pellegrin, 1998 SD 19, ¶ 10, 574 N.W.2d 644, 646-647. In making an equitable division of the property, the trial court generally considers seven factors. See supra n. 1.

[¶ 9.] Jackie contends that the court’s division of property was an abuse of discretion because it was substantially unequal and it failed to consider her contributions to the property accumulated during the marriage. Jackie points out that at the time of their marriage, she had assets of $3,200 and liabilities of $12,158.99, leaving her with a negative net worth of $8,958.99. At the same time, James had assets of $170,800 and liabilities of $232,800, leaving him a negative net worth of $62,000. The trial court determined that at the end of the marriage the parties had accumulated a joint net worth of $146,700. The court ultimately awarded Jackie non-income producing assets of $29,180 and debts of $36,600 leaving her with net debt of $7,420. This resulted in an award to her of approximately $1,539 of the property accumulated during the five years of the marriage. On the other hand, James was awarded the parties’ entire net worth of $146,700. Because James began the marriage with a negative net worth of $62,000 and ended the marriage with a positive net worth of $146,700, he received approximately $208,700 of the property accumulated during the marriage.

[¶ 10.] In our opinion, this division is inequitable considering the parties’ similar age, health, competence to earn a living, and contributions to the accumulation of property. We understand that the bulk of the property was the farm and related assets, and that the parties agreed that James would retain those assets. However, we are unable to ascertain the trial court’s reasoning for not awarding any adjusting payment. Our inability to ascertain the court’s reasoning is complicated by the fact that we have been unable to duplicate the property values the trial court used to arrive at its division.

[¶ 11.] “In divorce cases, the trial court is required to place a value upon all of the property held by the parties and to make an equitable distribution of that property.” Caughron v. Caughron, 418 N.W.2d 791, 792 (S.D.1988) (citation omitted). See also Guthmiller v. Guthmiller, 2003 SD 120, ¶ 6, 670 N.W.2d 516, 517 (“failure to value a marital asset constitutes an abuse of discretion”). Because we are unable to determine precisely how the court valued the property, we are unable to determine why James received the parties’ entire net worth. We recognize that our inability may be due to the fact that the parties stipulated to the division of much of their property. However, a complete understanding of the property valuation is necessary for our review.

[¶ 12.] Further, even though the parties agreed that James would receive the farm, an equitable division is still ultimately required. This often necessitates some sort of adjusting payment. “While we have in the past expressed a reluctance to require a lump sum payment that would necessitate a sale of a farm and thus put a defendant out of the farming business, the court must also make an award [that] is fair to the spouse.” Hanson v. Hanson, 252 N.W.2d 907, 909 (S.D.1977). Therefore, we reverse and remand for a valuation of all property and a reconsideration of an equitable division.

Child Support

[¶ 13.] “An award of child support will not be disturbed unless the trial court clearly abused its discretion.” Roberts v. Roberts, 2003 SD 75, ¶ 8, 666 N.W.2d 477, 480 (citations omitted). However, the underlying “[fjindings of fact are reviewed under the clearly erroneous standard.” Id.

[¶ 14.] The trial court based James’ child support obligation on the income shown on his 2003 tax return. Eight days before trial, James filed his 2004 tax return. James argues that because SDCL 25-7-6.2, SDCL 25-7-6.3 and SDCL 25-7-6.6 base child support on monthly income and federal tax returns, the trial court erred in refusing to consider his 2004 return. However, the trial court refused to consider the 2004 return because the court found that James was untruthful and that the 2004 return had been manipulated to hide assets.

[¶ 15.] Although James contends that there was no evidence to support the findings of dishonesty and manipulation, he is mistaken. The trial court noted in its memorandum opinion that:

After hearing [James] testify and considering all of the evidence presented, I find that he has been intentionally manipulating his income and expenses to minimize his income and assets. I further find that he knowingly testified falsely about matters in this case.

These findings would normally end this matter, but James claims that the court should have specified the points on which it considered him dishonest. However, the court’s various references to James’s conduct clearly reflect that it was skeptical about the differences in the valuations James gave to his bank and to the court. Further, “‘[w]e give the trial court’s opportunity to judge the credibility of witnesses and to weigh their testimony due regard when reviewing the trial court’s findings of fact.’ ” Walker v. Walker, 2006 SD 68, ¶ 11, 720 N.W.2d 67, 70-71 (quoting Midzak v. Midzak, 2005 SD 58 ¶ 14, 697 N.W.2d 733, 737-738). Therefore, there was no clear error in the trial court’s findings that James lied and attempted to misrepresent his finances.

[¶ 16.] James also argues that use of the 2003 return was an abuse of discretion because it reflected two years of crop insurance payments, giving an appearance of greater annual income than he actually receives. However, as the trial court noted, the 2003 return accurately reflected James’s average income over the last four years. Considering the fluctuating nature of James’s farming income, we find no abuse of discretion in basing child support on a tax return that more accurately reflected average income.

Attorney’s Fees

[¶ 17.] The trial court awarded Jackie $2,400 in attorney’s fees. The court specifically noted that this amount (approximately thirty percent of Jackie’s total fees) was attributable to problems caused by James’ lack of candor and unreasonable conduct. James does not appeal this finding. He only argues that Jackie was not entitled to attorney’s fees because the trial court did not first explicitly determine the reasonableness of the fees. James correctly points out that our cases generally require a two-step analysis:

AttorneyFs] fees in domestic relations cases are provided for by SDCL 15-17-38. It provides, in pertinent part: [“] The court, if appropriate, in the interests of justice, may award payment of attorney’s fees in all cases of divorce, ... support or alimony. The court may award the fees before or after judgment or order.[”] This statute .... require[s] a two-step analysis: First, the court must determine what constitutes a reasonable attorneyf’s] fee. This requires consideration of (1) the amount and value of the property involved, (2) the intricacy and importance of the litigation, (3) the labor and time involved, (4) the skill required to draw the pleadings and try the case, (5) the discovery utilized, (6) whether there were complicated legal problems, (7) the time required for the trial, and (8) whether briefs were required. Second, it must determine the necessity for such fee. That is, what portion of that fee, if any, should be allowed as costs to be paid by the opposing party. This requires consideration of the parties’ relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case.

Billion v. Billion, 1996 SD 101, ¶¶ 48-49, 553 N.W.2d 226, 236-237 (citation omitted).

[¶ 18.] Concededly, the first part of the usual analysis involves a determination of the reasonableness of the fee, which was not independently addressed by the trial court. However, the court’s memorandum opinion reflects that it considered this issue. The court noted that it had “carefully reviewed the billings provided by [Jackie’s lawyer].” Furthermore, the trial court expressly noted: “While mathematical certainty is not possible, I am convinced that at least 30% of Ms. E dinger’s attorney’s fees were attributable to Mr. Edinger’s conduct.” Therefore, even though the word “reasonableness” was not explicitly stated, the record as a whole reflects that the trial court carefully reviewed the fees and found $2,400 to be reasonable. We also note that James has argued this point in the abstract without pointing out why $2,400 was unreasonable. Considering the court’s analysis together with the absence of any showing of unreasonableness, we conclude that the trial court’s award was not an abuse of discretion.

Appellate Attorney’s Fees

[¶ 19.] James has moved for an award of appellate attorney’s fees. Because he has not prevailed on any issue, that motion is denied. Jackie has also moved for appellate attorney’s fees in the amount of $3,078.24. We award those fees pursuant to SDCL 15-26A-87.3.

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

      . In making an equitable property division, the trial court must consider the following factors: (1) the duration of the marriage; (2) the value of the property; (3) the age of the parties; (4) the health of the parties; (5) the parties' competency to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties' assets.

        Anderson v. Anderson, 2002 SD 154, ¶ 12, 655 N.W.2d 104, 107 (citing Roupe v. Roupe, 1996 SD 25, ¶ 14, 544 N.W.2d 540, 543).

      . Jackie has a seizure disorder that is currently controlled by medication. Neither party has any other health problems.

      . The court referenced a financial statement valuing the farm, and specifically valued some of the personal property, but we are unable to value the remaining property and only find a conclusion concerning the parties' total worth.

      .Because of our ruling we do not reach James’ arguments concerning the valuation of the machinery. Further, no timely objection was raised to that valuation, and this issue appears to have been raised for the first time on appeal. "This Court does not review issues raised for the first time on appeal.” A-G-E Corp. v. State, 2006 SD 66, ¶ 19, 719 N.W.2d 780, 786.

      . For example, James received $2,860 in government payments in 2002, $36,900 in 2003, and at the time of the October 2005 trial, James had already received $73,000 for 2005. James’ crop insurance proceeds were approximately $56,000 in 2002 and 2003, but were $39,000 in 2004. His grain sales were $17,725 in 2003 and $45,999 in 2004. His gross income was $122,844 in 2004 and already $124,000 as of October 2005, without crop insurance payments.


source: Caselaw Access Project

author: SABERS, Justice. GILBERTSON, Chief Justice

license: Public Domain

text:
    2006 SD 102
    Ryan Lee VANDEN HOEK, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 23972.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 28, 2006.
    Decided Nov. 21, 2006.

      Mike C. Fink, Bjorkman & Fink, Bridgewater, South Dakota, Attorney for petitioner and appellant.
    Lawrence E. Long, Attorney General, Daniel J. Todd, Assistant Attorney General, Department of Social Services Legal Services, Pierre, South Dakota, Attorneys for respondent and appellee.

      . As noted in Waldner, “Since 1997 it has been the settled law in the State of South Dakota that the remedy for the breach of a plea agreement is resentencing before a different judge.” 2005 SD 11, ¶ 14, 692 N.W.2d 187 n. 3, 692 N.W.2d at 192 n. 3 (citing Bracht, 1997 SD 136, ¶ 12, 573 N.W.2d at 180) (additional citations omitted).

   SABERS, Justice.

[¶ 1.] Ryan Lee Vanden Hoek (Vanden Hoek) pleaded guilty to one count of kidnapping and one count of rape. He received 90 years for the kidnapping charge with 30 years suspended and 25 years for the rape charge, to be served concurrently. On appeal, he raises two issues. We reverse the sentence and remand for resen-tencing.

FACTS

[¶ 2.] In July of 1998, sixteen-year-old Vanden Hoek raped a female employee of the “Readers Den” in Mitchell, South Dakota. He used a knife to force the young woman into a back room of the store where he compelled her to commit various sexual acts. After being apprehended, he was indicted as an adult with two counts of attempted rape, three counts of rape, and one count of kidnapping.

[¶ 3.] Vanden Hoek made a motion to transfer the case to juvenile court. In preparation for the transfer hearing, the court ordered him to undergo a psychiatric evaluation at the Human Services Center (HSC) in Yankton, South Dakota. The HSC psychiatric evaluation indicated Van-den Hoek was not an ideal candidate for transfer, that rehabilitation would likely be frustrated, and “denying [him] access to victims would be far more effective in preventing damage to the population.” Van-den Hoek’s trial counsel did not obtain an independent psychiatric evaluation, nor did Vanden Hoek see the HSC report. After the HSC report, the transfer motion was withdrawn and Vanden Hoek decided to seek a plea agreement.

[¶ 4.] Vanden Hoek, his trial counsel and Assistant Attorney General Ronald D. Campbell (Campbell) entered into a written plea agreement. The terms of the agreement specified Vanden Hoek would plead guilty to kidnapping and second degree rape. In exchange for his guilty plea to these two charges, the State promised to dismiss the remaining counts on the indictment and to recommend sentences of 50 years for the kidnapping and 25 years for the rape, with the sentences to run concurrently. While the State was required to recommend this sentence, Van-den Hoek could argue for any appropriate sentence.

[¶ 5.] Prior to the sentencing hearing, a pre-sentence report (PSR) was compiled. This PSR contained a letter from the victim’s parents requesting Vanden Hoek receive a life sentence and the HSC psychiatric evaluation. The PSR also contained information on Vanden Hoek’s prior record and personal history. Vanden Hoek did not see the PSR prior to sentencing.

[¶ 6.] At the beginning of the sentencing hearing, Assistant Attorney General Anthony M. Sanchez (Sanchez) filed the written plea agreement with the court. However, during the State’s argument Sanchez never recommended the agreed upon term of years. Instead, Sanchez read from the victim’s statement, which argued society should be protected from Vanden Hoek and he should “live with the consequences for the rest of his life.... ” Sanchez also referred to Vanden Hoek as a sociopath, and the boogie man who is “our community’s worst nightmare” and “we need to banish him from all our dreams.” Vanden Hoek’s trial counsel did not object to Sanchez’s sentencing argument, or his failure to recommend the agreed upon term of years. Vanden Hoek was sentenced to 90 years for kidnapping with 30 years suspended and 25 years for the rape to run concurrent with the kidnapping sentence.

[¶ 7.] Vanden Hoek’s trial counsel did not directly appeal his sentence. Instead, Vanden Hoek obtained a new habeas counsel and filed a petition for writ of habeas corpus on November 20, 2000. A provisional writ of habeas corpus was issued by the court on July 10, 2001. After extensive discovery was conducted, a hearing on the amended petition for writ of habeas corpus was held on July 8, 2005. Vanden Hoek’s amended petition for writ of habeas corpus and the motion for issuance of certificate of probable cause were denied. This Court issued a certificate of probable cause and Vanden Hoek raised two issues. He argues: 1) the State breached its duty to recommend a specific term of years and violated the written plea agreement; and 2) Vanden Hoek’s trial counsel was ineffective and deprived him of his Sixth Amendment right to effective assistance of counsel.

STANDARD OF REVIEW

[¶ 8.] “Our standard of review for a habeas appeal is well established.” Crutchfield v. Weber, 2005 SD 62, ¶ 8, 697 N.W.2d 756 (quoting Jackson v. Weber, 2001 SD 136, ¶ 9, 637 N.W.2d 19, 22) (additional citations omitted). Our review of habeas corpus proceedings is limited because it “is a collateral attack on a final judgment.” Id. The review is limited to jurisdictional errors. Boyles v. Weber, 2004 SD 31, ¶ 6, 677 N.W.2d 531, 536 (citing Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595). In criminal cases, a violation of the defendant’s constitutional rights constitutes a jurisdictional error. Id. The defendant has the burden of proving he is entitled to relief by a preponder-anee of the evidence. Id. (citing Siers v. Class, 1998 SD 77, ¶ 10, 581 N.W.2d 491, 494) (additional citations omitted).

[¶ 9.] The findings of fact shall not be disturbed unless they are clearly erroneous. Id. A claim of ineffective assistance of counsel presents a mixed question of law and fact. Id. ¶ 7 (citing Hays, 2002 SD 59, ¶ 11, 645 N.W.2d at 595) (additional citations omitted). The habeas court’s conclusions of law are reviewed de novo. See id. (noting this court “may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel”).

[¶ 10.] We examine the breach of the plea agreement issue as it is determinative.

[¶ 11.] 1. Whether the habeas corpus trial court erred when it concluded that the State did not breach the written plea agreement at sentencing.

[¶ 12.] “Generally, plea agreements are contractual in nature and are governed by ordinary contract principles.” State v. Waldner, 2005 SD 11, ¶ 8, 692 N.W.2d 187, 190 (quoting State v. Stevenson, 2002 SD 120, ¶ 9, 652 N.W.2d 735, 738). When the State breaches a plea agreement, “the defendant may seek specific performance or may seek to withdraw his plea.” Id. (quoting State v. Bracht, 1997 SD 136, ¶ 6, 573 N.W.2d 176, 178). Yanden Hoek argues that the State breached the written plea agreement by not specifically recommending the agreed upon term of years. The State disagrees and claims the agreement was fulfilled when the written plea agreement was filed with the trial court and the court was made aware of the agreement.

[¶ 13.] The contractual duties a prosecutor acquires when entering into plea agreements were set forth in Santobello v. New York. 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In Santobello, the United States Supreme Court stated, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. at 262, 92 S.Ct. at 499. The breach is not dependent on whether the sentencing judge would have been influenced by the breached term of the plea agreement. Id. Instead, “the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case ... for further consideration.” Id. at 262-63, 92 S.Ct. at 499.

[¶ 14.] “Like all contracts, [plea agreements] include[] an implied obligation of good faith and fair dealing.” United States v. Jones, 58 F.3d 688, 692 (D.C.Cir.1995) (citing Restatement (Second) of Contracts § 205 (1981)). See also United States v. Sparks, 20 F.3d 476, 479 (D.C.Cir.1994) (noting a prosecutor’s nonperformance of a plea agreement may be reviewed for bad faith); United States v. Crawford, 20 F.3d 933, 935 (8thCir.1994) (noting whether “the behavior of a party failing to perform ... comports with the standards of good faith and fair dealing” is an inquiry when deciding if a material breach occurred). Furthermore, a breach of a plea agreement implicates due process concerns. “[O]nce an accused agrees to plead guilty in reliance upon a prosecutor’s promise to perform a future act, the accused’s due process rights demand fulfillment of the bargain.” Waldner, 2005 SD 11, ¶ 13, 692 N.W.2d at 191-92 (citing State v. Williams, 249 Wis.2d 492, 637 N.W.2d 733, 744 (2002)) (internal quotations omitted).

[¶ 15.] The determinative inquiry in this case is, did Sanchez breach the terms of the written plea agreement by not specifically recommending the agreed upon term of years during his sentencing argument? If failing to verbalize the terms of the plea agreement, while arguing the terrible nature of Vanden Hoek’s crimes is a breach, then Vanden Hoek would be entitled to relief. A look at prior South Dakota cases regarding a plea agreement breach is helpful in this analysis.

[¶ 16.] In Bracht, the State agreed not to resist Bracht’s request for a suspended imposition of sentence and the plea agreement was explained to the trial court. 1997 SD 136, ¶¶ 2-3, 573 N.W.2d at 177. During sentencing, Bracht argued for a suspended imposition, but the State requested the court impose, “[t]he same or similar — a sentence similar to what you would impose in other cases.” Id. ¶ 4. After Bracht pointed out the State agreed not to resist the suspended imposition request, the State responded, “[w]ell, I’m not going to argue against that or resist that request if that’s what’s been put on the record, but I would just leave the sentence in the [c]ourt’s discretion.” Id. (first alteration in original). We held the State breached the plea agreement and remanded for resentencing since the State did not fulfill its promise. Id. ¶ 13.

[¶ 17.] Likewise, in Waldner, we vacated and remanded for resentencing due to the prosecution’s failure to recommend concurrent sentences. 2005 SD 11, ¶ 15, 692 N.W.2d at 193. In that case, the State and Waldner entered into a written plea agreement in which a guilty plea was exchanged for the State’s agreement, among other things, to recommend concurrent sentences. Id. ¶ 3. This agreement was filed with the sentencing court. Id. ¶ 2. The State failed to recommend concurrent sentences and instead, “argued the ‘atrocious’ nature of the[] crimes....” Id. ¶ 4.

[¶ 18.] In Waldner, we stated, “the terms of the plea agreement created an affirmative obligation for the State’s Attorney to recommend to the trial court that the sentences ... run concurrently....” Id. ¶ 10. The State did not meet this obligation when it failed to specifically request concurrent sentences.

[¶ 19.] In this case, the State did not mention the terms of the plea agreement during the sentencing argument. Instead, Sanchez argued that Vanden Hoek was the “boogie man,” the “community’s worst nightmare” and the court should “banish [Vanden Hoek] from all our dreams.” He also read from the victim’s letter, which encouraged such a sentence that Vanden Hoek would have to “live with the consequences for the rest of his life....”

[¶ 20.] Sanchez’s argument did not fulfill the State’s affirmative obligation to recommend the terms of the plea agreement. In fact, it is clear from the record that Sanchez was never going to mention the terms of the plea agreement during his argument. In his deposition, he testified the 50-year sentence under the terms of the plea agreement was “too lenient.” Furthermore, it was his philosophy not to mention a term of years in case the judge would give a number less than the terms of the plea agreement. Although Sanchez testified he did not act with the intention of getting more time than the plea agreement proposed, his actions still constituted a breach, since he failed to specify the term of years. Even though “the breach ... may have been inadvertent ..., the defendant is still entitled to [relief].” Waldner, 2005 SD 11, ¶ 13, 692 N.W.2d at 192 (quoting State v. Howard, 246 Wis.2d 475, 630 N.W.2d 244, 250-51 (App 2001)).

[¶ 21.] The State argues, and the habe-as court agreed, that the terms of the plea agreement were fulfilled by making the judge aware of the plea agreement and filing the written agreement with the court. However, our case precedent requires more. The plea agreement in Waldner was filed and the court was aware of the agreement. 2005 SD 11, ¶ 2, 692 N.W.2d at 188. Likewise, in Bracht, the court was aware of the plea agreement, 1997 SD 136, ¶¶ 2, 4, 573 N.W.2d at 177-78, but in both instances we reversed the defendant’s sentences due to the prosecutions failure to perform his duties under the plea agreement. Waldner, 2005 SD 11, ¶ 15, 692 N.W.2d at 193; Bracht, 1997 SD 136, ¶ 15, 573 N.W.2d at 181.

[¶22.] Whether the court knew of the agreement or was affected by the breach “is of no legal significance.” Waldner, 2005 SD 11, ¶ 12, 692 N.W.2d at 191 (citing Bracht, 1997 SD 136, ¶ 7, 573 N.W.2d at 179). The defendant waives significant rights by entering into a plea agreement and that waiver is “not in exchange for the actual sentence or impact on the judge, but for the prosecutor’s statements in court.” Id. ¶ 12 (emphasis added). The inquiry is solely “whether the [State has] met [its] obligation.” Id. If the statements “are not adequate the waiver is ineffective.” Id. (quoting United States v. Clark, 55 F.3d 9, 14 (1stCir.1995)).

[¶ 23.] Looking at the government’s promise in the plea agreement, Sanchez was required to recommend a specific term of years. Vanden Hoek waived important rights in exchange “for the prosecutor’s statements in court.” Id. This duty was not fulfilled by merely drawing the court’s attention to the fact a plea agreement existed then turning around and impliedly arguing for a tougher sentence without mentioning the agreed term of years. Likewise, the State’s duty to act in good faith when performing its obligations under the plea agreement was not fulfilled by arguing the nature of the crimes but not specifically mentioning the bargained for recommendation of 50 years. The State’s “rhetoric was not rhetorical,” and instead amounts to a “transparent effort to influence the severity of the defendant’s sentence,” without fulfilling its end of the bargain. Bracht, 1997 SD 136, ¶ 9, 573 N.W.2d at 179 (quoting United States v. Miller, 565 F.2d 1273, 1276 (3dCir.1977) (Stern, District Judge, dissenting)).

[¶ 24.] The State’s failure to recommend a term of years during the sentencing hearing constitutes a breach of the plea agreement. This failure was a material breach of the agreement. The recommendation of a specific term of years was an important benefit Vanden Hoek relied upon when he entered into the plea agreement. “One of the most crucial issues in a plea agreement is the recommendation concerning the length of time to be served on each count,” so it certainly cannot be called immaterial. Waldner, 2005 SD 11, ¶ 11, 692 N.W.2d at 191 (citing Howard, 246 Wis.2d at 489-90, 630 N.W.2d at 250-51).

[¶ 25.] When the State breaches the terms of a plea agreement, the proper remedy is remand for resentencing before a new judge. “We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” Id. ¶ 14, 630 N.W.2d 244 (citing Bracht, 1997 SD 136, ¶ 12, 573 N.W.2d at 180) (quoting Santobello, 404 U.S. at 263, 92 S.Ct. at 499)). Therefore, Vanden Hoek’s sentence is vacated and case remanded for resentencing by a different judge.

[¶ 26.] Based on our decision, it is unnecessary to address the ineffective assistance of counsel issue.

[¶ 27.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

[¶ 28.] GILBERTSON, Chief Justice, concurs in part and dissents in part.

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶29.] I agree that this case needs to be remanded for resentencing so that the defendant may receive the benefit of the plea agreement he entered into.

[¶ 30.] However, I respectfully dissent from this Court’s direction that this case be remanded to a different circuit judge for that resentencing. There are no facts which establish any bias or improper conduct on the part of the original sentencing court. Moreover, based on the cases I cited in State v. Waldner, 2005 SD 11, ¶¶ 18-22, 692 N.W.2d 187, 193 (Gilbertson, C.J., concurring in part and dissenting in part), and State v. Bracht, 1997 SD 136, ¶¶ 37-38, 573 N.W.2d 176, 185 (Gilbertson, C.J., dissenting), I see no legal basis to do so.

      . Sanchez replaced Campbell as the prosecutor in this case when Campbell left the Attorney General’s office.

      . This Court used Sanlobello’s rationale recently to vacate the sentences in Bracht, 1997 SD 136, ¶ 7, 573 N.W.2d at 179, and Waldner, 2005 SD 11, ¶ 9, 692 N.W.2d at 190.

      . An excerpt from Sanchez’s deposition is as follows:
      Q: Is it fair to say, Mr. Sanchez, that you felt 50 years for Mr. Vanden Hoek was too lenient?
      A: That would be my opinion, yes.

      . Another excerpt from Sanchez’s deposition:
      Q: Was it your policy in 1998 not to discuss numbers when you go in front of a judge for a sentencing hearing?
      A: Yeah, that — that’s pretty much the way I like to operate. I don’t like to mention the numbers.


author: PER CURIAM.

text:
    2006 SD 105
    STATE of South Dakota, Plaintiff and Appellee, v. Charles DIVAN, Defendant and Appellant.
    No. 23889.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 2, 2006.
    Decided Nov. 21, 2006.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Gregory J. Sperlieh of DeMersseman, Jensen, Christianson, Stanton & Huffman, LLP, Rapid City, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Charles Divan appeals an order revoking his suspended imposition of sentence contending the probation conditions were impossible to comply with and the trial court abused its discretion in concluding they were violated. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] On January 26, 2001, an information was filed charging Divan with twenty-seven counts of possessing stolen property. All the stolen property in this case consisted of cattle owned by Divan’s neighbors that were discovered on his property. Divan entered into a plea agreement in which he agreed to plead nolo contendere to one count of possession of stolen property in exchange for the State dismissing all other charges. The court granted Divan a suspended imposition of sentence and placed him on probation for a period of ten years with several terms and conditions. The condition at issue here stated:

If the Defendant shall come in possession or discover any stray or unbranded cattle, he shall immediately notify the Shannon County Sheriffs Office.

[¶ 3.] On December 22, 2004, the State filed a petition seeking revocation of Divan’s suspended sentence alleging that Divan failed to notify the Shannon County Sheriff of unbranded cattle on property he owned, leased, or controlled within Shannon County. At the hearing on this petition, evidence was presented that two cows branded and identified as belonging to Vern Fortune and an unbranded calf were discovered in Range Unit 38. Although this unit is owned by the Oglala Sioux Tribe and leased to Tom Ward (Ward), the court found that Divan had control over that unit based on his relationship with Ward. The court considered that a substantial number of cattle found in Range Unit 38 were double branded with both Ward’s and Divan’s brands. Although Ward testified that Divan did not “run” any cattle in Range Unit 38, and the cattle that were double branded were those Ward bought from Divan in 1990, testimony was also presented that the double branded cattle were not that old and could not exclusively be those purchased from Divan. Ward further testified that the Divan family was helping him out by watching Range Unit 38 during the fall of 2004. However, Divan testified that he does not own, lease or control any portion of Range Unit 38.

[¶ 4.] FBI Agent Charlie Cresalia (Cresalia) testified that Divan’s father made a statement to him that Divan had an agreement with Ward. According to this agreement, Divan would use Ward’s leased land to run Divan cattle and also take care of Ward’s cattle. Divan did not object to this hearsay testimony. Cresalia also testified that Divan made a voluntary statement after his arrest that he had an agreement with Ward and is responsible for Ward’s lease. Sheriff Jim Daggett (Daggett) also testified that Divan’s father mentioned that Divan was running cattle together with Ward on the Ward lease. Divan made a motion to exclude this testimony as hearsay, but the court allowed the testimony pursuant to SDCL 19-9-14(4) (Rule 1101(b)(3)). After weighing the testimony and credibility of all the witnesses, the court concluded that Divan was in violation of the terms and conditions of his probation and sentenced Divan to eight years in the State Penitentiary with four of those years suspended.

[¶ 5.] Divan appeals, raising two issues:

1. Whether the trial court abused its discretion when it found Divan in violation of the conditions of his probation.
2. Whether it was impossible for Divan to comply with the terms and conditions of his probation.

ANALYSIS AND DECISION

[¶ 6.] 1. Whether the trial court abused its discretion when it found Divan in violation of the conditions of his probation.

[¶ 7.] A probation revocation proceeding is not a criminal prosecution. State v. Short Horn, 427 N.W.2d 361, 362 (S.D.1988) (citations omitted). Thus, this Court has held:

‘Proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking probation. A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.’

State v. Beck, 2000 SD 141, ¶ 7, 619 N.W.2d 247, 249 (quoting State v. Christian, 1999 SD 4, ¶ 12, 588 N.W.2d 881, 883 (citations omitted)). However, “for this Court to sustain an order which revokes probation, a factual showing must exist which justifies the exercise of the trial court’s discretion.” Short Horn, 427 N.W.2d at 362 (citations omitted). As long as there is adequate evidence to support this minimal level of scrutiny, the trial court’s decision will be upheld. Matter of Brown, 1997 SD 133, ¶ 8, 572 N.W.2d 435, 437.

[¶ 8.] Divan argues that even under this relaxed burden of proof there is insufficient evidence to sustain the probation revocation. He contends the trial court’s consideration of hearsay testimony was an abuse of discretion and a violation of the Confrontation Clause. Absent this hearsay evidence, Divan asserts there is insufficient evidence that he violated his probation. The State responds that Divan’s hearsay objection was insufficient to preserve the confrontation issue on appeal. The State also claims Divan has not shown any prejudicial error stemming from the introduction of the disputed testimony, because substantially identical testimony was admitted without objection.

[¶ 9.] “Generally, parties must object to specific court action and state the reason underlying their objection so that the circuit court has an opportunity to correct any error.” State v. McCrary, 2004 SD 18, ¶ 15, 676 N.W.2d 116, 121 (citations omitted). Further, a hearsay objection at trial is not sufficient to preserve a confrontation clause objection on appeal. Young v. Lockhart, 892 F.2d 1348, 1354 (8th Cir.1989) (citation omitted), see also State v. Howard, 509 N.W.2d 764, 769 (Iowa 1993) (stating a hearsay objection is not specific enough to raise the issue of the constitutional right to confrontation) (citing State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982)). In this case, Divan objected to Daggett’s testimony as “beyond the direct and it’s now hearsay on an unrelated area.” This objection was not sufficiently specific to inform the trial court of the confrontation claim now argued. Therefore, this issue was not properly preserved for appeal.

[¶ 10.] Moreover, “no prejudice issues from admission of evidence where substantially the same evidence is elsewhere in the record without objection.” State v. Hood, 346 N.W.2d 481, 484 (Iowa 1984) (citation omitted). “Where inadmissible evidence admitted at trial is cumulative only and other admissible evidence supports the result, the cumulative evidence, though inadmissible, is non-prejudicial.” State v. Tribitt, 327 N.W.2d 132, 135 (S.D.1982) (citations omitted). Even if we assume Daggett’s testimony included inadmissible hearsay, this same testimony was offered by Cresalia without objection. Thus, there is no prejudicial error resulting from its admission.

[¶ 11.] In admitting this hearsay testimony, the trial court relied upon SDCL 19-9-14(4) (Rule 1101(b)(3)), which provides:

Except as otherwise provided in this section, chapters 19-9 to 19-18, inclusive, apply to all actions and proceedings in the courts of this state. Those chapters other than those with respect to privileges do not apply in the following situations:
(4) Sentencing, or granting or revoking probation.

However, the federal courts have held that even when the federal rules of evidence do not apply, a defendant does not lose all confrontation rights. U.S. v. Reynolds, 49 F.3d 423, 426 (8th Cir.1995). Although “Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), involving the contours of the confrontation right in criminal prosecutions, does not apply” to probation revocation proceedings, U.S. v. Martin, 382 F.3d 840, 844, n. 4 (8th Cir2004), there is still a limited due process right to confront and cross-examine adverse witnesses in a revocation hearing. Martin, 382 F.3d at 844. Most federal courts have agreed with this conclusion that Crawford is inapplicable in parole revocation hearings. State v. Abd-Rahmaan, 154 Wash.2d 280, 111 P.3d 1157, 1161 (2005); see e.g., U.S. v. Hall, 419 F.3d 980, 985-86 (9th Cir.2005); U.S. v. Kirby, 418 F.3d 621, 627 (6th Cir.2005); U.S. v. Aspinall, 389 F.3d 332, 342-43 (2d Cir.2004); U.S. v. Rondeau, 430 F.3d 44, 48 (1st Cir.2005); Ash v. Reilly, 431 F.3d 826, 829 (D.C.Cir.2005).

[¶ 12.] In United States v. Bell, 785 F.2d 640 (8th Cir.1986), the Eighth Circuit Court of Appeals “devised a balancing test to determine whether evidence has been admitted at a probation revocation hearing in violation of the applicable limited right to confront and cross-examine adverse witnesses.” Martin, 382 F.3d at 844. According to this test, “the trial court must balance the defendant’s constitutional right to confront a witness against any governmental explanation for ‘why confrontation is undesirable or impractical.’ ” Reynolds, 49 F.3d at 426 (quoting Bell, 785 F.2d at 643 (additional citation omitted)). “It must also consider the reliability of the evidence offered in place of live testimony.” Id. (citing Bell, 785 F.2d at 643). Additionally, “where the government demonstrates that the burden of producing live testimony would be inordinate and offers in its place hearsay evidence that is demonstrably reliable it has made a strong showing of good cause.” Id. (emphasis added). However, the mere finding that the hearsay statements are inherently reliable does not alone suffice to establish the admissibility of hearsay statements. Martin, 382 F.3d at 846 (citing U.S. v. Zentgraf, 20 F.3d 906, 910-11 (8th Cir.1994) (hearsay evidence was improperly admitted where the government failed to show good cause for not producing the live witness, even though there was an adequate basis for finding the out-of-court statement reliable)).

[¶ 13.] In this case, Divan’s father was not called to testify by either party. However, both Daggett and Gresalia testified to Divan’s father’s out-of-court statements. There was no evidence set forth by the State showing that it was undesirable or impractical to produce Divan’s father for live testimony. On the other hand, the hearsay evidence offered in its place is demonstrably reliable. Daggett and Cresalia independently testified to the same language used by Divan’s father describing the agreement with Ward. Additionally, these statements appear to be against Divan’s father’s interest because it imputes control over Ward’s property to himself and his son. But ultimately, as this evidence was cumulative in nature to other properly admitted evidence, we need not perform a balancing test as under such circumstances its admission cannot constitute prejudicial error.

[¶ 14.] Divan does not dispute the fact that stray and unbranded cattle were located in Range Unit 38. Thus, the only issue before the trial court was whether Divan owned, leased or controlled this territory. The evidence established that this unit was tribally owned and leased to Ward. However, there was conflicting evidence concerning whether Divan had cattle on the unit, thereby exercising control over the territory. Although some of the testimony relied upon was hearsay evidence, there was also testimony from Ward regarding an arrangement with Divan and a voluntary statement from Divan confirming an arrangement with Ward. “We give the trial court’s opportunity to judge the credibility of the witnesses and to weigh their testimony due regard when reviewing the trial court’s findings of fact.” Midzak v. Midzak, 2005 SD 58, ¶ 14, 697 N.W.2d 733, 738 (citations omitted). Here, the trial court’s decision was based on credibility determinations and the reliability of the evidence offered. On this record, there is adequate evidence to uphold the trial court’s conclusion that Divan violated his probation condition.

[¶ 15.] 2. Whether it was impossible for Divan to comply with the terms and conditions of his probation.

[¶ 16.] Divan claims the conditions of his probation were impossible to comply with because it is so common for cattle to get out of a particular pasture. He argues that it would be impossible for him to have knowledge of stray cattle on his land. Pursuant to SDCL 23A-27-18, trial courts are empowered with a wide latitude of discretion in imposing conditions of probation. State v. Pettis, 333 N.W.2d 717, 719 (S.D.1983). “This Court’s review of conditions of probation is an inquiry to see if those conditions are legal and reasonable.” Id. (citing White Eagle v. State, 280 N.W.2d 659, 660 (S.D.1979)). This Court has stated,

The granting of suspended imposition of sentence ... is strictly a matter of grace and rests solely within the discretion of the court. It is not a matter of right or entitlement and the exercise of that discretion includes the imposition of conditions. Further, the only limitation on what conditions may be imposed are that they be legal and reasonable.

White Eagle, 280 N.W.2d at 660 (citations omitted).

[¶ 17.] Further, “terms and conditions of probation are not part of the court’s mandatory sentence and if the appellant deems them too severe he need not accept the probation and may demand immediate sentencing.” State v. Jackson, 272 N.W.2d 102, 104 (S.D.1978) (citation omitted). “Appellant may not be heard to complain of probation conditions voluntarily accepted.” Id. (citations omitted). Also, “essential to the process of establishing probation conditions is an exceptional degree of flexibility.” Pettis, 338 N.W.2d at 719 (citation omitted). “ Tt is necessary to individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion.’ ” Id. (quoting State v. Elder, 77 S.D. 540, 544, 95 N.W.2d 592, 594 (1959) (internal citation omitted)). Therefore, “ ‘conditions of probation may be tailored to suit the needs, practicalities and realities of each case to better serve the defendant and the public.’ ” Id. (quoting White Eagle, 280 N.W.2d at 661).

[¶ 18.] In structuring this sentence for Divan, the trial court instructed, “You need to do a better job of sorting out what belongs where.” It is clear that the court imposed this condition to ensure Divan would check his cattle and discover strays on his property. This condition serves the needs of the public by protecting them from having their cattle lost or stolen. Divan voluntarily accepted this condition and readily complied with it at the beginning of his probation. As Daggett testified, in the beginning there were many instances where Divan would report stray cattle on his property. However, as time went on Divan had less and less contact with the Sheriffs office. The condition was imposed to ensure Divan actively managed the cattle operation and his property to avoid claims of lost or stolen cattle. On these facts, it was not unreasonable for the court to impose responsibility on Divan to check his cattle and look for strays, nor does it appear impossible for Divan to comply with that request.

[¶ 19.] Affirmed.

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

       SDCL 23A-27-18 provides: "Upon conviction, the court having jurisdiction to try the offense may suspend the execution of any sentence imposed during good behavior, subject to such conditions or restitutions as the court may impose. The suspension order or judgment can be made only by the court in which the conviction occurred."


text:
    2006 SD 104
    STATE of South Dakota, Plaintiff and Appellee, v. Jerrold Ray MARTIN, Defendant and Appellant.
    No. 23942.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2006.
    Decided Nov. 21, 2006.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Chris Beesley of Beesley Law Office, Custer, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Jerrold Ray Martin appeals a restitution order entered following his guilty plea to intentional damage to property. Martin contends the trial court erred as a matter of law in calculating the amount of restitution. We reverse and remand.

FACTS

[¶ 2.] On December 24, 2004, Martin illegally entered the home of Michael and Paula Kear in Buffalo Gap, South Dakota. Martin destroyed a large amount of their personal property. Martin pleaded guilty to intentional damage to property as a result of this incident. Following the guilty plea, a restitution hearing was held.

[¶ 3.] The dispute involved the value of the damaged property. The parties agreed on the value of a number of items totaling approximately $470. The remaining items in dispute included a computer, gun cabinet, oriental rug, bookcases, books, aquarium, three antique lamps, lead crystal candy dishes, a curio cabinet, guns and a sofa. Martin offered estimates from an auctioneer that the remaining property would bring between $1680 and $3975 at auction. On the other hand, Michael and Paula Kear testified that the replacement value of the remaining property ranged between $8070 and $8250. The Kears’ valuation was based on a combination of estimates received and actual purchase prices. Including the undisputed items, the range of values presented to the trial court was approximately $2150-$8720.

[¶ 4.] The trial court ordered $8,552.58 in restitution. Martin appeals the restitution order arguing that the trial court inappropriately awarded the full replacement value of the property destroyed without considering depreciation or fail-market value.

ANALYSIS

[¶ 5.] “At a restitution hearing, the defendant is entitled to confront witnesses against him, but the rules of evidence and civil burden of proof do not apply.” State v. Ruttman, 1999 SD 112, ¶ 3, 598 N.W.2d 910, 911 (citing State v. Tuttle, 460 N.W.2d 157, 159 (S.D.1990)). Therefore, the “reasonably satisfied” standard of proof applies in determining restitution. Tuttle, 460 N.W.2d at 160. Furthermore, a trial court has broad discretion in imposing restitution. State v. Thayer, 2006 SD 40, ¶ 16, 713 N.W.2d 608, 613. However, questions of law are reviewed under a de novo standard with no deference given to the trial court’s conclusions. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citations omitted).

[¶ 6.] SDCL ch 23A-28 governs restitution in criminal cases. SDCL 23A-28-1 declares “[i]t is the policy of this state that restitution shall be made by each violator of the criminal laws to the victims of the violator’s criminal activities to the extent that the violator is reasonably able to do so.” “Restitution” is defined as the “full or partial payment of pecuniary damages to a victim.” SDCL 23A-28-2(4). Significantly, “pecuniary damages” are defined as “all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, except punitive damages and damages for pain, suffering, mental anguish, and loss of consortium.” SDCL 23A-28-2(3). Therefore, the civil measure of damages applies.

[¶ 7.] At the restitution hearing, the parties disagreed whether restitution should be based upon full replacement value, whether depreciation should be considered, and whether restitution should be limited to the fair market value of the property destroyed. The trial court ultimately ruled:

If it was a civil case, I would take fair market value. I think I would have to take fair market value. Under the circumstances of a criminal offense, and the fact that people have lost their property that was personal to them, unless you can show me authority that says I cannot consider replacement value, I would intend to proceed on replacement value because of the nature of the request.

The trial court thereafter rendered its decision without entering findings of fact and conclusions of law.

[¶ 8.] Because we have no findings of fact and conclusions of law, we are unable to determine the trial court’s precise measure of damages. See Tuttle, 460 N.W.2d at 159 (“it is appropriate that the trial court enter written findings of fact in support of any order of restitution”). However, it appears from the amount of restitution awarded, that replacement value was primarily utilized without regard to depreciation. Moreover, it is clear from the trial court’s oral pronouncement that it rejected the “civil” measure of damages. Because the civil measure of damages is expressly incorporated in the restitution statutes, the trial court erred as a matter of law in rejecting that measure out of hand. See SDCL 23A-28-2(3).

[¶ 9.] Our discussion of the appropriate measure of damages must begin with the statutes governing the civil measure of damages for the destruction of personal property. SDCL 21-1-6 generally requires a consideration of market value in assessing such damages. That statute provides:

In estimating the damage to property, except in the cases prescribed in §§ 21-1-8 and 21-1-9, the value of such property to the owner is deemed to be its market value at the time and in the market nearest to the place where it was located at the time of the damage.

However, the peculiar value of an item to a person may be considered in recovering damages against a willful wrongdoer. SDCL 21-1-8 provides:

Where certain property has a peculiar value to a person recovering damages for a deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.

(emphasis added).

[¶ 10.] Commentators have recognized an exception similar to SDCL 21-1-8 in valuing a loss, injury or conversion of household goods:

Clothing and household goods are capable of being valued, since secondhand goods of this nature are regularly bought and sold, but it has been argued that such goods are personal, and awarding secondhand market value is not adequate compensation to the owner. In these cases, courts do not limit damages to secondhand market value, but allow the owner to recover either the actual value of the item or its value to the owner, excluding any fanciful or sentimental value which the owner may place on the item.

22 Am.Jur.2d Damages § 292 (2006). See also Eades, Jury Instructions on Damages in Tort Actions, § 10.09 (household goods, clothing and personal effects). In valuing such property:

The courts faced with the problem have almost universally agreed that the owner of such property suing in tort for its loss, injury or conversion is not limited to the value of similar goods on the secondhand market, but may recover their actual value to him. This rule has been justified on the ground that the market for secondhand goods of this type does not actually reflect the economic value of the goods to the owner, since most people in this position will not in fact go into the secondhand market for replacements, but will be ‘forced’ to purchase new goods.
The courts in these cases have emphasized that it is the actual, economic value to the owner which is to be substituted for the normal market value test, and that no allowance is to be made for merely sentimental or fanciful value.
In determining the actual value to the owner, the courts have been liberal in admitting evidence of any circumstance which could be reasonably relevant to the question. Pre-eminent, however, have been the elements of original cost, as reduced by depreciation. Such depreciation is to be determined in the light of the length and type of use the property has had, together with direct evidence of its condition at the time of the loss.
The courts have also sometimes referred to replacement cost as a factor to be considered. It is not clear whether such replacement cost refers to market value of similar goods on the secondhand market (although it seems that this price would be a relevant, although not controlling, factor) or to the cost, at the time of loss, of new goods of a similar type and quality. In the latter event, of course, this replacement figure would have to be reduced by a factor representing depreciation the original goods had suffered.

Brendan O’Byrne, Annotation, Valuation of Wearing Apparel or Household Goods Kept by Owner for Personal Use, in Action for Loss or Conversion of, or Injury to, Such Property, 34 A.L.R.3d 816 § 2[a] (2006) (internal citations omitted). See also R.B. Bewley v. Allright Carpark, Inc., 617 S.W.2d 547, 550 (Mo.App.1981); Keefe v. Bekins Van & Storage Co., 36 Colo.App. 382, 540 P.2d 1132, 1135-36 (1975) (discussing damages for household goods, wearing apparel and personal effects).

[¶ 11.] This rationale extends beyond secondary authority and is consistently embraced by courts considering restitution in criminal cases. For example, the North Dakota Supreme Court, in adjudicating a similar restitution dispute, stated:

While diminution in value remains one of the measures of damages, 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.

State v. Tupa, 691 N.W.2d 579, 583 (N.D.2005). This analysis was also followed by the Third Circuit Court of Appeals:

Although fair market value will often be an accurate measure of the value of property, it will not always be so. Where actual cash value is difficult to ascertain — because an item is unique, or because there is not a broad and active market for it — replacement cost may be a better measure of value.
While there is no indication that the destroyed furniture in this case was ‘unique,’ furniture often has a personal value to its owners that cannot be captured or accurately estimated by simply determining the market value of the furniture. Replacing the armchair one sits upon each evening or the bed one sleeps in each night with furniture that others have already used may be difficult to accept. This would be necessary, however, if the household furniture is replaced at its market value because damaged furniture cannot be replaced at market value with equivalent new items. For that reason, when evaluating personal items of furniture in one’s residence, we find that replacement value may be an appropriate measure of ‘value’....

United States v. Simmonds, 235 F.3d 826, 832 (3d Cir.2000).

[¶ 12.] However, as the North Dakota Supreme Court recognized, in some situations “replacement costs will be excessive and diminution in fair market value or repair costs will be in order.” Tupa, 691 N.W.2d at 583. As a result, courts will “refrain from constraining a trial judge’s discretion with any universal pronouncement on how to properly arrive at reasonable restitution.” Id. “Rather, the factual situation at hand must be examined to determine whether the trial judge acted according to reason.” Id. See State v. Chambers, 138 P.3d 405, 415 (Kan.App.2006) (holding because there was no readily ascertainable market for used lingerie, consideration of replacement value was not an abuse of discretion in determining restitution).

[If 13.] These principles apply to our statute which permits recovery of “peculiar value to a person.” However, we are hampered by the lack of findings of fact and conclusions of law, and the trial court’s assumption that the civil measure of damages did not apply. Moreover, even considering “peculiar value” under SDCL 21-1-8 and the foregoing authorities, replacement cost may be adopted, but not without any consideration of depreciation (or perhaps appreciation in the case of a second-hand item that has become a valuable antique). Because it appears that replacement or original cost was considered without regard to any other factors, we reverse and remand for reconsideration and the entry of findings of fact and conclusions of law.

[¶ 14.] Reversed and remanded.

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

      . An owner of property is also competent to testify to its value. Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 258 n. 8 (S.D.1976) (citations omitted) (overruled on other grounds).

      . “Market value” or "fair market value” has been extensively discussed. In assessing a damage to personal property claim, this Court has stated that the proper measure of damages is the fair market value of the property. Moore v. Kluthe & Lane Ins. Agency, Inc., 89 S.D. 419, 432-33, 234 N.W.2d 260, 267-68 (1975). In arriving at this value "the jury has a right to consider [the items] then depreciated value.” Id. at 267 n. 6. We have also recognized that original cost or replacement cost adjusted by depreciation is a measure to consider when the property can be valued in the second-hand market:
      There can be no doubt that second-hand market value is not adequate compensation for a person who suffers the destruction of his personal property. Likewise, to permit full replacement value would be to allow more than the actual value of the goods destroyed. We find that the trial court reached a reasonable measure of damages in utilizing original cost or replacement cost adjusted by a percentage for depreciation varying with age and condition of the property.

        Shaffer, 249 N.W.2d at 258 (citations omitted).
      Commentators and pattern jury instructions generally conclude that the measure of damages for the destruction of properly is its reasonable value at the time of the loss. 25 C.J.S. Damages § 131 (2002); Restatement (Second) of Torts § 927 (1979). See also SD Pattern Jury Instruction, 30-15 (2001); California Civil Jury Instructions, (BAJI) 14.20 (2006); Illinois Pattern Jury Instruction — Civil 30.15 (2006); Ronald W. Eades, Jury Instructions on Damages in Tort Actions § 10.01 (5th ed. 2006).

      . While the restitution schemes vary in each state, the North Dakota Supreme Court noted this holding was consistent with "the spectrum of approaches taken by other states confronted with the issue of calculating criminal restitution.” Tupa, 691 N.W.2d at 583.


author: TERNUS, Chief Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Dennis BJORKLUND, Respondent.
    No. 06-0082.
    Supreme Court of Iowa.
    Dec. 8, 2006.

      Charles L. Harrington and David J. Grace, Des Moines, for complainant.
    Dennis Bjorklund, Coralville, pro se.
   TERNUS, Chief Justice.

The respondent, Dennis Bjorklund, is no stranger to the disciplinary process, having received two prior private admonitions and a prior public reprimand for violations of our advertising rules. In the matter before us, the Iowa Supreme Court Grievance Commission found that Bjorklund had violated numerous disciplinary rules based on a broad range of misconduct, including presenting misleading and false testimony in a prior disciplinary hearing and refusing to refund unearned fees to clients. The commission, with one member dissenting, recommends that Bjork-lund’s license be revoked. Given the serious and pervasive nature of Bjorklund’s ethical missteps, we conclude he lacks the character required to practice law. Accordingly, we revoke his license to practice law in this state.

I.The Commission’s Report.

In July 2005 the Iowa Supreme Court Disciplinary Board filed a complaint against Bjorklund, alleging eight separate instances of misconduct that violated the Iowa Code of Professional Responsibility for Lawyers. Bjorklund did not file an answer to the complaint, nor did he respond to requests for admissions. As a result, at the hearing on the board’s complaint, the commission ruled that the allegations of the complaint were considered admitted. Notwithstanding the commission’s ruling, the board offered exhibits and the testimony of several witnesses supporting the charges made in the complaint. Based on Bjorklund’s failure to answer the complaint and the board’s evidence, the commission found the board had proved each of its allegations of misconduct by a convincing preponderance of the evidence.

The commission was divided on the issue of the appropriate sanction. All members but one believed Bjorklund’s license to practice law should be revoked. The majority relied on Bjorklund’s prior disciplinary history and also cited his “disturbing history of failing to respond and cooperate with necessary investigations initiated” by local and state disciplinary boards and his “deliberate effort ... to mislead and deceive the Commission.” One commission member recommended a twenty-four-month suspension coupled with significant prerequisites to reinstatement, including a psychological examination and passage of the bar exam.

II. Scope of Review.

Our review of the findings of the Grievance Commission is de novo. Iowa Supreme Ct. Attorney Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). When a lawyer fails to file an answer to the board’s complaint or respond to requests for admissions, the allegations of the complaint are deemed admitted, as are the requests for admissions. Iowa Ct. R. 36.7; Iowa Supreme Ct. Attorney Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 396 (Iowa 2005). Ethical violations must be proved by a convincing preponderance of the evidence. Moonen, 706 N.W.2d at 396. We now discuss each charge.

III. Count I: Prior False Testimony.

A. Factual findings. In count I, the board alleged Bjorklund gave false testimony at a prior hearing before the commission. In 2000 the board filed a complaint against Bjorklund claiming he violated our advertising rules by virtue of an advertisement appearing in a pamphlet entitled “Movie Facts.” The advertisement implied that a person caught drinking and driving could be helped by Bjork-lund. It noted Bjorklund had authored a book on drunk driving offenses, “Drunk Driving Defense: How to Beat the Rap,” and it advised the reader to call a phone number shown in the ad.

At the hearing on this complaint, Bjork-lund claimed he was not responsible for the ad. He testified he knew the publisher of his book, Praetorian Publishing, intended to place an ad in “Movie Facts,” but Bjorklund claimed he had no knowledge of the contents of the ad and had no involvement in its placement. Bjorklund also asserted the phone number in the ad was the publisher’s line. At the hearing, Bjork-lund stated he did not call the publisher to testify on his behalf because “Darcie — I think it was Baumgart — was out of town.”

When the matter came before this court, we held the ad violated several disciplinary rules, but based on the limited evidence presented at the hearing, coupled with Bjorklund’s denial of any active role in placing the ad, we concluded the board had failed to establish that Bjorklund was responsible for the ad. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bjorklund, 617 N.W.2d 4, 9 (Iowa 2000). Nonetheless, we stated Bjorklund had a responsibility to ensure that the proposed advertisement of his book by the publisher did not violate the disciplinary rules. Id. at 10. Because he had failed to do so, he was publicly reprimanded for the improper advertisement. Id.

The evidence at the hearing on the current charge flatly contradicted Bjorklund’s testimony in the prior proceeding. The more recent evidence was uncovered by the board when it began to investigate Bjorklund’s relationship with Praetorian Publishing after receiving several complaints from persons who had received unsolicited advertising materials from Bjork-lund bearing Praetorian Publishing’s logo. The board discovered the post office box for Praetorian Publishing belonged to Rochelle Theroux who shared Bjorklund’s residence and who had jointly owned this residence with him since 1997. As early as 1999, Theroux had a bank account in her name doing business as Praetorian Publishing. Qwest records for the phone number used by Praetorian Publishing showed that number was in Theroux’s name and the telephone service was with “Dennis.”

At the hearing on the “Movie Facts” complaint, Bjorklund introduced written communications with Praetorian Publishing that contained a Wisconsin address for the company. During the board’s 2003 investigation, the board learned that the address on these documents was for a house rented by Darcie Baumgart, the individual identified by Bjorklund in the pri- or hearing as working for Praetorian Publishing. In fact, Darcie Baumgart was the long-time girlfriend of Bjorklund’s brother, James.

In addition to these revelations, the board discovered a two-page document confirming that Bjorklund was, contrary to his denial at the previous hearing, the contact with “Movie Facts” for the advertisement that was the subject of that hearing. Other documents show that Theroux frequently corresponded with Morris Publishing (with whom she placed orders for Bjorklund’s book) on Praetorian Publishing letterhead. The address used by Morris Publishing to correspond with Praetorian Publishing was often Bjorklund’s law office address.

We conclude, as alleged by the board, that Bjorklund’s testimony at the prior hearing was patently false, and he knew it was false. Moreover, the documents he provided to the board and the commission in connection with the prior disciplinary charge were fraudulent.

B. Ethical violations. Bjorklund’s dishonesty at the prior hearing violated Iowa Code of Professional Responsibility for Lawyers DR 1-102(A)(4), (5), (6), which provides that “[a] lawyer shall not ... [ejngage in conduct involving dishonesty, fraud, deceit, or misrepresentation[,] [e]n-gage in conduct that is prejudicial to the administration of justice[, or] [e]ngage in any other conduct that adversely reflects on the fitness to practice law.” See Comm, on Prof'l Ethics & Conduct v. Wenger, 469 N.W.2d 678, 679 (Iowa 1991) (holding it is an ethical violation to lie in a disciplinary proceeding). In addition, Bjorklund’s testimony under oath at the prior disciplinary hearing violated Iowa Code section 720.2 (1999), which provides: “A person who, while under oath or affirmation in any-proceeding, ... knowingly makes a false statement of material facts ... commits [perjury,] a class ‘D’ felony.” Thus, Bjork-lund violated DR 1-102(A)(3), prohibiting a lawyer from engaging “in illegal conduct involving moral turpitude.”

IV. Count I: Unverifiable and Self-Laudatory Publicity.

A. Factual findings. In addition to the false representation claim made in count I, the board alleged certain statements on Bjorklund’s website violated our rules regarding publicity. In particular, the board alleged the following statements were objectionable:

(1) “In fact, the [Bjorklund Law] Firm’s scholarly achievements are unmatched by any other law firm.”
(2) “Mr. Bjorklund is also the foremost authority on drunk driving defense.”
(3) “[Bjorklund’s] criminal defense practice became so successful that he was hand-selected from amongst all the Iowa attorneys to author books on Iowa Appellate Practice ... and Drunk Driving Defense.”
(4) “[Bjorklund Law Firm’s] vast knowledge, experience, and expertise as well as their zealous and aggressive legal representation has resulted in overwhelmingly favorable results for clients.”

There is no dispute that Bjorklund’s website contained these statements.

B. Ethical violations. Disciplinary rule 2-101 (A) states in pertinent part that a lawyer “shall not communicate with the public using statements that are false, deceptive, unfair or unverifiable [or] which contain any statement or claim relating to the quality of the lawyer’s services.” We have no hesitancy in concluding the statements on Bjorklund’s website were improper and violated this rule.

V. Count II: Unsolicited Advertising.

A. Factual findings. The second count of the board’s complaint alleges Bjorklund sent unsolicited advertising to persons who had been charged with drunk driving. Three samples of the materials sent by Bjorklund were introduced into evidence. As noted above, these allegations were deemed established by virtue of Bjorklund’s failure to answer the complaint.

B. Ethical violations. Disciplinary rule 2-101(B)(4) requires that a lawyer who wants to engage in written solicitation by direct mail because of an occurrence known to the lawyer must first file the proposed written documents with the board. In addition, DR 2-101(A) requires that such solicitations contain certain specified disclosures. Finally, direct mail envelopes must be marked in red ink in 9-point or larger type: “ADVERTISEMENT ONLY.” See Iowa Code of Profl Responsibility DR 2-101(B)(4)(d). Bjorklund violated DR 2-101 because he did not file his materials with the board, they did not contain the required disclosures, and the envelope was not marked “advertisement only.”

One of Bjorklund’s mailings states: “Attorney Bjorklund has been specializing in drunk driving since 1993.” Drunk driving defense is not an area of law that a lawyer may identify as one in which the lawyer practices. See id. DR 2-105(A). Consequently, Bjorklund also violated DR 2-105(A).

Disciplinary rule 2-103(A) provides that “[(lawyers shall not, except as authorized in DR 2-101, recommend employment of themselves ... to a nonlawyer who has not sought advice regarding employment of a lawyer.” Bjorklund’s mailings clearly touted himself as the lawyer to hire if one were arrested for drunk driving. One solicitation, which began with the statement “FIVE THINGS TO CONSIDER WHEN SEARCHING FOR THE BEST DRUNK DRIVING ATTORNEY,” lists Bjorklund’s firm as one of only two firms in Iowa that had the distinction of having lawyers who had written books on drunk driving. The clear and intended implication is that the recipient should employ Bjorklund to defend the drunk-driving charge. We find Bjorklund’s unsolicited advertising also violated DR 2-103(A).

VI. Count III: Misrepresentation.

A. Factual findings. The third charge against Bjorklund involves representations he made to the board during its investigation of one of the advertising complaints made against him. As noted earlier, the unsolicited materials sent to individuals charged with, drunk driving contained the Praetorian Publishing logo. When Bjorklund was asked about these materials by the board, he responded that he was unaware of the mailing and had nothing to do with Praetorian Publishing. These statements were knowingly false, as Bjorklund’s relationship , to Praetorian Publishing was substantial. .,

B. Ethical violations. Bjorklund’s misrepresentations to the board constituted a violation of DR 1-102(A)(4), (5), (6). We also think he violated DR 1-102(A)(2), which prohibits the circumvention of a disciplinary rule through the actions of another. By ostensibly having Praetorian Publishing author the improper advertising materials, Bjorklund sought to avoid compliance with our restrictions on lawyer advertising.

VII. Count IV: Chris Young Matter.

A. Factual findings. Chris Young paid Bjorklund $4000 to appeal a child support modification decision, making an initial payment of $1000 and thereafter paying $250 per month. When Young requested an accounting, Bjorklund wrote to Young, stating they had a flat fee agreement, that therefore Young was not entitled to an accounting, and if Young wanted an accounting, it would cost $500. Bjork-lund also claimed Young owed an additional $1628 for expenses and threatened to withdraw from the appeal if this sum was not paid. Finally, Bjorklund claimed he had prepared a reply brief “as a courtesy” because that work was “not part of the original fee agreement.” Bjorklund enclosed an engagement letter purportedly reflecting these terms.

Young responded in writing, stating Bjorklund told him at their initial meeting the cost to Young would be between three and five thousand dollars, no distinction was made between fees and expenses, no limitations were placed on the representation, and no written document memorializing their agreement was made. Later, wrote Young, Bjorklund represented to Young that the appeal would cost $4000, and Young agreed to pay that amount. After receiving Young’s letter, Bjorklund agreed to stay in the case, but only until the appeal was completed.

We find Bjorklund agreed to accept a total fee of $4000 to handle Young’s appeal. In addition, after the dispute arose as to the fee agreement, Bjorklund drafted and backdated an engagement letter that was inconsistent with the agreement he had made with his client.

B. Ethical violations. Bjorklund violated DR 9 — 102(B)(3) when he refused to provide an accounting to his client. See id. DR 9-102(B)(3) (requiring that a lawyer “[mjaintain complete records of all funds ... of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them”); .see also Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 55-56, 59 (Iowa 1998) (noting flat fee is nothing more than an advance fee, and “lawyers accepting advance fee payments must [provide their clients] with a complete accounting”). Bjorklund’s violation of this disciplinary rule is particularly egregious because he attempted to extort a $500 payment from his client for an accounting Bjorklund was ethically required to give. Bjorklund’s preparation of a phony engagement letter is also a violation of DR 1-102(A)(4), prohibiting dishonesty, fraud, deceit, or misrepresentation and DR 1-102(A)(6), prohibiting “conduct that adversely reflects on the fitness to practice law.”

VIII. Count V: Jeffrey Seivert Matter.

A. Factual findings. In July 1999 Jeffrey Seivert paid Bjorklund a $1500 advance fee to represent Seivert in a dissolution appeal. That same month Bjorklund filed a combined certificate with this court certifying that he had ordered the transcript from the court reporter and would pay for the transcript. The evidence established that no transcript was ordered at that time. Instead, three months later, as deadlines approached, Bjorklund demanded that Seivert pay an additional $800 and threatened that if Sei-vert did not do so, Bjorklund would withdraw from the case. Seivert promptly sent Bjorklund another $800 on October 25,1999.

The court reporter first received a copy Of the combined certificate in an envelope postmarked October 28, 1999. Although she completed the transcript on November 22, 1999, Bjorklund never paid her for it, and therefore, she did not deliver it to him. On December 6, 1999, this court gave Bjorklund five days to provide proof that he had paid the court reporter for the transcript or the appeal would be dismissed. Bjorklund did not provide the requested proof of payment, and the appeal was dismissed on January 12, 2000.

Thereafter, the court reporter continued to request payment for her services, but to no avail. Consequently, on October 27, 2000, she brought a small claims action against Bjorklund, who responded by filing a cross-petition against his client, Seivert. Seivert answered, claiming he had paid Bjorklund $2300, that Bjorklund had never rendered an accounting, that Seivert was entitled to a refund as Bjorklund had said he could not work on the appeal until he had received the transcript, and Seivert had assumed the $2300 he paid covered the cost of the transcript. Eventually, the trial court entered judgment for the court reporter and against Bjorklund for $737 plus interest.

Bjorklund failed to pay the judgment, forcing the court reporter to file a petition for a judgment debtor’s examination. Only after the court ordered Bjorklund to appear for the examination did he pay the court reporter, some three years after judgment had been entered against him.

B. Ethical violations. Bjorklund violated DR 9-102(B)(3), (4) when he failed to provide his client with an accounting and failed to deliver to his client funds belonging to the client. His wholesale neglect of his client’s appeal is a violation of DR 6-101(A)(3) (“A lawyer shall not ... [n]egleet a client’s legal matter.”). His misrepresentation to this court that he had ordered the transcript violated DR 1-102(A)(4). Finally, his conduct in neglecting the appeal and refusing to pay the court reporter for the transcript, even after judgment was rendered against him, was prejudicial to the administration of justice and adversely reflected on his fitness to practice law, in violation of DR 1-102(A)(5), (6).

IX. Count VI: Terry Fisher Matter.

A. Factual findings. Bjork-lund was employed to defend Terry Fisher on an operating-while-intoxicated charge in August of 2003. Fisher paid a flat fee of $1500. Fisher eventually pled guilty and appeared in court on two occasions for his sentencing, only to learn that the matter had been continued. Both times, Bjork-lund’s office was aware of the continuance, but had not notified Fisher. After the second unnecessary trip to the courthouse, Fisher wrote to Bjorklund on February 16, 2004, stating he wanted Bjorklund to withdraw from his case, requesting a refund of any unearned funds, and asking that his file be mailed to him. Bjorklund informed Fisher he was not entitled to a refund, although Bjorklund provided no accounting to document that conclusion. Bjork-lund offered to send a copy of Fisher’s file upon payment of $25 to cover copying and postage.

Fisher promptly filed a complaint with the Johnson County Bar Association. Bjorklund was notified of the complaint, but he failed to respond after being allowed two extensions of time to do so. After a hearing before the local disciplinary committee, which Bjorklund did not attend, the matter was referred to the state disciplinary board. In response to an inquiry from the board, Bjorklund claimed his staff unsuccessfully tried to notify Fisher of the postponements of his sentencing hearing. With respect to the fee, Bjorklund alleged he had earned the entire $1500 paid by Fisher. In addition to providing this explanation of his actions, Bjorklund filed a complaint with the board, claiming Raymond Tinnian, a contract attorney who worked for Bjorklund at the time, was solely responsible for the failure to notify Fisher the first time the sentencing hearing was postponed.

At the hearing before the commission, an affidavit was introduced from another contract attorney who worked for Bjork-lund at the time, Theresa Seeberger. See-berger stated she had been assigned to appear for Fisher at the first sentencing hearing, she did so, and she was informed by court personnel that the matter had been continued and that Bjorklund’s office had been notified of that fact. We find Seeberger’s affidavit to be more credible than the assertions made by Bjorklund.

B. Ethical violations. Bjorklund’s failure to provide his client with an accounting was a violation of DR 9 — 102(B)(3) and his failure to return his client’s file was a violation of DR 2-110(A)(2), which states “a lawyer shall not withdraw from employment until reasonable steps have been taken to ... deliver[] to the client all papers and property to which the client is entitled.” Bjorklund’s failure to advise Fisher of the changes in the hearing date constituted neglect, in violation of DR 6-101(A)(3). By failing to respond to the inquiries of the local bar association, Bjorklund violated DR 1-102(A)(5), (6) (conduct prejudicial to the administration of justice and conduct adversely reflecting on fitness to practice law). See Iowa Supreme Ct. Bd. of Prof' l Ethics & Conduct v. Sulinns, 556 N.W.2d 456, 457 (Iowa 1996) (stating lawyer has duty to respond to local bar association ethics committee inquiries). Finally, Bjorklund’s misrepresentation of the facts surrounding the failure to notify Fisher of the first postponement is a violation of DR 1-102(A)(4), (5), (6).

X. Count VII: David Jutson Matter.

A. Factual findings. This charge is similar to the ones we have previously discussed. David Jutson paid Bjorklund a flat fee of $4500 to represent him on some criminal charges. Eventually, Jutson wrote to Bjorklund, asking him to withdraw, to provide Jutson with the file, and to return the unearned portion of Jutson’s payment. When Bjorklund did not respond, Jutson hired Raymond Tinni-an to represent him and filed a complaint with the Johnson County Bar Association. Bjorklund, consistent with his pattern of conduct, failed to respond to an inquiry from the local bar association. Eventually, the matter was referred to the state disciplinary board.

After the disciplinary board notified Bjorklund of the Jutson complaint, Bjork-lund responded, alleging Tinnian had handled Jutson’s case. Bjorklund claimed Tinnian had absconded with Jutson’s file when Tinnian terminated his relationship with Bjorklund, and Tinnian had refused to return the file or to provide a detailed itemization and accounting regarding Tin-man’s work on Jutson’s case. Bjorklund maintained that he could not provide an accounting without the requested information from Tinnian.

Jutson subsequently filed a small claims action against Bjorklund to obtain a refund. At the hearing on this claim, Bjork-lund presented an itemized billing statement showing 32.8 hours of services at $150 per hour, plus “extraordinary expenses” for a total of $5043.58. It appeared this time was attributable to work performed by Bjorklund, as there was an entry on the statement for Tinnian followed by “? ?.” Bjorklund had been hired sometime in November 2003 and was discharged on January 20, 2004. The court found Bjorklund’s fee statement “simply not believable” and ordered Bjorklund to refund the entire amount of the fee, plus interest and costs.

B. Ethical violations. Bjorklund’s failure to provide Jutson with an accounting and to refund any unearned fees was a violation of DR 9-102(B)(3), (4). His failure to return his client’s file was a violation of DR 2-110(A)(2). By failing to respond to the inquiries of the local bar association, Bjorklund violated DR 1-102(A)(5), (6). Finally, Bjorklund’s misrepresentation of the time and expenses involved in Jutson’s case is a violation of DR 1-102(A)(4), (5), (6).

XI. Count VIII:, Jason Goldesberry .Matter.

A. Factual findings. Jason Goldes-berry retained Bjorklund to represent him in a criminal case and in a probation revocation matter. He paid Bjorklund $2000 for the criminal defense and a $750 retainer for the probation revocation representation. Prior to a hearing scheduled for January 14, 2004, on the probation revocation, Goldesberry’s father delivered to Bjorklund a letter of termination from Gol-desberry. The letter included a request for Goldesberry’s file and the return of any unused portion of the retainers. Bjork-lund refused to provide any of the requested items, stating the county attorney would not consent to his withdrawal because it was so close to the hearing. Gol-desberry’s father informed Bjorklund that they would be retaining another attorney, but Bjorklund still refused to turn over the file. Goldesberry subsequently hired Raymond Tinnian to represent him in these matters. Tinnian was unable to obtain Goldesberry’s file from Bjorklund and so had to recreate it from other sources.

The Goldesberrys filed a complaint with the Johnson County Bar Association in February 2004, and after a hearing before the county disciplinary committee, the matter was referred to the state disciplinary board. The board filed a complaint with the Grievance Commission. In Bjorklund’s response to this complaint, Bjorklund claimed Tinnian was to blame and Tinnian had absconded with Goldes-berry’s file. The commission did not believe this assertion, and neither do we.

In August 2004 Goldesberry filed a small claims action against Bjorklund, seeking the return of unearned client funds in the amount of $1250. Bjorklund did not attend the trial on this matter, and based upon the evidence presented, the magistrate entered judgment in favor of Goldesberry for the full amount requested.

B. Ethical violations. Bjorklund’s conduct in this matter was similar to his dealings with Seivert, Fisher, and Jutson. As previously discussed, this behavior constituted a violation of DR 1-102(A)(4), (5), (6), DR 2 — 110(A)(2), (3) and DR 9-102(B)(3), (4).

XII. Avoidance of Service.

We also address the difficulties encountered by the board in attempting to serve Bjorklund in this matter, as Bjork-lund’s behavior reflects adversely on his fitness to practice law and consequently has been considered by this court in determining the appropriate discipline.

On September 17, 2003, the board sent a notice to Bjorklund regarding its investigation into Bjorklund’s relationship with Praetorian Publishing. The notice was sent to Bjorklund’s office by restricted certified mail. When this notice was returned unclaimed, the board hired ASAP Process Servers to serve the notice on Bjorklund at his residence. On December 19, 2003, the process server was at Bjorklund’s residence when Bjorklund arrived home. When the process server attempted to serve the paper, Bjorklund denied his own identity and stated his name was “Jake.” Subsequently, on January 10, 2004, the same process server, having obtained a photograph of Bjorklund, went to Bjork-lund’s office to serve the papers. Again, Bjorklund denied who he was, but the process server recognized him, dropped the papers, and announced that Bjorklund was served.

Similar problems were encountered by the board when it attempted to serve Bjorklund with the complaint filed by the Goldesberrys. The board again hired ASAP Process Servers. The process server staked out Bjorklund’s house, but when Bjorklund saw the server’s car as he came out of his house, he went back inside. When the process server moved his car, Bjorklund quickly left his residence. The server was later informed that Bjorklund had been seen at his office, so the server waited outside Bjorklund’s office until Bjorklund left. As Bjorklund exited the building, the server stepped toward him to hand him the papers, and Bjorklund broke into a run. Although the process server pursued him on foot, recovering one of Bjorklund’s shoes that came off during the chase, Bjorklund again eluded service. The process server returned to Bjork-lund’s office, and after waiting thirty minutes for Bjorklund to return, finally secured the papers between the office door and the door jam.

The board had comparable difficulties serving Bjorklund with the board’s complaint filed with the Grievance Commission. The board contracted with ASAP Process Servers to serve the complaint and associated discovery requests on Bjorklund. The process server attempted on five separate occasions to serve Bjork-lund with no success. On some of these occasions, Bjorklund purposefully evaded service, sometimes with the help of his employees. On September 12, 2005, the board requested the Johnson County Sheriffs office to serve the papers on Bjork-lund. That office made five unsuccessful attempts to serve Bjorklund. Having exhausted avenues to personally serve Bjork-lund, the board then mailed the complaint and accompanying papers to Bjorklund at his office via restricted certified mail. After three notices, the letter was returned to the board as unclaimed. Finally, the board served the papers by mailing them to Bjorklund at his office and to his post office box.

XIII. Discipline.

In deciding the appropriate sanction, we consider the following factors:

“[T]he nature and extent of the respondent’s ethical infractions, his fitness to continue practicing law, our obligation to protect the public from further harm by the respondent, the need to deter other attorneys from engaging in similar misconduct, our desire to maintain the reputation of the bar as a whole, and any aggravating or mitigating circumstances.”

Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 138 (Iowa 2004) (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161,164 (Iowa 2003)). We are not bound by the commission’s recommendation — here, disbarment — but we give it respectful consideration. Kallsen, 670 N.W.2d at 164.

Considering the factors set forth above leads to one conclusion: we must revoke Bjorklund’s license to practice law in this state. Bjorklund’s ethical infractions are numerous, varied, and serious. See Comm, on Prof'l Ethics & Conduct v. Hall, 463 N.W.2d 30, 36 (Iowa 1990) (revoking respondent’s license, noting “the number and variety of respondent’s ethical violations support an enhanced sanction”). Moreover, he lies with reckless abandon. A lawyer who employs dishonesty as a routine component of his normal operating procedure clearly lacks the character required of members of the bar. See Comm, on Prof'l Ethics & Conduct v. Crary, 245 N.W.2d 298, 307 (Iowa 1976) (disbarring attorney who allowed his paramour to testify untruthfully at a deposition, noting “[t]he first requisite of an attorney is basic character”). Because “we harbor no hope that [Bjorklund] will understand and meet his ethical responsibilities in the future,” only disbarment will protect the public from further exploitation by this attorney. Beckman, 674 N.W.2d at 139. While Bjorklund’s ethical misconduct as charged in the complaint fully warrants the revocation of his license to practice law, we note his refusal to cooperate with the various disciplinary authorities and his blatant evasion of service of process only confirm the necessity of imposing the ultimate sanction.

Bjorklund’s license is currently suspended for his failure to cooperate with the Client Security Commission’s audit of his trust account. We now revoke his license to practice law in the State of Iowa. Costs are assessed against Bjorklund as provided in Iowa Court Rule 35.25(1).

LICENSE REVOKED.

All justices concur except HECHT and APPEL, JJ., who take no part.

      . In his written response to the board's inquiry, Bjorklund stated in part:
      I have no knowledge of the mailing sent by Praetorian Publishing. I have no involvement with the company and have no contact with the organization's personnel. My only involvement was writing three drunk-driving books a few years ago. I have no business interest with Praetorian Publishing, no business ownership, nor any ties to the organization. Prior to this complaint, I have never witnessed this mailing.