text:
    2006 SD 37
    STATE of South Dakota, Plaintiff and Appellee, v. David ASMUSSEN, Defendant and Appellant.
    Nos. 23477, 23478.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2006.
    Decided April 12, 2006.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michael B. Thompson, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] David J. Asmussen (Asmussen), appeals from a conviction for stalking. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Asmussen and Pamela Dunn (Dunn), were involved in a long-term romantic relationship that ended sometime in August 2000. On August 25, 2000, in Cod-ington County, South Dakota, circuit court, a protection order against further domestic abuse was issued against Asmussen as provided under SDCL Chapter 25-10. The protection order prohibited Asmussen from “contactpng], directly or indirectly, in any manner” Dunn, her daughter, Dunn’s mother, any other member of Dunn’s family, Dunn’s employer or her co-workers. The protection order was in effect until August 25, 2003. It also prohibited As-mussen from coming within 100 feet of any vehicle owned by Dunn. The protection order was served on Asmussen, and stated at the top of the first page: “VIOLATION OF THIS PROTECTION ORDER IS A CRIMINAL OFFENSE.”

[¶ 3.] On December 9, 2001, at approximately 8:00 p.m., Dunn’s daughter, Stacey Benson, telephoned Dunn asking if she had a telephone number for an acquaintance. Dunn replied that she did not, but that Asmussen would know it. Dunn then had a conversation with Asmussen in the background. Dunn explained to Benson that Asmussen was retrieving the last of his personal possessions from Dunn’s home. At approximately 11:00 p.m. that same evening, Dunn telephoned her mother, Loretta Hallquist, and stated she had received a telephone call from Asmussen in which he sounded upset and possibly like he was crying.

[¶ 4.] Dunn was scheduled to work on December 10, 2001. However, she never arrived at her place of employment, nor has she ever been heard from since her last contact with her mother on December 9, 2001. An investigation was begun into her disappearance by the Watertown, South Dakota, police department.

[¶ 5.] In the course of the investigation concerning Dunn’s disappearance, Asmus-sen admitted being at Dunn’s residence and to speaking with her by telephone on December 8 and 9, 2001. Telephone records revealed that Asmussen had initiated seventeen calls to Dunn’s home telephone between the dates of November 25, 2001, and December 9, 2001, all in violation of the protection order. Three threatening and abusive messages left by a male who did not identify himself were recovered from Dunn’s digital voice messaging system, which indicated that the messages had been listened to and saved prior to Dunn’s disappearance.

[¶ 6.] As a result of the violation of the protection order, Asmussen was charged with three counts of stalking. The first count was charged under SDCL 22-19A-1, SDCL 22-19A-2 and 22-6-1(8), and was based on the alleged violation of the protection order. The second count of stalking was charged under SDCL 22-19A-l(3) and 22 — 6—2(1). The third count was charged under SDCL 22-19A-l(2) and 22-6-2(1), but was eventually merged with the first count. A Part II habitual offender information was also filed, alleging Asmus-sen had prior felony convictions for odometer rollback, conspiracy to commit odometer rollback, and mail fraud in United States District Court, District of South Dakota. The matter was scheduled for a jury trial.

[¶ 7.] On August 20, 2004, at a motions hearing, Asmussen addressed the court and indicated his desire to discharge his attorneys and represent himself at trial. The circuit court informed Asmussen of the perils of self-representation, and As-mussen maintained he still wanted to represent himself. After his attorneys were permitted to withdraw, Asmussen launched into irrelevant statements concerning the Uniform Commercial Code and requested that papers concerning the statements be filed with the circuit court.

[¶ 8.] On August 23, 2004, a jury trial was held in Huron, South Dakota. At trial, portions of the telephone messages left on Dunn’s digital answering service on December 5 and 6, 2001, by a caller identified by the State as Asmussen were played for the jury. A videotape of Asmussen’s interview with police was also admitted at trial and played for the jury, in which he admitted to knowing that the protection order had been issued against him. Jon Bierne, an Agent with the Division of Criminal Investigation (DCI), testified at trial that in his opinion the voice on the telephone messages was that of Asmussen.

[¶ 9.] Asmussen made no opening statement at trial and did not object to any of the State’s evidence at trial. Asmussen also failed to participate in any in-eham-bers discussions, refused to propose jury instructions, made no objections to the State’s proposed jury instructions, and declined to give a closing argument. The following jury instruction was used at trial on Count 1 under SDCL 22-19A-2:

The elements of the crime of stalking in violation of a protection order, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
1. A protection order was in effect prohibiting the defendant from willfully, maliciously, and repeatedly harassing Pamela Dunn by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication;
2. The defendant had knowledge of the order; and
3. The defendant violated the order.

[¶ 10.] Asmussen was found guilty on the two counts of stalking. The circuit court sentenced him to forty months in the state penitentiary with credit for time served, and assessed attorneys’ fees and costs. Asmussen was advised of his right to appeal the conviction, and timely filed a pro se notice of appeal. The circuit court appointed appellate counsel, who also timely filed a notice of appeal. This Court entered an order consolidating the appeals upon a motion by appellate counsel. As-mussen filed a letter with the Court asking for his appellate counsel to withdraw, which was remanded to circuit court for proceedings. The circuit court denied the motion after a hearing on the matter. As-mussen raises three issues for this Court’s review:

1. Whether Asmussen’s conviction under SDCL 22-19A-2 violated his right to Due Process when the protection order issued under SDCL Chapter 25-10 failed to give notice that conduct in violation of the order would subject Asmussen to the penalties for a Class 6 felony under SDCL 22-19A-2.
2. Whether the circuit court adequately advised Asmussen of the perils of self-representation such that his constitutional rights to counsel were not infringed.
3. Whether the circuit court erred when it allowed a law enforcement officer to offer his opinion in court that the voice on the messages left for Dunn was Asmussen’s.

STANDARD OF REVIEW

[¶ 11.] Appeals asserting an infringement of a constitutional right are reviewed under the de novo standard of review. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). A direct appeal from a conviction must be afforded greater scrutiny than a collateral challenge by habeas corpus action. State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994). Thus, on a direct appeal from a conviction the defendant is entitled to all presumptions and protections possible under our constitution. Id.

[¶ 12.] We also employ the de novo standard of review for issues of statutory construction. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653 (citing Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480)). “Statu tory construction is used to discover the true intention of the law which is ascertained primarily from the language expressed in the statute.” Id. (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We give words their plain meaning and effect and read statutes as a whole, as well as enactments relating to the same subject. Id. ¶ 6, 686 N.W.2d at 654.

[¶ 13.] The trial court’s eviden-tiary rulings are presumed correct and will not be overturned absent an abuse of discretion. State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129). “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Henry, 1996 SD 108, ¶ 10, 554 N.W.2d 472, 473 (quoting In re A.R.P., 519 N.W.2d 56, 62 (S.D.1994) (quoting State v. Moriarty, 501 N.W.2d 352, 355 (S.D.1993); State v. Devall, 489 N.W.2d 371, 374 (SD.1992))). “In applying the abuse of discretion standard, ‘we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.’” State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995) (citing State v. Almond, 511 N.W.2d 572, 574 (S.D.1994) (citing State v. Pfaff, 456 N.W.2d 558, 560-61 (S.D.1990); State v. Bartlett, 411 N.W.2d 411, 414 (S.D.1987); Peterson v. Peterson, 434 N.W.2d 732 (S.D.1989))). With regard to the rules of evidence, abuse of discretion occurs when a trial court misapplies a rule of evidence, not when it merely allows or refuses questionable evidence. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 415 (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047,135 L.Ed.2d 392 (1996)).

ANALYSIS AND DECISION

[¶ 14.] 1. Whether Asmussen’s conviction under SDCL 22-19A-2 violated his right to Due Process when the protection order issued under SDCL Chapter 25-10 failed to give notice that conduct in violation of the order would subject Asmussen to the penalties for a Class 6 felony under SDCL 22-19A-2.

[¶ 15.] Asmussen argues that his Due Process rights were violated as the protection order issued against him under SDCL Chapter 25-10 did not give notice that a violation of the order could subject him to penalties under SDCL 22-19A-2 for a Class 6 felony. Asmussen argues that in order to safeguard an individual’s due process rights, a person must be advised of the consequences of Ms or her failure to abide by an order of protection. ' In the instant case, Asmussen contends the protection order had to state ■with specificity that it could be violated and result in a conviction for a Class 6 felony if Asmussen engaged in conduct that met the definition of stalking under SDCL 22-19A-l(3). Asmussen also argues that SDCL 22-19A-1 is applicable only to protection orders issued pursuant to SDCL Chapter 22-19A.

[¶ 16.] SDCL 22-19A-2 provides: “Any person who violates § 22-19A-1 when there is a temporary restraining order, or an injunction, or a protection order, in effect prohibiting the behavior described in § 22-19A-1 against the same party, is guilty of a Class 6 felony.” The specific behavior proscribed in SDCL 22-19A-1 is:

Any person:
(1) Who willfully, maliciously, and repeatedly follows or harasses another person;
(2) Who makes a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or
(3) Who willfully, maliciously, and repeatedly harasses another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication; is guilty of the crime of stalking. StalMng is a Class 1 misdemeanor.

[¶ 17.] Under the Fourteenth Amendment to the United States Constitution, and article VI, section 2 of the South Dakota Constitution, no person shall be deprived “of life, liberty, or property without due process of the law.” Due process in the context of-a criminal statute requires application of the standard as set forth in State v. Bad Heart Bull:

A crime must be statutorily defined with definiteness and certainty. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 [(1964) ]. A criminal statute must give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 [ (1954);] State v. Bullis, 89 S.D. 212, 231 N.W.2d 851 (1975).

257 N.W.2d 715, 720 (S.D.1977). However, notice in the context of due process and criminal statutes does not require “an explicit or personalized warning.” United States v. Arcadipane, 41 F.3d 1, 5 (lstCir.1994). This is because the law is definite and knowable, and under our system of criminal law every person is presumed to know the law. Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1991) (noting that the common-law rule that “presumed every person knew the law,” has been applied numerous times to cases construing criminal statutes by the United States Supreme Court) (citing Hamling v. United States, 418 U.S. 87, 119-124, 94 S.Ct. 2887, 2909-2911, 41 L.Ed.2d 590 (1974); United States v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952)).

[¶ 18.] Furthermore, this Court has long recognized that “when an action violates two criminal statutes, the government may prosecute under either, providing it does not discriminate against any class of defendants.” State v. Big Head, 363 N.W.2d 556, 561 (S.D.1985) (citing State v. Secrest, 331 N.W.2d 580, 583-84 (S.D.1983)). As the United States Supreme Court noted in United States v. Batchelder:

The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. See supra, at 2201-2202. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.

442 U.S. 114, 123, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979).

[¶ 19.] In the instant case, As-mussen was given notice by the language contained in the protection order that it was a criminal offense to violate the order by contacting Dunn in any manner. The conduct that Asmussen was notified would constitute a violation of the protection order and a criminal offense included: “The Respondent shall be restrained from committing any acts resulting in physical harm, bodily injury or attempting to cause physical harm or bodily injury, or from inflicting fear of imminent physical harm of bodily injury against family or household members.” In addition, the order stated “Respondent shall not contact, directly or indirectly, in any manner: petitioner, Stacey Benson, any other member of petitioner’s family, petitioner’s mother, or petitioner’s employer, or petitioner’s co-employees.” (emphasis added). The protection order was clear on its face that any and all contact by Asmussen was a violation of the order and a criminal offense.

[¶ 20.] Violation of a protection order issued under SDCL Chapter 25-10 can warrant misdemeanor or felony charges depending on the circumstances involved. In addition, the statute indicates that “[a]ny proceeding under this chapter is in addition to other civil or criminal remedies.” SDCL 25-10-13.

[¶ 21.] SDCL 22-19A-2 provides an additional criminal remedy for violation of a protection order when the conduct involved in violating the order meets the elements of stalking. The language employed in SDCL 22-19A-1 gives fair notice of the stalking conduct that is forbidden when a protective order is in place. SDCL 22-19A-2 gives fair notice that engaging in the conduct described in SDCL 22-19A-1 while a protection order is in place results in a Class 6 felony.

[¶22.] Furthermore, the language of SDCL 22-19A-2 does not limit its application to protection orders issued pursuant to SDCL Chapter 22-19A. The language used in the statute indicates only that “a protection order” has to be in place. The statutes are sufficient to give notice to any “person of ordinary intelligence,” that violation of any protection order by conduct that meets the definition of stalking in SDCL 22-19A-1 can be charged and prosecuted as a Class 6 felony per SDCL 22-19A-2.

[¶ 23.] The State presented evidence at trial that Asmussen repeatedly contacted Dunn by telephone over a twelve hour time period on December 5 and 6, 2001. Twenty-six calls were placed from a cellular telephone owned by Asmussen’s father and to which Asmussen had access. The State also presented evidence that Asmus-sen left at least three voice mail messages on Dunn’s digital answering service that contained foul language, berated her for lying to Asmussen, threatened he was writing a letter to Dunn’s father, and threatened that there would be “some bad consequences” if she lied to him about who she had been with the evening of December 5, 2001. Finally, testimony from a coworker concerning a telephone call Dunn received on December 6, 2001, while at work supported the State’s position that Asmussen’s course of conduct had the effect of harassing Dunn. The co-worker testified that Dunn was visibly upset, shaking and crying after receiving the telephone call and was in fear of what Asmussen would do after finding out she had begun seeing another man.

[¶ 24.] It is clear from the facts of the case that Asmussen was on notice by his acknowledged receipt of the protection order that he was forbidden to contact Dunn in any manner. Yet, despite the prohibition, Asmussen repeatedly contacted Dunn by telephone and berated and threatened her for dating another man. The course of conduct Asmussen engaged in violated the protection order and met the definition of stalking as provided in SDCL 22-19A-l(3).

[¶ 25.] Finally, Asmussen argues that during the settlement of instructions the State’s Attorney argued that the State was required to prove only that Asmussen violated an effective protection order by contacting Dunn and not that the effective protection order had to textually forbid the specific conduct proscribed in SDCL 22-19A-l(3). Asmussen argues that the circuit court overruled the State’s Attorney and ruled that the protection order had to textually forbid the specific conduct in SDCL 22-19A-1(3).

[¶ 26.] This is a mischaracterization of the State’s Attorney’s position and the circuit court’s ruling. The State’s Attorney argued that the protection order did not need to prohibit the conduct as listed in SDCL 22-19A-l(3). The circuit court overruled his objection to the inclusion of the language “prohibiting the defendant from willfully, maliciously, and repeatedly harassing Pamela Dunn by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication” in the jury instructions. The circuit court explained that the State had to prove that the protection order prohibited Asmussen from engaging in stalking behavior as defined in SDCL 22-19A-1. However, the circuit court did not rule that the protection order had to use the same language as SDCL 22-19A-l(3) as asserted by Asmussen. Instead, the circuit court ruled that the State’s Attorney had to show that As-mussen was forbidden by the protection order from engaging in the conduct prohibited in SDCL 22-19A-l(3), that is harassing by means of willful, repeated and maliciously contacting the victim “by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication[.]”

[¶ 27.] The State’s Attorney presented evidence at trial to show Asmussen had engaged in a course of conduct whereby he willfully, repeatedly, and maliciously contacted Dunn by telephone over the course of twelve hours on December 5 and 6, 2001. The circuit court did not err when it permitted the issue to go to the jury, as there was sufficient evidence in the record to show that the repeated and threatening telephone calls violated the “no contact” protection order.

[¶ 28.] 2. Whether the circuit court adequately advised Asmussen of the perils of self-representation such that his constitutional right to counsel was not infringed.

• [¶ 29.] Asmussen argues on appeal that the circuit court erred when it granted his motion to represent himself at trial, as the waiver was not knowingly and voluntarily made. Asmussen contends the trial court failed to carefully review each required advisements one by one and obtain his answer before proceeding to the next advisement. Asmussen argues the waiver was constitutionally deficient because the circuit court “rattled off the advisements and then at the very end asked [Asmus-sen] if he understood.” Asmussen also argues the circuit court erred when it did not order a competency evaluation after it granted the motion and Asmussen made completely irrelevant remarks concerning the Uniform Commercial Code and refused to respond to the circuit court’s questions.

[¶ 30.] A defendant in a criminal proceeding has the constitutional right to represent himself and a constitutional right to representation by counsel. State v. Van Sickle, 411 N.W.2d 665, 666 (S.D.1987) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)); State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121 (1960) (citing SD Const, art VI, § 2). In order for a defendant to exercise the right to self-representation and waive the right to representation by counsel, a voluntary, knowing and intelligent waiver must be made by the defendant. Id. (citing Faretta, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562). We have previously stated that the preferred method of determining whether a waiver is voluntary, knowing and intelligent, is for the circuit court to review the five Van Sickle factors with the defendant. State v. Raymond, 1997 SD 59, ¶ 12, 563 N.W.2d 823, 826 (citing Van Sickle, 411 N.W.2d at 666-67 (quoting R. LaFave, Criminal Procedure § 11.5 (1984))).

[¶ 31.] However, a waiver may be constitutionally acceptable when the circuit court fails to issue the Van Sickle warnings. Id. ¶ 14 (citing Van Sickle, 411 N.W.2d at 667). As long as there are circumstances present that indicate the circuit court was able to ascertain that the defendant was fully aware of the dangers of self-representation, a waiver will be constitutionally acceptable. Id. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in 'each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” Van Sickle, 411 N.W.2d at 666 (quoting Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). As the Supreme Court stated in Faretta:

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. [269,] 279, 63 S.Ct. [236,] 242[87 L.Ed. 268 (1942) ].

422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d 562.

[¶ 32.] The level of competency necessary for a valid waiver of the right to counsel is the same as the level of competency to stand trial. Raymond, 1997 SD 59, ¶ 17, 563 N.W.2d at 827. The defendant must have “ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding’ and have a ‘rational as well as factual understanding of the proceedings against him.’ ” Id. (quoting Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685,125 L.Ed.2d 321 (1993)). “The competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. (quoting Godinez, 509 U.S. at 399,113 S.Ct. at 2687, 125 L.Ed.2d 321). We will not overturn a knowing, intelligent and voluntary waiver on appeal for constitutional deficiency merely because the defendant demonstrates a lack of legal skill and experience and as a consequence employs poor trial strategy. See Id. ¶ 14, 563 N.W.2d at 826.

[¶ 33.] In the instant case, the record is clear that the circuit court reviewed the five Van Sickle factors with Asmussen at the motions hearing on August 20, 2001. It is also clear that the circuit court did not pause between each of the five factors and ask Asmussen to indicate his understanding. However, the record shows that the circuit court explained in detail the perils of self-representation. The circuit court warned Asmussen several times of the disadvantages of attempting to represent himself without legal training. Asmussen was then asked if he understood the pitfalls of self-representation, to which Asmussen replied “yes.” The circuit court then asked, “[a]nd you are willing to go forward even though you may be at a disadvantage,” to which Asmussen again replied “yes.” The circuit court asked if Asmussen had discussed his decision with his attorney, to which Asmussen replied “yes.” Finally, the circuit court asked: “This case has gone on for a long period of time, you understand the charges against you, you’ve represented that to me, and you’ve been through a jury trial before?” Asmussen responded in the affirmative once again.

[¶ 34.] Asmussen’s waiver of the right to counsel was made knowingly, voluntarily and intelligently. His trial strategy of quoting the Uniform Commercial Code and insisting that the trial had to proceed under the rules of common law is more appropriately characterized as evidence of lack of legal training. Asmussen’s choice of legal strategy was irrelevant to the charges he faced, but is not an indicator of lack of mental competency to waive his right to counsel given the facts of this case.

[¶ 35.] 3. Whether the circuit court erred when it allowed a law enforcement officer to offer his opinion in court that the voice on the messages left for Dunn was Asmus-sen’s.

[¶ 36.] Asmussen contends that the testimony of the DCI agent Bierne that in his opinion the voice on the telephone messages was that of Asmussen was improperly admitted. However, no objection was made to the testimony at trial. Therefore, the matter must be reviewed under' the plain error doctrine.

[¶ 37.] The plain error rule requires a finding of: “(1) error, (2) that is plain, (3) affecting substantial rights; and only then may we exercise our discretion to notice the error if (4) it ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ” Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d at 43 (quoting State v. Robinson, 1999 SD 141, ¶ 17, 602 N.W.2d 730, 735). The defendant bears the burden of showing the error was prejudicial. State v. Talarico, 2003 SD 41, ¶30, 661 N.W.2d 11, 22 (citing State v. Dufault, 2001 SD 66, ¶ 8, 628 N.W.2d 755, 757). An error is prejudicial when “in all probability it produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” State v. Piper, 2006 SD 1, ¶ 18, 709 N.W.2d 783, 794 (citing State v. Lee, 1999 SD 81, ¶ 21, 599 N.W.2d 630, 634).

[¶ 38.] Asmussen claims the testimony was prejudicial in that it was necessary for the State to show Asmussen engaged in a course of conduct. Asmussen argues that without Bierne’s testimony the State would have been able to show that only one telephone call from Asmussen was received by Dunn rather than four telephone calls. Under Asmussen’s theory, the State would not have been able to secure the conviction for stalking in violation of a protection order under SDCL 22-19A-2, as it lacked evidence to show a course of conduct. However, Asmussen does not make a claim that he is not guilty of violating SDCL 22-19A-2.

[¶ 39.] Asmussen’s argument must fail, as the jury could have arrived at the conclusion that the voice on Dunn’s digital answering system was Asmussen’s without Bierne’s opinion. The jury was able to listen to Asmussen speak during the trial proceedings and on the videotape of the police interview. It was then able to compare the voice exemplars to the messages left on the answering machine. Bierne’s testimony was not necessary for the determination that it was Asmussen who left the messages on Dunn’s digital voice message system. Because no allegation of manifest injustice has been advanced, there can be no prejudice.

[¶ 40.] Moreover, it is clear from the trial transcript that Bierne testified as a lay witness rather than an expert witness, in that the State’s Attorney asked the following question: “Officer, did you use the discussion that you had with the defendant to determine if you recognized the voice on the tape messages,” to which Bierne replied “yes.” The next question posed was “And what was your conclusion when you compared the two tapes or the series of tapes,” to which Bierne replied “Well, I felt it was him that left the voice mail messages.”

[¶ 41.] Under SDCL 19-15-1, a lay witness may offer an opinion when testimony is based on the perception of the witness and the testimony is helpful to a clear understanding of the witness’s testimony. Bierne testified that he had interviewed Asmussen and heard his voice at that time. Next, Bierne testified that he listened to the voice on the digital voice message system and recognized it as Asmussen’s based on what he personally perceived during the police interview. Given that Bierne’s lay witness opinion satisfies the requirements of SDCL 19-15-1, it was not error to admit the testimony at trial.

[¶ 42.] Affirmed.

[¶ 43.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . SDCL 22-19A-2 provides: "Any person who violates § 22-19A-1 when there is a temporary restraining order, or an injunction, or a protection order, in effect prohibiting the behavior described in § 22-19A-1 against the same party, is guilty of a Class 6 felony.”
      A Class 6 felony can result in a maximum of "two years imprisonment in the state penitentiary or a fine of two thousand dollars, or both.” SDCL 22-6-1(8).

      . The second count was dismissed on a motion to the circuit court, which held that SDCL 22-19A-1 was unconstitutionally over-broad on its face in violation of the First Amendment, and was unconstitutionally vague in violation of the Fifth and Fourteenth Amendments to the United States Constitution. State v. Asmussen, 2003 SD 102, ¶ 1, 668 N.W.2d 725, 728. On intermediate appeal to this Court, we reversed the circuit court on both issues. Id. ¶¶ 9, 18.

      . SDCL 25-10-13 provides:
      Violation of order as misdemeanor or felony. If a temporary protection order or a protection order is granted pursuant to this chapter, and the respondent or person to be restrained knows of the order, violation of the order is a Class 1 misdemeanor. If any violation of this section constitutes an assault pursuant to § 22-18-1.1, the violation is a Class 6 felony. If a respondent or person to be restrained has been convicted of, or entered a plea of guilty to, two or more violations of this section, the factual basis for which occurred after the date of the second conviction, and occurred within five years of committing the current offense, the respondent or person to be restrained is guilty of a Class 6 felony for any third or subsequent offense. Any proceeding under this chapter is in addition to other civil or criminal remedies.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2006 SD 38
    Robert J. WAGNER, Personal Representative of the Estate of Walter L. Brownlee, Sr., Plaintiff and Appellee, v. Randy BROWNLEE, Defendant, and Jeanie Weekley, Defendant and Appellant.
    No. 23619.
    Supreme Court of South Dakota.
    Argued Nov. 9, 2005.
    Decided April 12, 2006.

      John L. Foley of Foley Law Office, Wa-tertown, South Dakota, Attorney for plaintiff and appellee.
    Gregory J. Stoltenburg, Todd D. Boyd of Gunderson, Evenson, Boyd, Knight & Stoltenburg, Clear Lake, South Dakota, Attorneys for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] An estate beneficiary sued for interest on an unpaid devise. The beneficiary also sought attorney’s fees incurred in litigating a number of estate disputes. We reverse the circuit court’s denial of interest on the devise and affirm its award of partial attorney’s fees.

Facts and Procedural History

[¶ 2.] This is the second time this case has been appealed to this Court. See In re Estate of Brownlee, 2002 SD 142, 654 N.W.2d 206. As we indicated in the first appeal, Walter L. Brownlee, Sr., died testate on August 17, 1997. His Last Will and Testament was filed for probate on September 3,1997. Under the will, certificates of deposit, household goods, and other personal property were bequeathed to Jeanie Weekley, his long time companion. The remainder of his probate estate was bequeathed to his children.

[¶ 3.] Prior to his death, Brownlee created and funded a trust for the benefit of his children and grandchildren. He had also transferred several items of personal property to some of his heirs. Soon after his death, disagreements arose between Weekley and Brownlee’s children. One dispute involved the validity of the inter vivos transfer of construction equipment that was purportedly given to Brownlee’s son. A second disagreement involved the estate’s and the trust’s respective liability for the estate and the inheritance taxes.

[¶ 4.] As a result of these disputes, Weekley petitioned the circuit court to interpret Brownlee’s Last Will and Testament and set aside the purported inter vivos transfer of the construction equipment. Weekley argued that the transfer was an ineffective gift, and therefore, the construction equipment should have been part of the residuary estate. Weekley also asked the court to require the trust to pay the estate and the inheritance taxes. Weekley finally requested the circuit court to determine the nature of the bequest of the certificates of deposit. She contended that her bequest was a specific devise, which would have provided her more favorable treatment in an impending abatement.

[¶ 5.] The circuit court agreed with Weekley on two issues. It ruled that the inter vivos bill of sale to the son was an ineffective transfer of the construction equipment, and therefore, the equipment was part of the residuary estate. It also ruled that the bequest of the certificates of deposit was a specific devise. The circuit court, however, disagreed with Weekley’s contention that the trust should pay all of the estate and inheritance taxes. Instead, the circuit court ordered that the federal estate tax should be paid from the residuary estate and that the state inheritance taxes should be paid by each beneficiary according to the value of the property they received.

[¶ 6.] Weekley appealed the circuit court’s ruling on the taxes, and Brownlee’s son appealed the circuit court’s ruling disallowing the transfer of the construction equipment. This Court affirmed the circuit court’s disallowance of the transfer of the construction equipment and affirmed the court’s apportionment of the state inheritance taxes. However, we modified the circuit court’s ruling regarding the federal estate tax. We held that the tax clause of the will was ambiguous, and therefore, the federal estate tax was to be equitably apportioned among all of the beneficiaries under SDCL 29A-3-916. Brownlee, 2002 SD 142, ¶¶25, 27, 34, 654 N.W.2d at 212-14.

[¶ 7.] After our decision, the estate initiated this action to recover the construction equipment and to apportion the taxes. Weekley counterclaimed for interest on her unpaid devise of the certificates of deposit. She also sought interest on $25,000 of personal funds that she provided to help administer the estate. She finally sought an award of more than $76,000 in attorney’s fees that she incurred in the estate litigation, including the prior appeal. The circuit court heard oral arguments on these issues on February 25, 2004.

[¶ 8.] After oral arguments, but before the circuit court issued its opinion, we decided In re Estate of Holan, 2004 SD 61, 680 N.W.2d 331, and In re Estate of Siebrasse, 2004 SD 46, 678 N.W.2d 822 (Siebrasse III). Weekley claimed that these cases affected the issues that were under consideration. Therefore, she moved to reopen to present additional evidence on the attorney’s fees request and to present additional written arguments on her claim for interest. The circuit court granted Weekley’s motion. However, after hearing further arguments, the circuit court refused to accept additional evidence relating to the attorney’s fees because the court concluded that our recent decisions did not change the law. The court ultimately awarded Weekley only the attorney’s fees for setting aside the transfer of the construction equipment because it benefited the estate. The court also denied Week-ley’s request for interest on her unpaid devise and on the $25,000 she provided to help administer the estate. Weekley appeals, raising the following issues:

1) Whether the circuit court erred in refusing to consider additional evidence after granting Weekley’s motion to reopen.
2) Whether the circuit court erred in not awarding Weekley additional attorney’s fees.
3) Whether the circuit court erred in determining that Weekley was not entitled to interest on her devise and on the $25,000 of personal funds she advanced to administer the estate.

Analysis and Decision

1) Refusal to consider additional evidence after granting Weekley’s motion to reopen

[¶ 9.] The circuit court has discretion to determine whether to reopen a case to permit additional evidence. Brownlee, 2002 SD 142, ¶ 37, 654 N.W.2d at 214. The circuit court’s decision will not be disturbed “unless there has been an abuse of discretion.” Id. (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)).

[¶ 10.] Weekley’s request to present additional evidence on attorney’s fees was based primarily on our intervening decision in Siebrasse III, 2004 SD 46, 678 N.W.2d 822. Weekley argued that Siebrasse III changed the law regarding attorney’s fees by adopting the two-prong test used in In re Estate of Hafferman, 442 N.W.2d 238 (S.D.1989). The circuit court, however, declined to consider new evidence because' it concluded that Siebrasse III did not establish new law, and therefore, “Weekley was merely presenting evidence [that] could have been presented earlier.” Thus, the circuit court denied what it described as Weekley’s attempt to get “a second bite of the apple.”

[¶ 11.] On appeal, Weekley contends that the two-prong test utilized in Haffer-man was not the law in South Dakota during the first hearing and that the two-prong test was reestablished in Siebrasse III. However, a review of our cases and the Uniform Probate Code (UPC) reveals that the Hafferman two-prong test was not reestablished in Siebrasse III. Therefore, the law did not change between the two hearings.

[¶ 12.] The basis for the Hafferman two-prong test was this Court’s decision in In re Engebretson’s Estate (Engebretson I), 68 S.D. 255, 1 N.W.2d 351 (1941). Engebretson I involved a personal representative’s action to recover a deficiency in a land foreclosure. Id. at 257, 1 N.W.2d at 352. Following a ruling adverse to the personal representative, the beneficiaries’ attorney successfully challenged the adverse ruling and obtained a favorable recovery for the estate. Id. at 258, 1 N.W.2d at 352. In awarding attorney’s fees to the beneficiaries for that recovery, this Court applied the following rule: “It has been held, as a general rule, that an allowance may be made out of the estate of a deceased person for the services of attorneys for beneficiaries where those services were beneficial to the estate.” Id. at 260, 1 N.W.2d at 353 (emphasis added). However, the Court, in dicta, also quoted the Michigan Supreme Court, which applied a more limited two-prong test:

A doctrine which permits a decedent’s estate to be so charged, should, however, in our opinion, be applied with caution and its operation limited to those cases in which the services performed have not only been distinctly beneficial to the estate, but became necessary either by reason of laches, negligence, or fraud of the legal representative of the estate.

Id. at 261, 1 N.W.2d at 353 (quoting Becht v. Miller, 279 Mich. 629, 638, 273 N.W. 294, 298 (1937)). Although this Court did not expressly adopt Michigan’s two-prong test in Engebretson I, the test was used and modified in many of our pre-Siebrasse III cases that involved beneficiary attorney’s fees, including Hafferman.

[¶ 13.] Despite a lengthy and conflicting history regarding the applicability of the two-prong test, the South Dakota Legislature clarified the matter in 1995 when it adopted the UPC. The relevant statute governing beneficiary attorney’s fees did not contain any reference to a second prong requiring laches, negligence, or fraud. See SDCL 29A-3-720. Rather, for a beneficiary to recover attorney’s fees, SDCL 29A-3-720 only required that the beneficiary’s services “resulted in a substantial benefit to the estate.”

[¶ 14.] After the 1995 adoption of SDCL 29A-3-720, our next opportunity to address this issue came in Siebrasse III, 2004 SD 46, 678 N.W.2d 822, which Weekley relied on in her motion to reopen. In Siebrasse III, we did consider one party’s argument that under the two-prong test the estate should pay the beneficiary’s attorney’s fees. Id. ¶26. Therefore, we mentioned the two-prong test but only to address that party’s argument. Id. Ultimately, we held that the circuit court did not err in denying attorney’s fees, relying solely on the finding that there was no benefit to the estate. Id. ¶ 27 (“Because we see no benefit to the Estate if the entire refund had been awarded ... we see no error in the circuit court’s denial of [the] request for attorney fees.”). In remanding the case to reconsider another issue that could have resulted in a benefit to the estate, we also directed the trial court to reconsider the issue of attorney’s fees under SDCL 29A-3-720, which only imposed the first prong — that the services result in a substantial benefit to the estate. Id. ¶ 29.

[¶ 15.] Consequently, it is apparent that to the extent our pre-Siebrasse III cases arguably imposed a two-prong test, SDCL 29A-3-720 abrogated it. For that reason, we only applied the first prong involving the substantial benefit test in Siebrasse III. Thus, Siebrasse III did not establish new case law reincorporating the two-prong test. The substantial benefit to the estate test was applicable both before and after the circuit court’s hearing on Weekley’s request for attorney’s fees. Because no new law was established, the circuit court correctly concluded that Weekley was not entitled to a second opportunity to present evidence on this issue.

2) Additional attorney’s fees.

[¶ 16.] Weekley submitted a request for attorney’s fees in the amount of $76,366.98. Weekley claimed this amount represented the attorney’s fees she incurred in her efforts to have the conveyance of the construction equipment set aside and to have the dispute over the estate and inheritance taxes determined. Her claim also included appellate attorney’s fees incurred in the prior appeal to this Court. The circuit court awarded Weekley all of the attorney’s fees that related to her successful effort in having the construction equipment returned to the estate because that recovery was beneficial to the estate. However, the circuit court denied the additional attorney’s fees relating to the tax apportionment and her appellate attorney’s fees incurred in the first appeal.

[¶ 17.] Our standard of review regarding the circuit court’s decision to award or deny attorney’s fees is well settled. Attorney’s fees are awarded at the discretion of the circuit court. Rock v. Rock, 89 S.D. 583, 589, 236 N.W.2d 191, 194 (1975).

[¶ 18.] Weekley argues that the circuit court abused its discretion because her efforts regarding the tax apportionment also benefited the estate. Although her efforts to have the trust pay the taxes were unsuccessful, and although this Court’s interpretation did not enhance the value of the probate estate, Weekley contends that the estate was “benefited” because her efforts resulted in a successful “interpretation of Brownlee’s testamentary intent.” The circuit court, however, noted that Weekley’s efforts on the tax issue did not benefit the estate and that they were for her own financial gain.

[¶ 19.] Although there are some cases supporting Weekley’s legal theory regarding the correct interpretation of testamentary intent, we see no abuse of discretion in this case. First, we note that Weekley did not prevail in the prior litigation on her theory that the testator intended the trust to be responsible for all of the estate and inheritance taxes. But, even if Weekley had prevailed, those efforts would have primarily benefited Weekley. Had Week-ley been successful on her theory, the estate and inheritance taxes would have been paid by the trust rather than the probate estate. Thus, the beneficiaries under Brownlee’s will (Weekley and the children) would not have paid the taxes. Rather, the beneficiaries of the trust (the children and grandchildren) would have paid the taxes. Because Weekley was the only beneficiary that would have avoided any tax liability under her theory, it was not an abuse of discretion for the circuit court to conclude that her efforts were primarily for her own financial gain rather than for the benefit of the estate, notwithstanding any alleged effort to effectuate the testator’s intent.

[¶ 20.] With respect to the prior appellate fees, we note that Weekley failed to request those fees from this Court when the matter was before us. SDCL 15-26A-87.3 sets forth the substantive and procedural requirements for an award of appellate attorney’s fees. One requirement is that “[t]he motion must be served and filed prior to submission of the action on its merits.” SDCL 15-26A-87.3(2). Because Weekley did not file a motion for appellate attorney’s fees with this Court prior to submission of the matter on the merits, she failed to satisfy the statutory requirements. Thus, the circuit court did not abuse its discretion in denying those fees.

[¶ 21.] Weekley finally seeks $9,778.50 in appellate attorney’s fees for this appeal. As discussed in the following issue, Week-ley ultimately prevails only on her claim for interest. Considering the nature and complexity of that issue, we award one-half of her request.

3) Weekley’s entitlement to interest on her devise?

[¶ 22.] Weekley contends that the circuit court erred by not awarding interest on her devise of the certificates of deposit and on her advancement to help administer the estate. Weekley relies on two statutory theories: SDCL 21-1-13.1, which provides for interest on “damages,” and SDCL 29A-3-904, which mandates interest on “general pecuniary devises.” The circuit court denied Weekley’s claim for interest under SDCL 21-1-13.1, reasoning that the personal representative had discretion in distributing the estate’s assets and that there were insufficient funds to pay Weekley’s devise plus interest and attorney’s fees. The court essentially concluded that because the personal representative was not obligated to make the distribution at that time, there was no “damage” within the meaning of SDCL 21-1-13.1. With respect to Weekley’s claim for interest under SDCL 29A-3-904, the circuit court denied Weekley’s request based on the doctrine of the law of the ease. The court noted that, in the early stages of this dispute, Weekley argued that the bequest was a “specific” devise in order to obtain preferential treatment during the impending abatement, that Week-ley’s position was adopted, and that the decision was not reversed on appeal. The circuit court concluded that Weekley should not be allowed to now assert the contrary position that the certificates of deposit were a “general” devise so she could obtain interest under SDCL 29A-3-904.

[¶ 23.] Because Weekley seeks interest under either statute, we need only address her entitlement to recover under SDCL 21-1-13.1. In seeking interest under that statute, Weekley argues that she incurred “damages” due to the personal representative’s unreasonable delay in distributing her devise. Weekley points out that over three years have expired since our determination that the construction equipment was to be returned to the estate, yet some of her devise and the $25,000 she provided to help administer the estate remain unpaid.

[¶ 24.] Whether Weekley was entitled to interest under SDCL 21-1-13.1 is a question of law. We review questions of law de novo with no discretion given to the circuit court. Blenner v. City of Rapid City, 2003 SD 121, ¶ 41, 670 N.W.2d 508, 514.

[¶ 25.] SDCL 21-1-13.1 provides, in relevant part: “Any person who is entitled to recover damages ... is entitled to recover interest thereon from the day that the loss or damage occurred .... ” (emphasis added). We recently recognized the right to recover interest on such claims in another case involving an alleged delay in the distribution of an estate. We noted that “[i]n determining whether any loss or damage occurred, ... SDCL 29A-3~703(a) provides: ‘A personal representative is under a duty to settle and distribute the estate ... as expeditiously and efficiently as is consistent with the best interests of the estate.’ ” Siebrasse III, 2004 SD 46, ¶ 32, 678 N.W.2d at 830. We then concluded that although the personal representative is entitled to “considerable discretion in such matters,” a potential claim for interest under SDCL 21-1-13.1 is possible if the personal representative does not distribute the funds “expeditiously and efficiently.” M ¶¶ 32-33.

[¶ 26.] In this case, the decedent died on August 17,1997, and on November 20, 2002, this Court determined that the inter vivos transfer of the construction equipment was an ineffective gift. Thus, it has been eight and one-half years since decedent’s death and over three years since our decision requiring that the construction equipment be returned to the residuary estate. It also appears that the recovery of the construction equipment would have provided the estate with sufficient assets to pay the expenses and distribute the assets according to Brownlee’s will. However, the estate has been unable to articulate any legitimate reason for the three year delay, including any reason why there has been no repossession, sale, or collection of rent for use of the equipment. Because no justification has been presented for the estate’s failure to recover the equipment and pay Weekley’s claims as expeditiously and efficiently as is consistent with the best interests of the estate, we believe that Weekley has incurred a loss and has been damaged. Accordingly, Weekley is entitled to interest on the amount of her unpaid devise and on the $25,000 she provided for the administration of the estate.

[¶27.] Affirmed in part, reversed in part, and remanded.

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

      . At that time, it appeared there were insufficient funds to pay all expenses, taxes, and devises.

      . By this time the certificates of deposit had been converted to cash and used to pay some of the estate’s liabilities and expenses.

      . South Dakota’s chronological history of the two-prong test includes: In re Engebretson s Estate (Engebretson III), 69 S.D. 549, 554, 12 N.W.2d 761, 763 (1944) (awarding attorney’s fees under the second prong of the two-prong test); In re Bamberger’s Estate, 79 S.D. 85, 89, 108 N.W.2d 50, 52-53 (1961) (modifying the second prong by noting that although the second prong limited recovery of attorney’s fees to instances where the services of an attorney were necessary due to "laches, negligence, or fraud” of the personal representative, this Court was only "intending to cata-logue types of conduct of an executor which would in fact deprive the estate of effective representation”); Hafferman, 442 N.W.2d at 241-42 (denying an award of attorney’s fees because there was no laches, negligence, or fraud attributable to the personal representative, but also stating that the second prong would be satisfied in instances where the personal representative merely "failed to adequately defend the interests of the estate”); In re Estate of Schuldt (Schuldt II), 457 N.W.2d 837, 842 (SD 1990) (stating that Engebretson I did not rely on the second prong and that Bamberger did not impose a requirement of "laches, negligence, or fraud” by the personal representative, "nor does it impose such a requirement today”).

      . See, e.g., In re Estate of Lewis, 442 So.2d 290, 292 (Fla.Dist.Ct.App.1983) (explaining that the Florida statute that allows attorney’s fees for services that benefit the estate "is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in simply effectuating the testamentary intention set forth in the will”) (quoting Samuels v. Estate of Lucia S. Ahem, 436 So.2d 1096 (Fla.Dist.Ct.App.1983)).

      . Unlike Weekley’s request for the prior appellate fees, her request for attorney’s fees relating to this appeal complies with SDCL 15-26A-87.3(2) because her motion was filed prior to the submission of the matter on its merits.

      . SDCL 21-1-13.1 provides:
      Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim, or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debt- or is prevented by law, or by act of the creditor, from paying the debt. Prejudgment interest is not recoverable on future damages, punitive damages, or intangible damages such as pain and suffering, emotional distress, loss of consortium, injury to credit, reputation or financial standing, loss of enjoyment of life, or loss of society and companionship. If there is a question of fact as to when the loss or damage occurred, prejudgment interest shall commence on the date specified in the verdict or decision and shall run to, and include, the date of the verdict or, if there is no verdict, the date the judgment is entered. If necessary, special interrogatories shall be submitted to the jury. Prejudgment interest on damages arising from a contract shall be at the contract rate, if so provided in the contract; otherwise, if prejudgment interest is awarded, it shall be at the Category B rate of interest specified in § 54-3-16.
      Prejudgment interest on damages arising from inverse condemnation actions shall be at the Category A rate of interest as specified by § 54-3-16 on the day judgment is entered. This section shall apply retroactively to the day the loss or damage occurred in any pending action for inverse condemnation. The court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs.

      . SDCL 29A-3-904 provides:
      General pecuniary devises bear interest at the category B rate of interest specified in § 54-3-16 beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.

      . Because we have concluded that Weekley is entitled to interest under SDCL 21-1-13.1, we do not reach Weekley's contention that the circuit court erred in denying her interest under SDCL 29A-3-904.


author: SABERS, Justice.

text:
    2006 SD 39
    In the Matter of the ESTATE OF Ronald Dean TRAUTMAN Deceased. Jeffrey Ronald Trautman, Bradley Allan Trautman and Chad Michael Trautman, Plaintiffs and Appellees v. Nancy Jean Trautman, Defendant and Appellant.
    No. 23795.
    Supreme Court of South Dakota.
    Argued Feb. 14, 2006.
    Decided April 19, 2006.

      Thomas E. Simmons of Gunderson, Palmer, Goodsell & Nelson, L.L.P., Rapid City, SD, for plaintiffs and appellees.
    Kenneth R. Dewell of Johnson Eiesland Law Firm, L.L.P., Rapid City, SD, for defendant and appellant.
   SABERS, Justice.

[¶ 1.] Nancy Trautman (Nancy) appeals the circuit court’s determination that the proceeds of her husband’s life insurance policy be divided between his three sons. We affirm.

FACTS

[¶ 2.] Ronald Trautman (Ron) worked as business manager and later the Chief Financial Officer for Rapid City Regional Hospital. He was married to Diane Traut-man (Diane) and had three sons: Bradley, Jeffrey, and Chad Trautman (the Sons). As an employee benefit, the hospital provided Ron with a fifty thousand dollar basic life insurance plan through Trans-america Life Insurance Services (Trans-america). Ron also purchased a supplemental life insurance policy through Transamerica in the amount of one hundred thousand dollars. Diane was designated as the sole beneficiary on the basic and the supplemental policy.

[¶ 3.] Ron and Diane were subsequently divorced. As a result, Ron decided to change the beneficiary on the basic and supplemental policy. On September 29, 1997, Ron signed a “Beneficiary Designation/Change” form, listing “Bradley, Jeffrey, and Chad Trautman” as primary beneficiaries. Transamerica notified Ron by letter that it had received and recorded the change in beneficiary request. Bob McGlone, the hospital’s Human Resources Director, testified by deposition as to the content of this letter. The letter was admitted as Exhibit 8 without objection. However, Exhibit 8 is not part of the record for this appeal. McGlone’s testimony indicates the confirmation pertained to the basic term policy and not the supplemental policy.

[¶ 4.] On August 30, 1998, Ron and Nancy were married. Nancy began changing all of her life insurance policies to include Ron as the primary beneficiary. Ron made an application for additional coverage to the Transamerica supplemental life policy. Specifically, Ron requested an increase of one hundred thousand to two hundred thousand dollars. The form Ron completed was titled “Employee Application for Yoluntary/Supplemental Group Term Life Insurance.” Ron wrote the words “Increase Coverage” near the top of the form. Near the bottom of the form, there is a blank line following the word “beneficiary.” Ron listed the beneficiaries as follows:

$100,000 — Brad, Jeff, Chad — Sons
$100,000 — Nancy J. — Wife

[¶ 5.] On March 16, 1999, Transamerica notified Ron that his application for additional coverage had been denied because of an “admitted medical history.” No mention was made of any change in beneficiaries in the letter or any subsequent letter by Transamerica. Ron notified Nancy that the application had been denied. He made no further attempts to change the supplemental policy in any regard.

[¶ 6.] There is conflicting testimony as to Ron’s belief concerning the rejected application for additional benefits. Nancy testified that it was her belief, based on speaking with Ron, that she was entitled to half of the supplemental policy proceeds despite the fact that the application for an increase had been denied. Additionally, she testified that Ron told his attorney, Linda Lea Viken, that he had changed the beneficiaries of his life insurance policies so as to split any proceeds fifty-fifty between Nancy and his three sons. Ron’s sister, Sharon Frank, testified that Ron told her that “his boys” were the sole beneficiaries of a life insurance policy he obtained through the hospital.

[¶ 7.] Ron died on May 22, 2003. Transamerica paid the fifty thousand dollar proceeds of the basic life policy to the Sons. It then notified the parties of the one hundred thousand dollar supplemental life policy. However, Transamerica refused to distribute the funds because of the dispute between Nancy and the Sons.

[¶ 8.] The Sons brought an action seeking a declaration of rights under the supplemental life policy. Nancy answered by alleging that the rejected application for additional coverage “was intended to be a separate and distinct change and designation of beneficiaries for [Ron’s] supplemental life insurance coverage regardless of the approval or disapproval of [the] application[.]” The circuit court ruled in favor of the Sons, holding that Ron’s rejected application for additional benefits did not create a change of beneficiaries. Nancy appeals.

Standard of Review

[¶ 9.] “The proper interpretation of an insurance contract presents a legal question, reviewed de novo.” MGA Ins. Co., Inc. v. Goodsell, 2005 SD 118, ¶ 9, 707 N.W.2d 483, 485. Accordingly, we afford no deference to the trial court’s legal determinations. Culhane v. Western Nat. Mut. Ins. Co., 2005 SD 97, ¶ 5, 704 N.W.2d 287, 289. Findings of fact are reviewed under the clearly erroneous standard. SDCL 15-6-52(a). We will not disturb these findings unless we are “firmly and definitely convinced a mistake has. been made.” Parks v. Cooper, 2004 SD 27, ¶ 20, 676 N.W.2d 823, 829 (quoting Wood v. South Dakota Cement Plant, 1999 SD 8, ¶ 9, 588 N.W.2d 227, 229 (additional citations omitted)).

[¶ 10.] Whether Nancy met her burden that Ron manifested a clear intent to Transamerica that she should be added as a beneficiary for the supplemental policy and that Ron took substantial affirmative action to effect the change.

[¶ 11.] Generally, an insured may change the beneficiary on his or her insurance policy by adhering to the procedures prescribed in the policy. Stemler v. Stemler, 31 S.D. 595, 141 N.W. 780, 781 (1913). However, the Court recognized an equitable exception in Stemler. Id. at 782; Sheffield v. Modern Woodmen of America, 44 S.D. 472,184 N.W. 239, 240 (1921).

[¶ 12.] In Stemler, this Court rejected an asserted change in beneficiary request where the decedent signed the change in beneficiary form, but failed to make presentment or delivery to the insurance company before he died as required by the policy. 31 S.D. 595, 141 N.W. at 780-81. Although the Court used the term “substantial compliance,” its rationale was more consistent with strict compliance, The Court noted:

The [policy] ought to be sanctioned, as it •makes certain who the beneficiary is, and prevents complications and difficulties arising in determining the right of conflicting claimants.

Id. at 783. The Court summarized cases from other jurisdictions, stating:

It seems to be generally held that a[n] [insurance company] may stipulate methods and conditions by and under which a substitution of beneficiaries may be effected, and, unless such methods and conditions are adopted and complied with, no substitution will take place.

Id. However, this Court did recognize that the general rule has “exceptions, well recognized by courts, dependent on the circumstances of each particular case.” Id. The Court identified the equitable exception of “decreeing that to be done which ought in equity to have been done.” Id. at 784. The rule was explained as follows:

Where, prior to his death, he has done everything within his power to comply with the requirements of his contract, where he has presented to the insurer the facts and requested the change of beneficiary prior to his death, and there remained nothing else to be done or that could have been done on his part, and nothing to be done on the part of the insurer except the issuance of the new certificate, under such circumstances the courts have decreed that should be treated as done which should have been done, and held that the change of beneficiary had legally taken place, although, as a matter of fact, the new certificate had not been issued.

Id.

[¶ 13.] In Sheffield, this Court refused to find an effective change in beneficiary when the insured listed proposed beneficiaries in the alternative which was not acceptable under the insurer’s bylaws. Id. at 240. The Court also rejected the plaintiffs contention that the case fell under the equitable exception to the general rule. Id. , Because Stemler and Sheffield are almost one hundred years old, we will examine more recent cases from other jurisdictions that have addressed this issue.

[¶ 14.] The Minnesota Supreme Court applies the equitable doctrine in a liberal fashion when determining if a change in beneficiary is effective. The Court employs a two pronged test that examines “(1) whether the insured intended to change the beneficiary and (2) whether he took affirmative action or otherwise did substantially all that he could do to demonstrate that intention without regard to whether he complied with the change-of-beneficiary provisions in the policy.” Lemke v. Schwarz, 286 N.W.2d 693, 695 (Minn.1979) (emphasis added). The Court did not require that the insured demonstrate his or her intention to the insurer. Id. at 697. Thus, an insured changed the beneficiary of his life insurance policy when he expressed his intent to his daughter via letter, without ever notifying the insurer. Id. The Court reasoned:

There, seems to be, however, little, if any, distinction between writing a letter to the insurer of the change and making an unequivocal statement of such intent in a letter to another, so long as the insurer, for whose benefit the notice requirements exist, is not thereby prejudiced.

Id. In short, Minnesota has rejected the holdings of courts that require relatively strict compliance with policy formalities.

[¶ 15.] Other courts have adopted a more narrow, “substantial compliance” exception. As the Washington Court of Appeals noted:

The general rule in this jurisdiction and elsewhere as to attempted changes of beneficiaries on an insurance policy is that courts of equity will give effect to the intention of the insured when the insured has substantially complied with the provisions of the policy regarding that change[.]
Substantial compliance with the terms of the policy means that the insured has not only manifested an intent to change beneficiaries, but has done everything which was reasonably possible to make that change[J

Rice v. Life Ins. Co. of North America, 25 Wash.App. 479, 609 P.2d 1387, 1389 (1980) (quoting Allen v. Abrahamson, 12 Wash.App. 103, 529 P.2d 469, 470 (1974)).

[¶ 16.] The Supreme Court of Connecticut examined an insurance policy with language that is almost identical to that of the policy in the present case. Engelman v. Connecticut General Life Ins. Co., 240 Conn. 287, 690 A.2d 882 (1997). In Engelman, an insured had tried changing her beneficiary on at least two occasions. Id. at 884. On the second occasion, the insured sent a letter to the insurer that was signed, dated, witnessed, referenced the policy number, and stated the name of the intended beneficiary. Id. The insurer received the letter and acknowledged that it contained everything that a standard change in beneficiary form required. Id. at 885. However, the insurer rejected the change because it was not completed on the insurer’s form. Id. The Supreme Court of Connecticut held against the insurer citing the rule of substantial compliance. Id. at 888. The court stated:

This approach is especially justified when the evidence shows that an insured has taken substantial affirmative action in an attempt to effectuate the change. The majority of the decisions on point adopt rules embracing this approach. Several courts have observed or concluded all that is required is that every reasonable effort under the circumstances be made to effect the change. These decisions are sometimes viewed as having adopted a rule of substantial compliance.

Id. citing R. Keeton A. Widiss, Insurance Law (1988) 4.11(d)(1), pp. 430-31 (internal quotations and additional citations omitted). The Court defined substantial compliance as (1) [where] the owner clearly intended to change the beneficiary and to designate the new beneficiary, and (2) the owner has taken substantial affirmative action to effectuate the change in the beneficiary. Id. at 888.

[¶ 17.] An insured should comply with the policy requirements when attempting to change a beneficiary. Indeed, those requirements protect the insured, insurer, and the named beneficiary of the policy. The requirements also “prevent[ ] complications and difficulties arising in determining the right of conflicting claimants.” Stemler, 141 N.W. at 783. We continue to recognize the equitable exception from Stemler and Sheffield, and modify it to conform to the more recent, majority doctrine of substantial compliance.

[¶ 18.] One relying on the substantial compliance exception has the burden of proving (1) that the policy owner manifested a clear intent to the insurer of a desire to change the beneficiary and to designate the new beneficiary, and (2) that the owner has taken substantial affirmative action to effectuate the change. This requires that the insured make every reasonable effort under the circumstances in attempting to effect the change.

[¶ 19.] The relevant provision of Transamerica’s “Group Term Life Insurance Certificate” provides:

How to Change a Beneficiary: You may change the Beneficiary by filing a satisfactory written notice with us.... A change of Beneficiary will not be effective until recorded by us through our Administrator’s office. When recorded, even if the insured is not then living, the change will take effect on the date the notice was signed, except that any benefits paid before we record a change of Beneficiary will not be subject to the change. An irrevocable Beneficiary may not be changed without the written consent of that Beneficiary.

The term “satisfactory written notice” is undefined. However, the Transamerica “Beneficiary Designation/Change” form requires the insured’s name, policy number, social security number, address, signature, the signature of a witness, and the names of the beneficiaries and their relation to the insured. This is the same form Ron used to change the beneficiary from his ex-wife to the Sons. Ron later received a confirmation from Transamerica that they had received the form.

[¶ 20.] The form relied upon by Nancy in arguing Ron substantially complied with the policy is not the “Beneficiary Designation/Change” form, but an “Employee Application for Voluntary/Supplemental Group Term Life Insurance.” The application not only differs in name from the beneficiary change form but it does not require the signature of a witness. Despite the fact that Ron knew of the beneficiary change form, he did not obtain or complete one. While failing to adhere to the standard form is not dispositive, it bears on whether Ron manifested a clear intent to Transamerica that he was adding Nancy as a beneficiary for the supplemental policy, even if additional coverage was rejected.

[¶ 21.] The supplemental policy was originally for one hundred thousand dollars. In the application, Ron requested an increase to two hundred thousand dollars. After a line titled “Beneficiary,” Ron wrote the following:

$100,000 — Brad, Jeff, Chad — Sons.
$100,000 — Nancy J. — Wife.

Nancy relies heavily on this writing as an expression of Ron’s intent to entitle her to fifty percent of the proceeds of the policy, and designate the other fifty percent of the proceeds to the Sons. We disagree. The fact that Ron attempted to split the proceeds one hundred thousand for the Sons and one hundred thousand for Nancy, is an indication that her status as beneficiary was contingent on receiving the one hundred thousand dollar increase. No clear intent was expressed in view of the contingency. As mentioned above, the application was rejected. Ron received the rejection letter from Transamerica. He did not receive a confirmation that the beneficiary was changed. Finally, there is no evidence that Ron inquired into whether the beneficiary had been changed or attempted to make a' subsequent change. As this Court noted in Sheffield, “[w]hen the insured submit[s] an ambiguous request for substitution of beneficiaries, it cannot fairly be said that he had done all that he could or should have done to effect the change.” Sheffield, 184 N.W. at 241. Nor can it be fairly said that the ambiguous writing on Ron’s application constitutes a clear intent to add Nancy as a beneficiary or every reasonable effort to effect that change.

[¶ 22.] Nancy also relies on a faxed communication from Sheri Williams, the Group Life Underwriting Manager for Transamerica, to Nancy’s attorney. The fax provides:

I spoke with Sue Zach (Rapid City Regional Hospital Personnel Benefits Coordinator) and we agreed that the last Group Life change request was made on 01/19/1999 by Mr. Trautman requesting to increase his Voluntary Group Term Life coverage from $100,000 to $200,000. Transamerica Declined [sic] Mr. Trautman’s request for increase and sent him a letter on 03/16/1999. Therefore, the original $100,000 remains unchanged. The 01/19/1999 application indicated that the beneficiary designation should be $100,000 for his three sons and $100,000 for his wife (Nancy). Since the request for increase was declined, the $100,000 benefit amount would be split. $50,000 should be designated to the three sons, and the remaining $50,000 should be designated to his wife Nancy.

The Sons objected to this fax on the grounds that it was inadmissible hearsay. However, the circuit court admitted the fax and the Sons have not claimed the trial court’s evidentiary ruling was error. Instead, the Sons argue that the trial court was entitled to give the fax less weight because there was no indication that it was reliable. We agree.

[¶ 23.] Nancy failed to depose or obtain an affidavit from the insurer or any of its agents in regards to this communication. The fax appears to have been sent as a result of an inquiry from Nancy’s counsel. Additionally, the fax does not indicate that the application for additional benefits was recorded by the insurer as a change in beneficiary or that the application constitutes “satisfactory written notice” of a change in beneficiary. Thus, the fax appears to be no more than an after the fact opinion expressed by one of the insurer’s employees as to their belief of Ron’s intent when he completed the application for additional benefits. As the North Dakota Supreme Court noted:

Upon the death of the insured, rights to the insurance proceeds bec[ome] vested. It is for the court and not for the [insurance] [c]ompany to determine in whom they vested. Where rights to insurance proceeds have become vested upon the death of the insured, the insurer may not by subsequent waiver deprive the proper beneficiary of those rights.

Rasmussen, 293 N.W. at 808. It was within the circuit court’s discretion to determine the appropriate amount of weight to be given to the fax.

[¶ 24.] Nancy cites Rice, 25 Wash.App. 479, 609 P.2d 1387, and Lemke, 286 N.W.2d at 693, for the proposition that a beneficiary designation in an application for increased life insurance demonstrates a clear intent to change the beneficiary. Rice, however, is clearly distinguishable from the present case. In Rice, the insured clearly and unambiguously stated his intent to change the beneficiary. 609 P.2d at 1388. Moreover, a representative from the insurance company who served as the custodian of beneficiary records testified that:

[T]he form used by the decedent was the only form an insured under this plan could have used ... for requesting a change of beneficiary, and that the person named as the beneficiary thereon was automatically considered the beneficiary as of the date that her department received the form.

Id. at 1389. No similar testimony was offered in this case. As to Nancy’s reliance on Lemke, we do not find that case persuasive and reject its reasoning.

[¶ 25.] Finally, Nancy attempts to use the statements Ron made to her and his attorney as evidence of intent to change the beneficiary. However, those statements conflict with Ron’s statement to his sister, Sharon Frank. Moreover, those statements do not amount to a statement of clear intent to the insurer and the appropriate weight to be given to them was for the circuit court.

[¶ 26.] Nancy has not met her burden on substantial compliance as to either intent or substantial affirmative action. Accordingly, the decision of the circuit court is affirmed.

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

      . Exhibit B in. Plaintiff’s Complaint, later marked Exhibit 2 for deposition, is the “Beneficiary Designation/Change” form. That form, however, only lists the basic term life policy (BTL 2011). There are no documents ■ in the record that demonstrate Ron changed the beneficiary of the supplemental life policy. However, such evidence is not necessary as the defendant's proposed finding of fact #12 concedes that Ron changed the beneficiary designations on the basic and the supplemental policy.

      . This statement was allegedly made during a meeting between Ron, Nancy, and attorney Linda Lea Viken.

      . Nancy does not argue that Ron strictly complied with policy. In fact, she concedes that Ron did not use the standard form and she has presented no evidence, other than a fax discussed in paragraph 23 infra, that the purported change was recorded by Trans-america.

      . The North Dakota Supreme Court has also applied these principles. See Rasmussen v. Mutual Life Ins. Co. of New York et al., 70 N.D. 295, 293 N.W. 805 (1940).

      . Pennsylvania, New York, and Connecticut have adopted a similar standard. See Provident Mutual Life Ins. Co. of Philadelphia v. Ehrlich, 508 F.2d 129 (3rd Cir.1975); Engelman v. Connecticut General Life Ins. Co., 240 Conn. 287, 690 A.2d 882 (1997); Lopez v. Metropolitan Life Ins. Co., 170 A.D.2d 583, 566 N.Y.S.2d 359 (N.Y.App.Div.1991).

      . The federal common law of substantial compliance is similar to the majority of state jurisdictions and requires (1) the insured to evidence his or her intent to make the change and (2) attempts to effectuate the change by undertaking positive action which is for all practical purposes similar to the action required by the change of beneficiary provisions of the policy. Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 565 (4thCir.l994).

      . The decedent in Rice had also used this type of form to successfully change beneficiaries in the past. 609 P.2d at 1389.

      . Nancy also points out that Ron and she received a loan for $101,000 from Wells Fargo Bank. As security for the loan, Ron granted Wells Fargo a second mortgage on the home and assigned the supplemental policy as additional collateral. Nancy argues that this demonstrates a belief by Ron that Nancy was a beneficiary. On the contrary, Ron's assignment of the policy to Wells Fargo merely demonstrates his intent to provide additional collateral. Had a default occurred, Wells Fargo’s interest in the policy proceeds would appear to be superior to that of any beneficiary. The assignment of the policy does not demonstrate a belief by Ron as to the identity of the beneficiary.
      Alternatively, Nancy argues that she should at least be reimbursed by the Sons for the balance of the Wells Fargo loan she had to pay after Ron's death. Nancy overlooks the fact that the assignment created no obligation on behalf of the Sons. As mentioned above, had Nancy defaulted on the loan, the Sons interest in the proceeds would appear to be junior to that of Wells Fargo's. However, no default occurred and Nancy paid the balance of the loan with proceeds acquired from the sale of the home. After the loan had been satisfied, Wells Fargo's security interest in the policy proceeds was extinguished. Thus, the Sons, are entitled to one hundred percent of the proceeds.


author: KONENKAMP, Justice.

text:
    2006 SD 40
    STATE of South Dakota, Plaintiff and Appellee v. Steven E. THAYER, d/b/a Villa Cleaners, Villa Ranchaero Center, Box Elder, South Dakota, Defendant and Appellant.
    No. 23720.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2006.
    Decided April 19, 2006.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Jeremiah J. Davis, Pennington County Public Defender’s Office, Rapid City, SD, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] Defendant was convicted of sales tax evasion. The court orally sentenced him to the state penitentiary for two years, without specifically ordering any payment of restitution. The written judgment, however, did not conform to the oral sentence because it contained a detailed restitution obligation. Because the judgment unlawfully imposed a harsher sentence than that imposed in the oral sentence, we reverse and remand.

Background

[¶ 2.] Steven Thayer obtained a South Dakota sales tax license in September 2001, for Villa Cleaners, a business in Box Elder, South Dakota. As the holder of the sales tax license, he was required to file a sales tax return with the Department of Revenue and Regulation and remit payment for the reported tax on a monthly basis. See SDCL 10-45-27(1). For the months of May, June, and July 2003, Thayer filed the sales tax returns, but did not remit the amounts owed. He was subsequently charged with four counts of sales tax evasion, consisting of three class 1 misdemeanors and one class 6 felony.

[¶ 3.] In a plea agreement, Thayer consented to plead guilty to the felony count, and, in exchange, the State agreed to dismiss the three misdemeanor charges. Thayer’s counsel indicated that his client was seeking leniency because he had no ability to pay the delinquent taxes.

[¶ 4.] Before the court accepted Thayer’s plea, it informed him that the sentence would be entirely up to the court and that Thayer could not change his plea if he received a sentence more harsh than anticipated. Thayer said he understood the consequences of his guilty plea. The court accepted his plea to the class 6 felony: failure to pay sales tax two or more times in a twelve-month period. In setting the sentencing date, the court remarked that the date would be “a month down the road to give restitution a chance to see if it can be sorted out.”

[¶ 5.] At the sentencing hearing, Thayer confirmed that he desired to continue with his guilty plea. The prosecutor told the court that Thayer “made no effort whatsoever to get square with the State since this thing has been pending.” Thus, the prosecutor requested that Thayer’s “obligation to make restitution [be] separate from the sentence. Neither one is connected to the other.” Defense counsel summarized Thayer’s position: “Send me to prison. I don’t want to pay. I can’t pay.”

[¶ 6.] The court orally sentenced Thayer to two years in the penitentiary and left the issue of restitution for the Board of Pardons and Paroles. Specifically, the court stated, “I am going to impose the two years in the South Dakota State-Penitentiary, give credit for any jail time previously spent and allow the restitution issue to be before the Board of Pardons and Paroles. If they [the Board] want to apply for time in the penitentiary as a back charge against the restitution, I have no objection to that.” However, the written judgment, in addition to ordering the two-year penitentiary sentence, also ordered Thayer to pay restitution of $4,263.71 to the Department of Revenue and Regulation. Thayer appeals, claiming that the court erred by entering a judgment of conviction contrary to the oral sentence.

Analysis and Decision

[¶ 7.] When a court’s written sentence differs from its oral sentence, we review it under the premise that the oral sentence controls. See State v. Ford, 328 N.W.2d 263, 268 (S.D.1982); State v. Cady, 422 N.W.2d 828, 830 (S.D.1988). Thayer asserts that the inconsistency between his oral and written sentences unlawfully imposed a harsher sentence against him. He argues that the court had no authority to extend his sentence and require that he “shall pay” tax, penalty, and interest of $4,263.71, with interest continuing to accrue.

[¶ 8.] It is well settled that the written sentence must conform to the court’s oral pronouncement. See Ford, 328 N.W.2d at 267; Cady, 422 N.W.2d at 830; State v. Munk, 453 N.W.2d 124, 125 (S.D.1990); State v. Bucholz, 403 N.W.2d 400, 402-03 (S.D.1987); State v. Hughes, 62 S.D. 579, 584, 255 N.W. 800, 802 (1934). Only in certain limited circumstances will this rule not apply. See Cady, 422 N.W.2d at 830; Munk, 453 N.W.2d at 125 (stating “if the oral sentence is ambiguous, the written judgment may be relied upon to clarify the ambiguity”); SDCL 23A-31-1 (“[a] court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner”); SDCL 23A-31-2 (allowing correction of clerical mistakes).

[¶ 9.] According to the State, the recognized exceptions apply here and the written judgment controls. The State first contends that the court contemplated imposing restitution at the plea hearing when it allowed Thayer additional time to see if restitution could be sorted out. Under this theory, the State argues that the court’s oral sentence, in essence, included a restitution obligation. Then, because the court did not set a precise amount, the State asks that we deem the oral sentence ambiguous and use the written sentence for clarification. See Cady, 422 N.W.2d at 830.

[¶ 10.] To determine if an oral sentence is ambiguous, we examine certain guiding factors. Id. An ambiguity exists:

(1) when the words used have more than one meaning;
(2) when otherwise unambiguous words are used in an unusual way;
(3) the extent of the sentence cannot be ascertained from the language used; or
(4) the plain meaning of the words used lead to an irrational or absurd result.

Id. (quoting United States v. Villano, 816 F.2d 1448,1453 n. 6 (10th Cir.1987)).

[¶ 11.] Considering the above factors together with a plain reading of the oral sentence, we conclude that there was no ambiguity. First, the oral sentence did not contain words that implicated more than one meaning. Each word used by the court can be understood by its ordinary use in the English language. Further, the court did not use unambiguous words in an unusual way. Third, the extent of Thayer’s sentence can be ascertained from the language used. Thayer was ordered to serve two years, with no court-imposed obligation to pay restitution. Finally, the plain meaning of the words used does not lead to an irrational or absurd result. It is within the court’s discretion to require a defendant to pay restitution.

[¶ 12.] Next, the State argues that the oral sentence is ambiguous because the court acted without authority when it empowered the Board of Pardons and Paroles to set restitution. State v. Gullickson, 2003 SD 32, ¶ 15, 659 N.W.2d 388, 391 (stating that the Board’s power to prepare and administer a plan of restitution “does not extend to the authority to set restitution in the first place”) (citing State v. Wolff, 438 N.W.2d 199, 201 (S.D.1989)). Assuming the State is correct on this point, it nonetheless cites no authority that a court’s purported legal misconception makes an oral sentence ambiguous. Instead, the oral sentence clearly sentenced Thayer to serve two years in the penitentiary and left the question open whether the Board of Pardons and Paroles might impose restitution. See State v. Hurst, 507 N.W.2d 918, 928 (S.D.1993) (holding that circuit court’s suggestion that Board require defendant to pay restitution was dicta).

[¶ 13.] As an alternative, the State asserts that by placing power in the Board, the court has either pronounced an illegal sentence or imposed Thayer’s sentence in an illegal manner, requiring correction under SDCL 23A-31-1. However, the State cites no authority to support its theory that by leaving the issue of restitution to the Board the court acted illegally. More importantly, the State’s reliance on this statute is mistaken. SDCL 23A-31-1 may not be used to increase a defendant’s sentence. See State v. Tibbetts, 333 N.W.2d 440, 441 (S.D.1983) (citing Ford, 328 N.W.2d 263); see also Bucholz, 403 N.W.2d at 402.

[¶ 14.] Nevertheless, in addressing the State’s argument, we are unable to conclude that the oral sentence was illegal or was imposed in an illegal manner. State v. Sieler defined what makes a sentence illegal and what could cause a sentence to be imposed in an illegal manner under SDCL 23A-31-1. 1996 SD 114, ¶ 6, 554 N.W.2d 477, 479 (citations omitted). “ ‘Sentences imposed in an illegal manner are within the relevant statutory limits[,] but are imposed in a way which violates defendant’s right to not have his sentence enhanced once the defendant has left the judicial branch of government and is within the jurisdiction of the executive branch.” Id. (emphasis added) (citations omitted). Illegal sentences are “essentially only those which exceed the relevant statutory maximum limits or violate double jeopardy or are ambiguous or internally contradictory.’ ” Id. (citations omitted).

[¶ 15.] First, the court’s oral sentence was not imposed in an illegal manner. It in no way violated Thayer’s right not to have his sentence enhanced, and it is within the statutory limit. Second, we cannot say that by suggesting that restitution be considered by the Board the court pronounced an illegal sentence. The sentence does not exceed the statutory maximum, does not violate Thayer’s right to be free from double jeopardy, and creates no ambiguity or internal contradictions.

[¶ 16.] Moreover, had the court contemplated imposing restitution against Thayer, it was required to act in accordance with SDCL 23A-27-1 and SDCL ch. 23A-28. See Wolff, 438 N.W.2d at 201 (citing SDCL 23A-27-1). Here, no such compliance is evident. For example, while a court has broad discretion in determining whether restitution will be imposed against a defendant, SDCL 23A-28-3 requires that when imposing restitution the court “shall set forth in the judgment the names and specific amounts of restitution owed each victim.” (Emphasis added). Here the court did not identify the victim in its oral pronouncement, nor did it discuss or allude to an amount of restitution that Thayer would owe. Only after the court satisfies this statutory obligation, can the Board of Pardons and Paroles establish a plan for a defendant’s payment of restitution. See id. (“The Department of-Corrections shall establish the collection schedule for court-ordered restitution while the defendant is in the penitentiary or on parole.” (Emphasis added)).

[¶ 17.] Additionally, when restitution will be imposed as part of the sentence, the court has a duty to inform the defendant of this possibility and then afford the defendant an opportunity for a hearing on the matter. See State v. Tuttle, 460 N.W.2d 157 (S.D.1990) (stating “that a hearing on restitution is necessary because ‘due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard’ ”). At no time, in either the plea hearing or sentencing hearing, did the court mention to Thayer that he might be ordered to pay restitution in addition to the maximum prison sentence. Nor did the court offer him an opportunity to contest the possibility of such an obligation.

[¶ 18.] This is not a case where the defendant volunteered to pay restitution. Thayer wanted prison time in lieu of restitution, making him an unwilling defendant. In Munk, 453 N.W.2d at 125, the defendant willingly agreed to pay restitution and we stated that the requirement that a sentence not be increased against an unwilling defendant did not apply. Here, on the other hand, by adding to the written judgment that Thayer was required to pay restitution to the Department of Revenue and Regulation as part of his sentence, the court unlawfully increased his punishment.

[¶ 19.] Because the written sentence unlawfully enhanced the court’s oral sentence, we reverse and order that the judgment be amended to remove the portion of the sentence requiring Thayer to pay restitution.

[¶ 20.] Reversed and remanded.

GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.

      . The amount of sales tax due for May, June, and July 2003 was $508.28, $461.16, and $555.17, respectively. Thayer claimed that he was no longer responsible for Villa Cleaners. Yet Thayer remained the holder of Villa’s sales tax license until after July 2003.

      . Under SDCL 10-45-48.1(2), failure to pay the sales tax within sixty days of the due date is a class 1 misdemeanor. Failure to pay two or more times within a twelve month period constitutes a class 6 felony. SDCL 10-45-48.1(8).

      . The written sentence provides in relevant part:
      ORDERED that Defendant, Steven E. Thayer, shall be and is hereby sentenced to two (2) years in incarceration in the South Dakota State Penitentiary; it is further

      ORDERED that in addition, the Defendant shall pay the State of South Dakota, Department of Revenue and Regulation, all of the tax, penalty and interest due and owing or accrued to the time of the payment thereof, which obligation is owing as a result of the operation of the business known as Villa Cleaners during the period of time when [Thayer] was the holder of the South Dakota Sales tax license for said business. Said tax, penalty and interest was in the amount of $4,263.71 as of the date of sentencing with interest continuing to accrue on the portion of this obligation represented as tax as is provided by South Dakota until the date of payment thereof.

      . Along the same lines, the State requests that the Court remand this matter for a restitution hearing so that the circuit court can clarify the restitution requirement.

      . SDCL 23A-31-1 (Rule 35) allows a court to "correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided in this section for the reduction of sentence.”

      . Under SDCL 23A-28-1, the court may require a defendant pay restitution, to the extent that the defendant is able to do so.