APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE A. P. FULLER Judge.
CONSIDERED ON BRIEFS ON MARCH 23, 2009
[¶1.] Scott A. Marshek pleaded guilty to one count of Third Degree Burglary. At the initial sentencing hearing, the circuit court requested that Marshek verify a factual claim he had made. The circuit court explained to the parties that it would follow the sentence recommendation of the State if the factual claim was true, but would impose a longer sentence if Marshek was lying. Verification required that the sentencing hearing be continued. For a variety of reasons, the sentencing hearing was not resumed for several weeks. Marshek's factual claim was proven false, and the circuit court imposed the longer sentence.
[¶2.] Marshek appeals. Based on a statement made by the circuit court during the initial sentencing hearing, he claims that his actual sentence was given at the earlier hearing and could not be modified later.
[¶3.] In May 2007 Marshek worked for a Rapid City concrete company, when it was discovered that several tools and other items were missing from the company's shop and the owner's home. Earlier that day, the owner's wife had seen Marshek suspiciously leaving the shop in his pickup. When Marshek was later stopped by the authorities, he admitted to pawning the tools and other items.
[¶4.] The State brought several charges against Marshek. Ultimately, a plea agreement was reached. In exchange for a plea of guilty to Third Degree Burglary, the State would recommend an eight-year sentence with six years suspended. The circuit court accepted Marshek's plea and a pre-sentence investigation (PSI) was conducted.
[¶5.] The PSI reported that Marshek claimed to have $190,000 in a Santa Fe, New Mexico bank, among other assets. At the sentencing hearing on November 9, 2007, the circuit court considered restitution requests made by the State on behalf of the victims and the amount of prison time Marshek would be required to serve.
[¶6.] The circuit court's comments about Marshek's sentence form the basis of this appeal. The relevant part of the transcript follows:
The Court: Well, I'll go with the deal if you tell me the number of the bank account at First National Security Bank in Santa Fe.
Marshek: You'd have to look in my wallet down in evidence. My card is from First National Bank.
The Court: I'm just saying if you can establish -- I'm going to follow the plea agreement just like it is, okay, but if that -- if you can't establish -- and [Marshek's counsel], you'll have to do that through my court service officer or through the state's attorney. If you can establish that you have an account at First National Security Bank in Santa Fe, New Mexico, and that you have at least a hundred thousand dollars in that account, then I'm going with the plea agreement. Because now we know exactly where we're going to get our money to pay off this restitution and whatnot.
And if you don't have an account at First National Security Bank in Santa Fe, New Mexico, with at least a hundred thousand dollars sitting in it, then my sentence is 10 years in the state penitentiary, plus the ...