Considered on Briefs August 31, 2015
As corrected January 4, 2016.
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MEADE COUNTY, SOUTH DAKOTA. THE HONORABLE JEROME A. ECKRICH, III. Judge.
Affirmed but remanded to restate the aggravating circumstances in the judgment.
For plaintiff and appellee: MARTY J. JACKLEY, Attorney General; JARED TIDEMANN, Assistant Attorney General, Pierre, South Dakota.
For defendant and appellant: JOHN R. MURPHY, Rapid City, South Dakota.
ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.
[¶1] David Beckwith pleaded guilty to possession of a controlled substance. In imposing sentence, the circuit court articulated three " aggravating circumstances" to justify departing from presumptive probation. The court did not restate the aggravating circumstances in its written judgment. On appeal, Beckwith argues that the court's stated aggravating circumstances did not warrant a departure from presumptive probation. Beckwith also argues that the court erred in failing to include the aggravating circumstances in the judgment. We affirm the circuit court's decision to depart from presumptive probation, but we remand to include the aggravating circumstances in the written judgment.
Facts and Procedural History
[¶2] A highway patrolman stopped Beckwith for having illegal handlebars on his motorcycle. During the stop, the officer observed Beckwith remove a small plastic bag from his pocket, bite a hole in the bag, and throw the bag on the ground. The bag's contents were recovered and tested positive for methamphetamine. The officer arrested Beckwith, and a subsequent urinalysis confirmed the presence of a methamphetamine metabolite in his body. The State charged Beckwith with possession and ingestion of a controlled substance, both Class 5 felonies.
[¶3] Pursuant to a plea agreement, the State dismissed the ingestion charge and Beckwith entered an Alford plea to the possession of a controlled substance charge. See State v. Engelmann, 541 N.W.2d 96, 101 (S.D. 1995) (" An Alford plea is no less a guilty plea, notwithstanding assertions of innocence. It allows a defendant the opportunity to avoid the risk of trial and obtain the benefit of a favorable plea bargain 'even if he is unwilling or unable to admit his participation in the acts constituting the crime.'" (quoting North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970))). Beckwith acknowledged that he ingested methamphetamine the night before his arrest. Beckwith indicated he entered an Alford plea to possession because " [t]he contraband found on his person came something of a surprise to him, but considering the circumstances of the night before, was not a shock." Beckwith's counsel indicated that the previous evening, the methamphetamine somehow " came into [Beckwith's] possession through a favor . . . of someone else[.]" Beckwith's counsel explained that the Alford plea was entered because of a " problem with the knowledge element" of the possession charge.
[¶4] Beckwith's court services officer (CSO) reported that Beckwith failed to call when scheduled to do so for the presentence investigation. The CSO's subsequent attempts to contact Beckwith were also unsuccessful. The CSO indicated that Beckwith's noncompliance prevented an accurate assessment of Beckwith's " level of substance abuse, his education and employment history, his financial status or his attitude toward the crime he committed or toward the possibility of probation." Beckwith's " lack of follow through" also raised " concern[s] that [Beckwith was] not going to follow through with conditions of probation." The CSO further noted that Beckwith had " a history of violating his ...