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State v. Toavs

Supreme Court of South Dakota

December 27, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
BERTON C. TOAVS, Defendant and Appellant.

          CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA THE HONORABLE JEROME A. ECKRICH, III Retired Judge

          MARTY J. JACKLEY Attorney General MATTHEW W. TEMPLAR Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          PAUL EISENBRAUN of Grey & Eisenbraun Rapid City, South Dakota Attorneys for defendant and appellant.

          WILBUR, RETIRED JUSTICE.

         [¶1.] Berton Toavs appeals his sentences issued on two counts of first-degree manslaughter in violation of SDCL 22-16-15(3). Toavs argues the sentencing court abused its discretion in ordering him to serve two consecutive sentences of 110 and 100 years. According to Toavs, the sentencing court did not adequately consider whether Toavs was capable of rehabilitation prior to imposing the sentences. We conclude the sentencing court did not abuse its discretion and affirm Toavs's sentences.

         Background

         [¶2.] On April 26, 2016, Toavs shot and killed his girlfriend Eliza Edgins and his friend Nathan Gann at Toavs's home in Faith, South Dakota. Toavs and Edgins were in an off-and-on romantic relationship for some time, and Gann had been staying at Toavs's home for approximately six weeks prior to the incident. During the time Gann had been staying with Toavs, a romantic relationship developed between Edgins and Gann. Gann and Edgins apparently planned to leave South Dakota and continue their relationship. After hearing this news, Toavs left the house. He returned the following morning. Toavs and Edgins argued. Edgins told Toavs that he meant nothing to her and that she and Gann were going to be together. Angered, Toavs went to his bedroom and grabbed his .45 caliber Colt revolver. Toavs returned to the living room and shot Edgins multiple times. He then shot Gann, who had been sleeping on the living room floor. Both Edgins and Gann died from the gunshot wounds inflicted by Toavs.

         [¶3.] Toavs confessed to killing both Edgins and Gann, and he was indicted April 27, 2016, on two counts of premeditated first-degree murder. Subsequently, on December 21, 2016, Toavs signed a written plea agreement with the State. Toavs agreed to: (1) plead guilty to two counts of first-degree manslaughter, each a class C felony, in violation of SDCL 22-16-15(2);[*] (2) establish that his guilty pleas were free and voluntary and provide a sufficient written factual basis; (3) waive his right to a trial within 180 days of his initial appearance; and (4) waive his right to appeal. In return, the State dismissed both charges of first-degree murder and refrained from filing any additional charges. Toavs and the State also agreed to jointly recommend that Toavs's sentences on the two counts of first-degree manslaughter run consecutive to each other and that the two convictions be reduced to two separate judgments. However, Toavs and the State remained free to comment on the appropriate sentence and to present aggravating and mitigating evidence at the time of sentencing.

         [¶4.] The sentencing court held a hearing on March 15, 2017. The State and Toavs each presented evidence of aggravation and mitigation. After considering Toavs's presentence investigation report, the sentencing court imposed a sentence of 110 years on one conviction of first-degree manslaughter and a sentence of 100 years on the second conviction. The court ordered the sentences to run consecutive to each other.

         [¶5.] Toavs appeals his sentences, raising one issue: Whether the sentencing court abused its discretion in failing to consider the possibility of rehabilitation prior to sentencing.

         Standard of Review

         [¶6.] Sentencing courts "exercise broad discretion when deciding the extent and kind of punishment to be imposed." State v. Bausch, 2017 S.D. 1, ¶ 39, 889 N.W.2d 404, 415, cert. denied, 138 S.Ct. 87 (2017) (quoting State v. Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d 75, 83). Therefore, "[w]e generally review a circuit court's decision regarding sentencing for abuse of discretion. An abuse of discretion is a fundamental error of judgment, a choice outside the ...


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