CONSIDERED ON BRIEFS ON NOVEMBER 6, 2017
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE
COUNTY, SOUTH DAKOTA THE HONORABLE JEROME A. ECKRICH, III
J. JACKLEY Attorney General MATTHEW W. TEMPLAR Assistant
Attorney General Pierre, South Dakota Attorneys for plaintiff
EISENBRAUN of Grey & Eisenbraun Rapid City, South Dakota
Attorneys for defendant and appellant.
WILBUR, RETIRED JUSTICE.
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
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.
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.
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.
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.
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 ...