#27454-a-JMK

2016 S.D. 16

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

HERMAN KLEINSASSER, Petitioner and Appellant,

v.

DOUG WEBER, Warden,

South Dakota State Penitentiary, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

SULLY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KATHLEEN F. TRANDAHL

Judge

* * * *

AL ARENDT

Pierre, South Dakota Attorney for petitioner

and appellant.

MARTY J. JACKLEY

Attorney General

CRAIG M. EICHSTADT

Assistant Attorney General

Pierre, South Dakota Attorneys for respondent

and appellee.

* * * *

CONSIDERED ON BRIEFS

ON JANUARY 11, 2016

OPINION FILED 03/02/16
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KERN, Justice

[¶1.] Herman Kleinsasser, Jr., (Kleinsasser) pleaded guilty to first-degree 

manslaughter on May 27, 2009. He was sentenced on August 31, 2009, to 80 years 

in the South Dakota State Penitentiary and ordered to reimburse Sully County for 

costs of prosecution in the amount of $88,611.79. Kleinsasser filed a petition for a 

writ of habeas corpus raising six issues for review. After a two-day evidentiary 

trial, the circuit court denied his claims. Having received a certificate of probable 

cause from the circuit court, Kleinsasser presents three issues on appeal. First, 

Kleinsasser alleges that his trial counsel was ineffective. Second, he contends that

the State of South Dakota violated the terms of the plea-bargain agreement. Third, 

Kleinsasser alleges certain errors occurred during his change-of-plea and 

sentencing hearings. We affirm.

BACKGROUND

[¶2.] On the night of January 28, 2009, Sharon Kleinsasser was in the

kitchen of her home. Her husband, Herman Kleinsasser, Jr., entered the kitchen 

and shot her twice with a 12-guage, semi-automatic shotgun, once near her

shoulder and once in the head, killing her. Kleinsasser then shot himself once in 

the head. This third shot hit the ceiling, causing the kitchen lights to go out. All 

six of the Kleinsassers’ children, ranging in age from 1 to 15 years, were at home 

during the shooting. Their 11-year-old daughter, S.K., testified before a grand jury 

that she saw her mother lying in a pool of blood after the first shot was fired, while

the lights were still on. She also testified that she heard her father say, while 

standing over her mother, “I’ll do to you what you’ve been doing to me.” S.K. heard 
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a second shot as she ran out of the house. At least four of the children saw their 

mother’s dead body lying in a pool of blood after the shooting. One of the older boys

took the gun away, threw it outside, and called 911 for help.

[¶3.] Upon arrival, law enforcement arrested Kleinsasser and took him to 

the hospital in Pierre to receive medical care for his gunshot wound. A sample of

Kleinsasser’s blood was taken at the hospital and revealed alcohol, Alprazolam, and 

Codeine in his system at the time of the shooting. He was transported to Rapid City

Regional Hospital to receive additional care. In February 2009, Kleinsasser was 

released from the hospital to the county jail. He was indicted for first-degree 

murder, second-degree murder, and first-degree manslaughter. SDCL 22-16-4(1), 

-7, -15(3).

[¶4.] Attorney Wade Reimers was appointed to represent Kleinsasser and 

filed motions in support of his defense. On February 11, 2009, Reimers filed a 

motion for discovery and for appointment of an investigator. The court granted 

both motions and appointed Charles Draper, a former FBI agent, to serve as 

Reimers’s investigator. On February 24, 2009, Reimers filed a motion for 

appointment of a psychiatric expert. Dr. Stephen P. Manlove was appointed to 

assess Kleinsasser’s sanity at the time of the offense and his competency for trial. 

Reimers filed other motions, including requests for a gag order, for pretrial 

designation of evidence, and to extend deadlines. 

[¶5.] Reimers and Kleinsasser met and discussed potential defenses, the 

discovery information provided by the State, the mechanics of a jury trial, and 

potential plea-bargain agreements. The State extended a plea-bargain offer on
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March 5, 2009. In April 2009, Dr. Manlove issued his report. In formulating his 

opinion, Dr. Manlove reviewed the investigative report, charging document, and 

Kleinsasser’s medical records. He interviewed Kleinsasser on three occasions and 

performed a mental-status examination and competency assessment. Based upon 

this information, Dr. Manlove rendered three opinions. He determined Kleinsasser 

was sane at the time of the shooting and that he was competent both to understand 

the nature of the proceedings against him and to aid his attorney in his own 

defense. 

[¶6.] Kleinsasser accepted the State’s offer and signed a written plea 

agreement on May 8, 2009. In exchange for Kleinsasser’s plea of guilty to firstdegree manslaughter, the State agreed to dismiss the first- and second-degree

murder charges and to recommend a sentencing cap of 50 to 80 years. On May 27, 

2009, an arraignment and change-of-plea hearing was held before the Honorable 

John L. Brown. Both parties signed the original plea agreement and presented it to 

the court. The court advised Kleinsasser of his constitutional and statutory rights. 

Kleinsasser pleaded guilty to first-degree manslaughter. He signed a written 

statement setting forth the factual basis for his plea. The court ordered a 

presentence investigation and scheduled a sentencing hearing.

[¶7.] After the entry of his plea, Kleinsasser’s family retained Dr. Renner to 

evaluate Kleinsasser. Dr. Renner issued his report on August 25, 2009. Dr. Renner 

concluded “within a reasonable degree of medical certainty, that Mr. Kleinsasser 

had significantly impaired judgment from the ingestion of alcohol, Alprazolam, and 

Tylenol #3 during the time prior to the event coupled with his increasingly 
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heightened state of anxiety and worsening depression.” He went on to opine “that 

Mr. Kleinsasser likely had a marked distortion in perceiving reality at the time of 

the shooting.” The report was given to Reimers prior to sentencing.

[¶8.] The sentencing hearing was held on August 31, 2009, in the Sully 

County Courthouse before the Honorable Lori S. Wilbur. Immediately prior to the 

hearing, Reimers made a motion in chambers for a continuance, which was denied. 

The court advised Kleinsasser that the maximum sentence for first-degree 

manslaughter “could be up to life in the South Dakota Penitentiary and a $50,000 

fine, or both of those things, plus restitution.” Kleinsasser confirmed his 

understanding of the potential maximum sentence and the terms of the pleabargain agreement. Kleinsasser did not move to withdraw his plea. 

[¶9.] Reimers urged the court to consider a sentence at the “lower end of the 

recommendation” and discussed parole eligibility upon receipt of a 50-year sentence. 

The State argued for a sentence “at the maximum end of our agreed-upon window 

and that being the 80 years.” The State also presented a spreadsheet of expenses 

and requested reimbursement for Sully County’s costs of prosecution by way of “a 

lien against the defendant.” When asked by the court, Reimers stated his client had 

no objection to the requested costs. The circuit court imposed an 80-year sentence 

and ordered Kleinsasser to reimburse Sully County for costs of prosecution in the 

amount of $88,611.79. In September 2009, an amended judgment of conviction was 

filed.1 The amended judgment provided that “the Defendant shall be liable to Sully 

 

1. Kleinsasser filed a direct appeal of his conviction. Upon review, we issued an 

order of summary affirmance.
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County for restitution in the amount of . . . ([$]88,611.79), and any subsequent court 

appointed attorney fees incurred, as well as any additional medical or jail costs. A 

statutory lien for said restitution exists against Defendant’s property.” (Emphasis 

added.)

[¶10.] In April 2012, Kleinsasser filed a petition for writ of habeas corpus

alleging ineffective assistance of counsel. In January 2013, he filed a supplemental 

petition asserting the circuit court failed to canvass him regarding his rights under

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), at 

sentencing and failed to advise him that he could be required to pay restitution. 

Kleinsasser also claimed that the State violated the plea agreement by requesting a 

sentence of 80 years and “restitution over and above fines, court costs, and court 

attorney fees.”

[¶11.] A two-day court trial was held on October 21–22, 2013, on

Kleinsasser’s habeas claims. In addition to his own testimony, Kleinsasser 

presented expert testimony from attorney Steven Haugaard. The State presented 

expert testimony from attorney Max Gors and called Sheriff Bill Stahl, Reimers, 

and Special Agent Guy Di Benedetto to testify. Upon consideration of the parties’ 

posthearing briefs, the circuit court issued a memorandum decision denying 

Kleinsasser’s petition, followed by extensive findings of fact and conclusions of law. 

[¶12.] Kleinsasser raises three issues on appeal:

1. Whether Kleinsasser’s counsel was ineffective.

2. Whether the State violated the plea-bargain agreement.

3. Whether the sentencing court erred by failing to advise

Kleinsasser of his Boykin rights.
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STANDARD OF REVIEW

[¶13.] “Our review of habeas corpus proceedings is limited because it ‘is a 

collateral attack on a final judgment.’” Vanden Hoek v. Weber, 2006 S.D. 102, ¶ 8, 

724 N.W.2d 858, 861 (quoting Crutchfield v. Weber, 2005 S.D. 62, ¶ 8, 697 N.W.2d 

756, 759). “Accordingly, ‘habeas corpus can be used only to review (1) whether the 

court has jurisdiction of the crime and the person of the defendant; (2) whether the 

sentence was authorized by law; and (3) in certain cases whether an incarcerated 

defendant has been deprived of basic constitutional rights.’” Oleson v. Young, 

2015 S.D. 73, ¶ 5, 869 N.W.2d 452, 455 (quoting McDonough v. Weber, 2015 S.D. 1, 

¶ 15, 859 N.W.2d 26, 33). “The petitioner must ‘prove he is entitled to relief by a 

preponderance of the evidence.’” Id. (quoting McDonough, 2015 S.D. 1, ¶ 15, 

859 N.W.2d at 34). “‘Preponderance of the evidence’ is defined as ‘the greater 

weight of evidence.’” Id. (quoting Pieper v. Pieper, 2013 S.D. 98, ¶ 22, 841 N.W.2d 

781, 787). 

ANALYSIS

1. Whether Kleinsasser’s counsel was ineffective.

[¶14.] Kleinsasser alleges Reimers’s pretrial preparations were deficient in 

several respects. He also asserts that Reimers struck a plea bargain too quickly 

and while Kleinsasser was still under the influence of medications. Steven

Haugaard, Kleinsasser’s expert, testified that this was his “main complaint” about 

Reimers’s performance. Kleinsasser contends that he wanted to withdraw his plea 

and proceed to trial. He claims that he directed Reimers to request a continuance of 

his sentencing hearing so that he could withdraw his plea. Kleinsasser also faults 
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Reimers for failing to object to the State’s recommendations at the sentencing 

hearing as he believed they violated the terms of the plea agreement. 

[¶15.] Kleinsasser further alleges that Reimers failed to file motions, properly 

investigate his case, and develop reasonable defenses on his behalf. Specifically,

Kleinsasser claims Reimers ignored Dr. Renner’s report. He also contends that 

Reimers failed to ask Dr. Manlove to evaluate the interaction of the prescription 

drugs and alcohol in his system and their effect on his judgment at the time of the 

shooting. According to Kleinsasser, Reimers failed to reconstruct the crime scene 

and interview fact witnesses. The State argues Kleinsasser’s allegations are 

meritless, do not show constitutionally deficient performance, and fail to establish 

prejudice. 

[¶16.] “To prevail on a claim of ineffective assistance of counsel, a defendant 

must show that his counsel provided ineffective assistance and that he was 

prejudiced as a result.” State v. Craig, 2014 S.D. 43, ¶ 38, 850 N.W.2d 828, 838 

(quoting Fast Horse v. Weber, 2013 S.D. 74, ¶ 14, 838 N.W.2d 831, 836). 

[W]hether a defendant has received ineffective assistance of 

counsel is essentially a mixed question of law and fact. In the 

absence of a clearly erroneous determination by the circuit 

court, we must defer to its findings on such primary facts 

regarding what defense counsel did or did not do in preparation 

for trial and in his presentation of the defense at trial. This 

[C]ourt, however, may substitute its own judgment for that of 

the circuit court as to whether defense counsel’s actions or 

inaction constituted ineffective assistance of counsel.

Hofman v. Weber, 2002 S.D. 11, ¶ 8, 639 N.W.2d 523, 526 (quoting Weddell v. 

Weber, 2000 S.D. 3, ¶ 27, 604 N.W.2d 274, 281-82). 
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[¶17.] We apply the well-established, two-part test, set forth in Strickland v. 

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), to

determine whether a defendant received the effective assistance of counsel. The 

first prong requires that the defendant establish that counsel’s representation fell 

below an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2065. 

“There is a strong presumption that counsel’s performance falls within the wide 

range of professional assistance and the reasonableness of counsel’s performance is 

to be evaluated from counsel’s perspective at the time of the alleged error and in 

light of all circumstances.” State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706,

713 (quoting Steichen v. Weber, 2009 S.D. 4, ¶ 25, 760 N.W.2d 381, 392-93). The 

second prong of the Strickland test requires a showing of prejudice as a result of 

counsel’s deficient performance. 466 U.S. at 687, 104 S. Ct. at 2064. “[T]he 

defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Owens v. Russell, 2007 S.D. 3, ¶ 9, 726 N.W.2d 610, 615 (quoting 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Additionally, Kleinsasser bears an 

“increased burden to show ineffective assistance of counsel” as the case was resolved 

by a plea-bargain agreement. Id. ¶ 10, 726 N.W.2d at 616 (quoting Coon v. Weber, 

2002 S.D. 48, ¶ 12, 644 N.W.2d 638, 643). Kleinsasser must establish “gross error 

on the part of counsel in recommending that he plead guilty.” Id. (quoting Coon, 

2002 S.D. 48, ¶ 12, 644 N.W.2d at 643).
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[¶18.] The circuit court first addressed Kleinsasser’s allegations surrounding 

the plea-bargain agreement. Kleinsasser alleged that the agreement was struck on 

March 5, 2009, when he was still impaired from his injuries and the medications he 

was taking. In support of his argument, he relies upon a note in Reimers’s file 

dated March 5, 2009, indicating “manslaughter 50-80” as evidence that a plea deal 

was reached on that date. Upon consideration of both Reimers’s and Kleinsasser’s 

testimony, the circuit court found the plea discussions commenced on March 5, 

2009, and “there was no deal struck on this date.” (Emphasis added.) The court 

found that Kleinsasser and Reimers signed the plea agreement on May 8, 2009,

after Dr. Manlove issued his report. The court also found that Kleinsasser was 

vocal about his desire to avoid a trial, take advantage of the plea agreement, and

“save his children from going through trial.” He made similar statements to his 

attorney and Sheriff Stahl. 

[¶19.] Kleinsasser must show that absent Reimers’s alleged errors, he would 

have rejected the plea agreement and insisted on going to trial. Id. ¶ 21, 

726 N.W.2d at 618. From our review of the record, other than his own testimony, 

which the court discounted as self-serving and not credible, Kleinsasser has 

produced no evidence that he desired to proceed to trial. Rather, all of the evidence 

establishes that he intended to enter a plea and did so voluntarily and knowingly. 

Kleinsasser signed not one, but two copies of the proposed plea agreement—on May 

8, 2009, and another copy on May 27, 2009. Immediately prior to the arraignment,

Reimers deposed Kleinsasser in the presence of a court reporter to ensure that his 
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decision was voluntary. Upon cross-examination at the habeas proceeding,

Kleinsasser admitted that the following colloquy occurred during the deposition:

Mr. Reimers: Okay. Did we go over the signed plea agreement 

together?

Defendant: Yes.

Mr. Reimers: And did I explain what each part of it meant?

Defendant: Yes.

Mr. Reimers: Do you think you understand that?

Defendant: Yes.

Mr. Reimers: And did I make you sign the plea agreement?

Defendant: No.

Mr. Reimers: Did you want to sign the plea agreement?

Defendant: Yes.

Mr. Reimers: You did that voluntarily?

Defendant: Yes.

Mr. Reimers: Are you pleading guilty to manslaughter 

voluntarily?

Defendant: Yes.

Mr. Reimers: Did I force you to decide to plead guilty to that 

charge?

Defendant: No.

At the May 27, 2009 arraignment and change-of-plea hearing, the court discussed 

with Kleinsasser the terms of the plea agreement and ensured he understood the 

agreement:

The court: Now, pursuant to the plea agreement, it’s my 

understanding that the State is going to recommend a cap in 

this matter of from 50 to 80 years in the State Penitentiary. You 

understand, Mr. Kleinsasser, that the [c]ourt is not bound by the 

State’s recommendation in that regard; and the [c]ourt can 

sentence you up to life in prison. Do you understand that?

Defendant: Yes, Your Honor.
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After advising Kleinsasser of his Boykin rights, the court accepted his plea, finding 

it was knowingly and voluntarily made.

[¶20.] Kleinsasser also contends that he wanted to continue his sentencing 

hearing so that he could withdraw his plea. Immediately prior to the sentencing 

hearing, Reimers, at Kleinsasser’s request, made a motion in chambers for a 

continuance to “explore more of Dr. Renner’s findings . . . along the lines of 

mitigation.” Kleinsasser explained to the court that he did not want a continuance 

in order to pursue a defense to the charge of manslaughter; rather, he wanted the 

court to consider Dr. Renner’s report in mitigation. After agreeing to admit and 

consider Dr. Renner’s report, the circuit court denied the motion. At the sentencing 

hearing, the court noted that it had considered the findings in Dr. Renner’s report.

[¶21.] It is clear from a review of the record that Kleinsasser was given 

multiple opportunities to withdraw his plea and never made a request to do so. 

Kleinsasser’s habeas counsel acknowledged that “the issue of whether Kleinsasser

wanted to withdraw his plea at the time of sentencing” was one of credibility. The 

circuit court found Kleinsasser’s testimony on this point “not credible.” Such 

credibility determinations are properly left to the habeas court. We will not 

substitute our judgment for that of the judge who saw the demeanor and heard the 

testimony of the witnesses. Fast Horse, 2013 S.D. 74, ¶ 29, 838 N.W.2d at 840.

[¶22.] We next address the allegations that Reimers failed to file motions, 

properly investigate Kleinsasser’s case, and develop reasonable defenses. As an 

initial matter, Kleinsasser’s allegation that “Reimers failed to file a single motion 

for suppression, discovery, or any motions practice,” other than a motion for 
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psychiatric opinion, is at best factually inaccurate. As previously discussed,

Reimers filed six motions between February and March 2009. Further, Kleinsasser 

has failed to identify what additional motions Reimers should have filed and how 

any evidence discovered would have led to a recommendation that Kleinsasser 

reject the plea agreement and proceed to trial. 

[¶23.] Kleinsasser also alleges that Reimers failed to adequately investigate 

his insanity defense. To succeed on this claim, Kleinsasser must establish that 

Reimers’s alleged failure “caused him to plead guilty rather than go to trial and that 

the discovery of [new] evidence would have led counsel to change the 

recommendation as to the plea.” Brakeall v. Weber, 2003 S.D. 90, ¶ 17, 668 N.W.2d 

79, 85. Although Dr. Manlove was in possession of the toxicology report and 

Kleinsasser’s medical records, he did not discuss the interaction of the alcohol and 

prescription drugs in Kleinsasser’s system at the time of the shooting.2 Reimers 

testified that at Kleinsasser’s direction, he contacted Dr. Manlove by email and 

inquired, “[I]f [Kleinsasser] had taken [acetaminophen-Codeine #3] for pain on the 

28th, in addition to the .28 bac . . . would that affect your opinions at all?” Dr. 

Manlove indicated that this information would not change his report. Although 

Reimers did not specifically ask about the effect of Alprazolam, Dr. Manlove had the 

records showing the presence of the drug in Kleinsasser’s system. Kleinsasser has 

 

2. Dr. Manlove stated in his report that Kleinsasser “had struggled with 

depression and was intoxicated but [Dr. Manlove found] no evidence that he 

[sic] either of these issues rendered him unable to know right from wrong at 

the time of the alleged incident.”
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provided no evidence to support his argument that Dr. Manlove failed to consider 

the issue or that if he did the information would have changed his opinion. 

[¶24.] Likewise, Kleinsasser has failed to produce any evidence that Reimers 

erred in failing to fully utilize Dr. Renner’s report, which concluded that 

Kleinsasser’s judgment was significantly impaired at the time of the killing. The 

crimes of first- and second-degree murder are specific-intent offenses. The crime of 

first-degree manslaughter is a general-intent crime. State v. Mulligan, 2007 S.D. 

67, ¶ 9, 736 N.W.2d 808, 813. To prove the general intent necessary for the 

manslaughter charge, the State would have been required to prove Kleinsasser had 

the intent to do the physical act or recklessly committed “the physical act which the 

crime requires[.]” Id. (quoting State v. Schouten, 2005 S.D. 122, ¶ 13, 707 N.W.2d 

820, 824). The circuit court found that there was “sufficient evidence to find that 

Kleinsasser intended to fire the shotgun that killed his wife.” Testimony of 

impaired judgment from anxiety and depression would not have negated the 

element of general intent for the manslaughter charge. It is well-established that 

“[a] defense of diminished capacity is relevant to a specific intent crime, but not to a 

general intent crime.” Schouten, 2005 S.D. 122, ¶ 18, 707 N.W.2d at 825. Likewise, 

“voluntary intoxication is not a defense to [a] general intent crime[].” State v. 

Primeaux, 328 N.W.2d 256, 259 (S.D. 1982). At Kleinsasser’s request, Reimers did

present Dr. Renner’s report at sentencing as mitigation evidence. 

[¶25.] While it is true that Reimers did not reconstruct the crime scene, the 

circuit court found that the grand-jury testimony of one of the children was 

“consistent with the physical evidence obtained from the crime scene.” Based upon 
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such consistencies, the circuit court found “no evidence . . . that required trial 

counsel to conduct further investigation.” Even with the benefit of hindsight,

Kleinsasser was unable to present any theory or evidence that someone else could 

have committed the offense or that he acted in self-defense.

[¶26.] Kleinsasser also contends Reimers’s representation was deficient as he 

failed to have the children interviewed. But, the circuit court found that “Reimers 

did attempt to have the [Kleinsasser] children interviewed, and they refused to talk 

to him.” Kleinsasser was unable to suggest to the court anything Reimers could 

have done to force the children to discuss the details of their mother’s death with 

his investigator. Reimers’s assistance was not deficient for failing to obtain 

interviews with the children. See Fast Horse v. Weber, 1999 S.D. 97, ¶ 15, 598 

N.W.2d 539, 543.

[¶27.] Kleinsasser bears a heavy burden to establish that Reimers made a 

gross error in recommending the plea agreement and that but for these alleged 

errors, he would have insisted on going to trial. The evidence against Kleinsasser 

was overwhelming. He shot his wife twice at close range. S.K. reported seeing 

Kleinsasser standing over her mother after the first shot was fired and hearing him

say, “I’ll do to you what you’ve been doing to me.” In light of the strength of the 

State’s case, Kleinsasser ran a significant risk of being convicted of either first- or 

second-degree murder, each of which carries a mandatory life sentence. Both 

Reimers and Max Gors testified that the photos of the crime were “extremely 

gruesome” and that it was unlikely that a “jury would acquit [Kleinsasser] after 

seeing the photographs and hearing the evidence.” Kleinsasser also would have 
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faced the likely admission of other-acts evidence pursuant to SDCL 19-19-404 as he 

had previously been convicted of simple assault for breaking Sharon’s wrist. 

[¶28.] For Kleinsasser to show that he was prejudiced by Reimers’s failure to 

investigate, he must establish that new evidence was available that if considered,

would likely have led to a different outcome, namely an acquittal or conviction of 

something less than first-degree manslaughter. See Brakeall, 2003 S.D. 90, ¶ 17, 

668 N.W.2d at 85. Kleinsasser has failed to produce any such evidence. The circuit 

court found that Kleinsasser failed to prove Reimers’s performance was deficient or 

that Kleinsasser was prejudiced. The findings of the habeas court are supported by 

the record and are not clearly erroneous.

2. Whether the State violated the plea-bargain agreement.

[¶29.] Kleinsasser contends that the State violated the plea-bargain 

agreement in two ways. First, he alleges the State violated the agreement when it 

requested a sentence of 80 years “and not 50 to 80 years.” Second, he alleges that 

the State “presented $81,000 in restitution claims” even though “he was not asked 

to make restitution in the plea bargain agreement.” In response, the State submits

it did not argue for a more severe sentence than agreed upon and that the sum

requested was “for the county’s prosecution costs” and not restitution.

[¶30.] Paragraph eight of the plea-bargain agreement provided, “The [S]tate 

will recommend a sentencing cap of fifty (50) to eighty (80) years. This will be a 

non-binding recommendation pursuant to SDCL 23A-7-8(2). The court would be 

free to accept or reject it.” Paragraph nine provided that “[b]oth the State and the 

Defendant are free to call witnesses on their behalf and make arguments at the 
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time of sentencing.” “Generally, plea agreements are contractual in nature and are 

governed by ordinary contract principles.” State v. Waldner, 2005 S.D. 11, ¶ 8, 

692 N.W.2d 187, 190 (quoting State v. Stevenson, 2002 S.D. 120, ¶ 9, 652 N.W.2d 

735, 738). When examining a contract, we give words their “plain and ordinary 

meaning.” Elrod v. Gen. Cas. Co. of Wis., 1997 S.D. 90, ¶ 15, 566 N.W.2d 482, 486.

[¶31.] In support of his argument that the State violated the agreement, 

Kleinsasser relies on Vanden Hoek, 2006 S.D. 102, 724 N.W.2d 858. In Vanden 

Hoek, defendant, his counsel, and the State agreed that defendant “would plead 

guilty to kidnapping and second degree rape” in exchange for the State’s 

recommendation of “50 years for the kidnapping and 25 years for the rape, with the 

sentences to run concurrently.” Id. ¶ 4, 724 N.W.2d at 860-61. During sentencing, 

the State failed to recommend “the agreed upon term of years” and instead argued 

by implication for a more severe sentence. Id. ¶ 6, 724 N.W.2d at 861. The circuit 

court sentenced the defendant to 90 years for the kidnapping with 30 years 

suspended and 25 years for the rape. Id. In reversing, we determined that this was 

a material breach of the plea-bargain agreement. Id. ¶ 24, 724 N.W.2d at 865. We 

noted that “[t]he recommendation of a specific term of years was an important 

benefit Vanden Hoek relied upon when he entered into the plea agreement.” Id.; see 

also Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 

(1971) (“[W]hen a plea rests in any significant degree on a promise or agreement of 

the prosecutor, so that it can be said to be part of the inducement or consideration, 

such promise must be fulfilled.”). 
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[¶32.] In contrast, the State herein did not argue for a more severe sentence 

than the parties agreed to in the plea-bargain agreement. Kleinsasser’s argument 

that the State was required to request a range of 50 to 80 years without specifying 

an exact term of years is not a reasonable reading of the plain language of the 

agreement. Reimers testified that he told Kleinsasser prior to his entry of the plea 

that the State was likely going to ask for 80 years. The State’s recommendation 

was within the agreed upon range and did not constitute a violation of the 

agreement. Accordingly, Reimers’s failure to object to the State’s request for an 80-

year sentence did not constitute deficient performance.

[¶33.] Kleinsasser’s second assertion is that the State presented claims for 

restitution which were not addressed in the plea-bargain agreement and about 

which he had no knowledge. Paragraph five of the plea agreement provided, 

“Defendant agrees to pay all fines, court costs and court-appointed attorney’s fees.” 

At sentencing, the State requested “costs of the prosecution” and provided the 

circuit court and Kleinsasser’s counsel with a spreadsheet breaking down the costs. 

Kleinsasser did not object to the State’s request. The circuit court waived the usual,

liquidated court costs but required Kleinsasser to “reimburse the State for the costs 

of the defense in the amount of [$]88,611.79” and granted a lien against 

Kleinsasser’s property to Sully County. The amount of $88,611.79 included in part:

costs of the Grand Jury proceedings; housing and medical expenses for Kleinsasser

in the county jail; autopsy expenses; attorney’s fees; and transportation costs for 

taking Kleinsasser to Rapid City to meet with Dr. Manlove and to Pierre for court 

proceedings. The circuit court found that none of the expenses contained 
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“restitution costs to the victim’s family for their funeral expenses or other costs 

incident to her death.” Both the original and amended judgment, however, referred 

to these expenses as “restitution.”

[¶34.] It is clear that the judgment incorrectly designated the award as

restitution to Sully County, rather than as costs of prosecution. There was no 

request for restitution at the sentencing hearing—only costs—and Sully County is 

not a “victim” in this case entitled to restitution. Restitution is defined in SDCL 

23A-28-2(4) as “full or partial payment of pecuniary damages to a victim[.]” 

(Emphasis added.) SDCL 22-1-2(53) defines victim as “any natural person against 

whom the defendant in a criminal prosecution has committed or attempted to 

commit a crime[.]” (Emphasis added.) Under the facts of this case, Sully County is 

not a victim entitled to restitution based upon this definition. State v. Ryyth, 

2001 S.D. 50, ¶ 10, 626 N.W.2d 290, 292 (holding county does not fit statutory 

definition of victim under restitution statutes); see also State v. Sprecher, 2000 S.D. 

17, ¶¶ 7-9, 606 N.W.2d 138, 139 (denying payment to county for costs of abating 

public nuisance because county, under the facts of the case, was not a victim 

entitled to restitution); State v. Garnett, 488 N.W.2d 695, 698 (S.D. 1992); State v. 

No Neck, 458 N.W.2d 364, 365 (S.D. 1990). 

[¶35.] In State v. Olson-Lame, 2001 S.D. 51, 624 N.W.2d 833, we considered a 

request for extradition costs as restitution to Pennington County. Although we 

determined that Pennington County was not a victim as defined by state statute 

entitled to restitution, we held that costs were properly assessed as “costs of the 
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prosecution under SDCL 23A-27-26[.]”3 Id. ¶ 8, 624 N.W.2d at 835. This statute 

provides in pertinent part that “[i]n all criminal actions, upon conviction of the 

defendant, the court may adjudge that the defendant pay the whole or any part of 

the costs of that particular prosecution in addition to the liquidated costs provided 

by [SDCL] 23-3-52.” SDCL 23A-27-26. Kleinsasser was properly required to pay 

the costs of his prosecution upon conviction. He has presented no evidence that any 

portion of the award was improperly chargeable as costs not permitted by statute. 

[¶36.] Importantly, Kleinsasser does not argue that he was induced to enter 

into the plea agreement because the costs were not itemized in the agreement or 

that he would not have pleaded guilty if he had known the total cost. Nor does he

point to any term of the agreement that the State failed to fulfill. Thus, Vanden 

Hoek, upon which Kleinsasser relies in support of his argument, is distinguishable. 

Kleinsasser has failed to prove that the circuit court’s finding that “[t]he State did 

not violate the Plea Agreement at the sentencing hearing” was clearly erroneous.

3. Whether the sentencing court erred by failing to advise

Kleinsasser of his Boykin rights.

[¶37.] Kleinsasser correctly argues that a defendant must be advised of his

Boykin rights as a mandatory part of any change of plea. However, relying on 

 

3. SDCL 23A-27-26 provides, 

In all criminal actions, upon conviction of the defendant, the 

court may adjudge that the defendant pay the whole or any part 

of the costs of that particular prosecution in addition to the 

liquidated costs provided by § 23-3-52. However, the costs shall 

not include items of governmental expense such as juror’s fees, 

bailiff’s fees, salaries and expenses of special agents, and 

reporter’s per diem. Payment of costs may be enforced as a civil 

judgment against the defendant.
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language in Monette v. Weber, 2009 S.D. 77, 771 N.W.2d 920, Kleinsasser contends 

that the “sentencing” judge was obligated to inquire whether he had been previously 

advised of his Boykin rights and understood them. Kleinsasser alleges that the 

circuit court’s failure to do so at the time of sentencing renders his conviction

invalid. In response, the State argues that Boykin rights are only required at the 

time a plea is entered and that the circuit court had no obligation to advise 

Kleinsasser of his Boykin rights at the sentencing hearing.

[¶38.] “A criminal defendant entering a guilty plea waives three fundamental 

constitutional rights: the right against compulsory self-incrimination, the right to 

confront one’s accusers, and the right to a trial by a jury.” Rosen v. Weber, 2012 

S.D. 15, ¶ 8, 810 N.W.2d 763, 765 (citing Boykin, 395 U.S. at 243, 89 S. Ct. at 1712).

Further, “it is critical not only that a defendant be advised of his rights . . . but also 

that the defendant intentionally relinquish or abandon” these rights and that the 

record affirmatively establish the waiver. Id. (quoting Monette, 2009 S.D. 77, ¶ 10, 

771 N.W.2d at 924). 

[¶39.] Kleinsasser’s reliance on Monette in support of his argument is 

misplaced. Monette appealed the habeas-corpus court’s determination that his nocontest plea was voluntary, knowing, and intelligent. Monette, 2009 S.D. 77, ¶ 1, 

771 N.W.2d at 922. Monette had “entered a change of plea pursuant to a plea 

agreement.” Id. ¶ 4, 771 N.W.2d at 922. During this change-of-plea hearing, the 

circuit court, which we referred to as the “sentencing court,” failed to inquire if the 

plea was being entered voluntarily and whether defendant wished to waive his 

constitutional rights. Id. ¶ 9, 771 N.W.2d at 924. Based upon the court’s 
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deficiencies in accepting the plea, we determined the defendant’s plea was 

unconstitutional and reversed the habeas court’s determination. Id. Kleinsasser 

bases his argument on this Court’s reference to the court which accepted the guilty 

plea as the “sentencing court.” This Court’s reference to the “sentencing court” was 

made solely to differentiate between the habeas court and the trial court—no other 

meaning was implied. The court’s obligation to advise Monette of his rights arose 

from its duty in accepting his plea. In two recent cases, State v. Bilben, 2014 S.D.

24, 846 N.W.2d 336, and Garcia v. State, 2014 S.D. 5, 843 N.W.2d 345, we evaluated 

the adequacy of Boykin advisements and subsequent waivers at the time of the 

entry of the plea. This determination is not required at the sentencing hearing.

[¶40.] The circuit court’s duty to advise Kleinsasser of his Boykin rights 

occurred when Kleinsasser chose to enter his guilty plea. Kleinsasser’s allegation 

that the circuit court erred in failing to canvass him or confirm he was canvassed on

such rights during sentencing is meritless. 

CONCLUSION

[¶41.] Kleinsasser has failed to prove the circuit court’s findings of fact are 

clearly erroneous and further has failed to prove by a preponderance of the evidence 

that he is entitled to relief. We affirm.

[¶42.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, 

and PFEIFLE, Jane, Circuit Court Judge, concur.

[¶43.] PFEIFLE, Jane, Circuit Court Judge, sitting for WILBUR, Justice, 

disqualified.