#24739-a-PER CURIAM 

2009 SD 32

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

SCOTT A. MARSHEK, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE A. P. FULLER 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

STEVEN R. BLAIR 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

ARNOLD D. LAUBACH, Jr. 

Pennington County Public 

Defender’s Office 

Rapid City, South Dakota Attorneys for defendant 

 and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON MARCH 23, 2009 

 OPINION FILED 05/06/09
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PER CURIAM 

ACTION 

[¶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. 

FACTS 

[¶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 
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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 restitution, the Court costs, the 

transcript costs, attorney’s fees. 

So we won’t prepare the sentence until we confirm that there is 

an account at New Mexico, Santa Fe, at the First National Bank 

and there’s a hundred thousand dollars in that account. 
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[State’s Attorney]: If that is established, we’ll attach a copy of 

that information to the judgment that we send over to the Court 

for signature? 

The Court: Correct. And then I’ll go with the plea agreement 

just as you and the state has stated it to me. 

[Marshek’s counsel]: Are we scheduling another sentencing date 

then? 

The Court: No, I’ve given you the alternatives. It’s either one or 

the other. 

[Marshek’s counsel]: I don’t believe the Court can do that. 

The Court: Okay. We’ll see him later today then. My sentence 

is the plea agreement; okay? And if it turns out he doesn’t have 

an account in Santa Fe, then I guess we’ll see him later this 

afternoon at the convenience of [Marshek’s counsel] and the 

state when I can then sentence him to 10 years in the state 

penitentiary. 

(Emphasis added.) 

[¶7.] The Pennington County Jail was on lock-down later that afternoon and 

the continued hearing was scheduled for November 14. The evidence was not 

accessible on November 14 and the proceedings were again delayed. At the 

November 21 hearing, it was determined that the Santa Fe bank account did not 

exist. The court sentenced Marshek to ten years in the penitentiary. 

[¶8.] Later, in order to ensure that the record had been preserved for appeal, 

Marshek filed a motion with this Court asking that the file be remanded. This 

motion was granted. On June 17, 2008, the circuit court denied Marshek’s motion 

to correct an illegal sentence. Marshek appeals. 
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ISSUE 

Whether the circuit court erred in sentencing Marshek to ten 

years in prison after stating on the record in an earlier 

hearing, “My sentence is the plea agreement, okay?” 

ANALYSIS AND DECISION 

[¶9.] Marshek argues that his sentence was imposed when the circuit court 

said the words, “My sentence is the plea agreement, okay?” on November 9, not 

when it sentenced him on November 21. In support of this argument he cites to a 

number of authorities that hold that the oral sentence is the sentence of the court 

and that the written sentence must conform to the oral. See State v. Holsing, 2007 

SD 72, 736 NW2d 883; State v. Thayer, 2006 SD 40, 713 NW2d 608; State v. Munk, 

453 NW2d 124 (SD 1990); State v. Cady, 422 NW2d 828 (SD 1988); State v. 

Bucholtz, 403 NW2d 400 (SD 1987); State v. Ford, 328 NW2d 263 (SD 1982). 

Marshek adds that a valid sentence cannot be enhanced after the defendant has 

commenced serving the sentence. Bucholtz, 403 NW2d at 403; Ford, 328 NW2d at 

267. Because Marshek was held in custody during the time between these 

hearings, he argues that he had commenced serving the sentence. 

[¶10.] In Ford, this Court remanded sentencing when the circuit court 

increased the defendant’s prison term three days after the oral sentence was given. 

This Court held that circuit courts have no authority under SDCL 23A-31-1 to 

increase a sentence after the sentence has been given and the defendant has begun 

serving his or her term. 328 NW2d at 267. “[A]s against an unwilling defendant, a 

valid sentence cannot be increased in severity after he has commenced the serving 

thereof . . . .” Id. (quoting State v. Hughes, 62 SD 579, 584, 255 NW 800, 802 (1934); 
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State v. Jackson, 272 NW2d 102 (SD 1978); Ex Parte Watt, 73 SD 436, 44 NW2d 

119 (1950)). A defendant commences serving the sentence “as soon as the prisoner 

suffers some confinement in the custody of a sheriff.” Id. 

[¶11.] In Bucholtz, an hour after oral sentencing was completed and on the 

basis of new information, the circuit court vacated its initial sentence and 

resentenced the defendant to a longer prison term. Again, this Court held that 

circuit courts may not increase a sentence after it is given and the defendant has 

started to serve the sentence. 

[¶12.] In this case, unlike Ford and Bucholtz, the circuit court did not 

attempt to resurrect a sentence that had already passed. Here, the circuit court 

continued proceedings until it was able to obtain additional information about the 

character of the defendant and his ability to reimburse the victims for their losses. 

[T]he sentencing judge may exercise wide discretion with respect 

to the type of information used as well as its source. He should 

have full access to the fullest information possible concerning 

the defendant’s life and characteristics. Information which 

should be available to the court includes general moral 

character, mentality, habits, social environment, tendencies, 

age, aversion or inclination to commit crime, life, family, 

occupation, and previous criminal record . . . . 

State v. Thorsby, 2008 SD 100, ¶7, 757 NW2d 300, 302 (quoting State v. Arabie, 

2003 SD 57, ¶21, 663 NW2d 250, 257 (quoting State v. Conger, 268 NW2d 800, 801-

02 (SD 1978))). 

[¶13.] As the circuit court observed at the November 21 hearing: 

[I]t is a breach of trust case. . . . I gave Mr. Marshek an 

opportunity to indicate to me through documentation that he is 

a trustworthy person, and when he tells a court service officer 

facts and circumstances which would have established his trust 

and that this was a rare occasion, that he felt remorse for being 

untrustworthy to this person, I thought this would be a great 
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opportunity for him to show me that. And what it’s doing is it’s 

showing me that he broke a trust with his friend, the victim in 

this matter, and he has now then broken a trust by not being 

truthful to a court service officer who was here to give me a 

recommendation concerning this matter. 

[¶14.] In this case, it is inappropriate to consider the circuit court’s purported 

sentence in isolation and out of the context of the rest of the hearing. It was clear to 

all parties that further information was requested by the circuit court before 

pronouncing its final sentence. Based on this circumstance, Ford and Bucholtz are 

distinguished and the law of those cases is inapplicable. 

[¶15.] We note that the circuit court’s actions are not this Court’s preferred 

procedure in this situation. The language used by the circuit court does not 

explicitly state that the sentencing hearing will be continued. However, the 

statements taken in context and as a whole clearly reflect this intent. We suggest 

that the circuit courts make efforts to be more specific and overt when continuing a 

hearing to obtain further information before declaring a final sentence. 

[¶16.] Affirmed. 

[¶17.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, and SABERS, Retired Justice, participating.