#24821-a-JKM 

2008 SD 100 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

PAULA THORSBY, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FOURTH JUDICIAL CIRCUIT 

MEADE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JEROME A. ECKRICH 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

SHERRI SUNDEM WALD 

Deputy Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

KAREN PAIGE HUNT of 

Brady & Pluimer, P.C. Attorneys for defendant 

Spearfish, South Dakota and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON SEPTEMBER 29, 2008 

 OPINION FILED 10/22/08 
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MEIERHENRY, Justice 

[¶1.] Paula Thorsby appeals her sentence and argues that the circuit court 

erred in denying her request for suspended imposition of sentence. Thorsby further 

argues that the circuit court erred in admitting an unsigned and undated note from 

a clerk in the Meade County Clerk of Court’s office describing an encounter with 

Thorsby. We affirm. 

FACTS 

[¶2.] On December 14, 2007, State Highway Patrolman Desmond Watson 

stopped Thorsby on South Dakota Highway 79. Thorsby had crossed the fog line 

and was driving with expired license plates and an obstructed rear window. After 

making the stop, Patrolman Watson observed that Thorsby had been drinking. 

Thorsby failed the field sobriety tests, and Patrolman Watson placed Thorsby under 

arrest for Driving While Under the Influence. 

[¶3.] Evidence showed that Thorsby was uncooperative and acted in an 

offensive and rude manner toward law enforcement after her arrest. Thorsby was 

uncooperative with Patrolman Watson when he arrested her. She demanded that 

her handcuffs be removed before entering the jail, and then made it difficult for the 

officers when they tried to remove the handcuffs in the booking area. She refused to 

give blood as required under state law. She refused to remove her jacket and fought 

the officers as they attempted to remove the jacket for her. She spit on one of the 

officers who was attempting to draw her blood. She tried to spit on another officer 

but desisted after the officers told her that it would increase her charges. Finally, 

she had to be forcibly restrained in order to obtain a blood sample. As a result, 
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Thorsby was charged with one count of Throwing Bodily Fluids, one count of 

Driving or Control of a Vehicle While Under the Influence of Alcohol, or in the 

alternative, Driving or Control of a Vehicle while having .08 Percent or More of 

Alcohol in Blood, and one count of Obstructing a Law Enforcement Officer. 

[¶4.] The State offered a plea agreement wherein the State would dismiss 

all other charges in exchange for Thorsby’s plea of guilty to one count of Throwing 

Bodily Fluids. The State also agreed to recommend a suspended imposition of 

sentence. Thorsby pleaded guilty pursuant to this plea agreement on February 20, 

2008. Thorsby requested that sentencing occur on the same day and waived a 

presentence investigation and the forty-eight hour delay to which she was entitled 

under SDCL 23A-27-5 and SDCL 23A-27-1.1

[¶5.] Before sentencing, the circuit court informed Thorsby that a note 

authored by a staff member in the Meade County Clerk of Court’s office had been 

placed in the court file. The note described an encounter that Thorsby had with a 

clerk. The note described Thorsby’s lack of civility to the clerk on January 29, 2008, 

when Thorsby arrived at the courthouse on the wrong date for a court appearance. 

The clerk informed Thorsby that her court date was February 4, 2008 and asked if 

Thorsby would like to speak to her attorney. The note indicated that Thorsby 

became irate and yelled obscenities and made rude gestures at the clerk. After 

Thorsby had an opportunity to read the note, her attorney told the court that the 

note was not completely accurate; however, Thorsby acknowledged the encounter 

1. Thorsby waived these rights because she intended to return to Washington to 

her sick mother and grandmother as soon as possible. 
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and that she had been rude to the clerk. Thorsby made no other specific objection 

and failed to refute the note’s contents. 

[¶6.] At the close of the hearing, the circuit court sentenced Thorsby to one 

year in the South Dakota State Penitentiary, suspended execution on the condition 

that she spend thirty days in the Meade County Jail and complete two years of 

supervised probation. Thorsby immediately reacted to the sentence and became 

irate in the courtroom. The circuit court found her in contempt of court for her 

actions and added two days to her county jail sentence. Thorsby appeals raising one 

issue: 

Whether the circuit court erred in denying Thorsby’s request 

for a suspended imposition of sentence. 

STANDARD OF REVIEW 

[¶7.] Sentencing decisions within the statutory limits are reviewed under 

the abuse of discretion standard. State v. McKinney, 2005 SD 74, ¶26, 699 NW2d 

460, 468. We have previously determined that: 

[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. Arabie, 2003 SD 57, ¶21, 663 NW2d 250, 257 (quoting State v. Conger, 268 

NW2d 800, 801-02 (SD 1978)). “[I]t is settled that the range of evidence that may be 

considered at sentencing is extremely broad.” Id. 
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ANALYSIS

[¶8.] Thorsby argues that the circuit court abused its discretion when it 

refused the State’s recommendation for a suspended imposition of sentence. 

Specifically, she contends that the circuit court erred in using the note from the 

staff member in the Meade County Clerk of Court’s office as a factor in sentencing. 

The State, however, asserts that Thorsby waived her rights to presentence 

investigation and the forty-eight hour waiting period in her haste to leave South 

Dakota. The State further argues that the court’s use of the note was not improper. 

[¶9.] The Due Process Clause of the United States Constitution guarantees 

that “[n]o person shall be . . . deprived of life, liberty, or property, without due 

process of law.” US Const amend V; see US Const amend XIV; see also SD Const art 

VI, § 2. A court must “balanc[e] the need for reliability with the need to permit 

consideration of all pertinent information” when sentencing to comply with due 

process requirements. Orner v. United States, 578 F2d 1276, 1279 (8thCir 1978). A 

South Dakota court has the discretion to “suspend the imposition of sentence and 

place the defendant on probation for such period and upon such terms and 

conditions as the court may deem best.” SDCL 23A-27-13. A court may enter a 

suspended imposition “when satisfied that the ends of justice and the best interest 

of the public as well as the defendant will be served. . . .” Id.

[¶10.] “Trial courts enjoy wide latitude in determining the applicable 

sentence for a defendant.” State v. McCrary, 2004 SD 18, ¶8, 676 NW2d 116, 120

(citing State v. Milk, 2000 SD 28, ¶10, 607 NW2d 14, 17 (citation omitted)). This 

latitude allows courts to consider other evidence of the defendant’s character such 
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as uncharged conduct. State v. Tiegen, 2008 SD 6, ¶47, 744 NW2d 578, 594 (citing 

McKinney, 2005 SD 74, ¶26, 699 NW2d at 465-66). In addition, the sentencing 

court is not bound by plea agreements made between the parties. See SDCL 23A-7-

9. 

[¶11.] In the present case, the circuit court voiced its concern over the lack of 

a presentence investigation in assessing whether to consider a suspended 

imposition of sentence. Nonetheless, Thorsby opted to waive her right to 

presentence investigation per SDCL 23A-27-5 and the forty-eight hour waiting 

period as required by SDCL 23A-27-1. The plea agreement between the State and 

Thorsby included certain terms. The State agreed to drop all charges against 

Thorsby other than the Throwing Bodily Fluids charge in exchange for Thorsby’s 

guilty plea. The State also agreed to recommend a suspended imposition of 

sentence if Thorsby obeyed the terms of her probation.2

[¶12.] Throughout the proceedings, the circuit court thoroughly advised 

Thorsby of the rights she waived by pleading guilty and that the court was not 

bound by the State’s recommendation of a suspended imposition of sentence. 

Specifically, the court advised: 

The court: Okay. Do you understand, ma’am, that if you plead 

guilty to the charge of Count I, Throwing Bodily Fluids in a 

County or Municipal Jail, what you’re doing is you’re pleading 

guilty to a Class 6 Felony, which carries with it a maximum 

penalty of two years imprisonment in the South Dakota State 

Penitentiary, a $4,000 fine, or both such fine and imprisonment. 

Do you understand that, ma’am? 

Thorsby: Yes. 

 

2. The suspended imposition of sentence is particularly important to Thorsby 

because she could not gain employment as an over-the-road truck driver with 

this conviction on her record. 
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The court: And do you understand that if you plead guilty you 

could receive the maximum penalty? 

Thorsby: Yes. 

The court: Knowing, ma’am, that under the terms of this 

particular plea agreement you could receive the maximum 

penalty, which includes two years behind bars, are you prepared 

to enter a plea of guilty here today? 

Thorsby: Yes. 

The court further advised Thorsby: 

The court: Okay. Do you understand that any plea agreement 

that has been reached here, any recommendations that are 

going to be made the Court does not have to abide by, in other 

words, I don’t have to follow them. Do you understand that, 

ma’am? 

Thorsby: Yes. 

During Thorsby’s change of plea and sentencing hearing, the court made it clear to 

Thorsby that it did not have to sentence her based on the State’s recommendations 

or the plea agreement. 

[¶13.] Thorsby argues that the circuit court should not have considered the 

note from a clerk in the Meade County Clerk of Court’s office. Court staff 

anonymously filing a note in a public criminal file is undoubtedly irregular and 

should not be condoned. The clerk acted improperly by placing the note in 

Thorsby’s file. For the judge, it became an ex parte communication. We review an 

ex parte communication as follows: 

If an ex parte communication is invited or initiated by the judge, 

no prejudice needs to be shown. However, where an ex parte 

communication is not invited or initiated by the judge, reversible 

error occurs only if the adverse party is prejudiced by an 

inability to rebut the facts communicated and if improper 

influence appears with reasonable certainty.
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O’Connor v. Leapley, 488 NW2d 421, 423 (SD 1992) (citations omitted)). Since the 

judge did not invite or initiate the ex-parte communication, Thorsby must show 

inability to rebut the facts and improper influence.

[¶14.] Regardless of the impropriety of a clerk placing a personal note 

concerning a defendant in a criminal file, Thorsby has shown no prejudice. See

O’Connor, 488 NW2d at 423. The judge appropriately revealed the note and its 

contents to both Thorsby and the State. Thorsby and her counsel reviewed the 

note, but made no specific objection that the note not be considered. Thorsby’s 

counsel addressed the court as follows: “I guess in a nutshell Ms. Thorsby 

disagrees with a couple of the details of exactly what happened, she would concede 

that she was rude that day[.]” No one made further reference to the note. 

[¶15.] In addition, nothing in the record indicates that the contents of the 

note unduly influenced the court during sentencing. The court did not mention the 

note while sentencing Thorsby but rather referred to her offensive behavior in 

general, especially in regard to how she behaved to law enforcement. The court 

said: 

I have reviewed not just the - - the Family Services [drug 

assessment] report that I alluded to earlier and also - - I have 

also reviewed the police reports and had an opportunity to listen 

here, and I find that I have enough facts before me that I may 

meaningfully exercise my sentencing discretion. 

. . . It is true, ma’am, that you haven’t been convicted of any 

other crime, it looks like, but it would seem to me that there is 

certainly a theme here to your conduct and that . . . is a lack of 

control, to put it charitably. When I read the police reports your 

behavior didn’t start - - your obstreperous, to put it more than 

charitably incredibly rude behavior, and it really goes beyond 

that, didn’t start in the jail, it started way back when you were 

arrested, and then it continued and it still continues. So I think 
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that, ma’am, maybe to a larger extent is a character trait of 

your[ ]s, your ability to control your anger and then taking it out 

on everybody else around you in . . . not just a highly 

inappropriate but, frankly, a felonious way. 

Other factors the [c]ourt has considered [are] the plea agreement 

itself, the dismissal of the charges, the underlying DUI charges. 

So I have tried to wrap everything as best I can in the 

information that’s been available to me at this time, and I am 

perfectly mindful of the reason why the suspended imposition of 

sentence is requested. 

[¶16.] The ultimate decision to grant a suspended imposition of sentence lies 

with the circuit court. Clearly, the circuit court considered the defendant’s request 

along with the other information it had before it, including the police report. 

Although Thorsby’s behavior toward court staff was described in the note, there is 

no indication that it unduly influenced the court’s decision. Even so, Thorsby made 

no objection to the note and admitted to being rude to the clerk. In order to suspend 

imposing a sentence, the court has to find that “the ends of justice and the best 

interests of the public, as well as the defendant, will be served [in entering a 

suspended imposition.]” SDCL 23A-27-13. The circuit court explained that based 

on the information before it, it could not make that finding. Thorsby has failed to 

show that the circuit court abused its discretion in denying Thorsby’s request for a 

suspended imposition of sentence. 

[¶17.] We affirm. 

[¶18.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

ZINTER, Justices, concur.