Date: Feb 22, 2026

State v. Janes (2026 S.D. 9): Future Counseling Restitution Must Be Ascertainable at Sentencing

1. Introduction

In State v. Janes, the Supreme Court of South Dakota reviewed a Minnehaha County conviction for abuse or cruelty to a minor involving a stepchild, B.S. The appeal arose from a trial in which the State introduced (without objection) a video-recorded Child’s Voice forensic interview of N.S. and a Child’s Voice summary report covering both children. On appeal, Chadwick A. Janes argued (1) plain-error admission of hearsay and other-acts evidence embedded in the unredacted materials, (2) an abuse of discretion in sentencing, (3) an abuse of discretion in restitution—particularly an open-ended order for future counseling—and (4) ineffective assistance of counsel for failing to object.

The Court affirmed the conviction and sentence, affirmed $2,000 lost-wage restitution to the children’s mother (Tanya), but reversed and remanded the restitution order for future counseling costs because it was not stated in a specific or otherwise ascertainable amount at sentencing, as required by South Dakota restitution law and due process.

2. Summary of the Opinion

Evidentiary claims (plain error): The Court declined to find reversible plain error because Janes failed to show prejudice—i.e., a reasonable probability the outcome would have been different—given that much of the challenged content was cumulative of live trial testimony.
Sentencing: Although the circuit court made extraneous comments about potential PTSD and distrust of the penitentiary system, the sentence (10 years with 3 suspended) was within the statutory maximum and supported by proper sentencing considerations. No abuse of discretion was found.
Restitution—lost wages: The $2,000 award to Tanya was affirmed; the State presented documentation and the record supported a causal connection between the offense and lost wages.
Restitution—future counseling: Reversed and remanded because the court ordered “restitution in the form of counseling” for the children without an ascertainable amount, parameters, or contingencies that would allow the amount to be determined by a definitive time.
Ineffective assistance of counsel: Even assuming direct review were appropriate, the claim failed because the prejudice inquiry tracks plain-error prejudice; the Court had already found no prejudice from the unobjected-to evidence.

3. Analysis

3.1 Precedents Cited

A. Plain error, prejudice, and cumulative evidence

State v. Guziak, 2021 S.D. 68: The Court used Guziak as the controlling framework for the four-prong plain error test and, critically, for the articulation of the third prong: the appellant must show the error “affected the outcome” and establish a “reasonable probability” of a different result absent the error. This prejudice standard drove the outcome of Janes’s evidentiary challenge because the Court resolved the issue at prong three without deciding whether there was “error” or whether it was “plain.”
State v. McMillen, 2019 S.D. 40 and United States v. Olano, 507 U.S. 725 (1993): These authorities reinforced the Court’s cautionary approach: plain-error correction is “permissive, not mandatory,” and is reserved for “exceptional circumstances.” They supported the Court’s decision not to reach prongs one and two where prong three (prejudice) was not met.
State v. Shepard, 2009 S.D. 50: Shepard supplied the cumulative-evidence principle: where inadmissible evidence is merely cumulative and other admissible evidence supports the verdict, the error is nonprejudicial. The Court applied this logic repeatedly—most of the challenged statements in the interview/report mirrored the children’s in-court testimony.
State v. Bordeaux, 2025 S.D. 55: Cited for the ordinary abuse-of-discretion standard governing admission of other-act evidence. The citation sets the baseline but the Court pivoted to plain-error review because the contested content was not objected to at trial.

B. Sentencing discretion

State v. Klinetobe, 2021 S.D. 24: Anchored the abuse-of-discretion standard for sentencing and emphasized the need for a “thorough acquaintance” with the defendant’s character and history, as well as the traditional sentencing goals (retribution, deterrence, rehabilitation, incapacitation). The Court relied on this framework to uphold the sentence despite the judge’s collateral comments.
State v. Rice, 2016 S.D. 18: Reinforced the general rule that a sentence within the statutory maximum is usually not disturbed on appeal.
State v. Talla, 2017 S.D. 34: Supported the notion that trial courts may prioritize sentencing theories on a case-by-case basis; this helped insulate the sentence from attack where the record reflected both aggravating and mitigating considerations.

C. Restitution: specificity, due process, and future expenses

State v. Washington, 2024 S.D. 64: Provided the controlling rule that the written sentence must conform to the oral pronouncement, and when they differ, the oral sentence controls unless ambiguous. This mattered because the written judgment omitted counseling restitution, yet the oral order was unambiguous—so it remained operative and subject to appellate review and reversal.
State v. Falkenberg, 2021 S.D. 59: The most important restitution comparator. In Falkenberg, the Court reversed future counseling restitution because it imposed arbitrary caps without evidentiary support and without clear timeframes or mechanisms to ascertain amounts. Janes applied the same principle: future counseling restitution cannot be open-ended and must be supported by evidence and structured so amounts are ascertainable within due process constraints.
State v. Holsing, 2007 S.D. 72, Commonwealth v. Wozniakowski, 860 A.2d 539 (Pa. Super. Ct. 2004), and State v. Wolff, 438 N.W.2d 199 (S.D. 1989): These cases supplied the due process “finality” principle: restitution must be set at sentencing; a defendant must be informed of restitution exposure at that time; and post-sentencing increases in restitution are constitutionally problematic. The Court used this line to explain why an unbounded, later-to-be-determined counseling obligation is improper absent a sentencing-time framework that renders the amount ascertainable.
State v. Jones, 2016 S.D. 86: Interpreted SDCL 23A-28-12 to require treatment-cost restitution for convictions under SDCL 26-10-1. Janes acknowledged this statutory mandate but held that even mandatory treatment restitution must still comply with the ascertainability and due process requirements governing restitution orders.
State v. Joyce, 2004 S.D. 73: Cited for the causal-connection requirement between the crime of conviction and the victim’s damages. The Court distinguished Joyce (damages from the accident, not from the “leaving the scene” conviction) and found causation here (children’s anxiety-related absences from school tied to the abuse offense).

D. Ineffective assistance

State v. Thomas, 2011 S.D. 15: Restated the general preference against resolving ineffective-assistance claims on direct appeal.
State v. Stevens, 2024 S.D. 3 and Strickland v. Washington, 466 U.S. 668 (1984): Provided the familiar two-prong ineffective-assistance framework (deficient performance and resulting prejudice).
Neels v. Dooley, 2022 S.D. 4: Supplied the doctrinal bridge: Strickland prejudice is the same as plain-error prejudice. This allowed the Court to dispose of ineffective assistance cleanly after finding no prejudice under the plain-error analysis.

3.2 Legal Reasoning

A. The Court’s evidentiary approach: resolving plain error at prejudice

Janes’s evidentiary argument focused on unredacted content admitted without objection: (i) the “green bean incident” that the court had ruled irrelevant, (ii) B.S.’s statements in the Report (argued inadmissible hearsay), and (iii) other-act narratives involving N.S., J.J., and a child at a party. Rather than determine admissibility item-by-item, the Court took a pragmatic appellate path: it assumed arguendo there may have been error but held Janes failed to prove the necessary effect on the verdict. The key factual underpinning was the overlap between the interview/report content and the children’s live testimony.

This is a significant methodological point: Janes exemplifies the Court’s willingness in unpreserved-evidence cases to bypass admissibility questions and resolve the appeal solely on the “reasonable probability of a different result” requirement—especially where the challenged evidence is cumulative and the State did not emphasize the questionable portions in argument.

B. Sentencing: improper comments, but no reversible reliance

The circuit court’s remarks about distrust of the penitentiary system and speculation about PTSD were labeled “extraneous” and “gratuitous,” and the Supreme Court acknowledged these comments were “not based upon any facts or law presented at the hearing.” Yet the Court found no abuse of discretion because the sentencing record otherwise reflected proper considerations: review of a PSI, victim impact statements, letters, assessment of remorse and minimization, and the long-term impact on victims, all leading to a sentence within statutory limits.

The operative reasoning was restraint: appellate reversal requires more than identifying inappropriate commentary; it requires a persuasive showing that the sentencing decision actually turned on improper factors. Here, the Court could not conclude the comments “impacted the court’s sentence or actually played a role” sufficient to constitute an abuse of discretion.

C. Restitution: mandatory treatment costs still require ascertainability at sentencing

The opinion’s core doctrinal contribution lies in its restitution analysis. The circuit court orally ordered “restitution in the form of counseling” for the children but did not provide any projected amount, cap, timeframe, or measurable conditions; no evidence established that counseling had begun or would occur.

The Supreme Court harmonized three strands:

Statutory entitlement/requirement: SDCL 23A-28-12 (as read in State v. Jones) contemplates treatment-cost restitution in SDCL 26-10-1 cases.
Procedural requirement of specificity: SDCL 23A-28-3 requires that when sentencing to the penitentiary, the court must set forth “the names and specific amount of restitution owed each victim.”
Constitutional due process and finality: Under State v. Holsing and State v. Wolff, restitution must be set at sentencing with safeguards that inform the defendant of exposure then; later increases can violate due process.

Consistent with State v. Falkenberg, the Court concluded the counseling order was defective because it created an undefined, potentially expanding obligation without an evidentiary foundation or a mechanism to determine what is owed by a definitive time. The remedy was reversal and remand for a restitution hearing and a new order “consistent with this opinion”—i.e., evidence-based and ascertainable.

D. Lost wages: “collateral victim” standing plus causation

The Court affirmed $2,000 for Tanya’s lost wages, emphasizing that restitution requires a causal connection (State v. Joyce) and that “victim” is defined broadly by SDCL 23A-28-2(5) and expanded in minor-victim cases by S.D. Const. art. VI, § 29 to include a parent. Tanya’s payroll documentation and victim impact statement supported the amount, and the children’s anxiety-related school absences provided the causal link.

E. Ineffective assistance: prejudice equivalence forecloses relief

Janes’s ineffective-assistance theory rested on counsel’s failure to object to evidence counsel had previously sought to limit. The Supreme Court treated the issue as essentially duplicative of the plain-error prejudice question. By invoking Neels v. Dooley, the Court reasoned that its no-prejudice finding under plain error necessarily defeats Strickland prejudice, precluding relief on direct appeal even if performance were questionable.

3.3 Impact

A. Restitution practice: future treatment costs must be evidence-based and administrable

Janes strengthens and operationalizes Falkenberg in the specific context of SDCL 23A-28-12 treatment costs in child-abuse cases: even where treatment restitution is contemplated (and sometimes mandatory in principle), courts must still comply with SDCL 23A-28-3 and due process. The decision pushes sentencing courts toward one of two compliant approaches:

Projected-amount model: setting a defensible projected amount grounded in evidence presented at sentencing; or
Ascertainability model: specifying parameters/contingencies (e.g., type of provider, duration, documentation requirements, deadlines) that make the total amount determinable by a definitive point in time without later expanding punishment.

Practically, prosecutors should be prepared to present evidence at sentencing (anticipated counseling needs, expected cost ranges, provider estimates, likely duration, and a proposed mechanism for verifying and paying invoices) and to request a structured order. Defense counsel, likewise, should object to open-ended treatment restitution and insist on the statute’s specificity and due process limits.

B. Appellate posture: unpreserved evidentiary claims will often rise or fall on prejudice

The opinion illustrates an important reality for future appeals: when evidence is cumulative of trial testimony, the Supreme Court may dispose of plain-error claims at the “substantial rights” prong without reaching admissibility. This increases the premium on timely objections and on creating a record demonstrating how the challenged material uniquely harmed the defense (e.g., added new allegations, bolstered credibility in a noncumulative way, or became a focal point in argument).

C. Direct-appeal ineffective-assistance claims remain difficult

By tying Strickland prejudice to plain-error prejudice (Neels v. Dooley), Janes underscores that when an appellate court has already found a lack of outcome-determinative harm from the complained-of evidence, ineffective-assistance claims premised on the same evidence are unlikely to succeed on direct appeal.

4. Complex Concepts Simplified

Plain error (four prongs): A limited review for issues not preserved by objection. The appellant must show: (1) an error occurred; (2) it is “plain” (clear/obvious); (3) it affected “substantial rights” (a reasonable probability of a different outcome); and (4) it seriously affects the fairness/integrity of the proceedings. In Janes, the claim failed at prong (3).
Hearsay and SDCL 19-19-806.1: Hearsay is an out-of-court statement offered for its truth. SDCL 19-19-806.1 is a specialized child-statement hearsay exception with reliability safeguards. Janes argued some statements fell outside it (including statements attributed to B.S. in the Report). The Court did not decide admissibility because it found no prejudice.
Other-act evidence and SDCL 19-19-404(b): Evidence of other wrongs/acts is generally not admissible to prove character or propensity, but may be admissible for limited purposes (motive, opportunity, plan, absence of mistake, etc.). Some other-act content in the interview/report was not addressed pretrial and was admitted without objection; again, the Court resolved the claim on prejudice/cumulativeness.
Cumulative evidence: Evidence is “cumulative” when it repeats what the jury already heard through admissible testimony. Cumulative improper evidence is less likely to change the verdict, making reversal less likely on plain error.
Restitution must be “specific” and “ascertainable”: Restitution is part of the criminal sentence. When sentencing to the penitentiary, SDCL 23A-28-3 requires naming each victim and stating a specific amount. If future costs are ordered (like counseling), the order must still be grounded in evidence and structured so the amount can be determined within clear limits by a definitive time. Open-ended “pay for counseling” orders risk violating due process because they do not inform the defendant at sentencing of the punishment exposure.
Oral sentence vs. written judgment: If the oral pronouncement and written judgment differ, the oral sentence controls unless it is ambiguous. Here, the oral counseling restitution order controlled even though the written judgment omitted it—allowing the Supreme Court to reverse it.

5. Conclusion

State v. Janes affirms a conviction and sentence while delivering a clear restitution directive: when ordering restitution—especially for future counseling or treatment— South Dakota courts must comply with SDCL 23A-28-3 and due process by setting a specific, evidence-based amount or establishing concrete parameters that make the obligation ascertainable by a definitive time. The decision also demonstrates the Court’s practical use of the prejudice prong to dispose of unpreserved evidentiary challenges and, via Neels v. Dooley, to foreclose parallel ineffective-assistance claims lacking outcome-changing harm. The result is a targeted remand: not to revisit guilt, but to correct an indeterminate restitution component that functioned as an impermissibly open-ended part of the sentence.