State v. Hale , 2018 SD 9 ( 2018 )


Menu:
  • #28268-r-GAS
    
    2018 S.D. 9
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,
    v.
    LANDON LYNDALE HALE,                         Defendant and Appellant.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE SECOND JUDICIAL CIRCUIT
    MINNEHAHA COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE SUSAN M. SABERS
    Judge
    ****
    MARTY J. JACKLEY
    Attorney General
    PATRICIA ARCHER
    Assistant Attorney General
    Pierre, South Dakota                         Attorneys for plaintiff
    and appellee.
    D. SONNY WALTER
    Sioux Falls, South Dakota                    Attorney for defendant
    and appellant.
    ****
    CONSIDERED ON BRIEFS
    ON JANUARY 8, 2018
    OPINION FILED 01/24/18
    #28268
    SEVERSON, Justice
    [¶1.]        The State and defendant entered into a plea agreement. At the change
    of plea hearing, the circuit court accepted defendant’s guilty plea and the factual
    basis to support the plea. The circuit court did not indicate specific acceptance or
    rejection of the plea agreement at that hearing; nor did the court defer its decision
    to order a presentence investigation. Approximately two weeks later, the circuit
    court informed the State and defendant that it intended to reject the plea
    agreement. The State and defendant objected, contending that the court had
    previously accepted the agreement. After a hearing, the court entered an order
    rejecting the plea agreement. Defendant filed a petition for an intermediate appeal,
    which we granted. On appeal, defendant claims the circuit court was bound by the
    plea agreement, and the State agrees. We reverse and remand.
    Background
    [¶2.]        The State indicted Landon Lyndale Hale on nineteen counts related to
    the kidnapping and robbery of Caden Jackson on July 23, 2016. In February 2017,
    the State and Hale reached a plea agreement. The agreement required Hale to
    plead guilty to a single count of aggravated assault and to cooperate in any
    upcoming trials against Hale’s two codefendants. In exchange, the State would
    dismiss the remaining charges, including a part II habitual offender information.
    The plea agreement contained an agreed-upon disposition; specifically, a sentencing
    cap of suspended prison time.
    [¶3.]        On February 15, 2017, the circuit court held a change of plea hearing.
    The parties informed the court that a plea agreement had been reached and
    -1-
    #28268
    presented the plea agreement to the court. The court re-arraigned Hale on the
    charge of aggravated assault. It explained the nature of the charge and that the
    maximum possible punishment was 15 years in prison and a $30,000 fine. The
    court then remarked,
    THE COURT: The plea agreement here does not let me use any
    of that penitentiary time immediately. The most it let’s [sic] me
    do is send you to county jail for 180 days. I can suspend up to
    the full 15 years in the penitentiary. You’d be out on my
    probation. As long as you comply with the terms of my
    probation, you can keep yourself out of the pen. But if you mess
    up on probation, I’ll have the 15 years or whatever amount I’ve
    suspended waiting for you. The state can bring you back to
    court and ask that I send you to the pen. You understand that?
    THE DEFENDANT: Yes, ma’am.
    THE COURT: So Mr. Walter’s plea negotiation keeps you out of
    the pen here today. But moving forward when you’re on my
    probation the only thing that keeps you out of the pen is you not
    doing stuff like this. You got that?
    THE DEFENDANT: Yes, ma’am.
    THE COURT: The Part II, which would have increased that
    felony-level charge, will be dismissed by the state, as will all of
    the remaining charges, including the kidnapping charge which
    would have had a life sentence attached to it. You understand
    that?
    THE DEFENDANT: Yes, ma’am.
    THE COURT: Okay. Knowing what you know now, would you
    like to go ahead and take the plea agreement today?
    THE DEFENDANT: Yes.
    THE COURT: I’m going to re-remind you of your rights before I
    take that plea.
    The court then canvassed Hale on his rights. Hale indicated that he understood
    that by pleading guilty he would be giving up those rights. The court then asked,
    -2-
    #28268
    “Have you discussed the effect of this plea agreement with your lawyer?” Hale
    responded that he had and indicated his satisfaction with his attorney’s advice and
    performance. The court asked Hale if he had any questions. Hale indicated that he
    did not. The court asked Hale, “What is your plea to Count 5 of the indictment,
    Aggravated Assault with a gun?” Hale responded, “Guilty.” After ensuring that
    Hale pleaded guilty of his own free will, the court then asked Hale whether “[a]ny
    promises [were] made to [him] to get [him] to enter the plea other than the plea
    agreement that we talked about?” Hale replied, “No, ma’am.”
    [¶4.]        The court asked for the facts to support the plea. The State indicated
    that it had an affidavit from Hale to offer as the factual basis. The court read the
    affidavit on the record. Afterward, the court confirmed with Hale that Hale agreed
    with the facts and that it was his signature on the affidavit. The court accepted the
    affidavit “as a valid factual basis” and found “that it adequately meets with the
    statutory requirements for aggravated assault.” The court found that Hale “has
    been advised and understands the nature of the charges” and “the penalties which
    can be imposed.” The court then accepted the plea and found Hale “guilty of
    aggravated assault.”
    [¶5.]        Hale’s codefendants also pleaded guilty: one on February 23, 2017, and
    the other on February 24. Then, on March 6, the circuit court ordered a
    presentence investigation report to be completed on Hale. The court also informed
    the State and counsel for Hale via email that it intended to reject the plea
    agreement. The State and Hale’s counsel requested that the circuit court reconsider
    its decision to reject the plea agreement.
    -3-
    #28268
    [¶6.]        The circuit court held a hearing on April 21, 2017. At the hearing, the
    State and Hale again requested that the court reconsider its decision. They both
    argued that the court had accepted the plea agreement at the change of plea
    hearing in February and that Hale cooperated in the prosecution of his
    codefendants as required by the plea agreement. The court disagreed that it had
    accepted the plea agreement. It referred to the transcript from the change of plea
    hearing. The court also distinguished cases cited by the parties. At the conclusion
    of the hearing, the court rejected the plea agreement. It informed Hale that he
    could withdraw his guilty plea and go to trial or continue to plead guilty.
    [¶7.]        Following the hearing, the circuit court issued findings of fact and
    conclusions of law and an order. The court found that although it had “expressly
    accepted [Hale’s] plea at the plea hearing, it did not accept the plea agreement—
    either expressly or impliedly.” The court rejected the claim that by accepting Hale’s
    guilty plea and the factual basis for that plea, the court thereby accepted the plea
    agreement. The court likewise rejected the argument that outlining the particulars
    of the plea agreement to Hale during the change of plea hearing meant that the
    court was bound to honor the agreement.
    [¶8.]        The circuit court distinguished this Court’s past cases concerning plea
    agreements. The court cited SDCL 23A-7-11 (Rule 11(e)(4)) as authority for
    rejecting the plea agreement. It emphasized that it complied with SDCL 23A-7-11
    (Rule 11(e)(4)) because it informed the parties of its intent to reject the plea
    agreement and gave Hale the opportunity to withdraw his plea.
    -4-
    #28268
    [¶9.]        After the circuit court entered an order rejecting the plea agreement,
    the State filed written objections. The court denied the State’s objections, and Hale
    filed a petition with this Court for an intermediate discretionary appeal. We
    granted Hale’s petition. On appeal, Hale asserts that the circuit court erred when it
    rejected the plea agreement. The State agrees with Hale’s position and requests
    that the matter be remanded for Hale to be sentenced consistent with the terms of
    the plea agreement.
    Analysis
    [¶10.]       Because this is an intermediate appeal, the circuit court has not yet
    sentenced Hale. Nor has Hale withdrawn or persisted in his guilty plea following
    the circuit court’s entry of an order rejecting the plea agreement. Therefore, we
    need only decide whether the circuit court accepted a binding plea agreement at the
    February 2017 change of plea hearing.
    [¶11.]       Whether the circuit court accepted a binding plea agreement is a
    question of law reviewed de novo. State v. Shumaker, 
    2010 S.D. 95
    , ¶ 5, 
    792 N.W.2d 174
    , 175. Chapter 23A-7 governs plea agreements. Under SDCL 23A-7-8, the
    prosecuting attorney and counsel for the defendant (or the defendant if pro se) may
    engage in discussions in an attempt to reach a plea agreement. The prosecuting
    attorney has discretion to:
    (1)    Move for dismissal of other charges or not file additional
    charges arising out of a different occurrence;
    (2)    Make a recommendation, or agree not to oppose the
    defendant’s request, for a particular sentence, with the
    understanding that such recommendation or request shall
    not be binding upon the court;
    (3)    Agree that a specific sentence is the appropriate
    disposition of the case; or
    -5-
    #28268
    (4)    Perform other specified acts to be made a part of the
    agreement.
    
    Id.
     We have consistently said that a plea agreement accepted under subsection (2)
    does not restrict the court’s discretion when sentencing a defendant. Shumaker,
    
    2010 S.D. 95
    , ¶ 6 n.1, 792 N.W.2d at 175 n.1; State v. Reaves, 
    2008 S.D. 105
    , ¶ 7,
    
    757 N.W.2d 580
    , 582. However, a plea agreement accepted under subsection (3)
    restricts the court to sentencing the defendant within the bounds of the plea
    agreement. Shumaker, 
    2010 S.D. 95
    , ¶ 6, 792 N.W.2d at 175; Reaves, 
    2008 S.D. 105
    , ¶ 7, 
    757 N.W.2d at 582
    .
    [¶12.]       Both the State and Hale contend that the plea agreement in this case
    falls under SDCL 23A-7-8(3) because the parties negotiated an agreed disposition
    (suspended penitentiary time), rather than a recommended sentence. At the change
    of plea hearing, counsel for Hale informed the court that “Mr. Hale will be entering
    a plea of guilty to Count IV Aggravated Assault [(counsel later explained that the
    proper count was Count V, rather than IV)], a cap of a suspended execution of
    sentence. The other charge, charges, and the Part II Information will be dismissed,
    and he will cooperate in any upcoming trial of the codefendants.” The State agreed
    with counsel’s summary of the terms of the agreement.
    [¶13.]       We note and find problematic that neither the State nor defense
    counsel specifically informed the circuit court that they intended the agreement to
    be a binding plea agreement under SDCL 23A-7-8(3). Indeed, in its appellate brief,
    the State recognizes that “the plea agreement, orally stated on the record, is not a
    model of clarity.” Nevertheless, from our review of the transcript, the plea
    agreement was a binding plea agreement under SDCL 23A-7-8(3). It contained an
    -6-
    #28268
    agreed-upon disposition—a suspended execution of sentence, with no immediate
    penitentiary time, and with placement on probation. And the court recognized its
    binding effect. The court stated, “The plea agreement here does not let me use any
    of that [15 years] penitentiary time immediately. The most it let’s [sic] me do is
    send [Hale] to county jail for 180 days.”
    [¶14.]       A question remains, however, whether the circuit court accepted the
    binding agreement such that it must honor the agreed disposition when sentencing
    Hale. The State and Hale assert that the circuit court accepted the agreement at
    least implicitly. The circuit court, however, informed the parties that it had only
    accepted Hale’s guilty plea and the factual basis to support that plea, not the plea
    agreement.
    [¶15.]       Under SDCL 23A-7-9 (Rule 11(e)(2)), when a plea agreement has been
    reached, “the court shall, on the record, require the disclosure of the agreement in
    open court, or on a showing of good cause, in chambers, at the time the plea is
    offered.” (Emphasis added.) The statute further provides that “[t]hereupon, the
    court may accept or reject the agreement, or may defer its decision as to the
    acceptance or rejection until there has been an opportunity to consider the
    presentence report.” 
    Id.
     (emphasis added). “If a court accepts the plea agreement,
    it shall inform the defendant that it will embody in the judgment and sentence the
    disposition provided for in the plea agreement.” SDCL 23A-7-10 (Rule 11(e)(3)). “If
    a court rejects the plea agreement, it shall, on the record, inform the parties of this
    fact, advise the defendant personally in open court or, on a showing of good cause, in
    chambers, that the court is not bound by the plea agreement, afford the defendant
    -7-
    #28268
    the opportunity to then withdraw his plea, if a plea has been entered, and advise
    him that if he persists in his guilty plea or plea of nolo contendere the disposition of
    the case may be less favorable to him than that contemplated by the plea
    agreement.” SDCL 23A-7-11 (Rule 11(e)(4)).
    [¶16.]       It is undisputed that during the change of plea hearing the circuit
    court did not expressly accept or reject the plea agreement and did not defer its
    decision to consider a presentence report. However, in Shumaker, we recognized
    that a circuit court can implicitly accept a plea agreement at a change of plea
    hearing. 
    2010 S.D. 95
    , ¶¶ 7-8, 792 N.W.2d at 176; accord Reaves, 
    2008 S.D. 105
    , ¶
    7, 
    757 N.W.2d at 582
     (“The court, in fact, implicitly accepted the plea agreement.”).
    To determine whether the circuit court accepted the plea agreement in Shumaker,
    we examined the court’s statements made during the change of plea hearing. 
    2010 S.D. 95
    , ¶¶ 7-8, 792 N.W.2d at 176. We recognized that the court had advised the
    defendant of the charges against her, her rights, and the penalties she faced under
    the statute as well as under the plea agreement. We noted that the court had
    informed the defendant that her attorney saved her from two years in the
    penitentiary. We further recognized that the court did not explicitly reject the plea
    agreement or advise the defendant as required under SDCL 23A-7-11 (Rule
    11(e)(4)). Relying on the circuit court’s reference to “this plea agreement” and lack
    of explicit rejection, we concluded that the court had accepted the binding plea
    agreement. Shumaker, 
    2010 S.D. 95
    , ¶ 7, 792 N.W.2d at 176.
    [¶17.]       Similarly, here, we conclude that the circuit court implicitly accepted
    the binding plea agreement at the change of plea hearing. At the beginning of the
    -8-
    #28268
    hearing, after defense counsel described the plea agreement to the court, the court
    asked Hale, “Mr. Hale, does that sound like what you’re here today to agree to?”
    Hale responded, “Yes.” The court read the charged offense; aggravated assault.
    The court also informed Hale of his maximum possible punishment for that offense.
    However, the court then explained to Hale that the plea agreement restricted the
    court’s imposition of punishment to a suspended sentence and probation. It
    remarked, “The plea agreement here does not let me use any of that penitentiary
    time immediately. The most it let’s [sic] me do is send you to county jail for 180
    days. I can suspend up to the full 15 years in the penitentiary. You’d be out on my
    probation.” (Emphasis added.) The court further informed Hale that “Mr. Walter’s
    plea negotiation keeps you out of the pen here today. But moving forward when
    you’re on my probation the only thing that keeps you out of the pen is you not doing
    stuff like this. You got that?” (Emphasis added.) The court specifically asked Hale,
    “Knowing what you know now, would you like to go ahead and take the plea
    agreement today?” (Emphasis added.) Hale responded, “Yes.”
    [¶18.]       Although the circuit court did not specifically “inform the defendant
    that it will embody in the judgment and sentence the disposition provided for in the
    plea agreement” as required by SDCL 23A-7-10 (Rule 11(e)(3)), the context of the
    court’s statements at the change of plea hearing informed Hale that the court
    accepted the agreement and intended to sentence Hale as provided in that
    agreement. Also, the colloquy between Hale and the circuit court supports Hale’s
    claim that the court’s implicit acceptance of the plea agreement induced him to
    waive his fundamental rights and plead guilty. And the State agreed that Hale
    -9-
    #28268
    cooperated in the prosecution of his codefendants as he agreed to do as part of the
    plea agreement.
    [¶19.]       In State v. Lohnes, we explained that “the duty of the state to perform
    its part of a plea bargain applies with equal force to the trial court[.]” 
    344 N.W.2d 686
    , 688 (S.D. 1984); accord Brewer II v. Starcher, 
    465 S.E.2d 185
    , 192-92 (W. Va.
    Sup. Ct. 1995). Indeed, “once the defendant has given up his ‘bargaining chip’ by
    pleading guilty, due process requires that the defendant’s expectations be fulfilled.”
    State v. Waldner, 
    2005 S.D. 11
    , ¶ 13, 
    692 N.W.2d 187
    , 191 (quoting State v. Howard,
    
    630 N.W.2d 244
    , 250 (Wis. Ct. App. 2001)); see Santobello v. New York, 
    404 U.S. 257
    , 261-62, 
    92 S. Ct. 495
    , 
    30 L. Ed. 2d 427
     (1971). This is not to say we believe the
    circuit court intentionally misled Hale. See, e.g., Lohnes, 344 N.W.2d at 689
    (explaining that our disagreement “stems from our belief that in the circumstances
    of this case the promise to impose a sentence of less than life imprisonment implied
    a sentence with a release date certain within the defendant’s life expectancy”). We
    further recognize that as set out in the court’s findings of fact, the court was greatly
    troubled by the severity of Hale’s culpability in the events leading to the kidnapping
    and robbery of Jackson. However, in light of the record and the circumstances of
    this case and because the circuit court at the time of the plea did not reject the
    agreement and did not defer its decision to accept or reject the agreement, the
    circuit court was required to sentence Hale within the bounds of the plea
    agreement. We reverse the circuit court’s order rejecting the plea agreement. On
    remand, the circuit court is directed to sentence Hale consistent with the
    agreement.
    -10-
    #28268
    [¶20.]       Reversed and remanded.
    [¶21.]       GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,
    Justices, concur.
    -11-
    

Document Info

Citation Numbers: 2018 SD 9

Filed Date: 1/24/2018

Precedential Status: Precedential

Modified Date: 2/12/2018