#25498-rev & rem-JKM

2010 S.D. 87

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                * * * *

STATE OF SOUTH DAKOTA,                           Plaintiff and Appellee,

      v.

NICHOLAS RONDELL,                                Defendant and Appellant.

                                * * * *
                    APPEAL FROM THE CIRCUIT COURT
                     OF THE FIFTH JUDICIAL CIRCUIT
                    ROBERTS COUNTY, SOUTH DAKOTA
                                * * * *

                       HONORABLE JON S. FLEMMER
                                Judge

                                * * * *

MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General                       Attorneys for plaintiff
Pierre, South Dakota                             and appellee.

ADAM G. BRIDGE
Sisseton-Wahpeton Oyate
 Public Defender’s Office                        Attorney for defendant
Agency Village, South Dakota                     and appellant.

                                * * * *
                                          CONSIDERED ON BRIEFS
                                          ON OCTOBER 4, 2010

                                          OPINION FILED 11/17/10
#25498

MEIERHENRY, Justice

[¶1.]         Nicholas Rondell appeals an adverse ruling on a suppression motion.

Rondell was arrested for driving while under the influence of alcohol. Rondell

claimed that the traffic stop was an unconstitutional search and seizure and moved

to suppress evidence resulting from the stop. After the trial court denied Rondell’s

motion, he entered into a plea agreement with the State. The State and Rondell

agreed that Rondell would enter a “conditional guilty plea” to preserve his right to

appeal the court’s adverse suppression motion ruling. The trial court accepted the

conditional guilty plea – also with the understanding that the agreement

contemplated that Rondell was preserving his right to appeal. On appeal, but

without filing a notice of review, the State raises the issue whether Rondell waived

his right to appeal. The State claims that South Dakota law does not provide for a

conditional guilty plea and that a benefit of the bargain plea under North Carolina

v. Alford waives all non-jurisdictional defects, including allegations of an

unconstitutional traffic stop. 1 Generally we do not consider issues that have not

been raised to the trial court or noticed for review. Hall v. State ex rel. S.D. Dep’t of

Transp., 2006 S.D. 24, ¶ 12, 712 N.W.2d 22, 26. Nevertheless, the unique plea



1.      In North Carolina v. Alford, the United States Supreme Court held that a
        plea can be entered by a defendant who maintains his innocence or is unable
        or unwilling to admit that he committed a crime. 400 U.S. 25, 37, 91 S.Ct.
        160, 167, 27 L.Ed.2d 162, 171 (1970). This Court recognized in State v.
        Engelmann that an Alford plea “allows a defendant the opportunity to avoid
        the risk of trial and obtain the benefit of a favorable plea bargain ‘even if he
        is unwilling or unable to admit his participation in the acts constituting the
        crime.’” 541 N.W.2d 96, 101 (S.D. 1995) (quoting Alford, 400 U.S. at 37, 91
        S.Ct. at 167).



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agreement between Rondell and the State involving a conditional guilty plea

prompts us to question the trial court’s jurisdiction. We therefore address the

question whether a trial court has authority to accept a conditional plea.

                                        Facts

[¶2.]        Rondell was arrested for: driving under the influence of alcohol, third

offense, a violation of SDCL 32-23-1; driving with a revoked license, a violation of

SDCL 32-23-4; possession of an open container, a violation of SDCL 35-1-9.1; and

underage consumption, a violation of SDCL 35-9-2. Before trial, Rondell filed a

motion to suppress evidence gathered the night he was arrested. Rondell argued to

the trial court that the officer did not have reasonable suspicion to make a lawful

traffic stop. The trial court denied Rondell’s motion, finding that reasonable

suspicion justified the stop. After his suppression motion was denied, Rondell

changed his not guilty plea to a conditional guilty plea. In exchange for Rondell’s

plea, the state’s attorney dismissed the charges for underage consumption, open

container, and driving with a revoked license.

[¶3.]        The State, Rondell, and the trial court understood that the plea was

entered as a conditional plea. The following exchange took place at the plea

hearing:

Rondell’s Attorney:        I’ll outline [the plea agreement] for the Court. Mr.
                           Rondell’s agreed to withdraw his earlier not guilty
                           plea, enter a conditional guilty plea to the charge
                           of DUI, Third Offense. Thereby preserving his
                           right to appeal [ ] [the] [d]enial of the motion to
                           suppress but saving the State the burden of trial.
                           In [ ] exchange I believe the State will not proceed
                           on the misdemeanor charges and will not oppose
                           Mr. Rondell’s request for a sentence to run


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                          concurrent to a sentence that he’s looking at in
                          Brown County[.]

Trial Court:              Is that the extent of the agreement [Rondell’s
                          attorney]?

Rondell’s Attorney:       Yes, Your Honor.

Trial Court:              And, [state’s attorney], is that         the   State’s
                          understanding of the agreement?

State’s Attorney:         Yes, Your Honor.

Trial Court:              And, Mr. Rondell, is that your understanding of the
                          agreement that you’ve made with the [s]tate’s
                          [a]ttorney?

Rondell:                  Yes, Your Honor.

Trial Court:              And I guess by a conditional plea, [Rondell’s
                          attorney], you’re referring to an Alfred [sic] plea
                          basically where the Defendant is not admitting the
                          offense but wishes to accept the benefit of the offer
                          made by the State? 2

Rondell’s Attorney:       Yes, Your Honor.

...

Trial Court:              And just so that we’re clear, the agreement calls for
                          [Rondell] to enter an Alfred [sic] plea of guilty to
                          the charge and the recommendation being made to
                          the Court is to allow any sentence imposed here to
                          the penitentiary to be allowed to run concurrently
                          or at the same time as any sentence you receive on
                          another charge in Brown County[.]

...

Trial Court:              And just so that we’re clear for the record, you wish
                          to enter what’s called an Alfred [sic] plea in that

2.    Although the trial court refers to this as an Alford (or Alfred) plea, the record
      demonstrates that Rondell, the State, and the trial court understood that the
      plea was a conditional plea, not an unconditional Alford plea.


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                            you are not necessarily admitting that you
                            committed the offense but you wish to accept or
                            enter a plea of guilty in order to receive the benefit
                            of the agreement that the State is offering in this
                            case?

Rondell:                    Yes, Your Honor.

...

Trial Court:                [T]hat also because there was the issue on the
                            suppression hearing, here, I should advise you that
                            you do have the right to appeal your decision here
                            but that appeal would have to be filed within 30
                            days of when the written judgment of conviction is
                            filed[.]

                                       Analysis

[¶4.]          The only pleas permitted in South Dakota are set forth in SDCL 23A-

7-2 (Rule 11(a)) as follows:

               Pleas permitted to defendant - Requirements for plea of guilty or
               nolo contendere.
                      A defendant may plead:
               (1)    Not guilty;
               (2)    Not guilty and not guilty by reason of insanity;
               (3)    Guilty;
               (4)    Nolo contendere; or
               (5)    Guilty but mentally ill.
                      Except as otherwise specifically provided, a plea of guilty
               or nolo contendere can only be entered by a defendant himself in
               open court. If a defendant refuses to plead, or if the court
               refuses to accept a plea of guilty or nolo contendere, the court
               shall enter a plea of not guilty. The court may not enter a
               judgment unless it is satisfied that there is a factual basis for
               any plea except a plea of nolo contendere.

This statute does not provide for conditional pleas.

[¶5.]          As support for his argument that South Dakota could permit

conditional pleas, Rondell points to Federal Rule of Criminal Procedure 11(a)(2).



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Federal Rule 11(a)(2) permits conditional pleas under certain circumstances. The

Federal Rule provides: “With the consent of the court and the government, a

defendant may enter a conditional plea of guilty or nolo contendere, reserving in

writing the right to have an appellate court review an adverse determination of a

specified pretrial motion. A defendant who prevails on appeal may then withdraw

the plea.” Id.

[¶6.]         Rondell recognizes that South Dakota has not adopted a similar rule,

but asserts that “there is nothing in South Dakota’s Rules of Criminal Procedure

that prohibits a conditional plea or the preservation of appeal rights following a

guilty plea.” Conversely, the State argues that without a rule, the trial court lacks

jurisdiction to accept a conditional guilty plea. 3

[¶7.]         The Rhode Island Supreme Court faced a similar question in State v.

Keohane, 814 A.2d 327 (R.I. 2003). The Keohane court addressed whether a

defendant’s conditional plea agreement, which was not authorized by statute, could

preserve for appeal a trial court’s denial of the defendant’s motion to suppress. Id.

at 328-29. The Keohane court held that Rhode Island statutes did not give the trial

court the “authority to accept a conditional plea of guilty . . . preserving the right of

the defendant to obtain review of the adverse determination of any specified pretrial

motion.” Id. at 329. The Keohane court further stated that “[t]he defendant’s guilty

plea acted as an effective waiver of his right of appeal; thus, the appeal [wa]s not

properly before [the] Court.” Id. As a result, the Keohane court refused to recognize

3.      The State points out that a defendant wishing to preserve appeal rights can
        enter a not guilty plea but stipulate to the facts. That allows the trial court
        to adjudicate the case and the defendant to appeal adverse rulings.

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#25498

“a right to a conditional plea subject to appeal” because such a right did not exist by

statute. Id.

[¶8.]          Like Rhode Island, South Dakota does not provide for a conditional

guilty plea by statute or court rule. As such, we decline to recognize a conditional

plea’s validity. Consequently, there was no authority for Rondell and the State to

agree to a conditional guilty plea or for the trial court to accept the conditional plea.

Cf. State v. Olson, 334 N.W.2d 49, 50 (S.D. 1983) (“This [C]ourt’s jurisdiction to

entertain appeals is limited by statute . . . and it is left to the [L]egislature to

expand the right to appeal.”); State v. Texley, 275 N.W.2d 872, 874 (S.D. 1979); State

v. Nuwi Nini, 262 N.W.2d 758, 760 (S.D. 1978) (“The right to appeal is statutory

and therefore does not exist in the absence of a statute permitting it.”).

[¶9.]          The State takes a rather precarious position on appeal. Initially, the

State agreed, as part of the plea agreement, that Rondell would enter a conditional

guilty plea. Now, the State asks this Court to hold that Rondell’s conditional plea

be considered an unconditional guilty plea waiving all non-jurisdictional appeal

rights. We have said that when a party “induce[s] or provoke[s] the court or the

opposite party to commit” an error, the doctrine of “invited error” applies and that

party “will not be heard to complain on appeal” about such error. Veith v. O’Brien,

2007 S.D. 88, ¶ 27, 739 N.W.2d 15, 24, (quoting Taylor Realty Co. v. Haberling, 365

N.W.2d 870, 873 (S.D. 1985) (additional citation omitted)). In this case, the State

contributed to the error by affirmatively approving, rather than objecting to,

Rondell’s conditional plea.




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[¶10.]          This case presents an unusual situation where Rondell, the State, and

the trial court agreed on a conditional plea, which had no legal basis in statute or

court rule. Therefore we conclude that the trial court did not have jurisdiction to

accept Rondell’s conditional plea. As a result, we hold that Rondell’s conditional

guilty plea is void. We reverse and remand for further proceedings consistent with

this opinion.

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

SEVERSON, Justices, concur.




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