#25599-rem-PER CURIAM

2010 S.D. 95

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                        Plaintiff and Appellee,

v.

STEVEN LEE SHUMAKER,                          Defendant and Appellant.

                                   * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                   * * * *

                    HONORABLE PETER H. LIEBERMAN
                               Judge

                                   * * * *
MARTY J. JACKLEY
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota                          Attorneys for plaintiff
                                              and appellee.

NICOLE J. LAUGHLIN
Office of the Minnehaha
 County Public Defender
Sioux Falls, South Dakota                     Attorneys for defendant
                                              and appellant.

                                   * * * *
                                             CONSIDERED ON BRIEFS
                                             ON NOVEMBER 15, 2010

                                             OPINION FILED 12/15/10
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PER CURIAM.

[¶1.]        Steven Shumaker appeals his conviction for fourth offense DUI. The

issue is whether the trial court erred in sentencing Shumaker to five years in the

state penitentiary, with two years conditionally suspended. Because the trial court

accepted Shumaker’s binding plea agreement, which called for a sentence no

greater than three years, the court erred when it sentenced Shumaker.

                                   Background

[¶2.]        On June 18, 2009, Defendant Steven Shumaker was arrested for

Driving Under the Influence. Shumaker was charged by Indictment with Driving

Under the Influence. The State also filed a Part 2 Information charging Shumaker

with Fourth Offense Driving Under the Influence pursuant to SDCL 32-23-4.6,

which is a Class 5 felony punishable by five years imprisonment.

[¶3.]        The State negotiated a plea agreement with Shumaker that called for

a cap of three years penitentiary time. Nothing in the record suggests that the plea

agreement called for any suspended penitentiary time beyond the three years. On

January 6, 2010, a plea hearing was conducted. The trial court fully advised

Shumaker of his rights. The relevant part of the plea hearing went as follows:

             THE COURT: Is there any agreement I should be aware of,
             Miss Laughlin?

             MISS LAUGHLIN: There is, Your Honor. The agreement is a
             cap of three years penitentiary time . . . .

             ...

             THE COURT: Instead of facing five years, you would be facing
             no more than three years. Do you have any questions about
             that?


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                THE DEFENDANT: No, Your Honor.

                THE COURT: There will also be suspended penitentiary time.
                Do you understand that?

                THE DEFENDANT: Yes, Your Honor.

                THE COURT: And you and your client understand under State
                versus Reeves [sic] the only thing the Court can bind itself to is
                no more than three years lock-up time?

                MISS LAUGHLIN: Yes, Your Honor.

                THE COURT: Mr. Shumaker, are you ready to enter your plea
                at this time?

                THE DEFENDANT: Yes, sir.

After this exchange, Shumaker pleaded guilty to Driving Under the Influence 0.08

Percent or More Alcohol by Weight in the Blood under SDCL 32-23-1(1) and

admitted to Fourth Offense Driving Under the Influence under SDCL 32-23-4.6.

The court found that a factual basis existed and accepted the plea as “voluntary and

intelligent.”

[¶4.]           At the sentencing hearing on February 23, 2010, the court sentenced

Shumaker to five years in the state penitentiary with two years conditionally

suspended. Shumaker appeals his sentence arguing that the trial court accepted

the binding plea agreement that capped his penitentiary time at three years, but

then failed to sentence him within the terms of the agreement.

                                  Standard of Review

[¶5.]           Whether a trial court complied with a binding plea agreement is a

question of law. State v. Reaves, 2008 S.D. 105, ¶ 4, 757 N.W.2d 580, 582 (stating

that “we employ a de novo review to determine whether the circuit court complied


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with the binding plea agreement”). We use the de novo standard of review when

considering questions of law. Id.

                               Analysis and Decision

[¶6.]         “We recognize that generally circuit courts are not bound by plea

agreements.” Id. ¶ 7. See SDCL 23A-7-9. Nevertheless, if a trial court accepts a

binding plea agreement, it is bound to honor its promise to sentence the defendant

within the bounds of the agreement. Reaves, 2008 S.D. 105, ¶ 7, 757 N.W.2d at 582

(citing State v. Lohnes, 344 N.W.2d 686, 688 (S.D. 1984)). 1 If a trial court were not

bound, it would not be required under SDCL 23A-7-10 (Rule 11(e)(3)) to “inform the

defendant that it will embody in the judgment and sentence the disposition

provided for in the plea agreement.”

[¶7.]         The record indicates that the trial court accepted the binding plea

agreement. During the plea hearing, the trial court stated, “[Shumaker] has been

advised of his legal rights and the charge against him, the penalty he faces, both

under the statute and under this plea agreement.” The trial court’s use of “this”

plea agreement, implies acceptance of the terms of the plea agreement, which



1.      There is no indication that the plea agreement was the non-binding type of
        plea agreement under SDCL 23A-7-8(2) that was present in State v. Rich, 305
        N.W.2d 390 (S.D. 1981). In an SDCL 23A-7-8(2) plea (recommendation)
        agreement, “it is part of the agreement itself that the parties understand that
        the court is not bound by the recommendation or request. Non-acceptance of
        the request is not a rejection of the agreement[.]” Id. at 392-93. Thus, if the
        court accepts the non-binding (SDCL 23A-7-8(2)) agreement, but does not
        follow the recommendation, the defendant has no right to withdraw his or her
        plea. Id. See State v. Lee, 1997 S.D. 26, ¶ 8, 560 N.W.2d 552, 554 (holding
        trial “court’s non-acceptance of the requested sentence was not a rejection of
        the plea bargain [made pursuant to SDCL 23A-7-8(2)] and [defendant] had no
        right to withdraw his guilty plea”).

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capped any penitentiary time—suspended or not—at three years. At the sentencing

hearing, the court again declared its acceptance of the plea agreement:

              THE COURT: Well, you can thank your attorney, Mr.
              Shumaker. She saved you from two years in the penitentiary.
              The legislature says you can receive up to five years. The
              agreement is that you can only receive up to three. Given the
              number of DUIs you have on your record, you have to expect
              maximum sentences from now on. Your lawyer did an amazing
              job for you, got it down from five to three. That’s the agreement.
              I’ll live with it.

(Emphasis added.)

[¶8.]         Furthermore, the record indicates that the trial court did not explicitly

reject the plea agreement and advise Shumaker pursuant to SDCL 23A-7-11. If a

court rejects a plea agreement before a plea has been entered, SDCL 23A-7-11

provides that the court shall “on the record, inform the parties of this fact” and

advise the defendant that it is not bound by the agreement. The court never

informed the parties it was rejecting the plea agreement. Additionally, the court

must advise “that if [defendant] persists in his guilty plea . . . the disposition of the

case may be less favorable to him than that contemplated by the plea agreement.”

Id. The trial court did not advise Shumaker of this either.2

[¶9.]         The State asserts Shumaker knew, before pleading guilty, that the

trial court intended to reject the plea agreement and sentence him to suspended

penitentiary time that could make his total sentence up to five years long.

Shumaker argues that the trial court told him it would sentence him to no more


2.      Even though the court advised Shumaker that it was “only” binding itself to
        “no more than three years lock-up time,” this statement was still within the
        bounds of the plea agreement and does not equate with a rejection of the plea
        agreement or any of the required advisements of SDCL 23A-7-11.

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than three years in the penitentiary, with a portion of that three-year penitentiary

maximum suspended at the court’s discretion. The trial court told Shumaker that

“[t]here will also be suspended penitentiary time” after explaining that he “would be

facing no more than three years.” The language used by the trial court did not

clarify whether the discretionary suspended penitentiary time applied to the three

years capped by the plea agreement versus the two years dropped from the

maximum legislative sentence of five years. At no time did the trial court expressly

state that the suspended time was separate from or in addition to the “no more than

three years.” The trial court’s ambiguous reference to suspended time did not

inform Shumaker that the court was rejecting the plea agreement. Rather, taken in

the context of the trial court’s other statements, the trial court agreed that a portion

of Shumaker’s three-year maximum penitentiary sentence would be suspended at

its discretion.

[¶10.]        Shumaker argues that the trial court’s sentence of five years with two

years conditionally suspended did not comply with the court’s acceptance of the plea

agreement, which capped his sentence at three years. The court promised

Shumaker “no more than three years lock-up time” under State v. Reaves. In

Reaves, the question was whether the trial court’s sentence of twenty years with ten

years suspended comported with the court’s acceptance of the plea agreement

capping the sentence at fifteen years. 2008 S.D. 105, ¶¶ 7, 9, 757 N.W.2d at 582-83.

We concluded that “a sentence includes both the amount of time ordered to be

served in jail and the amount of time suspended.” Id. ¶ 10. Explaining this

conclusion, we stated, “It is safe to assume that if Reaves violates the conditions [of


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the time suspended], a court would reinstate some, if not all, of the suspended

years, which could potentially result in a total prison term of 20 years” that would

improperly exceed the fifteen-year sentence cap. Id. ¶ 11.

[¶11.]       Likewise, it is safe to assume that if Shumaker violates the conditions

of his suspended time, a court would reinstate some, if not all of the two suspended

years. This would result in a “lock-up time” over three years—which would

contravene the trial court’s explicit promise of “no more than three years lock-up

time” and the plea agreement’s cap of three years penitentiary time. The trial

court’s sentence of five years with two years conditionally suspended was improper.

                                    Conclusion

[¶12.]       The trial court’s improper sentence in Reaves resulted in a remand of

the case for the resentencing of the defendant within the bounds of the plea

agreement. Id. This case demands the same result. The case is remanded for

resentencing.

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

MEIERHENRY, and SEVERSON, Justices, participating.




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