#26304, #26306-a-DG
2012 S.D. 84

                                      IN THE SUPREME COURT
                                              OF THE
                                     STATE OF SOUTH DAKOTA
                                               ****

                                                    (#26304)
STATE OF SOUTH DAKOTA,                                                  Plaintiff and Appellee,
         v.
TYLER OLVERA,                                                           Defendant and Appellant.
---------------------------------------------------------------------------------------------------------------------
                                                     (#26306)
STATE OF SOUTH DAKOTA,                                                  Plaintiff and Appellee,
         v.
TYLER MUGGINS OLVERA,                                                   Defendant and Appellant.
                                                      ****

                          APPEALS FROM THE CIRCUIT COURT OF
                            THE SEVENTH JUDICIAL CIRCUIT
                          PENNINGTON COUNTY, SOUTH DAKOTA

                                                      ****

                               THE HONORABLE WALLY EKLUND
                                          Judge

                                                      ****

MARTY J. JACKLEY
Attorney General

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

ARNOLD D. LAUBACH, JR.
Pennington County Public Defender’s Office
Rapid City, South Dakota                                                Attorneys for defendant
                                                                        and appellant.

                                                      ****
                                                                        CONSIDERED ON BRIEFS
                                                                        ON NOVEMBER 6, 2012
                                                                        OPINION FILED 12/05/12
#26304, #26306

GILBERTSON, Chief Justice

[¶1.]        Tyler Olvera appeals his sentences for DUI (fifth offense) and

Distribution of a Controlled Substance. Olvera argues that the Office of the

Attorney General breached the plea agreement when, at sentencing, it initially

argued against concurrent sentences, but then, when made aware of the plea

agreement, it withdrew its argument against concurrent sentences. Because Olvera

did not contemporaneously object to the alleged violation of the plea agreement, and

does not establish that the alleged error caused him prejudice, the sentences are

affirmed.

                                       FACTS

[¶2.]        Olvera was arrested on June 12, 2011, for DUI. He was later indicted

and charged with felony DUI (fifth offense) and misdemeanor Driving Under

Revocation. A week after this indictment, he was charged by indictment on two

counts of Distribution of a Controlled Substance. The Pennington County State’s

Attorney prosecuted the DUI charge (appeal #26304) and the Attorney General’s

office prosecuted the distribution charges (appeal #26306).

[¶3.]        A plea agreement was reached in both cases. Pursuant to the

agreements, the state’s attorney’s office agreed to dismiss the Driving Under

Revocation charge and agreed to recommend that the DUI sentence run concurrent

to the sentence imposed for the distribution charges. The Attorney General’s office

agreed to dismiss one of the distribution charges, cap its sentence request at five

years in the penitentiary, and to not object to the sentence being served concurrent

to the DUI charge.
#26304, #26306

[¶4.]         At Olvera’s sentencing hearing, the Attorney General’s office * initially

argued against running the sentences concurrently. Olvera’s counsel then pointed

out an email setting forth the plea agreement. The Assistant Attorney General

then changed his argument, indicating that he was recommending concurrent

sentences. The record contains no indication that Olvera’s counsel objected to the

Assistant Attorney General’s initial argument. In fact, the sentencing transcript

contains no interjection from defense counsel during the Assistant Attorney

General’s remarks. The circuit court sentenced Olvera to six years for the DUI and

five years for the Distribution of Controlled Substance charge, the sentences to be

served consecutively.

[¶5.]         On appeal, Olvera argues that the State breached the plea agreement,

requiring that the sentences in both cases be vacated and the cases remanded for

resentencing in front of a different judge.

                            ANALYSIS AND DECISION

[¶6.]         Olvera relies on this Court’s decision in State v. Morrison, 2008 S.D.

116, 759 N.W.2d 118. In Morrison, the plea agreement called for the State to

refrain from objecting to the defendant’s request for a suspended imposition of

sentence. Id. ¶ 2. At the sentencing hearing, the prosecutor expressed his

dissatisfaction with the defendant’s rendition of the facts provided during the

presentence investigation. Id. ¶ 3. That dissatisfaction included reminding the

sentencing court that it was not bound to suspend imposition of sentence. Id. On



*       The Assistant Attorney General appearing at the sentencing was not the
        same Assistant Attorney General who had brokered the plea agreement.
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#26304, #26306

appeal, defendant argued that the State had breached the plea agreement. Id. ¶ 1.

This Court identified the issue as follows: “The inquiry is not whether or not the

trial court was affected by the breach of the agreement, but whether the state’s

attorney met his or her obligation.” Id. ¶ 6 (quoting State v. Waldner, 2005 S.D. 11,

¶ 12, 692 N.W.2d 187, 191). This Court noted that, in these situations, the

defendant is typically not required to establish prejudice.

             In order to preserve the integrity of plea bargaining procedures
             and public confidence in the criminal justice system, a petitioner
             is generally entitled to the enforcement of a plea agreement
             without showing a tangible harm resulting from that breach.
             Because the State breached the plea agreement, [defendant] was
             not afforded a fair and reliable sentencing proceeding.

Id. ¶ 12 (internal quotation marks and citations omitted). This Court reversed the

sentence and remanded for resentencing by a new judge. Id. ¶ 13.

[¶7.]        Morrison involved a situation in which the defendant’s counsel

contemporaneously objected to the prosecution’s breach of the plea agreement

during the sentencing hearing. Id. ¶ 3. The current record contains no indication

that Olvera’s counsel objected, nor does Olvera indicate any objection was made, to

the Assistant Attorney General’s alleged breach. We have recently noted the

importance of this distinction. In State v. Jones, 2012 S.D. 7, 810 N.W.2d 202, this

Court analyzed the United States Supreme Court decision Puckett v. United States,

556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), regarding the importance of

a contemporaneous objection to an alleged breach of a plea agreement. “According

to Puckett, if the appellant did not make a timely objection at sentencing to an

alleged breach of a plea agreement, the claim is forfeited and the lower court’s

sentence is reviewed for plain error according to Federal Rule of Civil Procedure
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#26304, #26306

52(b).” Jones, 2012 S.D. 7, ¶ 7, 810 N.W.2d at 204-05 (citing Puckett, 556 U.S. at

142-43, 129 S. Ct. at 1433).

[¶8.]        “To preserve a breach of plea agreement claim for appeal, the Supreme

Court in Puckett required a ‘contemporaneous objection’ to the prosecutorial breach

at the trial level.” Id. ¶ 10. Here, as in Jones, Olvera did not make a

contemporaneous objection at sentencing. Therefore, we analyze the circuit court’s

sentence for plain error. See id. ¶ 12.

[¶9.]        This Court’s review under the plain error doctrine is well-settled.

             We invoke our discretion under the plain error rule cautiously
             and only in exceptional circumstances. To demonstrate plain
             error, the appellant must establish that there was: (1) error, (2)
             that is plain, (3) affecting substantial rights; and only then may
             we exercise our discretion to notice the error if (4) it seriously
             affects the fairness, integrity, or public reputation of the judicial
             proceedings.

Id. ¶ 14 (internal quotation marks and citations omitted).

[¶10.]       The first inquiry is the presence of error. Olvera argues that the

comments made by the Attorney General’s office constitute a material breach of the

plea agreement. In support, Olvera relies on this Court’s Morrison decision, as

addressed above.

[¶11.]       The State argues that the Attorney General’s recantation of the initial

argument against concurrent sentences, coupled with the subsequent

recommendation for concurrent sentences, cured any potential breach. Therefore,

according to the State, there has been no substantial or material breach of the plea

agreement. In support, the State cites State v. Knox, a Wisconsin case with similar

facts. 570 N.W.2d 599 (Wis. Ct. App. 1997). In Knox, the court found that the

                                          -4-
#26304, #26306

prosecutor’s “initial request for a sentence harsher than called for by the [plea]

agreement” was not a substantial breach. Id. at 600. There is, however, authority

to the contrary. See, e.g., State v. Fannon, 799 N.W.2d 515, 522 (Iowa 2011) (finding

that a breach of a plea agreement could not be cured by the “withdrawal of the

improper remarks”).

[¶12.]       Assuming without deciding that the Assistant Attorney General’s

comments constituted a breach, a breach of the plea agreement establishes “(1)

error and (2) that it was plain.” Jones, 2012 S.D. 7, ¶ 15, 810 N.W.2d at 206. As in

Jones, finding a breach also implicates the defendant’s substantial rights. See id. ¶

16. “Jones has also established that the breach implicated his substantial rights.

As we have previously noted, ‘[o]nce an accused agrees to plead guilty in reliance

upon a prosecutor’s promise to perform a future act, the accused’s due process rights

demand fulfillment of the bargain.’” Id. (quoting Vanden Hoek v. Weber, 2006 S.D.

102, ¶ 14, 724 N.W.2d 858, 863).

[¶13.]       Under the third prong of plain error analysis, however, Olvera must

establish prejudice. In Jones, the defendant was unable to establish prejudice

because subsequent to the breach, proceedings were conducted wherein the State

did not breach the plea agreement.

             Jones has not shown that the State’s error affected the outcome
             of the proceedings where, as in this case, the trial court, after
             finding that there had been a material breach of the plea
             agreement used its discretion to grant Jones’s motion to
             reconsider. At resentencing, the State fulfilled the terms of the
             plea agreement by explicitly setting forth the terms of the plea
             agreement[.]



                                          -5-
#26304, #26306

Id. ¶ 17. Here, however, no such motion for reconsideration was made. After

hearing from all parties, including the Assistant Attorney General’s remarks both

for and then against consecutive sentences, the circuit court imposed the sentences,

which included that the sentences be served consecutively. That no subsequent

proceedings were conducted where the plea agreement was followed does not relieve

Olvera from establishing prejudice. As the Supreme Court stated in Puckett, “[T]he

defendant whose plea agreement has been broken by the Government will not

always be able to show prejudice, either because he obtained the benefits

contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to

request) or because he likely would not have obtained those benefits in any event

(as is seemingly the case here).” 556 U.S. at 141-42, 129 S. Ct. at 1432-33.

[¶14.]       Olvera has made no attempt to show prejudice, nor is prejudice

apparent from the record. Absent such a showing, Olvera’s argument fails.

“Without prejudice, the error does not ‘affect substantial rights’ under the third

prong of plain error review and ‘[an appellate court] ha[s] no authority to correct it.’”

Jones, 2012 S.D. 7, ¶ 17, 810 N.W.2d at 206 (quoting United States v. Olano, 507

U.S. 725, 741, 113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993)).

                                         Conclusion

[¶15.]       Whether or not the State breached the plea agreement, Olvera made

no contemporaneous objection to the alleged breach at the sentencing hearing. This

Court therefore analyzes for plain error. Under a plain error analysis, Olvera does

not establish that he was prejudiced by the alleged breach; therefore his argument

fails.

                                           -6-
#26304, #26306

[¶16.]     Affirmed.

[¶17.]     KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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