#28583-a-SRJ
2019 S.D. 2

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                  ****

STATE OF SOUTH DAKOTA,                    Plaintiff and Appellee,

      v.

JASON PAUL LEWANDOWSKI,                   Defendant and Appellant.

                                  ****

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

                                  ****

                    THE HONORABLE JON S. FLEMMER
                               Judge

                                  ****

THOMAS L. SANNES of
Delaney, Nielsen & Sannes, P.C.
Webster, South Dakota

CHRISTOPHER D. DOHRER                     Attorneys for defendant
Aberdeen, South Dakota                    and appellant.


MARTY J. JACKLEY
Attorney General

MIKAL G. HANSON
PAUL S. SWEDLUND
Assistant Attorney General                Attorneys for plaintiff
Pierre, South Dakota                      and appellee.

                                  ****

                                          CONSIDERED ON BRIEFS ON
                                          NOVEMBER 12, 2018
                                          OPINION FILED 01/02/19
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JENSEN, Justice

[¶1.]        Jason Lewandowski was convicted of first degree felony murder,

commission of a felony while armed with a firearm, and burglary in the first degree

stemming from the shooting death of Jeremy Hendrickson (Jeremy). Lewandowski

appeals, arguing the circuit court should have suppressed his statements to law

enforcement during a custodial interrogation on the night of the shooting because

those statements were obtained in violation of his Fifth Amendment right to counsel

and his right against self-incrimination. Lewandowski also claims the circuit court

erred by refusing to compel specific performance of a plea agreement that he alleges

would have allowed him to plead guilty to manslaughter. We affirm.

                         Facts and Procedural History

[¶2.]        Lewandowski lived on a farm in Day County and had joint custody of

his son, S.L., following Lewandowski’s divorce. Jon and Judy Hendrickson were

Lewandowski’s neighbors. Lewandowski considered Jon a good friend and had a

friendly relationship with Jon’s son Jeremy.

[¶3.]        Jon passed away in 2011. After Jon died, Lewandowski began an

intimate relationship with Judy that strained his relationship with Jeremy. On

July 21, 2012, this strain led to a physical altercation in which Lewandowski

claimed he was assaulted by Jeremy and two of his friends. The Day County

Sheriff’s office and the South Dakota Division of Criminal Investigation (DCI)

investigated the incident. DCI agent Stanley Lunzman was involved in the

investigation and established a friendly professional relationship with

Lewandowski as a result. Jeremy eventually pleaded no contest to a charge of


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disorderly conduct for his involvement in the July 21 incident. Lewandowski

claimed he suffered continual pain and disability from injuries sustained in the

incident and held a grudge against Jeremy.

[¶4.]        On November 20, 2015, Lewandowski claims he aggravated his

injuries when he tripped and fell in a ditch after deer hunting. Lewandowski

returned to his Datsun pickup and stopped at a bar in Pierpont to, as he claims,

self-medicate his pain with alcohol. Lewandowski told law enforcement he sat at

the end of the bar to help support his back and knee and had two drinks. At trial,

the State disputed Lewandowski’s version of these events and presented video

evidence showing Lewandowski walking around the bar speaking with patrons and

consuming at least four drinks. According to the State, Lewandowski never

mentioned his fall or pain to anyone in the bar.

[¶5.]        When Lewandowski returned home, he began conversing with S.L. and

S.L.’s friend. The conversation turned into a heated argument, culminating in

Lewandowski picking up a television and throwing it against the wall.

Lewandowski then drove away from the home, now driving his Ram pickup truck,

where he kept a .22 caliber Luger pistol in the glove box.

[¶6.]        Lewandowski drove to Jeremy’s home, arriving around 9:30 p.m.

Jeremy’s wife, Leslie, testified that she and Jeremy heard a vehicle drive into the

yard of their rural home, but were unable to identify who had entered the property.

Jeremy and Leslie were in the bedroom with their two children when they heard the

backdoor to the house slam open. Lewandowski then charged into the bedroom.

Lewandowski admitted at trial that he entered the bedroom and confronted Jeremy


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asking him, “why they did what they did” and “why Jeremy had anger toward

him[,]” and then shot Jeremy in the head. Leslie testified that Lewandowski

stormed into the house, said, “I’m sick of this shit you mother fucker,” put his .22

caliber pistol to Jeremy’s head and shot him. After the shooting, Lewandowski ran

out of the house and drove to his home.

[¶7.]        Jeremy was transported to a local hospital and then flown to a hospital

in Fargo for advanced medical treatment. Jeremy was placed on artificial life

support because of severe brain damage from the bullet. Jeremy never regained

consciousness. He was taken off life support on December 9, 2015, and died the

same day.

[¶8.]        When Lewandowski returned home, he told S.L., “I just killed Jeremy.”

S.L. testified that Lewandowski told him to take the Ram pickup and drive to S.L.’s

mother’s home in Langford. Later that night, S.L. was questioned by law

enforcement and it was discovered that Lewandowski’s .22 Luger pistol was missing

from the console of the Ram pickup.

[¶9.]        Lewandowski left his home and arrived at his brother’s home in

Groton around 10:00 p.m. Lewandowski’s brother was not home, but

Lewandowski’s sister-in-law and niece were home. Lewandowski told his

sister-in-law that he had “killed the mother fucker that ruined [his] life,” and that

they were probably never going to see him again. Lewandowski’s brother learned

what had occurred and called law enforcement.

[¶10.]       Lewandowski left his brother’s home and was spotted by law

enforcement driving toward Aberdeen. Lewandowski refused to pull over for law


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enforcement leading to a high-speed chase. Lewandowski reached Aberdeen and

exited his vehicle at a hospital, but failed to follow the directives of law

enforcement. Lewandowski was eventually subdued by law enforcement after being

Tasered twice.

[¶11.]       Lewandowski was placed into custody and taken into the hospital

where his Taser injuries were treated and photographed. Lewandowski’s blood

alcohol level was tested and revealed a blood alcohol content (BAC) of .164. Agent

Lunzman arrived at the hospital to question Lewandowski. While Lunzman was

waiting for the hospital room to clear and before advising Lewandowski of his

Miranda rights, Lunzman began making some general comments to Lewandowski,

explaining he wanted to talk to him in a few minutes. Lewandowski made several

statements during this time, such as “I’m sorry, sorry man,” “I done a bad thing,”

and “I fucked up.” After the room was cleared, Lunzman read Lewandowski his

Miranda rights and Lewandowski acknowledged that he understood his rights.

Lunzman then began asking Lewandowski questions about the shooting. Lunzman

was aware of Lewandowski’s BAC level during the questioning.

[¶12.]       After Lewandowski was treated and examined at the hospital, he was

transported to the Brown County jail. Lunzman traveled to the jail to continue the

interrogation. At the jail, Lunzman again administered Miranda rights, and

Lewandowski stated he understood the rights. The following exchange then

occurred:

             Lewandowski: Now I’m gonna ask a stupid question.
             Lunzman: There’s no such thing as a stupid question Jason.
             Lewandowski: What, worthless attorney am I gonna get
             appointed?

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#28583

             Lunzman: Don’t know. Couple steps ahead right now for what
             we’re doing right now.

The interrogation continued until Lewandowski said, “I suppose I should have an

attorney called huh [sic].”

[¶13.]       Lewandowski was charged with first- and second-degree murder,

commission of a felony while armed with a firearm, and first-degree burglary. He

entered pleas of not guilty by reason of insanity to all the charges, but later

withdrew his insanity pleas and pleaded not guilty to the charges. Lewandowski

also moved to suppress the statements he made to Lunzman on the night of the

shooting. He argued that any statements he made before being advised of his

Miranda rights should be suppressed, he did not waive his Miranda rights, and that

he invoked his right to counsel before questioning started at the Brown County jail.

The court denied Lewandowski’s motion.

[¶14.]       Shortly before trial, Lewandowski’s attorney and the Day County

State’s Attorney discussed the terms of a plea agreement by phone. Lewandowski

claimed an agreement was reached during the phone call, allowing him to enter a

guilty plea to first-degree manslaughter in lieu of the murder charges. He claimed

the State improperly withdrew the plea agreement later that evening after the

victim’s family objected to the plea agreement. Lewandowski moved for specific

performance arguing that the State was bound by the plea agreement. Neither

party presented evidence or documents at the hearing, but instead presented their

respective positions by argument. The court determined there was no meeting of

the minds on the terms of the plea agreement and denied Lewandowski’s motion.



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[¶15.]       Lewandowski was found guilty of first-degree felony murder, second-

degree murder, commission of a felony while armed with a firearm, and first-degree

burglary following a jury trial. The same day, the court imposed a life sentence on

the conviction for first-degree felony murder, and five-year consecutive sentences on

the convictions for commission of a felony while armed with firearm, and first-

degree burglary.

[¶16.]       Lewandowski raises two issues on appeal:

             1.      Whether the circuit court erred in denying
                     Lewandowski’s motion to suppress his statements made
                     during the custodial interrogation.

             2.      Whether the circuit court erred in denying
                     Lewandowski’s motion for specific performance of the
                     plea agreement.

                                 Standard of Review

[¶17.]       “A ruling on a motion to suppress based on an alleged violation of a

constitutionally protected right is a question of law reviewed de novo.” State v.

Diaz, 2014 S.D. 27, ¶ 20, 847 N.W.2d 144, 154 (quoting State v. Horse, 2002 S.D. 47,

¶ 11, 644 N.W.2d 211, 217-18). In our evaluation of a motion to suppress, “we

consider the totality of the circumstances . . . and giv[e] deference to the [circuit]

court’s findings of fact.” Id. (quoting State v. Ralios, 2010 S.D. 43, ¶ 24,

783 N.W.2d 647, 655). We review de novo if a waiver of Miranda rights is

voluntary. State v. Tuttle, 2002 S.D. 94, ¶ 6, 650 N.W.2d 20, 25.

[¶18.]       “Generally, plea agreements are contractual in nature and are

governed by ordinary contract principles.” State v. Waldner, 2005 S.D. 11, ¶ 8

692 N.W.2d 187, 190 (quoting State v. Stevenson, 2002 S.D. 120, ¶ 9, 652 N.W.2d

735, 738). “[T]he ‘existence of a valid contract is a question of law.’” Behrens v.
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Wedmore, 2005 S.D. 79, ¶ 20, 698 N.W.2d 555, 566 (quoting In re Estate of

Neiswender, 2000 S.D. 112, ¶ 9, 616 N.W.2d 83, 86). “If in dispute, however, the

existence and terms of a contract are questions for the fact finder.” Id. (quoting

Morrisette v. Harrison Int’l Corp., 486 N.W.2d 424, 427 (Minn. 1992)); Geraets v.

Halter, 1999 S.D. 11, ¶ 12, 588 N.W.2d 231, 233. In the criminal context, “the

[circuit] court’s findings of fact are reviewed under the clearly erroneous standard,

but we give no deference to the [circuit] court’s conclusions of law.” State v. Fierro,

2014 S.D. 62, ¶ 12, 853 N.W.2d 235, 239.

                                Analysis & Decision

             1.     Whether the circuit court erred in denying Lewandowski’s motion
                    to suppress his statements made during the custodial
                    interrogations.

[¶19.]       Because Lewandowski was in custody, he contends that his initial

statements at the hospital, before his Miranda rights were administered, were

obtained in violation of his right against self-incrimination. Lewandowski also

argues that the circuit court should have suppressed his statements because there

was never a valid waiver of his Miranda rights. Finally, Lewandowski claims that

the questioning at the jail continued after he invoked his right to counsel. The

State argues Lewandowski’s statements were made after he was fully advised and

waived his Miranda rights, and that Lewandowski did not invoke his right to

counsel during the interrogation.

[¶20.]       When a person is in the custody of law enforcement and law

enforcement intends to perform a custodial interrogation of that person, they are

required to read them their Miranda rights. State v. Blackburn, 2009 S.D. 37, ¶ 9,

766 N.W.2d 177, 181. “After an officer has informed a suspect of his Miranda rights
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and has determined that the suspect understands those rights, the officer must

then determine if the suspect is willing to waive those rights and answer

questions.” Tuttle, 2002 S.D. 94, ¶ 14, 650 N.W.2d at 28 (quoting State v. Leyva,

951 P.2d 738, 744 (Utah 1997)). The State must prove there was a valid waiver by

a preponderance of the evidence. Id. ¶ 8, 650 N.W.2d at 26. Proof of a valid waiver

requires a showing that, “(1) the relinquishment of the defendant’s rights was

voluntary and (2) the defendant was fully aware that those rights were being

waived and of the consequences of waiving them.” Id. ¶ 9, 650 N.W.2d at 26.

[¶21.]       “For a waiver determination, a court should consider a defendant’s age,

experience, intelligence, and background, including familiarity with the criminal

justice system, as well as physical and mental condition.” Id. ¶ 7, 650 N.W.2d at 25.

The explicitness of the waiver is also a factor for consideration. Id. ¶ 9, 650 N.W.2d

at 26. “A Miranda waiver may be inferred from the defendant’s understanding of

the rights coupled with a course of conduct reflecting a desire to give up those

rights.” Id. ¶ 16, 650 N.W.2d at 29; see also Berghuis v. Thompkins, 560 U.S. 370,

385, 130 S. Ct. 2250, 2262, 176 L. Ed. 2d 1098 (2010) (“[T]he law can presume that

an individual who, with a full understanding of his or her rights, acts in a manner

inconsistent with their exercise has made a deliberate choice to relinquish the

protection those rights afford.”). “Where the prosecution shows that a Miranda

warning was given and that it was understood by the accused, an accused’s

uncoerced statement establishes an implied waiver of the right to remain silent.”

Berghuis, 560 U.S. at 384, 130 S. Ct. at 2262.




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         a.   Pre-Miranda statements.

[¶22.]        Lewandowski’s initial statements to Lunzman, prior to Lunzman

reading Lewandowski his Miranda rights, were not made in response to any

questions. In fact, Lunzman twice told Lewandowski to, in effect, wait a few

minutes for the hospital room to clear before talking about the shooting. The circuit

court found that no questioning occurred before Lunzman advised Lewandowski of

his Miranda rights. This finding is supported by the evidence. Uncoerced,

voluntary, and spontaneous statements are not protected by Miranda. See State v.

Smith, 1999 S.D. 83, ¶¶ 35-36, 599 N.W.2d 344, 352. The motion to suppress these

initial statements was properly denied.

         b.   Miranda Waiver.

[¶23.]        Lunzman fully informed Lewandowski of his Miranda rights at the

hospital and at the jail. The explanation included a statement that Lewandowski

had a continuing “right to remain silent and stop questioning at any time” and that

he had a continuing “right to consult with and have the presence of an attorney.”

Lewandowski affirmatively acknowledged at the hospital and jail that he

understood these rights.

[¶24.]        After Lewandowski acknowledged understanding the rights at the

hospital, Lunzman reiterated the advisement, stating: “I would like to ask you some

questions about what happened tonight. And again, remember your Miranda. You

don’t have to, but I would like to see what your side of this story is.” Lunzman did

not ask if Lewandowski wanted to waive his rights, but Lewandowski began

answering all of Lunzman’s questions. The questioning was conducted in a


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conversational tone and Lewandowski expressed no concern or reservation about

answering the questions. The circuit court determined that, “while there is no

specific waiver of the rights, [Lewandowski] indicated that he knew the rights and

continued to answer questions for Agent Lunzman.”

[¶25.]       Lewandowski argues that the circuit court failed to adequately

consider his intoxication and impaired mental state in its waiver determination.

             The test of voluntariness of one who claims intoxication at the
             time of waiving his rights . . . is whether the individual was of
             sufficient mental capacity to know what he was saying—capable
             of realizing the meaning of his statement—and that he was not
             suffering from any hallucinations or delusions.

State v. Strozier, 2013 S.D. 53, ¶ 19, 834 N.W.2d 857, 863 (Coon v. Weber, 2002 S.D.

48, ¶ 18, 644 N.W.2d 638, 645) (affirming the circuit court determination that a

defendant had voluntarily waived his Miranda rights where a defendant had a .214

BAC, but the record showed the defendant was not suffering from delusions and

understood what he was saying). The circuit court found that Lewandowski was

under the influence of alcohol at the time of questioning, but determined that

Lewandowski’s voluntary intoxication did not prevent him from knowingly and

voluntarily waiving his rights. The record of the interrogation shows that

Lewandowski lucidly recalled details and specific facts related to the shooting and

events before and after the shooting. Lewandowski’s behavior and actions

throughout the interrogation indicate he understood what he was saying and

desired to speak with Lunzman.

[¶26.]       Lewandowski also claims he had been previously treated for mental

health issues, and suggests that he may have been under the influence of


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medication at the time of questioning. However, there is no evidence showing

Lewandowski had taken any psychoactive drugs on the night of the shooting, other

than alcohol. There is also no evidence that Lewandowski was suffering from any

mental health issues or other mental impairment at the time of the interrogation.

[¶27.]         Finally, the circuit court specifically determined that Lewandowski’s

will was not overborne in making the decision to answer Lunzman’s questions. This

determination is supported by the record showing that the questioning was non-

coercive and conversational. Further, Lewandowski was previously acquainted

with Lunzman and showed no reluctance in answering any of Lunzman’s questions.

Under the totality of the circumstances, Lunzman properly inferred that

Lewandowski had waived his Miranda rights and wished to speak with him at the

hospital and jail.

         c.    Request for Counsel.

[¶28.]         Lewandowski also argues that when the questioning began at the jail

he invoked his right to an attorney by asking, “[w]hat, worthless attorney am I

gonna get appointed” immediately after Lunzman read him his Miranda rights for a

second time. Lewandowski contends that Lunzman should have stopped the

questioning at that time, or at a minimum, clarified the statement to determine if

Lewandowski was requesting an attorney. The State argues Lewandowski’s

statement was too vague to be a request for counsel and it was unnecessary for



        Lewandowski requested and obtained a mental health evaluation during the
         proceedings, but neither the report nor any findings from the report were
         introduced by Lewandowski during the pretrial proceedings or at trial. After
         receiving the reports, Lewandowski withdrew his insanity pleas to the
         charges.
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Lunzman to clarify the comment because Lewandowski had already waived his

Miranda rights.

[¶29.]       “[A] person subjected to custodial interrogation must invoke the right

to counsel ‘sufficiently clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.’” Tuttle, 2002 S.D.

94, ¶ 13, 650 N.W.2d at 28 (quoting Davis v. United States, 512 U.S. 452, 459,

114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994)). “If the accused’s request for a

lawyer is ambiguous or equivocal at the time Miranda rights are given, the officers

must clarify the request and/or waiver before proceeding.” Blackburn, 2009 S.D. 37,

¶ 9, 766 N.W.2d at 181. However, “after a knowing and voluntary waiver of the

Miranda rights, law enforcement officers may continue questioning until and unless

the suspect clearly requests an attorney.” Id. ¶ 11, 766 N.W.2d at 182 (quoting

Davis, 512 U.S. at 461, 114 S. Ct. at 2350) (emphasis added); see also Maryland v.

Shatzer, 559 U.S. 98, 110, 130 S. Ct. 1213, 1223, 175 L. Ed. 2d 1045 (2010);

Berghuis, 560 U.S. at 386, 130 S. Ct. at 2263. We have previously explained that

once Miranda rights are waived, “if a suspect makes a reference to an attorney that

is ambiguous or equivocal in that a reasonable officer in light of the circumstances

would have understood only that the suspect might be invoking the right to counsel,

our precedents do not require the cessation of questioning.” Blackburn, 2009 S.D.

37, ¶ 11, 766 N.W.2d at 182 (quoting Davis, 512 U.S. at 459, 114 S. Ct. at 2350).

[¶30.]       Lewandowski’s comment at the jail was not a clear invocation of the

right to counsel. See generally United States v. Mohr, 772 F.3d 1143 (8th Cir. 2014)

(holding “I think I should get [a lawyer]” was not a sufficient invocation of the right


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to counsel); Davis, 512 U.S. 452, 114 S. Ct. 2350 (holding the statement, “[m]aybe I

should talk to a lawyer” was not a clear and unambiguous invocation of suspect’s

rights). It would not have been sufficiently clear to Lunzman that Lewandowski

was asking for an attorney at that time.

[¶31.]       The circuit court found the questioning at the jail was a continuation

of the interrogation from the hospital and this finding is supported by the record.

The evidence shows Lunzman was not finished with his questioning when the

decision was made to transport Lewandowski to the jail and there is no indication

that a significant amount of time passed between the time Lewandowski was

transported from the hospital to the jail. Further, Lunzman’s decision to again

advise Lewandowski of his Miranda rights did not turn the questioning at the jail

into a second interrogation. Because Lewandowski had previously waived his

Miranda rights, Lunzman was not required to stop questioning or clarify

Lewandowski’s comment before continuing his interrogation.

[¶32.]       Finally, we also conclude that there was substantial, independent

evidence, apart from Lewandowski’s statements, to support his convictions. “Where

a reviewing court can find that the record developed at trial establishes guilt

beyond a reasonable doubt, the interest in fairness has been satisfied and the

judgment should be affirmed.” State v. Stanga, 2000 S.D. 129, ¶ 21, 617 N.W.2d

486, 491 (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 3106,

92 L. Ed. 2d 460 (1986)).

[¶33.]       Lewandowski admitted through his own trial testimony that he

entered Jeremy’s home and shot him in the head. The evidence against


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Lewandowski also included testimony that Lewandowski separately confessed to

his son and sister-in-law that he killed Jeremy. There was also eye-witness

testimony from Leslie that Lewandowski aggressively entered the home, uninvited

and unannounced, and immediately sought out Jeremy before shooting him in the

head. In opening and closing statements, defense counsel admitted that

Lewandowski killed Jeremy and was guilty of manslaughter, but claimed that

Lewandowski lacked the premeditation to commit murder and the specific intent to

commit the other offenses.

[¶34.]        There was overwhelming, independent evidence to support each of

Lewandowski’s convictions. In light of the strength of other independently obtained

evidence, Lewandowski’s statements were not needed to establish the factual basis

for his convictions. Therefore, the admission of the evidence was harmless error

even if the statements had been unlawfully obtained.

              2.    Whether the circuit court erred in denying Lewandowski’s motion
                    for specific performance of the plea agreement.

[¶35.]        Lewandowski argues that the circuit court erred in denying his motion

for specific performance of a plea agreement with the State. He claims that the

State improperly rescinded the agreement after the victim’s family objected to the

terms. The State argues that the parties had not reached a meeting of the minds as

to all the essential terms of the plea agreement and therefore a valid contract was

not formed.

[¶36.]        “Generally, plea agreements are contractual in nature and are

governed by ordinary contract principles.” Waldner, 2005 S.D. 11, ¶ 8, 692 N.W.2d

at 190 (quoting State v. Stevenson, 2002 S.D. 120, ¶ 9, 652 N.W.2d 735, 738). This

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Court has recognized the right of a defendant to enforce a plea agreement by

specific performance after a plea has been entered. See State v. Morrison, 2008 S.D.

116, ¶ 5, 759 N.W.2d 118, 120 (explaining that once a defendant has given up his

“bargaining chip” by pleading guilty, due process requires the defendant’s

expectations arising from a plea agreement or promise of the state to be fulfilled);

Vanden Hoek v. Weber, 2006 S.D. 102, ¶ 13, 724 N.W.2d 858, 862 (holding the State

breached a plea agreement at sentencing and explaining “when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be

said to be part of the inducement or consideration, such promise must be fulfilled.”

(quoting Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d

427 (1971))).

[¶37.]          Here, Lewandowski argues he was entitled to specific performance of

the plea agreement before entering a plea of guilty. However, Lewandowski cites

no authority for his claim that specific performance of a plea agreement is a proper

remedy prior to entering a guilty plea. Further, we note that the rules of criminal

procedure require the terms of a plea agreement to be placed on the record, along

with any comments from the victim, and the sentencing court retains discretion to

accept or reject a plea agreement reached by the parties. See SDCL 23A-7-8 to

SDCL 23A-7-11. Finally, Lewandowski makes no claim that he detrimentally relied

or acted upon any alleged promise made by the State in this case.

[¶38.]          Assuming, without deciding, that Lewandowski could obtain specific

performance of a plea agreement before entering a guilty plea, Lewandowski has

failed to show that a plea agreement was reached between the parties at the time of


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the motion. In considering Lewandowski’s claim, the circuit court was left to piece

through unsworn, contested statements from counsel about the discussions during a

phone call. Moreover, defense counsel did not dispute the State’s Attorney’s

recollection that there was no agreement that Lewandowski would plead guilty to

the charge of commission of a felony while armed, a term that the State claimed

was essential to the plea agreement. When the court asked Lewandowski’s counsel

about the scope of his acceptance of the plea agreement, he indicated that he had

agreed during the phone call that his client would agree to plead guilty to

“manslaughter in the first degree, burglary and the aggravated eluding” charges,

but acknowledged he had not committed his client would plead guilty to the firearm

charge. Defense counsel also did not dispute the claim of the State’s Attorney that

any plea agreement was subject to the approval of the victim’s family.

[¶39.]       Because Lewandowski has failed to show an enforceable plea

agreement existed, we affirm the circuit court’s decision denying the motion for

specific performance of the plea agreement.

[¶40.]       GILBERTSON, Chief Justice, and KERN and SALTER, Justices,

concur.




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