#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
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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


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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,

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“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.


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[¶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.




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[¶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
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             (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

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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


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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


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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


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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.


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[¶20.]       Reversed and remanded.

[¶21.]       GILBERTSON, Chief Justice, and ZINTER, KERN, and JENSEN,

Justices, concur.




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