#25865-a-LSW

2012 S.D. 7

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                  ****
STATE OF SOUTH DAKOTA,                   Plaintiff and Appellee,

     v.

CHRIS L. JONES,                          Defendant and Appellant.


                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                  BROOKINGS COUNTY, SOUTH DAKOTA

                                  ****

                   THE HONORABLE DAVID R. GIENAPP
                               Judge

                                  ****

MARTY J. JACKLEY
Attorney General

DONALD E. TINKLEPAUGH
Assistant Attorney General
Pierre, South Dakota                     Attorneys for plaintiff
                                         and appellee.


RICK A. RIBSTEIN of
McCann, Ribstein, & McCarty, PC
Brookings, South Dakota                  Attorneys for defendant
                                         and appellant.


                                  ****
                                         ARGUED OCTOBER 4, 2011

                                         OPINION FILED 02/01/12
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WILBUR, Justice

[¶1.]        Chris Jones entered into a plea agreement with the State. Under the

terms of the plea agreement, Jones agreed to plead guilty to three counts of second-

degree rape and one count of kidnapping. After sentencing, Jones filed a motion to

reconsider the sentence based upon an alleged violation of the plea agreement by

the State. The trial court granted the motion and held a resentencing hearing. At

the hearing, the trial court denied Jones’s oral motion for a different sentencing

judge. Jones appeals, arguing that he was entitled to resentencing before a

different judge and that his sentence is cruel and unusual punishment. We affirm.

                 FACTS AND PROCEDURAL BACKGROUND

[¶2.]        Jones confessed to raping three women during a two-month period in

Brookings County, South Dakota. Following his confession, the State charged Jones

in a nine-count indictment. Before trial, the State wrote Jones’s counsel a letter

containing a proposed plea agreement. Under the proposed plea agreement, the

State would dismiss five of the charges against Jones in exchange for Jones’s guilty

plea to the four remaining counts. Specifically, the letter provided:

             In order to avoid the trial and further emotional trauma to the
             three victims, on behalf of the State I would propose that Jones
             enter pleas of guilty to Counts 2, 4, 5, and 7 with the remaining
             5 Counts being dismissed. Additionally, the State would
             recommend a cap of seventy (70) years maximum. That is not to
             exceed seventy (70) years of unsuspended penitentiary time. Of
             course this would be only a recommendation, but I do not believe
             [the trial court judge] has ever gone beyond that which the State
             has recommended as a cap and it certainly could be less.

(Emphasis added.)




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[¶3.]        Jones accepted the plea agreement and entered guilty pleas. The State

placed the final plea agreement on the record at the change of plea hearing.

However, approximately six weeks later at sentencing, the State failed to verbalize

the plea agreement. Jones did not object to the State’s failure to verbalize the

agreement.

[¶4.]        Three weeks after sentencing, Jones filed a motion to reconsider the

sentence. In reviewing the motion, the trial court found that the State’s failure to

verbalize the plea agreement to the court at the time of sentencing was a material

breach of the plea agreement and granted Jones’s motion. At resentencing, Jones

made an oral motion for a new sentencing judge. Jones cited three decisions by this

Court for the proposition that the remedy for a breach of a plea agreement is

resentencing before a different judge. The trial court denied the motion. At

resentencing, Jones received a sentence totaling 15 years less than his first

sentence, but still in excess of the 70 years the State recommended pursuant to the

plea agreement.

                                      ANALYSIS

[¶5.]        1.     According to Puckett v. United States, we review for plain
                    error a forfeited claim that the State has violated the
                    terms of a plea agreement.

[¶6.]        Before determining the merits of Jones’s argument, we must first

determine the appropriate standard of review. Both parties assert that this is a

constitutional issue which this Court should review de novo. Despite the parties’

agreement, “[o]nce appellate jurisdiction is established . . . the court has to decide . .

. under what framework, scrutiny, or division of labor it will review [the issues].”


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Oldham-Ramona Sch. Dist. No. 39-5 v. Ust, 502 N.W.2d 574, 580 (S.D. 1993)

(emphasis added) (quoting 1 Steven A. Childress & Martha S. Davis, Federal

Standards of Review § 1.03 (1992)). In deciding the appropriate standard of review,

“[w]e repeatedly define or refine standards of review as new issues come before us

and apply those standards to the cases in controversy we are reviewing.” Id. As a

result of the United States Supreme Court decision Puckett v. United States, 556

U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), we reassess our standard of

review for appeals involving a prosecutorial breach of a plea agreement.

[¶7.]        In Puckett, the Supreme Court held that the automatic reversal rule

described in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427,

only applies “when objection to the Government’s breach of a plea agreement has

been preserved . . . .” Puckett, 556 U.S. at ___, 129 S. Ct. at 1432. There has been

some disagreement on this Court as to whether Santobello always requires

resentencing before a different trial court judge. See, e.g., State v. Bracht, 1997 S.D.

136, 573 N.W.2d 176 (Miller, C.J., concurring in part and dissenting in part)

(Gilbertson, J. concurring in part and dissenting in part). However, we do not need

to revisit whether Santobello always requires resentencing before a different judge

in order to resolve this case if Jones did not timely object. 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 52(b). Puckett, 556 U.S. at

___, 129 S. Ct. at 1433.




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[¶8.]        South Dakota has adopted Rule 52(b), and this Court, like the United

States Supreme Court, has applied plain error review to issues “not preserved for

appellate review.” State v. Thomas, 2011 S.D. 15, ¶ 14, 796 N.W.2d 706, 711; see

also SDCL 23A-44-15. Therefore, in order to determine whether or not we review

for plain error according to Puckett and SDCL 23A-44-15, we must first determine

whether Jones has preserved the issue for review.

[¶9.]        2.     Because Jones did not contemporaneously object to the
                    State’s violation of the plea agreement, he forfeited his
                    claim.

[¶10.]       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. See Puckett, 556 U.S. at ___, 129 S. Ct. at 1429 (“Failure to abide

by this contemporaneous-objection rule ordinarily precludes the raising on appeal of

the unpreserved claim of trial error.”). Jones did not object to the State’s breach of

the plea agreement at sentencing. Rather, Jones filed a motion to reconsider the

sentence approximately three weeks after the trial court’s initial sentence.

[¶11.]       The Eighth Circuit Court of Appeals decision in United States v. Smith

provides further guidance as to what constitutes a “contemporaneous objection.”

590 F.3d 570 (8th Cir. 2009). The defendant in Smith, like Jones, did not object to

the prosecutor’s alleged breach at the sentencing hearing. Id. at 576. On appeal,

the defendant argued that despite his failure to object at sentencing, the court

should review his appeal de novo because “the district court addressed the merits of

[the defendant’s] claim in its order addressing [the defendant’s] motion for release




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pending appeal” and thus he adequately preserved the claim for appeal. Id. The

court rejected this argument, reasoning:

              The Supreme Court in Puckett made clear that in order to obtain
              a de novo review on appeal of a breach of plea agreement claim,
              a defendant must raise such an objection at the time of
              sentencing to allow the district court the opportunity to correct
              the alleged error. . . . Applying a de novo review to [the
              defendant’s] claim absent a contemporaneous objection at the
              time of sentencing would also undermine the concern expressed
              by the Supreme Court in Puckett that litigants in this situation
              would be encouraged to “sandbag” and raise the error only if the
              result is not in their favor.

Id. at 577.

[¶12.]        Here, as in Smith, Jones did not object at sentencing and give the trial

court the opportunity to correct the alleged error before imposing a sentence.

Moreover, if we treated Jones’s motion to reconsider as timely and reviewed his

appeal de novo, we would ratify Jones’s decision to “wait[] to see if the sentence . . .

strikes him as satisfactory” before raising his objection. See Puckett, 556 U.S. at

___, 129 S. Ct. at 1431. Consequently, we conclude that Jones’s motion to

reconsider does not qualify as a contemporaneous objection and we review for plain

error.

[¶13.]        3.     Jones has not demonstrated that the violation of the plea
                     agreement resulted in plain error.

[¶14.]        “We invoke our discretion under the plain error rule cautiously and

only in ‘exceptional circumstances.’” State v. Bowker, 2008 S.D. 61, ¶ 46, 754

N.W.2d 56, 70 (quoting State v. Robinson, 1999 S.D. 141, ¶ 17, 602 N.W.2d 730,

735). “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 affect[s] the fairness,
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integrity, or public reputation of the judicial proceedings.’” State v. Beck, 2010 S.D.

52, ¶ 11, 785 N.W.2d 288, 293 (quoting State v. Mulligan, 2007 S.D. 67, ¶ 26, 736

N.W.2d 808, 818); see also Puckett, 556 U.S. at ___, 129 S. Ct. at 1426 (applying the

same plain error standard of review).

[¶15.]         In its order granting Jones’s motion to reconsider, the trial court found

that the State’s failure to verbalize the plea agreement to the trial court at the time

of sentencing constituted a material breach of the plea agreement.* We agree. If

the State enters into a plea agreement to recommend a particular sentence, the

State must make the recommendation at sentencing. Vanden Hoek v. Weber, 2006

S.D. 102, ¶ 24, 724 N.W.2d 858, 864-65. Thus, under the precedent of this Court,

Jones has established that there was (1) error and (2) that it was plain.

[¶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. ¶ 14 (quoting State v.

Waldner, 2005 S.D. 11, ¶ 13, 692 N.W.2d 187, 191-92). However, Jones has failed to

make an additional showing of prejudice as required under the third prong of plain

error review. See U.S. v. Olano, 507 U.S. 725, 735, 113 S. Ct. 1770, 1778, 123 L. Ed.

2d 508 (1993); see also Bowker, 2008 S.D. 61, ¶ 46, 754 N.W.2d at 70 (citing State v.




*        Jones also argues that State’s comments at sentencing went beyond what
         was contemplated by the plea agreement. The trial court disagreed that the
         comments violated the plea agreement which stated, in pertinent part,
         “[f]inally, the State would retain the opportunity to make a statement at the
         time of sentencing.” We agree with the trial court that the State’s comments
         did not violate the plea agreement.
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Nelson, 1998 S.D. 124, ¶ 7, 587 N.W.2d 439, 443) (“When plain error is alleged, the

defendant bears the burden of showing the error was prejudicial.”).

[¶17.]       Specifically, 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 including

its recommendation of a 70-year cap. 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.” Olano, 507 U.S. at 741, 113 S. Ct. at 1781.

We need not reach the issue of whether the error seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.

[¶18.]       4.     Jones’s sentence is not cruel and unusual punishment.

[¶19.]       Jones’s second issue on appeal is whether his sentence violates either

the United States Constitution or the South Dakotas Constitution’s prohibition of

cruel and unusual punishment. “[W]hen a sentence is challenged on constitutional

grounds as being cruel and unusual, we apply the proportionality standard from

State v. Bonner, 1998 S.D. 30, 577 N.W.2d 575.” State v. Overbey, 2010 S.D. 78, ¶

13, 790 N.W.2d 35, 40. In Bonner, we stated that “to assess a challenge to

proportionality we first determine whether the sentence appears grossly

disproportionate. To accomplish this, we consider the conduct involved, and any

relevant past conduct, with utmost deference to the Legislature and the sentencing

court. If these circumstances fail to suggest gross disproportionality, our review


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ends.” Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580. In keeping with giving the

Legislature the utmost deference, “we rarely overturn sentences within the

statutory maximum.” State v. McKinney, 2005 S.D. 74, ¶ 26, 699 N.W.2d 460, 468.

[¶20.]       The trial court imposed consecutive sentences of 25 years for two

counts of second-degree rape; 30 years for a third count of second-degree rape; and

75 years for kidnapping, with 55 of those years suspended, to run concurrent with

the rape sentences. This sentence is well within the statutory maximum. Under

the statutory maximum, the trial court could have sentenced Jones to 50 years for

each of the rape convictions and a life sentence for the kidnapping conviction. See

SDCL 22-6-1(4) (providing that the maximum penitentiary sentence for Class 1

felonies, which includes second-degree rape, is 50 years imprisonment); SDCL 22-6-

1(3) (providing that the maximum penitentiary sentence for Class C felonies, which

include kidnapping, is life imprisonment).

[¶21.]       Moreover, the sentence is not grossly disproportionate given Jones’s

conduct. In arriving at Jones’s sentence, the trial court balanced Jones’s poor

upbringing with his crimes. The trial court noted that Jones subjected three young

women to violent sexual crimes. A psychosexual analysis of Jones determined that

Jones was at a high risk for reoffending. Given Jones’s conduct, and that the

sentence is well within the statutory maximums for his crimes, the sentence is not

grossly disproportionate.

[¶22.]       Affirmed.

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

SEVERSON, Justices, concur.


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