#27577-r-LSW

2016 S.D. 54

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA


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

      v.

LISA BETH SLOTSKY,                        Defendant and Appellant.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SIXTH JUDICIAL CIRCUIT
                   GREGORY COUNTY, SOUTH DAKOTA

                                 ****

                THE HONORABLE KATHLEEN F. TRANDAHL
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

SANDY J. STEFFEN
Gregory, South Dakota                     Attorney for defendant
                                          and appellant.

                                 ****


                                          CONSIDERED ON BRIEFS
                                          ON APRIL 25, 2016
                                          REASSIGNED
                                          JUNE 30, 2016
                                          OPINION FILED 07/27/16
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WILBUR, Justice (on reassignment).

[¶1.]        Lisa Slotsky agreed to plead guilty to a charge of unauthorized

ingestion of a controlled substance in exchange for the State dismissing the

remaining charges. The State also agreed to recommend a light sentence with no

jail time. The circuit court sentenced Slotsky to five years in prison with one year

suspended. Slotsky appeals her sentence, arguing that the State breached the plea

agreement. We reverse and remand for resentencing.

                                    Background

[¶2.]        After a traffic stop for speeding in March 2015, the State charged

Slotsky with unauthorized ingestion of a controlled substance, driving under the

influence, driving while license is revoked, and speeding. Slotsky pleaded not

guilty. In August 2015, the circuit court held a change-of-plea hearing. At the

hearing, counsel for Slotsky indicated that Slotsky “will plead guilty to the ingestion

charge in Count I. And the court - - or, the State will make a recommendation of

Hope Court with no jail time.” The State also agreed to dismiss the remaining

charges. The court accepted Slotsky’s guilty plea.

[¶3.]        In September 2015, the circuit court held a sentencing hearing. At the

hearing, counsel for Slotsky argued that Hope Court would be an appropriate

sentence to rehabilitate Slotsky and to help her overcome her addiction. When the

court asked for the State’s response, the State explained that Hope Court “was

going to be my recommendation[,] . . . [b]ut, shortly after that plea was entered, it’s

concerning to me the charges that were filed against her in Tripp County, mostly

because those aren’t another substance-abuse charge; those are serious felonies[.]”


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The State also emphasized that Slotsky’s criminal history suggests that Slotsky

may not be “able to maintain any type of long-term sobriety once Hope Court is over

for her.” The State also asserted that Slotsky’s history and the charges in Tripp

County raise “red flags about her ability to, not necessarily be clean and sober, but

her ability to maintain laws and not cause harm to other people in the

community[.]” The State asked the court to “consider that in imposing any type of

sentence.”

[¶4.]        Slotsky objected and asserted that the “plea agreement, stated on the

record, was that [the State] would do this plea . . . and this whole line of argument

is going against what the plea agreement was.” The State responded, “I stated

initially I still don’t have an objection to her being placed on Hope Court, but I think

I have a right to have my concerns on the record for any matter in to the future.” It

further contended, “And I have not asked her to be placed in the penitentiary for

any period of time.” The circuit court sentenced Slotsky to five years in prison with

one year conditionally suspended. Slotsky appeals, asserting that the State

breached the plea agreement.

                                       Analysis

[¶5.]        When analyzing whether the State breaches a plea agreement, we

apply ordinary principles of contract law. State v. Waldner, 2005 S.D. 11, ¶ 8, 692

N.W.2d 187, 190. “Like all contracts, plea agreements include an implied obligation

of good faith and fair dealing.” State v. Morrison, 2008 S.D. 116, ¶ 5, 759 N.W.2d

118, 120 (quoting Erickson v. Weber, 2008 S.D. 30, ¶ 27, 748 N.W.2d 739, 746).

Therefore, “[w]hen the government fails to fulfill a material term of a plea


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agreement, the defendant may seek specific performance or may seek to withdraw

his plea.” State v. Bracht, 1997 S.D. 136, ¶ 6, 573 N.W.2d 176, 178 (quoting United

States v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997)).

[¶6.]        Here, Slotsky contends that the State breached the plea agreement

when the State failed to recommend Hope Court and no jail time. According to

Slotsky, the State impliedly argued for a harsher sentence. In response, the State

asserts that it “did not renege on any deal by implicitly arguing for a tougher

penalty at sentencing.” In the State’s view, it upheld its end of the plea agreement

because it did not object to Slotsky being placed in Hope Court and it never argued

that Slotsky be sentenced to the penitentiary for any length of time.

[¶7.]        “[W]hen 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.” Santobello v. New York, 404 U.S.

257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971); Waldner, 2005 S.D. 11, ¶ 9, 692

N.W.2d at 190. This is because, by pleading guilty, the defendant gives up her

bargaining power. So “[o]nce the defendant has given up his ‘bargaining chip’ by

pleading guilty, due process requires that the defendant’s expectations be fulfilled.”

Morrison, 2008 S.D. 116, ¶ 5, 759 N.W.2d at 120 (quoting Waldner, 2005 S.D. 11,

¶ 13, 692 N.W.2d at 191-92). And it does not matter if the State breaches the plea

agreement inadvertently; “the defendant is still entitled to a remedy for the breach.”

Id. Also, we do not examine whether the circuit court was in fact influenced by the

breach of the agreement. Id. ¶ 6. The inquiry is whether the State met its

obligation. Id.


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[¶8.]        Based on our review, the plea agreement required the State to

recommend that Slotsky be placed in Hope Court and that she receive no jail time.

At sentencing, instead of recommending Hope Court and no jail time, the State

highlighted and detailed Slotsky’s criminal history and suggested that Slotsky

would be unable to maintain sobriety or obey the laws and not cause harm in the

community. As we recognized in Morrison, by impliedly arguing for a harsher

sentence, the State in effect asked the circuit court to disregard the State’s

recommendation under the plea agreement. Id. ¶ 11. And the State’s

characterization of its remarks as not “opposing” Hope Court or no jail time is

nothing more than “a ‘transparent effort to influence the severity of the defendant’s

sentence,’ without fulfilling its end of the bargain.” Id. (quoting Vanden Hoek v.

Weber, 2006 S.D. 102, ¶ 23, 724 N.W.2d 858, 864). The State’s failure to recommend

Hope Court and no jail time is a material and substantial breach of the plea

agreement.

[¶9.]        “We need not reach the question whether the sentencing judge would

or would not have been influenced[.]” Waldner, 2005 S.D. 11, ¶ 9, 692 N.W.2d at

190 (quoting Bracht, 1997 S.D. 136, ¶ 7, 573 N.W.2d at 179). “[S]uch speculation is

of no legal significance”—“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. ¶ 12. “We emphasize that this is in no sense to question the

fairness of the sentencing judge; the fault here rests on the prosecutor, not on the

sentencing judge.” Bracht, 1997 S.D. 136, ¶ 11, 573 N.W.2d at 180 (quoting

Santobello, 404 U.S. at 263, 92 S. Ct. at 499). Because the State breached the plea


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agreement, “the interests of justice and appropriate recognition of the duties of the

prosecution in relation to promises made in the negotiation of pleas of guilty will be

best served by remanding the case to the state courts for further consideration.” Id.

¶ 7.

[¶10.]       In 1997, this Court thoroughly considered the remedy for a breach of a

plea agreement in Bracht, 1997 S.D. 136, 573 N.W.2d 176. We recognized that the

United States Supreme Court, in Santobello, “outlined” certain remedies. Id. ¶ 11

(quoting Santobello, 404 U.S. at 263, 92 S. Ct. at 499). We then exercised our

discretion and adopted the view that, in a case where the relief involves specific

performance of a plea agreement, the remedy is resentencing before a different

judge. Id. ¶ 12. We deemed this remedy necessary “to create a consequence for a

prosecutor’s broken promise” and to avoid the potential of “making the prosecutor’s

breach a clear harmless error[.]” Id. ¶ 12 n.1. “In order to restore him to the

position he would have been in before the State’s breach, [the defendant] must be

sentenced by another judge.” Id. ¶ 13.

[¶11.]       Since Bracht, this Court has consistently applied that “sound logic”

when the State breaches a plea agreement. Waldner, 2005 S.D. 11, 692 N.W.2d

187; Vanden Hoek, 2006 S.D. 102, 724 N.W.2d 858; Morrison, 2008 S.D. 116, 759

N.W.2d 118. And we have done so despite arguments similar to today’s dissenting

argument asserting that Santobello does not necessitate remand to a different judge

for resentencing. See Vanden Hoek, 2006 S.D. 102, 724 N.W.2d 858 (Gilbertson,

C.J., concurring in part and dissenting in part); Waldner, 2005 S.D. 11, 692 N.W.2d

187 (Gilbertson, C.J., concurring in part and dissenting in part); Bracht, 1997 S.D.


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

Therefore, it is of no consequence that “Bracht was not an instance of this Court

exercising the discretion granted by Santobello[.]” Dissent ¶ 19. What matters is

that this Court has on all previous occasions specifically declined to depart from its

view that the remedy for a breach of a plea agreement is remand to a different judge

for sentencing. Waldner, 2005 S.D. 11, ¶ 14 n.3, 692 N.W.2d at 192 n.3 (“the cases

decided after Bracht confirm the view expressed by the Bracht majority that

sentencing should be conducted by a new judge”). There is no need to “determine a

different method of determining remedy.”1 Dissent ¶ 20. We vacate Slotsky’s

sentence and remand for resentencing before a different judge.



1.    The three-factor test proposed by the dissent from United States v. Robin
      does not arise out of a case involving a breach of a plea agreement, and the
      Second Circuit Court of Appeals did not discuss Santobello. 553 F.2d 8 (2d
      Cir. 1977); United States v. Robin, 545 F.2d 775 (2d Cir. 1976). In contrast,
      in a case involving a breach of a plea agreement, the Second Circuit Court of
      Appeals cited to Santobello and held that once the government breaches its
      agreement to take no position at sentencing “compliance with the agreement
      is best assured by requiring resentencing before another district judge.”
      United States v. Corsentino, 685 F.2d 48, 52 (2d Cir. 1982). Similarly
      problematic, no case cited by the dissent supports its claim that resentencing
      by a different judge is an exceptional remedy when the government breaches
      a plea agreement. This is likely because the cases cited by the dissent do not
      involve breaches of plea agreements. See, e.g., United States v. Kennedy, 682
      F.3d 244 (3d Cir. 2012) (remand to a different judge because the sentencing
      judge did not abide by the appellate court’s mandate on first remand); United
      States v. Awadallah, 436 F.3d 125, 137 (2d Cir. 2006) (limiting the scope of
      trial testimony grand jurors will be permitted to hear regarding the
      defendant’s demeanor before the grand jury); United States v. Sears, Roebuck
      & Co., Inc., 785 F.2d 777 (9th Cir. 1986) (examining whether a superseding
      indictment broadened the original indictment). Even if the dissent is
      correct—that applying a three-factor test before remanding to a different
      judge would not violate Santobello—this Court has rejected any invitation to
      depart from its bright-line remedy in a case involving a breach of a plea
      agreement.

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[¶12.]       Reversed and remanded.

[¶13.]       ZINTER, SEVERSON, and KERN, Justices, concur.

[¶14.]       GILBERTSON, Chief Justice, concurs in part and dissents in part.



GILBERTSON, Chief Justice (concurring in part and dissenting in part).

[¶15.]       I agree with the majority opinion in that the State breached the plea

agreement and the defendant should be resentenced. I part with the majority

opinion where it holds that remanding to a different judge is necessary. I would not

depart from this Court’s regular procedure and would remand to the same judge.

[¶16.]       The majority opinion cites to Bracht and the cases that follow to

support its contention that remand to a different judge is required. Majority

opinion ¶¶ 10-11. However, Bracht and the cases since are based on the mistaken

assumption that this result is constitutionally mandated by Santobello, 404 U.S. at

263, 92 S. Ct. at 499. The crux of Santobello is that state courts have discretion in

determining appropriate remedies for a criminal defendant when the state breaches

a plea agreement. “The ultimate relief to which petitioner is entitled we leave to

the discretion of the state court[.]” Id. The opinion then lists possible remedies the

state court could pursue, which include requiring specific performance of the plea

bargain via resentencing by a different judge or allowing the defendant to withdraw

the plea. Id. The language of the opinion does not state that these are the only

remedies permitted by the Constitution. Additionally, Santobello discussed how the

process of plea-bargaining “must be attended by safeguards to insure the defendant

what is reasonably due in the circumstances. Those circumstances will vary, but a


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constant factor is that when a plea rests in any significant degree on a promise or

agreement of the prosecutor . . . such promise must be fulfilled.” Santobello, 404

U.S. at 262, 92 S. Ct. at 499 (emphasis added). This language indicates a spectrum

of acceptable remedies upon a prosecutor’s breach of a plea bargain, not a rigid

choice of remanding before a different judge or withdrawal of a plea.2 The only

constant required is that the State must fulfill its bargain.

[¶17.]         The Eighth Circuit has also held that Santobello does not mandate a

per se rule of remanding to a different judge in United States v. Funchess, 422 F.3d

698, 704 (8th Cir. 2005). In Funchess, the district court improperly computed the

defendant’s base-level offense for purposes of sentencing, and the Eighth Circuit

rejected the defendant’s argument that Santobello required remand to a different

judge. Id. While not a breach-of-plea case such as this, the court held that the

important factor in Santobello was whether the judge had been exposed to

prejudicial information. “In this matter, unlike Santobello, the district court was

not exposed to information that would unduly prejudice resentencing and there is

no evidence that the district court’s decision-making would be tainted by the

previous sentencing. As a result, this case, insofar as it is remanded, should not be

reassigned.” Id. This case presents a similar distinction from Santobello, as


2.       While many courts have remanded to a different judge in breach-of-plea-
         cases, many have done so without a great deal of analysis. These cases
         simply assert the conclusion without analyzing whether the outcome is
         actually mandated by Santobello. E.g., United States v. Navarro, 817 F.3d
         494, 503 (7th Cir. 2016); United States v. Dawson, 587 F.3d 640, 648 (4th Cir.
         2009); United States v. Cudjoe, 534 F.3d 1349, 1357 (10th Cir. 2008); United
         States v. Cachucha, 484 F.3d 1266, 1271 (10th Cir. 2007); United States v.
         Mosley, 505 F.3d 804, 812 (8th Cir. 2007); United States v. Mondragon, 228
         F.3d 978, 981 (9th Cir. 2000).

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nothing that the prosecutor said revealed information that was not already

available in the presentence investigation report.

[¶18.]       Additionally, other federal circuits have rejected the conclusion that

Santobello requires one of only two remedies on remand. In United States v.

VanDam, the court held that while remand to a different judge is the usual remedy,

Santobello does not require it in all cases. 493 F.3d 1194, 1206 (10th Cir. 2007),

The tenth circuit ruled similarly in United States v. Oakes, holding that the general

rule of remand to a different judge is not a rigid rule, and remand to the same judge

is allowed. 680 F.3d 1243, 1247 (10th Cir. 2012).

[¶19.]       The majority opinion seems to concede that Santobello does not require

remand to a different judge but allows the states discretion. Bracht, the majority

opinion argues, is this Court exercising that discretion and choosing to remand to a

different judge. However, this conclusion misreads the Bracht holding. Bracht was

not an instance of this Court exercising the discretion granted by Santobello, but

rather was this Court improperly concluding that Santobello requires remand to a

different judge in breach-of-plea cases. “However, in order to create a consequence

for a prosecutor’s broken promise, Santobello requires resentencing before a

different judge.” Bracht, 1997 S.D. 136, ¶ 12 n.1, 573 N.W.2d 176, 180 n.1

(emphasis added). “We have an obligation to obey the law and to yield to superior

authority. How can we legitimately refuse to follow direct precedent from the United

States Supreme Court on a constitutional issue flowing from an identical set of

facts?” Id. (emphasis added). “[T]here is a sound and logical rationale for

Santobello’s requirement of resentencing by a different judge.” Id. (emphasis added).


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As Bracht and the cases that follow it base their holdings on the mistaken premise

that Santobello requires reassignment in all breach-of-plea-agreement cases, they

are of little precedential value and should be overruled. The majority opinion

cannot now hold that Santobello allows the state discretion in choosing remedies—a

conclusion inconsistent with Bracht and its progeny—while simultaneously holding

up the result in these cases as binding precedent.

[¶20.]       As Santobello does not require remanding to a different judge, as this

Court’s previous cases incorrectly hold, the Court must determine a different

method of determining remedy. “Remanding a case to a different judge is a serious

request rarely made and rarely granted.” Awadallah, 436 F.3d at 135. “In the

absence of proof of personal bias, we remand to a new judge only under ‘unusual

circumstances.’” Sears, Roebuck & Co., 785 F.2d at 780 (quoting United States v.

Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979). “[R]eassignment is an exceptional

remedy, one that we weigh seriously and order sparingly.” Kennedy, 682 F.3d at

258 (analyzing whether federal statutes would require reassignment on remand).

The factors from the oft-cited Robin, 553 F.2d at 10, are appropriate for determining

when one of these rare instances arises:

             (1) whether the original judge would reasonably be expected
             upon remand to have substantial difficulty in putting out of his
             or her mind previously-expressed views or findings determined
             to be erroneous or based on evidence that must be rejected,
             (2) whether reassignment is advisable to preserve the
             appearance of justice, and
             (3) whether reassignment would entail waste and duplication
             out of proportion to any gain in preserving the appearance of
             fairness.

See also Bracht, 1997 S.D. 136, ¶ 28, 573 N.W.2d at 183 (Gilbertson, J., dissenting).

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[¶21.]       Applying the three factors from Robin to this case, I do not think

reassignment is necessary. Regarding the first factor, there was nothing erroneous

about the trial judge’s decision—the fault lies entirely with the prosecutor. Thus,

there would be nothing for the judge to put out of his mind on remand.

[¶22.]       Regarding the second factor, the appearance of justice can be preserved

with the same judge. Again, the defendant was not wronged by any action by the

judge. Once the State fulfills its end of the bargain, the injustice inflicted upon the

defendant will be remedied. Changing judges will not help this process.

[¶23.]       Finally, remanding to a different judge would entail assigning a judge

unfamiliar with the case for sentencing. This would invariably cause inefficiency

that would not occur if the same judge were assigned. The waste of judicial

resources would far outweigh any perceived unfairness.

[¶24.]       I acknowledge that Robin and the other cited cases here do not involve

breach-of-plea agreements. However, if Santobello does not require reassignment, a

premise the majority opinion appears to accept, then there is no reason why breach-

of-plea cases cannot use Robin’s test to determine whether reassignment is

warranted. On a standard case where a judge makes a mistake that requires

remand, we do not reassign, yet here we hold reassignment to be mandatory while

emphasizing the innocence of the judge. State v. Lohnes exemplifies this

inconsistent approach. 344 N.W.2d 686, 688 (S.D. 1984). In Lohnes, the trial judge

accepted a defendant’s guilty plea, and subsequently promised not to sentence the

defendant to life in prison. Id. The judge then sentenced the defendant to 347

years in prison. Id. We emphasized “the trial court was bound to honor its


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promise” and held the sentence to be a breach of that promise, as the defendant had

understood his plea to mean he would at some point be entitled to release, not just

eligible for parole. Id. at 688-89. Despite this breach, we remanded to the same

judge that breached his promise. Id.; see also State v. Shumaker, 2010 S.D. 95,

¶ 12, 792 N.W.2d 174, 177 (remanding to the same judge, even where judge had not

sentenced defendant within the bounds of a binding plea agreement); State v.

Reaves, 2008 S.D. 105, ¶ 11, 757 N.W.2d 580, 584 (remanding to the same judge

where judge accepted plea agreement but then sentenced defendant to term outside

of binding plea agreement’s terms). Yet, in cases where “[w]e emphasize that this is

in no sense to question the fairness of the sentencing judge” we remand to a

different judge. Bracht, 1997 S.D. 136, ¶ 13, 573 N.W.2d at 181 (quoting

Santobello, 404 U.S. at 263, 92 S. Ct. at 499).

[¶25.]       These cases illustrate the inconsistency of the majority opinion’s

reasoning. How can we hold that the sentencing judge is capable of setting aside

bias when she was responsible for a breached plea bargain but incapable when the

breach was in no way her fault? A better approach would be to apply the Robin

factors on a case-by-case basis, regardless of who breached the agreement. I would

remand to the same judge who previously sentenced the defendant.




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