State v. Shumaker ( 2010 )


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  • #25599-rem-PER CURIAM
    
    2010 S.D. 95
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    * * * *
    STATE OF SOUTH DAKOTA,                        Plaintiff and Appellee,
    v.
    STEVEN LEE SHUMAKER,                          Defendant and Appellant.
    * * * *
    APPEAL FROM THE CIRCUIT COURT OF
    THE SECOND JUDICIAL CIRCUIT
    MINNEHAHA COUNTY, SOUTH DAKOTA
    * * * *
    HONORABLE PETER H. LIEBERMAN
    Judge
    * * * *
    MARTY J. JACKLEY
    Attorney General
    FRANK GEAGHAN
    Assistant Attorney General
    Pierre, South Dakota                          Attorneys for plaintiff
    and appellee.
    NICOLE J. LAUGHLIN
    Office of the Minnehaha
    County Public Defender
    Sioux Falls, South Dakota                     Attorneys for defendant
    and appellant.
    * * * *
    CONSIDERED ON BRIEFS
    ON NOVEMBER 15, 2010
    OPINION FILED 12/15/10
    #25599
    PER CURIAM.
    [¶1.]        Steven Shumaker appeals his conviction for fourth offense DUI. The
    issue is whether the trial court erred in sentencing Shumaker to five years in the
    state penitentiary, with two years conditionally suspended. Because the trial court
    accepted Shumaker’s binding plea agreement, which called for a sentence no
    greater than three years, the court erred when it sentenced Shumaker.
    Background
    [¶2.]        On June 18, 2009, Defendant Steven Shumaker was arrested for
    Driving Under the Influence. Shumaker was charged by Indictment with Driving
    Under the Influence. The State also filed a Part 2 Information charging Shumaker
    with Fourth Offense Driving Under the Influence pursuant to SDCL 32-23-4.6,
    which is a Class 5 felony punishable by five years imprisonment.
    [¶3.]        The State negotiated a plea agreement with Shumaker that called for
    a cap of three years penitentiary time. Nothing in the record suggests that the plea
    agreement called for any suspended penitentiary time beyond the three years. On
    January 6, 2010, a plea hearing was conducted. The trial court fully advised
    Shumaker of his rights. The relevant part of the plea hearing went as follows:
    THE COURT: Is there any agreement I should be aware of,
    Miss Laughlin?
    MISS LAUGHLIN: There is, Your Honor. The agreement is a
    cap of three years penitentiary time . . . .
    ...
    THE COURT: Instead of facing five years, you would be facing
    no more than three years. Do you have any questions about
    that?
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    THE DEFENDANT: No, Your Honor.
    THE COURT: There will also be suspended penitentiary time.
    Do you understand that?
    THE DEFENDANT: Yes, Your Honor.
    THE COURT: And you and your client understand under State
    versus Reeves [sic] the only thing the Court can bind itself to is
    no more than three years lock-up time?
    MISS LAUGHLIN: Yes, Your Honor.
    THE COURT: Mr. Shumaker, are you ready to enter your plea
    at this time?
    THE DEFENDANT: Yes, sir.
    After this exchange, Shumaker pleaded guilty to Driving Under the Influence 0.08
    Percent or More Alcohol by Weight in the Blood under SDCL 32-23-1(1) and
    admitted to Fourth Offense Driving Under the Influence under SDCL 32-23-4.6.
    The court found that a factual basis existed and accepted the plea as “voluntary and
    intelligent.”
    [¶4.]           At the sentencing hearing on February 23, 2010, the court sentenced
    Shumaker to five years in the state penitentiary with two years conditionally
    suspended. Shumaker appeals his sentence arguing that the trial court accepted
    the binding plea agreement that capped his penitentiary time at three years, but
    then failed to sentence him within the terms of the agreement.
    Standard of Review
    [¶5.]           Whether a trial court complied with a binding plea agreement is a
    question of law. State v. Reaves, 
    2008 S.D. 105
    , ¶ 4, 
    757 N.W.2d 580
    , 582 (stating
    that “we employ a de novo review to determine whether the circuit court complied
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    #25599
    with the binding plea agreement”). We use the de novo standard of review when
    considering questions of law. 
    Id.
    Analysis and Decision
    [¶6.]         “We recognize that generally circuit courts are not bound by plea
    agreements.” Id. ¶ 7. See SDCL 23A-7-9. Nevertheless, if a trial court accepts a
    binding plea agreement, it is bound to honor its promise to sentence the defendant
    within the bounds of the agreement. Reaves, 
    2008 S.D. 105
    , ¶ 7, 
    757 N.W.2d at
    582
    (citing State v. Lohnes, 
    344 N.W.2d 686
    , 688 (S.D. 1984)). 1 If a trial court were not
    bound, it would not be required under SDCL 23A-7-10 (Rule 11(e)(3)) to “inform the
    defendant that it will embody in the judgment and sentence the disposition
    provided for in the plea agreement.”
    [¶7.]         The record indicates that the trial court accepted the binding plea
    agreement. During the plea hearing, the trial court stated, “[Shumaker] has been
    advised of his legal rights and the charge against him, the penalty he faces, both
    under the statute and under this plea agreement.” The trial court’s use of “this”
    plea agreement, implies acceptance of the terms of the plea agreement, which
    1.      There is no indication that the plea agreement was the non-binding type of
    plea agreement under SDCL 23A-7-8(2) that was present in State v. Rich, 
    305 N.W.2d 390
     (S.D. 1981). In an SDCL 23A-7-8(2) plea (recommendation)
    agreement, “it is part of the agreement itself that the parties understand that
    the court is not bound by the recommendation or request. Non-acceptance of
    the request is not a rejection of the agreement[.]” Id. at 392-93. Thus, if the
    court accepts the non-binding (SDCL 23A-7-8(2)) agreement, but does not
    follow the recommendation, the defendant has no right to withdraw his or her
    plea. Id. See State v. Lee, 
    1997 S.D. 26
    , ¶ 8, 
    560 N.W.2d 552
    , 554 (holding
    trial “court’s non-acceptance of the requested sentence was not a rejection of
    the plea bargain [made pursuant to SDCL 23A-7-8(2)] and [defendant] had no
    right to withdraw his guilty plea”).
    -3-
    #25599
    capped any penitentiary time—suspended or not—at three years. At the sentencing
    hearing, the court again declared its acceptance of the plea agreement:
    THE COURT: Well, you can thank your attorney, Mr.
    Shumaker. She saved you from two years in the penitentiary.
    The legislature says you can receive up to five years. The
    agreement is that you can only receive up to three. Given the
    number of DUIs you have on your record, you have to expect
    maximum sentences from now on. Your lawyer did an amazing
    job for you, got it down from five to three. That’s the agreement.
    I’ll live with it.
    (Emphasis added.)
    [¶8.]         Furthermore, the record indicates that the trial court did not explicitly
    reject the plea agreement and advise Shumaker pursuant to SDCL 23A-7-11. If a
    court rejects a plea agreement before a plea has been entered, SDCL 23A-7-11
    provides that the court shall “on the record, inform the parties of this fact” and
    advise the defendant that it is not bound by the agreement. The court never
    informed the parties it was rejecting the plea agreement. Additionally, the court
    must advise “that if [defendant] persists in his guilty plea . . . the disposition of the
    case may be less favorable to him than that contemplated by the plea agreement.”
    
    Id.
     The trial court did not advise Shumaker of this either.2
    [¶9.]         The State asserts Shumaker knew, before pleading guilty, that the
    trial court intended to reject the plea agreement and sentence him to suspended
    penitentiary time that could make his total sentence up to five years long.
    Shumaker argues that the trial court told him it would sentence him to no more
    2.      Even though the court advised Shumaker that it was “only” binding itself to
    “no more than three years lock-up time,” this statement was still within the
    bounds of the plea agreement and does not equate with a rejection of the plea
    agreement or any of the required advisements of SDCL 23A-7-11.
    -4-
    #25599
    than three years in the penitentiary, with a portion of that three-year penitentiary
    maximum suspended at the court’s discretion. The trial court told Shumaker that
    “[t]here will also be suspended penitentiary time” after explaining that he “would be
    facing no more than three years.” The language used by the trial court did not
    clarify whether the discretionary suspended penitentiary time applied to the three
    years capped by the plea agreement versus the two years dropped from the
    maximum legislative sentence of five years. At no time did the trial court expressly
    state that the suspended time was separate from or in addition to the “no more than
    three years.” The trial court’s ambiguous reference to suspended time did not
    inform Shumaker that the court was rejecting the plea agreement. Rather, taken in
    the context of the trial court’s other statements, the trial court agreed that a portion
    of Shumaker’s three-year maximum penitentiary sentence would be suspended at
    its discretion.
    [¶10.]        Shumaker argues that the trial court’s sentence of five years with two
    years conditionally suspended did not comply with the court’s acceptance of the plea
    agreement, which capped his sentence at three years. The court promised
    Shumaker “no more than three years lock-up time” under State v. Reaves. In
    Reaves, the question was whether the trial court’s sentence of twenty years with ten
    years suspended comported with the court’s acceptance of the plea agreement
    capping the sentence at fifteen years. 
    2008 S.D. 105
    , ¶¶ 7, 9, 
    757 N.W.2d at 582-83
    .
    We concluded that “a sentence includes both the amount of time ordered to be
    served in jail and the amount of time suspended.” Id. ¶ 10. Explaining this
    conclusion, we stated, “It is safe to assume that if Reaves violates the conditions [of
    -5-
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    the time suspended], a court would reinstate some, if not all, of the suspended
    years, which could potentially result in a total prison term of 20 years” that would
    improperly exceed the fifteen-year sentence cap. Id. ¶ 11.
    [¶11.]       Likewise, it is safe to assume that if Shumaker violates the conditions
    of his suspended time, a court would reinstate some, if not all of the two suspended
    years. This would result in a “lock-up time” over three years—which would
    contravene the trial court’s explicit promise of “no more than three years lock-up
    time” and the plea agreement’s cap of three years penitentiary time. The trial
    court’s sentence of five years with two years conditionally suspended was improper.
    Conclusion
    [¶12.]       The trial court’s improper sentence in Reaves resulted in a remand of
    the case for the resentencing of the defendant within the bounds of the plea
    agreement. Id. This case demands the same result. The case is remanded for
    resentencing.
    [¶13.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,
    MEIERHENRY, and SEVERSON, Justices, participating.
    -6-
    

Document Info

Docket Number: 25599

Judges: Gilbertson, Konenkamp, Meierhenry, Per Curiam, Severson, Zinter

Filed Date: 12/15/2010

Precedential Status: Precedential

Modified Date: 11/12/2024