State v. Bracht , 1997 S.D. LEXIS 135 ( 1997 )

MILLER, Chief Justice

(concurring in part and dissenting in part).

[¶ 18.] I agree with the majority that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), requires that this case be remanded for a sentencing hearing that complies with the original plea agreement. However, I dissent in part because I do not believe Santobello requires reassignment of the ease to a different judge.

[¶ 19.] As the majority noted, the United States Supreme Court, in Santobello, stated:

The ultimate relief to which petitioner is entitled we leave to the discretion of the state court, which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resen-tenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner[.]

404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added).

[¶20.] The language quoted above from Santobello “mandates nothing.” United States v. Wolff, 127 F.3d 84, 87 (D.C.Cir.1997). All that can really be said about the quoted language is that ultimate discretion is left with the state courts. The United States Supreme Court does not state that remand to a different judge is required in every case, and cites no constitutional authority for such a proposition.

[¶ 21.] It is a basic tenet of constitutional law that United States Supreme Court opinions are not binding on state courts absent a basis in the federal constitution. Harris v. Rivera, 454 U.S. 339, 344-45, 102 S.Ct. 460, 464, 70 L.Ed.2d 530, 535 (1981) (holding “Federal judges have no general supervisory power over state trial judges; they may not require the observance of any special procedures except when necessary to assure compliance with the dictates of the Federal Constitution”); State v. Buendia, 121 N.M. 408, 912 P.2d 284, 288 (N.M.Ct.App.1996) (holding that because a United States Supreme Court opinion did not derive from constitutional requirements, “the holding is not legally binding on the states”) (citations omitted); People v. Gillespie, 136 Ill.2d 496, 145 Ill.Dec. 915, 918, 557 N.E.2d 894, 897 (1990) (stating that as a United States Supreme Court opinion “was not of constitutional magnitude,” the state court was not bound to follow it) (citations omitted).

[¶ 22.] Santobello does not constitutionally mandate that the new hearing on remand be before a different judge, and it specifically leaves the ultimate decision to this Court. The majority asks how we can “legitimately refuse to follow direct precedent from the United States Supreme Court[?]” Three different federal circuit courts of appeal have apparently refused to follow such precedent. See, e.g., Wolff, 127 F.3d at 87; United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984); United States v. Bowler, 585 F.2d 851, 856 (7th Cir.1978).

[¶ 23.] I respectfully suggest that the majority creates an anomalous precedent by requiring remand to a different judge. How can it ignore the legions of cases where this Court has reversed and remanded to the same trial judge when that person himself or herself had committed prejudicial error; yet here, it requires reassignment based upon error committed solely by the prosecutor?

[¶24.] Accordingly, I dissent, and would remand this case back to the same judge.