State v. Slotsky

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2016 S.D. 54
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
LISA BETH SLOTSKY, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
GREGORY COUNTY, SOUTH DAKOTA
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THE HONORABLE KATHLEEN F. TRANDAHL
Judge
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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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