#26304, #26306-a-DG
2012 S.D. 84
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
(#26304)
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TYLER OLVERA, Defendant and Appellant.
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(#26306)
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
TYLER MUGGINS OLVERA, Defendant and Appellant.
****
APPEALS FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE WALLY EKLUND
Judge
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MARTY J. JACKLEY
Attorney General
FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
ARNOLD D. LAUBACH, JR.
Pennington County Public Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 6, 2012
OPINION FILED 12/05/12
#26304, #26306
GILBERTSON, Chief Justice
[¶1.] Tyler Olvera appeals his sentences for DUI (fifth offense) and
Distribution of a Controlled Substance. Olvera argues that the Office of the
Attorney General breached the plea agreement when, at sentencing, it initially
argued against concurrent sentences, but then, when made aware of the plea
agreement, it withdrew its argument against concurrent sentences. Because Olvera
did not contemporaneously object to the alleged violation of the plea agreement, and
does not establish that the alleged error caused him prejudice, the sentences are
affirmed.
FACTS
[¶2.] Olvera was arrested on June 12, 2011, for DUI. He was later indicted
and charged with felony DUI (fifth offense) and misdemeanor Driving Under
Revocation. A week after this indictment, he was charged by indictment on two
counts of Distribution of a Controlled Substance. The Pennington County State’s
Attorney prosecuted the DUI charge (appeal #26304) and the Attorney General’s
office prosecuted the distribution charges (appeal #26306).
[¶3.] A plea agreement was reached in both cases. Pursuant to the
agreements, the state’s attorney’s office agreed to dismiss the Driving Under
Revocation charge and agreed to recommend that the DUI sentence run concurrent
to the sentence imposed for the distribution charges. The Attorney General’s office
agreed to dismiss one of the distribution charges, cap its sentence request at five
years in the penitentiary, and to not object to the sentence being served concurrent
to the DUI charge.
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[¶4.] At Olvera’s sentencing hearing, the Attorney General’s office * initially
argued against running the sentences concurrently. Olvera’s counsel then pointed
out an email setting forth the plea agreement. The Assistant Attorney General
then changed his argument, indicating that he was recommending concurrent
sentences. The record contains no indication that Olvera’s counsel objected to the
Assistant Attorney General’s initial argument. In fact, the sentencing transcript
contains no interjection from defense counsel during the Assistant Attorney
General’s remarks. The circuit court sentenced Olvera to six years for the DUI and
five years for the Distribution of Controlled Substance charge, the sentences to be
served consecutively.
[¶5.] On appeal, Olvera argues that the State breached the plea agreement,
requiring that the sentences in both cases be vacated and the cases remanded for
resentencing in front of a different judge.
ANALYSIS AND DECISION
[¶6.] Olvera relies on this Court’s decision in State v. Morrison, 2008 S.D.
116, 759 N.W.2d 118. In Morrison, the plea agreement called for the State to
refrain from objecting to the defendant’s request for a suspended imposition of
sentence. Id. ¶ 2. At the sentencing hearing, the prosecutor expressed his
dissatisfaction with the defendant’s rendition of the facts provided during the
presentence investigation. Id. ¶ 3. That dissatisfaction included reminding the
sentencing court that it was not bound to suspend imposition of sentence. Id. On
* The Assistant Attorney General appearing at the sentencing was not the
same Assistant Attorney General who had brokered the plea agreement.
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appeal, defendant argued that the State had breached the plea agreement. Id. ¶ 1.
This Court identified the issue as follows: “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. ¶ 6 (quoting State v. Waldner, 2005 S.D. 11,
¶ 12, 692 N.W.2d 187, 191). This Court noted that, in these situations, the
defendant is typically not required to establish prejudice.
In order to preserve the integrity of plea bargaining procedures
and public confidence in the criminal justice system, a petitioner
is generally entitled to the enforcement of a plea agreement
without showing a tangible harm resulting from that breach.
Because the State breached the plea agreement, [defendant] was
not afforded a fair and reliable sentencing proceeding.
Id. ¶ 12 (internal quotation marks and citations omitted). This Court reversed the
sentence and remanded for resentencing by a new judge. Id. ¶ 13.
[¶7.] Morrison involved a situation in which the defendant’s counsel
contemporaneously objected to the prosecution’s breach of the plea agreement
during the sentencing hearing. Id. ¶ 3. The current record contains no indication
that Olvera’s counsel objected, nor does Olvera indicate any objection was made, to
the Assistant Attorney General’s alleged breach. We have recently noted the
importance of this distinction. In State v. Jones, 2012 S.D. 7, 810 N.W.2d 202, this
Court analyzed the United States Supreme Court decision Puckett v. United States,
556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), regarding the importance of
a contemporaneous objection to an alleged breach of a plea agreement. “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
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#26304, #26306
52(b).” Jones, 2012 S.D. 7, ¶ 7, 810 N.W.2d at 204-05 (citing Puckett, 556 U.S. at
142-43, 129 S. Ct. at 1433).
[¶8.] “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.” Id. ¶ 10. Here, as in Jones, Olvera did not make a
contemporaneous objection at sentencing. Therefore, we analyze the circuit court’s
sentence for plain error. See id. ¶ 12.
[¶9.] This Court’s review under the plain error doctrine is well-settled.
We invoke our discretion under the plain error rule cautiously
and only in exceptional circumstances. 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
affects the fairness, integrity, or public reputation of the judicial
proceedings.
Id. ¶ 14 (internal quotation marks and citations omitted).
[¶10.] The first inquiry is the presence of error. Olvera argues that the
comments made by the Attorney General’s office constitute a material breach of the
plea agreement. In support, Olvera relies on this Court’s Morrison decision, as
addressed above.
[¶11.] The State argues that the Attorney General’s recantation of the initial
argument against concurrent sentences, coupled with the subsequent
recommendation for concurrent sentences, cured any potential breach. Therefore,
according to the State, there has been no substantial or material breach of the plea
agreement. In support, the State cites State v. Knox, a Wisconsin case with similar
facts. 570 N.W.2d 599 (Wis. Ct. App. 1997). In Knox, the court found that the
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#26304, #26306
prosecutor’s “initial request for a sentence harsher than called for by the [plea]
agreement” was not a substantial breach. Id. at 600. There is, however, authority
to the contrary. See, e.g., State v. Fannon, 799 N.W.2d 515, 522 (Iowa 2011) (finding
that a breach of a plea agreement could not be cured by the “withdrawal of the
improper remarks”).
[¶12.] Assuming without deciding that the Assistant Attorney General’s
comments constituted a breach, a breach of the plea agreement establishes “(1)
error and (2) that it was plain.” Jones, 2012 S.D. 7, ¶ 15, 810 N.W.2d at 206. As in
Jones, finding a breach also implicates the defendant’s substantial rights. See id. ¶
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. (quoting Vanden Hoek v. Weber, 2006 S.D.
102, ¶ 14, 724 N.W.2d 858, 863).
[¶13.] Under the third prong of plain error analysis, however, Olvera must
establish prejudice. In Jones, the defendant was unable to establish prejudice
because subsequent to the breach, proceedings were conducted wherein the State
did not breach the plea agreement.
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[.]
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#26304, #26306
Id. ¶ 17. Here, however, no such motion for reconsideration was made. After
hearing from all parties, including the Assistant Attorney General’s remarks both
for and then against consecutive sentences, the circuit court imposed the sentences,
which included that the sentences be served consecutively. That no subsequent
proceedings were conducted where the plea agreement was followed does not relieve
Olvera from establishing prejudice. As the Supreme Court stated in Puckett, “[T]he
defendant whose plea agreement has been broken by the Government will not
always be able to show prejudice, either because he obtained the benefits
contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to
request) or because he likely would not have obtained those benefits in any event
(as is seemingly the case here).” 556 U.S. at 141-42, 129 S. Ct. at 1432-33.
[¶14.] Olvera has made no attempt to show prejudice, nor is prejudice
apparent from the record. Absent such a showing, Olvera’s argument fails.
“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.’”
Jones, 2012 S.D. 7, ¶ 17, 810 N.W.2d at 206 (quoting United States v. Olano, 507
U.S. 725, 741, 113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993)).
Conclusion
[¶15.] Whether or not the State breached the plea agreement, Olvera made
no contemporaneous objection to the alleged breach at the sentencing hearing. This
Court therefore analyzes for plain error. Under a plain error analysis, Olvera does
not establish that he was prejudiced by the alleged breach; therefore his argument
fails.
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[¶16.] Affirmed.
[¶17.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
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