State v. Bracht

• Decision Date: 23 October 1997
• Docket Number: No. 20149,20149
• Citation: 1997 SD 136,573 N.W.2d 176
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jaison E. BRACHT, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 176

573 N.W.2d 176

1997 SD 136

STATE of South Dakota, Plaintiff and Appellee, v. Jaison E. BRACHT, Defendant and Appellant.

No. 20149.

Supreme Court of South Dakota.

Considered on Briefs Oct. 23, 1997.

Decided Dec. 17, 1997.

Mark Barnett, Attorney General, Timothy Bartlett, Assistant Attorney General, Pierre, for plaintiff and appellee.

Paul G. Riley, Vermillion, for defendant and appellant.

KONENKAMP, Justice.

¶1 Jaison E. Bracht appeals his sentence for third offense driving while under the influence of alcohol (DUI). Because the prosecutor breached the plea agreement, we vacate the sentence contained in the judgment and remand for resentencing before a different judge as required by the United States Supreme Court.

FACTS

¶2 Bracht was charged with third offense DUI. During arraignment, his defense counsel outlined the following plea bargain:

May it please the Court, Paul Riley appearing with and on behalf of Jaison Bracht. Your Honor, this is the initial appearance on this case. The defendant requested a continuance and waived application of the day rule while he completed inpatient alcohol treatment. That was initially done, and the state had indicated they would not object to him receiving credit for that before pronouncing--in pronouncing sentence. We have also agreed that the defendant will enter a plea of guilty to DUI third offense in exchange for dismissal of Count II [i.e., driving with a revoked license], and the state agrees it will not resist [a] request for [a] suspended imposition of sentence. We intend to request a pre-sentence report. (emphasis added).

The state's attorney registered no objection to this rendition of the plea bargain.

¶3 After the plea bargain was explained, the trial court advised Bracht of the charge, his rights, the presumption of innocence, the consequences of a guilty plea and the consequences of admitting his prior DUI convictions. Concerning the plea bargain, the trial court cautioned Bracht that:

I want you to understand that any recommendation that may be given by your counsel or the state is merely a recommendation.

It doesn't bind the Court. That if we go through with this deal here and you enter your pleas and you're convicted of a Class 6 felony, I will order a pre-sentence report. And I'll consider, of course, the option of a suspended imposition of sentence, but I'll consider the other sentencing options that I have as well. I'll also listen to counsel. And we'll have sentencing on another date, and I'll make a determination as to what's appropriate under the circumstances of this case. Do you understand that?

Bracht said he understood the trial court's admonishment, entered a guilty plea to DUI and admitted the allegations of the Part II information for third offense DUI. The trial court accepted Bracht's plea and admission and ordered a pre-sentence investigation and report.

¶4 At sentencing, Bracht's counsel argued on Bracht's behalf for a suspended imposition of sentence. The state's attorney responded as follows:

Just a few comments, Your Honor. I can appreciate the fact that [Jaison] did have a very serious head injury back in 1993, and I can accept the fact that these behavioral changes that Mr. Riley's discussed can be or could be considered secondary to his lower functional capacity. And as much as I'm concerned about [Jaison] in that regard I'm even more concerned about the risk or the danger he imposes on the rest of us, on the other members of this community that drive because of his behavioral changes and because of his lower functional capacity, and because perhaps he's more susceptible to the influence of his friends and his peer group and his drinking buddies that get him into this kind of trouble. Since--Since this head trauma he's had a DWI arrest every single year.1994, 1995, 1996 and 1997. My goal is that there will not be another one in 1998. I think that even though perhaps we can accept the fact that Jaison is not doing this intentionally we need to get through to him in some meaningful way that you can't--you can't drive--You can't drive after you've been drinking. So I would ask the Court to impose a similar sentence. The same or similar--a sentence similar to what you would impose in other cases.

After the state's attorney's comments, Bracht's counsel pointed out that, as part of the plea bargain, the State agreed not to resist Bracht's request for a suspended imposition of sentence. The state's attorney answered stating, "[w]ell, I'm not going to argue against that or resist that request if that's what's been put on the record, but I would just leave the sentence in the Court's discretion." Thereupon, the trial court sentenced Bracht to two years in the penitentiary and revoked his driving privileges for eighteen months after his release. Bracht appeals.

ISSUE

¶5 Did the State breach the terms of Bracht's plea bargain?

¶6 "When the government fails to fulfill a material term of a plea agreement, the defendant may seek specific performance or may seek to withdraw his plea." U.S. v. Barresse, 115 F.3d 610, 612 (8th Cir.1997). Bracht contends the State violated the terms of his plea bargain by resisting his request for a suspended imposition of sentence. Accordingly, he requests resentencing or the opportunity to withdraw his plea.

¶7 The principles governing the duties of prosecutors and the promises they make in negotiating guilty pleas were set forth in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In Santobello, the defendant entered a guilty plea in exchange for the prosecutor's agreement to make no sentencing recommendation. During sentencing, however, a different prosecutor cited the defendant's criminal record and recommended the maximum one year sentence. Defense counsel objected on the basis of violation of the plea bargain. The sentencing judge stated he was not influenced by the prosecutor's comments and, referring to the defendant's criminal record and the need to protect society, sentenced the defendant to one year in a state correctional institution. The Supreme Court eventually granted certiorari in the case, vacated the judgment and remanded the case for reconsideration, holding [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.

On this record, petitioner "bargained" and negotiated for a particular plea in order to secure dismissal of more serious charges, but also on condition that no sentence recommendation would be made by the prosecutor. It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial....

We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor's recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that 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.

Santobello, 404 U.S. at 262--63, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

¶8 Santobello was followed by the Eighth Circuit Court of Appeals in U.S. v. McCray, 849 F.2d 304 (8th Cir.1988). As in Santobello, the defendant in McCray entered a guilty plea in exchange for the government's agreement not to make any sentencing recommendation. During sentencing, the trial court imposed a four year sentence. When the defendant requested that he be designated as eligible for early parole, the trial court sought the government's position. The prosecutor resisted the designation and requested that the sentence stand as given. The trial court then denied the defendant's request. The Eighth Circuit vacated the defendant's sentence and remanded for resentencing before another judge concluding that, "[w]hen the government breaches its promise to remain silent at sentencing, resentencing is required. The fact that the district court stated that the government's remark did not influence its decision does not ameliorate the government's breach." McCray, 849 F.2d at 305 (citations omitted).

¶9 Attempting to avoid the dictates of Santobello and McCray, the State contends the prosecutor in the instant case did not violate the plea bargain because he did not "resist" Bracht's request for a suspended imposition of sentence and did not make a sentencing recommendation. This is an illusory assertion in light of the state's attorney's request for the usual sentence. Moreover, in McCray, the Eighth Circuit rejected a "hypertechnical distinction" based upon the precise language of the government's agreement in favor of a " 'straightforward interpretation' " of the government's promise. See McCray, 849 F.2d at 305 (quoting United States v. Carbone, 739 F.2d 45, 47 (2d Cir.1984)). In this vein, the Eighth Circuit endorsed the dissent of District Judge Stern in United States v. Miller, 565 F.2d 1273, 1275-76 (3d Cir.1977) (Stern, Dist. J., dissenting):

In United States v. Crusco, 536 F.2d 21 (3rd Cir.1976), this Court construed a prosecutorial promise to "take no position as to sentence" to mean that the government had undertaken to refrain from any allocution at sentence, even one directed solely at correcting what were claimed to be factual misstatements to the Court by the defense. The majority, and in my view correctly, in summing up Crusco says, "We held that the Government's characterization of its remarks [as no recommendation of the terms of the sentence] was nothing more than a transparent effort to influence the severity of the defendant's sentence." [Ante 1275] As to Miller,...