State v. Lohnes, 14142

CourtSupreme Court of South Dakota
Citation344 N.W.2d 686
Docket NumberNo. 14142,14142
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Burton LOHNES, Defendant and Appellant. . Considered on Briefs
Decision Date26 October 1983

Douglas E. Kludt, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

John J. Burnett, Rapid City, for defendant and appellant.

WOLLMAN, Justice.

In State v. Lohnes, 324 N.W.2d 409 (S.D.1982), we reversed defendant's conviction for second-degree murder arising from the November 13, 1980, shooting of a Rapid City businessman. Pursuant to a plea agreement, the State subsequently charged defendant with first degree manslaughter rather than second degree murder. Defendant pleaded guilty and was sentenced to 347 years in the state penitentiary. Defendant appeals from the judgment of conviction, contending that the trial court erred in denying his motion to withdraw his plea of guilty. We reverse and remand.

At the February 14, 1983, arraignment, the trial court followed the mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and informed defendant of his constitutional privilege against self-incrimination, his right to confront his accusers, and his right to a jury trial, as well as of the nature and consequences of the guilty plea. Defendant's attorney then stated the terms of the plea agreement that had been reached with the State, which provided that defendant would be charged with first degree manslaughter rather than with second degree murder and that the appropriate disposition would be a "sentence of a term of years and not life imprisonment" if defendant pleaded guilty to the manslaughter charge. After making some preliminary inquiries of defendant regarding defendant's understanding of the plea agreement, the trial court engaged in the following colloquy with defendant:

THE COURT: That is correct. I have indicated from what I know of the situation now that I would go along with that plea discussion, that is, that I would not give you a life sentence, but that I will set a definite term of years.


THE COURT: And that is also your understanding?


THE COURT: But you understand I can set whatever term of years that I think is best in this instance?


THE COURT: No one has recommended to me that it be a specific number of years; that is, no one has told you that it would be five years, or one year or twenty years or no numbers have been told you; is that correct?


THE COURT: And you understand that I am not bound to set any specific number of years but that I can set whatever number I feel is best in this case?


THE COURT: Having all that in mind, it is still your intention to enter a plea to this charge; is that correct?


THE COURT: And you don't feel that you have been threatened or forced in any way to enter a plea?


Two weeks later at the sentencing hearing, the trial judge reiterated to defendant that he "would not sentence you to the rest of your natural life in the penitentiary" and again advised defendant that the length of the sentence was entirely within the trial court's discretion. After sentencing defendant to 347 years, the trial judge commented:

So that the record is clear, there is 171 years and 7 months of good time earned immediately on that sentence. That leaves a net sentence of 175 years and 6 months of which a first time offender does one-fourth or 43.8 years.

It will be that period of time before you are eligible for a parole under the ordinary chain of events.

Defendant was nineteen years old at the time of sentencing.

Defendant subsequently moved to withdraw his plea of guilty. After a hearing, the motion was denied.

When a defendant moves to withdraw a plea of guilty prior to imposition of sentence, the trial judge's discretion in the matter should be exercised liberally in favor of withdrawal, unless it appears that the State has detrimentally relied upon the plea and the prosecution of the defendant has been thereby prejudiced. State v. Losieau, 266 N.W.2d 259 (S.D.1978); State v. Doherty, 261 N.W.2d 677 (S.D.1978). When, however, a defendant moves to withdraw his guilty plea after sentence has been imposed, the trial judge will set aside the judgment of conviction and permit defendant to withdraw his plea only to correct manifest injustice. SDCL 23A-27-11. 1 The purpose of this stringent standard for post-sentence plea withdrawal motion is "to prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe." United States v. McKoy, 645 F.2d 1037, 1040 n. 3 (D.C.Cir.1981).

Surprise or disappointment at the severity of a sentence does not alone constitute grounds for the withdrawal of a guilty plea after sentencing. State v. Hanson, 627 P.2d 53 (Utah 1981); see generally Annot. 9 A.L.R.Fed. 309 Sec. 22 (1971). Cases of disappointed but unfounded expectations, however, must be distinguished from reasonable expectations arising from the government or statements from the court. United States v. Crusco, 536 F.2d 21 (3rd Cir.1976).

Defendant contends that his plea was not voluntary because it was entered in reliance upon the trial court's promise not to impose a life sentence, a promise that defendant reasonably understood foreclosing the imposition of a sentence that would greatly exceed his life expectancy.

As we recently held in State v. Bolger, 332 N.W.2d 718 (S.D.1983), we will look to the totality of the circumstance to determine whether a guilty plea was knowingly and voluntarily entered. We quoted the following test fashioned by the Court of Appeals for the Eighth Circuit in Watkins v. Solem, 571 F.2d 435, 437 (8th Cir.1978): "[t]he fundamental test is whether the plea of guilty was 'an intelligent act "done with sufficient awareness of the relevant circumstances and likely consequences." ' " Bolger, supra, at 720 n. 2.

The plea agreement here was accepted by the trial court on the record pursuant to SDCL 23A-7-9 and 23A-7-10, in contrast to the type of plea agreement that was present in State v. Rich, 305 N.W.2d 390 (S.D.1981), and in State v. Doherty, supra. Once having accepted the agreement, the trial court was bound to honor its promise to perform it, for we conclude that what the United States Supreme Court has said concerning the duty of the state to perform its part of a plea bargain applies with equal force to the trial court:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can to 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, 433 (1971). See also Mosher v. LaVallee, 491 F.2d 1346 (2d Cir.1974), cert. denied, 416 U.S. 906, 94 S.Ct. 1611, 40 L.Ed.2d 111 (1974).

The question, then, is whether the 347-year sentence is something less than a life sentence when considered in the light of the statutory allowances for good time credit, SDCL 24-5-1 2 and parole eligibility, SDCL 24-15-5. 3

Since defendant does not dispute them, we will accept as accurate the trial court's computations regarding good time credit and parole eligibility. The date of parole eligibility, however, is not to be equated with release from imprisonment. As the trial court commented at the hearing on the motion to withdraw the guilty plea, "Whether or not the Board of Pardons and Paroles releases him at that time, of course, depends on his record" Although it may be permissible for a trial judge to consider parole eligibility in sentencing, "the assumption that an offender will be paroled on a particular date is, at best, speculative," Jackson v. State, 616 P.2d 23, 24-25 (Alaska 1980). See also Kelly v. State, 622 P.2d 432 (Alaska 1981).

Defendant could reasonably have understood the trial court's promise not to impose a life sentence to mean that the sentence to be imposed would be of such length that he could look forward to a date certain when he would be entitled to be released from confinement as a matter of right. By conditioning the length of the sentence on the discretionary power of the board of pardons and paroles, the trial court imposed a sentence that did not comport with this expectation.

It should be made clear that we do not fault the trial court for attempting to impose a sentence that would be protective of society while at the same time not foreclosing the possibility of rehabilitation. Cf. State v. Weiker, 342 N.W.2d 7 (S.D.1983). Given the wantonness of the homicide with which defendant was charged and defendant's propensity for impulsive, dangerous conduct, a lengthy sentence was well warranted. Nor do we mean to suggest that the trial court in any way intentionally misled defendant or sought to impose a sentence that would contravene the assurances given defendant that a life sentence would not be imposed. Our disagreement with the trial court stems from our belief that in the circumstances of this case the promise to impose a sentence of less than life imprisonment implied a sentence with a release date certain within the defendant's life expectancy rather than a release date contingent upon the exercise of discretionary authority by the board of pardons and paroles. Accordingly, we conclude that defendant should be allowed to withdraw his plea of guilty.

The judgment of conviction is reversed and the case is remanded to the circuit court for further proceedings.

FOSHEIM, C.J., and DUNN, J., concur.


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24 cases
  • State v. Goodwin, 22574.
    • United States
    • Supreme Court of South Dakota
    • 2 Junio 2004
    ...the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe.'" State v. Lohnes, 344 N.W.2d 686, 688 (S.D.1984) (quoting United States v. McKoy, 645 F.2d 1037, 1040 n. 3 (C.A.D.C. 1981)). However, if a defendant enters a plea "without full k......
  • State v. Grosh, 14830
    • United States
    • Supreme Court of South Dakota
    • 15 Enero 1986
    ...that the State has detrimentally relied upon the plea and the prosecution of the defendant has been thereby prejudiced." State v. Lohnes, 344 N.W.2d 686, 687 (S.D.1984). When deciding whether to allow a criminal defendant to withdraw his plea, the trial court must look at the reasons why th......
  • Lien v. Class, 19953
    • United States
    • Supreme Court of South Dakota
    • 12 Febrero 1998
    ...that the court sentenced him more severely than he wished or expected, he regrets his agreement. 16 We must note that in State v. Lohnes, 344 N.W.2d 686 (S.D.1984), this Court focused on the defendant's "reasonable expectations from the plea bargain" in determining whether he should have be......
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