State v. Waldner

• Decision Date: 19 January 2005
• Docket Number: No. 23261-rem-SLZ,23261-rem-SLZ
• Citation: 692 NW 2d 187,2005 SD 11
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. WILLIAM E. WALDNER, Defendant and Appellant.
• Court: South Dakota Supreme Court

2005 SD 11

692 NW 2d 187

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, v. WILLIAM E. WALDNER, Defendant and Appellant.

No. 23261-rem-SLZ

Supreme Court of South Dakota.

Considered on Briefs On November 15, 2004

Opinion filed January 19, 2005

LAWRENCE E. LONG, Attorney General, JEFFERY J. TRONVOLD, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

ROGER W. ELLYSON, Watertown, South Dakota, Attorney for defendant and appellant.

ZINTER, Justice.

[¶ 1.] William Waldner appeals his sentences, contending that the State violated the terms of his plea agreement. Because the prosecutor breached a material term of the plea agreement, we vacate the sentences and remand for resentencing before a different judge.

FACTS

[¶ 2.] On February 20, 2004, Waldner pleaded guilty to a series of charges stemming from burglaries he committed in Clark, Codington, Hamlin and Kingsbury Counties. As part of that transaction, Waldner entered into a written plea agreement with the Clark County States Attorney in which Waldner agreed to plead guilty to one count of first degree burglary and three counts of third degree burglary. That agreement was filed on February 23, 2004.

[¶ 3.] In exchange for the guilty pleas, the State agreed to dismiss all other Clark County charges and to not file a habitual offender information. Additionally, the plea agreement specifically provided that:

D. The State further agrees to recommend to the Court that any sentence received by the Defendant in Clark County run concurrently with the sentences he will receive on charges pending in Codington County, Hamlin County and Kingsbury County.

E. The parties acknowledge that there is no agreement as to sentencing and both the Defendant and State of South Dakota are free to offer any recommendation at the time of sentencing, however, the State agrees not to request that the sentences run consecutively.

[¶ 4.] On April 7, 2004, Waldner was sentenced for the Clark, Codington and Hamlin County charges by the Honorable Robert L. Timm. At the sentencing hearing, the Clark County States Attorney addressed the court and argued the "atrocious" nature of these crimes, stating:

I consider him to be a danger to the public, I don't think his conduct deserves a life sentence which is one of the reasons why I was more than happy not to file an habitual offender information in this matter. There may be some hope for rehabilitation for this gentleman, your Honor, I'm not sure given his background and his track record that that is possible, but maybe it is, I don't know, but I do think that Mr. Waldner's conduct merits a significant penitentiary sentence and the State of South Dakota would respectfully request that that be the case.

The Clark County States Attorney did not recommend concurrent sentences during the sentencing hearing as required by the plea agreement. However, defense counsel mentioned:

The agreement that we entered into with the Clark County State's [sic] Attorney involved [him] recommending that the sentences in Clark County run concurrently with the sentences that are imposed in the other three counties, recognizing that that's not at all binding on the Court, but we do appreciate that recommendation. There's no agreement regarding sentencing with Hamlin County or Codington County or Kingsbury County, so I think it's important that the Court realize that.

In pronouncing sentence, the court did not acknowledge the plea agreement recommending concurrent sentences or specifically reject the terms of the agreement. Rather, the trial court indicated "I've read through this presentence report."

[¶ 5.] The presentence investigation report did not include the terms of the plea agreement, and the plea agreement was not attached to the report. Concerning the plea agreement, that report only indicated:

A plea bargain agreement was entered into in this matter whereby upon the defendant entering pleas of guilty to charges of First Degree Burglary and three counts of Third Degree Burglary in Clark County, Grant Theft and Burglary Fourth Degree in Codington County, Third Degree Burglary in Hamlin County and Third Degree Burglary in Kingsbury County, that all other charges would be dismissed and no Habitual Offender Information would be filed.

Thus, it did not disclose the State's agreement to recommend concurrent sentences. In fact, the only mention of concurrent sentences is found under the "Defendant's Comments" section of the report, which only indicated that Waldner would "prefer" concurrent sentences.

[¶ 6.] On the Clark County charges, Waldner received a fifteen year prison sentence for first degree burglary and three, five year prison sentences for the third degree burglaries. Waldner received five year prison sentences on each of the Hamlin and Codington County offenses.¹ All of the sentences were to run consecutive to each other for a total of forty years.²

[¶ 7.] Waldner appeals contending that the Clark County States Attorney violated the terms of the plea agreement by failing to recommend concurrent sentences. Waldner requests that his sentences be vacated and this matter be remanded for resentencing before a different judge.

ANALYSIS

[¶ 8.] "Generally, plea agreements are contractual in nature and are governed by ordinary contract principles." State v. Stevenson, 2002 SD 120, ¶ 9, 652 NW2d 735, 738. "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." State v. Bracht, 1997 SD 136, ¶ 6, 573 NW2d 176, 178. Waldner contends the State violated the terms of his plea agreement by not recommending that he receive concurrent sentences. The State concedes that it did not recommend concurrent sentences at the sentencing hearing.

[¶ 9.] In Bracht, this Court adopted several statements of the United States Supreme Court on this subject . Id. ¶ 7, 11 (citing Santobello v. New York, 404 US 257, 262-63, 92 SCt 495, 499-500, 30 LEd2d 427 (1971)).

When 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.

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.

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 resentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by the petitioner, i.e., the opportunity to withdraw his plea of guilty. 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.

Id. (emphasis added). Based on Santobello, we remanded the sentence in Bracht for resentencing before a different judge because the State failed to fulfill its promise in the plea agreement. Id. ¶ 13.

[¶ 10.] Here, the terms of the plea agreement created an affirmative obligation for the States Attorney to recommend to the trial court that the sentences for the Clark County offenses run concurrently with the offenses in Codington, Hamlin and Kingsbury Counties. The agreement also created a prohibition against recommending consecutive sentences. We reiterate that "[o]nce a plea has been entered and it `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 a promise must be fulfilled.'" United States v. McCray, 849 F2d 304, 305 (8th Cir 1988)(quoting Santobello, 404 US at 262, 92 SCt at 499, 30 LEd2d at 427). The States Attorney did not fulfill that obligation.

[¶ 11.] Moreover, this failure to recommend concurrent sentences was a material and substantial breach of the agreement. This negotiated term certainly cannot be characterized as being without "any significance" to Waldner. See Bracht, 1997 SD 136, ¶ 7,

573 NW2d at 179; State v. Deilke, 682 NW2d 945, 951 (Wis 2004) (stating: "A material and substantial breach of a plea agreement is one that violates the terms of the agreement and defeats a benefit for the non-breaching party."). A failure to recommend concurrent sentences is a material and substantial breach because:

Undoubtedly, one of the most crucial issues in a plea agreement is the recommendation concerning the length of time to be served on each count. However, whether sentences are to be concurrent or consecutive is also extremely important. The designation of concurrent or consecutive time can affect the actual amount of time served, the application of a pre-sentence credit, parole eligibility dates, the date a defendant is allowed access to rehabilitative services, and other factors. A recommendation of concurrent sentences can also send a signal to the trial court that the agreement contemplates a lesser sentence than one where consecutive sentences are recommended.

State v. Howard, 630 NW2d 244, 250-51 (WisApp 2001)(internal citation omitted).

[¶ 12.] Even if this Court were to speculate that such a recommendation had no effect on the sentence pronounced because defense counsel mentioned the agreement, such speculation is of no legal significance. Bracht, 1997 SD 136, ¶ 7, 573 NW2d at 179. It is of no...