Vanden Hoek v. Weber, 23972.

• Decision Date: 21 November 2006
• Docket Number: No. 23972.,23972.
• Parties: Ryan Lee VANDEN HOEK, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

724 N.W.2d 858

2006 SD 102

Ryan Lee VANDEN HOEK, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 23972.

Supreme Court of South Dakota.

Considered on Briefs on August 28, 2006.

Decided November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Mike C. Fink, Bjorkman & Fink, Bridgewater, South Dakota, Attorney for petitioner and appellant.

Lawrence E. Long, Attorney General, Daniel J. Todd, Assistant Attorney General, Department of Social Services Legal Services, Pierre, South Dakota, Attorneys for respondent and appellee.

SABERS, Justice.

[¶ 1.] Ryan Lee Vanden Hoek (Vanden Hoek) pleaded guilty to one count of kidnapping and one count of rape. He received 90 years for the kidnapping charge with 30 years suspended and 25 years for the rape charge, to be served concurrently. On appeal, he raises two issues. We reverse the sentence and remand for resentencing.

FACTS

[¶ 2.] In July of 1998, sixteen-year-old Vanden Hoek raped a female employee of the "Readers Den" in Mitchell, South Dakota. He used a knife to force the young woman into a back room of the store where he compelled her to commit various sexual acts. After being apprehended, he was indicted as an adult with two counts of attempted rape, three counts of rape, and one count of kidnapping.

[¶ 3.] Vanden Hoek made a motion to transfer the case to juvenile court. In preparation for the transfer hearing, the court ordered him to undergo a psychiatric evaluation at the Human Services Center (HSC) in Yankton, South Dakota. The HSC psychiatric evaluation indicated Vanden Hoek was not an ideal candidate for transfer, that rehabilitation would likely be frustrated, and "denying [him] access to victims would be far more effective in preventing damage to the population." Vanden Hoek's trial counsel did not obtain an independent psychiatric evaluation, nor did Vanden Hoek see the HSC report. After the HSC report, the transfer motion was withdrawn and Vanden Hoek decided to seek a plea agreement.

[¶ 4.] Vanden Hoek, his trial counsel and Assistant Attorney General Ronald D. Campbell (Campbell) entered into a written plea agreement. The terms of the agreement specified Vanden Hoek would plead guilty to kidnapping and second degree rape. In exchange for his guilty plea to these two charges, the State promised to dismiss the remaining counts on the indictment and to recommend sentences of 50 years for the kidnapping and 25 years for the rape, with the sentences to run concurrently. While the State was required to recommend this sentence, Vanden Hoek could argue for any appropriate sentence.

[¶ 5.] Prior to the sentencing hearing, a pre-sentence report (PSR) was compiled. This PSR contained a letter from the victim's parents requesting Vanden Hoek receive a life sentence and the HSC psychiatric evaluation. The PSR also contained information on Vanden Hoek's prior record and personal history. Vanden Hoek did not see the PSR prior to sentencing.

[¶ 6.] At the beginning of the sentencing hearing, Assistant Attorney General Anthony M. Sanchez (Sanchez)¹ filed the written plea agreement with the court. However, during the State's argument Sanchez never recommended the agreed upon term of years. Instead, Sanchez read from the victim's statement, which argued society should be protected from Vanden Hoek and he should "live with the consequences for the rest of his life. . . ." Sanchez also referred to Vanden Hoek as a sociopath, and the boogie man who is "our community's worst nightmare" and "we need to banish him from all our dreams." Vanden Hoek's trial counsel did not object to Sanchez's sentencing argument, or his failure to recommend the agreed upon term of years. Vanden Hoek was sentenced to 90 years for kidnapping with 30 years suspended and 25 years for the rape to run concurrent with the kidnapping sentence.

[¶ 7.] Vanden Hoek's trial counsel did not directly appeal his sentence. Instead, Vanden Hoek obtained a new habeas counsel and filed a petition for writ of habeas corpus on November 20, 2000. A provisional writ of habeas corpus was issued by the court on July 10, 2001. After extensive discovery was conducted, a hearing on the amended petition for writ of habeas corpus was held on July 8, 2005. Vanden Hoek's amended petition for writ of habeas corpus and the motion for issuance of certificate of probable cause were denied. This Court issued a certificate of probable cause and Vanden Hoek raised two issues. He argues: 1) the State breached its duty to recommend a specific term of years and violated the written plea agreement; and 2) Vanden Hoek's trial counsel was ineffective and deprived him of his Sixth Amendment right to effective assistance of counsel.

STANDARD OF REVIEW

[¶ 8.] "Our standard of review for a habeas appeal is well established." Crutchfield v. Weber, 2005 SD 62, ¶ 8, 697 N.W.2d 756 (quoting Jackson v. Weber, 2001 SD 136, ¶ 9, 637 N.W.2d 19, 22) (additional citations omitted). Our review of habeas corpus proceedings is limited because it "is a collateral attack on a final judgment." Id. The review is limited to jurisdictional errors. Boyles v. Weber, 2004 SD 31, ¶ 6, 677 N.W.2d 531, 536 (citing Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595). In criminal cases, a violation of the defendant's constitutional rights constitutes a jurisdictional error. Id. The defendant has the burden of proving he is entitled to relief by a preponderance of the evidence. Id. (citing Siers v. Class, 1998 SD 77, ¶ 10, 581 N.W.2d 491, 494) (additional citations omitted).

[¶ 9.] The findings of fact shall not be disturbed unless they are clearly erroneous. Id. A claim of ineffective assistance of counsel presents a mixed question of law and fact. Id. ¶ 7 (citing Hays, 2002 SD 59, ¶ 11, 645 N.W.2d at 595) (additional citations omitted). The habeas court's conclusions of law are reviewed de novo. See id. (noting this court "may substitute its own judgment for that of the circuit court as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel").

[¶ 10.] We examine the breach of the plea agreement issue as it is determinative.

[¶ 11.] 1. Whether the habeas corpus trial court erred when it concluded that the State did not breach the written plea agreement at sentencing.

[¶ 12.] "Generally, plea agreements are contractual in nature and are governed by ordinary contract principles." State v. Waldner, 2005 SD 11, ¶ 8, 692 N.W.2d 187, 190 (quoting State v. Stevenson, 2002 SD 120, ¶ 9, 652 N.W.2d 735, 738). When the State breaches a plea agreement, "the defendant may seek specific performance or may seek to withdraw his plea." Id. (quoting State v. Bracht, 1997 SD 136, ¶ 6, 573 N.W.2d 176, 178). Vanden Hoek argues that the State breached the written plea agreement by not specifically recommending the agreed upon term of years. The State disagrees and claims the agreement was fulfilled when the written plea agreement was filed with the trial court and the court was made aware of the agreement.

[¶ 13.] The contractual duties a prosecutor acquires when entering into plea agreements were set forth in Santobello v. New York. 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).² In Santobello, the United States Supreme Court stated, "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." Id. at 262, 92 S.Ct. at 499. The breach is not dependent on whether the sentencing judge would have been influenced by the breached term of the plea agreement. Id. Instead, "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 . . . for further consideration." Id. at 262-63, 92 S.Ct. at 499.

[¶ 14.] "Like all contracts, [plea agreements] include[] an implied obligation of good faith and fair dealing." United States v. Jones, 58 F.3d 688, 692 (D.C.Cir. 1995) (citing Restatement (Second) of Contracts § 205 (1981)). See also United States v. Sparks, 20 F.3d 476, 479 (D.C.Cir. 1994) (noting a prosecutor's nonperformance of a plea agreement may be reviewed for bad faith); United States v. Crawford, 20 F.3d 933, 935 (8thCir. 1994) (noting whether "the behavior of a party failing to perform . . . comports with the standards of good faith and fair dealing" is an inquiry when deciding if a material breach occurred). Furthermore, a breach of a plea agreement implicates due process concerns. "[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." Waldner, 2005 SD 11, ¶ 13, 692 N.W.2d at 191-92 (citing State v. Williams, 249 Wis.2d 492, 637 N.W.2d 733, 744 (2002)) (internal quotations omitted).

[¶ 15.] The determinative inquiry in this case is, did Sanchez breach the terms of the written plea agreement by not specifically recommending the agreed upon term of years during his sentencing argument? If failing to verbalize the terms of the plea agreement, while arguing the terrible nature of Vanden Hoek's crimes is a breach, then Vanden Hoek would be entitled to relief. A look at prior South Dakota cases regarding a plea agreement breach is helpful in this analysis.

[¶ 16.] In Bracht, the State agreed not to resist Bracht's request for a suspended imposition of sentence and the plea agreement was explained to the trial court. 1997 SD 136, ¶¶ 2-3, 573 N.W.2d at 177. During sentencing, Bracht argued for a suspended imposition, but the State requested the court impose, "[t]he same or similar — a sentence similar to what you would impose in other cases." Id. ¶ 4. After Bracht pointed out the State agreed not to resist the suspended imposition request, the State responded, "[w]ell, I'm not going to argue...