State v. Reaves

#24586-rev & rem-RWS

2008 SD 105

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

RONALD N. REAVES, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

HONORABLE MERTON B. TICE, JR.
Judge

* * * *

LAWRENCE E. LONG
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
PAULA D. CAMP
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant
and appellant.

* * * *

CONSIDERED ON BRIEFS
ON SEPTEMBER 29, 2008

OPINION FILED 11/05/08
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SABERS, Justice.

[¶1.] Ronald Reaves pleaded guilty to second degree rape in exchange for a

binding agreement providing a maximum of 15 years in the penitentiary and

dropping the alternative kidnapping charges. Circuit Court Judge Merton Tice, Jr.

informed Reaves that if the court was not going to adhere to the plea agreement,

Reaves would have the opportunity to withdraw his guilty plea. Judge Tice

sentenced Reaves to 20 years in the penitentiary, with 10 suspended, believing that

this was within the plea agreement terms. Reaves appeals, raising three issues.

Because the circuit court wrongfully believed its sentence adhered to the plea

agreement’s terms, we reverse and remand for resentencing based on the first issue,

and it is not necessary to reach the second and third issues.

FACTS

[¶2.] On August 25, 2006, Reaves was charged with second degree rape and

aggravated kidnapping in the first degree, or, in the alternative, kidnapping in the

second degree. Thereafter, the State and Reaves entered into a binding plea

agreement that capped Reaves’ sentence at 15 years for the second degree rape

charge and dropped all other charges in exchange for Reaves’ guilty plea. The

circuit court agreed to follow the plea agreement, unless it determined a greater

penalty was more appropriate. On April 18, 2007, a hearing was held at which

Reaves pleaded guilty to rape in the second degree. Judge Tice informed Reaves

that second degree rape carries a “maximum penalty of 50 years, a $50,000 fine or

both if [the court] did not accept the binding recommendation of 15 years[.]”

Importantly, the court acknowledged that if it should feel a greater penalty was

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appropriate, Reaves “would be given the opportunity at that time to withdraw [his]

plea.”

[¶3.] Reaves was sentenced on June 19, 2007. Both parties argued in

support of their positions, with the State engaging in an aggravating sentencing

narrative. Afterward, the court reminded Reaves of the possibility that it may not

accept the plea agreement. Reaves was asked whether he wanted to withdraw his

guilty plea, to which he declined because at this time he did not know whether the

court was going to accept or reject the plea agreement; this inquiry came before the

sentence was given. Reaves was sentenced to 20 years in the penitentiary, with 10

years suspended. After the sentence was declared, Reaves was not given the

opportunity to withdraw his plea.

[¶4.] After a notice of appeal was filed with this Court on July 17, 2007,

Reaves petitioned this Court for an order remanding the matter to present a motion

for relief from judgment and for resentencing. The order was granted. At the

circuit court motions hearing, the court stated that since it “did not believe [the 20-

year sentence, with 10 years suspended] was a violation of . . . the plea agreement,

[it] felt [it was] under no obligation to allow [Reaves] to withdraw [his plea].”

Therefore, the circuit court denied the motion. Subsequently, Reaves appealed,

raising the following issues:

1. Whether the circuit court erred in finding that a sentence of 20
years, with 10 suspended, is less than the 15-year cap as agreed
upon by the parties in the binding plea agreement.

2. Whether the circuit court erred in finding that the imposition of a
20-year sentence, with 10 suspended, was not a rejection of the
binding plea agreement and that it had satisfied the requirements
of SDCL 23A-7-11.

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3. Whether the circuit court erred in finding that the State did not
breach the binding plea agreement by engaging in an aggravated
sentencing narrative at the time of sentencing.

STANDARD OF REVIEW

We review the circuit court’s findings of fact under the clearly
erroneous standard. Under this standard, we will only reverse
when we “are left with a definite and firm conviction that a
mistake has been made” after a thorough review of the evidence.
We review conclusions of law under the de novo standard
without deference to the circuit court.

Osman v. Karlen and Assocs., 2008 SD 16, ¶15, 746 NW2d 437, 442-43 (quoting

Fin-Ag, Inc. v. Feldman Bros., 2007 SD 105, ¶19, 740 NW2d 857, 862-63 (additional

citation omitted)). Therefore, we employ a de novo review to determine whether the

circuit court complied with the binding plea agreement by giving a sentence that

ultimately fell within the 15-year maximum.

[¶5.] 1. Whether the circuit court erred in finding that a
sentence of 20 years, with 10 suspended, is less than the
15-year cap as agreed upon by the parties in the binding
plea agreement.

[¶6.] The State claims that (1) the plea agreement was not binding on the

circuit court, and (2) the 20-year sentence, with 10 years suspended, was not a

breach of the plea agreement between the parties. We disagree on both points.

[¶7.] We recognize that generally circuit courts are not bound by plea

agreements. See SDCL 23A-7-9. See also State v. Thorsby, 2008 SD 100, ¶10, ___

NW2d ___ (citing SDCL 23A-7-9); State v. Burgers, 1999 SD 140, ¶11, 602 NW2d

277, 280 (citing same). The plea agreement at issue, however, was presented as a

binding agreement, and the court, when it sentenced Reaves, believed it was

adhering to the plea agreement’s terms. The State insists the circuit court informed

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Reaves several times that it was not bound by the plea agreement. The State

misses the point. While it is true that the court advised Reaves that it was not

bound by the agreement, it never informed Reaves whether or not it was going to

reject the agreement, and thereby provide Reaves the opportunity to withdraw his

guilty plea. The court, in fact, implicitly accepted the plea agreement. At a later

motions hearing, the court specifically stated, “I believe that the sentence is well

within the plea agreement; in fact, [it is] five years less than what the court could

have imposed upon him at the time.” In State v. Lohnes, we stated that “[o]nce

having accepted the agreement, the trial court was bound to honor its promise to

perform it[.]” 344 NW2d 686, 688 (SD 1984). See also Santobello v. New York, 404

US 257, 262, 92 SCt 495, 499, 30 LEd2d 427 (1971) (stating that “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”). Therefore, under the circumstances of this case, the circuit court had to

ensure that its sentence satisfied the terms of the plea agreement. That brings us

to the question of whether the sentence is in fact within the plea agreement cap of

15 years.

[¶8.] State v. Bowers, 498 NW2d 202 (SD 1993), involved abortion protestors

charged with unlawful occupancy of property and disorderly conduct. The

protestors requested jury trials. The magistrate judge denied their requests,

“assuring the protestors that he would impose no jail sentences in the event they

were found guilty.” Id. at 204. The protestors were found guilty of both charges,

and subsequently fined and sentenced to “seven to fourteen days jail time which

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was suspended on the condition of no like offenses for one year.” Id. This was

appealed to the circuit court. The circuit judge affirmed the convictions, but

modified the sentences by deleting the suspended jail time, recognizing that “a final

judgment entered imposing a suspended seven days in the county jail was contrary

to the [magistrate court’s] assurance” of no jail sentence. On appeal, we held in part

that “[t]he circuit court’s subsequent judgment [which deleted the suspended jail

time] cured the magistrate judge’s improper sentencing.” Id. at 205. We therefore

adopted the circuit court’s determination that the sentence contradicted the

magistrate’s promise. A court cannot say it is going to do one thing and then do

something else. This rationale is directly applicable to the case before us.

[¶9.] In this case, the judge told Reaves that Reaves would have an

opportunity to withdraw his guilty plea if the court decided to give a sentence in

excess of the plea agreement cap of 15 years. Without providing that opportunity,

Reaves was sentenced to 20 years, with 10 years suspended. Under the Bowers

analysis, suspended time equals imprisonment time, with the only difference being

that the defendant is not required to serve the suspended sentence as long as he

abides by the provided conditions. Therefore, Reaves’s sentence of 20 years, with 10

years suspended, improperly exceeded the 15-year cap.

[¶10.] Case law supports the position that a sentence includes both the

amount of time ordered to be served in jail and the amount of time suspended. See

Alabama v. Shelton, 535 US 654, 672, 122 SCt 1764, 1775, 152 LEd2d 888 (2002)

(noting that “activation of a suspended sentence results in the imprisonment of [a]

defendant ‘for a term that relates to the original offense’ and therefore ‘crosses the

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line of actual imprisonment’”); Krukow v. SD Bd. of Pardons and Paroles, 2006 SD

46, ¶10, 716 NW2d 121, 124 (recognizing that although 9.5 years of the defendant’s

10-year sentence was suspended, he was still sentenced to 10 years); Hughes v. SD

Bd. of Pardons and Paroles, 1999 SD 44, ¶14, 593 NW2d 789, 791 (stating that “[i]f

the prisoner cannot conform to the rules of the [suspended sentence] agreement, a

flat time sentence is the result.”); Lohnes, 344 NW2d at 687 (Although the plea

agreement guaranteed no life sentence, defendant was sentenced to 347 years, with

“171 years and 7 months of good time earned immediately on that sentence[,

leaving] a net sentence of 175 years and 6 months of which a first time offender

does one-fourth or 43.8 years.” In holding that this was effectively a life sentence,

this Court focused on the 347-year sentence, and not the net sentence of 175 years

and 6 months, or even the 43.8 years after which the defendant would be up for

parole.).

[¶11.] Reaves’ sentence included 10 years suspended. The 10 years

suspended are conditioned on Reaves not violating any part of the sentencing

judgment. It is speculative whether Reaves will violate the conditions. It is safe to

assume that if Reaves violates the conditions, a court would reinstate some, if not

all, of the suspended years, which could potentially result in a total prison term of

20 years.* Therefore, the circuit court did not give Reaves a 10-year sentence, but

* The State cites cases holding that it should not be assumed that the
defendant would commit another crime. See Bostick v. Weber, 2005 SD 12,
¶26, 692 NW2d 517, 523; Matter of Woodruff, 1997 SD 95, ¶10, 567 NW2d
226, 228; Moeller v. Solem, 363 NW2d 412, 414 (SD 1985). We are not
assuming that Reaves would commit another crime, but we consider what
could happen if he does commit a crime or otherwise violates the sentencing
(continued . . .)
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rather a 20-year sentence, a portion of which is suspended provided there is no

violation of the accompanying conditions. The court incorrectly believed its

sentence was within plea agreement’s 15-year cap. The circuit court is reversed on

this issue, and the case is remanded for resentencing.

[¶12.] Because the circuit court did not reject the plea agreement, and failed

to give a sentence within the binding plea agreement, it is not necessary for us to

reach issues 2 and 3.

[¶13.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

MEIERHENRY, Justices, concur.

_________________________
(. . . continued)
judgment by “not be[ing] as good as required by the conditions of probation.”
State v. Beck, 2000 SD 141, ¶7, 619 NW2d 247, 249 (quoting State v. Bell,
369 NW2d 140, 142 (SD 1985) (citation omitted)).

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