State v. Bracht

1997 SD 136, 573 N.W.2d 176, 1997 S.D. LEXIS 135

• Court: South Dakota Supreme Court
• Decided: December 17, 1997
• Docket: None
• Status: Published

Opinions

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

[If 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 [180] 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 fiiends 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 Braeht’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 Santo-bello, 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 ease, vacated the judgment and remanded the ease 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. Dining 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 re-sentencing before another judge concluding that, “[wjhen the government breaches its promise to remain silent at sentencing, re-sentencing 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 pros-ecutorial 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, however, the majority characterizes the government’s remarks against mitigation for him as merely “rhetorical”.

In Crusco the prosecutor did not recommend a specific term of years; he spoke only to contradict the mitigating factors urged by the defense. So too here. I cannot construe the prosecutor’s remarks here as rhetorical. He spoke at the moment of sentencing, with the intent to disparage a claim for mitigation made on behalf of one about to be sentenced, and to the very judge who would shortly pronounce that sentence. The government’s rhetoric was not rhetorical. It was uttered to influence the sentence. It could have been uttered for no other purpose.

It is well to remember the full text of the words written by Judge Rosenn in Crusco:

... We see the Government’s characterization as a transparent effort to influence the severity of Cimmino’s sentence. Only a stubbornly literal mind would refuse to regard the Government’s commentary as communicating a position on sentencing.

536 F.2d 21, 26 (1976). (emphasis added).

[¶ 10.] Here, as observed by Judge Stern in Miller, supra, the State’s “rhetoric was not rhetorical.” The prosecutor spoke at the moment of sentencing to the judge who would shortly pronounce sentence with the intent to disparage Bracht’s claim for mitigation. Obviously, these remarks were voiced in opposition to granting a suspénded imposition of sentence. They could have been uttered for no other purpose. On that basis, the State breached its plea agreement.

[¶ 11.] In Santobello, the Supreme Court outlined the following remedies for breach of a plea bargain:

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 resen-tenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by 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.

Santobello, 404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (footnote omitted)(emphasis added). In United States v. Brody, 808 F.2d 944, 948 (2d Cir.1986), the Second Circuit defined the remedy for breach of an agreement to take no position at sentencing as follows:

The nature of the remedy varies with the nature of the broken promise and the facts of each particular case. In United States v. Corsentino, 685 F.2d 48 (2d Cir.1982), we ordered resentencing in order to remedy a violation by a prosecutor who argued for a harsh sentence after he had agreed “to take no position at sentencing.” Id. at 49—52. Accord United States v. Carbone, 739 F.2d 45, 46—47 (2d Cir.1984)(prosecutor, by arguing against split sentence, breached plea agreement to take no position at sentencing; resentencing required). We require resentencing where the violation of an agreement goes to the very “essence” of the plea agreement. United States v. Stolon, 561 F.Supp. 63, 64—66 (E.D.N.Y.1983). Indeed, the egregious nature of such a breach requires that we order the additional step of reassigning the proceedings to a different sentencing judge. Corsentino, 685 F.2d at 52. See Carbone, 739 F.2d at 47—48 (resentencing required despite fact that sentencing judge not influenced by government’s argument for harsh sentence).

[¶ 12.] Based upon the foregoing, it is clear a prosecutor’s broken promise to take no position at sentencing is a flagrant breach going to the essence of a plea bargain. The remedy is resentencing before a different sentencing judge. Brody, supra. Accord McCray, supra. See also Brunelle v. U.S., 864 F.2d 64, 65 (8th Cir.l988)(when government breaches plea agreement with respect to a sentence recommendation, a substantive violation has occurred and, at the least, resentencing before a different judge is required).¹

[¶ 13.] Here, the prosecutor’s breach of his promise not to resist Bracht’s request for a suspended imposition of sentence is equally as flagrant as a breach of a promise to take no position at sentencing. Accordingly, we vacate Bracht’s sentence and remand for re-sentencing before a different judge. However, we hasten to add the same qualification used by the Supreme Court and the Eighth Circuit in similar dispositions: “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.” Santobello, 404 U.S. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433. In order to restore him to the position he would have been in before the State’s breach, Braeht must be sentenced by another judge. The new judge might well give the same sentence, but only after the State complies with its promise.

[¶ 14.] Having reached the foregoing conclusion, we find it unnecessary to address the balance of Bracht’s appellate issues.

[¶ 15.] Sentence vacated and ease remanded for resentencing by a different judge.

[¶ 16.] SABERS, and AMUNDSON, JJ, concur. [¶ 17.] MILLER, C.J., and GILBERTSON, J., concur in part and dissent in part.

1 . The dissents part company with this decision on the issue of resentencing by a different judge. Rather than following Santobello, McCray and their progeny, the dissents urge that we follow a line of cases based upon United. States v. Robin, 553 F.2d 8 (2d Cir.1977) (Robin II) which outlines a three factor test for determining when further proceedings in a case should be conducted by a different judge. See, e.g.. United States v. Arnett, 628 F.2d 1162 (9th Cir.1979); United States v. Travis, 735 F.2d 1129 (9th Cir.1984); United States v. Wolff, 127 F.3d 84 (D.C.Cir.1997). We disagree with this approach. First, the Supreme Court said nothing in Santobello about a three factor test for determining when resentencing should be conducted by a different judge. Second, Robin was not a breach of plea bargain case and Santobello was not even discussed or cited in either of the Robin decisions. See Robin II; United States v. Robin, 545 F.2d 775 (2d Cir.1976) (Robin I). Therefore, despite acceptance by some of the U.S. Circuit Courts of Appeal, we fail to perceive how Robin is even applicable in a breach of plea bargain case clearly controlled by Santobello. Third, even the jurisdictions that have adopted the Robin methodology in breach of plea bargain cases have been inconsistent. For example, despite the precedents of Amett, supra and Travis, supra, a Ninth Circuit panel recently declined to follow Robin and simply remanded a breach of plea bargain case to a different sentencing judge on the basis that, "the Supreme Court’s decision in Santobello, of course, is controlling.” U.S. v. Camper, 66 F.3d 229, 232 (9th Cir.1995)(emphasis added). See also Wolff, 127 F.3d at 87 (we have previously expressed the assumption that Santobello creates a general rule that when a plea agreement is breached, resentencing must automatically be assigned to a different judge). Fourth, there is a sound and logical rationale for Santobello's requirement of resentencing by a different judge. As articulated by Judge Randolph in his special writing in Wolff, 127 F.3d at 89-90 (Randolph, J., concurring in part and dissenting in part):

If one took the judge at his word [that the prosecutor’s recommendation played no role in his sentencing judgment], sending the case back to him for resentencing would have been senseless. And so the Supreme Court ordered any resentencing of Santobello to be done by a different judge. I suppose this avoided making the prosecutor's breach a clear harmless error and preserved the possibility that Santobello might receive some benefit from the prosecutor’s promised silence.

We agree. Here, Judge Timm did nothing wrong; he appropriately exercised his discretion in sentencing, indicating he was disregarding the prosecutor’s remarks. If this case were remanded to him for resentencing, he would be acting well within his discretion and consistent with his earlier remarks if he imposed the very same sentence. However, in order to create a consequence for a prosecutor’s broken promise, Santo-bello requires resentencing before a different judge. The logic of the requirement is sound. A criminal defendant has a constitutional right to the enforcement of a plea bargain. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Due process requires that a guilty plea be voluntary and knowing and if it is induced by broken promises, the plea cannot stand. Id. (citing, e.g., Santobello). Santobello outlines the remedies for a constitutional breach in this regard. We have an obligation to obey the law and to yield to superior authority. How can we legitimately refuse to follow direct precedent from the United States Supreme Court on a constitutional issue flowing from an identical set of facts?