APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA HONORABLE JON S. FLEMMER Judge.
The opinion of the court was delivered by: Meierhenry, Justice
CONSIDERED ON BRIEFS ON OCTOBER 4, 2010
[¶1.] Nicholas Rondell appeals an adverse ruling on a suppression motion. Rondell was arrested for driving while under the influence of alcohol. Rondell claimed that the traffic stop was an unconstitutional search and seizure and moved to suppress evidence resulting from the stop. After the trial court denied Rondell's motion, he entered into a plea agreement with the State. The State and Rondell agreed that Rondell would enter a "conditional guilty plea" to preserve his right to appeal the court's adverse suppression motion ruling. The trial court accepted the conditional guilty plea -- also with the understanding that the agreement contemplated that Rondell was preserving his right to appeal. On appeal, but without filing a notice of review, the State raises the issue whether Rondell waived his right to appeal. The State claims that South Dakota law does not provide for a conditional guilty plea and that a benefit of the bargain plea under North Carolina v. Alford waives all non-jurisdictional defects, including allegations of an unconstitutional traffic stop.*fn1 Generally we do not consider issues that have not been raised to the trial court or noticed for review. Hall v. State ex rel. S.D. Dep't of Transp ., 2006 S.D. 24, ¶ 12, 712 N.W.2d 22, 26. Nevertheless, the unique plea agreement between Rondell and the State involving a conditional guilty plea prompts us to question the trial court's jurisdiction. We therefore address the question whether a trial court has authority to accept a conditional plea.
[¶2.] Rondell was arrested for: driving under the influence of alcohol, third offense, a violation of SDCL 32-23-1; driving with a revoked license, a violation of SDCL 32-23-4; possession of an open container, a violation of SDCL 35-1-9.1; and underage consumption, a violation of SDCL 35-9-2. Before trial, Rondell filed a motion to suppress evidence gathered the night he was arrested. Rondell argued to the trial court that the officer did not have reasonable suspicion to make a lawful traffic stop. The trial court denied Rondell's motion, finding that reasonable suspicion justified the stop. After his suppression motion was denied, Rondell changed his not guilty plea to a conditional guilty plea. In exchange for Rondell's plea, the state's attorney dismissed the charges for underage consumption, open container, and driving with a revoked license.
[¶3.] The State, Rondell, and the trial court understood that the plea was entered as a conditional plea. The following exchange took place at the plea hearing:
Rondell's Attorney: I'll outline [the plea agreement] for the Court. Mr. Rondell's agreed to withdraw his earlier not guilty plea, enter a conditional guilty plea to the charge of DUI, Third Offense. Thereby preserving his right to appeal [ ] [the] [d]enial of the motion to suppress but saving the State the burden of trial. In [ ] exchange I believe the State will not proceed on the misdemeanor charges and will not oppose Mr. Rondell's request for a sentence to run concurrent to a sentence that he's looking at in Brown County[.]
Trial Court: Is that the extent of the agreement [Rondell's attorney]?
Rondell's Attorney: Yes, Your Honor.
Trial Court: And, [state's attorney], is that the State's understanding of the agreement?
State's Attorney: Yes, Your Honor.
Trial Court: And, Mr. Rondell, is that your understanding of the agreement that you've made with the [s]tate's [a]ttorney?
Rondell: Yes, Your Honor.
Trial Court: And I guess by a conditional plea, [Rondell's attorney], you're referring to an Alfred [sic] plea basically where the Defendant is not admitting the offense but wishes to ...