APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE PETER H. LIEBERMAN Judge
CONSIDERED ON BRIEFS ON NOVEMBER 15, 2010
[¶1.] Steven Shumaker appeals his conviction for fourth offense DUI. The issue is whether the trial court erred in sentencing Shumaker to five years in the state penitentiary, with two years conditionally suspended. Because the trial court accepted Shumaker's binding plea agreement, which called for a sentence no greater than three years, the court erred when it sentenced Shumaker.
[¶2.] On June 18, 2009, Defendant Steven Shumaker was arrested for Driving Under the Influence. Shumaker was charged by Indictment with Driving Under the Influence. The State also filed a Part 2 Information charging Shumaker with Fourth Offense Driving Under the Influence pursuant to SDCL 32-23-4.6, which is a Class 5 felony punishable by five years imprisonment.
[¶3.] The State negotiated a plea agreement with Shumaker that called for a cap of three years penitentiary time. Nothing in the record suggests that the plea agreement called for any suspended penitentiary time beyond the three years. On January 6, 2010, a plea hearing was conducted. The trial court fully advised Shumaker of his rights. The relevant part of the plea hearing went as follows:
THE COURT: Is there any agreement I should be aware of, Miss Laughlin?
MISS LAUGHLIN: There is, Your Honor. The agreement is a cap of three years penitentiary time . . . .
THE COURT: Instead of facing five years, you would be facing no more than three years. Do you have any questions about that?
THE DEFENDANT: No, Your Honor.
THE COURT: There will also be suspended penitentiary time. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And you and your client understand under State versus Reeves [sic] the only thing the Court can bind itself to is no ...