APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE DAVID R. GIENAPP Judge
The opinion of the court was delivered by: Wilbur, Justice
[¶1.] Chris Jones entered into a plea agreement with the State. Under the terms of the plea agreement, Jones agreed to plead guilty to three counts of second-degree rape and one count of kidnapping. After sentencing, Jones filed a motion to reconsider the sentence based upon an alleged violation of the plea agreement by the State. The trial court granted the motion and held a resentencing hearing. At the hearing, the trial court denied Jones's oral motion for a different sentencing judge. Jones appeals, arguing that he was entitled to resentencing before a different judge and that his sentence is cruel and unusual punishment. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Jones confessed to raping three women during a two-month period in Brookings County, South Dakota. Following his confession, the State charged Jones in a nine-count indictment. Before trial, the State wrote Jones's counsel a letter containing a proposed plea agreement. Under the proposed plea agreement, the State would dismiss five of the charges against Jones in exchange for Jones's guilty plea to the four remaining counts. Specifically, the letter provided:
In order to avoid the trial and further emotional trauma to the three victims, on behalf of the State I would propose that Jones enter pleas of guilty to Counts 2, 4, 5, and 7 with the remaining 5 Counts being dismissed. Additionally, the State would recommend a cap of seventy (70) years maximum. That is not to exceed seventy (70) years of unsuspended penitentiary time. Of course this would be only a recommendation, but I do not believe [the trial court judge] has ever gone beyond that which the State has recommended as a cap and it certainly could be less. (Emphasis added.)
[¶3.] Jones accepted the plea agreement and entered guilty pleas. The State placed the final plea agreement on the record at the change of plea hearing. However, approximately six weeks later at sentencing, the State failed to verbalize the plea agreement. Jones did not object to the State's failure to verbalize the agreement. [¶4.] Three weeks after sentencing, Jones filed a motion to reconsider the sentence. In reviewing the motion, the trial court found that the State's failure to verbalize the plea agreement to the court at the time of sentencing was a material breach of the plea agreement and granted Jones's motion. At resentencing, Jones made an oral motion for a new sentencing judge. Jones cited three decisions by this Court for the proposition that the remedy for a breach of a plea agreement is resentencing before a different judge. The trial court denied the motion. At resentencing, Jones received a sentence totaling 15 years less than his first sentence, but still in excess of the 70 years the State recommended pursuant to the plea agreement.
[¶5.] 1. According to Puckett v. United States, we review for plain error a forfeited claim that the State has violated the terms of a plea agreement.
[¶6.] Before determining the merits of Jones's argument, we must first determine the appropriate standard of review. Both parties assert that this is a constitutional issue which this Court should review de novo. Despite the parties' agreement, "[o]nce appellate jurisdiction is established . . . the court has to decide . . . under what framework, scrutiny, or division of labor it will review [the issues]."
Oldham-Ramona Sch. Dist. No. 39-5 v. Ust, 502 N.W.2d 574, 580 (S.D. 1993) (emphasis added) (quoting 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 1.03 (1992)). In deciding the appropriate standard of review, "[w]e repeatedly define or refine standards of review as new issues come before us and apply those standards to the cases in controversy we are reviewing." Id. As a result of the United States Supreme Court decision Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), we reassess our standard of review for appeals involving a prosecutorial breach of a plea agreement. [¶7.] In Puckett, the Supreme Court held that the automatic reversal rule described in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427, only applies "when objection to the Government's breach of a plea agreement has been preserved . . . ." Puckett, 556 U.S. at ___, 129 S. Ct. at 1432. There has been some disagreement on this Court as to whether Santobello always requires resentencing before a different trial court judge. See, e.g., State v. Bracht, 1997 S.D. 136, 573 N.W.2d 176 (Miller, C.J., concurring in part and dissenting in part) (Gilbertson, J. concurring in part and dissenting in part). However, we do not need to revisit whether Santobello always requires resentencing before a different judge in order to resolve this case if Jones did not timely object. According to Puckett, if the appellant did not make a timely objection at sentencing to an alleged breach of a plea agreement, the claim is forfeited and the lower court's sentence is reviewed for plain error according to Federal Rule of Civil Procedure 52(b). Puckett, 556 U.S. at ___, 129 S. Ct. at 1433.
[¶8.] South Dakota has adopted Rule 52(b), and this Court, like the United States Supreme Court, has applied plain error review to issues "not preserved for appellate review." State v. Thomas, 2011 S.D. 15, ¶ 14, 796 N.W.2d 706, 711; see also SDCL 23A-44-15. Therefore, in order to determine whether or not wereview for plain error according to Puckett and SDCL 23A-44-15, we must first determine whether Jones has preserved the issue for review.
[¶9.] 2. Because Jones did not contemporaneously object to the State's violation of the plea agreement, he forfeited his claim.
[¶10.] To preserve a breach of plea agreement claim for appeal, the Supreme Court in Puckett required a "contemporaneous objection" to the prosecutorial breach at the trial level. See Puckett, 556 U.S. at ___, 129 S. Ct. at 1429 ("Failure to abide by this contemporaneous-objection rule ordinarily precludes the raising on appeal of the unpreserved claim of trial error."). Jones did not object to the State's breach of the plea agreement at sentencing. Rather, Jones filed a motion to reconsider the sentence approximately three weeks afterthe trial court's initial sentence. [¶11.] The Eighth Circuit Court of Appeals decision in United States v. Smith provides further guidance as to what constitutes a "contemporaneous objection." 590 F.3d 570 (8th Cir. 2009). The defendant in Smith, like Jones, did not object to the prosecutor's alleged breach at the sentencing hearing. Id. at 576. On appeal, the defendant argued that despite his failure to object at sentencing, the court should review his appeal de ...