May 29, 2013
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
TRAVIS LONG FOX, Defendant and Appellant.
CONSIDERED ON BRIEFS ON JANUARY 8, 2013
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT SULLY COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge
MARTY J. JACKLEY Attorney General JOHN M. STROHMAN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
AL ARENDT Pierre, South Dakota Attorney for defendant and appellant.
GILBERTSON, Chief Justice.
[¶1.] While intoxicated, Travis Long Fox stole a vehicle, drove the vehicle into a ditch, and then fled the scene of the accident. The State brought various charges against Long Fox, including grand theft. Long Fox entered into a "Deferred Prosecution Agreement" (the Agreement) with the State, in which the State agreed to defer prosecution of the grand theft charge if Long Fox pleaded guilty to other charges and complied with additional conditions for a period of 24 months. One of the conditions required Long Fox to plead guilty to grand theft if he violated any of the other conditions of the Agreement. A few months into the 24-month period, Long Fox violated some of the conditions of the Agreement. As a result, the State re-filed the grand theft charge against Long Fox. Long Fox then filed a motion to exercise his right to a jury trial, which the circuit court denied based upon the terms of the Agreement. Ultimately, Long Fox pleaded guilty to grand theft and was sentenced. Long Fox appeals the circuit court's denial of his motion to exercise his right to a jury trial on the grand theft charge.
[¶2.] On August 15, 2010, 18-year-old Long Fox stole a car, drove the car off of the road and into rural fence lines, and got the car stuck in a ditch. He then fled the scene of the accident. Subsequently, a police officer was called to the scene. Witnesses at the scene told the officer that Long Fox admitted he took the car and got it stuck in the ditch. Upon learning that Long Fox was staying at a friend's residence, the officer contacted Long Fox's friend and received permission to enter the residence in order to apprehend Long Fox. When the officer entered the home, he located Long Fox, placed him in custody, and read him his Miranda rights.
[¶3.] Long Fox waived his rights and agreed to speak with the officer. Long Fox admitted he had taken the car and wrecked it. He also admitted he had consumed alcohol before driving the car. Additionally, Long Fox admitted he had previously stolen a tractor battery from a neighbor's tractor in an incident unrelated to the theft of the vehicle.
[¶4.] On August 18, 2010, Long Fox was charged with grand theft, in violation of SDCL 22-30A-17; reckless driving, in violation of SDCL 32-24-1; failure to report an accident, in violation of SDCL 32-34-7; minor in consumption, in violation of SDCL 35-9-2; and petty theft, in violation of SDCL 22-30A-17.3. An amended complaint was filed on September 1, 2010, which added charges of possession of marijuana, in violation of SDCL 22-42-6, and ingestion, in violation of SDCL 22-42-15, to the list of charges being brought against Long Fox. Long Fox was arraigned on these charges on September 22, 2010, and he entered a plea of "not guilty" to all charges.
[¶5.] On October 6, 2010, Long Fox appeared before the magistrate court and entered into the Agreement with the State. The Agreement was signed by the magistrate judge. As part of the Agreement, the State agreed to defer prosecution of the grand theft charge for 24 months if Long Fox complied with certain conditions. One of these conditions was that Long Fox plead guilty to reckless driving, ingestion, and failure to report an accident. In exchange for pleading guilty to these charges, the State would dismiss the possession, minor in consumption, and petty theft charges with prejudice. The Agreement also contained other conditions, including that Long Fox participate in the 24/7 program, not consume or possess alcohol or controlled substances, pay restitution to the owner of the car and the owner of the fence, and provide a factual basis for the grand theft charge within the Agreement, which would be used against him if the grand theft charge was re-filed.
[¶6.] According to the terms of the Agreement, if Long Fox complied with the conditions for 24 months, the State would file a dismissal of the grand theft charge with prejudice. However, if Long Fox violated any of the conditions, the grand theft charge would be re-filed and Long Fox would plead guilty to grand theft. By signing the Agreement, Long Fox acknowledged that he understood his rights, the nature of the charges against him, the maximum penalties that could be imposed for his offenses, and the rights he waived by pleading guilty. Further, Long Fox acknowledged that he entered into the Agreement freely and voluntarily. After pleading guilty to reckless driving, ingestion, and failure to report an accident in accordance with the terms of the Agreement, Long Fox was placed on probation.
[¶7.] Months after entering into the Agreement, Long Fox violated the conditions of his probation and of the Agreement. Specifically, Long Fox tested positive for marijuana on January 13, 2011, and he missed his preliminary breath test on April 21, 2011. Additionally, on July 15, 2011, Long Fox attempted to provide a false urine sample to law enforcement and then tested positive for marijuana. As a result of Long Fox's violation of the conditions of his probation and of the Agreement, the State re-filed the grand theft charge against Long Fox. The State also moved to revoke Long Fox's probation and its deferment of prosecution of the grand theft charge. On October 19, 2011, Long Fox moved to exercise his right to a jury trial. The circuit court denied this motion, ruling that Long Fox was contractually bound by the terms of the Agreement, which required him to plead guilty to grand theft if he violated the conditions of the Agreement.
[¶8.] A hearing was scheduled for November 9, 2011, to address the State's motion to revoke Long Fox's probation and its deferment of prosecution of the grand theft charge. At the hearing, Long Fox admitted to violating the conditions of his probation and of the Agreement. Long Fox was then re-arraigned on the grand theft charge. Despite his desire to plead not guilty and exercise his right to a jury trial on the grand theft charge, Long Fox reluctantly pleaded guilty to grand theft in accordance with the terms of the Agreement. Long Fox was sentenced on February 13, 2012. The circuit court imposed a jail term of 5 years, with all but 60 days suspended if Long Fox complied with certain conditions. Long Fox appeals the circuit court's denial of his motion to exercise his right to a jury trial on the grand theft charge.
ANALYSIS AND DECISION
[¶9.] Whether the circuit court erred in denying Long Fox's motion to exercise his right to a jury trial on the grand theft charge.
[¶10.] Long Fox argues the portion of the Agreement requiring him to plead guilty to grand theft was unconstitutional because it forced him to plead guilty to grand theft at a later arraignment if he violated the conditions of the Agreement.Thus, Long Fox asserts the circuit court erred in denying his motion to exercise his right to a jury trial on the grand theft charge and instead enforcing the portion of the Agreement requiring him to plead guilty to grand theft because that portion of the Agreement was unconstitutional.
[¶11.] "Alleged violations of constitutional rights are reviewed de novo." State v. Zakaria, 2007 S.D. 27, ¶ 8, 730 N.W.2d 140, 143 (citing State v. Carothers, 2005 S.D. 16, ¶ 7, 692 N.W.2d 544, 546). "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969) (citing Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927)). Thus, with regard to guilty pleas:
It is beyond dispute that a guilty plea must be both knowing and voluntary. The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. That is so because a guilty plea constitutes a waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination.
Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992) (internal citations and quotation marks omitted). See also Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1969) (stating that a plea must be a "voluntary expression of [the defendant's] own choice").
[¶12.] In this case, we conclude that the portion of the Agreement requiring Long Fox to plead guilty to grand theft, which encompassed Long Fox's waiver of his right to a jury trial,  is unenforceable. After Long Fox admitted to violating the conditions of his probation and of the Agreement, Long Fox was re-arraigned on the grand theft charge. Although Long Fox agreed to plead guilty to grand theft if he failed to satisfy the conditions of the Agreement, Long Fox should have been able to withdraw from the portion of the Agreement related to the grand theft charge until he entered a guilty plea on that charge. See Wayne LeFave, et al. 5 Crim. Proc. § 21.2(f) (3d ed. 2007) (quoting People v. Heiler, 262 N.W.2d 890, 895 (Mich. Ct. App. 1977)) (stating that defendants "are always free to withdraw from plea agreements prior to entry of their guilty plea regardless of any prejudice to the prosecution that may result from a breach"). However, despite Long Fox's desire to maintain his plea of not guilty and exercise his right to a jury trial on the grand theft charge, Long Fox was forced to plead guilty to grand theft under the terms of the Agreement.
[¶13.] Therefore, in this case, Long Fox never voluntarily, of his own choice, entered a plea of guilty to grand theft. As a result, we conclude that the portion of the Agreement requiring Long Fox to plead guilty to grand theft is unenforceable because it unconstitutionally deprived Long Fox of his right to voluntarily enter his choice of plea on the grand theft charge. Further, because the portion of the Agreement requiring Long Fox to plead guilty to grand theft is unenforceable, the circuit court erred in determining Long Fox was bound by that portion of the Agreement and in subsequently denying Long Fox's motion to exercise his right to a jury trial.
[¶14.] In reaching this conclusion we note that neither party cites to any provision in the South Dakota Codified Laws or any caselaw that contemplates the enforcement of an agreement in which a defendant gives up his right to voluntarily enter a plea of his or her choice. Although SDCL 23A-7-8 discusses plea agreements, SDCL 23A-27-12 discusses probation, SDCL 23A-27-13 discusses suspended impositions of sentences, and SDCL 23A-27-18 discusses suspended executions of sentences, none of these statutes contemplate the portion of the Agreement the State and Long Fox entered into in which Long Fox was required to plead guilty to grand theft upon violating the conditions of the Agreement, thus waiving his right to a jury trial.
[¶15.] We reverse and remand for proceedings consistent with this opinion.
[¶16.] ZINTER and SEVERSON, Justices, concur.
[¶17.] KONENKAMP, Justice, concurs in result.
[¶18.] WILBUR, Justice, deeming herself disqualified, did not participate.
KONENKAMP, Justice (concurring in result).
[¶19.] Although the Court holds unenforceable only a portion of the felony deferred prosecution agreement here, there is also a jurisdictional defect. As part of this agreement, the factual basis for the felony of grand theft was offered and accepted in magistrate court. It is doubtful whether a magistrate judge has jurisdiction to accept or approve felony plea agreements of any sort. With felonies, magistrate judges are limited to setting bail, assigning counsel, advising rights, holding preliminary hearings, and, in certain instances, taking "not guilty pleas, " but then only when directed to do so by the presiding judge. SDCL 23A-6-29.1; SDCL 23A-4-3. If magistrates cannot accept a felony guilty plea, how can they accept or approve a factual basis for a felony guilty plea as part of a deferred prosecution agreement?
[¶20.] More than anything, however, today's case illustrates the void in our law governing deferred prosecutions. While we know they exist — this was but one instance — deferred prosecution agreements in South Dakota have no standards, no guidelines for eligibility, and no formalized procedures authorized by legislation. They operate informally and purely at prosecutorial discretion. Nonetheless, when these agreements are legally sanctioned and properly managed, other jurisdictions have found them to be of considerable merit.
[¶21.] Not to be confused with deferred prosecution, South Dakota presently has several other complementary programs. One is the 24/7 Sobriety Program overseen by the Attorney General. SDCL ch. 1-11. Participation may be a condition of bond or pretrial release or a sentence. SDCL 1-11-20. Another is the Adult Probationary Drug Court Program. SDCL 16-12B-14.1. These programs have a distinctive difference from deferred prosecution: the locus of control over the case process. Deferred prosecution programs tend to be prosecution based, whereas Drug Courts and the 24/7 Sobriety Program are court-centered. Our recently enacted Public Safety Improvement Act, 2013 S.D. Sess. Laws ch. 101, addresses mostly post-conviction reforms.
[¶22.] Deferred prosecution programs help reduce criminal caseloads and incarceration rates and "assist the courts, prosecutors, and victims in addressing serious problems caused by growing criminal and juvenile justice populations through reducing reliance on traditional case processing and working to stem the 'revolving door' syndrome." National Association of Pretrial Services Agencies (NAPSA), Pretrial Diversion Abstract (January 1998). For those charged with public offenses, such programs provide "an opportunity to make significant changes in their lives and prevent further penetration into the criminal justice system." Id. [¶23.] According to the NAPSA, pretrial diversion or deferred prosecution is defined as "any voluntary option that provides alternative criminal case processing for a defendant charged with a crime and ideally results in a dismissal of the charge(s)." In the model established by NAPSA, these diversion programs feature: "(1) uniform eligibility criteria; (2) structured delivery of services and supervision; and (3) dismissal — or its equivalent — of pending criminal charges upon successful completion of the required term and conditions of diversion."Unsuccessful participants are returned for prosecution.
[¶24.] Our Legislature might well consider enacting authorization for a formal pretrial diversion program. Such legislation could address many questions that will remain open after today. Should criminal charges on any crime be permitted a diversion, or, as in many jurisdictions, should there be legislative limits on the types of crimes subject to diversion. Is anyone eligible for diversion, or should it be limited to first offenders, nonviolent offenders, youthful offenders, or chemically-addicted offenders? Should there be guidelines to ensure statewide uniformity in decisions allowing deferred prosecutions. How can the process be administered in a nondiscriminatory manner? See South Dakota Equal Justice Commission Final Report, Findings on Pretrial Processes, 7.1.4; Recommendation 7.2.3. Can prosecutors demand waiver of certain rights as a condition to obtaining a deferred prosecution. How long can a term of a deferred prosecution last? Do allegations of breach require a due process hearing? All these issues await resolution through enabling legislation. Without legislation, these questions may well be resolved only haphazardly through court rulings like the one today.