CONSIDERED ON BRIEFS ON APRIL 25, 2016
REASSIGNED JUNE 30, 2016
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT GREGORY
COUNTY, SOUTH DAKOTA THE HONORABLE KATHLEEN F. TRANDAHL Judge
J. JACKLEY Attorney General ANN C. MEYER Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
J. STEFFEN Gregory, South Dakota Attorney for defendant and
WILBUR, Justice (on reassignment).
Lisa Slotsky agreed to plead guilty to a charge of
unauthorized ingestion of a controlled substance in exchange
for the State dismissing the remaining charges. The State
also agreed to recommend a light sentence with no jail time.
The circuit court sentenced Slotsky to five years in prison
with one year suspended. Slotsky appeals her sentence,
arguing that the State breached the plea agreement. We
reverse and remand for resentencing.
After a traffic stop for speeding in March 2015, the State
charged Slotsky with unauthorized ingestion of a controlled
substance, driving under the influence, driving while license
is revoked, and speeding. Slotsky pleaded not guilty. In
August 2015, the circuit court held a change-of-plea hearing.
At the hearing, counsel for Slotsky indicated that Slotsky
"will plead guilty to the ingestion charge in Count I.
And the court - - or, the State will make a recommendation of
Hope Court with no jail time." The State also agreed to
dismiss the remaining charges. The court accepted
Slotsky's guilty plea.
In September 2015, the circuit court held a sentencing
hearing. At the hearing, counsel for Slotsky argued that Hope
Court would be an appropriate sentence to rehabilitate
Slotsky and to help her overcome her addiction. When the
court asked for the State's response, the State explained
that Hope Court "was going to be my recommendation[, ] .
. . [b]ut, shortly after that plea was entered, it's
concerning to me the charges that were filed against her in
Tripp County, mostly because those aren't another
substance-abuse charge; those are serious felonies[.]"
The State also emphasized that Slotsky's criminal history
suggests that Slotsky may not be "able to maintain any
type of long-term sobriety once Hope Court is over for
her." The State also asserted that Slotsky's history
and the charges in Tripp County raise "red flags about
her ability to, not necessarily be clean and sober, but her
ability to maintain laws and not cause harm to other people
in the community[.]" The State asked the court to
"consider that in imposing any type of sentence."
Slotsky objected and asserted that the "plea agreement,
stated on the record, was that [the State] would do this plea
. . . and this whole line of argument is going against what
the plea agreement was." The State responded, "I
stated initially I still don't have an objection to her
being placed on Hope Court, but I think I have a right to
have my concerns on the record for any matter in to the
future." It further contended, "And I have not
asked her to be placed in the penitentiary for any period of
time." The circuit court sentenced Slotsky to five years
in prison with one year conditionally suspended. Slotsky
appeals, asserting that the State breached the plea
When analyzing whether the State breaches a plea agreement,
we apply ordinary principles of contract law. State v.
Waldner, 2005 S.D. 11, ¶ 8, 692 N.W.2d 187, 190.
"Like all contracts, plea agreements include an implied
obligation of good faith and fair dealing." State v.
Morrison, 2008 S.D. 116, ¶ 5, 759 N.W.2d 118, 120
(quoting Erickson v. Weber, 2008 S.D. 30, ¶ 27,
748 N.W.2d 739, 746). Therefore, "[w]hen 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." State v. Bracht, 1997 S.D.
136, ¶ 6, 573 N.W.2d 176, 178 (quoting United States
v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997)).
Here, Slotsky contends that the State breached the plea
agreement when the State failed to recommend Hope Court and
no jail time. According to Slotsky, the State impliedly
argued for a harsher sentence. In response, the State asserts
that it "did not renege on any deal by implicitly
arguing for a tougher penalty at sentencing." In the
State's view, it upheld its end of the plea agreement
because it did not object to Slotsky being placed in Hope
Court and it never argued that Slotsky be sentenced to the
penitentiary for any length of time.
"[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." Santobello v. New
York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d
427 (1971); Waldner, 2005 S.D. 11, ¶ 9, 692
N.W.2d at 190. This is because, by pleading guilty, the
defendant gives up her bargaining power. So "[o]nce the
defendant has given up his 'bargaining chip' by
pleading guilty, due process requires that the
defendant's expectations be fulfilled."
Morrison, 2008 S.D. 116, ¶ 5, 759 N.W.2d at 120
(quoting Waldner, 2005 S.D. 11, ¶ 13, 692
N.W.2d at 191-92). And it does not matter if the State
breaches the plea agreement inadvertently; "the
defendant is still entitled to a remedy for ...