State v. Morrison

#24848-vac & rem-PER CURIAM

2008 SD 116

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ASHLEY DAVID MORRISON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
MELLETTE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

LAWRENCE E. LONG
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TERRY L. PECHOTA
Pechota Law Office
Rapid City, South Dakota Attorney for defendant
and appellant.

* * * *

CONSIDERED ON BRIEFS
ON NOVEMBER 3, 2008

OPINION FILED 12/03/08
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PER CURIAM

ACTION

[¶1.] Alleging that the State breached the terms of his plea agreement,

Ashley David Morrison (Morrison) appeals his sentence. Morrison requests that his

sentence be vacated and the matter be remanded for resentencing before a different

judge.

FACTS

[¶2.] Morrison was charged with a violation of SDCL 22-22-7, sexual contact

with a child under sixteen. 1 Morrison and the states attorney reached a plea

agreement. The plea agreement, as contained in the presentence report and

referenced by Morrison in his appeal brief, reads:

Plead guilty to Sexual Contact with a Child Under Sixteen
Years of Age, the State will not object to his request for a
Suspended Imposition of Sentence. The State is recommending
that the defendant serve 180 days in the penitentiary as a
condition of a probationary sentence. Both parties are free to
speak at sentencing.

(Emphasis added.)

[¶3.] The complete record of the states attorney’s comments, and Morrison’s

objection, is as follows:

STATES ATTORNEY: Thank you, Your Honor. Well, this case
here is disturbing, to say the very least. The thing more
disturbing to me than any part of it was I agreed with Mr.
Pechota [Morrison’s counsel] – I talked to the family first – that
I’d recommend suspended imposition of sentence. That was
before I read his [Morrison’s] version of it in the presentence
investigation. And I’m not going to break my word. I don’t

1. The facts of Morrison’s criminal charge are irrelevant to the issue raised on
appeal.
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know if the family would want me to. And I don’t want to go
through with a trial with it, not that we couldn’t. But when I
read the presentence report and read his version of it, it was like
a fairy tail [sic]. He didn’t accept any responsibility.

In the federal system you get two points for accepting
responsibility. He would have never got that at all. And it
disturbed me then. But I’m not the person going to back out of a
deal that I made with Terry, with Attorney Pechota. I respect
Terry. And Terry didn’t know what would be in this thing no
more than I did. I would have to think maybe Terry was a little
surprised when he read his version of it here because we’ve gone
through a preliminary and had a pretty good investigator in this
case. And so I’m not backing out of the deal. I’m surely
disappointed in his version of it at the presentence here. If I
would have thought that was going to happen that way, I’m not
sure I would have even agreed to recommend. But of course
recommending doesn’t mean you’re going to accept it anyhow,
and we go into it knowing that.

But I was surely disappointed in his version of it, in the
presentence. And, if I recollect, that he pled – changed his plea.
There wasn’t any indication that he was going to be doing
something like this. But he did it. I’m not going to back out of
my recommendation for suspended imposition. But, again, he
was told then and we all know – the attorneys knows [sic] that
just because we make a recommendation doesn’t mean you’re
going to accept it.

MR. PECHOTA [Morrison’s counsel]: I mean, I have to object to
that because I don’t think – I mean we just had a case out of this
South Dakota Supreme Court just last week. I don’t think that
you can backhandedly, you know, back out of a recommendation
and a plea agreement that you’ve entered into. So I’ve sort of
sat here and I thought that, you know, a brief comment was
okay. But I mean I think that the state’s attorney [sic] is going
out of his way to underhandedly – well, not underhandedly, but
through the back door trying to renege on the plea agreement in
this case.

THE COURT: Are you reneging on the plea agreement?

STATES ATTORNEY: Of course I’m not. I’m not reneging on it.
I just said that I wasn’t – I’m going to, so I’m not reneging on it.
I’m not doing that. I would have come right out and said it. I
just said I’m disappointed in his version of it. I’m not reneging

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on it, but I’m sure – it’s correct, it’s up to her to accept it
anyhow. We all know that. I know it. You know it. Ask, your
the client knows it. [sic]

MR. PECHOTA: But your comments – you’re the executive
branch. The Court is the judicial branch. And they are affected
by your comments, the judicial branch is, as I think they have to
have some concern for what your position is just in our form of
government. So but anyway –

THE COURT: Anything further?

MR. PECHOTA: No, Your Honor.

[¶4.] The court sentenced Morrison to ten years in the South Dakota

Penitentiary with five years suspended, plus additional conditions. Morrison

appeals his sentence contending that the State violated the plea agreement.

Morrison requests that his sentence be vacated and the matter be remanded for

resentencing before a different judge.

ISSUE

Whether the State’s Attorney breached the plea
agreement not to resist defendant’s request for a
suspended imposition of sentence.

ANALYSIS AND DECISION

[¶5.] “Generally, plea agreements are contractual in nature and are

governed by ordinary contract principles.” State v. Waldner, 2005 SD 11, ¶8, 692

NW2d 187, 190 (quoting State v. Stevenson, 2002 SD 120, ¶9, 652 NW2d 735, 738).

“Like all contracts, [plea agreements] include [ ] an implied obligation of good faith

and fair dealing.” Erickson v. Weber, 2008 SD 30, ¶27, 748 NW2d 739, 746 (quoting

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Vanden Hoek v. Weber, 2006 SD 102, ¶14, 724 NW2d 858, 862 (alterations original)

(citations omitted)).

“[O]nce the defendant has given up his ‘bargaining chip’ by
pleading guilty, due process requires that the defendant’s
expectations be fulfilled.” State v. Howard, 630 NW2d 244, 250
(WisCtApp 2001). This is because the “agreement by the State
to recommend a particular sentence may induce an accused to
give up the constitutional right to a jury trial. Consequently,
once an accused agrees to plead guilty in reliance upon a
prosecutor’s promise to perform a future act, the accused’s due
process rights demand fulfillment of the bargain.” State v.
Williams, 637 NW2d 733, 744 (Wis 2002). . . . “That the breach
of the agreement may have been inadvertent does not lessen its
impact; the defendant is still entitled to a remedy for the
breach.” Howard, 630 NW2d at 251.

Waldner, 2005 SD 11, ¶13, 692 NW2d at 191-92. “When the State breaches the

terms of a plea agreement, the proper remedy is remand for resentencing before a

new judge.” Vanden Hoek, 2006 SD 102, ¶25, 724 NW2d at 865.

[¶6.] “[T]he inquiry is not whether or not the trial court was affected by the

breach of the agreement, but whether the [s]tates [a]ttorney met his or her

obligation.” Waldner, 2005 SD 11, ¶12, 692 NW2d at 191. “We emphasize that this

is in no sense to question the fairness of the sentencing judge; the fault here rests

on the prosecutor, not on the sentencing judge.” Vanden Hoek, 2006 SD 102, ¶25,

724 NW2d at 865.

[¶7.] While Morrison contends that the State’s only obligation was to not

object to or resist his request for a suspended imposition of sentence, the State

concedes a more stringent obligation:

A review of the record exhibits that the specifics of the plea
agreement were acknowledged by the state’s attorney to the
court, namely, that a recommendation for a suspended
imposition would be made. The State may not have

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enthusiastically fulfilled its obligation under the plea
agreement, but it did fulfill it.

Appellee’s Brief, p13 (emphasis added). Considering the transcript, it is not clear

that the State fulfilled either of these obligations in good faith.

[¶8.] Initially, the states attorney was under no obligation to enter into a

plea agreement. The states attorney, of his own volition, offered a plea agreement

and it was accepted by Morrison. After the agreement, the states attorney was

under an obligation not to object to Morrison’s request for a suspended imposition of

sentence, or, as the State suggests, to recommend the suspended imposition itself.

The State was required to carry out these obligations in good faith.

[¶9.] Morrison was under no obligation to admit to any particular set of

facts during the presentence investigation. Morrison was required to plead guilty,

which he did at a prior hearing. While Morrison’s comments during the presentence

investigation tend to blame the victim, he was not equivocal about his criminal

guilt. Morrison performed his obligations under the plea agreement.

[¶10.] The states attorney was “disappointed” by statements made by

Morrison during the presentence investigation 2 and grew wary of the plea

agreement. The states attorney then conveyed his discomfort and doubts to the

sentencing court. The states attorney, in his earliest words to the court, phrases his

2. Morrison’s description of the criminal incident in the presentence
investigation repeats his statements made to the Department of Criminal
Investigations officer during a recorded telephone conversation. While
Morrison’s adherence to this description may “disappoint” the states
attorney, it should not surprise him. As a matter of the obligations under the
plea agreement, Morrison’s interpretation of his moral culpability, or lack
thereof, does not bear on his admission of criminal guilt.

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discontent with the plea agreement as more disturbing to him than the underlying

criminal conduct – sexual contact with a child. 3

[¶11.] While the agreement was not explicitly reneged, 4 the State impliedly

argued for a tougher sentence by voicing its discomfort with a suspended

imposition. The statements, taken as a whole, encourage the sentencing court to

disregard the State’s recommendation of a suspended imposition of sentence or at

least are resistant to the suspended imposition. “The State’s ‘rhetoric was not

rhetorical,’ and instead amounts to a ‘transparent effort to influence the severity of

the defendant’s sentence,’ without fulfilling its end of the bargain.” Vanden Hoek,

2006 SD 12, ¶23, 724 NW2d at 864 (citing State v. Bracht, 1997 SD 136, ¶9, 573

NW2d 176, 179 (quoting United States v. Miller, 565 F2d 1273, 1276 (3dCir 1977)

(Stern, District Judge, dissenting))). The State breached the plea agreement when

it did not fulfill its end of the bargain in good faith.

3. “Thank you, Your Honor. Well, this case here is disturbing, to say the very
least. The thing more disturbing to me than any part of it [this case] was I
agreed with Mr. Pechota . . . that I’d recommend suspended imposition of
sentence.” (Emphasis added.)

It should be noted that the states attorney repeatedly refers to an agreement
between Mr. Pechota and himself. The plea agreement is between the State
and Morrison.

4. The State argues that a “bright line” was drawn on this issue because the
sentencing court directly asked the states attorney whether he was reneging
or not. This “bright line” question and answer, it is suggested, factually
distinguishes Morrison’s case from prior cases and resolves the issue of the
breach of the plea agreement. Whatever “remedial” effect such questioning
may have had is insufficient to satisfy Morrison’s due process rights.
Furthermore, such a question and answer does not resolve the breach of good
faith.

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[¶12.] “In order to preserve the integrity of plea bargaining procedures and

public confidence in the criminal justice system, a petitioner is generally entitled to

the enforcement of a plea agreement without showing a tangible harm resulting

from that breach.” Baldridge v. Weber, 2008 SD 14, ¶34, 746 NW2d 12, 20 (quoting

United States v. Vaval, 404 F3d 144, 155 (2dCir 2005)). Because the State breached

the plea agreement, Morrison was not afforded a fair and reliable sentencing

proceeding.

[¶13.] Morrison’s sentence is vacated and the case remanded for resentencing

by a different judge.

[¶14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER

and MEIERHENRY, Justices, participating.

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