STATE OF SOUTH DAKOTA v. LISA BETH SLOTSKY

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.

[¶3.] 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[.]”

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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.”

[¶4.] 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 agreement.

Analysis

[¶5.] 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

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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)).

[¶6.] 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.

[¶7.] “[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 the breach.”

Id. Also, we do not examine whether the circuit court was in fact influenced by the

breach of the agreement. Id. ¶ 6. The inquiry is whether the State met its

obligation. Id.

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[¶8.] Based on our review, the plea agreement required the State to

recommend that Slotsky be placed in Hope Court and that she receive no jail time.

At sentencing, instead of recommending Hope Court and no jail time, the State

highlighted and detailed Slotsky’s criminal history and suggested that Slotsky

would be unable to maintain sobriety or obey the laws and not cause harm in the

community. As we recognized in Morrison, by impliedly arguing for a harsher

sentence, the State in effect asked the circuit court to disregard the State’s

recommendation under the plea agreement. Id. ¶ 11. And the State’s

characterization of its remarks as not “opposing” Hope Court or no jail time is

nothing more than “a ‘transparent effort to influence the severity of the defendant’s

sentence,’ without fulfilling its end of the bargain.” Id. (quoting Vanden Hoek v.

Weber, 2006 S.D. 102, ¶ 23, 724 N.W.2d 858, 864). The State’s failure to recommend

Hope Court and no jail time is a material and substantial breach of the plea

agreement.

[¶9.] “We need not reach the question whether the sentencing judge would

or would not have been influenced[.]” Waldner, 2005 S.D. 11, ¶ 9, 692 N.W.2d at

190 (quoting Bracht, 1997 S.D. 136, ¶ 7, 573 N.W.2d at 179). “[S]uch speculation is

of no legal significance”—“the inquiry is not whether or not the trial court was

affected by the breach of the agreement, but whether the State’s Attorney met his or

her obligation.” Id. ¶ 12. “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.