#25498-rev & rem-JKM

2010 S.D. 87

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

* * * * STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v. NICHOLAS RONDELL, Defendant and Appellant.

* * * * APPEAL FROM THE CIRCUIT COURT

OF THE FIFTH JUDICIAL CIRCUIT ROBERTS COUNTY, SOUTH DAKOTA * * * *

HONORABLE JON S. FLEMMER Judge

* * * *

MARTY J. JACKLEY Attorney General

CRAIG M. EICHSTADT Assistant Attorney General Attorneys for plaintiff Pierre, South Dakota and appellee.

ADAM G. BRIDGE Sisseton-Wahpeton Oyate Public Defender’s Office Attorney for defendant Agency Village, South Dakota and appellant.

* * * * CONSIDERED ON BRIEFS ON OCTOBER 4, 2010

OPINION FILED 

### 11/17/10#25498

MEIERH ENRY, Justice [¶1.] Nicholas Rondell appeals an adverse ruling on a suppression motion. Rondell was arrested for driving while under the influence of alcohol. Rondell claimed that the traffic stop was an unconstitutional search and seizure and moved to suppress evidence resulting from the stop . After the trial court denied Rondell’s motion, he entered into a plea agreement with the State. The State and Rondell agreed that Rondell would enter a “condition al guilty plea” to preserve his right to appeal the court’s adverse su ppression motion ruling. The trial court accepted the conditional guilty plea – also with the understanding that the agreement contemplated that Rondell was preserving his right to appeal. On appeal, but without filing a notice of review, the Stat e raises the issue wh ether Rondell waived his right to appeal. The State claims that South Dakota law does not provide for a conditional guilty plea and that a benefit of the bargain plea under North Carolina v. Alford waives all non-jurisdictional defe cts, including allegations of an unconstitutional traffic stop. 1 Generally we do not consider issues that have not

been raised to the trial court or noticed for review. Hall v. State ex rel. S.D. Dep’t of Transp ., 2006 S.D. 24, ¶ 12, 71 2 N.W.2d 22, 26. Nevertheless, the unique plea

1. In North Carolina v. Alford , the United States Supreme Court held that a plea can be entered by a defendant who maintains his innocence or is unable or unwilling to admit that he committe d a crime. 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162, 171 (1970). This Court recognized in State v. Engelmann that an Alford plea “allows a defendant the opportunity to avoid the risk of trial and obtain the benefit of a favorable plea bargain ‘even if he is unwilling or unable to admit his partic ipation in the acts constituting the crime.’” 541 N.W.2d 96, 101 (S.D. 1995) (quoting Alford , 400 U.S. at 37, 91 S.Ct. at 167).

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-2- agreement between Rondell and the Stat e involving a conditional guilty plea prompts us to question the trial court’s jurisdiction. We therefore address the question whether a trial court has auth ority to accept a conditional plea.

Facts [¶2.] Rondell was arrested for: driving under the influence of alcohol, third offense, a violation of SDCL 32-23-1; driv ing with a revoked license, a violation of SDCL 32-23-4; possession of an open cont ainer, a violation of SDCL 35-1-9.1; and underage consumption, a violation of SDCL 35-9-2. Before trial, Rondell filed a motion to suppress evidence gathered the ni ght he was arrested. Rondell argued to

the trial court that the officer did not ha ve reasonable suspicion to make a lawful traffic stop. The trial court denied Rondell’s motion, finding that reasonable suspicion justified the stop. After his suppression motion was denied, Rondell changed his not guilty plea to a conditional guilty plea. In exchange for Rondell’s plea, the state’s attorney dismissed th e charges for underage consumption, open container, and driving with a revoked license. [¶3.] The State, Rondell, and the tr ial court understood that the plea was entered as a conditional plea. The following exchange took place at the plea hearing: Rondell’s Attorney: I’ll outline [the plea agreement] for the Court. Mr. Rondell’s agreed to withdraw his earlier not guilty plea, enter a conditional guilty plea to the charge of DUI, Third Offense. Thereby preserving his right to appeal [ ] [the] [d]enial of the motion to suppress but saving the State the burden of trial. In [ ] exchange I believe the State will not proceed on the misdemeanor charges and will not oppose Mr. Rondell’s request for a sentence to run#25498

-3- concurrent to a sentence that he’s looking at i n Brown County[.]

Trial Court: Is that the extent of the agreement [Rondell’s attorney]? Rondell’s Attorney: Yes, Your Honor.

Trial Court: And, [state’s attorney], is that the State’s understanding of the agreement? State’s Attorney: Yes, Your Honor.

Trial Court: And, Mr. Rondell, is that your understanding of the agreement that you’ve made with the [s]tate’s [a]ttorney? Rondell: Yes, Your Honor.

Trial Court: And I guess by a conditional plea, [Rondell’s attorney], you’re referring to an Alfred [sic] plea basically where the Defendant is not admitting the offense but wishes to accept the benefit of the offer made by the State? 2 Rondell’s Attorney: Yes, Your Honor.

. . . Trial Court: And just so that we’re clear, the agreement calls for [Rondell] to enter an Alfred [sic] plea of guilty to the charge and the recommendation being made to the Court is to allow any sentence imposed here to the penitentiary to be allowed to run concurrently or at the same time as any sentence you receive on another charge in Brown County[.]

. . . Trial Court: And just so that we’re clear for the record, you wish to enter what’s called an Alfred [sic] plea in that 2. Although the trial court refers to this as an Alford (or Alfred) plea, the record demonstrates that Rondell, the State, and the trial court understood that the plea was a conditional plea, not an unconditional Alford plea.#25498

-4- you are not necessarily admitting that you committed the offense but you wish to accept or enter a plea of guilty in order to receive the benefit of the agreement that the State is offering in this case? Rondell: Yes, Your Honor.

. . . Trial Court: [T]hat also because there was the issue on the suppression hearing, here, I should advise you that you do have the right to appeal your decision here but that appeal would have to be filed within 30 days of when the written judgment of conviction is filed[.] Analysis[¶4.] The only pleas permitted in South Dakota are set forth in SDCL 23A7-2 (Rule 11(a)) as follows: Pleas permitted to defendant - Requirements for plea of guilty or nolo contendere. A defendant may plead: (1) Not guilty; (2) Not guilty and not guilty by reason of insanity; (3) Guilty; (4) Nolo contendere; or (5) Guilty but mentally ill. Except as otherwise specifica lly provided, a plea of guilty or nolo contendere can only be entered by a defendant himself in open court. If a defendant refu ses to plead, or if the court refuses to accept a plea of guilty or nolo contendere, the court shall enter a plea of not guilty. The court may not enter a judgment unless it is satisfied that there is a factual basis for any plea except a plea of nolo contendere. This statute does not provide for conditional pleas. [¶5.] As support for his argument that South Dakota could permit conditional pleas, Rondell points to Federal Rule of Criminal Procedure 11(a)(2).#25498

-5- Federal Rule 11(a)(2 ) permits conditional pleas under certain circumstances. The Federal Rule provides: “With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate co urt review an adverse determination of a specified pretrial motion. A defendant wh o prevails on appeal may then withdraw the plea.” Id. [¶6.] Rondell recognizes that South Dakota has not adopted a similar rule, but asserts that “there is nothing in Sout h Dakota’s Rules of Criminal Procedure that prohibits a conditional plea or the pr eservation of appeal rights following a guilty plea.” Conversely, the State argues that without a rule, the trial court lacks jurisdiction to accept a conditional guilty plea. 3 [¶7.] The Rhode Island Supreme Court faced a similar question in State v.

Keohane , 814 A.2d 327 (R.I. 2003). The Keohane court addressed whether a defendant’s conditional plea agreement, wh ich was not authorized by statute, could preserve for appeal a trial court’s denial of the defendant’s motion to suppress. Id.

at 328-29. The Keohane court held that Rhode Island statutes did not give the trial court the “authority to accept a conditional pl ea of guilty . . . preserving the right of the defendant to obtain review of the adverse determination of any specified pretrial

motion.” Id. at 329. The Keohane court further stated that “[t]he defendant’s guilty plea acted as an effective wa iver of his right of appeal; thus, the appeal [wa]s not properly before [the] Court.” Id. As a result, the Keohane court refused to recognize 3. The State points out that a defendant wishing to preserve appeal rights can enter a not guilty plea but stipulate to th e facts. That allows the trial court to adjudicate the case and the defendant to appeal adverse rulings.#25498

-6- “a right to a conditional plea subject to appeal” because such a right did not exist by

statute. Id. [¶8.] Like Rhode Island, South Dakota does not provide for a conditional guilty plea by statute or court rule. As such, we decline to recognize a conditional plea’s validity. Consequently, there was no authority for Rondell and the State to agree to a conditional guilty plea or for the trial court to accept the conditional plea. Cf

. State v. Olson , 334 N.W.2d 49, 50 (S.D. 1983) (“Th is [C]ourt’s jurisdiction to entertain appeals is limited by statute . . . and it is left to the [L]egislature to expand the right to appeal.”); State v. Texley , 275 N.W.2d 872, 874 (S.D. 1979); State

v. Nuwi Nini , 262 N.W.2d 758, 760 (S.D. 1978) (“Th e right to appeal is statutory

and therefore does not exist in the abs ence of a statute permitting it.”). [¶9.] The State takes a rather precarious position on appeal. Initially, the State agreed, as part of the plea agreemen t, that Rondell would enter a conditional guilty plea. Now, the State asks this Court to hold that Rondell’s conditional plea be considered an unconditional guilty plea waiving all non-jurisdictional appeal rights. We have said that when a party “induce[s] or provoke[s] the court or the opposite party to commit” an error, the doctrine of “invited error” applies and that party “will not be heard to complain on appeal” about such error. Veith v. O’Brien , 2007 S.D. 88, ¶ 27, 739 N.W. 2d 15, 24, (quoting Taylor Realty Co. v. Haberling , 365 N.W.2d 870, 873 (S.D. 1985) (additional citati on omitted)). In this case, the State contributed to the error by affirmativel y approving, rather than objecting to, Rondell’s conditional plea.#25498

-7- [¶10.] This case presents an unusual si tuation where Rondell, the State, and the trial court agreed on a conditional plea , which had no legal basis in statute or

court rule. Therefore we conclude that th e trial court did not have jurisdiction to accept Rondell’s conditional plea. As a result, we hold that Rondell’s conditional guilty plea is void. We reverse and remand for further proceedings consistent with this opinion. [¶11.] GILBERTSON, Chief Justic e, and KONENKAMP, ZINTER, and SEVERSON, Justices, concur.