#26304, #26306-a-DG

2012 S.D. 84

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

(#26304)

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TYLER OLVERA, Defendant and Appellant.

---------------------------------------------------------------------------------------------------------------------

(#26306)

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

TYLER MUGGINS OLVERA, Defendant and Appellant.

* * * *

APPEALS FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE WALLY EKLUND

Judge

* * * *

MARTY J. JACKLEY

Attorney General

FRANK GEAGHAN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

ARNOLD D. LAUBACH, JR.

Pennington County Public Defender’s Office

Rapid City, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

ON NOVEMBER 6, 2012

OPINION FILED 12/05/12
#26304, #26306

GILBERTSON, Chief Justice

[¶1.] Tyler Olvera appeals his sentences for DUI (fifth offense) and 

Distribution of a Controlled Substance. Olvera argues that the Office of the

Attorney General breached the plea agreement when, at sentencing, it initially 

argued against concurrent sentences, but then, when made aware of the plea 

agreement, it withdrew its argument against concurrent sentences. Because Olvera 

did not contemporaneously object to the alleged violation of the plea agreement, and 

does not establish that the alleged error caused him prejudice, the sentences are 

affirmed.

FACTS

[¶2.] Olvera was arrested on June 12, 2011, for DUI. He was later indicted 

and charged with felony DUI (fifth offense) and misdemeanor Driving Under 

Revocation. A week after this indictment, he was charged by indictment on two 

counts of Distribution of a Controlled Substance. The Pennington County State’s 

Attorney prosecuted the DUI charge (appeal #26304) and the Attorney General’s 

office prosecuted the distribution charges (appeal #26306). 

[¶3.] A plea agreement was reached in both cases. Pursuant to the 

agreements, the state’s attorney’s office agreed to dismiss the Driving Under 

Revocation charge and agreed to recommend that the DUI sentence run concurrent 

to the sentence imposed for the distribution charges. The Attorney General’s office 

agreed to dismiss one of the distribution charges, cap its sentence request at five 

years in the penitentiary, and to not object to the sentence being served concurrent 

to the DUI charge. 
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[¶4.] At Olvera’s sentencing hearing, the Attorney General’s office* initially 

argued against running the sentences concurrently. Olvera’s counsel then pointed 

out an email setting forth the plea agreement. The Assistant Attorney General 

then changed his argument, indicating that he was recommending concurrent 

sentences. The record contains no indication that Olvera’s counsel objected to the 

Assistant Attorney General’s initial argument. In fact, the sentencing transcript 

contains no interjection from defense counsel during the Assistant Attorney 

General’s remarks. The circuit court sentenced Olvera to six years for the DUI and 

five years for the Distribution of Controlled Substance charge, the sentences to be 

served consecutively. 

[¶5.] On appeal, Olvera argues that the State breached the plea agreement,

requiring that the sentences in both cases be vacated and the cases remanded for 

resentencing in front of a different judge. 

ANALYSIS AND DECISION

[¶6.] Olvera relies on this Court’s decision in State v. Morrison, 2008 S.D. 

116, 759 N.W.2d 118. In Morrison, the plea agreement called for the State to 

refrain from objecting to the defendant’s request for a suspended imposition of 

sentence. Id. ¶ 2. At the sentencing hearing, the prosecutor expressed his 

dissatisfaction with the defendant’s rendition of the facts provided during the 

presentence investigation. Id. ¶ 3. That dissatisfaction included reminding the 

sentencing court that it was not bound to suspend imposition of sentence. Id. On 

 

* The Assistant Attorney General appearing at the sentencing was not the 

same Assistant Attorney General who had brokered the plea agreement.
#26304, #26306

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appeal, defendant argued that the State had breached the plea agreement. Id. ¶ 1. 

This Court identified the issue as follows: “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. ¶ 6 (quoting State v. Waldner, 2005 S.D. 11, 

¶ 12, 692 N.W.2d 187, 191). This Court noted that, in these situations, the 

defendant is typically not required to establish prejudice. 

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. 

Because the State breached the plea agreement, [defendant] was 

not afforded a fair and reliable sentencing proceeding.

 

Id. ¶ 12 (internal quotation marks and citations omitted). This Court reversed the

sentence and remanded for resentencing by a new judge. Id. ¶ 13.

[¶7.] Morrison involved a situation in which the defendant’s counsel

contemporaneously objected to the prosecution’s breach of the plea agreement 

during the sentencing hearing. Id. ¶ 3. The current record contains no indication 

that Olvera’s counsel objected, nor does Olvera indicate any objection was made, to 

the Assistant Attorney General’s alleged breach. We have recently noted the 

importance of this distinction. In State v. Jones, 2012 S.D. 7, 810 N.W.2d 202, this 

Court analyzed the United States Supreme Court decision Puckett v. United States, 

556 U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), regarding the importance of 

a contemporaneous objection to an alleged breach of a plea agreement. “According 

to Puckett, if the appellant did not make a timely objection at sentencing to an 

alleged breach of a plea agreement, the claim is forfeited and the lower court’s 

sentence is reviewed for plain error according to Federal Rule of Civil Procedure 
#26304, #26306

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52(b).” Jones, 2012 S.D. 7, ¶ 7, 810 N.W.2d at 204-05 (citing Puckett, 556 U.S. at 

142-43, 129 S. Ct. at 1433).

[¶8.] “To preserve a breach of plea agreement claim for appeal, the Supreme 

Court in Puckett required a ‘contemporaneous objection’ to the prosecutorial breach 

at the trial level.” Id. ¶ 10. Here, as in Jones, Olvera did not make a 

contemporaneous objection at sentencing. Therefore, we analyze the circuit court’s 

sentence for plain error. See id. ¶ 12.

[¶9.] This Court’s review under the plain error doctrine is well-settled. 

We invoke our discretion under the plain error rule cautiously 

and only in exceptional circumstances. To demonstrate plain 

error, the appellant must establish that there was: (1) error, (2) 

that is plain, (3) affecting substantial rights; and only then may 

we exercise our discretion to notice the error if (4) it seriously 

affects the fairness, integrity, or public reputation of the judicial 

proceedings. 

Id. ¶ 14 (internal quotation marks and citations omitted). 

[¶10.] The first inquiry is the presence of error. Olvera argues that the 

comments made by the Attorney General’s office constitute a material breach of the 

plea agreement. In support, Olvera relies on this Court’s Morrison decision, as 

addressed above. 

[¶11.] The State argues that the Attorney General’s recantation of the initial 

argument against concurrent sentences, coupled with the subsequent 

recommendation for concurrent sentences, cured any potential breach. Therefore, 

according to the State, there has been no substantial or material breach of the plea 

agreement. In support, the State cites State v. Knox, a Wisconsin case with similar 

facts. 570 N.W.2d 599 (Wis. Ct. App. 1997). In Knox, the court found that the 
#26304, #26306

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prosecutor’s “initial request for a sentence harsher than called for by the [plea] 

agreement” was not a substantial breach. Id. at 600. There is, however, authority 

to the contrary. See, e.g., State v. Fannon, 799 N.W.2d 515, 522 (Iowa 2011) (finding 

that a breach of a plea agreement could not be cured by the “withdrawal of the 

improper remarks”).

[¶12.] Assuming without deciding that the Assistant Attorney General’s 

comments constituted a breach, a breach of the plea agreement establishes “(1) 

error and (2) that it was plain.” Jones, 2012 S.D. 7, ¶ 15, 810 N.W.2d at 206. As in 

Jones, finding a breach also implicates the defendant’s substantial rights. See id. ¶ 

16. “Jones has also established that the breach implicated his substantial rights. 

As we have previously noted, ‘[o]nce 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.’” Id. (quoting Vanden Hoek v. Weber, 2006 S.D. 

102, ¶ 14, 724 N.W.2d 858, 863). 

[¶13.] Under the third prong of plain error analysis, however, Olvera must 

establish prejudice. In Jones, the defendant was unable to establish prejudice 

because subsequent to the breach, proceedings were conducted wherein the State 

did not breach the plea agreement. 

Jones has not shown that the State’s error affected the outcome 

of the proceedings where, as in this case, the trial court, after 

finding that there had been a material breach of the plea 

agreement used its discretion to grant Jones’s motion to 

reconsider. At resentencing, the State fulfilled the terms of the 

plea agreement by explicitly setting forth the terms of the plea 

agreement[.]

 
#26304, #26306

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Id. ¶ 17. Here, however, no such motion for reconsideration was made. After 

hearing from all parties, including the Assistant Attorney General’s remarks both 

for and then against consecutive sentences, the circuit court imposed the sentences, 

which included that the sentences be served consecutively. That no subsequent 

proceedings were conducted where the plea agreement was followed does not relieve 

Olvera from establishing prejudice. As the Supreme Court stated in Puckett, “[T]he 

defendant whose plea agreement has been broken by the Government will not 

always be able to show prejudice, either because he obtained the benefits 

contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to 

request) or because he likely would not have obtained those benefits in any event 

(as is seemingly the case here).” 556 U.S. at 141-42, 129 S. Ct. at 1432-33. 

[¶14.] Olvera has made no attempt to show prejudice, nor is prejudice 

apparent from the record. Absent such a showing, Olvera’s argument fails. 

“Without prejudice, the error does not ‘affect substantial rights’ under the third 

prong of plain error review and ‘[an appellate court] ha[s] no authority to correct it.’” 

Jones, 2012 S.D. 7, ¶ 17, 810 N.W.2d at 206 (quoting United States v. Olano, 507 

U.S. 725, 741, 113 S. Ct. 1770, 1781, 123 L. Ed. 2d 508 (1993)).

Conclusion

[¶15.] Whether or not the State breached the plea agreement, Olvera made 

no contemporaneous objection to the alleged breach at the sentencing hearing. This 

Court therefore analyzes for plain error. Under a plain error analysis, Olvera does 

not establish that he was prejudiced by the alleged breach; therefore his argument 

fails.
#26304, #26306

-7-

[¶16.] Affirmed. 

[¶17.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.