#30201-aff in pt & vacate-MES

2024 S.D. 27

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

BRANDON D. SCOTT, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LINCOLN COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE RACHEL R. RASMUSSEN

Judge

* * * *

MELISSA SOMMERS

ANGEL RUNNELS of

Resolute Law Firm, P.C.

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

MARTY J. JACKLEY

Attorney General

CHELSEA WENZEL

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

* * * *

CONSIDERED ON BRIEFS

OCTOBER 3, 2023

OPINION FILED 05/15/24
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SALTER, Justice

[¶1.] The circuit court sentenced Brandon Scott to a prison term after he 

pled guilty to the Class 5 felony version of grand theft. Scott argues on appeal that 

he should have received a fully suspended prison sentence because the court lacked 

justification to depart from SDCL 22-6-11’s presumptive sentence requirement. 

Scott also asserts several issues related to his guilty plea and his plea agreement 

with the State, including claims that the court failed to obtain an adequate factual 

basis to support his guilty plea and that the court was bound by the terms of the 

parties’ plea agreement, which he argues the State violated by seeking a sentence 

that exceeded the agreed-upon “cap.” We affirm in part, but because the court did 

not comply with SDCL 22-6-11, we vacate and remand for resentencing.

Factual and Procedural Background

[¶2.] The sequence of events leading to Scott’s arrest and conviction are not 

disputed and were related by the State as part of a factual basis statement during 

the change of plea hearing. At approximately 10:00 p.m. on July 31, 2021, Scott 

broke into the Fleet Farm store in Sioux Falls, damaged property, and then fled in a 

maroon minivan to the parking lot of an auto auction business located in Tea. 

Surveillance cameras recorded Scott waiting inside the minivan before he got out at 

approximately 2:00 a.m. on August 1 and stole a nearby Ford F-350 pickup.

[¶3.] Though the circumstances are not entirely clear from the record, it 

appears that the F-350 pickup was recovered a short time later in Sioux Falls. 

Scott was a suspect in the Fleet Farm burglary, and police officers soon connected 

him to both offenses. Officers reviewed the recorded parking lot surveillance 
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footage and ultimately used DNA to confirm Scott’s identity as the person who stole 

the pickup.1

[¶4.] A Lincoln County grand jury returned an indictment charging Scott 

with one count of grand theft in violation of SDCL 22-30A-17(3) which classifies the 

offense as a Class 4 felony when the value of the stolen property “is more than five 

thousand dollars but less than or equal to one hundred thousand dollars.” The 

State also filed a part II habitual offender information alleging Scott had ten prior 

felony convictions.2

[¶5.] Scott and the State reached a plea agreement under which Scott 

agreed to plead guilty to grand theft based on the theory that the stolen property “is 

more than two thousand five hundred dollars but less than or equal to five thousand 

dollars.” SDCL 22-30A-17(2). As a result, the severity of the grand theft charge 

was reduced from a Class 4 felony to a Class 5 felony. Scott also agreed to admit to 

the prior convictions contained in the part II information. In addition to recharging 

Scott with a less serious variety of grand theft, the State agreed to recommend a 

four-year “cap” at sentencing.

[¶6.] The circuit court conducted a consolidated change of plea and 

sentencing hearing. The parties advised the court of the plea agreement at the 

1. Though not included in the record, the State writes in its brief that police 

officers arrested Scott on August 2 for a variety of charges including 

possession of a different stolen vehicle, aggravated eluding, and false 

impersonation to deceive a law enforcement officer.

2. The part II information alleged two prior convictions for grand theft, two for 

aggravated eluding, one for failure to appear in a felony case, four for 

possession of a controlled substance, and one for possession of an alcoholic 

beverage/marijuana in the penitentiary.
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outset, and Scott’s counsel further advised the court of the terms, including a 

statement that “the State agreed to cap arguments at four years[.]” Both Scott and 

the State confirmed that Scott’s counsel had accurately stated the plea agreement. 

The record does not indicate that the plea agreement purported to limit the court’s 

sentencing discretion, and there is no indication that the court believed it was 

bound by the agreement.

[¶7.] The circuit court reviewed the new grand theft charge with Scott and 

the effect that the part II information had on the maximum penalty he faced:

The court: In the complaint and information that were filed, it 

does now charge you with a Class 5 felony rather 

than a Class 4 felony. The maximum possible 

punishment on a Class 5 felony, then, is up to five 

years in prison and/or a $10,000 fine. However, 

you do have that part II information that you were 

previously advised on, so if you admit to that as 

well, sir, your maximum possibl[e] penalty by 

statute would be up to 15 years in prison and/or a 

$30,000 fine. Do you understand that?

Scott: Yes.

[¶8.] Scott waived his right to a preliminary hearing on the new charge and 

confirmed his understanding that by pleading guilty, he would be waiving his right 

to a jury trial, his right to confront and cross-examine witnesses, his right to remain 

silent, and the presumption that he is innocent. The court canvassed Scott about 

the decision to plead guilty, which he confirmed was his own volitional decision, 

uncoerced, and not prompted by anything other than the plea agreement.

[¶9.] The State provided a narrative factual basis for the plea based upon 

the events outlined above. Defense counsel agreed that the State’s factual basis 

statement supported the guilty plea, and Scott admitted to taking the F-350 pickup 
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without authorization. After finding Scott’s guilty plea to be knowing, intelligent, 

and supported by a factual basis, the circuit court accepted the plea and moved on 

to the issue of sentencing.3

[¶10.] During the course of his sentencing remarks, Scott’s counsel stated 

that “[t]he plea agreement in this case calls for the State to be capped at four years.” 

He made a number of factual claims about Scott, including that he was on parole at 

the time he stole the F-350 pickup and had since been returned to prison. Scott’s 

counsel also told the circuit court that Scott had been a cooperative client and was 

seeking to make positive changes in his life. Ultimately, Scott’s counsel asked the 

court to impose a fully suspended prison sentence concurrent with the sentence 

Scott was currently serving, or, failing that, a concurrent prison term, which would 

not significantly impact his parole eligibility date.

[¶11.] The State urged the court to impose the four-year penitentiary 

sentence, coupled with additional suspended time. The State underscored Scott’s 

extensive criminal history which extended throughout his adult life4 and 

encompassed dangerous offenses that jeopardized his well-being and community 

safety. The State justified its sentencing recommendation as both a means for Scott 

to continue his rehabilitation journey and as a punitive measure for his actions. 

3. There was no presentence investigation, and Scott waived his right to delay 

his sentencing. See SDCL 23A-27-1 (“Sentences shall be imposed without 

unreasonable delay, but not within forty-eight hours after determination of 

guilt.”).

4. Scott was forty years old at the time of the sentencing.
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Scott’s counsel did not object to the State’s argument or claim that it violated the 

terms of the plea agreement.

[¶12.] In his statement to the circuit court, Scott attempted to mitigate the 

effect of his criminal history by noting that he had accepted responsibility in each of 

the cases listed in the part II information, stating, “If I’m guilty of it, [I] just plead 

to it.” As to the offense before the circuit court, Scott agreed with the State’s earlier 

statements and acknowledged his commitment to hold himself accountable by 

stating, “I know I broke the law and I’m not going to try and sit here and lie to you 

about it. . . . I’m just trying to hold myself accountable.” Scott attributed his 

irrational decision-making to drug use, while also outlining his plan to refrain from 

self-medication upon his release from prison.

[¶13.] Before pronouncing the sentence, the circuit court acknowledged its 

familiarity with Scott’s background and emphasized the importance of individual 

responsibility for change. The court noted Scott’s extensive history of felony 

convictions, spanning multiple years and counties, and highlighted the impact of 

these crimes. The court expressed optimism that a period of incarceration would 

serve as a deterrent against further poor decision-making.

[¶14.] The circuit court ultimately imposed a six-year prison sentence with 

three years suspended. Despite the fact that Scott’s Class 5 felony conviction 

qualified for a presumptive sentence under SDCL 22-6-11, neither the parties nor 
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the court mentioned it. The court ordered the sentence to be served concurrent with 

the prison sentence Scott was currently serving.5

[¶15.] Scott appeals, asserting the following issues, which we restate as 

follows:

1. Whether the circuit court committed plain error by not 

considering itself bound by the parties’ plea agreement.

2. Whether the circuit court committed plain error when it 

determined Scott’s guilty plea was supported by a factual 

basis.

3. Whether the circuit court erred when it imposed a prison 

sentence, rather than a fully suspended sentence, without 

considering a basis for departure under the presumptive 

sentencing provisions of SDCL 22-6-11.

4. Whether the circuit court committed plain error by not 

sua sponte finding the State breached the plea agreement 

by seeking a sentence that exceeded the four-year “cap.”

Analysis and Decision

Binding plea agreements vs. non-binding plea agreements

[¶16.] Whether a plea agreement was binding on the circuit court is a 

question of law, but where the issue is not preserved, we review a claim that the 

circuit court overlooked a binding plea agreement under the plain error doctrine. 

State v. Guziak, 2021 S.D. 68, ¶ 10, 968 N.W.2d 196, 200 (citing State v. Jones, 2012 

S.D. 7, ¶ 7, 810 N.W.2d 202, 205). To establish plain error, Scott must show “(1) 

error, (2) that is plain, (3) affecting substantial rights; and only then may [this 

Court] exercise [its] discretion to notice the error if (4) it seriously affect[s] the 

5. Before concluding the hearing, the court offered Scott and his counsel as well 

as the prosecutor the opportunity to raise any remaining questions, but 

nobody mentioned any.
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fairness, integrity, or public reputation of judicial proceedings.” Id. (third alteration 

in original) (quoting Jones, 2012 S.D. 7, ¶ 14, 810 N.W.2d at 206).

[¶17.] Plea negotiations between the State and a criminal defendant are 

specifically contemplated by SDCL 23A-7-8 which authorizes a prosecutor to agree 

to do any of the following:

(1) Move for dismissal of other charges or not file additional 

charges arising out of a different occurrence;

(2) Make a recommendation, or agree not to oppose the 

defendant’s request, for a particular sentence, with the 

understanding that such recommendation or request shall 

not be binding upon the court;

(3) Agree that a specific sentence is the appropriate disposition 

of the case; or

(4) Perform other specified acts to be made a part of the 

agreement.

[¶18.] Courts are prohibited from participating in plea negotiations under the 

provisions of SDCL 23A-7-8, and “generally circuit courts are not bound by plea 

agreements.” State v. Ledbetter, 2018 S.D. 79, ¶ 19, 920 N.W.2d 760, 764 (quoting 

State v. Reaves, 2008 S.D. 105, ¶ 7, 757 N.W.2d 580, 582). But a trial court may 

agree to be bound by the parties’ plea agreement made pursuant to SDCL 23A-7-

8(3). State v. Shumaker, 2010 S.D. 95, ¶ 6, 792 N.W.2d 174, 175 (citing Reaves, 

2008 S.D. 105, ¶ 7, 757 N.W.2d at 582). If a court accepts a plea agreement in this 

way, it yields its sentencing discretion in favor of the parties’ agreed-upon 

disposition or sentencing range. State v. Hale, 2018 S.D. 9, ¶ 11, 907 N.W.2d 56, 60

(citations omitted). In some instances, a court “may implicitly agree to the 

sentencing restrictions set forth in a plea agreement by indicating it is bound by the 
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agreed sentencing caps before a guilty plea is entered.” Ledbetter, 2018 S.D. 79, 

¶ 19, 920 N.W.2d at 765 (citing Shumaker, 2010 S.D. 95, ¶¶ 7–8, 792 N.W.2d at 

176).

[¶19.] A trial court “may delay accepting or rejecting a plea agreement under 

subsection (3) until after the guilty plea is entered.” Id. (citing SDCL 23A-7-9). But 

if the court defers its decision and ultimately rejects the plea agreement by 

indicating it is unwilling to be bound by it, the court must give the defendant an 

opportunity to withdraw the guilty plea. SDCL 23A-7-11; see also Ledbetter, 2018 

S.D. 79, ¶ 19, 920 N.W.2d at 765 (citing Shumaker, 2010 S.D. 95, ¶ 6 n.1, 792

N.W.2d at 175 n.1).

[¶20.] Plea agreements under SDCL 23A-7-8(2) are different. They involve 

only the prosecutor’s agreement to provide a sentencing recommendation, and they 

are not binding on the court. Hale, 2018 S.D. 9, ¶ 11, 907 N.W.2d at 59–60. When a 

plea agreement is made under subsection (2), the circuit court’s decision to sentence 

a defendant outside the terms of the recommended sentence is not a rejection of the 

plea agreement that permits a defendant to withdraw a guilty plea under SDCL 

23A-7-11. State v. Lee, 1997 S.D. 26, ¶ 8, 560 N.W.2d 552, 554; State v. Rich, 305 

N.W.2d 390, 393 (S.D. 1981); see also Shumaker, 2010 S.D. 95, ¶ 6 n.1, 792 N.W.2d 

at 175 n.1 (explaining that SDCL 23A-7-11 only applies to subsection (3) plea 

agreements). “A circuit court can accept a plea agreement made under subsection 

(2) and not accept the sentencing recommendation if the record shows the defendant 

has been informed and understands that the court is not bound by the sentencing 
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recommendation at the time the guilty plea is entered.” Ledbetter, 2018 S.D. 79, 

¶ 20, 920 N.W.2d at 765 (citing Lee, 1997 S.D. 26, ¶ 8, 560 N.W.2d at 554).

[¶21.] In this case, there was no effort to bind the circuit court, and the court 

did not indicate that it would be bound by the plea agreement, either expressly or 

implicitly. As to the former, the record simply does not contain any affirmative 

statement by the court that it was accepting the agreement or agreeing to be bound 

by it. To the contrary, the court advised Scott of the maximum statutory penalty he 

faced. Also, the State did not dismiss the part II information, and had the parties 

intended to bind the court to a four-year sentence, the part II information would be 

unnecessary because the unenhanced maximum punishment for a Class 5 felony is 

five years.

[¶22.] Nor is there any support for the claim that the court implicitly 

accepted the sentencing cap referenced in the plea agreement. In our cases 

involving implicit acceptance arguments, we have generally “examined the court’s 

statements made during the change of plea hearing.” Hale, 2018 S.D. 9, ¶ 16, 907 

N.W.2d at 61 (discussing Shumaker, 2010 S.D. 95, ¶¶ 7–8, 792 N.W.2d at 176). 

Here, the court gave no indication that its sentence would conform to the plea 

agreement cap, see id. ¶ 17, or that the plea agreement “saved” or spared the 

defendant the risk of an unguided sentence, see Shumaker, 2010 S.D. 95, ¶ 7, 792 

N.W.2d at 176, or anything else to suggest that the court considered itself bound by 

the parties’ agreement to a four-year cap.

[¶23.] Scott further argues that his plea was not voluntary but only as a 

consequence of the interior claim that the plea agreement was binding upon the 
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circuit court.6 Because Scott believes the plea agreement was binding, he contends 

that the court should have advised him of its sentencing limitation, and because it 

did not, his guilty plea was not knowing and voluntary. But the agreement was not 

binding upon the court, as we have held, and nothing in the record indicates that 

Scott believed it was, or that his sentence would be limited to four years in prison.

[¶24.] In fact, the circuit court told him that the maximum penalty was 

fifteen years in prison, given the impact of the part II information, which Scott 

acknowledged.7 We conclude the circuit court did not commit any error, and we 

need not consider the remaining three elements of the plain error test.

The sufficiency of the factual basis statement

[¶25.] Because Scott did not raise this issue with the circuit court, we will 

review his challenge to the sufficiency of the factual basis statement for plain error. 

See State v. Nelson, 1998 S.D. 124, ¶ 7, 587 N.W.2d 439, 443 (stating this Court’s 

inquiry is limited to plain error when no objection was made to the circuit court); see

also United States v. Christenson, 653 F.3d 697, 699 (8th Cir. 2011) (stating that 

defendant’s argument that the district court accepted his guilty plea without an 

adequate factual basis is reviewed under the plain error doctrine in the absence of a 

timely objection).

6. Scott identifies these as separate issues in his appellate submissions.

7. Scott does not otherwise argue that the guilty plea was not knowing or 

voluntary, and the record reflects that the circuit court appropriately advised 

Scott of the rights he was waiving and ascertained that his plea was 

voluntary. See State v. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287 

(describing the guilty plea procedure that meets the requirements of due 

process).
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[¶26.] Before accepting a guilty plea, the court must be “subjectively satisfied 

that a factual basis exists for the plea [as to each element of the offense.]” State v. 

Roedder, 2019 S.D. 9, ¶ 14, 923 N.W.2d 537, 542 (citation omitted); SDCL 23A-7-2 

(Rule 11(a)); SDCL 23A-7-14 (Rule 11(f)). “[R]eading the indictment to the 

defendant coupled with his admission of the acts described in it is a sufficient 

factual basis for a guilty plea, as long as the charge is uncomplicated, the 

indictment [is] detailed and specific, and the admissions unequivocal.” Roedder, 

2019 S.D. 9, ¶ 14, 923 N.W.2d at 542 (first alteration in original) (quoting State v. 

Olson, 2012 S.D. 55, ¶ 42, 816 N.W.2d 830, 841).

[¶27.] The elements of grand theft as it was alleged here, other than the 

monetary value, include: “[a]ny person who takes, or exercises unauthorized control 

over, property of another, with intent to deprive that person of the property[.]” 

SDCL 22-30A-1. Deprive means “to take or to withhold property of another or to 

dispose of property of another so as to make it unlikely that the owner will receive 

it.” SDCL 22-1-2(12). The superseding information here alleged Scott “did take and 

exercise unauthorized control over property of [the victim] with the intent to 

deprive [the victim] of it.”

[¶28.] Scott argues that his statement to the circuit court, “I did not intend to 

keep the victim’s vehicle and intended to bring it back,” should render the factual 

basis inadequate to establish a guilty plea. Scott’s argument, however, is based on 

a flawed legal premise—i.e., the intent to deprive an owner of property under the 

grand theft statute means to permanently deprive the owner of the property. To be 

guilty of grand theft, however, it was necessary only that Scott intended to “take or 
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withhold” the F-350 pickup from the owner or to “dispose of it so as to make it 

unlikely that the owner will receive it[.]” SDCL 22-1-2(12). The record supports 

this element.

[¶29.] Scott admitted to taking the vehicle without permission, knowing it 

was not his, and drove it to a different location, where it was ultimately discovered 

by law enforcement. The undisputed facts of this particular case make Scott’s 

intent to deprive the owner of the vehicle self-evident. Indeed, there is no other 

justification that could account for what Scott himself acknowledges as theft. The 

fact that his actions were not rational or that he now claims he did not mean to 

permanently deprive the owner of the vehicle does not impact the sufficiency of the 

factual basis statement.

[¶30.] The circuit court did not err when it accepted the factual basis, and 

Scott’s guilty plea was provident. Scott’s counsel confirmed the accuracy and 

sufficiency of the factual basis statement, and Scott himself confirmed his guilt. 

Scott acted to take the F-350 pickup, which he knew was not his, without authority 

to use it to the exclusion of the owner.

Compliance with SDCL 22-6-11

[¶31.] We have recently held that a defendant must object to a circuit court’s 

failure to comply with the presumptive sentencing provisions of the statute. State 

v. Feucht, 2024 S.D. 16, ¶ 24, __ N.W.3d __. In the absence of such an objection, we 

held that the error was forfeited and subject to review under the plain error 

doctrine. Id. However, we decided to apply this holding of Feucht prospectively 

because our previous decisions had not adequately signaled the need to preserve a 
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claim of noncompliance with SDCL 22-6-11 through an objection before the circuit 

court. Id. ¶ 25.

[¶32.] In this case, Scott did not preserve his SDCL 22-6-11 claim, but 

because his sentencing occurred before our decision in Feucht, Scott’s argument is 

not subject to plain error review. See Am. Trucking Ass’ns, Inc. v. Smith, 496 U.S. 

167, 187, 110 S. Ct. 2323, 2335, 110 L. Ed. 2d 148 (1990) (“It is, of course, a 

fundamental tenet of our retroactivity doctrine that the prospective application of a 

new principle of law begins on the date of the decision announcing the principle.”). 

We, therefore, review Scott’s claim de novo.

[¶33.] Under SDCL 22-6-11, a circuit court is required to sentence criminal 

defendants convicted of a Class 5 felony “to a term of probation” or “a fully 

suspended penitentiary sentence[.]”8 But a departure from this requirement is 

permissible “if the court finds aggravating circumstances exist that pose a 

significant risk to the public and require a departure from presumptive probation[.]” 

Id. “If a departure is made, the judge shall state on the record at the time of 

sentencing the aggravating circumstances and the same shall be stated in the 

dispositional order.” Id.

[¶34.] At Scott’s sentencing hearing, neither the parties nor the circuit court 

identified Scott’s Class 5 grand theft charge as one that qualified under the 

8. The provisions of SDCL 22-6-11 list certain offenses—not implicated here—

that are not subject to this requirement.
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presumptive sentence provisions of SDCL 22-6-11.9 And though the court elected to 

not impose a fully suspended prison sentence, it did not specifically identify 

aggravating factors on the record to justify a departure, and it did not list any 

aggravating factors in the judgment of conviction. Consequently, there was no 

compliance with the statute, which constitutes error.

[¶35.] We encountered a similar situation in State v. Flowers, where “the 

record suggest[ed] that the circuit court may have believed SDCL 22-6-11 did not 

apply[.]” 2016 S.D. 63, ¶ 11, 885 N.W.2d at 786. Given the statutory 

noncompliance in Flowers, we vacated the sentence “and remand[ed] for 

resentencing in accordance with SDCL 22-6-11.” Id. Under the circumstances, we 

are compelled to do so here as well. Therefore, we vacate Scott’s sentence and 

remand the case with instructions to the circuit court to resentence Scott, applying 

the provisions of SDCL 22-6-11.

Breach of the plea agreement

[¶36.] Scott is represented by different counsel on appeal and has alleged a 

breach of the plea agreement as an ineffective assistance of counsel claim—i.e., his 

trial counsel was ineffective for not objecting to the State’s request for a prison 

sentence of four years with additional time suspended. This procedural route may 

not be required because we have the ability to review the forfeited plea agreement 

claim directly under the plain error doctrine, but, regardless, addressing the issue is 

9. Scott’s part II information only increased the statutory maximum sentence, 

not the grade of the offense. State v. Flowers, 2016 S.D. 63, ¶ 7, 885 N.W.2d

783, 785 (citing Rowley v. S.D. Bd. of Pardons & Paroles, 2013 S.D. 6, ¶ 10,

826 N.W.2d 360, 364).
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unnecessary in view of the fact that we are vacating Scott’s sentence and remanding 

the case for resentencing.10

Conclusion

[¶37.] We hold that the circuit court did not err by considering itself not 

bound by the parties’ plea agreement, nor did it err in finding there was a sufficient 

factual basis to support Scott’s plea. However, we vacate Scott’s sentence with 

instructions to the circuit court to apply the provisions of SDCL 22-6-11 during 

resentencing.

[¶38.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, 

Justices, concur.

10. We do note that the State’s agreement limiting its sentencing 

recommendation to a four-year “cap” did not distinguish between actual and 

suspended prison time. Absent an indication from counsel to the court that 

the plea agreement cap related to actual and/or suspended prison time, we 

have indicated that “suspended time equals imprisonment time.” Reaves, 

2008 S.D. 105, ¶ 9, 757 N.W.2d at 583 (citing State v. Bowers, 498 N.W.2d 

202, 206 (S.D. 1993)). At the resentencing hearing, it would be helpful for the 

parties to clarify their plea agreement.