#25865-a-LSW

2012 S.D. 7

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

CHRIS L. JONES, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BROOKINGS COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE DAVID R. GIENAPP

Judge

* * * *

MARTY J. JACKLEY

Attorney General

DONALD E. TINKLEPAUGH

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

RICK A. RIBSTEIN of

McCann, Ribstein, & McCarty, PC

Brookings, South Dakota Attorneys for defendant 

and appellant.

* * * *

ARGUED OCTOBER 4, 2011

OPINION FILED 02/01/12
#25865

-1-

WILBUR, Justice

[¶1.] Chris Jones entered into a plea agreement with the State. Under the 

terms of the plea agreement, Jones agreed to plead guilty to three counts of seconddegree rape and one count of kidnapping. After sentencing, Jones filed a motion to 

reconsider the sentence based upon an alleged violation of the plea agreement by 

the State. The trial court granted the motion and held a resentencing hearing. At 

the hearing, the trial court denied Jones’s oral motion for a different sentencing 

judge. Jones appeals, arguing that he was entitled to resentencing before a 

different judge and that his sentence is cruel and unusual punishment. We affirm. 

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Jones confessed to raping three women during a two-month period in 

Brookings County, South Dakota. Following his confession, the State charged Jones

in a nine-count indictment. Before trial, the State wrote Jones’s counsel a letter

containing a proposed plea agreement. Under the proposed plea agreement, the 

State would dismiss five of the charges against Jones in exchange for Jones’s guilty 

plea to the four remaining counts. Specifically, the letter provided:

In order to avoid the trial and further emotional trauma to the 

three victims, on behalf of the State I would propose that Jones 

enter pleas of guilty to Counts 2, 4, 5, and 7 with the remaining 

5 Counts being dismissed. Additionally, the State would 

recommend a cap of seventy (70) years maximum. That is not to 

exceed seventy (70) years of unsuspended penitentiary time. Of 

course this would be only a recommendation, but I do not believe 

[the trial court judge] has ever gone beyond that which the State 

has recommended as a cap and it certainly could be less.

(Emphasis added.)
#25865

-2-

[¶3.] Jones accepted the plea agreement and entered guilty pleas. The State 

placed the final plea agreement on the record at the change of plea hearing. 

However, approximately six weeks later at sentencing, the State failed to verbalize 

the plea agreement. Jones did not object to the State’s failure to verbalize the 

agreement.

[¶4.] Three weeks after sentencing, Jones filed a motion to reconsider the 

sentence. In reviewing the motion, the trial court found that the State’s failure to 

verbalize the plea agreement to the court at the time of sentencing was a material 

breach of the plea agreement and granted Jones’s motion. At resentencing, Jones 

made an oral motion for a new sentencing judge. Jones cited three decisions by this 

Court for the proposition that the remedy for a breach of a plea agreement is 

resentencing before a different judge. The trial court denied the motion. At 

resentencing, Jones received a sentence totaling 15 years less than his first 

sentence, but still in excess of the 70 years the State recommended pursuant to the 

plea agreement.

ANALYSIS 

[¶5.] 1. According to Puckett v. United States, we review for plain 

error a forfeited claim that the State has violated the 

terms of a plea agreement.

[¶6.] Before determining the merits of Jones’s argument, we must first 

determine the appropriate standard of review. Both parties assert that this is a 

constitutional issue which this Court should review de novo. Despite the parties’ 

agreement, “[o]nce appellate jurisdiction is established . . . the court has to decide . . 

. under what framework, scrutiny, or division of labor it will review [the issues].” 
#25865

-3-

Oldham-Ramona Sch. Dist. No. 39-5 v. Ust, 502 N.W.2d 574, 580 (S.D. 1993) 

(emphasis added) (quoting 1 Steven A. Childress & Martha S. Davis, Federal 

Standards of Review § 1.03 (1992)). In deciding the appropriate standard of review, 

“[w]e repeatedly define or refine standards of review as new issues come before us 

and apply those standards to the cases in controversy we are reviewing.” Id. As a 

result of the United States Supreme Court decision Puckett v. United States, 556 

U.S. 129, 129 S. Ct. 1423, 173 L. Ed. 2d 266 (2009), we reassess our standard of 

review for appeals involving a prosecutorial breach of a plea agreement.

[¶7.] In Puckett, the Supreme Court held that the automatic reversal rule 

described in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427,

only applies “when objection to the Government’s breach of a plea agreement has 

been preserved . . . .” Puckett, 556 U.S. at ___, 129 S. Ct. at 1432. There has been 

some disagreement on this Court as to whether Santobello always requires 

resentencing before a different trial court judge. See, e.g., State v. Bracht, 1997 S.D. 

136, 573 N.W.2d 176 (Miller, C.J., concurring in part and dissenting in part) 

(Gilbertson, J. concurring in part and dissenting in part). However, we do not need 

to revisit whether Santobello always requires resentencing before a different judge 

in order to resolve this case if Jones did not timely object. 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 52(b). Puckett, 556 U.S. at 

___, 129 S. Ct. at 1433.
#25865

-4-

[¶8.] South Dakota has adopted Rule 52(b), and this Court, like the United 

States Supreme Court, has applied plain error review to issues “not preserved for 

appellate review.” State v. Thomas, 2011 S.D. 15, ¶ 14, 796 N.W.2d 706, 711; see 

also SDCL 23A-44-15. Therefore, in order to determine whether or not we review 

for plain error according to Puckett and SDCL 23A-44-15, we must first determine 

whether Jones has preserved the issue for review. 

[¶9.] 2. Because Jones did not contemporaneously object to the

State’s violation of the plea agreement, he forfeited his 

claim. 

[¶10.] 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. See Puckett, 556 U.S. at ___, 129 S. Ct. at 1429 (“Failure to abide 

by this contemporaneous-objection rule ordinarily precludes the raising on appeal of 

the unpreserved claim of trial error.”). Jones did not object to the State’s breach of 

the plea agreement at sentencing. Rather, Jones filed a motion to reconsider the 

sentence approximately three weeks after the trial court’s initial sentence. 

[¶11.] The Eighth Circuit Court of Appeals decision in United States v. Smith

provides further guidance as to what constitutes a “contemporaneous objection.” 

590 F.3d 570 (8th Cir. 2009). The defendant in Smith, like Jones, did not object to 

the prosecutor’s alleged breach at the sentencing hearing. Id. at 576. On appeal, 

the defendant argued that despite his failure to object at sentencing, the court 

should review his appeal de novo because “the district court addressed the merits of 

[the defendant’s] claim in its order addressing [the defendant’s] motion for release 
#25865

-5-

pending appeal” and thus he adequately preserved the claim for appeal. Id. The 

court rejected this argument, reasoning: 

The Supreme Court in Puckett made clear that in order to obtain 

a de novo review on appeal of a breach of plea agreement claim, 

a defendant must raise such an objection at the time of 

sentencing to allow the district court the opportunity to correct 

the alleged error. . . . Applying a de novo review to [the 

defendant’s] claim absent a contemporaneous objection at the 

time of sentencing would also undermine the concern expressed 

by the Supreme Court in Puckett that litigants in this situation 

would be encouraged to “sandbag” and raise the error only if the 

result is not in their favor.

Id. at 577. 

[¶12.] Here, as in Smith, Jones did not object at sentencing and give the trial 

court the opportunity to correct the alleged error before imposing a sentence. 

Moreover, if we treated Jones’s motion to reconsider as timely and reviewed his 

appeal de novo, we would ratify Jones’s decision to “wait[] to see if the sentence . . . 

strikes him as satisfactory” before raising his objection. See Puckett, 556 U.S. at 

___, 129 S. Ct. at 1431. Consequently, we conclude that Jones’s motion to 

reconsider does not qualify as a contemporaneous objection and we review for plain 

error.

[¶13.] 3. Jones has not demonstrated that the violation of the plea

agreement resulted in plain error.

[¶14.] “We invoke our discretion under the plain error rule cautiously and 

only in ‘exceptional circumstances.’” State v. Bowker, 2008 S.D. 61, ¶ 46, 754 

N.W.2d 56, 70 (quoting State v. Robinson, 1999 S.D. 141, ¶ 17, 602 N.W.2d 730, 

735). “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 affect[s] the fairness, 
#25865

-6-

integrity, or public reputation of the judicial proceedings.’” State v. Beck, 2010 S.D.

52, ¶ 11, 785 N.W.2d 288, 293 (quoting State v. Mulligan, 2007 S.D. 67, ¶ 26, 736 

N.W.2d 808, 818); see also Puckett, 556 U.S. at ___, 129 S. Ct. at 1426 (applying the 

same plain error standard of review). 

[¶15.] In its order granting Jones’s motion to reconsider, the trial court found 

that the State’s failure to verbalize the plea agreement to the trial court at the time 

of sentencing constituted a material breach of the plea agreement.* We agree. If 

the State enters into a plea agreement to recommend a particular sentence, the 

State must make the recommendation at sentencing. Vanden Hoek v. Weber, 2006 

S.D. 102, ¶ 24, 724 N.W.2d 858, 864-65. Thus, under the precedent of this Court, 

Jones has established that there was (1) error and (2) that it was plain.

[¶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. ¶ 14 (quoting State v. 

Waldner, 2005 S.D. 11, ¶ 13, 692 N.W.2d 187, 191-92). However, Jones has failed to 

make an additional showing of prejudice as required under the third prong of plain 

error review. See U.S. v. Olano, 507 U.S. 725, 735, 113 S. Ct. 1770, 1778, 123 L. Ed.

2d 508 (1993); see also Bowker, 2008 S.D. 61, ¶ 46, 754 N.W.2d at 70 (citing State v. 

 

* Jones also argues that State’s comments at sentencing went beyond what 

was contemplated by the plea agreement. The trial court disagreed that the 

comments violated the plea agreement which stated, in pertinent part, 

“[f]inally, the State would retain the opportunity to make a statement at the 

time of sentencing.” We agree with the trial court that the State’s comments 

did not violate the plea agreement.
#25865

-7-

Nelson, 1998 S.D. 124, ¶ 7, 587 N.W.2d 439, 443) (“When plain error is alleged, the 

defendant bears the burden of showing the error was prejudicial.”).

[¶17.] Specifically, 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 including

its recommendation of a 70-year cap. 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.” Olano, 507 U.S. at 741, 113 S. Ct. at 1781.

We need not reach the issue of whether the error seriously affected the fairness, 

integrity, or public reputation of the judicial proceedings.

[¶18.] 4. Jones’s sentence is not cruel and unusual punishment.

[¶19.] Jones’s second issue on appeal is whether his sentence violates either 

the United States Constitution or the South Dakotas Constitution’s prohibition of

cruel and unusual punishment. “[W]hen a sentence is challenged on constitutional 

grounds as being cruel and unusual, we apply the proportionality standard from 

State v. Bonner, 1998 S.D. 30, 577 N.W.2d 575.” State v. Overbey, 2010 S.D. 78, ¶ 

13, 790 N.W.2d 35, 40. In Bonner, we stated that “to assess a challenge to 

proportionality we first determine whether the sentence appears grossly 

disproportionate. To accomplish this, we consider the conduct involved, and any 

relevant past conduct, with utmost deference to the Legislature and the sentencing 

court. If these circumstances fail to suggest gross disproportionality, our review 
#25865

-8-

ends.” Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580. In keeping with giving the 

Legislature the utmost deference, “we rarely overturn sentences within the 

statutory maximum.” State v. McKinney, 2005 S.D. 74, ¶ 26, 699 N.W.2d 460, 468.

[¶20.] The trial court imposed consecutive sentences of 25 years for two

counts of second-degree rape; 30 years for a third count of second-degree rape; and 

75 years for kidnapping, with 55 of those years suspended, to run concurrent with 

the rape sentences. This sentence is well within the statutory maximum. Under 

the statutory maximum, the trial court could have sentenced Jones to 50 years for 

each of the rape convictions and a life sentence for the kidnapping conviction. See 

SDCL 22-6-1(4) (providing that the maximum penitentiary sentence for Class 1 

felonies, which includes second-degree rape, is 50 years imprisonment); SDCL 22-6-

1(3) (providing that the maximum penitentiary sentence for Class C felonies, which 

include kidnapping, is life imprisonment).

[¶21.] Moreover, the sentence is not grossly disproportionate given Jones’s

conduct. In arriving at Jones’s sentence, the trial court balanced Jones’s poor 

upbringing with his crimes. The trial court noted that Jones subjected three young 

women to violent sexual crimes. A psychosexual analysis of Jones determined that 

Jones was at a high risk for reoffending. Given Jones’s conduct, and that the 

sentence is well within the statutory maximums for his crimes, the sentence is not 

grossly disproportionate.

[¶22.] Affirmed.

[¶23.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

SEVERSON, Justices, concur.