State v. Olvera
2012 SD 84
| S.D. | 2012Background
- Olvera was charged with felony DUI fifth offense and Driving Under Revocation, plus two counts of Distribution of a Controlled Substance.
- Two cases proceeded: DUI in Pennington County (appeal #26304) and distribution charges by the Attorney General (appeal #26306).
- Plea agreements: Driving Under Revocation dismissed; DUI to run concurrent with distribution; one distribution charge dismissed, sentence cap of five years, and no objection to concurrency.
- At sentencing, the Attorney General initially opposed concurrent sentences, then, after learning of the plea, withdrew that opposition and recommended concurrency; defense did not contemporaneously object.
- Circuit court sentenced DUI six years and distribution five years, to be served consecutively; Olvera appeals alleging breach of the plea agreement and improper sentencing procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the State breach the plea agreement by its initial opposition to concurrent sentences? | Olvera argues the AG breached the plea by opposing concurrency before recanting. | State contends the recantation cured any potential breach or that no substantial breach occurred. | No plain error shown; no prejudice established. |
| Whether preservation via contemporaneous objection was required and whether prejudice exists for plain error review? | Olvera did not object contemporaneously; thus error should be reviewed for plain error with prejudice. | State argues contemporaneous objection requirement applies per Puckett/Jones; no prejudice shown. | Plain error review applied; no demonstrated prejudice. |
Key Cases Cited
- State v. Morrison, 2008 S.D. 116 (S.D. 2008) (breach of plea agreement—counsel failure to object)
- State v. Jones, 2012 S.D. 7 (S.D. 2012) (contemporaneous objection required; plain error review)
- Puckett v. United States, 556 U.S. 129 (U.S. 2009) (contemporaneous objection requirement)
- Waldner v. Weber, 2005 S.D. 11 (S.D. 2005) (plea-bargaining integrity; prejudice typically required)
- State v. Knox, 570 N.W.2d 599 (Wis. Ct. App. 1997) (prosecutor's initial harsher request may not be substantial breach)