State v. McAlear

Barnett, Gen., Atty. Meyer, Ann C. Mark Gen., Pierre, plaintiff and Atty. Asst. Dakota, Plaintiff of South STATE appellee. Appellee, County Riepel, Minnehaha Patricia C. Office, for de- Public Defender’s McALEAR, Defendant Andrew Thomas appellant. fendant Appellant. 18539. No. SABERS, Justice. of South Dakota. appeal in which an intermediate This is prohibi- violation of the Defendant claims a May 1994. on Briefs

Considered jeopardy contained against tion Decided 1994. Con- Amendment of the United States Fifth agree attached We stitution. directions. and reverse and remand with HISTORY FACTS/PROCEDURAL County August a Minnehaha On Jury a two count indictment Grand returned kidnapping) against (aggravated assault and negotiations MeAlear. After with Thomas agreed plead prosecutor, MeAlear simple in return for the guilty to aggravated of the prosecutor’s dismissal charges. bar- sault and gain agreement specified further that McA- jail, during which lear would serve required to enter and suc- time he would be cessfully complete pro- an alcohol treatment agreed gram. It was that MeAlear would be required release and would be allowed work to make restitution to plea hearing Judge was held before Wil- A September After liam 1993. Srstka being of the existence of a bar- advised Judge gain agreement, Srstka rights MeAlear of his and the nature advise consequences MeAlear pled guilty Judge’s At the assault. request, attorney outlined the fac- the state’s following is a tual basis transcript of what occurred next verbatim added). (with emphasis Very you agree with well. Do facts, McA- Mr. that statement lear? say yeah. I would have to

MeAlear: Yeah. you agree Riepel, do The Court: Ms. fact? that statement Yes. voluntary, September, days. suggest I would plea is I find that the The Court: you time represented for the Court whatever want to that him, counsel, suggest days I give of actu- competent has been advised al, credit for time served and then when of the nature of the rights, is aware back, program I if penalties come he finishes the charges against days, within the 60 I can come back and There is a factual basis thereon. you accept remaining suspended that time I and find have along you with the rest of the other. Do of assault. way calculating have a better of that? sentence, Now, you impose I delay right to a of at least 48 have Sittig: suggest I going Ms. that the hours, I’ll you give up that 48 hours. If year jail suspend Court order a you now. sentence days. give him all but 92 That would far with credit for what he served so Yes, sir, give up. I that McAlear: days option [sic] additional you right. All do have to The Court: What coming back before the Court and say your own behalf. on requesting asking or a reduction he is I to finish this treatment McAlear: wish doing okay treatment and work re- for the last program that I’ve been on lease. just go I choose to back to three weeks. give I often reductions. I The Court: don’t my home church. work and back to If you right that now. want know church is that? The Court: What you, going make a difference to that is Baptist Church 8th McAlear: Central you your plea. I’ll I usual- let withdraw spiritu- Spring. going I’m to seek more ly give don’t reductions. counseling. guidance al that, problem I about sir. McAlear: have no you regular church Have been The Court: you just goer or did start? Very, very rarely give do I The Court: reduction. around six or seven months McAlear: For a member of Central.

I’ve been any right. All have Does right. Anything All else? The Court: recommendations? That will be it.

McAlear: Well, guess I I to make Sittig: Ms. started anything you want to Riepel, Ms. The Court: I recommend that recommendation. say your client’s behalf? impose year jail days, give him suspend all credit spoken he on his Riepel: I believe has Ms. give him an for 32 he served. That will that he own I would indicate behalf. I days with work release. additional 60 job. employer His did make does have a required complete request that he be I calling me and did return the effort program at the the alcohol treatment job. guess I we call. There is a that facility, pay that he today new work release get him so would like to sentenced for the medical bills facility. restitution get him over to the new we can yet al- I haven’t obtained those and a half weeks of He has done three a release from though I have obtained already program and that the alcohol notify her.' We had the victim. did my encouragement. He did not at sentencing Monday. I noti- judge. set this for square with the that himself to be notified of the her of that and also have to fied him that he would I indicated to have a sentencing today. She doesn’t at the new restart, program over by letter and phone so it was done facility. He can’t use work release we say was notified but can’t that she that’s fine. He said three weeks. notify two different methods tried days already? He has done 82 The Court: her. my calculations indi- Riepel: I believe Ms. victim have talked to the You August 13 and he cate he was arrested anybody plea bargain? Has this custody that. Seven- about since the victim? days in talked to August and 15 teen hours. If That will be 48 she came The Court: specifically. When Sittig: Not I’ll find her then jury, at that don’t testify grand at the in to badly looked I think as as she defen- about the she was concerned time picture, I in that think job. to me and looked losing his dant (sic) assistance statute under the victims living together? they still Are necessary that it would be would find impression that got the Sittig: I Ms. give a victim and her to listen to the going to be relationship probably was say if wants to chance to have her she only come here from had over and she have it. couple of join him within a to California stand in recess then. We’ll So, I’m happened. this weeks of when arrangements just of what sentencing not sure held two At the point. later, prosecutor are at this informed the not content with the that the victim was getting him I understand about The Court: willing testify. The fol- bargain to and today. sentenced place. lowing discussion took spoken with the victim. Riepel: I have Ms. right. All Now I told both the The Court: say? victim have to did the The Court: What attorney will state this on the State’s —I my stopped over to office Riepel: She Ms. Deputy told the State’s Attor- record —I bargain being offered. prior to this ney Deputy Public Defender and the However, clear to me that she it was reject this bar- that I intended to getting him very interested in some testify. gain if The the victim didn’t want treatment and she alcohol I Deputy Public Defender know takes long being a time. Let incarcerated exception to that. my notes. if I can see me see may Ms. If I be heard? Well, guess I right. All we The Court: may be heard. The Court: You attorneys both satisfied won’t—are Riepel: My understanding the last we Ms. is comfortable with this? the victim court, pleaA we entered a my personal Sittig: say I that from Ms. can’t that two was entered on the condition her we knowledge. I did discuss with he entered others be dismissed. So charge in the might offer a reduction part plea. He entered his good to think that was and she seemed entering That was really to see the didn’t want idea. She to assault. This Court jail I a lot of time but defendant serve found a factual basis. This Court was our assistant had contact think victim sentencing thereby ready proceed to of, she was kind with her that and after accepting in effect guess I a little bit more she seemed I think I it. don’t prosecution proceed inclined to Riepel: By saying ready proceed I’m Ms. assistant than she was with our victim sentence, beg I to differ. But have discussed several with me. we here, thing my The The sheet say per- I can’t from options with her. copy I can make this get knowledge. I wasn’t able to sonal evidence, always put it I read that into her here. hours. settled. 2:00 now. Court, Well, every one? ^[*] I don’t have jury n Friday. we are trial we had (cid:127) n anything Is that convenient going to wait 48 ^[*] yesterday ^[*] Friday ^[*] heard present before I ing tary impact of the defendant’s crime the victim. from the victim. Point 37 is for who wishes emotional, accept I always to comment concern- yet physical and mone- plea bargain ask is 'because hadn’t any victim I I him, upon guess I it wbuld be her this appointment. I Riepel: I have a 1:30 case, make a recommendation for might I be done 2:00. should now, these the sentence. Point little late. 38— my personal points that I the motion and points are own denied scheduled a trial on aggravated my if the victim ad- type on sheet and charges. petition McAlear filed a say quote I does the with this dresses this Court requesting permission proceed respond any part defendant wish to discretionary appeal. granted This Court by the At the statement made discretionary appeal an and entered or- your request grant I a reasonable will any staying proceedings der further in the any to allow to refute continuance lower court. inaccurate or false made plea bargain

victim. Point 39 is the DECISION plea bargain say quote accept if I Jeopardy “The Fifth Double Clause of the regarding plea bargain protects Amendment in a crimi plea bargain embody in the and will proceeding against multiple punishments nal judgment disposition and sentence repeated prosecutions or for the of same provided plea bargain. for Dinitz, fense.” 424 United States v. U.S. that, I hadn’t said don’t think. 600, 606, 1075, 1079, 267, 96 S.Ct. 47 L.Ed.2d perfect I don’t have a recollec- (1976). “Naturally, question 273 no of double My you tion. notes indicate that did. jeopardy jeopardy arises unless has first at arraigned on the We were prior tached sometime to what the defendant preliminary hearing sault. We waived prosecu seeks to characterize as the ‘second’ and a factual basis was found on it arid Lynaugh, tion.” Fransaw v. 810 F.2d 518 you then asked whether or not we want- (5th Cir.1987) 1008, 107 cert. denied 483 U.S. sentencing proceed ed to or wait 48 (1987). 3237, Thus, 97 L.Ed.2d 742 S.Ct. my hours and client said that he would question of when first attached proceed sentencing you and then must be answered. pres- asked the if their victim State you ent. Then indicated that well we’ll plea bargain, jeop In the case of a Friday up until if wait see she shows ardy accepts the court attaches when input as far as her is concerned. At this Fransaw, guilty plea. 810 F.2d at 523. Nu things. don’t believe two don’t merous other courts have reached the same believe the State is able withdraw Baggett, v. F.2d conclusion. See U.S. 901 part plea bargain. We have fulfilled our Cir.1990) (11th 1546 cert. denied 498 U.S. quite of the and to honest with deal 862, 168, (1990); 111 112 L.Ed.2d 133 S.Ct. you, my understanding with Deb is that (8th Cir.1990) Britt, U.S. v. 917 F.2d 353 communicating she had a difficult time 1090, 971, 112 denied 498 111 S.Ct. U.S. with this witness. She knew this wit- Bullock, (1991); 579 L.Ed.2d 1057 U.S. jury. grand had been at the ness. She (8th Cir.1978) F.2d 1116 cert. denied 439 U.S. bargain plea That was made with this 967, 456, (1978); 99 S.Ct. 58 L.Ed.2d 425 mind. Now we come before the Court (6th Cir.1960) U.S., 274 Riadon v. F.2d 304 point. jeopardy I believe at this Double 225, cert. denied 364 U.S. 81 S.Ct. 5 by dismissing has attached because now Smith, (1960); 912 L.Ed.2d 189 U.S. v. F.2d jeopardy in he will be-in double (9th Cir.1990); Jerry, 487 F.2d 322 U.S. already the sim- that he has admitted to (3rd Comstock, Cir.1973); 168 600 State assault, ple took a factual basis and the (1992). N.W.2d 354 But see Wis.2d 485 happened. The factual basis fact this Soto, (1st Santiago 825 F.2d 616 charges. That both of those entailed Cir.1987). getting precludes him from on the stand light weight authority at trial. it, strenuously against does not claim State that. The I don’t know about Instead, argues Judge otherwise. guilty plea. “rejected” plea accept McAlear’s judge Srstka did not The trial then 18, 1993, argues Alternatively, bargain. McAlear filed On October it was on the condi with the trial court. a motion to reconsider acquiesce in the tion that the victim on the matter the After States, 95 S.Ct. 420 U.S. transcript quoted above dem- United bargain. The (1975). 43 L.Ed.2d informing McA- After otherwise. onstrates establishing a factual rights and lear of his propo majority for the cites Fransaw unequivocal- plea, the trial court basis bargain, case of a sition that “I ly stated: find accepts the jeopardy attaches when the court The trial court did simple assault.” Lynaugh, 810 guilty plea. Fransaw v. F.2d impose any conditions (5th Cir.1987), cert. 483 U.S. judge The trial then 107 S.Ct. 97 L.Ed.2d judge inquired sentencing. The trial to the However, authority Fransaw relies on for wished to be sentenced whether McAlear Sanchez, F.2d States v. United to face hours. McAlear chose then or (5th Cir.1980) and’clearly cites Sanchez During sentencing. discussions immediate “acceptance must be un proposition that con- the court became about the sentence Fransaw, at 523. 810 F.2d conditional.” opportunity to con- victim’s cerned about the explicitly limits the attachment of Sanchez sider jeopardy to where the court situations unconditionally accepted a clearly The trial court plea agreement and the Jeopardy accep- inextricably up together, and bound accepted, even as soon as the attaches judge of one tance or Sampson the defendant is sentenced. acceptance the other (N.D.1991). meant or of State, 566 v. 478 N.W.2d judge ... The in this case took the mid- argues complain cannot be- that McAlear accepted agreement con- dle road —she the couple elapsed only a of minutes be- cause ditionally deferring at the same time while acceptance the the trial court’s of tween final until she had studied the decision expression court’s of guilty plea and the trial path may probation report. Her chosen agree the victim. We cannot concern about the circum- not have been the wisest under jeopardy may that proposition stances; certainly it was not no error.... only elapsed a short time has “unattached” judgement final was entered on the lesser it since attached. offense, not included Sanchez has guilty The trial court subjected to the harassment of successive guilty simple of and declared prosecutions question and there is no of jeopardy in time at- sault. At that multiple multiple punishments. trials or Subsequently judge trial had tached. the judge the made it clear that Because she thoughts accepting the some second about taking agreement was the under advise- Nevertheless, jeopardy al- had ment, jeopardy did not attach and she ready upon the authori- attached based the bounds of her discretion acted within herein, previously cited McAlear could ties rejecting agreement in and the aggravated assault not be tried for and/or after full consideration of the case. a violation of the Consti- without Sanchez, 762-63; at 609 F.2d see also United prohibition jeopardy. on double tution’s (11th 1546, Baggatt, States v. 901 F.2d 1548 the trial court and remand for We reverse Cir.1990) Sanchez, (citing supra, “[i]n the charge. sentencing on the plea bargain, respect a case of to, pleaded jeopardy normally at offense WUEST, HENDERSON and unconditionally taches when the court ac AMUNDSON, JJ., concur. denied, cepts plea bargain”), cert. 498 862, 168, 111 112 L.Ed.2d U.S. S.Ct. 133 C.J., MILLER, dissents. (1990). MILLER, (dissenting). Chief Justice majority The other cases relied dissent, easily distinguished. my opinion jeopardy in are The case of United as did Bullock, although “jeopar- it in It is well settled law States v. states not attach this case. jeopardy dy guilty attach of is must when that “an accused suffer question of jeopardy.” accepted” v. does not address the he can suffer double Serfass

601 Additionally, actually accepted case law which there is holds whether the court necessarily Bullock, jeopardy that double 1116, 1118 does attach F.2d United States v. 579 at the even time a court ac- (8th Cir.1978) (finding where conviction plea. United States Santia- cepts guilty vacated, guilty plea double based Soto, (1st Cir.1987) go 616, 825 F.2d 618 subsequent jeopardy prevent trial on did not (jeopardy did accepted not attach when court indictment), charges brought original all guilty plea rejected subsequently denied, cert. 99 439 U.S. S.Ct. 58 sentence); United having imposed without (1978). Similarly, Smith does L.Ed.2d Cruz, (1st States F.2d 113-14 question not of whether a court address the Cir.1983) (“we jeopardy think that do not United accepted plea agreement. automatically attach irrevocably must Smith, (9th States v. 912 F.2d Cir. all instances is when 1990) ordinarily (“[jjeopardy upon attaches agree jeopardy ... We that must attach plea agreement”). acceptance the court’s of a somewhere, acceptance not is Britt, U.S. In the court did not discuss only possibility.”). As the accepted, plea had been it “as whether of Vermont stated: purposes of this sumed discussion” First, only jeopardy “gen- rule is that jeopardy had been erally” acceptance at the time of attaches Britt, attached. U.S. 917 F.2d exceptions. guilty plea, the rule has (8th Cir.), n. 3 jeopardy upon The attachment 112 L.Ed.2d 1057 S.Ct. acceptance court’s neither automatic nor is Riadon, stated in the court dicta here is irrevocable.... The issue jeopardy double attached situations where subjected to whether Riadon guilty plea to stand.” “was allowed overreaching government kind of States, (6th v. United 274 F.2d designed clause was Cir.1960) guilty plea (finding Rather, prevent. a much narrower prosecution case another one did not bar simpler court ought one—whether case), charge in subsequent able to correct a mistake. court’s 225, 5 L.Ed.2d 81 S.Ct. not for appoint decision counsel defen- rationale, Riadon’s incomplete the trial court’s dant was informa- Under based simply tion. ... corrected the plea bargain The court of McAlear’s by erasing plea acceptance mistake the guilty plea the not mean allowed the case it and to treat as stand, thus, jeopardy did not attach. from the should have treated outset. Comstock, case of 168 Wis.2d Although prac- it been better would have (1992), upon which McA- 485 N.W.2d 354 the have made more tice for court relies, clearly distinguishable. lear is also through inquiry pre- ... under the facts Comstock, hearing testimony after from the And, here did not attach. sented victim, charges dismissing felony accept- and proerustean if we to follow a even charges, ing guilty cir- pleas to reduced the attach, analysis jeopardy did sponte cuit court sua guilty pleas vacated the not irrevocable. original In the subsequent proceeding. in a Duval, State v. 589 A.2d 156 Vt. proceeding, judge “stated his under- the (1991) (citations omitted); 324-25 agreement standing plea on the rec- Todd, (Tenn.1983) S.W.2d Thus, ord.” Id. at 359. the trial 485 N.W.2d (“jeopardy at a not attach does plea and court both guilty plea until case, during original In this judgment accepted_ final is en- Until clearly hearing, “If the trial court stated: reject tered a court is free to then I’ll victim] don’t find [the rejec- agreement. Rejection of one is Kay, was not plea bargain.” This uncondition- accord State other.”); tion Moreover, 1986) (Utah (“by permitting al P.2d appropri- misplea trial not dismiss under court did the declaration of circumstances, legitimate interest of original indictment. ate contained in the prosecu- assuring that criminal public in by clumsy applica- are not frustrated tions protect- jeopardy clause is the double

tion of

ed.”

Here, accepting the deferred the victim had it discovered

bargain when viewpoint. present allowed

not been accep- not unconditional there was

Where court, trial

tance of the therefore, attach; respect-

jeopardy did

fully dissent. Dakota, Plaintiff of South

STATE Appellant, OLTMANNS, Defendant

Brian Lou Appellee. Nelson, County R. Minnehaha David

No. 18423. Thesenvitz, Atty., Douglas W. State’s Dakota. South Atty., County Deputy Minnehaha State’s Falls, plaintiff appellant. Sioux Argued March 1994. Wilka, Archer, Hagen, K. & Thomas Wilka Decided 1994. appellee. for defendant and SABERS, Justice. failed to

The trial court held proof beyond a meet its burden of reasonable statements were free- doubt that Defendant’s voluntarily given. appeals. ly and We affirm.

FACTS a fire occurred in the On apartment building at 1818 E. 3rd Street Investigation by Dakota. South Departments and Fire Falls Police the Sioux fire to be arson. the cause of the determined lost them lives as a result Two residents the fire. (Oltmanns), a resi-

Brian Lou Oltmanns building, apartment was found dent of the building apartment at inside the unconscious

Case Details

Case Name: State v. McAlear

Court Name: South Dakota Supreme Court

Date Published: Jul 13, 1994

Citation: 519 N.W.2d 596

Docket Number: 18539

Court Abbreviation: S.D.