State v. McConkey
247 N.W.2d 687
S.D.
1976
Check Treatment

*1 Dakota, Plaintiff of South Mettler, Gen., Earl R. Atty. Pierre, Asst. McCONKEY, Jr., Defendant Harold plaintiff respondent; William J. Janklow, Gen., Atty. Pierre, on brief. No. Zastrow, Intern, Legal Laurence J. Ken- Dakota. Supreme Court of South Campbell, Rapid City, neth G. appellant. Argued Oct.

Decided DUNN, (on reassignment). Chief

Defendant pleaded guilty to a degree third burglary and was sentenced to ninety days’ imprisonment Penning- County jail. appeals, ton contending, alia, that the trial inter court erred in not him to withdraw his guilty plea after indicated attorney’s recommendation as a re- plea bargaining sult would not be fol- We reverse. lowed.

Defendant was charged on December Thereafter, counsel appointed 30, 1975, represent him and signed oath a “Petition To Guilty” Plea Of presence Enter of his attorney. Paragraph 8 petition states that: “I plead understand if ‘GUILTY’, solely Judge, my discretion of and neither nor the Attorney defense counsel States sentencing. can control that further understand Attorney is not bind- Court, ing upon the Court may punishment impose the same I had GUILTY’, trial, pled ‘NOT stood been convicted.” Paragraph 9 states that: no any agent “I declare that officer or government, Federal, branch local, promise or made any or [has] suggestion me, kind or anyone else, my knowledge that I will sentence, lighter probation, or receive leniency other form of if I ‘GUILTY’,except (state any plea negoti- entering agreements): ation *2 “THE DEFENDANT: will recommend the state guilty, plea of suspending Judge’s consideration the for “Yes. sentence.” of

imposition “THE COURT: is, you and his “That were aware of a On circuit court and the that this recommendation negotiation attorney appeared the probation which time of to the Court? arraignment, at for received as an was to enter “THE DEFENDANT: advising defendant After exhibit. “Yes. the rights, constitutional statutory and “THE COURT: attorney deputy the state’s asked court understand that you though “Do even occurred any plea discussions had recommendation has been that counsel. his office between Probation, that the the Court Court is attorney replied that state’s deputy The not bound those discussions defense had advised attorney’s office state’s Attorney’s the State’s not bound rec- if defendant that probation? for ommendation degree burglary to the third “THE DEFENDANT: would recommend for the state him “Yes. consideration “THE COURT: suspended and aware of that? “You are deputy The state’s probation. on placed DEFENDANT: “THE stated: attorney then “ * * “Yes. (a depu- Hagg And Mr. fellow “THE COURT: attorney) insisted to me that ty “Knowing those going was to make such discussions know- he reason —of the Court has told you for the Court to consider defendant, his. un- recommenda- age Court was tion, you persist your still record and his work do past blemished time, notify guilty? I would at this And record. of that recommendation Court “DEFENDANT: Court would simply ask that just “Yes.” such.”. consider determining After there was a fac- statement, de- Immediately following this plea, tual basis for defendant’s stated that:

fendant’s counsel ordered, consent, with defendant’s court Honor, record, believe for the “Your presentence investigation that a be conduct- description I under- an accurate that’s report and a submitted. ed plea negotiations. have dis- stand appeared The defendant McConkey regard with Mr. cussed 21,1975. February Defense counsel was on negotiations this was report to see presentence not It is not bind- merely a recommendation. defendant, but was advised in chambers merely ing on the Court report was “bad” and that And that Judge’s consideration. was inclined the recom- not to follow be, time, Judge, whoever he would probation. Defense counsel mendation McConkey up Mr. requested that the court follow ABA including penalty the maximum for this to with- crime.” negotiation draw his where the following colloquy place then took adopted recommendation was not the court and defendant: between Then, This was refused. the court. “THE COURT: sentencing, formally man, “Young agree especially, you do moved This motion — your jail what defense counsel has said pro- denied and was today? in court court. here nounced contends that the trial “(iii) permit withdrawal of not him to with erred in (or, if it not yet been accepted, appar after it became withdrawal tender plea) going trial court was not ent any case in which support this plea agreement. the charge or sentence *3 contention, 3.3(b) cites defendant Standard concessions contemplated by agree- American Bar Association’s Stan ment.” Relating Guilty (Ap To Pleas Of dards plea Where bargaining practiced, we Draft, 1968), part which reads in proved must in all permit fairness a withdrawal of follows: plea where the court refuses to accept the Responsibilities judge. “3.3 of the trial bargain. York, Santobello v. New 404 U.S. * * * * * * 257, 495, 92 S.Ct. United “(b) plea a tentative agreement If Gallington, Cir., 488 F.2d 637. which contemplates entry reached been warnings All become meaningless if a de or nolo contendere plea in is not fendant the option of with expectation charges that other drawing his plea prior to sentencing. By be court will dismissed or sen- this, we do not indicate that the court is in granted, will upon concessions tence any way bound by plea agreement, and parties judge may the trial in this case it apparent from the record the disclosure to him of the tenta- permit that this fact was made abundantly clear to agreement and the reasons tive therefor defendant; however, this is not point in of the time for tender in advance case, issue here. In this the court informed may prose- indicate to the defendant that would not follow the plea cuting attorney and defense agreement; now the question becomes proposed he will concur in the whether a defendant who has made plea if the disposition pre- information in the plea agreement on a based should be per report is consistent with the rep- to withdraw mitted resentations him. If the trial sen concurs, tencing where the court judge but later decides that refuses to follow disposition should not include the final the recommendation of the agreement. charge or sentence concessions contem- We hold defendant should plea agreement, he shall plated so opportunity and then call upon advise the defendant these circumstances and that a refusal either affirm or with- permit such withdrawal would be an abuse or nolo conten- of the court’s discretion.* v. Egan, dere.” 1, 47 S.D. 195 N.W. also cites 4.1 of the Standard Walters, 1925, 204 N.W. Bar Association Relat- American Mee, 1940, The Function of the Trial Judge 1972) Draft (Approved Reversed. part “4.1 Role of the discus- COLER, JJ., WINANS and concur. agreements. sions and WOLLMAN, J„ dissents. “(c) the plea agreement If contem- granting plates ZASTROW, J., not having been a mem- judge, he should: concessions of the court at the ber time this case was ’ n : n n * * * orally argued, did not participate. readily distinguishable Judge gave case is from the Jones in the Steinmetz This case Steinmetz, opportunity S.D., an withdraw his of State v. case sentencing hearing. today, also issued this court WOLLMAN, (dissenting). thereto, answers together with the prearraignment writ that hold I would follow those decisions acknowledgment, ten beyond any establish made it clear once the trial court has doubt that defendant was made aware of the fact state’s recommendation any plea agreements and recommenda- sentence be suspended it is prosecutor, tions be placed and defendant on probation of the trial court discretion only that —a Moreover, the state did not carry fail to out its the exercise of court in part bargain. its Thus we are prosecutor’s not faced the fact gave situation that plea negotia- based rise to the decision in New Santobello v. fairly that are disclosed to tions York, 404 U.S. *4 S.Ct. time that trial court to the entered, not be followed. should 511; Parrish, Iowa, v. absence, then, In the State evi- record Commonwealth, 528 S.W.2d Ky., v. Couch dence that was in way led to 712; Evans, 559, 234 v. 194 Neb. State believe that the trial court would necessari- 199; Farris, 114 v. N.H. State N.W.2d ly follow the state’s I 642; State, Tex.Crim.App., v. A.2d Cruz 320 would hold the trial court err did not State, v. Tex.Crim. Gibson S.W.2d 530 to refusing request App., S.W.2d his guilty plea. withdraw Rather than to superimpose above quoted American say that there is no I do not mean to Bar Association Standards as limitations in the recommended American Bar merit trial upon the court’s discretion in the Standards set forth ma- Association the withdrawal of a pursuant to trial opinion, nor that our courts jority 23-35-22,1 prefer SDCL look not in the exercise of their discretion should guidelines standards as to be applied by the procedures therein described. on a case-by-case trial courts basis as the Rather, weight I give would due SDCL may warrant. facts 23-35-22, “The court time may, at affirm would the judgment of convic- judgment, upon plea guilty, permit tion.

to be withdrawn and a

substituted.” application plea pursuant

An to withdraw a this statute to the sound is addressed v. trial court. Peka

rek, N.W.2d Mee, Dakota, South Plaintiff Walters, 204 N.W. 171. When S.D. standard, measured the trial court not err in hold did Larry STEINMETZ, Edward denying guilty plea. nothing There indicate that the trial record Nos. way indicated to that the state’s Supreme Court of South Dakota. be imposed; sentence would recommended fact, it is trial hard to see how the have made clearer to defendant Rehearing 19, 1977. Denied Jan. fact would not bound any such questions arraignment