plain error in South Dakota

2024See Nelson, 1998 S.D. 124 , ¶ 7, 587 N.W.2d at 443 ; see also State v. Wilson, 2020 S.D. 41, ¶ 17 , 947 N.W.2d 131 , 136 (“Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error.” (quoting State v. Thomas, 2011 S.D. 15, ¶ 20 , 796 N.W.2d 706, 713 )). [¶25.] However, it is well settled that this Court has the inherent power to apply our decisions prospectively or retrospectively.

2024See 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.

2021We first applied the “legislatively created plain error rule” in State v. Brammer, where we noted that “[t]o recognize the rule, however, is not to say that every error that occurs at trial rises to the level of plain error, for the plain error rule must be applied cautiously and only in exceptional circumstances.” 304 N.W.2d 111, 114 (S.D. 1981) (citations omitted).

2010We have said that “to recognize the rule, however, is not to say that every error that occurs at trial rises to the level *293 of plain error, for the plain error rule must be applied cautiously and only in exceptional circumstances.” State v. Davi, 504 N.W.2d 844, 855 (S.D.1993) (quoting State v. Brammer, 304 N.W.2d 111, 114 (S.D.1981)).

2026“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, integrity, or public reputation of the judicial proceedings.’” Id. (citations omitted). [¶15.] “Not every error that occurs during trial constitutes plain error; therefore[,] the plain error analysis ‘must be applied cautiously and only in exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25 , 931 N.W.2d 725, 733 (citations omitted).

2026“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, integrity, or public reputation of the judicial proceedings.’” Id. (citations omitted). [¶15.] “Not every error that occurs during trial constitutes plain error; therefore[,] the plain error analysis ‘must be applied cautiously and only in exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25 , 931 N.W.2d 725, 733 (citations omitted).

2026“Plain error requires a showing of an ‘(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 fairness, integrity, or public reputation of judicial proceedings.’” Id. (alteration in original) (quoting State v. Buchhold, 2007 S.D. 15 , ¶ 22, 727 N.W.2d 816, 822 ).

2014Plain error requires a showing of an “(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 fairness, integrity, or public reputation of judicial proceedings.” State v. Buchhold, 2007 S.D. 15 , ¶ 22, 727 N.W.2d 816, 822 (alteration in original) (quoting State v. Nelson, 1998 S.D. 124 , ¶ 8, 587 N.W.2d 439, 443 ).

2017Plain error review must be “applied cautiously and only in exceptional circumstances.” State v. Beck, 2010 S.D. 52 , ¶ 10, 785 N.W.2d 288, 293 (quoting State v. Davi, 504 N.W.2d 844, 855 (S.D. 1993)).

2017“We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’ ” Nelson, 1998 S.D. 124 , ¶ 8, 587 N.W.2d at 443 (quoting State v. Davi, 504 N.W.2d 844, 855 (S.D. 1993)).

2024“Plain error requires a defendant to establish ‘(1) error, (2) that is plain, (3) affecting substantial rights; and only then may we -6- #30145 exercise our discretion to notice the error if (4) it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”’” Id. ¶ 14 n.3, 796 N.W.2d at 711 n.3 (alteration in original) (quoting State v. Beck, 2010 S.D. 52 , ¶ 11, 785 N.W.2d 288, 293 ).

2021“We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’” Id. (quoting State v. Bowker, 2008 S.D. 61 , ¶ 46, 754 N.W.2d 56, 70 ). [¶11.] Guziak argues that the State breached its implied obligation of good faith under the plea agreement by arguing for a harsher sentence than the cap set forth in the agreement.

2024“Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error.” State v. Thomas, 2011 S.D. 15, ¶ 20 , 796 N.W.2d 706, 713 (quoting State v. Bowker, 2008 S.D. 61 , ¶ 45, 754 N.W.2d 56, 69 ).

2024“Plain error requires a defendant to establish ‘(1) error, (2) that is plain, (3) affecting substantial rights; and only then may we -6- #30145 exercise our discretion to notice the error if (4) it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”’” Id. ¶ 14 n.3, 796 N.W.2d at 711 n.3 (alteration in original) (quoting State v. Beck, 2010 S.D. 52 , ¶ 11, 785 N.W.2d 288, 293 ).

1992We have previously stated that “the plain error rule applies only in exceptional cases, and then it must be applied cautiously; the rule does not encompass every error which occurs at trial, but only those errors which are both obvious and substantial.” See State v. Lewandowski, 463 N.W.2d 341, 344 (S.D.1990); People in Interest of R.R., 447 N.W.2d 922, 927 (S.D.1989); State v. Dombusch, 384 N.W.2d 682, 686 (S.D.1986).

1992We have previously stated that "the plain error rule applies only in exceptional cases, and then it must be applied cautiously; the rule does not encompass every error which occurs at trial, but only those errors which are both obvious and substantial." See State v. Lewandowski, 463 N.W.2d 341, 344 (S.D.1990); People in Interest of R.R., 447 N.W.2d 922, 927 (S.D.1989); State v. Dornbusch, 384 N.W.2d 682, 686 (S.D. 1986).

2024“Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error.” State v. Thomas, 2011 S.D. 15, ¶ 20 , 796 N.W.2d 706, 713 (quoting State v. Bowker, 2008 S.D. 61 , ¶ 45, 754 N.W.2d 56, 69 ).

2024“Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error.” State v. Thomas, 2011 S.D. 15, ¶ 20 , 796 N.W.2d 706, 713 (quoting State v. Bowker, 2008 S.D. 61 , ¶ 45, 754 N.W.2d 56, 69 ).

1996Such failure constitutes waiver. [¶ 14] ’’The plain error rule applies only in exceptional cases and then it must be applied cautiously; the rule does not encompass every error that occurs at trial, but only those which are both obvious and substantial.” People In re R.R., 447 N.W.2d 922, 927 (S.D.1989); SDCL 23A-44-15.

1994According to SDCL 23A-44-15, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” A plain error is one which must be both “obvious” and “substantive.” People In Interest of R.R., 447 N.W.2d 922, 927 (S.D.1989) (citation omitted). “[E]gre-gious misconduct” must be shown and generally, “prejudicial remarks made by a prosecutor to the jury do not give rise to denial of due process.” Luna, 411 N.W.2d at 662 .

2024See Nelson, 1998 S.D. 124 , ¶ 7, 587 N.W.2d at 443 ; see also State v. Wilson, 2020 S.D. 41, ¶ 17 , 947 N.W.2d 131 , 136 (“Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error.” (quoting State v. Thomas, 2011 S.D. 15, ¶ 20 , 796 N.W.2d 706, 713 )). [¶25.] However, it is well settled that this Court has the inherent power to apply our decisions prospectively or retrospectively.

2024See Nelson, 1998 S.D. 124 , ¶ 7, 587 N.W.2d at 443 ; see also State v. Wilson, 2020 S.D. 41, ¶ 17 , 947 N.W.2d 131 , 136 (“Where an issue has not been preserved by objection at trial, our review is limited to whether the trial court committed plain error.” (quoting State v. Thomas, 2011 S.D. 15, ¶ 20 , 796 N.W.2d 706, 713 )). [¶25.] However, it is well settled that this Court has the inherent power to apply our decisions prospectively or retrospectively.

2021The court need not be implicated in the error— for as the Olano Court noted: “[a]lthough in theory it could be argued that ‘[i]f the question was not presented to the trial court no error was committed by the trial court, hence there is nothing to review,’ this is not the theory that [the plain error rule] adopts.” Id. at 733, 113 S. Ct. at 1777 (internal citation omitted).

2021The unvarnished effect of the majority opinion is that the State can intentionally breach its contractual obligations and Guziak is left with no remedy despite having complied fully with her contractual obligations. [¶35.] “Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the ‘affecting substantial rights’ prong of [the plain error rule].” Olano, 507 U.S. at 735 , 113 S. Ct. at 1778 .

2026Not every error constitutes plain error, so “the plain error analysis ‘must be -18- #31143 applied cautiously and only in exceptional circumstances.’” Hayes, 2014 S.D. 72 , ¶ 25, 855 N.W.2d at 675 (citation omitted).

2026“Plain error requires a showing of an ‘(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 fairness, integrity, or public reputation of judicial proceedings.’” Id. (alteration in original) (quoting State v. Buchhold, 2007 S.D. 15 , ¶ 22, 727 N.W.2d 816, 822 ).

2019"We invoke our discretion under the plain error rule cautiously and only in ' exceptional circumstances. ' " State v. Bariteau , 2016 S.D. 57 , ¶ 23, 884 N.W.2d 169 , 173 (emphasis added) (quoting State v. Fischer , 2016 S.D. 1 , ¶ 15, 873 N.W.2d 681 , 687 ).

2019“We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’” State v. Bariteau, 2016 S.D. 57, ¶ 23 , 884 N.W.2d 169, 173 (emphasis added) (quoting State v. Fischer, 2016 S.D. 1 , ¶ 15, 873 N.W.2d 681, 687 ).

2012“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 affectfs] the fairness, 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 130 , 129 S.Ct. at 1426 (applying the same plain error standard of review). [¶ 15.] In its order granting Jones’s motion to reco

2011Plain error requires a defendant to establish "(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, integrity, or public reputation of 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 (quoting State v. Nelson, 1998 S.D. 124 , ¶ 8, 587 N.W.2d 439, 443 (quoting Johnson v. United States, 520 U.S. 461, 466-67 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718 (1997)))).

2026“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, integrity, or public reputation of the judicial proceedings.’” Id. (citations omitted). [¶15.] “Not every error that occurs during trial constitutes plain error; therefore[,] the plain error analysis ‘must be applied cautiously and only in exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25 , 931 N.W.2d 725, 733 (citations omitted).

2026“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, integrity, or public reputation of the judicial proceedings.’” Id. (citations omitted). [¶15.] “Not every error that occurs during trial constitutes plain error; therefore[,] the plain error analysis ‘must be applied cautiously and only in exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25 , 931 N.W.2d 725, 733 (citations omitted).

2014Plain error occurs when there is “(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, integrity, or public reputation of judicial proceedings.’ ” State v. Robinson, 1999 S.D. 141 , ¶ 17, 602 N.W.2d 730, 735 (quoting State v. Nelson, 1998 S.D. 124 , ¶ 8, 587 N.W.2d 439, 443 ). [¶ 20.] To show how substantial the court’s error was, Toben points to the questions the jurors asked, in which they sought guidance on what knowledge was required in order to convict.

2012Jones 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. *206 141, ¶ 17, 602 N.W.2d 730, 735 ).

2026“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, integrity, or public reputation of the judicial proceedings.’” Id. (citations omitted). [¶15.] “Not every error that occurs during trial constitutes plain error; therefore[,] the plain error analysis ‘must be applied cautiously and only in exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25 , 931 N.W.2d 725, 733 (citations omitted).

2026“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, integrity, or public reputation of the judicial proceedings.’” Id. (citations omitted). [¶15.] “Not every error that occurs during trial constitutes plain error; therefore[,] the plain error analysis ‘must be applied cautiously and only in exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 25 , 931 N.W.2d 725, 733 (citations omitted).

2016“We invoke our discretion under the plain error rule cautiously and only in exceptional circumstances.” State v. Olvera, 2012 S.D. 84, ¶ 9 , 824 N.W.2d 112, 115 (quoting State v. Jones, 2012 S.D. 7, ¶ 14 , 810 N.W.2d 202, 205 ). 1 [¶22.] We have held prosecu-torial misconduct to be a “dishonest act or an attempt to persuade the jury by the use of deception or by reprehensible methods.” Hayes, 2014 S.D. 72 , ¶23, 855 N.W.2d at 675 (quoting State v. Lee, 1999 S.D. 81 , ¶ 20, 599 N.W.2d 630, 634 ).

2016“We invoke our discretion under the plain error rule cautiously and only in exceptional circumstances.” State v. Olvera, 2012 S.D. 84, ¶ 9 , 824 N.W.2d 112, 115 (quoting State v. Jones, 2012 S.D. 7, ¶ 14 , 810 N.W.2d 202, 205 ). 1 [¶22.] We have held prosecu-torial misconduct to be a “dishonest act or an attempt to persuade the jury by the use of deception or by reprehensible methods.” Hayes, 2014 S.D. 72 , ¶23, 855 N.W.2d at 675 (quoting State v. Lee, 1999 S.D. 81 , ¶ 20, 599 N.W.2d 630, 634 ).

2020A better statement of the rule is that we will make an exception to our reluctance to address an ineffective assistance claim on direct appeal only where counsel “was so ‘ineffective and [the] representation so casual that the trial record evidences a manifest usurpation of [the defendant’s] constitutional rights.’” Id. (quoting State v. Phipps, 318 N.W.2d 128, 131 (S.D. 1982)). -13- #28742 hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). [¶30.] Here, rather than construing Wilson’s argument as a

1989This court has created an exception where the representation was so “ineffective and counsel’s representation so casual that the trial record evidences a manifest usurpation of appellant’s constitutional rights[.]” State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982); Aliberti, supra. The ineffective assistance claim must rise to the level of plain error on direct appeal.

2013See United States v. Smith, 573 F.3d 639, 659 (8th Cir.2009) (errors which are preserved are reviewed for harmless error); State v. Card, 2007 S.D. 117 , ¶ 15, 742 N.W.2d 257, 261 (in order to preserve an issue for appellate review, “[t]he trial court must be given an opportunity to correct any claimed error before we will review it on appeal”) (citation omitted); see also State v. Hotter, 340 N.W.2d 691, 692 (S.D.1983) (holding defendant’s sentencing argument was not properly before the Court because he “did not at any time prior to this appeal raise a claim that his sentence was improper or

2013See United States v. Smith, 573 F.3d 639, 659 (8th Cir. 2009) (errors which are preserved are reviewed for harmless error); State v. Gard, 2007 S.D. 117 , ¶ 15, 742 N.W.2d 257, 261 (in order to preserve an issue for appellate review, “[t]he trial court must be given an opportunity to correct any claimed error before we will review it on appeal”) (citation omitted); see also State v. Holter, 340 N.W.2d 691, 692 (S.D. 1983) (holding defendant’s sentencing argument was not properly before the Court because he “did not at any time prior to this appeal raise a claim that his sentence was improper o

2016Plain error merits reversal only when there is an “(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, integrity, or public reputation of judicial proceedings.’ ” State v. Nelson, 1998 S.D. 124 , ¶ 8, 587 N.W.2d 439, 443 (quoting Johnson v. United States, 520 U.S. 461, 466-67 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718 (1997)).

2016Plain error merits reversal only when there is an “(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, integrity, or public reputation of judicial proceedings.’ ” State v. Nelson, 1998 S.D. 124 , ¶ 8, 587 N.W.2d 439, 443 (quoting Johnson v. United States, 520 U.S. 461, 466-67 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718 (1997)).

2024O’Brien acknowledges trial counsel did not object to the instructions given by the court or propose a unanimity instruction at trial and thus requests this Court to exercise its discretion to review this alleged error for plain error. 3 [¶28.] “We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 13 , 931 N.W.2d 725, 729 (quoting State v. Bariteau, 2016 S.D. 57, ¶ 23 , 884 N.W.2d 169, 173 ).

2024O’Brien acknowledges trial counsel did not object to the instructions given by the court or propose a unanimity instruction at trial and thus requests this Court to exercise its discretion to review this alleged error for plain error. 3 [¶28.] “We invoke our discretion under the plain error rule cautiously and only in ‘exceptional circumstances.’” State v. McMillen, 2019 S.D. 40, ¶ 13 , 931 N.W.2d 725, 729 (quoting State v. Bariteau, 2016 S.D. 57, ¶ 23 , 884 N.W.2d 169, 173 ).

1998United States v. Olano, 507 U.S. 725, 737-41 , 113 S.Ct. 1770, 1779-81 , 123 L.Ed.2d 508 (1993), aff'd in part, rev’d in part, 62 F.3d 1180 (9thCir.l995), cert. denied, — U.S. -, 117 S.Ct. 303 , 136 L.Ed.2d 221 (1996). [¶ 8.] Plain error requires (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, integrity, or public reputation of judicial proceeding's.” Johnson v. United States, 520 U.S. 461, 466-67 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718 (1997)(alterations in original)(

1998United States v. Olano, 507 U.S. 725, 737-41 , 113 S.Ct. 1770, 1779-81 , 123 L.Ed.2d 508 (1993), aff'd in part, rev’d in part, 62 F.3d 1180 (9thCir.l995), cert. denied, — U.S. -, 117 S.Ct. 303 , 136 L.Ed.2d 221 (1996). [¶ 8.] Plain error requires (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, integrity, or public reputation of judicial proceeding's.” Johnson v. United States, 520 U.S. 461, 466-67 , 117 S.Ct. 1544, 1549 , 137 L.Ed.2d 718 (1997)(alterations in original)(

2020“To establish plain error, an appellant 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 affects the fairness, integrity, or public reputation of judicial proceedings.” Id., 931 N.W.2d at 429 -30 (quoting State v. -14- #28522 Bausch, 2017 S.D. 1, ¶ 27 , 889 N.W.2d 404, 412 ).

2020“To establish plain error, an appellant 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 affects the fairness, integrity, or public reputation of judicial proceedings.” Id., 931 N.W.2d at 429 -30 (quoting State v. -14- #28522 Bausch, 2017 S.D. 1, ¶ 27 , 889 N.W.2d 404, 412 ).