PIERRE, S.D. (KELO) — A child rapist will stay in state prison, after a decision and a non-decision by the South Dakota Supreme Court.

Roberto Alvarez of Watertown pleaded guilty to one count of rape of a victim younger than 13 — his girlfriend’s daughter, who was five years old. He later sought to change the plea and wanted a change of lawyer. Circuit Judge Robert Spears denied both requests and sentenced Alvarez to 100 years in prison with 15 years suspended.

Alvarez appealed to the Supreme Court. Justice Mark Salter wrote the opinion for a unanimous court that was publicly released Thursday. According to the justice, Judge Spears did not abuse his discretion in denying Alvarez’s motion, despite Alvarez making a post-plea claim he “did not penetrate F.E. while he was sexually assaulting her.”

Alvarez also claimed he didn’t have sufficient command of English. “Under the circumstances, the circuit court did not abuse its discretion in denying Alvarez’s motion on the basis that he could not understand the plea agreement,” Justice Salter wrote.

The Supreme Court stepped around the second point of the Alvarez appeal. Wrote Justice Salter:

“Alvarez attributes several errors to his court-appointed counsel that,
he claims, entitle him to relief at this stage. Among them are factual allegations
claiming a lack of visits to Alvarez while he was incarcerated; failing to ask if
Alvarez understood the plea agreement; explaining to him that he would only serve
five years in prison; and encouraging Alvarez to sign the plea agreement despite the
assertion of his innocence. However, we cannot determine, under the current state
of the record, the accuracy of these claims and, consequently, whether defense
counsel’s performance was so patently ineffective under the standard set out above
so as to support review of Alvarez’s claims now. We, therefore, decline to address
Alvarez’s claim of ineffective assistance of counsel on direct review.”

Salter suggested that Alvarez take another route regarding his lawyer: “(T)he better course is to consider a defendant’s Sixth Amendment ineffective assistance claim within the context of a habeas corpus action where the parties may develop the factual record.”