#26812-a-DG & SLZ

2014 S.D. 38

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****
STATE OF SOUTH DAKOTA,                     Plaintiff and Appellee,

      v.

JOSEPH BURKETT,                            Defendant and Appellant.

                                  ****

                   APPEAL FROM THE CIRCUIT COURT OF
                     THE FOURTH JUDICIAL CIRCUIT
                   LAWRENCE COUNTY, SOUTH DAKOTA

                                  ****

                  THE HONORABLE WARREN G. JOHNSON
                               Judge

                                  ****


MARTY J. JACKLEY
Attorney General

PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.


KIRK W. ALBERTSON
Office of the Lawrence County
 Public Defender
Deadwood, South Dakota                     Attorneys for defendant
                                           and appellant.


                                  ****
                                           CONSIDERED ON BRIEFS
                                           ON MARCH 24, 2014
                                           OPINION FILED 06/25/14
#26812

GILBERTSON, Chief Justice, and ZINTER, Justice

[¶1.]        Chief Justice Gilbertson delivers the majority opinion of the

Court as to Issue 2 and Issue 3. Justice Zinter delivers the majority

opinion of the Court as to Issue 1.

[¶2.]        GILBERTSON, Chief Justice, writing for the Court on Issue 2

and Issue 3.

[¶3.]        Joseph Burkett appeals his conviction for third offense driving under

the influence (DUI). We affirm.

                         Facts and Procedural History

[¶4.]        On January 26, 2013, Joseph Burkett visited a Napa Auto Parts store

near Deadwood, South Dakota. Burkett entered the store around 11:00 a.m., where

he was assisted by one of the store’s clerks, Steve Henderson. Burkett left the store

without purchasing anything, but returned later in the day. Henderson testified

that he could smell alcohol on Burkett when Burkett entered the store the second

time.

[¶5.]        Around 3:30 p.m., Burkett entered the Napa store a third time.

Henderson testified that he detected a “strong alcohol odor” emanating from

Burkett. According to Henderson, Burkett was “incoherent” and was “slurring” his

words. Henderson testified that Burkett began to leave the store on several

occasions, but would reenter the store to request various “oddball” items.

Henderson stated that he felt uncomfortable placing the orders for Burkett because

he suspected Burkett would not return to purchase the items in his condition.




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#26812

[¶6.]          Upon exiting the store Burkett entered into his light blue Dodge van.

Henderson observed that Burkett revved his engine and appeared to have trouble

shifting the van into reverse. Henderson testified that as Burkett left the Napa

parking lot, Burkett’s tires “chirped” as he reversed, and then “screeched” out of the

parking lot.

[¶7.]          Henderson called 911 to report seeing a driver “under the influence”

leaving the store and headed toward Deadwood. He provided dispatch with a

description of Burkett’s van and the license plate number. Henderson identified

himself by name and included his personal phone number and home address.

However, Henderson requested that the tip remain anonymous. Dispatch passed

along Henderson’s concerns of the possibility of an impaired driver, but did not

disclose Henderson’s name to the officers.

[¶8.]          Officer Justin Lux was on patrol when dispatch notified him of a

possible impaired driver. Officer Lux saw a van meeting Henderson’s description

and matching the reported license plate number driving through Deadwood toward

the address registered to the vehicle. The officer turned his patrol car around and

began following the van. Officer Lux testified that when he finally reached the van,

it was stopped in the middle of a residential street and revving its engine for no

apparent reason. The van resumed driving forward for one block and turned right

into a residential driveway. Officer Lux stated that the van’s right, rear wheel

drove over the curb and that once the van reached the driveway the van’s driver “hit

the brakes hard and the vehicle skidded forward a short distance before stopping.”




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#26812

[¶9.]        Officer Lux activated his emergency lights and pulled in front of the

driveway where Burkett’s vehicle was parked. Burkett was exiting from the vehicle

when the officer approached him. Although Officer Lux’s patrol car video system

was active, his car was parked in such a manner that only the audio recording

portrays the interaction between Officer Lux and Burkett.

[¶10.]       Officer Lux questioned Burkett about why he stopped in the middle of

the road. Burkett claimed that his carburetor was malfunctioning. When asked if

he had been drinking, Burkett paused, and stated he had not. Officer Lux testified

that Burkett “slurred” his words, “swayed” where he stood, was “nervous,”

“belligerent,” “uncooperative,” “evasive,” “confused,” and smelled like alcohol.

Burkett declined a preliminary breath test and declined to participate in field

sobriety tests. Nevertheless, Officer Lux concluded that based on his observations

Burkett had been driving under the influence, and he placed Burkett under arrest.

[¶11.]       Following his arrest, Burkett was formally charged with DUI. Because

Burkett had two prior DUI convictions within ten years of the current offense, the

State sought to enhance Burkett’s charge to a third offense DUI under SDCL 32-23-

4. Burkett moved to suppress the evidence against him. He challenged both the

admissibility of the blood alcohol concentration (BAC) test and whether Officer Lux

unlawfully stopped him. The circuit court suppressed the BAC test; however, the

court determined that Officer Lux’s stop was lawful. Burkett also sought to strike

the first of his two prior DUI convictions. The court denied Burkett’s motion to

strike his predicate convictions. At trial, Burkett moved for an acquittal based on

the insufficiency of the State’s evidence. The circuit court denied this motion, and


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#26812

the jury found Burkett guilty of DUI. Based on the two prior DUI convictions

Burkett was sentenced to a Class 6 felony.

[¶12.]         Burkett appeals his conviction, raising the following issues:

               1.    Whether the use of Burkett’s prior DUI convictions for
                     sentencing enhancement purposes violated his right to
                     due process.

               2.    Whether there was sufficient evidence to support a
                     conviction of driving under the influence.

               3.    Whether the circuit court erred in denying Burkett’s
                     motion to suppress based on Officer Lux’s stop of Burkett.


                                Analysis and Decision

[¶13.]         1.    Whether the use of Burkett’s prior DUI convictions for sentencing
                     enhancement purposes violated his right to due process.

[¶14.]         Burkett argues that the use of his prior DUI convictions for sentencing

enhancement purposes violated his right to due process. He alleges that his March

2003 plea was constitutionally infirm under Boykin v. Alabama, 395 U.S. 238, 89 S.

Ct. 1709, 23 L. Ed. 2d 274 (1969). In response, the State contends that even if

Burkett’s March 2003 plea was constitutionally infirm, Burkett’s ability to

challenge the validity of that plea is procedurally waived because he admitted to the

March 2003 plea when he pleaded guilty to a different DUI offense in August 2003. 1



1.       In support of its argument that Burkett’s claim is procedurally waived, the
         State cites State v. Robinson, 469 N.W.2d 376 (S.D. 1991). Robinson involved
         a series of challenges by the defendant to his conviction. When the defendant
         was convicted, he was also sentenced as a habitual offender by part II
         information. The defendant never challenged the part II information.
         Ultimately, the defendant obtained a new trial on the underlying felony.
         When the case was retried, the trial court rejected defendant’s challenge to
         the part II information, indicating that he had already pleaded guilty to the
                                                               (continued . . .)
                                            -4-
#26812

[¶15.]         In State v. King, 383 N.W.2d 854, 856 (S.D. 1986), this Court held that

“a constitutionally infirm conviction cannot be used to enhance [a] sentence under

our habitual offender statutes.” Id. (citing Application of Garritsen, 376 N.W.2d 575

(S.D. 1985)). As a result, we stated that “a defendant may challenge the

constitutional validity of a prior conviction whenever it is used as a basis for

augmenting punishment.” Id. (citation omitted). Additionally, we instructed that

“[a] motion to strike a prior conviction allegation from an accusatory pleading is a

proper vehicle for attacking such conviction if the presence of the prior will activate

the statutory machinery relating to penal status or severity of sanction in a

subsequent criminal proceeding.” Id. (quoting In re Rogers, 619 P.2d 415, 417 (Cal.

1980)). King appears to be the first time we allowed a defendant to collaterally

challenge a predicate conviction whenever it is used to enhance a sentence. 2 See id.

Since King, this Court has allowed defendants to raise what we will refer to as a

“King challenge” without much restriction. See, e.g., State v. Smith, 2013 S.D. 79, ¶

5, 840 N.W.2d 117, 119 (allowing a defendant to collaterally attack a predicate DUI

conviction when it was used for sentence enhancement).



________________________
(. . . continued)
         part II information. We affirmed that conviction, noting that it was not error
         to leave the defendant’s part II information “undisturbed.” Id. at 379. While
         Robinson is distinguishable from the case at hand, it provides useful
         guidance for our analysis.

2.       King cites to Garritsen, 376 N.W.2d at 576. Garritsen was brought as a
         habeas proceeding. Id. at 576. Furthermore, Garritsen simply declared that
         a constitutionally infirm prior guilty plea “cannot stand,” without citing any
         authority as to the proper procedure for vacating such a plea or the
         constitutional necessity of allowing a collateral attack. See id. at 578.

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#26812

[¶16.]         In asking us to limit Burkett’s ability to raise this King challenge, the

State leads us to question the very nature of these kinds of collateral attacks in

South Dakota. Burkett frames the denial of his King challenge as a violation of his

due process rights. Although we initially permitted King challenges based on due

process considerations, that justification is no longer valid under federal

constitutional standards.

[¶17.]         When this Court first outlined the remedy of a King challenge, it did

not rely on statutory interpretation of South Dakota law. See King, 383 N.W.2d at

856. Nor did this Court point to the common law as recognizing such a remedy. See

id. Instead, this Court adopted a blanket rule from California that this special type

of collateral attack was required by due process. Id. (citing Rogers, 619 P.2d at

417). 3 And since King, this Court has allowed defendants to collaterally attack any

allegedly constitutionally infirm predicate conviction used for sentence

enhancement—even if the constitutionality of the predicate conviction had never

previously been raised.

[¶18.]         However, since our holding in King the United States Supreme Court

has defined what protections are afforded to a defendant who seeks to challenge a

predicate conviction used for sentencing enhancement. See Custis v. United States,

511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994). In Custis, the defendant

challenged the use of prior convictions to enhance sentencing on federal drug and


3.       In Rogers, the California Supreme Court relied on People v. Coffey, 430 P.2d
         15 (Cal. 1967), which prohibited the use of a constitutionally infirm
         conviction “for any purposes in criminal proceedings.” 619 P.2d at 417.
         Coffey explained that such use was “violative of the due process clause of the
         Fourteenth Amendment.” 430 P.2d at 25.

                                            -6-
#26812

firearm charges brought against him. Id. at 488, 114 S. Ct. at 1734. Like Burkett,

Custis alleged that one of his predicate convictions was the result of a guilty plea

that was not entered knowingly and voluntarily. Id. Because the conviction was

therefore attained in violation of Boykin, Custis argued that the constitutional

infirmity should prevent that conviction from being used for sentence-enhancement

purposes. Id. The lower courts held that the federal statute under which Custis

was convicted did not authorize a procedure by which Custis could collaterally

attack the constitutionality of his predicate convictions, and therefore refused to

entertain his collateral challenge. Id. at 489, 114 S. Ct. at 1735.

[¶19.]       On appeal to the United States Supreme Court, Custis argued that the

United States Constitution required some procedural avenue to challenge the

constitutionality of his prior convictions when used for sentence enhancement. Id.

at 493, 114 S. Ct. at 1737. The United States Supreme Court explicitly rejected this

argument, holding that only the “unique constitutional defect” of failure to appoint

counsel would allow for a collateral challenge of a predicate conviction in a sentence

enhancement setting. Id. at 496, 114 S. Ct. 1738.

[¶20.]       In reaching its decision, the Supreme Court reasoned:

             As we have explained, “[i]nroads on the concept of finality tend
             to undermine confidence in the integrity of our procedures” and
             inevitably delay and impair the orderly administration of
             justice. United States v. Addonizio, 442 U.S. 178, 184, n.11, 99
             S. Ct. 2235, 2240, n.11, 60 L. Ed. 2d 805 (1979). We later noted
             in Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391
             (1992), that principles of finality associated with habeas corpus
             actions apply with at least equal force when a defendant seeks
             to attack a previous conviction used for sentencing. By
             challenging the previous conviction, the defendant is asking a
             district court “to deprive [the] [state-court judgment] of [its]
             normal force and effect in a proceeding that ha[s] an

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#26812

               independent purpose other than to overturn the prior
               judgmen[t].” Id., at 30, 113 S. Ct., at 523. These principles bear
               extra weight in cases in which the prior convictions, such as one
               challenged by Custis, are based on guilty pleas, because when a
               guilty plea is at issue, “the concern with finality served by the
               limitation on collateral attack has special force.” United States
               v. Timmreck, 441 U.S. 780, 784, 99 S. Ct. 2085, 2087, 60 L. Ed.
               2d 634 (1979) (footnote omitted).

Id. at 497, 114 S. Ct. at 1739 (alterations in original).

[¶21.]         In King, the State, citing Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258,

19 L. Ed. 2d 319 (1967), argued that “only convictions resulting from uncounseled

guilty pleas are constitutionally infirm for enhancement purposes.” 383 N.W.2d at

857. This Court, citing Lewis v. United States, 445 U.S. 55, 100 S. Ct. 915, 63 L. Ed.

2d 198 (1980), rejected the State’s position. King, 383 N.W.2d at 857. We stated

that “[w]hen the proper use of the constitutionally infirm conviction depends upon

the reliability rather than the mere fact of conviction, the use of that conviction to

support guilt or enhance punishment is unconstitutional.” Id. (quoting Santillanes

v. U.S. Parole Comm’n, 754 F.2d 887, 889 (10th Cir. 1985)).

[¶22.]         However, in Custis, the United States Supreme Court clarified Lewis.

The Court stated that “Lewis . . . supports the conclusion that prior convictions used

for sentence enhancement purposes under [18 U.S.C.] § 924(e) are not subject to

collateral attack in the sentence proceeding.” Custis, 511 U.S. at 492, 114 S. Ct. at

1736. The Supreme Court thereby explained that even if a prior conviction clearly

suffered from constitutional infirmity other than deprivation of right to counsel, 4



4.       The United States Supreme Court further curtailed the ability to raise such a
         collateral attack in Nichols v. United States, where the court clarified that an
         uncounseled misdemeanor conviction may also be used for enhancement
                                                               (continued . . .)
                                             -8-
#26812

the United States Constitution does not give the defendant the right to challenge

the alleged infirmity in a later enhanced-sentence proceeding. See id. at 497, 114 S.

Ct. at 1739. Therefore, due process concerns only allow a defendant to raise a King

challenge in very narrow circumstances such as the deprivation of the right to

counsel. Burkett’s King challenge is not one of those circumstances protected by

due process.

[¶23.]         Burkett’s King challenge also fails to find support in our codified law.

Our penalty enhancement statutes impose no greater statutory burden of proving

the validity of a prior conviction than the federal law at issue in Custis or Lewis. 5

Nor do our enhanced-penalty statutes provide a procedure for attacking the validity

of predicate convictions when used for sentence enhancement. See id. at 491, 114 S.

Ct. at 1736 (recognizing that some federal repeat-offender laws set forth specific




________________________
(. . . continued)
         purposes, so long as no prison term was imposed for the misdemeanor
         conviction. 511 U.S. 738, 748-49, 114 S. Ct. 1921, 1928, 128 L. Ed. 2d 745
         (1994).

5.       Compare SDCL 32-23-4 (imposing enhanced penalty for third DUI conviction
         “[i]f conviction for a violation of SDCL 32-23-1 is for a third offense”), and
         SDCL 22-7-7 (imposing enhanced penalty “[i]f a defendant has been convicted
         of one or two prior felonies under the laws of this state or any other state or
         the United States”), with Custis, 511 U.S. at 491, 114 S. Ct. at 1735-36
         (examining federal statute requiring enhanced punishment for any person
         who “has three previous convictions by any [enumerated court] for a violent
         felony or serious drug offense”), and Lewis, 445 U.S. at 60, 100 S. Ct. at 918
         (interpreting 18 U.S.C. § 1202(a)(1), which was aimed at any person who “has
         been convicted by a court of the United States or of a State . . . of a felony”).

                                            -9-
#26812

procedures for challenging the validity of a prior conviction used for enhancement

purposes). There is no statutory authority to support Burkett’s King challenge. 6

[¶24.]         Further, in setting the standard for King challenges we have stated

that “[o]ur review of a collateral attack of a predicate conviction is limited to

jurisdictional errors.” State v. Jensen, 2011 S.D. 32, ¶ 11, 800 N.W.2d 359, 364

(emphasis added) (citations omitted); see also Smith, 2013 S.D. 79, ¶ 6, 840 N.W.2d

at 119. Under this standard, we have allowed defendants to move to strike a

predicate conviction when it was obtained in violation of Boykin because such a

violation constituted a “jurisdictional error.” See Smith, 2013 S.D. 79, ¶ 6, 840

N.W.2d at 119. Seemingly, we borrowed this definition of jurisdictional error from

our habeas line of cases. See King, 383 N.W.2d at 856 (citing Garritsen, 376 N.W.2d

at 578). In habeas proceedings, we have embraced the “fiction” that constitutional

violations in criminal cases are jurisdictional errors. See Goodroad v. Solem, 406

N.W.2d 141, 143 (S.D. 1987) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019,

82 L. Ed. 1461 (1938)). Therefore, under South Dakota law, defendants have been

able to raise Boykin violations through a petition for habeas relief because a Boykin

violation has been defined as a “jurisdictional error.” See Monette v. Weber, 2009

S.D. 77, 771 N.W.2d 920.

[¶25.]         However, habeas is a statutory remedy in South Dakota, which has

been virtually unchanged since its inception. See generally SDCL 21-27-16. By

contrast, King challenges are supported by neither statute nor common law.


6.       SDCL 15-6-12(f) only permits a party to move to strike from a pleading
         “any insufficient defense or any redundant, immaterial, impertinent,
         or scandalous matter.”

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#26812

Instead, a King challenge is a relatively new judicial construct that has become

virtually unrestrained and fraught with inconsistencies.

[¶26.]        In Custis, the Supreme Court not only rejected Custis’s due process

argument, but it also rejected the idea that an alleged Boykin violation is a

jurisdictional error in the context of a motion to strike a predicate conviction. 511

U.S. at 496, 114 S. Ct. at 1738. While the Court stated that the unique

constitutional defect of the failure to appoint counsel does amount to a jurisdictional

defect, a Boykin violation does not “rise[ ] to the level of a jurisdictional defect

resulting from the failure to appoint counsel[.]” Id. Under Custis, Burkett’s King

challenge fails to raise a jurisdictional error and has no support under the Federal

Constitution or South Dakota codified law. Therefore, we must consider whether

Burkett’s King challenge, based on an alleged Boykin violation, is cognizable.

[¶27.]        While we have not yet considered the implications of Custis on King

challenges in this state, other states have followed the constitutional analysis and

policy considerations in Custis. Many states have recognized that constitutional

considerations do not require courts to entertain collateral attacks on prior

convictions used for enhancement purposes unless the defendant claims the

predicate conviction was uncounseled. See State v. Johnson, 38 A.3d 1270, 1278

(Me. 2012); Camp v. State, 221 S.W.3d 365, 369-70 (Ark. 2006); State v. Weber, 90

P.3d 314, 319-20 (Idaho 2004); State v. Veikoso, 74 P.3d 575, 582-83 (Haw. 2003);

State v. Hahn, 618 N.W.2d 528, 535 (Wis. 2000); State v. Louthan, 595 N.W.2d 917,

926-27 (Neb. 1999); State v. Mund, 593 N.W.2d 760, 761-62 (N.D. 1999); State v.

Weeks, 681 A.2d 86, 89-90 (N.H. 1996); State v. Delacruz, 899 P.2d 1042, 1049 (Kan.


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#26812

1995); McGuire v. Commonwealth, 885 S.W.2d 931, 937 (Ky. 1994), People v.

Carpentier, 521 N.W.2d 195, 199-200 (Mich. 1994). In contrast, a smaller number of

states have examined Custis and explicitly declined to adopt the reasoning based on

an interpretation that the state’s constitution offers greater protection than that

afforded by the United States Constitution. See, e.g., State v. Maine, 255 P.3d 64,

73 (Mont. 2011) (allowing collateral attacks under interpretation of the Montana

constitution); Paschall v. State, 8 P.3d 851, 852 n.2 (Nev. 2000) (declining to bar

collateral attack because Custis “merely established the floor for federal

constitutional purposes”).

[¶28.]         Although we acknowledge that this Court has the ability to grant

greater protection under the South Dakota Constitution than is afforded under the

United States Constitution, we have stated that to do so is a “significant

undertaking.” Gilbert v. Flandreau Santee Sioux Tribe, 2006 S.D. 109, ¶ 23, 725

N.W.2d 249, 258 (citation omitted). It has been noted that “[a]uthoritative and

neutral analysis of South Dakota’s Constitution cannot advance from episodic and

reactionary borrowing of results from other state courts.” State v. Schwartz, 2004

S.D. 123, ¶ 57, 689 N.W.2d 430, 445 (Konenkamp, J., concurring). “[W]e cannot

simply assume that our Constitution mandates greater protections than those

available under the Federal Constitution.” Id. at ¶ 31, 689 N.W.2d at 438.

(Konenkamp, J., concurring). 7



7.       Reference to South Dakota’s Constitutional Debates provides no support for
         an expansive definition of South Dakota’s due process clause. During the
         1885 Constitutional Convention a due process clause was adopted in the Bill
         of Rights without further reference. See generally 1 South Dakota
                                                             (continued . . .)
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#26812

[¶29.]       Despite this guidance, it is apparent that by allowing King challenges

like Burkett’s—in the name of due process—we have granted greater protection

than is required by the Federal Constitution. We have done so without sound

judicial interpretation as to why due process guarantees of the South Dakota

Constitution would require the courts of this state to entertain Burkett’s King

challenge when the Federal Constitution does not mandate this sort of relief. While

we acknowledge that King challenges have been a form of collateral relief for nearly

30 years in South Dakota, “[r]econsideration of precedent is appropriate where a

shift in position results from [an] intervening development of the law through the

growth of judicial doctrine or through further action taken by a legislative body.”

Hohm v. City of Rapid City, 2008 S.D. 65, ¶ 20, 753 N.W.2d 895, 906 (citation

omitted).

[¶30.]       Given Custis and the overwhelming body of case law rejecting the

position we outlined in King, we must reconsider whether Burkett’s King challenge

is still an appropriate avenue for relief. Like the defendant in Custis, Burkett has

already been afforded due process of law. Burkett seeks to invalidate a conviction

that is nearly ten years old. He had the opportunity to challenge the constitutional

validity of his prior conviction on direct appeal. SDCL 23A-32-2. Yet now, many

________________________
(. . . continued)
         Constitutional Debates, 131, 281 (Huronite 1907). Likewise in 1889 the
         Constitutional Convention once again adopted a due process clause without
         further debate or elaboration. See generally 2 South Dakota Constitutional
         Debates, 131 (Huronite 1907). The Bill of Rights adopted by the preliminary
         1883 Constitutional Convention does not appear to even contain a due
         process clause. See generally South Dakota Historical Society, Journal of the
         Constitutional Convention of 1883, in 21 South Dakota Historical Collections
         291, 339-42 (1942).

                                         -13-
#26812

years after the timeframe contemplated by the Legislature within which to bring

statutorily-recognized challenges, Burkett seeks for the first time to challenge his

March 2003 plea through the mechanism offered by King. 8 Notably, Burkett does

not claim that he is innocent of the crime to which he pleaded guilty. Nor does he

assert that his plea was coerced. Burkett’s only contention is that his plea was not

entered knowingly and voluntarily because the court did not adequately advise him

of his Boykin rights. As was a concern with the United States Supreme Court, this

type of delayed attack forces circuit courts and this Court to “rummage through

frequently nonexistent or difficult to obtain . . . records that may date from another

era, and may come from any one of the 50 States.” Custis, 511 U.S. at 496, 114 S.

Ct. at 1738-39.

[¶31.]         In addition to the fact that Burkett’s King challenge is not guaranteed

by statute or due process as discussed above, these types of challenges also erode

the deeply-rooted interest in the finality of criminal judgments. We have stated

that “[o]ne of the law’s very objects is the finality of its judgments. Neither

innocence nor just punishment can be vindicated until the final judgment is known.

Without finality, the criminal law is deprived of much of its deterrent effect.” State

v. Moeller, 511 N.W.2d 803, 808 (S.D. 1994) (quoting McCleskey v. Zant, 499 U.S.

467, 491, 111 S. Ct. 1454, 1468, 113 L. Ed. 2d 517, 542 (1991)) (internal quotation

marks omitted). “Moreover, in addition to undermining confidence in the integrity



8.       Unlike direct appeal and habeas, a King challenge is currently unrestrained
         by considerations of the finality of judgment. See SDCL 21-27-3.3 (placing
         two-year statute of limitations upon habeas appeals); SDCL 23A-32-15
         (requiring direct appeals to be taken within thirty days).

                                          -14-
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of court procedures, these inroads on finality increase the volume of judicial work,

inevitably delaying and impairing the orderly administration of justice, . . . which

directly contravenes one of the ends of Boykin, to wit: to ‘forestall the spin-off of

collateral proceedings that seek to probe murky memories.’” Id. (quoting Boykin,

395 U.S. at 244, 89 S. Ct. at 1712-13). 9 Finally, “perpetual review gives litigants

incentives to withhold claims for manipulative purposes and establishes

disincentives to present claims when evidence is fresh.” Id. (internal quotation

marks omitted) (citing McCleskey, 499 U.S. at 491-92, 111 S. Ct. at 1469).

[¶32.]          Compounding this problem is that we have defined claims like

Burkett’s as “jurisdictional errors.” As discussed above, while this has long been a

recognized exception in habeas, we have not explicitly embraced this fiction for a

King challenge. Instead, we have simply treated King challenges as similar form of

collateral attack without further explanation. Burkett’s case, however, underscores



9.       See also Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 403, 121 S.
         Ct. 1567, 1573-74, 149 L. Ed. 2d 608 (2001), where the United States
         Supreme Court noted:

                As we said in Daniels, “[t]hese vehicles for review . . . are not
                available indefinitely and without limitation.” A defendant may
                choose not to seek review of his conviction within the prescribed
                time. Or he may seek review and not prevail, either because he
                did not comply with procedural rules or because he failed to
                prove a constitutional violation. In each of these situations, the
                defendant’s conviction becomes final and the State that secured
                the conviction obtains a strong interest in preserving the
                integrity of the judgment. Other jurisdictions acquire an
                interest as well, as they may then use that conviction for their
                own recidivist sentencing purposes, relying on “the ‘presumption
                of regularity’ that attaches to final judgments.”

         Id. (alterations in original) (citations omitted).

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the problem of embracing the expansive definition of jurisdictional error that the

United States Supreme Court specifically rejected in the context of a collateral

attack on a predicate conviction.

[¶33.]       Prior to being charged with DUI in 2013, Burkett no longer had the

ability to raise his Boykin claim against his 2003 conviction by direct appeal or a

petition for habeas relief. In addition, Burkett could not have raised his alleged

Boykin violation by a writ of coram nobis. Garcia v. State, 2014 S.D. 5, ¶ 11, 843

N.W.2d 345, 349. In fact, Garcia explicitly rejected the notion that an alleged

Boykin violation constitutes a “fundamental jurisdictional error.” Id. Therefore,

unless a new fact emerged, Burkett was no longer able to challenge his 2003

convictions prior to being charged with DUI in 2013.

[¶34.]       However, once Burkett was charged with DUI in 2013 and a part II

information was attached to that charge, Burkett’s ability to assert a Boykin

violation against his 2003 conviction was resurrected, because unlike in coram

nobis, Burkett’s claim is once again defined as a jurisdictional error. Further,

Burkett is not required to assert prejudice or actual innocence to get his Boykin

claim through the door.

[¶35.]       As outlined above, the judicial system in South Dakota provides ample

opportunity to raise the alleged Boykin violation that Burkett asserts. In rejecting

a form of relief similar to this type of King challenge, other states have recognized

that “[a] rational system of criminal justice necessarily favors a process in which

criminal cases are completed in a predictable and timely manner.” Johnson, 38

A.3d at 1277; see also State v. Boskind, 807 A.2d 358, 365 (Vt. 2002) (“[E]arly


                                         -16-
#26812

challenges to convictions ought to be encouraged.”). In addition, the United States

Supreme Court has stated:

             [A] defendant generally has ample opportunity to obtain
             constitutional review of a state conviction. But once the door to
             such review has been closed by the defendant himself—either
             because he failed to pursue otherwise available remedies or
             because he failed to prove a constitutional violation—the
             conviction becomes final and the defendant is not entitled to
             another bite at the apple simply because that conviction is later
             used to enhance another sentence.

Daniels v. United States, 532 U.S. 374, 383, 121 S. Ct. 1578, 1584, 149 L. Ed. 2d 590

(2001) (internal quotation marks omitted) (citations omitted). Given the ample

statutory remedies available to Burkett and other similarly situated defendants,

Burkett’s King challenge is not required under due process or South Dakota codified

law. Defendants like Burkett are not entitled to “another bite at the apple” merely

because their prior convictions now have more force under our sentence-

enhancement statutes. They cannot be rewarded for withholding potential claims

until they are faced with a heightened sentence. Permitting such a result would

undermine the State’s valid interest in punishing habitual offenders. See Parke v.

Raley, 506 U.S. 20, 27-28, 113 S. Ct. 517, 522, 121 L. Ed. 2d 391 (1992).

[¶36.]       In light of the intervening developments in the law since our decision

in King, we should hold that a King challenge is no longer available for an alleged

Boykin violation. Accordingly, we affirm the circuit court’s denial of Burkett’s

motion to strike his predicate conviction.

[¶37.]       2.     Whether there was sufficient evidence to support a conviction of
                    driving under the influence.




                                         -17-
#26812

[¶38.]        Burkett next challenges the validity of his present conviction. Burkett

argues that the circuit court erred by denying his motion for a judgment of

acquittal. “We review the denial of a motion for judgment of acquittal as a question

of law under the de novo standard.” State v. Riley, 2013 S.D. 95, ¶ 14, 841 N.W.2d

431, 436 (quoting State v. Danielson, 2012 S.D. 36, ¶ 8, 814 N.W.2d 401, 405). “On

appeal, the question before this Court is whether the evidence was sufficient to

sustain the conviction.” Id. (citation omitted). “In measuring the sufficiency of the

evidence, we ask whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Id. (citation omitted). “[W]e will not resolve

conflicts in the evidence, assess the credibility of witnesses, or reevaluate the

weight of the evidence.” Id. (quoting State v. Hauge, 2013 S.D. 26, ¶ 12, 829 N.W.2d

145, 149).

[¶39.]        At Burkett’s trial, the State offered the testimony of Officer Lux and

Henderson. Both individuals testified that Burkett appeared to be under the

influence of alcohol. In addition to that testimony, the State presented the

recording from Officer Lux’s patrol car. No other evidence was admitted at trial as

the BAC evidence had been suppressed. Burkett asserts that the State’s evidence

was insufficient to establish a conviction under SDCL 32-23-1(2). 10




10.      SDCL 32-23-2-1(2) provides:

              No person may drive or be in actual physical control of any
              vehicle while:

                                                             (continued . . .)
                                          -18-
#26812

[¶40.]       At the outset, the State notes that blood alcohol evidence is not

required to sustain a conviction under SDCL 32-23-1(2). In support of its position,

the State relies on State v. Huettl, 379 N.W.2d 298 (S.D. 1985), where we upheld a

DUI conviction under SDCL 32-23-1(2) even though blood alcohol evidence was not

submitted at trial. In addition to Huettl, we stated in two later cases that the

statutory presumption of being under the influence based on a certain blood alcohol

percent level is not the ultimate inquiry under SDCL 32-23-1(2). See State v.

Motzko, 2006 S.D. 13, ¶ 10, 710 N.W.2d 433, 438; State v. Hullinger, 2002 S.D. 83, ¶

14, 649 N.W.2d 253, 259. Instead, the critical analysis under SDCL 32-23-1(2) is

whether the person is “under the influence of an alcoholic beverage.” Hullinger,

2002 S.D. 83, ¶ 14, 649 N.W.2d at 259 (citation omitted). We have recognized that

the phrase “under the influence” encompasses:

             not only all well known and easily recognized conditions and
             degrees of intoxication, but any abnormal mental or physical
             condition which is the result of indulging in any degree in
             alcoholic liquor and which tends to deprive the defendant of that
             clearness of intellect and control of himself which the defendant
             would otherwise possess.

Motzko, 2006 S.D. 13, ¶ 8, 710 N.W.2d at 437 (quoting Hullinger, 2002 S.D. 83, ¶

14, 649 N.W.2d at 259). Therefore, “any abnormal mental or physical condition that

deprives an individual of the clearness of intellect and self control that they would

otherwise possess will suffice” to establish a violation of SDCL 32-23-1(2). Id.

________________________
(. . . continued)
                  (2) Under the influence of an alcoholic beverage,
                  marijuana, or any controlled drug or substance not
                  obtained pursuant to a valid prescription, or any
                  combination of an alcoholic beverage, marijuana, or such
                  controlled drug or substance[.]

                                         -19-
#26812

[¶41.]       In the present case, the evidence was sufficient to support Burkett’s

conviction for driving under the influence. Both Henderson and Officer Lux

testified that Burkett smelled of alcohol, slurred his speech, and that he was

incoherent, confused, belligerent, and driving erratically. Additionally, Officer Lux

stated that based on his training and experience, Burkett’s physical appearance and

behavior indicated that Burkett lacked “the clearness of intellect to operate a motor

vehicle.” In deciding whether the evidence is sufficient to sustain a verdict beyond a

reasonable doubt we have stated that our review is limited to whether “there is a

rational theory that supports the jury’s verdict.” Id. ¶ 12, 710 N.W.2d at 439

(citation omitted). Given the testimony of both Henderson and Officer Lux, the

evidence was sufficient to sustain the jury’s verdict.

[¶42.]       3.     Whether the circuit court erred in denying Burkett’s motion to
                    suppress based on Officer Lux’s stop of Burkett.

[¶43.]       Lastly, Burkett argues the circuit court erred in denying his motion to

suppress the evidence against him because Officer Lux did not have reasonable

suspicion to justify stopping Burkett’s car. “A motion to suppress based on an

alleged violation of a constitutionally protected right is a question of law reviewed

de novo.” State v. Rademaker, 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (quoting

State v. Wright, 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794).

[¶44.]       The Fourth Amendment of the United States Constitution and Article

VI, § 11 of the South Dakota Constitution protect individuals from unreasonable

searches and seizures. Id. ¶ 8, 813 N.W.2d at 176. “[T]he Fourth Amendment’s

prohibition against unreasonable searches and seizures applies when a car is

stopped by law enforcement.” Id. (citation omitted).

                                          -20-
#26812

[¶45.]         A police “officer may stop a car, without obtaining a warrant, if there is

‘reasonable suspicion that criminal activity may be afoot.’” Id. ¶ 9 (quoting Wright,

2010 S.D. 91, ¶ 10, 791 N.W.2d at 794). “Reasonable suspicion to stop must be

based on ‘specific and articulable facts which taken together with rational

inferences from those facts, reasonably warrant the intrusion.”’ State v. Herren,

2010 S.D. 101, ¶ 8, 792 N.W.2d 551, 554 (quoting State v. Akuba, 2004 S.D. 94, ¶ 15,

686 N.W.2d 406, 413). “The stop may not be the product of mere whim, caprice or

idle curiosity.” Id. (citation omitted). To determine whether an officer had

reasonable suspicion to make an investigatory stop, we look to the “totality of the

circumstances.” Rademaker, 2012 S.D. 28, ¶ 12, 813 N.W.2d at 177 (citation

omitted).

[¶46.]         The State argues that Officer Lux’s investigatory stop of Burkett was

reasonable because of the combination of the tip from Henderson and Burkett’s

“erratic driving.” Burkett contends that Officer Lux did not have reasonable

suspicion to make a stop because Henderson’s tip was anonymous to Officer Lux,

and Officer Lux did not observe Burkett doing anything to independently justify a

stop. For purposes of our analysis we assume that Officer Lux was acting on an

anonymous tip. 11



11.      Police dispatch conveyed to Officer Lux that an anonymous citizen was
         concerned about a driver who was possibly under the influence. Dispatch
         informed Officer Lux that the individual was driving a light blue, older van.
         Dispatch also gave Officer Lux a license plate number and the registered
         address of the suspected driver. Although dispatch was aware of the identity
         of Henderson, this information was not conveyed to Officer Lux. Nor was any
         additional information hinted to Officer Lux that this was not actually an
         anonymous tip. At the suppression hearing, the State contended that Officer
                                                             (continued . . .)
                                           -21-
#26812

[¶47.]       “The degree to which law enforcement can rely on an anonymous tip

depends on the tip’s degree of reliability.” Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d

at 556 (citing State v. Scholl, 2004 S.D. 85, ¶ 9, 684 N.W.2d 83, 86). “The tip’s

degree of reliability depends on the quantity and quality of the tipster’s

information.” Id. (citation omitted). “If a tip has a relatively low degree of

reliability, more information will be required to establish the requisite quantum of

suspicion than would be required if the tip were more reliable.” Id. (citation

omitted).

[¶48.]       During the pendency of this case, the United States Supreme Court

decided Navarette v. California, 572 U.S. ___, 134 S. Ct. 1683, ___ L. Ed. 2d ___

(2014), which considered the sufficiency of an anonymous tip to conduct a traffic

stop. In Navarette, 911 dispatch in Mendocino County, California received a call

from dispatch in neighboring Humboldt County. 572 U.S. at ___, 134 S. Ct. at 1686.

Humboldt County dispatch relayed that they had received a tip from a 911 call that

was recorded as follows: “Showing southbound Highway 1 at mile marker 88, Silver

Ford 150 pickup. Plate of 8–David–94925. Ran the reporting party off the roadway

and was last seen approximately five minutes ago.” Id. at ___, 134 S. Ct. at 1686-

87. That information was broadcast to highway patrol officers. Id. at ___, 134 S.


________________________
(. . . continued)
         Lux relied on the collective knowledge of the dispatcher to establish
         reasonable suspicion, but this argument was not presented by the State on
         appeal. We note that there is some conflict in the law as to whether a civilian
         dispatcher’s knowledge can automatically be imputed to an arresting officer
         without additional information. See United States v. Colon, 250 F.3d 130,
         137-38 (2d Cir. 2001). Therefore, we do not consider whether the dispatcher’s
         knowledge of Henderson’s identity could be imputed to Officer Lux.

                                          -22-
#26812

Ct. at 1687. About thirteen minutes after Mendocino County dispatch broadcast the

information, a highway patrol officer, heading northbound toward the reported

vehicle, passed a pickup matching the caller’s description. After making a U-turn,

the officer stopped the vehicle. The officer did not observe the pickup violate any

traffic laws prior to making the stop. When officers approached the truck, they

detected the smell of marijuana. Officers subsequently searched the vehicle and

discovered 30 pounds of marijuana. The defendants, Lorenzo Prado Navarette and

José Prado Navarette, were arrested. Id.

[¶49.]        The defendants moved to suppress the marijuana evidence, arguing

that the traffic stop violated the Fourth Amendment because the officers did not

have reasonable suspicion of criminal activity. Id. The United States Supreme

Court disagreed, holding that the officers had reasonable suspicion to stop the

pickup. Id.

[¶50.]        In reaching its conclusion that the officers had reasonable suspicion to

stop the vehicle, the United States Supreme Court first considered whether the

anonymous 911 call was “sufficiently reliable.” Id. at 1688. The Court noted that a

“basis of knowledge lends significant support to the tip’s reliability.” Id. at 1689.

The Court reasoned, “[b]y reporting that she had been run off the road by a specific

vehicle—a silver Ford F-150 pickup, license plate 8D94925—the caller necessarily

claimed eyewitness knowledge of the alleged dangerous driving.” Id. The

reliability of the call was further supported by the fact that “[a] driver’s claim that

another vehicle ran her off the road . . . necessarily implies that the informant

knows the other car was driven dangerously.” Id. Additionally, the Court observed


                                          -23-
#26812

that the timeline of events suggested there was reason to believe the caller was

telling the truth. Id. Roughly 18 minutes after receiving the call, police observed a

vehicle, traveling south, matching the caller’s description and located 19 miles

south of the location identified by the caller. Id. Finally, the Court stated that the

use of the 911 emergency system also supported the tip’s veracity as a 911 call may

have “some features that allow for identifying and tracing callers, and thus provide

some safeguards against making false reports with immunity.” Id. (citation

omitted).

[¶51.]       After analyzing the reliability of the call, the Court next considered

whether the tip created a reasonable suspicion that “criminal activity may be afoot.”

Id. at 1690. The 911 caller reported that the suspected vehicle ran her off the

roadway. Id. The Court concluded that this behavior, “viewed from the standpoint

of an objectively reasonable police officer, amount[ed] to reasonable suspicion of

drunk driving.” Id. (citation omitted) (internal quotation marks omitted). Notably,

the allegations made by the 911 caller were “more than a minor traffic infraction

and more than a conclusory allegation of drunk or reckless driving.” Id. at 1691.

The Court concluded that although the officer did not observe any additional

suspicious conduct upon following the vehicle, it did not dispel a reasonable

suspicion of drunk driving as the officer only briefly followed the vehicle. Id.

[¶52.]       In the instant case, dispatch conveyed to Officer Lux that an individual

driving an older, light blue van was potentially under the influence. Dispatch

informed Officer Lux that the individual had left the Napa store and would be

driving into Deadwood. In addition, dispatch provided Officer Lux with the license


                                          -24-
#26812

plate number and registered address for the vehicle. Almost immediately after

receiving the tip from dispatch, Officer Lux observed a van meeting dispatch’s

description driving in Deadwood. Officer Lux turned his patrol car around and

headed in the direction the van was traveling. At this point, the van was mostly out

of sight, but Officer Lux continued in the direction of the registered address. When

Officer Lux finally reached the van, he noticed it was stopped in the middle of a

residential street and the driver was revving the van’s engine. The van resumed

driving and then turned right into a driveway.

[¶53.]       Officer Lux’s stated reason for stopping the van was a combination of

both Burkett’s “erratic” driving and the tip he received about a suspected driver

under the influence. Based on the totality of the circumstances, Officer Lux had

reasonable suspicion to stop Burkett, as “[t]he quantum of proof necessary for

reasonable suspicion is somewhere above a hunch but less than probable cause.”

Herren, 2010 S.D. 101, ¶ 21, 792 N.W.2d at 557 (citing United States v. Arvizu, 534

U.S. 266, 274, 122 S. Ct. 744, 750, 151 L. Ed. 2d 740 (2002)). Unlike Navarette, we

need not decide whether the tip alone established reasonable suspicion to effectuate

a stop because the information conveyed in the tip, coupled with Officer’s Lux’s

observations of the van’s behavior made it reasonable for Officer Lux to temporarily

stop Burkett.

[¶54.]       That Officer Lux had reasonable suspicion to stop Burkett is also

supported by our case law involving anonymous tips of drivers under the influence.

See Herren, 2010 S.D. 101, ¶ 22, 792 N.W.2d at 557; Scholl, 2004 S.D. 85, ¶ 14, 684

N.W.2d at 88. In Scholl, we upheld a stop of a suspected drunk driver even though


                                         -25-
#26812

the officer did not observe any violations of the law or erratic driving. 2004 S.D. 85,

¶ 17, 684 N.W.2d at 89. The tipster in Scholl provided officers with a personal

observation that the suspected drunken driver was leaving a bar; and the tipster

further described the vehicle’s make, model, color, and unique Nebraska license

number. Id. We determined that the tip was reliable enough to yield a reasonable

suspicion that the driver was under the influence. Id. Meanwhile in Herren, we

upheld a stop of a suspected drunk driver based on the combination of an

anonymous tip and the driver’s lengthy stop at a stop sign. 2010 S.D. 101, ¶ 22, 792

N.W.2d at 557. We concluded that the officer had reasonable suspicion to stop the

driver based on the totality of the circumstances even though the tipster did not

provide a license plate number or an accurate description of the make and color of

the vehicle. Id.

[¶55.]       While the information conveyed by dispatch to Officer Lux was less in

quantity than that in Scholl, we note that unlike Herren, Officer Lux was given an

accurate description of the vehicle and a license plate number. This information,

paired with Burkett’s stopping and revving his engine in the middle of a residential

road gave Officer Lux “more than a hunch of legal wrongdoing.” See Herren, 2010

S.D. 101, ¶ 22, 792 N.W.2d at 557 (citation omitted).

[¶56.]       Taken individually, the information relayed to Officer Lux may have

been minimal, almost conclusory in nature; and Officer Lux’s corroboration of the

tip involved only a brief observation of erratic driving. But when viewed in totality,

the information and observation provided Officer Lux with the reasonable suspicion

necessary to make a stop. In balancing an individual’s interest to remain free from


                                         -26-
#26812

government intrusion with the government’s substantial interest in intercepting

vehicles driven by individuals under the influence, we conclude that Officer Lux’s

decision to stop Burkett was reasonable. See United States v. Wheat, 278 F.3d 722,

736-37 (8th Cir. 2001).

                                      Conclusion

[¶57.]         We affirm the circuit court’s decision.

[¶58.]         SEVERSON, Justice, concurs.

[¶59.]         KONENKAMP, ZINTER, and WILBUR, Justices, concur on Issue 2

and Issue 3.

[¶60.]         ZINTER, Justice, writing for the Court as to Issue 1.



ZINTER, Justice (concurring in part and concurring in result in part).

[¶61.]         I concur on issues two and three. On issue one, I concur in result. I

cannot join the lead opinion’s sua sponte reversal of more than twenty-five years of

our jurisprudence relating to collateral attacks on predicate convictions used for

sentencing enhancement. We should simply address the issue briefed and argued

on appeal: whether the circuit court sufficiently canvassed Burkett about his Boykin

rights before he pleaded guilty in March 2003.

[¶62.]         “Boykin requires that before a defendant pleads guilty, he ‘be advised

of his [federal constitutional] rights relating to self-incrimination, trial by jury, and

confrontation,’ and ‘that [he] intentionally relinquish or abandon known rights.’”

State v. Bilben, 2014 S.D. 24, ¶ 5, 846 N.W.2d 336, 338 (alterations in original)

(quoting State v. Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d 117, 120). Burkett contends


                                           -27-
#26812

that the March 2003 circuit court failed to adequately advise him of his Boykin

rights. He also contends that the court failed to advise him that he would waive

those rights by pleading guilty. 12 Both contentions fail.

[¶63.]         At Burkett’s March 2003 arraignment, the circuit court simultaneously

advised all defendants present of their rights, including their Boykin rights. The

court then advised that a guilty plea would “give up [their] right to a jury trial and

all rights that accompany a jury trial.” (Emphasis added.) The court also spoke

with Burkett and his attorney to ensure Burkett understood those rights and that

his guilty plea was voluntary.

               Court: And [Defense Counsel] you’ve discussed with your client
               his statutory and constitutional rights and maximum penalties.
               Defense Counsel: I have, Your Honor.
               Court: And you’re satisfied he understands them?
               Defense Counsel: Yes, Your Honor.
               Court: Mr. Burkett, other than what’s been discussed in court,
               have there been any threats or promises made to you to get you
               to enter a plea of guilty?
               Burkett: No, sir.

[¶64.]         The record reflects that the March 2003 circuit court fully advised

Burkett of his Boykin rights. It also reflects that the court fully advised Burkett

about the waiver effect of a guilty plea. In fact, the waiver advisement given to

Burkett is the same advisement we approved in Bilben. See 2014 S.D. 24, ¶ 7, 846

N.W.2d at 338 (approving a general waiver advisement indicating that by pleading

guilty, the defendant would “give up his right to a jury trial and all rights that



12.      Burkett does not argue that his guilty plea was unknowing or involuntary
         under a totality-of-the-circumstances analysis.

                                          -28-
#26812

accompany a jury trial”). Thus, like the defendant in Bilben, Burkett “was advised

that a guilty plea would waive all previously enumerated rights associated with a

trial, which included all three Boykin rights.” See id. ¶ 10. The circuit court did not

err in denying Burkett’s motion to strike his March 2003 conviction.

[¶65.]       The lead opinion presents thought-provoking arguments for

reexamining the statutory and constitutional underpinnings that govern collateral

attacks on predicate convictions in light of Custis v. United States, 511 U.S. 485,

114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994). But, as the lead opinion notes, “we have

not yet considered the implications of Custis on King challenges in this state[.]” We

must wait for another day to consider this matter. The lead opinion’s argument was

neither presented below nor briefed on appeal. Therefore, it would be imprudent for

us to adopt it sua sponte.

[¶66.]       This country’s judicial system is grounded on an adversarial process in

which opposing sides have notice and an opportunity to be heard before a decision is

made. Bypassing the adversarial process today could result in just as significant an

oversight as the lead opinion argues occurred in State v. King, 383 N.W.2d 854 (S.D.

1986), and our cases since Custis. We should give the parties notice and an

opportunity to be heard. We should at least hear the opposing argument before we

adopt such a significant change in our law.

[¶67.]       KONENKAMP and WILBUR, Justices, concur.




                                         -29-
