#26572-rev & rem-GAS

2013 S.D. 79

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

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

      v.

JUSTIN SMITH,                               Defendant and Appellee.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                     THE HONORABLE WALLY EKLUND
                                Judge

                                   ****


MARTY J. JACKLEY
Attorney General

MATT NAASZ
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellant.

JOHN R. MURPHY
Rapid City, South Dakota                    Attorney for defendant
                                            and appellee.


                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 27, 2013

                                            OPINION FILED 11/13/13
#26572

SEVERSON, Justice

[¶1.]        Justin Smith was charged with driving under the influence of alcohol

(DUI) in Pennington County, South Dakota, on August 13, 2012. A Part II

Information alleged that Smith had two previous DUI convictions within the last

ten years, one in 2011 (Lawrence County, South Dakota) and the other in 2009

(Douglas County, Nebraska). Smith moved to strike the 2011 conviction from the

Part II Information, claiming his guilty plea was constitutionally infirm because he

was not fully advised of the waiver effect of pleading guilty (a violation of Boykin

rights). The Seventh Circuit Court (circuit court) agreed, granting Smith’s motion

to strike on November 28, 2012. The State of South Dakota petitioned this Court

for an intermediate appeal, which we granted. We reverse the circuit court’s order

granting Smith’s motion to strike and remand to the circuit court with the direction

to include Smith’s 2011 Lawrence County conviction in the Part II Information

because Smith was fully advised of his Boykin rights during his 2011 conviction and

intelligently and voluntarily waived those rights.

                                    Background

[¶2.]        On the early morning of August 13, 2012, Justin Smith was arrested

for DUI in Pennington County, South Dakota. Smith was arraigned on September

25, 2012, where an Information and a Part II Information, which enhanced the DUI

charge to a third offense, were filed. Smith moved to strike his 2011 Lawrence

County DUI conviction (2011 conviction) from the Part II Information but did not

challenge the 2009 DUI conviction in Nebraska.




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[¶3.]        Smith claims the 2011 sentencing court never expressly advised him at

the time his guilty plea was received that he would waive his right to a jury trial,

right to confrontation, and right against self-incrimination. As a result, based on

Rosen v. Weber, 2012 S.D. 15, 810 N.W.2d 763, Smith alleges that the 2011

conviction was invalid. Upon hearing Smith’s motion to strike, the circuit court

agreed, ordering on November 28, 2012, that the 2011 conviction be stricken from

the Part II Information.

[¶4.]        The State of South Dakota appeals, raising the issue of whether the

circuit court erred in striking Smith’s 2011 conviction.

                                Standard of Review

[¶5.]        Smith is not contending that he is innocent of the 2011 conviction;

rather, he seeks to deprive that conviction of its normal force and effect for

sentence-enhancement purposes. Smith’s challenge, therefore, is a collateral attack

of a predicate conviction, which is subject to a lesser scrutiny than a direct appeal:

             Upon a direct appeal from a conviction, the defendant must be
             given all presumptions and protections possible under our
             Constitution. However, when the proceeding before the court is
             in the nature of a collateral attack, as in a habeas corpus action
             or a challenge to the validity of predicate convictions, it becomes
             subject to less intense scrutiny upon review.

State v. Jensen, 2011 S.D. 32, ¶ 8, 800 N.W.2d 359, 363 (quoting State v. Goodwin,

2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849).

[¶6.]        Further, our review of a collateral attack of a predicate conviction is

limited to jurisdictional errors. Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d

920, 923 (citing Owens v. Russell, 2007 S.D. 3, ¶ 6, 726 N.W.2d 610, 614-15). In

criminal cases, violating “a defendant’s constitutional rights constitutes a

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jurisdictional error.” Id. Also, the circuit court’s “finding of facts shall not be

disturbed unless they are clearly erroneous.” Id. And we review the circuit court’s

conclusions of law de novo. Id.

[¶7.]        Smith carried “the initial burden of placing the validity of the prior

conviction in issue.” Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d at 363 (quoting Stuck v.

Leapley, 473 N.W.2d 476, 478 (S.D. 1991)). Smith met his initial burden by raising

the issue in his motion to strike. Id. The burden then shifted “to the State to prove

‘the existence of a prior valid conviction by a preponderance of the evidence.’” Id.

(quoting Stuck, 473 N.W.2d at 478-79). The State met its burden by providing the

2011 judgment of conviction, which “appears on its face to be a valid judgment.” Id.

(quoting State v. Moeller, 511 N.W.2d 803, 809 (S.D. 1994)). Therefore, “the

presumption of regularity arises and the burden shifts to [Smith] to [prove his] prior

conviction is invalid” by a preponderance of the evidence. Id.; Monette, 2009 S.D.

77, ¶ 6, 771 N.W.2d at 923 (citation omitted).

                                        Analysis

[¶8.]        This Court has long scrutinized the giving and receiving of guilty

pleas, which is appropriate because “a plea of guilty is more than an admission of

conduct; it is a conviction.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709,

1712, 23 L. Ed. 2d 274. By pleading guilty, a defendant waives three fundamental

constitutional rights: the right against compulsory self-incrimination, the right to a

trial by a jury, and the right to confront one’s accusers. Id. at 243. “Therefore, it is

critical not only that a defendant be advised of his rights relating to self-

incrimination, trial by jury, and confrontation, but also that the defendant


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intentionally relinquish or abandon known rights.” Monette, 2009 S.D. 77, ¶ 10, 771

N.W.2d at 924 (quoting Boykin, 395 U.S. at 243 n.5, 89 S. Ct. at 1712 n.5). 1 Failing

“to canvass [a defendant] regarding a waiver of his [or her] Boykin rights

invalidates [the] guilty plea even under our less intense” collateral attack standard

of review. Rosen, 2012 S.D. 15, ¶ 10, 810 N.W.2d at 766. “We cannot presume a

waiver of these three important federal rights from a silent record.” Id. ¶ 8 (quoting

Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 925). Thus, the issue of whether the

circuit court erred in striking Smith’s 2011 conviction rests on whether the record

“affirmatively show[s] [that the 2011 Lawrence County DUI guilty] plea was

voluntary, that the defendant understood the consequences of pleading guilty, and


1.    SDCL 23A-7-4 provides statutory guidance as to the responsibilities of the
      trial court before it may accept a plea of guilty or nolo contendere:

             Before accepting a plea of guilty or nolo contendere a court must
             address the defendant personally in open court, subject to the
             exception stated in § 23A-7-5, and inform him of, and determine
             that he understands, the following:

             ....

             (4) That if he pleads guilty or nolo contendere there will not be a
             further trial of any kind, so that by pleading guilty or nolo
             contendere he waives the right to a trial, the right to confront
             and cross-examine witnesses against him, and the right not to
             be compelled to incriminate himself . . . .

      SDCL 23A-7-4 “is a safeguard ‘designed to assist the courts with the
      constitutionally-required determination that a defendant’s guilty plea is
      voluntary and knowing, and to produce a complete record’ of that
      determination.” Jensen, 2011 S.D. 32, ¶ 11, 800 N.W.2d at 364 (quoting State
      v. Miller, 2006 S.D. 54, ¶ 17, 717 N.W.2d 614, 620). See Miller, 2006 S.D. 54,
      ¶ 17, 717 N.W.2d at 620; Monette, 2009 S.D. 77, ¶ 11 n.1, 771 N.W.2d at 925
      n.1; McCarthy v. United States, 394 U.S. 459, 465, 89 S. Ct. 1166, 1170, 22 L.
      Ed. 2d 418 (1969).


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#26572

that the defendant explicitly waived the constitutional right against compulsory self

incrimination, the right to trial by jury, and the right to confront one’s accusers.”

Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 925 (quoting Goodwin, 2004 S.D. 75, ¶

23, 681 N.W.2d at 855 (Konenkamp, J., concurring specially)).

[¶9.]         The record indicates that on July 28, 2010, Smith made his first

appearance in Lawrence County Magistrate Court. 2 During that initial

appearance, Smith was advised of his constitutional rights (including Boykin rights)

and the effects of pleading guilty. 3 Smith was asked if he understood those rights,



2.      Smith’s 2011 Lawrence County conviction proceedings took place in 2010, but
        the judgment of conviction and sentence was entered in 2011, thus it is
        referred to as the “2011 conviction.”

3.      Specifically, the sentencing court began each session with an introduction
        and the following litany:

              You are entitled to defend yourself, or you may have a lawyer
              represent you at any and all stages of these proceedings. So
              when your name is called forward, if you’d like to have a chance
              to talk to a lawyer please tell me that, and I’ll just give you a
              new court date to come back.

              If you want a lawyer but you know you’re not able to afford to
              hire one at this point, please tell me that and I’ll have you fill
              out an application for a court-appointed lawyer. If you qualify
              based upon your income, I could then appoint a lawyer to
              represent you at the expense of Lawrence County. Lawrence
              County will then pay for your lawyer fees up front, so you can
              get one today. You’ll have to repay the amount, so it’s not free,
              but it gets you a lawyer when you need one.

              You have the right to a speedy, impartial, and public jury trial in
              this county; or you could request a trial to the Court, which is a
              trial to a judge. If you request a jury trial, though, the verdict
              must be unanimous. All 12 jurors must agree that you are guilty
              before you could be found guilty.

                                                                  (continued . . .)
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#26572

to which he responded affirmatively. On August 18, 2010, Smith was arraigned.

Smith, represented by counsel, again was advised of his constitutional rights and

the effects of pleading guilty. 4 Smith’s counsel pled not guilty on Smith’s behalf.


 ___________________
(. . . continued)
               You are presumed innocent until proven guilty beyond a
               reasonable doubt. You have the right to rely upon the fact that
               the Prosecution carries that burden of proof. You do not have to
               present any evidence, and you do not have to testify.

             You have the right to remain silent. You have the right to
             confront and cross-examine witnesses that might be called by the
             State to give evidence against you. And you have the right to call
             witnesses to testify for you. To make sure those witnesses showed
             up to testify, the Court would subpoena them for you.

             If you’re charged with a Class 1 misdemeanor or a felony, you
             have the right to have a preliminary hearing on your case. At
             that hearing, the Prosecution would present the facts of your
             case to a judge who would decide whether there is probable
             cause to believe a crime has been committed and probable cause
             to believe that you’re the person that committed the crime. If
             probable cause is found, you’d be charged formally with the
             crime. I would then have you come to court and enter a plea to
             those charges.

             At that time, the pleas available to you: If you wish to have a
             trial, you’d plead not guilty. If you wish to avoid a trial, you may
             plead guilty. But once you plead guilty, you give up all the rights
             I just read. The only thing left for the Court to do once you have
             pled guilty is to sentence you. But you do have a right to a delay
             in sentencing of 48 hours, if you choose, or you could give up
             that right and be sentenced on the day you plead guilty or are
             found guilty.
             ....

      (Emphasis added.)

      The sentencing court then addressed the possible maximum penalties.

4.    The same litany as included in footnote 3 was read, with only minor,
      immaterial deviations.

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[¶10.]         On September 27, 2010, Smith appeared in court for a change of plea.

Smith was again advised of his constitutional rights and the effects of pleading

guilty. 5 The record indicates that Smith was told, among other things, that:

               You have the right to a speedy, impartial, and public jury trial
               in this county . . . . You have the right to remain silent. You
               have the right to confront and cross-examine witnesses that
               might be called by the State to give evidence against you. And
               you have the right to call witnesses to testify for you. . . . If you
               wish to avoid a trial, you may plead guilty. But by pleading
               guilty, you give up all the rights I just read. . . .

After Smith’s constitutional rights were read, the dialogue went as follows:

                 Court:     Did you understand your rights this morning?
                 Smith:     Yes, ma’am.
                 Court:     All right. What are we doing today, Mr. Kinney?
               Defense:     Your Honor, this is a change of plea. We’re
                            delaying sentencing ‘til November 15 for him to
                            complete treatment.
                 Court:     All right.
               Defense:     He will be admitting to the Part II Information on
                            the DUI charge. State will dismiss all other
                            charges.
                 Court:     All right. Sir, have there been any threats or
                            promises made to get you to enter a plea today?
                 Smith:     No, ma’am.
                 Court:     Do you understand by pleading guilty you give up
                            all the rights I read to you?
                 Smith:     Yes, ma’am.
                 Court:     And again, did you understand those rights?
                 Smith:     Yes.
                 Court:     To the charge in the Indictment, sir, Count 1,
                            driving or physical control of a motor vehicle while
                            you had .08 percent or more by weight of alcohol in
                            your blood, what is your plea?
                 Smith:     Guilty.


5.       The same litany as included in footnote 3 was read, with only minor,
         immaterial deviations.

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[¶11.]         The judgment of conviction and sentence was entered on January 31,

2011. In which, the sentencing court certified that Smith was advised of all

constitutional and statutory rights, including but not limited to: “The right not to be

compelled in any criminal case to be a witness against himself. . . . The right to a

speedy and public trial by an impartial jury in Lawrence County, South Dakota. . . .

The right to confront and cross-examine the witnesses against him/her. . . .”

[¶12.]         The circuit court concluded, upon review of the record, that Smith was

not advised of the waiver effect of pleading guilty. We disagree. We have long

stated that in advising defendants of their rights, the sentencing court is not

required to recite a specific formula by rote or “spell[ ] out every detail[.]” Monette,

2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (quoting Nachtigall v. Erickson, 178 N.W.2d

198, 201 (S.D. 1970)). Here, Smith was advised of his Boykin rights numerous

times including “when the inquiries were most significant”—when Smith changed

his plea to guilty. Rosen, 2012 S.D. 15, ¶ 9, 810 N.W.2d at 766 (quoting Monette,

2009 S.D. 77, ¶ 13, 771 N.W.2d at 925-26).

[¶13.]         At the change of plea hearing, the sentencing court asked Smith if he

understood those rights that were just read to him, which included Boykin rights.

Smith, with counsel at his side, replied affirmatively. Then, the sentencing court

asked Smith whether he “understand[s] that by pleading guilty you give up all the

rights I read to you?” Smith, now hearing the effect of waiver for the second time in

that proceeding, replied affirmatively. 6 And the court asked again, “did you



6.       It was the fourth time Smith heard the warning if you include the
         initial hearing and arraignment (through counsel).

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#26572

understand those rights,” to which Smith replied affirmatively. Smith explicitly

waived his Boykin rights by telling the sentencing court that he understood by

pleading guilty he gave up the rights read to him, followed by pleading guilty.

[¶14.]         The circuit court also concluded that “at no time during the change of

plea hearing was Defendant Smith specifically advised that if he pled guilty, he

would be giving up his rights to a jury trial, confrontation and silence.” (Emphasis

added.) However, “[s]pecific articulation of the Boykin rights by the trial judge is

not an indispensable requisite for the record to establish a valid plea.” 7 Moeller,

511 N.W.2d at 810 (citations omitted). Nor is there a “requirement that the record

show an express enumeration by the court nor an express waiver by the defendant .

. . as a condition precedent to a voluntary and intelligent guilty plea.” Id. (citing

Quist v. Leapley, 486 N.W.2d 265, 267 (S.D. 1992)); Logan v. Solem, 406 N.W.2d

714, 717 (S.D. 1987) (“Boykin is devoid of any language stating that valid waiver

requires the defendant be specifically told each of those rights he is waiving and

then expressly waive each right for the record.”). Instead, “‘the record in some

manner must show the defendant entered his plea understandingly and

voluntarily.’” Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (emphasis in original)



7.             It is unreasonable to expect a trial court to explain the
               defendant’s rights with the same fervor to one charged with
               disorderly conduct, as the court would to a defendant facing a
               murder charge. In point of fact, where jail is not imposed upon a
               defendant on a misdemeanor charge, he is not, constitutionally,
               entitled to counsel.

         Moeller, 511 N.W.2d at 809 (citing Scott v. Illinois, 440 U.S. 367, 99 S. Ct.
         1158, 59 L. Ed. 2d 383 (1979) (citations omitted)).


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(quoting Quist, 486 N.W.2d at 267). See Jensen, 2011 S.D. 32, ¶ 16, 800 N.W.2d at

366; State v. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287; State v. Beckley, 2007

S.D. 122, ¶ 10, 742 N.W.2d 841, 844; Moeller, 511 N.W.2d at 810. Upon review, the

record shows that an appropriate canvassing took place and that Smith entered his

plea understandingly.

[¶15.]       We now consider whether the record in some manner shows that Smith

entered his plea voluntarily. We consider the totality of the circumstances to

determine whether Smith’s plea was voluntary. Apple, 2008 S.D. 120, ¶ 14, 759

N.W.2d at 288 (citing Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d at 852). See Rosen,

2012 S.D. 15, ¶ 11, 810 N.W.2d at 766 (citing Monette, 2009 S.D. 77, ¶ 16, 771

N.W.2d at 926-27). When considering the totality of the circumstances, in addition

to the in-court colloquy and procedures already reviewed, we look at other factors,

such as: the defendant’s age; prior criminal record; whether represented by counsel;

whether a plea agreement was in place; and the time between the advisement of

rights and the guilty plea. Monette, 2009 S.D. 77, ¶ 12, 771 N.W.2d at 925 (quoting

Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288).

[¶16.]       The record shows that Smith was 34 years old at the time of his guilty

plea and he was familiar with the criminal justice system as he was previously

convicted of a DUI in Nebraska. Further, Smith was represented by counsel with a

plea agreement in place. Also, there was very little time between Smith being

advised of his constitutional rights, including Boykin rights, and the guilty plea.

Lastly, the sentencing court asked Smith if any threats had been made to make him

plead guilty, to which he replied negatively. Given the totality of the circumstances,


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the sentencing court in its judgment of conviction determined that Smith’s plea was

“voluntary, knowing and intelligent; that the Defendant understood the nature and

consequences of the plea at the time said plea was entered and that the Defendant

was represented by competent counsel; and that a factual basis existed for the

plea.” 8 Upon review, we agree.

[¶17.]         The circuit court concluded that Rosen mandates that Smith’s 2011

conviction be stricken from the Part II Information. We disagree. During Rosen’s

change of plea, he was advised of his constitutional rights. Rosen, 2012 S.D. 15, ¶ 3,

810 N.W.2d at 764. But, Rosen was only advised (and stated he understood) that a

guilty plea would waive his right to “a trial.” Id. We reversed the habeas court’s

conclusion that Rosen’s plea was voluntary because Rosen was only advised that if

he pled guilty, he would waive his right to “a trial.” Id. ¶ 9. Rosen was not advised

that if he pled guilty he would waive more than that—his right against self-

incrimination, his right of confrontation, and his right to a trial by a jury. Id.

[¶18.]         Smith’s circumstances are distinguishable. Smith was advised during

the sentencing court’s reading of rights, which included Boykin rights, that “by

pleading guilty, you give up all the rights I just read.” Then again, while being



8.       Although the judgment of conviction was issued several months after
         the plea, it does reflect the sentencing court’s perspective at the time of
         the plea. This Court, or a reviewing circuit court “acting in [an]
         appellate function on the cold and indeed ancient record before us,
         cannot presume greater insight into the defendant’s ‘understanding of
         his rights, his waiver of counsel, and his plea of guilty than that of the
         other courts that have considered this case.’” Moeller, 511 N.W.2d at
         808 (quoting Boyd v. Dutton, 405 U.S. 1, 4, 92 S. Ct. 759, 761, 30 L. Ed.
         2d 755 (1972) (White, J., dissenting)).


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specifically addressed, Smith was asked: “Do you understand by pleading guilty you

give up all the rights I read to you?” Unlike Rosen, Smith’s advisement of waiving

“all the rights I just read to you” included the right against self-incrimination, the

right of confrontation, and the right to a trial by a jury.

[¶19.]       Also, Smith argues that the sentencing court made an inaccurate

statement of law and fact by saying, “once you plead guilty, you give up all the

rights I read to you.” Smith states, for example, that by pleading guilty he would

not be waiving his right to counsel. The test, however, is whether the record in

some manner shows that Smith entered his plea understandingly and voluntarily.

Nowhere does the record indicate that Smith was confused about his rights or the

waiver effect of pleading guilty. Also, nowhere does the record indicate that Smith

was confused about which rights he was waiving. Instead, the record indicates that

Smith replied he understood his rights and the effect of waiving them. Smith, then,

has not met his burden of proving that the guilty plea was invalid based on the

sentencing court’s use of the phrase, “all the rights I read to you.”

                                      Conclusion

[¶20.]       The record affirmatively shows that Smith’s plea from the 2011

conviction was voluntary, that Smith understood the consequences of pleading

guilty, and that Smith explicitly waived his constitutional right against compulsory

self-incrimination, right to a trial by a jury, and right to confront his accusers.

Smith did not meet his burden of proving otherwise. The circuit court erred when it

struck Smith’s 2011 conviction from the Part II Information. We reverse the circuit

court’s order granting Smith’s motion to strike and remand to the circuit court with


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the direction to include Smith’s 2011 Lawrence County conviction in the Part II

Information.

[¶21.]         KONENKAMP, ZINTER, and WILBUR, Justices, concur.

[¶22.]         GILBERTSON, Chief Justice, concurs in result.



GILBERTSON, Chief Justice (concurring in result).

[¶23.]         I join in the Court’s reversal of the decision of the circuit court.

However, I cannot join in any references to Rosen v. Weber, 2012 S.D. 15, 810

N.W.2d 763, as controlling authority in this matter. As I dissented in Rosen, I

would not follow it herein. For this reason, I concur in result only.




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