#26782-aff in pt, rev in pt & rem-SLZ

2014 S.D. 24

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

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

      v.

WAYNE BILBEN,                                  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.


MATTHEW J. KINNEY
Spearfish, South Dakota                        Attorney for defendant
                                               and appellant.


                                        ****

                                               CONSIDERED ON BRIEFS
                                               ON FEBRUARY 18, 2014

                                               OPINION FILED 04/23/14
#26782

ZINTER, Justice

[¶1.]        In 2012, Wayne Bilben was charged with driving under the influence of

alcohol. A part II information alleged that he had three prior DUI convictions

within the last ten years (in 2003, 2004, and 2007). Bilben moved to strike the prior

convictions. He claimed that he pleaded guilty to the prior DUI charges without

adequate Boykin advisements, rendering the prior convictions invalid. The circuit

court denied his motion. On appeal, Bilben withdraws his challenge to his 2004

conviction, but continues to challenge the validity of his 2003 and 2007 convictions.

We affirm in part, reverse in part, and remand for resentencing.

                             Facts and Procedural History

[¶2.]        In 2003, Bilben was charged with DUI. At a change-of-plea hearing,

the court simultaneously advised all defendants present of their rights, including

their Boykin rights: their right to a jury trial, their right to confront their accusers,

and their privilege against compulsory self-incrimination. See Boykin v. Alabama,

395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). 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.” The court also canvassed Bilben individually to ensure that he

understood those rights.

             Court: All right. [Defense Counsel], have you discussed with
             your client his statutory and constitutional rights and maximum
             penalties?
             Defense Counsel: I have, your Honor. And I understand he
             was present today, and he heard them before. And I believe he
             understands them; is that correct?
             Bilben: Yes.
             Court: Mr. Bilben, you understand your rights?
             Bilben: Yes.
                                           -1-
#26782

              Court: You’ve been in court at least on two occasions when your
              rights have been given to you.
              Bilben: Yes.
              Court: Do you understand your rights?
              Bilben: Yes, sir.
              Court: Okay. Have there been any threats or promises made to
              you, other than this plea agreement that’s been discussed in
              court, to get you to enter a plea of guilty to this charge.
              Bilben: No, sir.

Bilben then pleaded guilty to the 2003 DUI charge.

[¶3.]         In 2006, Bilben was charged with another DUI. At his plea hearing,

he was advised by that court of his rights, including his Boykin rights. However,

Bilben was not advised that a guilty plea would waive his Boykin rights. 1 He

pleaded guilty, and his conviction was entered in 2007.

[¶4.]         In 2013, Bilben was charged with the DUI that precipitated this

appeal. Before trial, Bilben moved to strike his 2003 and 2007 convictions from the

part II information. He claimed that his 2003 and 2007 convictions were

constitutionally invalid because he pleaded to each charge without an adequate

Boykin advisement. The circuit court denied the motion. Following a court trial,

Bilben was convicted of the 2013 DUI charge, and the court imposed an enhanced

sentence based on the prior convictions. Bilben appeals. 2




1.      With respect to the consequences of pleading guilty, the court only advised:
        “So you are going to get rid of the charge simply by pleading to it and let me
        decide what happens after listening to the [S]tate and you and [Defense
        Counsel] tell me what you respectively think.”

2.      Because the facts concerning Bilben’s 2003 and 2007 Boykin advisements are
        not in dispute, we only review the circuit court’s conclusions of law. We
                                                              (continued . . .)
                                           -2-
#26782

                                        Decision

[¶5.]        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. Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d 117, 120 (quoting Monette v. Weber,

2009 S.D. 77, ¶ 10, 771 N.W.2d 920, 924 (citing Boykin, 395 U.S. at 243 n.5, 89 S.

Ct. at 1712 n.5)). Bilben argues that the 2003 and 2007 courts failed to adequately

advise him that if he pleaded guilty, he would waive his Boykin rights. Therefore,

Bilben contends that his prior convictions were constitutionally invalid and his 2013

case should be remanded for resentencing without consideration of the 2003 and

2007 convictions.

[¶6.]        Regarding the 2003 conviction, Bilben claims that the court only

advised him that a guilty plea would waive his right to a jury trial. Bilben contends

he was not advised that he would also waive his privilege against self-incrimination

and his right to confront his accusers. We disagree.

[¶7.]        Shortly after fully advising Bilben of all three Boykin rights, the 2003

court advised Bilben that by pleading guilty, he would “give up [his] right to a jury

trial and all rights that accompany a jury trial.” (Emphasis added.) Bilben’s right

against compulsory self-incrimination and right of confrontation are rights that

accompanied his right to a jury trial. Therefore, Bilben was advised that by

pleading guilty, he would waive all three Boykin rights. Indeed, we recently upheld

________________________
(. . . continued)
         review conclusions of law de novo. Rosen v. Weber, 2012 S.D. 15, ¶ 7, 810
         N.W.2d 763, 765 (citation omitted).

                                           -3-
#26782

a similar general waiver advisement that referenced previously enumerated Boykin

rights. See Smith, 2013 S.D. 79, ¶ 18, 840 N.W.2d at 124 (approving a general

waiver advisement indicating that “by pleading guilty, you give up all the rights I

just read”).

[¶8.]          Bilben, however, argues that Rosen v. Weber, 2012 S.D. 15, 810 N.W.2d

763, requires the court to specifically ask “whether [a defendant] kn[ows] he [is]

waiving [the three Boykin] rights” by pleading guilty. Rosen does not demand that

type of specific questioning. Bilben takes phrases of Rosen out of context and

overlooks long-standing precedent rejecting such formulaic Boykin advisements.

[¶9.]          In Rosen, the plea-taking court only advised the defendant that by

pleading guilty, he would waive his “rights to a trial[.]” See id. ¶ 3 n.1. Further, the

plea-taking court in Rosen, unlike the plea-taking court in Smith, did not advise

that a guilty plea would waive previously enumerated rights. Thus, we noted that

there could be no “effective waiver of federal constitutional rights,” as “one must ask

how a pleading defendant could have knowingly and voluntarily waived [all] Boykin

rights when that defendant was never advised that those rights would be waived by

pleading guilty.” Id. ¶¶ 9, 13 (citation omitted).

[¶10.]         Unlike the defendant in Rosen, Bilben was advised that a guilty plea

would waive all previously enumerated rights associated with a trial, which

included all three Boykin rights. Therefore, by his guilty plea, Bilben made a

knowing decision to waive his Boykin rights.

[¶11.]         Bilben’s argument fails to recognize that “Boykin ‘does not require the

recitation of a formula by rote or the spelling out of every detail by the trial court[.]’”


                                            -4-
#26782

Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (quoting Nachtigall v. Erickson, 85

S.D. 122, 128, 178 N.W.2d 198, 201 (1970)). Instead, on review, if the record reflects

that a Boykin canvassing occurred, we require only that “the record in some manner

shows the defendant entered his plea understandingly and voluntarily.” See Quist

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

714, 717 (S.D. 1987)); see also Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925.

[¶12.]       Here, the record reflects that the 2003 court fully advised Bilben of his

Boykin rights. The court then gave him a general waiver advisement, similar to the

one approved in Smith. And significantly, Bilben makes no claim that, under the

totality of the circumstances, his plea was unknowing or involuntary. Therefore,

the circuit court did not err in denying Bilben’s motion to strike his 2003 conviction.

[¶13.]       Unlike the 2003 record, the 2007 record does not reflect that Bilben

was advised that a guilty plea would waive his Boykin rights. The record indicates

that the 2007 court failed to give any waiver advisement. “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.” Smith, 2013

S.D. 79, ¶ 8, 840 N.W.2d at 120 (alterations in original) (quoting Rosen, 2012 S.D.

15, ¶ 10, 810 N.W.2d at 766).

[¶14.]       The State, however, contends that the 2007 advisement was sufficient

under the totality of the circumstances. We disagree. “In the [complete] absence of

a Boykin canvassing, a ‘critical step’ is missing and the reviewing court does ‘not

consider the additional factors under the totality of the circumstances analysis.’”

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


                                          -5-
#26782

771 N.W.2d at 926-27). Because there was a complete absence of any Boykin waiver

advisement in the 2007 case, we do not apply the totality-of-the-circumstances

analysis.

[¶15.]       The State also contends that under State v. Jensen, 2011 S.D. 32, 800

N.W.2d 359, Bilben is not entitled to relief unless he can show that he was

prejudiced by the 2007 court’s failure to advise him that he would waive his Boykin

rights by entering a guilty plea. Jensen does not require a showing of prejudice for

Boykin violations.

[¶16.]       In Jensen, the defendant contended that his guilty plea was invalid on

two grounds: a statutory violation of SDCL chapter 23A-7 requiring certain

advisements and a constitutional violation for failing to provide a Boykin

advisement. See id. ¶¶ 10, 13. The State’s prejudice argument comes from Jensen’s

discussion of statutory violations of chapter 23A-7. In Jensen, we explained that

“[t]he United States Constitution does not mandate that courts follow the procedure

embodied in chapter 23A-7.” Id. ¶ 11 (citation omitted). Therefore, “[b]ecause

failure to follow the [chapter 23A-7] procedure is not a constitutional defect, a

collateral attack on a predicate conviction on that basis is only proper for our

consideration if a defendant can demonstrate prejudice.” Id. (citation omitted). But

Jensen did not extend the prejudice requirement to constitutional defects based on

Boykin. See id. ¶¶ 13-16.

[¶17.]       Because Bilben established a constitutional defect based on Boykin,

Bilben was not required to make a showing of prejudice. See id.; see also Smith,

2013 S.D. 79, 840 N.W.2d 117 (discussing collateral attack of prior conviction based


                                          -6-
#26782

on a claimed Boykin violation, without requiring a showing of prejudice). And

because the lack of “an effective waiver of [Boykin] rights[] renders the plea

unconstitutional[,]” the circuit court erred in denying Bilben’s motion to strike his

2007 conviction. See Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d at 926 (citing Boykin,

395 U.S. at 243, 89 S. Ct. at 1712).

[¶18.]       The dissent presents thought-provoking arguments for reexamining

the statutory and constitutional underpinnings that govern collateral attacks on

predicate convictions used for sentencing enhancement. Although the United

States Supreme Court and some states have adopted the dissent’s argument, we

must wait for another day to consider the matter. The dissent’s argument was

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

us to consider it sua sponte. Bypassing the adversarial process today could result in

just as significant an oversight as the dissent argues occurred in State v. King, 383

N.W.2d 854 (S.D. 1986), and our cases since Custis v. United States, 511 U.S. 485,

114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994).

[¶19.]       The dissent also presents a compelling argument that our case law,

addressing alleged Boykin violations, has incorrectly strayed from a totality-of-the-

circumstances analysis toward the two-step approach applied in Rosen and Monette.

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

N.W.2d at 926-27. But again, we must wait for another day to address this matter.

Although the State mentions the totality of the circumstances as a basis to uphold

Bilben’s 2007 conviction, the State has not asked us to reconsider our case law

declining to apply totality analysis when no waiver advisement has been given.


                                          -7-
#26782

Consequently, we adhere to our precedent today, awaiting a proper case in which

we can also consider the arguments against the positions argued by the dissent.

[¶20.]       Affirmed in part, reversed in part, and remanded for resentencing

without consideration of the 2007 conviction.

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

[¶22.]       GILBERTSON, Chief Justice, and SEVERSON, Justice, dissent.



GILBERTSON, Chief Justice (dissenting).

[¶23.]       I dissent. The procedure used by Bilben—a collateral attack on the

validity of a predicate conviction used for enhancement purposes—is a judicial

construct. Unlike direct appeal, it is not codified by our Legislature. See SDCL

23A-32-2 (codifying right to appeal from a final judgment of conviction). Unlike a

petition for habeas corpus, it is neither a remedy “antecedent to statute” nor “an

integral part of our common-law heritage.” Rasul v. Bush, 542 U.S. 466, 473-74,

124 S. Ct. 2686, 2692, 159 L. Ed. 2d 548 (2004). See also SDCL 21-27-1 (codifying

habeas relief). Unlike direct appeal and habeas, this form of attack on the validity

of a conviction 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).

But see King, 383 N.W.2d at 856 (holding that a motion to strike is a proper vehicle

to raise a collateral attack on a predicate conviction “whenever it is used as a basis

for augmenting punishment”) (emphasis added) (quoting In re Rogers, 619 P.2d 415,




                                          -8-
#26782

417 (Cal. 1980)). It is time to re-evaluate whether the courts of this State should

entertain this form of unrestrained collateral attack.

[¶24.]         In the posture presented in this case, the remedy first seems to have

appeared in State v. King. In King, this Court determined that “a motion to strike

is the proper vehicle for attacking such a constitutionally infirm conviction.” Id. at

856-57 (citing In re Rogers, 619 P.2d at 417). In setting forth this rule, the Court

did not rely on statutory interpretation of South Dakota law. See id. Nor did the

Court point to the common law as recognizing such a remedy. Instead, the Court

adopted a blanket rule from California that this special type of collateral attack on

predicate convictions was required to be allowed at any time, apparently under the

theory of due process considerations. 3 See id. (citing In re Rogers, 619 P.2d at 417).

[¶25.]         In King, the Court adopted a very broad rule, despite assertions that

this type of collateral attack should be confined to use in a very narrowly-defined

category of cases. The State specifically argued in King that only convictions

resulting from uncounseled guilty pleas were constitutionally infirm for

enhancement purposes, and thus collateral attacks alleging other constitutional

deficiencies should not be entertained. Id. (citing Burgett v. Texas, 389 U.S. 109, 88

S. Ct. 258, 19 L. Ed. 2d 319 (1967)). This argument was credible, considering the


3.       King also noted “a constitutionally infirm conviction cannot be used to
         enhance the sentence under our habitual offender statutes.” Id. (citing
         Application of Garritsen, 376 N.W.2d 575 (S.D. 1985)). Although King cites
         to Garritsen, Garritsen was brought as a habeas proceeding, a procedure
         recognized in the common law. Garritsen, 376 N.W.2d at 576. Furthermore,
         Garritsen simply declared that a constitutionally infirm prior guilty plea
         “could not 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.

                                           -9-
#26782

rule adopted by the Court in King arose from a line of California court Gideon-based

challenges. 4 However, the Court rejected that argument, stating that the cited

United States Supreme Court cases on point, including Burgett v. Texas 5 and Lewis

v. United States 6, did not mention limiting collateral attacks of constitutionally

infirm predicate offenses to only uncounseled predicate offenses. King, 383 N.W.2d

at 857. From King forward, our case law has followed this rule, allowing a

defendant to collaterally attack any allegedly constitutionally-infirm predicate

conviction used for sentence enhancement. However, the United States Supreme

Court later addressed the issue raised by the State in King, and ruled directly to the

contrary, in favor of the State’s position.

[¶26.]         The defendant in Custis v. United States challenged the use of prior

convictions to enhance sentencing on federal drug and firearm charges brought

against him. 511 U.S. 485, 114 S. Ct. 1732. Like Bilben, Custis alleged that the

guilty plea in one of his prior convictions was not knowingly and intelligently

entered. Id. at 488, 114 S. Ct. at 1734. 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

4.       See In re Rogers, 619 P.2d at 417 (citing In re Woods, 409 P.2d 913 (Cal.
         1966); In re Luce, 409 P.2d 918 (Cal. 1966); In re Tucker, 409 P.2d 921 (Cal.
         1966)) (citations omitted). The nature of those challenges should have made
         the rule unique to that setting, because Gideon was applied “retrospectively
         without regard to time.” In re Woods, 409 P.2d at 916.

5.       389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967).

6.       445 U.S. 55, 100 S. Ct. 915, 63 L. Ed. 2d 198 (1980).

                                              -10-
#26782

did not authorized 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.

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

United States Constitution required some procedural avenue through which to

challenge the constitutionality of his prior convictions when used for sentence

enhancement. Id. at 490, 114 S. Ct. at 1735. 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 496-97, 114 S. Ct. at

1738-39. 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
             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.



                                          -11-
#26782

[¶28.]         In King we cited Lewis as supporting the proposition that “when the

subsequent punishment depends upon the reliability of the former conviction, it

becomes constitutionally infirm.” King, 383 N.W.2d at 857. However, in Custis, the

Supreme Court stated that Lewis “point[s] strongly to the conclusion that Congress

did not intend to permit collateral attacks on prior convictions” based on the

language of the enhancement statute, and went on to reject the defendant’s

contention that the United States Constitution required allowing such an attack.

511 U.S. at 493, 114 S. Ct. at 1737 (citation omitted). The Supreme Court thereby

clarified that even if a prior conviction clearly suffered from constitutional infirmity

other than deprivation of right to counsel, 7 the United States Constitution does not

give the defendant the right to challenge the alleged infirmity in a later enhanced-

sentence proceeding.

[¶29.]         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. 8 Nor do our enhanced-penalty statutes provide a procedure for attacking the



7.       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
         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).

8.       Compare SDCL 32-23-4.6 (imposing enhanced penalty for fourth DUI
         conviction “[i]f conviction for a violation of [SDCL] 32-23-1 is for a fourth
         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 490-91, 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
                                                                (continued . . .)
                                              -12-
#26782

validity of predicate convictions when used for sentence enhancement. But see

Custis, 511 U.S. at 491, 114 S. Ct at 1736 (recognizing that some federal repeat

offender laws set forth specific procedures for challenging the validity of a prior

conviction used for enhancement purposes). Like the defendant in Custis, Bilben

has already been afforded due process of law. He had opportunities to challenge the

constitutional validity of his prior conviction on direct appeal and through habeas

relief. Yet now, many years after the timeframe contemplated by the Legislature

within which to bring statutorily-recognized challenges, Bilben is allowed to attack

his conviction. As was a concern with the United States Supreme Court, the type of

delayed attack exhibited in this case 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 of the 50 States.” Id. at 496, 114 S.

Ct. at 1738.

[¶30.]         A number of states have followed the constitutional analysis and policy

considerations in Custis and 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, e.g., State v. Weber, 90 P.3d 314 (Idaho 2004); State v. Veikoso, 74

P.3d 575 (Haw. 2003); State v. Hahn, 618 N.W.2d 528 (Wis. 2000); State v. Mund,

593 N.W.2d 760 (N.D. 1999); State v. Chiles, 917 P.2d 866 (Kan. 1996); State v.

________________________
(. . . continued)
         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”).

                                          -13-
#26782

Janes, 684 A.2d 499 (N.H. 1996); McGuire v. Commonwealth, 885 S.W.2d 931 (Ky.

1994), People v. Carpentier, 521 N.W.2d 195 (Mich. 1994). Some 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 federal Constitution. See, e.g., State v. Maine, 255 P.3d 64, 72-73

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

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

attack because Custis “merely established the floor for federal constitutional

purposes”); State v. LeGrand, 541 N.W.2d 380 (Neb. 1995), overruled by State v.

Louthan, 595 N.W.2d 917 (Neb. 1999). This Court has not addressed the issue.

[¶31.]       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). When counsel have directly asserted “that

essentially identical language in our Constitution means something different than

the United States Constitution[,]” Justice Zinter has called on them to “present

some interpretive methodology that leads to principled constitutional

interpretation[.]” State v. Schwartz, 2004 S.D. 123, ¶ 30, 689 N.W.2d 430, 437

(Zinter, J., concurring). 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.” Id. at ¶ 57 (Konenkamp, J.,

concurring). “[W]e cannot simply assume that our Constitution mandates greater


                                          -14-
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protections than those available under the Federal Constitution.” Id. at ¶ 31

(Konenkamp, J., concurring).

[¶32.]        Despite this cautionary guidance about divergent protection granted

under State and federal constitutions, we have continued offering greater protection

than that granted by the United States Constitution. We have done so without

sound judicial interpretation as to why under due process concerns of the South

Dakota Constitution defendants are allowed to raise these collateral attacks, when

they are not given that protection under the United States Constitution. This is

especially concerning, considering as the Nebraska Supreme Court noted, that

allowing these special collateral attacks in enhanced-sentencing proceedings “is

inconsistent with limitations which our law places upon collateral attack of criminal

convictions under other circumstances.” Louthan, 595 N.W.2d at 926. I find no

compelling reason why an inmate on death row has two years in which to bring a

habeas challenge to his conviction, 9 but someone in Bilben’s position is granted the

right to bring a challenge in perpetuity.

[¶33.]        Our judiciary and the South Dakota citizens whose rights and liberties

we have pledged to protect have a deeply-rooted interest in the finality of criminal

judgments. As we have stated, “[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


9.       SDCL 21-27-3.3.

                                            -15-
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(1991)). “Moreover, in addition to undermining confidence in the integrity 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. (citation omitted). 10

[¶34.]         Because the right to collaterally attack a prior conviction used for

sentence enhancement is not required by the United States Constitution and serves

to undermine the finality of judgments of the courts of this State, I urge this Court

to seriously reconsider the wisdom of allowing the sort of unrestrained collateral

attack brought by Bilben in this case. We should not continue to undermine the

finality of judgments in this State, nor continue utilizing precious judicial resources

on these collateral attacks without a clear interpretation why our State




10.      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). 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. (citations omitted).

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Constitution offers greater protection in this area than the Due Process Clause of

the United States Constitution.

[¶35.]       To exacerbate the problem created by our expanded notion of the right

to collaterally attack a predicate conviction, the Court today also follows the recent

direction taken by this Court, away from a totality-of-the-circumstances review of

guilty pleas and toward a two-step approach developed in Monette and Rosen.

Under the Court’s approach, “[i]n the complete absence of a Boykin canvassing, a

‘critical step’ is missing” and the Court does not analyze the situation under the

totality of the circumstances. As was one of my stated concerns in Rosen, this

approach threatens to place form over substance, creating an analytical framework

where we require “the recitation of a formula by rote or the spelling out of every

detail by the trial court” in order to find a guilty plea knowing and voluntary.

Rosen, 2012 S.D. 15, ¶ 22, 810 N.W.2d at 768 (Gilbertson, C.J., dissenting) (quoting

Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925).

[¶36.]       Prior to Monette, we looked to the totality of the circumstances

surrounding a guilty plea to determine whether a plea was entered knowingly and

intelligently. See, e.g., State v. Apple, 2008 S.D. 120, ¶ 12, 759 N.W.2d 283, 288;

State v. Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d 847, 852; State v. Lashwood, 384

N.W.2d 319, 321 (S.D. 1986). Under the totality of the circumstances, “[i]n addition

to the procedure and in-court colloquy, we look at other factors including ‘the

defendant’s age; his prior criminal record; whether he is represented by counsel; the

existence of a plea agreement; and the time between advisement of rights and

entering a plea of guilty.’” Monette, 2009 S.D. 77, ¶ 12, 771 N.W.2d at 925 (quoting


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Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288). The Court’s test severely narrows

this review of the record, instead focusing solely upon the words recited by the

judge. The result is essentially a per se rule: if the judge only stated x and y, but

not z, then as a matter of law, the plea could not have been intelligently and

voluntarily made, no matter the defendant’s actual knowledge and experience. 11

[¶37.]         In a habeas action the petitioner “carries the burden of proving an

involuntary plea and that his rights were violated.” See Monette, 2009 S.D. 77, ¶

16, 771 N.W.2d at 926. Yet, in this judicially-created form of collateral attack

brought by Bilben, the defendant can now prevail by alleging that the judge failed

to utter specific advisements, regardless of the surrounding circumstances and

without claiming actual coercion or misunderstanding or ignorance of the rights

being waived. Our primary concern should not be whether the circuit court recited

a rote formula or spelled out every detail of Bilben’s rights. Id. ¶ 11, 771 N.W.2d at

925. Rather, “[t]he standard was and remains whether the plea represents a

voluntary and intelligent choice among the alternative courses of action open to the

defendant.” Raley, 506 U.S. at 29, 113 S. Ct. at 523 (quoting North Carolina v.

Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 (1970)). The entirety of

the record indicates that such a choice was presented to Bilben in this case.




11.      Under this test, for example, if a criminal defense attorney with decades of
         experience were to plead guilty to a crime, but the judge didn’t explain to him
         on the record that pleading guilty waived his Boykin rights, the validity of
         the plea could be challenged, years later, as having not been entered
         “knowingly.”

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[¶38.]         The record in this case reflects, not just “in some manner” 12 but in

many ways, that Bilben’s plea was a voluntary and intelligent choice among the

alternative courses of action available. The Court concedes that Bilben was advised

of all the pertinent rights, but determines that there was a “complete absence of any

Boykin canvassing” because the judge did not tell Bilben directly that pleading

guilty would result in waiving those rights. However, the manner in which the

judge explained the rights indicated that alternative courses of action were open to

Bilben, each with rights and consequences. Majority Opinion ¶ 14.

[¶39.]         The judge first informed Bilben that he had a right to a jury trial. The

judge then informed Bilben that “At the trial, you have a right to remain silent” and

to “confront your accusers.” Although the judge did not use the word “waive,” the

rights available at trial were prefaced with the phrase “At the trial[.]” The judge

then placed the two options before Bilben: he could plead guilty, or have a trial.

Because the Boykin rights were prefaced by the phrase “At trial,” Bilben should

have understood that he would not get those rights if he pleaded guilty—the choice

presented to Bilben as the alternative to trial. 13 Thus, even under the Court’s

narrow review of the record, the colloquy satisfies Boykin’s requirement that “the




12.      Majority Opinion ¶ 11 (citations omitted).

13.      The advisement in this case was similar to those in Jones v. State, 479
         N.E.2d 539 (Ind. 1985) and Dewitt v. State, 755 N.E.2d 167 (Ind. 2001). In
         both cases, the Indiana Supreme Court upheld the validity of a guilty plea
         where the court failed to mention that pleading guilty would waive certain
         Boykin rights, but the court prefaced the rights with the phrases “in a trial”
         or “if you proceed to trial.”

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plea represents a voluntary and intelligent choice among the alternative courses of

action open to the defendant.” Raley, 506 U.S. at 29, 113 S. Ct. at 523.

[¶40.]       Beyond the words spoken by the judge, the totality of the

circumstances strengthens the conclusion that Bilben voluntarily and intelligently

waived his rights when he pleaded guilty. Had Bilben been a first time offender,

unrepresented by counsel, one may question whether Bilben would have understood

from the advisement that he did not get the rights available at trial if he pleaded

guilty. However, the record reflects that Bilben was familiar with the court system.

The 2007 conviction was Bilben’s third time before the court on DUI charges in

approximately five years. At the very beginning of the plea hearing, Bilben

acknowledged that he had been in front of the court too many times in too short a

period of time. More specifically, he was familiar with pleading guilty. He had

done it in the past and experienced the consequences. The record also reflects that

Bilben was represented by an attorney. The record reflects that Bilben took time,

off the record to discuss the plea with his attorney before entering the plea.

[¶41.]       It is telling in this case that Bilben does not claim on appeal that he

was actually coerced or misunderstood his rights prior to pleading guilty in his 2007

conviction. The totality of the circumstances, including the advisement of rights

given to Bilben, his past experience with the court system, and the fact that he was

represented by an attorney, all support the conclusion that Bilben knew the nature

of his rights and the consequences of his guilty plea, including waiver of certain

rights. However, the Court takes too narrow a view of the proceedings and

incorrectly determines Bilben’s 2007 conviction to be invalid based on Boykin. For


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this reason, and because Bilben has no constitutional or statutory right to

collaterally attack a predicate conviction used for enhancement purposes, I dissent.

[¶42.]       SEVERSON, Justice, joins this dissent.




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