#26745-a-SLZ

2014 S.D. 5

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
CARLOS GARCIA,                              Plaintiff and Appellant,

      v.

STATE OF SOUTH DAKOTA,                      Defendant and Appellee.


                                   ****

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

                                   ****

                     THE HONORABLE WALLY EKLUND
                                Judge

                                   ****

PAUL EISENBRAUN of
Grey Law, Prof. LLC
Rapid City, South Dakota                    Attorneys for plaintiff
                                            and appellant.


MARTY J. JACKLEY
Attorney General

MATT NAASZ
Assistant Attorney General
Pierre, South Dakota                        Attorneys for defendant
                                            and appellee.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON JANUARY 14, 2014

                                            OPINION FILED 02/05/14
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ZINTER, Justice

[¶1.]         In 2013, Carlos Garcia petitioned for a writ of error coram nobis,

seeking to vacate a 2001 criminal conviction. He argued that the conviction was

invalid because he pleaded guilty without being given Padilla and Boykin

advisements. The circuit court granted summary judgment in favor of the State.

Garcia appeals. We affirm.

                             Facts and Procedural History

[¶2.]         Carlos Garcia is a Honduran national. He has lived in the United

States since 1987. In 2001, Garcia pleaded guilty to a felony in South Dakota. He

received a four-year suspended sentence. Currently, Garcia is involved in removal

and deportation proceedings that are based on his 2001 conviction.

[¶3.]         During his arraignment in 2001, Garcia was fully advised by the

circuit court of his rights, including his right to a jury trial, his right to confront and

cross-examine the witnesses against him, and his right against self-incrimination.

He was asked if he understood those rights—he responded that he did. Garcia was

then advised of his charges and the different pleas available to him. As part of the

advisement, the court explained that a guilty plea would waive the rights that

Garcia had just been advised of. Garcia pleaded not guilty.

[¶4.]         Twenty-one days later, at a change-of-plea hearing, Garcia pleaded

guilty. During this hearing, the circuit court did not repeat the advisement given at

the arraignment. The court did, however, ask Garcia whether “anybody threatened

or promised [him] anything to get [him] to enter the plea of guilty[.]” He responded

no. The court accepted Garcia’s guilty plea, found him guilty, and entered its


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sentence. Prior to his 2001 plea, Garcia’s counsel had not advised Garcia of the

possible deportation consequences of a guilty plea.

[¶5.]         In 2013, Garcia filed a petition for a writ of error coram nobis, seeking

to vacate his 2001 conviction. 1 He argued that the conviction was invalid because

he pleaded guilty without being given Padilla and Boykin advisements. See Padilla

v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); Boykin v.

Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The State moved

for summary judgment, which the circuit court granted. Garcia appeals. 2

                                        Decision

[¶6.]         Garcia argues that the circuit court erred in denying coram nobis

relief. We have strictly limited the nature of the claims that are reviewable under

coram nobis. Coram nobis is not “merely another avenue of appeal[.]” In re

Brockmueller, 374 N.W.2d 135, 139 (S.D. 1985).

              [It] is limited to reviewing a criminal conviction respecting some
              error in fact (or fundamental jurisdictional error), as opposed to
              an ordinary error in law, that without the fault of the petitioner
              was unknown at the time of the questioned proceedings, or
              unrevealed because of fraud or coercion, without which the
              judgment would not have been entered, and for which there is
              no other available remedy.



1.      This is Garcia’s first postconviction challenge to his 2001 conviction.

2.      On appeal from a grant of summary judgment, we “determine whether the
        moving party demonstrated the absence of any genuine issue of material fact
        and showed entitlement to judgment on the merits as a matter of law.” Hass
        v. Wentzlaff, 2012 S.D. 50, ¶ 11, 816 N.W.2d 96, 101 (quoting Saathoff v.
        Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804). Garcia did not object to
        the State’s Statement of Undisputed Material Facts. Therefore, we
        determine whether, under those facts, the State was entitled to summary
        judgment as a matter of law.

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Gregory v. Class, 1998 S.D. 106, ¶ 18, 584 N.W.2d 873, 878 (citations omitted). It is

only “the rare case . . . in which coram nobis will be recognized as the appropriate

remedy.” In re Brockmueller, 374 N.W.2d at 139; see also Gregory, 1998 S.D. 106, ¶

19, 584 N.W.2d at 879 (“[T]he scope of coram nobis has receded with the advent of

statutory remedies such as habeas corpus.”).

Padilla

[¶7.]        Garcia first asserts an ineffective-assistance-of-counsel claim. He

argues that his 2001 conviction was invalid because he was not advised by his

attorney of the risk of deportation arising from a guilty plea. See Padilla, 559 U.S.

at 374, 130 S. Ct. at 1486 (holding that the Sixth Amendment of the United States

Constitution requires a criminal defense attorney to “inform her client whether his

plea carries a risk of deportation”). However, even if Garcia received ineffective

assistance of counsel, his request for coram nobis relief fails for two reasons.

[¶8.]        First, ineffective-assistance claims are not cognizable under coram

nobis because the ultimate issue is a legal question. See Gregory, 1998 S.D. 106, ¶¶

18, 25, 584 N.W.2d at 878, 880 (limiting coram nobis relief, in part, “to reviewing a

criminal conviction respecting some error in fact (or fundamental jurisdictional

error), as opposed to an ordinary error in law[;]” and noting that “ineffective

assistance claims are not usually cognizable in coram nobis proceedings”); see also

State v. Tejeda-Acosta, ___ S.W.3d ___ (Ark. 2013) (holding that a claim of

ineffective assistance of counsel, based on Padilla, was “outside the purview of a

coram-nobis proceeding”); People v. Kim, 202 P.3d 436, 454 (Cal. 2009) (explaining

“[t]hat a claim of ineffective assistance of counsel, which relates more to a mistake


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of law than of fact, is an inappropriate ground for relief on coram nobis”); State v.

Diaz, 808 N.W.2d 891, 896 (Neb. 2012) (holding that the defendant’s ineffective-

assistance claim, based on Padilla, was a question of law, “not cognizable under a

writ of error coram nobis”); Trujillo v. State, 310 P.3d 594, 602 (Nev. 2013) (holding

that an ineffective-assistance claim, based on Padilla, was not within the limited

scope of the common-law writ of coram nobis because the ultimate issue is a legal

question); cf. In re Brockmueller, 374 N.W.2d at 141 (“Since the issue raised here is

lack of knowledge of the legal effect of [a case decided after conviction], and not lack

of knowledge of any fact or facts, . . . [c]oram [n]obis will not lie.”) (Wuest, Acting J.,

dissenting) (Fosheim, C.J., joining in dissent).

[¶9.]         Second, even if coram nobis relief were available to remedy ineffective-

assistance claims, Garcia has no ineffective-assistance claim based on Padilla. It is

now settled that we do “not apply the United States Supreme Court’s decision in

Padilla retroactively to cases that were decided prior to Padilla.” State v. Garcia,

2013 S.D. 46, ¶ 27, 834 N.W.2d 821, 826. Because Garcia’s conviction became final

prior to Padilla, Garcia cannot benefit from its holding in this proceeding.

Boykin

[¶10.]        Garcia also seeks coram nobis relief on the theory that, at his change-

of-plea hearing, the circuit court failed to advise him of his Boykin rights—i.e., his

right to a jury trial, his right to confront his accusers, and his privilege against

compulsory self-incrimination—and of the resulting waiver of those rights if he

pleaded guilty. In effect, Garcia claims that because the circuit court did not repeat




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its Boykin canvassing at the change-of-plea hearing, Boykin was violated. Garcia’s

coram nobis claim fails for three reasons.

[¶11.]         First, coram nobis is not available to remedy a Boykin violation.

Garcia’s claimed error, if true, is neither an “error in fact” nor a “fundamental

jurisdictional error.” 3 See Gregory, 1998 S.D. 106, ¶ 18, 584 N.W.2d at 878.

Instead, as Garcia acknowledges, a Boykin violation involves a legal error.

Therefore, coram nobis is unavailable. State v. Wilson, 234 N.W.2d 208, 210 (Neb.

1975) (“[S]ince any alleged failure of the District Court to properly inform the




3.       In some habeas corpus proceedings, we have stated that violations of a
         defendant’s constitutional rights may be considered a jurisdictional error.
         See, e.g., Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923. This
         language is inapplicable in a coram nobis proceeding. The “jurisdictional”
         errors cognizable in coram nobis are limited to errors such as lack of subject
         matter jurisdiction. See In re Brockmueller, 374 N.W.2d at 136-37, 139
         (vacating a felony DUI conviction because the underlying DUI convictions
         had been vacated for lack of subject matter jurisdiction). Thus, although
         coram nobis was available as a limited remedy in In re Brockmueller, we
         specifically cautioned “that our holding should not be construed as equating
         the writ of error coram nobis with the broader remedies formerly
         encompassed within the Uniform Post Conviction Procedure Act and now
         encompassed within our habeas corpus statutes.” Id. at 139.

         In this case, we need not delineate the jurisdictional errors that could be
         cognizable in coram nobis, though we note that “any number of constitutional
         claims cannot be vindicated on coram nobis.” See Kim, 202 P.3d at 448
         (noting that the following constitutional claims are not cognizable in coram
         nobis: unconstitutional sentences, double jeopardy, ineffective assistance of
         counsel, and improper admission of evidence); see also Gregory, 1998 S.D.
         106, ¶¶ 21, 25-26, 584 N.W.2d at 879-80 (rejecting availability of coram nobis
         to remedy claims involving defective informations, ineffective assistance of
         counsel, and cruel and unusual punishment).

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#26745

[defendant] of his constitutional rights would clearly be an error of law, a writ of

error coram nobis is not the appropriate remedy.”). 4

[¶12.]         Second, Boykin was decided before Garcia pleaded guilty. Therefore,

any claimed Boykin violation could have been raised by Garcia while he was

subjected to the restraints of his sentence (or before it was imposed). See SDCL

23A-27-11 (“Time for withdrawal of plea of guilty or nolo contendere”); see also State

v. Olson, 2012 S.D. 55, 816 N.W.2d 830; State v. Goodwin, 2004 S.D. 75, 681 N.W.2d

847. And “issues . . . that could have been previously asserted cannot serve as a

basis for coram nobis relief.” Gregory, 1998 S.D. 106, ¶ 1, 584 N.W.2d at 875; see

also id. ¶ 21 (“Petitioners for coram nobis relief must show that the matters on

which they rely were not known to them and could not in the exercise of diligence

have been discovered at an earlier time.”); Kim, 202 P.3d at 447 (“A writ of [error]

coram nobis is not available where the defendant had a remedy by (a) appeal or (b)

motion for new trial and failed to avail himself of such remedies.” (alteration in

original) (citations omitted)); Trujillo, 310 P.3d at 601-02 (holding “that any error

that was reasonably available to be raised while the petitioner was in custody is

waived, and it is the petitioner’s burden on the face of his petition to demonstrate



4.       Like a claimed Padilla violation, a claimed Boykin violation ultimately
         relates more to a mistake of law than fact. See Stuck v. Leapley, 473 N.W.2d
         476, 479 n.4 (S.D. 1991) (“[T]he legal validity of a prior conviction under
         Boykin is a question of law or at least a mixed question of fact and law to be
         resolved by the trial court.” (citation omitted)); see also United States v.
         Hernandez, 234 F.3d 252, 254 (5th Cir. 2000) (“The validity of a guilty plea is
         a question of law we review de novo.” (citation omitted)); Cunningham v.
         Diesslin, 92 F.3d 1054, 1060 (10th Cir. 1996) (“Whether a defendant entered
         a knowing and voluntary guilty plea presents a question of law which this
         court reviews de novo.” (citations omitted)).

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that he could not have reasonably raised his claims during the time he was in

custody”).

[¶13.]       Finally, Garcia’s Boykin claim fails even if we were to expand the scope

of coram nobis to include Boykin violations and ignore Garcia’s failure to raise the

issue in an earlier proceeding. Garcia’s claim fails because the record indicates that

he knowingly and voluntarily relinquished his Boykin rights.

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

his 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, 2009 S.D. 77, ¶ 10, 771 N.W.2d at

924 (citing Boykin, 395 U.S. at 243 n.5, 89 S. Ct. at 1712 n.5)). Garcia claims that

the twenty-one-day gap between his Boykin advisement and his guilty plea

rendered his plea constitutionally flawed. Our cases do not support his claim.

[¶15.]       “Under our precedent, this time span alone does not constitute a

deprivation of constitutional rights.” Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d at

926 (citations omitted). We have approved intervals between a Boykin canvassing

and a subsequent guilty plea that exceeded twenty-one days. See Stacey v. State,

349 N.W.2d 439, 441-42 (S.D. 1984) (thirty days); Clark v. State, 294 N.W.2d 916,

919-20 (S.D. 1980) (twenty-six days). Instead of focusing solely on time intervals,

when there has been some Boykin canvassing, “[w]e look to the totality of the

circumstances [to ascertain] whether a plea was made knowingly and voluntarily.”

Olson, 2012 S.D. 55, ¶ 20, 816 N.W.2d at 836 (quoting State v. Beckley, 2007 S.D.

122, ¶ 14, 742 N.W.2d 841, 846) (internal quotation marks omitted). In examining


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the totality of the circumstances, while we do consider the time between a Boykin

advisement and a guilty plea, we also consider “the defendant’s age; his prior

criminal record; [and] whether he is represented by counsel[.]” Id. (quoting Beckley,

2007 S.D. 122, ¶ 14, 742 N.W.2d at 846). Tellingly, Garcia does not address these

relevant considerations. 5

[¶16.]         Considering the relevant facts, Garcia’s Boykin claim fails because the

record indicates that he knowingly and voluntarily relinquished his constitutional

rights. At his arraignment, Garcia was fully advised of, and acknowledged that he

understood, his Boykin rights. The court also explained that a guilty plea would

waive those rights. Twenty-one days later, at his change-of-plea hearing, Garcia

intentionally relinquished those rights when he pleaded guilty. After inquiry from

the court, Garcia confirmed that his guilty plea was being entered free of threats or

promises. Moreover, throughout both hearings, he was represented by counsel, and

nothing in the record suggests that Garcia’s age or criminal record adversely

affected a knowing and voluntary guilty plea. Consequently, even if coram nobis

relief were available to remedy a Boykin violation, Garcia has no right to relief

because the record indicates that he knowingly and voluntarily relinquished his

Boykin rights.




5.       Garcia only addresses the time-interval factor. He implicitly claims that a
         per se Boykin violation occurs if a court fails to give a Boykin advisement at
         the same hearing where the guilty plea is entered.

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[¶17.]         Because coram nobis is unavailable to remedy Garcia’s claimed Padilla

and Boykin violations, the circuit court did not err in granting the State’s motion for

summary judgment. 6

[¶18.]         GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




6.       Because Garcia’s claimed Padilla and Boykin violations do not warrant
         coram nobis relief, we do not address the circuit court’s ruling on laches.

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