#28016-a-JMK
2017 S.D. 55


                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                * * * *

STATE OF SOUTH DAKOTA,                           Plaintiff and Appellee,

            v.

CHARLES MICHAEL SHELTON, JR.,                    Defendant and Appellant.

                                * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    BEADLE COUNTY, SOUTH DAKOTA

                                * * * *

                    THE HONORABLE JON R. ERICKSON
                               Judge

                                * * * *

MARTY J. JACKLEY
Attorney General

GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota                             Attorneys for plaintiff
                                                 and appellee.


JEFF BURNS of
Churchill, Manolis, Freeman,
 Kludt, Shelton & Burns LLP
Huron, South Dakota                              Attorneys for defendant
                                                 and appellant.

                                * * * *
                                                 CONSIDERED ON BRIEFS
                                                 ON AUGUST 28, 2017
                                                 OPINION FILED 09/13/17
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KERN, Justice

[¶1.]        Charles Shelton appeals from a judgment of conviction for fourth-

degree rape. He contends that his conviction should be reversed because the circuit

court judge lacked jurisdiction to enter the judgment and because he did not receive

a preliminary hearing after the State filed an amended information. We affirm.

                             Facts and Procedural History

[¶2.]        Following accusations that he provided a minor with alcohol and then

had sexual intercourse with her while she was passed out, Shelton was indicted on

one count of third-degree rape and one count of fourth-degree rape. The minor was

fifteen years old at the time of the incident.

[¶3.]        Approximately one month before Shelton’s trial, his attorney moved to

withdraw from the case. Shelton’s former cellmate came forward with information

that Shelton confessed to him that Shelton had committed the rape. The attorney

represented both Shelton and the former cellmate. Due to the conflict, the court

allowed the attorney to withdraw and appointed a new attorney to represent

Shelton. A week later, the circuit judge overseeing the matter sent a letter to the

new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s

law firm and that this was a potential basis for disqualification. The judge stated:

             You are now advised that I will disqualify myself from this
             proceeding, and another judge will be assigned to hear this case,
             unless you and your client agree in writing that I should not be
             disqualified, and that I may continue to preside over this action.




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A written agreement waiving disqualification was not provided and there was no

further mention of the issue in the record. Nevertheless, the same judge continued

to preside over the trial.

[¶4.]        Three days before the trial, the State filed an amended complaint and

information. This was done to correct a clerical error in the original indictment.

The caption of the indictment reflected that Shelton was charged with one count of

third-degree rape and one count of fourth-degree rape. However, in the body of the

indictment under Count I, it stated that Shelton “did commit the public offense of

RAPE – SECOND DEGREE (SDCL 22-22-1(4))[.]” While the citation to the statute

correctly corresponded with third-degree rape, the text before it indicated Shelton

was charged with second-degree rape. The amended information corrected the

mistake. Before Shelton’s jury trial commenced, the court noted that the amended

information had been filed and arraigned Shelton on the charges. Shelton was not

advised of his right to a preliminary hearing—nor did he receive one. Yet Shelton

failed to object. The jury was instructed on the elements of third-degree rape and

fourth-degree rape and the evidence presented at trial conformed to those charges.

[¶5.]        Following trial, Shelton was acquitted of third-degree rape but found

guilty of fourth-degree rape. The court sentenced Shelton to fifteen years in the

penitentiary. Shelton appeals, arguing that the judge lacked jurisdiction to enter

the judgment of conviction due to judicial disqualification and that in the absence of

a preliminary hearing on the amended information, the court lacked jurisdiction to

proceed.



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                                        Analysis

Judicial Disqualification

[¶6.]         Under South Dakota law, there are three avenues for judicial

disqualification. The first is under the Due Process Clause of the United States and

South Dakota Constitutions. Due process violations for judicial bias constitute

structural error. 1 Isaacson v. Manty, 721 F.3d 533, 540 (8th Cir. 2013). The second

is a statutory right to file an affidavit for a change of judge, which is codified in

SDCL chapter 15-12. This is accomplished by informally requesting the judge to

disqualify themselves, and if the judge declines, filing a formal affidavit alleging

that “the party making such affidavit has good reason to believe and does actually

believe that such party cannot have a fair and impartial trial before the named

judge or magistrate.” SDCL 15-12-26. “Filing a timely and compliant affidavit

results in mandatory, automatic disqualification[,]” O’Neill v. O’Neill, 2016 S.D. 15,

¶ 41, 876 N.W.2d 486, 502, and if a judge continues to preside over the proceedings

after a proper affidavit is filed, “all subsequent orders and judgments are void[,]”

State v. Johnson, 2004 S.D. 135, ¶ 9, 691 N.W.2d 319, 322 (quoting State v.

Peterson, 531 N.W.2d 581, 583 (S.D. 1995)). The third avenue for disqualification is

provided in the Code of Judicial Conduct, which is codified at SDCL chapter 16-2,

appendix A.

[¶7.]         Citing Johnson, Shelton maintains that the judge lost jurisdiction over

this matter when he deemed himself disqualified under the Code of Judicial


1.      Shelton does not argue that his due process rights were violated.


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Conduct and that the judgment of conviction entered by the judge is, therefore, void.

Shelton conflates the issues of the statutory right to file an affidavit for a change of

judge and judicial disqualification under the Code of Judicial Conduct. In Johnson,

we acknowledged that “[o]nce disqualified by the filing of an affidavit for change of

judge, the challenged judge has no jurisdiction to consider the propriety of the

affidavit or to continue with the action.” Id. ¶ 8. As a consequence for continuing to

preside over the proceedings after an affidavit was properly filed, we deemed that

all subsequent orders and judgments were void. Id. ¶ 9. But an affidavit for change

of judge was not filed in this case. As such, Johnson is not applicable.

[¶8.]         Rather, in this case, the judge deemed himself disqualified under

Canon 3 E(1) of the Code of Judicial Conduct. 2 Under the Code of Judicial Conduct,




2.      Canon 3 E(1) provides:
        A judge shall disqualify himself or herself in a proceeding in which the
        judge’s impartiality might reasonably be questioned, including but not
        limited to instances where:
              (a)   the judge has a personal bias or prejudice concerning a party or a
                    party’s lawyer, or personal knowledge of disputed evidentiary
                    facts concerning the proceeding;
              (b)   the judge served as a lawyer in the matter in controversy, or a
                    lawyer with whom the judge previously practiced law served
                    during such association as a lawyer concerning the matter, or the
                    judge has been a material witness concerning it.
              (c)   the judge knows that he or she, individually or as a fiduciary, or
                    the judge’s spouse, parent or child wherever residing, or any
                    other member of the judge’s family residing in the judge’s
                    household, has an economic interest in the subject matter in
                    controversy or in a party to the proceeding or has any other more
                    than de minimis interest that could be substantially affected by
                    the outcome of the proceeding;
                                                                   (continued . . .)

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“[a] judge exercises discretion in deciding whether the facts and circumstances fit

within the disqualifying criteria.” Marko v. Marko, 2012 S.D. 54, ¶18, 816 N.W.2d

820, 826. However, once the judge answers that question affirmatively, “he must

recuse himself; that is not discretionary.” Id. (quoting Childers and Davis, Federal

Standards of Review § 12.05, at 12–31 (3d ed.1999)). The judge in this matter

determined that he was disqualified, and absent a waiver from the parties, erred by

continuing to preside over the matter.

[¶9.]         We have had occasion to review whether judges have erred in refusing

to disqualify themselves under the Code of Judicial Conduct. See, e.g., Id. ¶¶ 17-30,

816 N.W.2d at 825-29. We have not, however, had occasion to determine what



(. . . continued)
               (d)   the judge or the judge’s spouse, or a person within the third
                     degree of relationship to either of them or the spouse of such a
                     person:
                      (i)   is a party to the proceeding, or an officer, director or
                            trustee of a party;
                      (ii)  is acting as a lawyer in the proceeding;
                      (iii) is known by the judge to have a more than de minimis
                            interest that could be substantially affected by the
                            proceeding, but the judge shall disclose such de minimis
                            interest to the parties;
                      (iv) is to the judge’s knowledge likely to be a material witness
                            in the proceeding.
              (e)    the judge, while a judge or a candidate for judicial office, has
                     made a public statement that commits, or appears to commit, the
                     judge with respect to:
                      (i)   an issue in the proceeding; or
                      (ii)  the controversy in the proceeding.
        SDCL ch. 16-2 app. A. So long as the grounds for potential disqualification
        are not personal bias or prejudice, Canon 3 F permits a judge otherwise
        disqualified under Canon 3 E(1) to disclose the basis of the disqualification
        and ask the parties to waive any potential disqualification. Id.


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action is necessary when a judge does, in fact, err. The United States Supreme

Court has provided guidance in this area.

[¶10.]         In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.

Ct. 2194, 100 L. Ed. 2d 855 (1988), the plaintiff claimed, after trial and entry of a

final judgment, that the trial judge should have recused himself from the matter

under the Code of Judicial Conduct. 3 Id. at 850, 108 S. Ct. 2198. The Court

recognized that while Canon 3 E(1) “defines the circumstances that mandate

disqualification of . . . judges, it neither prescribes nor prohibits any particular

remedy for a violation of that duty.” 4 Id. at 862, 108 S. Ct. at 2204. This decision

was “wisely delegated to the judiciary” and thus, the courts are left to fashion a

remedy that would “best serve the purpose of the [Code of Judicial Conduct].” Id.

The Court reasoned that “[t]here need not be a draconian remedy for every violation

of [Canon 3 E(1),]” and that “there is surely room for harmless error committed by

busy judges who inadvertently overlook a disqualifying circumstance.” Id., 108 S.

Ct. at 2203-04. Keeping these principles in mind, the Court crafted a three-part

test to aid in determining what action should be taken for a violation of Canon 3

E(1).

[¶11.]         The test is this: in determining what action, if any, should be taken for

a violation of Canon 3 E(1), “it is appropriate to consider the risk of injustice to the


3.       The plaintiff did not learn of the potential basis for disqualification until ten
         months after the judgment was entered.
4.       The federal counterpart to Canon 3 E(1) is codified at 28 U.S.C. § 455 (2015).
         The federal statute is substantially similar to our rule.


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parties in the particular case, the risk that the denial of relief will produce injustice

in other cases, and the risk of undermining the public’s confidence in the judicial

process.” Id. at 864, 108 S. Ct. at 2205. Other courts that employ this test

emphasize that these cases are “extremely fact intensive and fact bound, and must

be judged on [their] unique facts and circumstances more than by comparison to

situations considered in prior jurisprudence.” United States v. Jordan, 49 F.3d 152,

157 (5th Cir. 1995); see also Scott v. United States, 559 A.2d 745, 753 (D.C. 1989)

(“The extent of the risk is, of course, dependent upon the circumstances surrounding

the violation.”). We agree with the United States Supreme Court’s reasoning and

adopt the test set forth in Liljeberg. 5

[¶12.]         In upholding the conviction in this case, there is little risk of injustice

to the parties. Initially, Shelton does not argue that the judge was biased or

prejudiced against him in any way. Instead, Shelton erroneously argues that the

judge lacked jurisdiction to proceed in the case, and as a result, the judgment of

conviction was void. A thorough review of the record does not reveal any evidence of



5.       The adoption of this test does not in any way supersede or alter the well-
         settled test for determining whether a judge’s impartiality might reasonably
         be questioned. That test is, and remains, whether “a reasonable person
         knowing all the facts [would] conclude that the judge’s impartiality might
         reasonably be questioned[.]” Marko, 2012 S.D. 54, ¶ 22, 816 N.W.2d at 827
         (citing Sao Paulo State v. Am. Tobacco Co., 535 U.S. 229, 232–33, 122 S. Ct.
         1290, 1292, 152 L. Ed. 2d 346 (2002); Liljeberg, 486 U.S. at 861, 108 S. Ct. at
         2203). In the present case, the judge already made that determination. The
         test announced today is merely an aid in determining what action must be
         taken once it is found that a judge did, in fact, err by continuing to preside
         over the matter when their impartiality may have been reasonably
         questioned.


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partiality. Further, it is not alleged, and it does not appear from the record, that

the judge’s ex-wife had any involvement in the matter. And while Shelton argues

that in his experience, “an overwhelming majority of divorce cases have at least

some level of animosity[,]” none was shown here.

[¶13.]       There is also little risk that denial of relief would produce injustice in

other cases. Unlike the situation presented in Liljeberg, where the judge failed to

disclose the potential basis for disqualification to the parties, the judge in this case

upheld his ethical obligations under the Code of Judicial Conduct and made a full

disclosure. The judge sent a letter to Shelton’s counsel informing him of the

potential basis for disqualification and filed the letter in the record. Although the

judge erred by continuing to preside over the matter absent a waiver, Shelton

compounded this error by failing to raise it. Other diligent parties faced with this

scenario could simply object, bringing the matter to the judge’s attention. If the

judge persists, alternative remedies such as filing a writ of mandamus are also

available. Our analysis in no way relieves judges of their obligation to disqualify

themselves—this is, and remains, the ethical duty of judges. See Canon 3 E(1) (“A

judge shall disqualify himself or herself in a proceeding in which the judge’s

impartiality might reasonably be questioned . . . .”). However, in determining

whether upholding this conviction would produce injustice in other cases, we expect

that parties in other cases would act diligently in preserving their rights.

[¶14.]       Finally, we must decide whether upholding this conviction would

undermine the public’s confidence in the judicial process. Based on the facts of this



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particular case, we do not believe the public’s confidence would be undermined.

Most importantly, the judge disclosed to the parties the potential basis for

disqualification. The purpose of Canon 3 E(1) “is to promote confidence in the

judiciary by avoiding even the appearance of impropriety whenever possible.”

Liljeberg, 486 U.S. at 865, 108 S. Ct. at 2205. This purpose was fulfilled when the

judge made his disclosure. Both parties knew of the potential basis for

disqualification. Second, by requesting a written waiver, it was clear that the judge

believed that he could remain impartial in the proceedings. Indeed, Canon 3 F only

permits the waiver of judicial disqualification in instances where there is no

“personal bias or prejudice concerning a party[.]” SDCL ch. 16-2 app. A. And

finally, the record in this case does not reveal any instances of partiality.

Consequently, while the judge erred by continuing to preside over this matter, we

find that the error was harmless.

Amended Information

[¶15.]       Next, Shelton contends that the court lacked jurisdiction to proceed in

this matter because he did not receive a preliminary hearing after the State filed an

amended information. As authority for this argument, Shelton cites Honomichl v.

State, 333 N.W.2d 797, 798 (S.D. 1983), for the general proposition that courts do

not acquire subject matter jurisdiction without “a formal and sufficient indictment

or information[.]” The State maintains that the filing of the amended information

was unnecessary and that the original indictment filed was sufficient for the court




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to proceed. We do not reach the State’s argument because Shelton’s position on

jurisdictional defect is incorrect.

[¶16.]        It is well settled that a court’s failure to hold a preliminary hearing is

not a jurisdictional defect. See State v. King, 62 S.D. 184, 252 N.W. 36, 37 (1934);

State v. Janssen, 371 N.W.2d 353, 356 (S.D. 1985); see also 22 C.J.S. Criminal

Procedure and Rights of Accused §24, Westlaw (database updated June 2017) (“The

failure to give a preliminary hearing or examination is not a jurisdictional

defect . . . .”). Instead, it is grounds for the dismissal of the information, SDCL 23A-

8-2(9), but only if the defendant objects before trial, SDCL 23A-8-3(1). If a

defendant fails to object before trial, the issue is waived. SDCL 23A-8-9. Shelton

failed to object before trial. As a result, this issue “is not preserved for appeal.”

State v. Lachowitzer, 314 N.W.2d 307, 309 (S.D. 1982). We reiterated in

Lachowitzer, “[a] criminal trial is not a game where defendant’s counsel may lie in

the weeds and hold back motions or objections that go to the very heart of the

prosecution. There exist ample means of attacking the sufficiency of the charge

prior to trial.” Id. (quoting State v. Williams, 297 N.W.2d 491, 493 (S.D. 1980)).

                                       Conclusion

[¶17.]        Absent a waiver by the parties, the judge in this case erred by

continuing to preside over the matter after he deemed himself disqualified under

the Code of Judicial Conduct. However, the error was harmless under the test set

forth in Liljeberg. Further, Shelton waived the issue relating to a preliminary

hearing when he failed to object before trial.



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[¶18.]      GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and WILBUR, Retired Justice, concur.




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