#26847, #26849-a-LSW

2014 S.D. 63

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

LLOYD E. EDWARDS,                         Defendant and Appellant.


                                 ****

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

                                 ****

                 THE HONORABLE JEROME A. ECKRICH, III
                               Judge

                                 ****

MARTY J. JACKLEY
Attorney General

JEFFREY P. HALLEM
KELLY MARNETTE
Assistant Attorneys General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.

ABBY A. REHORST of
Rena M. Hymans, PC
Sturgis, South Dakota                     Attorneys for defendant
                                          and appellant.

                                 ****

                                          CONSIDERED ON BRIEFS
                                          ON MAY 27, 2014

                                          OPINION FILED 08/20/14
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WILBUR, Justice

[¶1.]          Lloyd Edwards appeals the circuit court’s denial of his motion to

suppress blood evidence seized without a warrant. He also appeals the circuit

court’s denial of his motion to strike his 2003 driving under the influence (DUI)

conviction from the part II information. We affirm.

                    FACTS AND PROCEDURAL BACKGROUND

[¶2.]          On March 25, 2013, Officer Nathaniel Borg arrested Edwards for

driving or being in actual physical control of a motor vehicle while under the

influence of alcohol and driving with a revoked license. Officer Borg read the

following advisement to Edwards:

                                  DUI Advisement Card

               1.    I have arrested you for a violation of SDCL 32-23-1.
               2.    Any person who operates any vehicle in the state has
                     consented to the withdrawal of blood or other bodily
                     substance and chemical analysis.
               3.    I require that you submit to the withdrawal of your blood
                     (blood, breath, bodily substance).
               4.    You have the right to an additional chemical analysis by a
                     technician of your own choosing, at your own expense.

[¶3.]          Officer Borg asked Edwards twice if he understood the advisement, yet

Edwards did not respond. Officer Borg then transferred Edwards to the Meade

County jail.

[¶4.]          At the jail, Officer Borg explained to Edwards that blood would be

drawn from him and that his refusal would result in the use of a restraint chair in

order to forcibly obtain the evidence. Edwards verbally and physically refused to

provide a sample of his blood to law enforcement. With the help of another officer,

Officer Borg placed Edwards in a restraint chair, held a Taser to Edwards’s
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abdomen, and threatened to use the Taser if Edwards continued to resist. A blood

sample was ultimately obtained from Edwards, without the use of the Taser, while

he was seated in the restraint chair.

[¶5.]         On March 27, 2013, Edwards was indicted for driving or control of a

vehicle while under the influence of alcohol in violation of SDCL 32-23-1(2), or

alternatively, with driving or control of a vehicle while having 0.08 percent or more

by weight of alcohol in the blood in violation of SDCL 32-23-1(1). The State filed a

part II information alleging that Edwards had two prior DUI convictions within the

previous ten years—one conviction in 2003 and one conviction in 2012. Edwards’s

2013 charge would constitute a third offense DUI.

[¶6.]         Edwards filed a motion to strike his 2003 conviction from the part II

information. Edwards claimed that his 2003 conviction could not be used to

enhance his sentence because his guilty plea was not voluntary, knowing, and

intelligent. The circuit court ultimately denied Edwards’s motion to strike.

Findings of fact and conclusions of law regarding Edwards’s motion to strike his

2003 conviction from the part II information and an order denying Edwards’s

motion to strike were entered on September 17, 2013. 1




1.      The record contains two signed and filed sets of findings of fact and
        conclusions of law pertaining to the motion to strike—the first set, denying
        the motion to strike, was entered on September 17, 2013, and the second set,
        granting the motion to strike, was filed on October 25, 2013. In their briefs,
        both parties refer this Court to the September 17, 2013 findings of fact and
        conclusions of law for purposes of appellate review. See Appellant Brief page
        4 n.1; Appellee Brief page 5 n.1. Because neither party asserts that the
        October 25, 2013 findings of fact and conclusions of law control, we limit our
        review to the September 17, 2013 set of findings and conclusions.

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[¶7.]           In addition to the motion to strike, Edwards filed a motion to suppress

blood evidence seized without a warrant. An evidentiary hearing on the motion to

suppress was held on June 12, 2013. The circuit court ultimately denied Edwards’s

motion to suppress. Findings of fact and conclusions of law regarding Edwards’s

motion to suppress and an order denying the motion were entered on September 17,

2013. 2

[¶8.]           Edwards’s jury trial began on September 18, 2013. The jury found

Edwards guilty of driving or control of a vehicle while having 0.08 percent or more

of alcohol in the blood pursuant to SDCL 32-23-1(1). Based on a stipulation

between the parties, the circuit court entered a guilty verdict to the part II

information and found the current offense to be a third offense DUI within a ten-

year period. Edwards was sentenced to two years in the state penitentiary.

Edwards presents two issues for our review:

                Whether the circuit court erred in denying Edwards’s motion to
                suppress evidence obtained from a warrantless, nonconsensual
                blood draw.

                Whether the circuit court erred in denying Edwards’s motion to
                strike the 2003 conviction from the part II information.




2.        The record again contains two signed and filed sets of findings of fact and
          conclusions of law pertaining to the motion to suppress—the first set, denying
          the motion to suppress, was entered on September 17, 2013, and the second
          set, in which the circuit court granted the motion to suppress, was filed on
          October 25, 2013. In their briefs, both parties refer this Court to the
          September 17, 2013 findings of fact and conclusions of law for purposes of
          appellate review. See Appellant Brief page 4 n.2; Appellee Brief page 5 n.2.
          Because neither party asserts that the October 25, 2013 findings of fact and
          conclusions of law control, we limit our review to the September 17, 2013 set
          of findings and conclusions.

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Pursuant to a notice of review, the State also presents an issue for our review:

                   Whether the circuit court erred in failing to hold that the
                   warrantless search conducted under South Dakota’s implied
                   consent statutes was constitutional.

                                           DECISION

        I.         Whether the circuit court erred in denying Edwards’s motion to
                   suppress evidence obtained from a warrantless, nonconsensual blood
                   draw conducted pursuant to SDCL 32-23-10.

[¶9.]              We note that in denying the motion to suppress, the circuit court did so

pursuant to the “good faith exception to the warrant requirement.” 3 The circuit

court’s use of this “warrant exception” was in error, because no such warrant

exception exists. Indeed, case law instructs that the good faith exception is an

exception to the exclusionary rule. See Davis v. United States, ___ U.S. ___, ___, 131

S. Ct. 2419, 2429, 180 L. Ed. 2d 285 (2011) (in discussing the good faith exception to

the exclusionary rule, the United States Supreme Court stated “[e]vidence obtained

during a search conducted in reasonable reliance on binding precedent is not subject

to the exclusionary rule”); State v. Sorensen, 2004 S.D. 108, ¶¶ 8-9, 688 N.W.2d 193,

196-97 (stating that “[u]nder the ‘good faith’ exception [to the exclusionary rule],

‘evidence is admissible when police officers reasonably rely on a warrant that is

subsequently invalidated because a judge finds there was an insufficient basis for


3.           In its holding, the circuit court remarked: “[T]he Court does in this instance
             find that McNeely is retroactive, [and] the Court also finds that the officer
             acted in good faith and thus the good faith exception to the . . . warrant
             requirement is applicable, and on that basis the defendant’s motion to
             suppress is denied.” (Emphasis added.) In its findings and conclusions, the
             circuit court also stated “Borg was acting in compliance with the law as he
             understood it at the time, and that was objectively reasonable. Borg acted in
             good faith and the good faith exception to the warrant requirement is
             applicable.” (Emphasis added.)

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the issuing magistrate to find probable cause’” (quoting State v. Saiz, 427 N.W.2d

825, 828 (S.D. 1988))). “Good faith” is not one of the few, “well-delineated

exceptions” to the warrant requirement. See State v. Zahn, 2012 S.D. 19, ¶ 30, 812

N.W.2d 490, 499. Because we examine a circuit court’s grant or denial of a motion

to suppress involving an alleged violation of a constitutionally protected right anew,

this error is not determinative. See State v. Smith, 2014 S.D. 50, ¶ 14, ___ N.W.2d

___, ___.

[¶10.]       “The [circuit] court’s findings of fact are reviewed under the clearly

erroneous standard, but we give no deference to the [circuit] court’s conclusions of

law.” Id. (alterations in original) (quoting State v. Mohr, 2013 S.D. 94, ¶ 12, 841

N.W.2d 440, 444). And although “[f]actual findings of the lower court are reviewed

under the clearly erroneous standard, . . . once those facts have been determined,

‘the application of a legal standard to those facts is a question of law reviewed de

novo.’” State v. Heney, 2013 S.D. 77, ¶ 8, 839 N.W.2d 558, 561-62 (quoting State v.

Hess, 2004 S.D. 60, ¶ 9, 680 N.W.2d 314, 319).

The Fourth Amendment and blood draws

[¶11.]       The Fourth Amendment to the United States Constitution guarantees

citizens the right to be free from unreasonable searches and seizures:

             The right of the people to be secure in their persons, houses,
             papers, and effects, against unreasonable searches and seizures,
             shall not be violated, and no Warrants shall issue, but upon
             probable cause, supported by Oath or affirmation, and
             particularly describing the place to be searched, and the persons
             or things to be seized.

Likewise, Article VI, § 11 of our state constitution also guarantees our citizens the

right to be free from unreasonable searches and seizures:

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             The right of the people to be secure in their persons, houses,
             papers and effects, against unreasonable searches and seizures
             shall not be violated, and no warrant shall issue but upon
             probable cause supported by affidavit, particularly describing
             the place to be searched and the person or thing to be seized.

[¶12.]       “The Fourth Amendment’s prohibition against unreasonable searches

and seizures requires generally the issuance of a warrant by a neutral judicial

officer based on probable cause prior to the execution of a search or seizure of a

person.” Smith, 2014 S.D. 50, ¶ 15, ___ N.W.2d at ___ (quoting Mohr, 2013 S.D. 94,

¶ 13, 841 N.W.2d at 444). “Warrantless searches are per se unreasonable, apart

from a few, [well-delineated] exceptions[,]” Smith, 2014 S.D. 50, ¶ 15, ___ N.W.2d at

___ (first alteration in original) (quoting State v. Hirning, 1999 S.D. 53, ¶ 10, 592

N.W.2d 600, 603), and it is the State’s burden to prove that the search at issue falls

within a well-delineated exception to the warrant requirement. Hess, 2004 S.D. 60,

¶ 23, 680 N.W.2d at 324.

[¶13.]       This principle applies to the type of search that is the subject of the

present appeal, which involves a compelled, warrantless blood draw for alcohol

content to be analyzed and used as evidence in a criminal investigation and

prosecution. See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.

Ct. 1402, 1412, 103 L. Ed. 2d 639 (1989) (stating that the United States Supreme

Court has “long recognized that a ‘compelled intrusio[n] into the body for blood to be

analyzed for alcohol content’ must be deemed a Fourth Amendment search”

(alteration in original) (quoting Schmerber v. California, 384 U.S. 757, 767-68, 86 S.

Ct. 1826, 1833-34, 16 L. Ed. 2d 908 (1966))). This type of invasion involves the

individual’s “most personal and deep-rooted expectations of privacy[.]” Winston v.


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Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 1616, 84 L. Ed. 2d 662 (1985).

“Reasonableness of a search depends on balancing the public’s interest in

preventing crime with the individual’s right to be free from arbitrary and

unwarranted governmental intrusions into personal privacy.” Hirning, 1999 S.D.

53, ¶ 11, 592 N.W.2d at 603.

Exceptions to warrant requirement

[¶14.]         As it did in State v. Fierro, 2014 S.D. 62, ¶ 13, ___ N.W.2d ___, ___, the

State argues that under the Fourth Amendment and SDCL 32-23-10, 4 the South

Dakota Legislature may constitutionally condition the privilege to drive within the

state on a driver providing irrevocable consent to the warrantless withdrawal of

blood or other bodily substances. The State also attempts to justify the warrantless

blood draw that occurred in this case under the special needs exception to the

warrant requirement. We disagree with the State’s position for the reasons stated

in Fierro. Fierro, 2014 S.D. 62, ¶¶ 14-16, 21-24, ___ N.W.2d at ___. Because the

State has failed to articulate an exception to the warrant requirement that would

permit a compelled, warrantless blood draw, this type of blood draw violates the


4.       SDCL 32-23-10 provides:
              Any person who operates any vehicle in this state is considered
              to have given consent to the withdrawal of blood or other bodily
              substance and chemical analysis of the person’s blood, breath, or
              other bodily substance to determine the amount of alcohol in the
              person’s blood and to determine the presence of marijuana or
              any controlled drug or substance or any substance ingested,
              inhaled, or otherwise taken into the body as prohibited by § 22-
              42-15 or any other substance that may render a person
              incapable of safely driving. The arresting law enforcement
              officer may, subsequent to the arrest of any operator for a
              violation of § 32-23-1, require the operator to submit to the
              withdrawal of blood or other bodily substances as evidence.

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Fourth Amendment of the federal constitution and Article VI, § 11 of our state

constitution.

Good Faith Exception to the Exclusionary Rule

[¶15.]          We now examine whether suppression is the appropriate remedy for

this Fourth Amendment violation. See Davis, ___ U.S. at ___, 131 S. Ct. at 2426

(explaining that the Fourth Amendment “says nothing about suppressing evidence

obtained in violation of [its] command. That rule—the exclusionary rule—is a

‘prudential’ doctrine created by [the United States Supreme] Court to ‘compel

respect for the constitutional guaranty’” (citation omitted) (quoting Elkins v. United

States, 364 U.S. 206, 217, 80 S. Ct. 1437, 1444, 4 L. Ed. 2d 1669 (1960))). The State

argues that the blood sample and test results are admissible pursuant to the good

faith exception to the exclusionary rule based upon the officer’s reliance on prior

case law. The State cites to the United States Supreme Court’s decision in Davis for

the proposition that suppression is not an appropriate remedy when the officer

reasonably relied on a binding court precedent at the time of the search or seizure.

We examine the good faith exception de novo. Sorensen, 2004 S.D. 108, ¶ 9, 688

N.W.2d at 197 (citing United States v. LaMorie, 100 F.3d 547, 555 (8th Cir. 1996)).

[¶16.]          The exclusion or suppression of evidence is “‘not a personal

constitutional right,’ nor is it designed to ‘redress the injury’ occasioned by an

unconstitutional search.” Davis, ___ U.S. at ___, 131 S. Ct. at 2426 (quoting Stone v.

Powell, 428 U.S. 465, 486, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976)). “The rule’s sole

purpose . . . is to deter future Fourth Amendment violations.” Id. (citing Herring v.

United States, 555 U.S. 135, 141 & n.2 129 S. Ct. 695, 700 & n.2, 172 L. Ed. 2d 496


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(2009)). “Where suppression fails to yield ‘appreciable deterrence,’ exclusion is

‘clearly . . . unwarranted.’” Id. at ___, 131 S. Ct. at 2426-27 (quoting United States

v. Janis, 428 U.S. 433, 454, 96 S. Ct. 3021, 3032, 49 L. Ed. 2d 1046 (1976)). “For

exclusion to be appropriate, the deterrence benefits of suppression must outweigh

its heavy costs.” Id. at ___, 131 S. Ct. at 2427. “Because the goal of deterrence will

not always be advanced by excluding relevant, though illegally seized, evidence, the

Supreme Court has identified several exceptions to the exclusionary rule.”

Sorenson, 2004 S.D. 108, ¶ 8, 688 N.W.2d at 197.

[¶17.]       In Davis, the United States Supreme Court held that an officer’s

objectively reasonable reliance on binding court precedent at the time of the search

or seizure, even if the precedent is later overruled, satisfies the good faith exception

to the exclusionary rule. Davis, ___ U.S. at ___, 131 S. Ct. at 2428-29. In so

holding, the Court noted that “[p]olice practices trigger the harsh sanction of

exclusion only when they are deliberate enough to yield ‘meaningfu[l]’ deterrence,

and culpable enough to be ‘worth the price paid by the justice system.’” Id. at ___,

131 S. Ct. at 2428 (alteration in original) (quoting Herring, 555 U.S. at 144, 129 S.

Ct. at 702). The Court further reaffirmed “that the harsh sanction of exclusion

‘should not be applied to deter objectively reasonable law enforcement activity.’” Id.

at ___, 131 S. Ct. at 2429 (quoting United States v. Leon, 468 U.S. 897, 918-19, 104

S. Ct. 3405, 3418, 82 L. Ed. 2d 677 (1984)). “Evidence obtained during a search

conducted in reasonable reliance on binding precedent is not subject to the

exclusionary rule.” Id.




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[¶18.]       Following the United States Supreme Court’s decision in Schmerber,

this Court adopted the following rule:

             [B]odily substance samples [are] not subject to the exclusionary
             rule under the Fourth Amendment if they are taken (1) incident
             to a lawful arrest, (2) by a reliable and accepted method of
             obtaining such sample, (3) in a reasonable, medically approved
             manner, and (4) where there is probable cause to believe that
             the evidence sought exists. [Schmerber] held that the
             elimination of alcohol by natural bodily functions presents
             exigent circumstances which obviate the necessity of obtaining a
             search warrant.

State v. Hartman, 256 N.W.2d 131, 134 (S.D. 1977) (emphasis added) (footnotes

omitted) (citing Schmerber, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908). This

rule was consistently applied by this Court and guided the practice of law

enforcement officers over the next several decades. See, e.g., State v. Mattson, 2005

S.D. 71, ¶ 44, 698 N.W.2d 538, 552; State v. Hanson, 1999 S.D. 9, ¶ 28, 588 N.W.2d

885, 891; State v. Tucker, 533 N.W.2d 152, 154 (S.D. 1995); State v. Lanier, 452

N.W.2d 144, 145 (S.D. 1990); State v. Parker, 444 N.W.2d 42, 44 (S.D. 1989). These

authorities held that the rapid dissipation of alcohol in the body was a per se

exigent circumstance that provided law enforcement in South Dakota the authority

to conduct warrantless blood draws. Recently, however, the United States Supreme

Court’s decision in Missouri v. McNeely expressly rejected a per se rule that the

natural dissipation of alcohol in the blood alone is an exigent circumstance

obviating the need for a warrant prior to a blood draw. See id. ___ U.S. ___, ___, 133

S. Ct. 1552, 1556, 185 L. Ed. 2d 696 (2013). Instead, the Supreme Court relied on

Schmerber’s case-by-case analysis in reviewing exigent circumstances based on the

totality of the circumstances and held that “the natural dissipation of alcohol in the


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bloodstream does not constitute an exigency in every case sufficient to justify

conducting a blood test without a warrant.” Id. at ___, 133 S. Ct. at 1568. The

Supreme Court’s holding in McNeely was a shift from this Court’s previous

interpretation of Schmerber. See Siers v. Weber, 2014 S.D. 51, ¶ 15, ___ N.W.2d ___,

___ (discussing South Dakota’s pre-McNeely interpretation and application of

Schmerber).

[¶19.]         Here, Officer Borg arrested and drew Edwards’s blood on March 25,

2013—prior to the United States Supreme Court’s decision in McNeely. At the time

of the arrest, Officer Borg was clearly acting in compliance with the law as he

understood it at the time, i.e., the rule provided for in Hartman and subsequent

cases from this Court was that the dissipation of alcohol in blood was a per se

exigent circumstance sufficient by itself to justify conducting a blood test without a

warrant. Less than a month later, this per se interpretation would be stricken by

the United States Supreme Court in McNeely. See id. at ___, 133 S. Ct. at 1568.

Officer Borg acted in good faith reliance on binding court precedent at the time of

the search and seizure of Edwards’s blood. The good faith exception to the

exclusionary rule applies. Accordingly, we affirm the denial of Edwards’s motion to

suppress.

         II.   Whether the circuit court erred in denying Edwards’s motion to strike
               the 2003 conviction from the part II information.

[¶20.]         Edwards challenges the constitutional validity of his 2003 DUI

conviction for enhancement purposes. Edwards contends that his 2003 guilty plea

was not voluntary, knowing, and intelligent because he was not “personally

advised” of his constitutional rights, the maximum possible penalties, his right to a

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preliminary hearing, and the consequences of entering his plea on the day he

initially appeared, pleaded, and was sentenced. He also alleges that he was not

advised of his Boykin rights, specifically his right against self-incrimination and his

confrontation rights. See Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed.

2d 274 (1969).

[¶21.]       In moving to strike his 2003 conviction, Edwards does not claim that

he is innocent of the predicate conviction, but rather, he “seeks to deprive that

conviction of its normal force and effect for sentence-enhancement purposes.” See

State v. Woodard, 2014 S.D. 39, ¶ 7, ___ N.W.2d ___, ___ (quoting State v. Smith,

2013 S.D. 79, ¶ 5, 840 N.W.2d 117, 119). As such, Edwards’s challenge is a

collateral attack of a predicate conviction, and therefore, his plea is subject to less

scrutiny than if it were raised on direct appeal. Id. Additionally, “our review of a

collateral attack of a predicate conviction is limited to jurisdictional errors.” Id.

(quoting Smith, 2013 S.D. 79, ¶ 6, 840 N.W.2d at 119). “For purposes of a collateral

attack on a predicate criminal conviction, we have treated a constitutionally infirm

guilty plea as a jurisdictional error.” Id. The circuit court’s factual findings “shall

not be disturbed unless they are clearly erroneous.” Smith, 2013 S.D. 79, ¶ 6, 840

N.W.2d at 119 (quoting Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923).

“And we review the circuit court’s conclusions of law de novo.” Id.

[¶22.]       “To initiate an attack on a predicate conviction, the ‘defendant has the

initial burden of placing the validity of the prior conviction in issue[,]’” such as what

was done here—by way of a motion to strike. Woodard, 2014 S.D. 39, ¶ 8, ___

N.W.2d at ___ (quoting State v. Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d 359, 363).


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“Once the defendant has placed the prior conviction in issue[,] the burden shifts ‘to

the State to prove the existence of a prior valid conviction by a preponderance of the

evidence.’” Id. (quoting Smith, 2013 S.D. 79, ¶ 7, 840 N.W.2d at 119). “The State

meets this burden by presenting a document that ‘appears on its face to be a valid

judgment.’” Id. (quoting Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d at 363). “If the

State meets its burden, the presumption of regularity arises and the burden shifts

to the defendant to show that the prior conviction is invalid.” Id. (quoting Jensen,

2011 S.D. 32, ¶ 9, 800 N.W.2d at 363).

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

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

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

State v. Bilben, 2014 S.D. 24, ¶ 5, 846 N.W.2d 336, 338 (second and third alterations

in original) (quoting Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d at 120). “A guilty plea

operates as a waiver of important rights, and is valid only if done voluntarily,

knowingly, and intelligently, with sufficient awareness of the relevant

circumstances and likely consequences.” Woodard, 2014 S.D. 39, ¶ 9, ___ N.W.2d at

___ (quoting Bradshaw v. Stumpf, 545 U.S. 175, 183, 125 S. Ct. 2398, 2405, 162 L.

Ed. 2d 143 (2005)). And, “[w]e cannot presume a waiver of these three important

federal rights from a silent record.” Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d at 120

(quoting Rosen v. Weber, 2012 S.D. 15, ¶ 8, 810 N.W.2d 763, 765). See Woodard,

2014 S.D. 39, ¶ 9, ___ N.W.2d at ___ (stating that “the record in some manner must

show the defendant entered his plea understandingly and voluntarily”) (quoting

Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925). Thus, the issue of whether the


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circuit court erred in denying Edwards’s motion to strike his 2003 conviction “rests

on whether the record ‘affirmatively show[s] that the [2003 DUI guilty] plea was

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

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.”

See Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d at 120 (first alteration in original)

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

[¶24.]       On April 25, 2003, Edwards appeared before the Honorable Randall L.

Macy in Butte County. At this initial appearance, Judge Macy advised a group of

defendants, including Edwards, of their statutory and constitutional rights,

including the right to counsel, right to a preliminary hearing/grand jury proceeding,

right against self-incrimination, right to a jury trial, and right to confrontation. The

group was also advised of the pleas available and the maximum penalty for a class 1

misdemeanor.

[¶25.]       Following this advisement, Judge Macy personally addressed Edwards.

When asked by the court, Edwards stated that he was present in court for the

reading of the rights, heard the rights, and understood them. Edwards then

requested a preliminary hearing and the hearing was continued to May 13, 2003.

[¶26.]       On May 13, 2003, Edwards once again appeared before Judge Macy.

Judge Macy advised a group of defendants, including Edwards, of their statutory

and constitutional rights, including the right to counsel, right to a preliminary

hearing/grand jury proceeding, right against self-incrimination, right to a jury trial,




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and right to confrontation. The group was also advised of the pleas available and

the maximum penalty for a class 1 misdemeanor.

[¶27.]       Judge Macy then personally addressed Edwards. The court asked

Edwards if he was present in court for the reading of the rights, heard the rights,

and understood them. Edwards confirmed that he did. The court advised Edwards

of his right to have an attorney. Edwards stated that he did not want an attorney

and that he intended to plead guilty. The court explained by pleading guilty

Edwards would be waiving his “right to a jury trial and all rights that accompany a

jury trial.” Edwards then pleaded guilty.

[¶28.]       Here, the record reflects that in 2003, Judge Macy fully advised

Edwards of his Boykin rights. Edwards was also advised of the maximum penalty,

the consequences of entering his plea, and the right to a preliminary hearing.

Edwards was present in the courtroom when the rights were explained en masse.

Contrary to Edwards’s assertion, a circuit court is not required to “personally” or

individually advise each defendant separately of his rights. See State v. Driver, 290

N.W.2d 856, 859 (S.D. 1980). In addition to the en masse advisory, Judge Macy

then individually canvassed Edwards about his understanding of the rights and

that he would be waving his “right to a jury trial and all rights that accompany a

jury trial.” See Bilben, 2014 S.D. 24, ¶¶ 7, 12, 846 N.W.2d at 338-39 (stating that

this Court recently approved “a general waiver advisement indicating that ‘by

pleading guilty, you give up all the rights I just read’” (quoting Smith, 2013 S.D. 79,

¶ 18, 840 N.W.2d at 124)). Like the advisement given in Smith and Bilben, “all

rights that accompany a jury trial” includes the right against self-incrimination, the


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#26847, #26849

right of confrontation, and the right to trial by a jury. Id.; Smith, 2013 S.D. 79, ¶

18, 840 N.W.2d at 124. And, notably, Edwards makes no claim that, under the

totality of circumstances, his plea was unknowing or involuntary. 5 Accordingly, the

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

                                    CONCLUSION

[¶29.]         We affirm the denial of Edwards’s motion to suppress. And, in

addition, we affirm the denial of Edwards’s motion to strike his 2003 conviction.

[¶30.]         KONENKAMP and ZINTER, Justices, concur.

[¶31.]         GILBERTSON, Chief Justice, and SEVERSON, Justice, concur on

Issue 1, and concur in result on Issue 2.



GILBERTSON, Chief Justice (concurring in result).

[¶32.]         I concur with the Court on Issue One. On Issue Two, I concur in the

result and adhere to my dissent in State v. Bilben, 2014 S.D. 24, 846 N.W.2d 336.

[¶33.]         SEVERSON, Justice, joins this special writing.




5.       For the reasons set forth in Justice Zinter’s special writing in State v.
         Burkett, 2014 S.D. 38, ___ N.W.2d ___, and the Court’s decision in State v.
         Bilben, 2014 S.D. 24, ¶¶ 18-19, 846 N.W.2d 336, 340 and in State v. Woodard,
         2014 S.D. 39, ¶ 20 n.6, ___ N.W.2d ___, ___ n.6, we decline to adopt, at this
         time, the position the Chief Justice takes in his concurrence in result.

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