#25833-a-GAS

2011 S.D. 32

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                  * * * *

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

v.

WILLIAM E. JENSEN,                          Defendant and Appellant.

                                  * * * *

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

                                  * * * *

                      HONORABLE JOHN J. DELANEY
                               Judge

                                  * * * *

MARTY J. JACKLEY
Attorney General

SHERRI SUNDEM WALD
Deputy Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.

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

                                  * * * *
                                            CONSIDERED ON BRIEFS
                                            ON MAY 23, 2011

                                            OPINION FILED 06/29/11
#25833

SEVERSON, Justice

[¶1.]         William Jensen was charged with fourth offense driving under the

influence. He filed a motion to strike one of his three prior driving under the

influence convictions. Jensen argued that because the magistrate court relied on a

statement-of-rights form to establish the voluntariness of his guilty plea, that prior

conviction is invalid for sentence-enhancement purposes. The trial court denied

Jensen’s motion to strike, concluding that the statement-of-rights form was an

adequate record of voluntariness. We affirm.

                                    Background

[¶2.]         On April 2, 2010, Rapid City Police Officer Eric Holmquist stopped

Jensen at approximately 12:16 p.m. on suspicion of driving under the influence.

When Officer Holmquist initiated contact with Jensen, he detected the odor of

alcohol. Jensen denied drinking that morning but admitted that he drank a pint of

whiskey the night before. When Jensen failed a field sobriety test, Officer

Holmquist determined that Jensen had been driving under the influence and

arrested him. A subsequent blood test revealed that Jensen’s blood alcohol level

was 0.267 percent.

[¶3.]         In May 2010, a Pennington County grand jury indicted Jensen on

alternative counts of driving under the influence. 1 The State then filed a Part II

Information, asserting that Jensen was convicted of driving under the influence in



1.      The grand jury charged both driving under the influence, a violation of SDCL
        32-23-1(2), and driving under the influence by 0.08 percent or more by weight
        of alcohol in the blood, a violation of SDCL 32-23-1(1).


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January 2008, July 2006, and December 2000. Because these prior convictions

occurred within ten years of the charged offense, the Part II Information alleged a

fourth offense driving under the influence charge, a class five felony punishable by a

term of five-years imprisonment in the state penitentiary, a $10,000 fine, or both.

[¶4.]         Jensen pleaded guilty to a second offense driving under the influence

charge in April 2006. 2 Before the plea hearing, Jensen signed a statement-of-rights

form. The form included the statement that “[n]o promises nor threats have been

made to me to induce me to sign this waiver and to plead to the charge made

against me. I am entering this plea voluntarily and of my own free will.” At the

hearing, the magistrate court advised Jensen of his statutory and constitutional

rights, including the right to counsel, the right to a speedy, public jury trial in the

county in which the offense occurred, the right to compulsory process, the right to

confront witnesses, the right to remain silent, and the right to a preliminary

hearing. The magistrate court also explained the presumption of innocence and

advised Jensen of the maximum penalty for a second offense driving under the

influence conviction.

[¶5.]         Before Jensen entered his guilty plea, the following colloquy took place:

              COURT:       William Jensen.

              D’S ATTY:    Your Honor, the defendant would like to enter a
                           plea today.

              COURT:       All right. Is there any plea agreement here?

              D’S ATTY:    Yes, there is.


2.      Jensen pleaded guilty in April 2006, but the magistrate court entered the
        judgment of his conviction in July 2006.

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         STATE:      To a standard second offense.

         COURT:      Okay. And then the other charge will be
                     dismissed?

         D’S ATTY:   That is correct.

         COURT:      All right. Okay, I’ll have the record reflect then the
                     State has filed an Information and Information
                     Part II. And, counsel, has Mr. Jensen had an
                     opportunity to sign and review the Statement of
                     Rights form?

         D’S ATTY:   Yes, Your Honor.

         COURT:      Okay. Thank you. Mr. Jensen, I’ve reviewed the
                     Statement of Rights form here. Now, I see your
                     signature on the bottom. So you’ve read the
                     document?

         JENSEN:     Yes, sir.

         COURT:      Then you understand what you’ve read?

         JENSEN:     Yes.

         COURT:      Now, you know that if you plead guilty that you
                     give up the rights you’ve read about and you have
                     been advised of in the past, and that includes the
                     right to a jury trial in Fall River County. You
                     understand there is not going to be a trial?

         JENSEN:     Yes.

         COURT:      Giving up the trial, you give up the right to see,
                     hear, or ask questions of the State’s witnesses. Do
                     you understand that?

         JENSEN:     Yes.

         COURT:      Okay. You give up the right to be silent. If I – if I
                     asked you what happened back here in March you
                     have to answer any questions, right?

         JENSEN:     Yes.


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             COURT:        Okay.

The magistrate court then questioned Jensen to establish a factual basis. It

concluded: “I’ll also have the record reflect the Court has reviewed the reports

submitted by [the arresting officer] and based upon that, your statements, I find a

factual basis to support the plea and voluntary waiver of rights.”

[¶6.]        Jensen filed a motion to strike his prior 2006 conviction. Because the

magistrate court relied on a statement-of-rights form to establish the voluntariness

of his guilty plea, Jensen argues that the conviction is invalid for sentence-

enhancement purposes. The trial court denied Jensen’s motion to strike, concluding

that the statement-of-rights form was an adequate record of the voluntariness of his

plea. After a trial on stipulated facts in November 2010, the trial court found

Jensen guilty of fourth offense driving under the influence and sentenced him to

serve a term of four-years imprisonment in the state penitentiary. Jensen appeals.

                               Analysis and Decision

[¶7.]        Jensen argues that his prior driving under the influence conviction is

invalid for sentence-enhancement purposes because the magistrate court relied on a

statement-of-rights form to establish the voluntariness of his guilty plea. A

conviction based on a plea that was not knowingly and voluntarily entered cannot

be used to enhance a sentence under the habitual-offender statutes. Stuck v.

Leapley, 473 N.W.2d 476, 477 (S.D. 1991) (citing State v. King, 383 N.W.2d 854, 856

(S.D. 1986); In re Application of Garritsen, 376 N.W.2d 575 (S.D. 1985)). Jensen is

not contending that he is innocent of the prior conviction but is instead seeking to




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deprive it of its normal force and effect for sentence-enhancement purposes. See

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

[¶8.]        Because Jensen challenges the validity of a prior conviction, this case

is a collateral attack of a predicate conviction. See id. We have previously

described the standard of review for collateral attacks:

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

State v. Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849 (emphasis omitted)

(quoting Moeller, 511 N.W.2d at 809).

[¶9.]        We have also set forth a system of shifting burdens in a collateral

attack of a predicate conviction. A “defendant has the initial burden of placing the

validity of the prior conviction[ ] in issue.” Stuck, 473 N.W.2d at 478 (relying on

Dunn v. Simmons, 877 F.2d 1275 (6th Cir. 1989); United States v. Dickens, 879 F.2d

410 (8th Cir. 1989)). When a defendant raises the issue by a motion to strike or

other appropriate means, the burden shifts to the State to prove “the existence of [a]

prior valid conviction[ ] by a preponderance of the evidence.” Id. at 478-79

(emphasis omitted) (citation omitted). The State meets this burden by presenting a

document that “appears on its face to be a valid judgment.” Moeller, 511 N.W.2d at

809. 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. at

809-10 (citing State v. King, 400 N.W.2d 878, 879 (S.D. 1987)). Because the State



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presented a document that appears to be a valid judgment of conviction, Jensen

bears the burden of demonstrating that his 2006 conviction is invalid.

Requirements of SDCL Chapter 23A-7

[¶10.]         Jensen first argues that his prior conviction is invalid for sentence-

enhancement purposes because the magistrate court did not follow the procedure

set forth in SDCL chapter 23A-7 to establish the voluntariness of his guilty plea.

SDCL 23A-7-5 describes the process to establish voluntariness:

               A court, except as provided in this section, shall not accept a
               plea of guilty or nolo contendere without first, by addressing the
               defendant personally in open court, determining that the plea is
               voluntary and not the result of force or threats or of promises
               apart from a plea agreement. It shall also inquire as to whether
               the defendant’s willingness to plead guilty or nolo contendere
               results from prior discussions between the prosecuting attorney
               and the defendant or his attorney. 3

SDCL 23A-7-15 further provides:

               A verbatim record of the proceedings at which a defendant
               enters a plea shall be made and, if there is a plea of guilty or


3.       SDCL 23A-7-5 contains an exception to the requirement that a court
         personally address a defendant to establish voluntariness:

               If a defendant is charged with a misdemeanor, his attorney may
               enter a plea of guilty, nolo contendere, or not guilty for him. The
               court shall inquire into whether the attorney has advised the
               defendant of the contents of § 23A-7-4. If the court is satisfied
               that the defendant has been advised, the plea may be accepted.
               If the plea is guilty or nolo contendere, sentence may be imposed
               at that time and is binding upon the defendant.

         The State argues that invalidating Jensen’s prior conviction because the
         magistrate court did not personally address him to establish the
         voluntariness of his guilty plea would render this exception meaningless. We
         disagree. When a defendant is not present, SDCL 23A-7-5 requires that the
         magistrate court establish voluntariness by questioning the defendant’s
         attorney.

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#25833

             nolo contendere, the record shall include, without limitation, the
             court’s advice to the defendant, the inquiry into the
             voluntariness of the plea including any plea agreement, and the
             inquiry into the factual basis of a guilty plea. A verbatim record
             of a proceeding at which a defendant enters a plea to a
             misdemeanor need not be taken unless requested by the
             prosecuting attorney or the defendant.

Jensen contends that his prior conviction is invalid because the magistrate court did

not personally address him on the record, as chapter 23A-7 requires, to establish

voluntariness.

[¶11.]       Our review of a collateral attack of a predicate conviction is limited to

jurisdictional errors. Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923

(quoting Owens v. Russell, 2007 S.D. 3, ¶ 6, 726 N.W.2d 610, 614-15). “In criminal

cases, a violation of [a] defendant’s constitutional rights constitutes a jurisdictional

error.” Id. (citation omitted). The United States Constitution does not mandate

that courts follow the procedure embodied in chapter 23A-7. State v. Miller, 2006

S.D. 54, ¶ 17, 717 N.W.2d 614, 620 (citing McCarthy v. United States, 394 U.S. 459,

465, 89 S. Ct. 1166, 1170, 22 L. Ed. 2d 418 (1969)). Rather, the procedure is a

safeguard “designed to assist the courts with making the constitutionally[-]required

determination that a defendant’s guilty plea is voluntary and knowing, and to

produce a complete record” of that determination. Id. (citation omitted). Because

failure to follow the 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. Brakeall v. Weber, 2003 S.D. 90, ¶ 11, 668 N.W.2d 79,

83 (citing United States v. Timmreck, 441 U.S. 780, 783-84, 99 S. Ct. 2085, 2087, 60

L. Ed. 2d 634 (1979)).


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[¶12.]       Jensen has not argued that his guilty plea was involuntary. He only

challenges the magistrate court’s reliance on the statement-of-rights form to

establish the voluntariness of his plea. Yet he indicated at his plea hearing that he

read, signed, and understood the statement-of-rights form, which contained

questions about voluntariness. On this record, Jensen did not demonstrate that the

magistrate court’s failure to personally canvass him to establish voluntariness made

any difference in his decision to plead guilty. See id. Because Jensen has not

demonstrated prejudice, his challenge to his prior driving under the influence

conviction for failure to follow the procedure set forth in chapter 23A-7 is not proper

for our consideration. See id.

Constitutional Due Process

[¶13.]       Jensen next argues that his prior conviction is invalid for sentence-

enhancement purposes because the magistrate court’s reliance on the statement-of-

rights form to establish the voluntariness of his guilty plea violated his due process

rights. In Boykin v. Alabama, the United States Supreme Court recognized that a

guilty plea is more than an admission of conduct; it is a conviction. 395 U.S. 238,

242, 89 S. Ct. 1709, 1711-12, 23 L. Ed. 2d 274 (1969) (citing Kercheval v. United

States, 274 U.S. 220, 223, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927)). A defendant

waives several important federal constitutional rights when he enters a guilty plea,

including the right to remain silent, the right to a jury trial, and the right to

confront witnesses. Id. at 243, 89 S. Ct. at 1712 (citations omitted). “We cannot

presume a waiver of these . . . important federal rights from a silent record.” Id.

Therefore, “[t]he record must affirmatively show [that] the plea was voluntary, that


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

defendant explicitly waived” those rights. Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d

at 925 (citation omitted).

[¶14.]       We have stressed that a judge has a duty to personally canvass a

defendant to establish the voluntariness of his guilty plea:

             The importance of canvassing the defendant when he enters a
             guilty plea is vital. For it is at this juncture that the defendant
             waives his rights and needs to understand the consequences of
             his plea. Shortcutting the procedure when accepting a guilty
             plea leaves a question about the defendant’s mental state and
             understanding. That is why courts have consistently
             emphasized the importance of the trial court’s dialogue with the
             defendant in order for the court to satisfy itself that the
             defendant understands what is at stake and the rights he is
             relinquishing.

Goodwin, 2004 S.D. 75, ¶ 10, 681 N.W.2d at 852. The record must in some manner

show that a defendant entered his plea intelligently and voluntarily. State v. Apple,

2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287 (citing State v. Beckley, 2007 S.D. 122, ¶

10, 742 N.W.2d 841, 844).

[¶15.]       We recently addressed whether a statement-of-rights form is an

adequate record of the voluntariness of a defendant’s guilty plea. In Monette, the

sentencing court did not inquire whether Monette’s no contest plea was coerced or

influenced by threats or promises. 2009 S.D. 77, 771 N.W.2d 920. Although

Monette signed a statement-of-rights form three days before the plea hearing, we

did not believe that form alone was an adequate record of voluntariness:

             We do not ignore that Monette signed a declaration of intent and
             an advisement of rights three days prior to the change of plea
             hearing. . . . However, the documents were neither presented to
             the sentencing court nor were the provisions relating to the
             voluntariness of the plea read on the record or inquired into by

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             the sentencing court. Furthermore, nothing in the record
             indicates the sentencing court read or relied upon these
             documents before accepting Monette’s plea. Thus, the
             documents could not provide a basis for the sentencing court to
             determine, at the time Monette entered his no contest plea, that
             he was doing so voluntarily and that he was not coerced.

Id. ¶ 15 n.2. Because the sentencing court made no inquiry to determine whether

Monette’s plea was coerced, we ultimately held that the record failed to establish

voluntariness. Id. ¶ 15.

[¶16.]       Yet this case is distinguishable from Monette. Nothing in the record

indicated that the sentencing court in Monette read or relied upon the statement-of-

rights form before accepting Monette’s guilty plea. Id. ¶ 15 n.2. But here, the

magistrate court read and reviewed the statement-of-rights form. And the court

specifically asked Jensen whether he read, signed, and understood the form, which

contained questions regarding voluntariness, before accepting his plea. Thus, we

believe the record in some manner shows that Jensen entered his plea voluntarily.

See Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d at 287 (citation omitted). While the

magistrate court’s practice in this case certainly does not embody a model

performance standard as it opens Jensen’s guilty plea to questions regarding

voluntariness, Jensen has not demonstrated that the failure to personally canvass

him to establish the voluntariness of his plea violated his due process rights.

[¶17.]       Affirmed.

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

Justices, and MEIERHENRY, Retired Justice, concur.




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