#27037-a-LSW

2015 S.D. 73

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****

TERRY LEE OLESON,                            Petitioner and Appellant,

      v.

DARIN YOUNG, Warden,
South Dakota State Penitentiary,             Respondent and Appellee.

                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****
                  THE HONORABLE PETER H. LIEBERMAN
                            Retired Judge
                                    ****

STEVEN R. BINGER
Sioux Falls, South Dakota                    Attorney for petitioner
                                             and appellant.


MARTY J. JACKLEY
Attorney General
Pierre, South Dakota

BETHANY L. ERICKSON
Assistant Attorney General
Sioux Falls, South Dakota                    Attorneys for respondent
                                             and appellee.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 12, 2015

                                             OPINION FILED 08/26/15
#27037

WILBUR, Justice

[¶1.]         Terry Oleson pleaded guilty to first-degree rape. Oleson petitioned for

habeas relief and argued that his plea was unconstitutional because the sentencing

court did not properly advise him of his right against self-incrimination or that a

guilty plea would waive that right. The habeas court found that Oleson was

properly advised of his constitutional rights. We affirm.

                                    Background

[¶2.]         Oleson was charged by indictment on November 29, 2007, with first-

degree rape, third-degree rape, and sexual contact with a child under 16 years of

age. SDCL 22-22-1(1), -1(3), -7. The State filed a part II habitual offender

information. Oleson was arraigned by the Honorable Bradley G. Zell and was

advised of his rights, including but not limited to, all three Boykin rights. During

arraignment, the court specifically advised Oleson of his right against self-

incrimination; but the court did not advise him that a plea of guilty would waive

that right.

[¶3.]         Oleson agreed to plead guilty to first-degree rape in exchange for the

dismissal of the remaining charges and the part II information. The court

canvassed Oleson at the change-of-plea hearing individually as to his statutory and

constitutional rights. Notably, and for purposes of this appeal, the court did not

canvass Oleson as to his right against self-incrimination; nor did the court advise

him that a guilty plea would waive this right:

              COURT: Do you understand by entering a guilty plea, you are
              giving up certain constitutional and statutory rights?
              OLESON: Yes, Your Honor.


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             COURT: You’re giving up the right to have a jury trial in
             relation to these charges?
             OLESON: Yes, Your Honor.
             COURT: You’re giving up your right to confront and cross-
             examine witnesses in relation to these charges?
             OLESON: Yes.
             COURT: You’re giving up your right to call witnesses on your
             own behalf?
             OLESON: Yes, Your Honor.
             COURT: You’re giving up your right to make the State prove
             beyond a reasonable doubt all of the elements of the offense
             charged against you?
             OLESON: Yeah.
             COURT: You’re waiving your presumption of innocence by
             pleading guilty. Do you understand that?
             OLESON: Yes.
             COURT: Have you had enough time to discuss this matter with
             your attorney[?]
             OLESON: Yes, Sir.
             COURT: Are you currently under the influence of any alcoholic
             beverage or controlled drug or substance?
             OLESON: No.

[¶4.]        The sentencing court sentenced Oleson to 70 years in the South

Dakota State Penitentiary. Oleson did not file a direct appeal of his conviction or

sentence. About five years later, on January 20, 2012, Oleson filed a petition for

habeas relief. Oleson alleged (1) that the sentencing court failed to advise him of

his right against self-incrimination, (2) the court failed to establish the

voluntariness of his plea, (3) the court failed to establish a factual basis for his plea,

and (4) that he received ineffective assistance of counsel. The habeas court issued

findings of fact, conclusions of law, and an incorporated memorandum opinion. The

habeas court concluded that the record reflected that Oleson was aware at the time


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of his guilty plea that his rights included the right against self-incrimination, and

that he understood that he was waiving all of his constitutional and statutory rights

including, but not limited to, all three Boykin rights. Consequently, the court

denied Oleson’s writ for habeas corpus relief. The habeas court granted Oleson’s

motion for certificate of probable cause, allowing him to appeal the issue of whether

his guilty plea was a valid waiver of his privilege against self-incrimination. Oleson

raises the following issue for our review:

              Whether the habeas court erred in finding that Oleson’s plea was
              constitutional.

                                Standard of Review

[¶5.]         Habeas corpus “is a collateral attack on a final judgment.” Monette v.

Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923 (quoting Owens v. Russell, 2008 S.D.

3, ¶ 6, 726 N.W.2d 610, 614-15). Accordingly, “habeas corpus can be used only to

review (1) whether the court has jurisdiction of the crime and the person of the

defendant; (2) whether the sentence was authorized by law; and (3) in certain cases

whether an incarcerated defendant has been deprived of basic constitutional

rights.” McDonough v. Weber, 2015 S.D. 1, ¶ 15, 859 N.W.2d 26, 34 (quoting Flute

v. Class, 1997 S.D. 10, ¶ 8, 559 N.W.2d 554, 556). 1 “The petitioner must ‘prove he is

entitled to relief by a preponderance of the evidence.’” Id. (quoting Vanden Hoek v.



1.      In two recent habeas corpus appeals to this Court, we considered the issue
        whether the record demonstrated that the defendant entered a
        constitutionally sufficient guilty plea. Rosen v. Weber, 2012 S.D. 15, 810
        N.W.2d 763 (holding that the record did not establish that defendant
        knowingly and voluntarily waived his Boykin rights); Monette, 2009 S.D. 77,
        771 N.W.2d 920 (holding that the record did not establish that defendant
        voluntarily waived his Boykin rights).

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Weber, 2006 S.D. 102, ¶ 8, 724 N.W.2d 858, 861-62). “‘Preponderance of the

evidence’ is defined as ‘the greater weight of evidence.’” Pieper v. Pieper, 2013 S.D.

98, ¶ 22, 841 N.W.2d 781, 787 (quoting L.S. v. C.T., 2009 S.D. 2, ¶ 23, 760 N.W.2d

145, 151). “We review habeas factual findings under the clearly erroneous standard

and legal conclusions under the de novo standard.” McDonough, 2015 S.D. 1, ¶ 15,

859 N.W.2d at 34 (quoting Meinders v. Weber, 2000 S.D. 2, ¶ 5, 604 N.W.2d 248,

252).

                                        Analysis

[¶6.]        When a criminal defendant enters a plea of guilty, the defendant

waives three fundamental constitutional rights: “the privilege against compulsory

self-incrimination,” “the right to a trial by jury,” and “the right to confront one’s

accusers.” Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d

274 (1969). The United States Supreme Court stated in Boykin that because a

criminal defendant waives these three fundamental rights by pleading guilty, “an

accused facing . . . imprisonment demands the utmost solicitude of which courts are

capable in canvassing the matter with the accused to make sure he has a full

understanding of what the plea connotes and of its consequence.” Id. at 243-44, 89

S. Ct. at 1712. The Supreme Court proclaimed that it “cannot presume a waiver of

these three important federal rights from a silent record.” Id., quoted in Rosen v.

Weber, 2012 S.D. 15, ¶ 8, 810 N.W.2d 763, 765. Similarly, we have stressed that “it

is critical not only that a defendant be advised of his rights relating to self-

incrimination, trial by jury, and confrontation, but also that the defendant




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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).

[¶7.]         We have acknowledged, however, that “Boykin ‘does not require the

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

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

S.D. 122, 128, 178 N.W.2d 198, 201 (1970)). “[S]pecific articulation of the Boykin

rights by the trial judge is not an indispensable requisite for the record to establish

a valid plea.” Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23 (quoting State v.

Moeller, 511 N.W.2d 803, 810 (S.D. 1994)). Rather, “if the record reflects that a

Boykin canvassing occurred, we require only that the ‘record in some manner shows

the defendant entered his plea understandingly and voluntarily.’” State v. Bilben,

2014 S.D. 24, ¶ 11, 846 N.W.2d 336, 339 (quoting Quist v. Leapley, 486 N.W.2d 265,

267 (S.D. 1992)). We applied a “two-step approach” 2 in Rosen and Monette to

determine whether the record reflects that the defendant relinquished his rights.

See id. ¶ 19, 846 N.W.2d at 340. We said in Rosen, “[T]he totality of the

circumstances analysis is inapplicable when the record reflects that no canvassing



2.      The majority opinion in Bilben recognized that the dissent “present[ed] a
        compelling argument that our case law, addressing alleged Boykin violations,
        has incorrectly strayed from a totality-of-the-circumstances analysis toward
        the two-step approach applied in Rosen and Monette.” 2014 S.D. 24, ¶ 19, 846
        N.W.2d at 340. We stated, however, that “we must wait for another day to
        address this matter” because “the State has not asked us to reconsider our
        case law declining to apply totality analysis when no waiver advisement has
        been given.” Id. Similarly, the State in this case does not request that we
        reconsider our case law. We therefore adhere to the precedent in Rosen and
        Monette, “awaiting a proper case in which we can also consider the
        arguments against the positions argued by [Chief Justice Gilbertson].” See
        id.

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regarding a Boykin waiver ever took place.” 2012 S.D. 15, ¶ 11, 810 N.W.2d at 766

(emphasis added). See also Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926-27. “In

the complete absence of a Boykin canvassing, a ‘critical step’ is missing and the

reviewing court does ‘not consider the additional factors under the totality of the

circumstances analysis.’” Bilben, 2014 S.D. 24, ¶ 14, 846 N.W.2d at 339 (quoting

Rosen, 2012 S.D. 79, ¶ 11, 810 N.W.2d at 766).

[¶8.]        There is no dispute in this case that the sentencing court did not

advise Oleson during the change-of-plea hearing of his right against self-

incrimination or that by entering a guilty plea he would waive that right. The first

question, then, under the two-step approach in Monette and Rosen is whether the

absence of this advisement constitutes a “complete absence of Boykin canvassing”

such that a “critical step” is missing. See id. Oleson argues that this case is

analogous to our recent cases where we reversed and remanded for resentencing

because we held that this first step was missing. See Bilben, 2014 S.D. 24, 846

N.W.2d 336; Rosen, 2012 S.D. 15, 810 N.W.2d 763; Monette, 2009 S.D. 77, 771

N.W.2d 920. However, our decisions in Monette, Rosen, and Bilben are factually

distinguishable from the present case.

[¶9.]        The issue in Monette was whether the plea entered was voluntary in

the absence of “any inquiry into the voluntariness of a no contest plea, and thus no

record of an effective waiver of federal constitutional rights[.]” Monette, 2009 S.D.

77, ¶ 14, 771 N.W.2d at 926 (emphasis added). “No inquiry was made by the

sentencing court to determine if the plea was coerced or influenced by threats or

promises.” Id. ¶ 15. In addition, the “court failed to inquire if Monette waived his


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constitutional rights.” Id. ¶ 9, 771 N.W.2d at 924. The absence of that “critical

step” led us to conclude that no further inquiry into the totality of the circumstances

was necessary to determine that the plea was unconstitutional. Id. ¶ 16, 771

N.W.2d at 927.

[¶10.]       In Rosen, we again considered whether the defendant’s plea was

entered voluntarily and knowingly. The sentencing court did not advise Rosen that

by pleading guilty “he would waive his right against self-incrimination, his right of

confrontation, and his right to a trial by jury.” 2012 S.D. 15, ¶ 14, 810 N.W.2d at

767. Nor did the court inquire of Rosen whether he “understood that he would

waive those rights by pleading guilty.” Id. Instead, the court merely advised the

defendant that by pleading guilty he would waive his right to “a trial.” Id. ¶ 3, 810

N.W.2d at 764. We concluded that this was not sufficient. Id. ¶ 14, 810 N.W.2d at

767. The record did not reflect a knowing and voluntary waiver of the defendant’s

Boykin rights, and, therefore, we did not analyze the totality of the circumstances.

Id.

[¶11.]       In Bilben, the defendant collaterally attacked a prior conviction for

driving under the influence because the sentencing court did not canvass Bilben

regarding his waiver of his three Boykin rights. 2014 S.D. 24, ¶ 13, 846 N.W.2d at

339. Further, the record indicated that he did not receive any waiver advisement.

Id. We held, “Because there was a complete absence of any Boykin waiver

advisement . . ., we do not apply the totality-of-the-circumstances analysis.” Id.

¶ 14 (emphasis added). Consequently, we reversed and remanded for resentencing.




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[¶12.]         The common thread in Monette, Rosen, and Bilben is the “complete

absence” of any Boykin waiver advisement as to each defendant on the right against

self-incrimination, the right to confront witnesses, and the right to a jury trial. 3

Therefore, an analysis of the totality of the circumstances would be a nullity. “The

habeas court had no basis on a silent record from the sentencing court to determine

by a preponderance of the evidence that the plea was [constitutionally sufficient].”

Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926. It follows that complete Boykin

canvassing is a sufficient, but not a necessary, reason to examine the totality of the

circumstances.

[¶13.]         Here, while the sentencing court did not explain the right of self-

incrimination to Oleson at the change-of-plea hearing, the court had previously

explained this right to Oleson at arraignment.

               COURT: You have the right against self-incrimination. What
               that means is, you have the right to plead not guilty, have the
               right to have the State prove beyond a reasonable doubt each
               and every element of the offense charged against you. You do
               not have to testify. You do not have to put on any evidence


3.       The habeas court and the State further relied on Merrill v. State, 87 S.D. 285,
         206 N.W.2d 828 (1973), for the proposition that the failure to advise Oleson of
         his right against self-incrimination did not render the plea invalid. In
         Merrill, “the sentencing court failed to specifically advise petitioner of his
         constitutional right against self-incrimination.” Id. at 286, 206 N.W.2d at
         829. We held “that the court’s failure to do so [did] not vitiate the plea where
         the post-conviction proceedings clearly show that the petitioner was aware of
         his constitutional rights and that he understood those rights at the time he
         entered his guilty plea.” Id. at 291, 206 N.W.2d at 831. While the underlying
         premise in Merrill is similar to the present case—i.e, the mere failure to
         advise the criminal defendant on one of three Boykin rights does not, by
         itself, vitiate a guilty plea—we acknowledge that Merrill was decided under
         the terms of the now-repealed Post-Conviction Relief Act, see SDCL chapter
         23-52. Id. at 286, 206 N.W.2d at 829. Therefore, Merrill is not applicable to
         this case.

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#27037

             whatsoever, and if you choose not to testify or put on any
             evidence, neither the State nor that court can hold that against
             you.

We have recognized “that a deficiency in explaining the defendant’s rights at the

time the defendant enters a guilty plea may be overcome with proof that the same

judge had adequately explained the rights at an earlier arraignment.” State v.

Apple, 2008 S.D. 120, ¶ 16, 759 N.W.2d 283, 289. “The closer the arraignment

explanation is to the guilty plea the more likely the defendant remembers the

recitation of rights.” State v. Goodwin, 2004 S.D. 75, ¶ 17, 681 N.W.2d 847, 854.

See also Garcia v. State, 2014 S.D. 5, ¶ 16, 843 N.W.2d 345, 351 (21-day interval);

Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d at 926 (7-day interval); Stacey v. State, 349

N.W.2d 439, 441-42 (S.D. 1984) (30-day interval); Clark v. State, 294 N.W.2d 916,

919-20 (S.D. 1980) (26-day interval). The same judge in this case presided over

arraignment and the change-of-plea hearing and adequately explained the right

against self-incrimination at arraignment. Although 70 days elapsed between the

two proceedings, the simple fact remains that Oleson was advised at arraignment

regarding his right against self-incrimination. The question that arises, then, is

whether the fact that Oleson was not advised that a guilty plea would waive this

right deprived him of his constitutional right to due process such that relief is

necessary.

[¶14.]       The record reflects that the sentencing court specifically advised

Oleson at the change-of-plea-hearing that a guilty plea would waive his other two

Boykin rights. That is, the sentencing court advised Oleson of his right of

confrontation and his right to a trial by jury, and that a guilty plea would waive


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these two rights. While the sentencing court at the change-of-plea hearing did not

advise Oleson of his right against self-incrimination or that a guilty plea would

waive that right at the change-of-plea hearing, “[s]pecific articulation of the Boykin

rights by the trial judge is not an indispensable requisite for the record to establish

a valid plea.” See Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23 (quoting Moeller,

511 N.W.2d at 810). “Boykin ‘does not require the recitation of a formula by rote or

the spelling out of every detail by the trial court[.]’” Monette, 2009 S.D. 77, ¶ 11,

771 N.W.2d at 925 (quoting Nachtigall, 85 S.D. at 128, 178 N.W.2d at 201). See also

Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974) (“Specific articulation of the

Boykin rights is not the sine qua non of a valid guilty plea. . . . Boykin does not

require specific articulation of the above mentioned three rights in a state

proceeding.”); McChesney v. Henderson, 482 F.2d 1101, 1106 (5th Cir. 1973) (“[N]o

rule of criminal procedure was mandated by Boykin, and there is no express

requirement that specific articulation of the three constitutional rights above

mentioned be given to the accused at the time of the acceptance of a plea of

guilty . . . .”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972) (footnote omitted)

(“We agree that for the plea to stand [a defendant] must have been ‘fully aware of

the direct consequences’ of his plea, but we reject the contention that under . . . the

Constitution . . . [a defendant is] entitled to specific monition as to the several

constitutional rights waived by entry of the plea.”). Therefore, the mere fact that

the sentencing court did not explain the right against self-incrimination to Oleson

at the change-of-plea hearing—a right that was explained in extensive detail at

arraignment—and that a guilty plea would waive this right does not render the


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record silent, see Rosen, 2012 S.D. 15, ¶ 8, 810 N.W.2d at 765; nor can it be

described as a complete absence of canvassing, see Bilben, 2014 S.D. 24, ¶ 13, 846

N.W.2d at 339.

[¶15.]       We therefore examine the totality of the circumstances to determine

whether Oleson entered a voluntary and knowing guilty plea. To determine

whether a guilty plea is voluntary and knowing “as required to satisfy due process

requirements, we must look to the ‘totality of the circumstances.’” Apple, 2008 S.D.

120, ¶ 14, 759 N.W.2d at 288 (quoting Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d at

852). “In addition to the procedure and in-court colloquy, we look at other factors

including ‘the defendant’s age; his prior criminal record; whether he is represented

by counsel; the existence of a plea agreement; and the time between advisement of

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

925 (quoting Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288). Here, Oleson argues

simply that he did not knowingly enter his plea because the sentencing court did

not advise him that pleading guilty would waive his right against self-

incrimination. In contrast, the following facts weigh heavily in favor of Oleson

entering his plea knowingly and voluntarily: Oleson was 42 years old at the time he

pleaded guilty; he was represented by counsel; he pleaded guilty according to the

terms of a plea agreement; the circuit court advised Oleson of his right against self-

incrimination at arraignment only two months prior; and, most significantly, Oleson

entered guilty pleas in no fewer than six previous criminal prosecutions.

[¶16.]       Other circumstances also support the conclusion that Oleson

knowingly entered his plea. At Oleson’s change-of-plea hearing, the sentencing


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court said, “Do you understand by entering a guilty plea, you are giving up certain

constitutional and statutory rights?” The sentencing court then proceeded to ask

Oleson if he understood that pleading guilty would waive his rights to a jury trial

and to confront adverse witnesses. It is difficult to conclude that an adult

defendant—one represented by counsel and well-versed in the consequences of

pleading guilty—did not understand that pleading guilty and pleading not guilty

were mutually exclusive. The sentencing court’s reference to two of the three

Boykin rights that had been previously explained to Oelson at Oleson’s arraignment

lends further support to the conclusion that the sentencing court’s reference to

“certain constitutional and statutory rights” informed Oleson that pleading guilty

would also waive his right against self-incrimination. Consequently, the habeas

court did not err when it concluded that Oleson failed to establish by a

preponderance of the evidence that he did not knowingly and voluntarily enter his

plea.

[¶17.]       Affirmed.

[¶18.]       ZINTER, Justice, and KONENKAMP, Retired Justice, concur.

[¶19.]       GILBERTSON, Chief Justice, concurs in result.

[¶20.]       SEVERSON, Justice, concurs with a writing.

[¶21.]       KERN, Justice, not having been a member of the Court at the time this

action was assigned to the Court, did not participate.




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GILBERTSON, Chief Justice (concurring in result).

[¶22.]       As it did in Bilben, 2014 S.D. 24, 846 N.W.2d 336, the Court today

declines to revisit the propriety of the two-step approach that evolved out of

Monette, 2009 S.D. 77, 771 N.W.2d 920, and that the Court adopted in Rosen, 2012

S.D. 15, 810 N.W.2d 763. See supra ¶ 7 n.2. Although I concur in the Court’s

decision to deny Oleson habeas relief, I write separately because I adhere to my

dissenting opinions in Rosen and Bilben. The two-step approach to reviewing the

constitutionality of a defendant’s guilty plea employed in those cases and by the

Court today equates the absence of a Boykin canvassing with the absence of

evidence establishing the voluntariness of a plea. Furthermore, although the Court

reaches the correct result today, it does so by applying this two-step approach in

contravention of the long-standing burden of proof imposed on habeas petitioners.

                                       Analysis

[¶23.]       1.     The two-step approach equates the absence of a Boykin
                    canvassing with the absence of evidence establishing
                    voluntariness.

[¶24.]       Quoting Rosen, 2012 S.D. 15, ¶ 11, 810 N.W.2d at 766, the Court today

says, “The totality of the circumstances analysis is inapplicable when the record

reflects that no canvassing regarding a Boykin waiver ever took place.” See supra

¶ 7. Although I acknowledge that we have been consistently divided on the issue

since Rosen, I continue to reject the Court’s “recent direction taken . . . away from a

totality-of-the-circumstances review of guilty pleas and toward a two-step

approach[.]” Bilben, 2014 S.D. 24, ¶ 35, 846 N.W.2d at 345 (Gilbertson, C.J.,

dissenting). This approach is inconsistent with Boykin itself, as well as our own

cases prior to Monette.
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[¶25.]       In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274

(1969), the United States Supreme Court identified “[s]everal federal constitutional

rights . . . involved in a waiver that takes place when a plea of guilty is entered in a

state criminal trial.” Id. at 243, 89 S. Ct. at 1712. These include the right against

self-incrimination, the right to a jury trial, and the right of confrontation. Id. A

court may not “presume a waiver of these three important . . . rights from a silent

record.” Id. However, “Boykin does not require specific articulation of the above

mentioned three rights in a state proceeding.” Wilkins, 505 F.2d at 763; see also

Wade, 468 F.2d at 1060 (“[W]e reject the contention that under . . . the

Constitution . . . [a defendant is] entitled to specific monition as to the several

constitutional rights waived by entry of the plea.”). In other words, “no rule of

criminal procedure was mandated by Boykin, and there is no express requirement

that specific articulation of the three constitutional rights above mentioned be given

to the accused at the time of the acceptance of a plea of guilty[.]” McChesney, 482

F.2d at 1106. Instead, a circuit court’s acceptance of a defendant’s guilty plea

should be upheld if the “record affirmatively show[s] that the plea was knowing and

voluntary.” See Parke v. Raley, 506 U.S. 20, 29, 113 S. Ct. 517, 523, 121 L. Ed. 2d

391 (1992) (emphasis added). Such a determination is made “by considering all of

the relevant circumstances.” Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984)

(per curiam) (citing Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469,

25 L. Ed. 2d 747 (1970)).

[¶26.]       Our own case law largely mirrors the federal analysis. Although the

complete absence in the record of “any inquiry into the voluntariness [or


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knowingness] of a [guilty] plea . . . renders the plea unconstitutional[,]” Monette,

2009 S.D. 77, ¶ 14, 771 N.W.2d at 926, “specific articulation of the Boykin rights by

the trial judge is not an indispensable requisite for the record to establish a valid

plea[,]” State v. Beckley, 2007 S.D. 122, ¶ 10, 742 N.W.2d 841, 844 (quoting Moeller,

511 N.W.2d at 810). “The Boykin advisements are not the only mechanism by

which a plea taking court can insure the intelligent entry of a guilty plea.” Quist,

486 N.W.2d at 267. “It is sufficient when the record in some manner shows the

defendant entered his plea understandingly and voluntarily[,]” Beckley, 2007 S.D.

122, ¶ 10, 742 N.W.2d at 844 (quoting Moeller, 511 N.W.2d at 810); i.e., when the

record demonstrates “that the accused was aware, or made aware, of his right to

confrontation, to a jury trial, and against self-incrimination, as well as the nature of

the charge and the consequences of his plea[,]” Nachtigall, 85 S.D. at 128, 178

N.W.2d at 201 (emphasis added) (quoting In re Tahl, 460 P.2d 449, 456 (Cal. 1970)

(en banc)). Thus, for decades, “[i]n determining whether a plea [was] voluntary, we

consider[ed] the ‘totality of the circumstances.’” Monette, 2009 S.D. 77, ¶ 12, 771

N.W.2d at 925 (quoting Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288).

[¶27.]       In 2009, this Court diverged from Beckley, Moeller, Quist, Nachtigall,

and other similar cases in our Rosen decision. In Rosen, we reviewed the

constitutionality of a guilty plea entered by a defendant who “was not advised or

asked whether he understood that by pleading guilty he would waive his right to

trial by a jury, his right to compulsory process, and his right against self-

incrimination.” 2012 S.D. 15, ¶ 3, 810 N.W.2d at 764. This Court determined that

“by accepting the . . . plea without a Boykin canvassing, ‘the sentencing court failed


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to make critical inquiries and determinations when the inquiries were most

significant—when the defendant changed his not guilty plea to a plea of guilty.’” Id.

¶ 9, 810 N.W.2d at 766 (quoting Monette, 2009 S.D. 77, ¶ 13, 771 N.W.2d at 925-26).

Because the circuit court had not fully canvassed the defendant regarding his

Boykin rights, this Court declined to determine whether the defendant’s plea was

actually entered knowingly and voluntarily under the totality-of-the-circumstances.

Id. ¶ 11, 810 N.W.2d at 766 (quoting Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at

926-27).

[¶28.]       At the heart of our ongoing disagreement is a misperception of our

historical approach to reviewing the constitutionality of a plea: that a totality-of-

the-circumstances analysis is not appropriate when the record is silent regarding

the voluntariness of a plea. The better view is that such analysis is appropriate in

every case, whether silent regarding a Boykin canvassing or voluntariness in

general. On one hand, consider a totality-of-the-circumstances analysis in the

absence of relevant circumstances—i.e., the totality of no circumstances. On the

other hand, consider the refusal to conduct such analysis because of a record silent

on voluntariness. When there are no circumstances establishing voluntariness to

consider, the result in either case is the same: the impossibility of concluding that

the plea was entered knowingly and voluntarily. While the result is the same,

however, this artificial distinction and its resulting conditional application of

totality analysis opened the door to equating the absence of evidence establishing

voluntariness with the absence of canvassing on Boykin rights. Although the

presence or absence of a Boykin canvassing is certainly relevant to the ultimate


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determination of voluntariness—and in some cases, may be very persuasive—such

evidence is merely one circumstance among the totality that might establish that a

defendant knowingly and voluntarily pleaded guilty.

[¶29.]       In Bilben, this Court conceded that “[t]he dissent . . . presents a

compelling argument that our case law, addressing alleged Boykin violations, has

incorrectly strayed from a totality-of-the-circumstances analysis toward the two-

step approach applied in Rosen and Monette.” 2014 S.D. 24, ¶ 19, 846 N.W.2d at

340. Nevertheless, the Court declined to abandon the two-step approach in order to

“await[] a proper case in which [the Court] can also consider the arguments against

the positions argued by the dissent.” Id. The Court takes the same position today.

See supra ¶ 7 n.2. However, this case is distinguishable from Bilben: while Bilben

necessarily did not have the opportunity to respond to arguments raised in that

dissent, Oleson has had such an opportunity. Additionally, the State raised the

issue in this case. Quoting Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23, the

State argues in its brief that “[s]pecific articulation of the Boykin rights by [the]

trial judge is not an indispensable requisite for the record to establish a valid plea.”

Again quoting Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23, the State

continues, “Instead, ‘the record in some manner must show the defendant entered

his plea understandingly and voluntarily.’” Finally, citing Monette, 2009 S.D. 77,

¶ 12, 771 N.W.2d at 925, the State argues that the totality of the circumstances

should “determine whether Oleson understood that he was waiving all three Boykin

rights by entering a plea of guilty[.]” This analysis stands in stark contrast to the

two-step approach articulated by this Court in Rosen, where it said, “[W]hen there


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is no record showing that the sentencing court conducted a Boykin canvassing, the

habeas court has no basis upon which it may find that the sentencing court obtained

a voluntary and valid waiver of the defendant’s Boykin rights.” Rosen, 2012 S.D.

15, ¶ 10, 810 N.W.2d at 766 (emphasis added). Thus, even if it doesn’t explicitly

ask, “Will you reconsider Rosen,” the State clearly invites us to revisit the issue by

attacking the substance of the two-step approach.

[¶30.]        Furthermore, there is no indication in Monette or Rosen that the

defendants in those cases explicitly asked the Court to reconsider 40 years of prior

cases—such as Beckley, Moeller, Quist, Nachtigall, and others dating back to

Boykin—that consistently affirmed our use of the totality-of-the-circumstances

analysis in cases like this. Notably, we never overruled these prior cases.

Therefore, an abandonment of the two-step approach would be, at worst, an

unrequested correction to an unrequested deviation. I see little point in continuing

to wait for the State to formally request that we resolve a conflict in case law of our

own making.

[¶31.]        Despite my disagreement with the Court’s application of the two-step

approach in this case, I agree with the Court’s conclusion that the totality of the

circumstances makes clear that Oleson understood pleading guilty would waive his

right against self-incrimination.

[¶32.]        2.    The Court applies a lower burden of proof than that normally
                    required of a habeas petitioner.

[¶33.]        We have consistently stressed that “we limit our review of a habeas

appeal ‘because it is a collateral attack on a final judgment.’” McDonough, 2015

S.D. 1, ¶ 15, 859 N.W.2d at 33-34 (quoting Vanden Hoek, 2006 S.D. 102, ¶ 8, 724

                                          -18-
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N.W.2d at 861). Habeas corpus “deals only with such radical defects as render the

proceeding or judgment absolutely void.” Acker v. Adamson, 67 S.D. 341, 347, 293

N.W. 83, 85 (1940) (emphasis added). As such, “habeas corpus can be used only to

review (1) whether the court has jurisdiction of the crime and the person of the

defendant; (2) whether the sentence was authorized by law; and (3) in certain cases

whether an incarcerated defendant has been deprived of basic constitutional

rights.” McDonough, 2015 S.D. 1, ¶ 15, 859 N.W.2d at 34 (emphasis added)

(quoting Flute, 1997 S.D. 10, ¶ 8, 559 N.W.2d at 556). Mere “[e]rrors and

irregularities in the proceedings of a court having jurisdiction of the person, subject

matter and power to decide questions of law, are not reviewable though they may

have been grounds for reversal on direct appeal.” State ex rel. Ruffing v. Jameson,

80 S.D. 362, 366, 123 N.W.2d 654, 656 (1963).

[¶34.]         Even if habeas review is appropriate in this case, 4 the Court’s

application of the two-step approach contravenes the burden of proof established for




4.       As the Court points out, we have previously entertained habeas appeals
         involving challenges to the constitutionality of guilty pleas. However,
         entertaining a habeas appeal is not synonymous with holding that the
         content of the appeal is the proper subject of a habeas petition. Moreover,
         whether habeas corpus is appropriate is highly dependent on the facts of each
         individual case. “[W]e look at the full course of the proceeding which
         culminated in the challenged judgment of conviction to ascertain whether,
         when so viewed as a whole, it can reasonably be said that it so offends against
         the settled notions of fairness and justice . . . as to fail to amount to due
         process of law.” State ex rel. Baker v. Jameson, 72 S.D. 638, 644, 38 N.W.2d
         441, 444 (1949) (emphasis added). In Rosen and Monette, the State only
         answered the petitioners’ arguments on the merits; the State did not further
         assert that habeas relief was inappropriate because the error—if there was
         any—did not rise to the level of a jurisdictional defect. Likewise, the State
         has not raised this argument in the present case.

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habeas actions. “[T]he judgment of a court carries with it a presumption of

regularity.” Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 1025, 82 L. Ed.

1461 (1938). As the Court notes, it is Oleson who is required to “prove he is entitled

to relief by a preponderance of the evidence.” McDonough, 2015 S.D. 1, ¶ 15, 859

N.W.2d at 34 (emphasis added) (quoting Vanden Hoek, 2006 S.D. 102, ¶ 8, 724

N.W.2d at 861-62); see also Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926 (“The

petitioner in a habeas action carries the burden of proving an involuntary plea and

that his constitutional rights were violated.” (emphasis added)). “Where a

defendant . . . acquiesces in a trial resulting in his conviction and later seeks release

by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to

establish that he did not competently and intelligently waive his constitutional

right . . . .” Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1025. Yet, under the burden of

proof applied by the Court today, “the defendant can . . . prevail by alleging that the

judge failed to utter specific advisements, regardless of the surrounding

circumstances and without claiming actual coercion or misunderstanding or

ignorance of the rights being waived.” Bilben, 2014 S.D. 24, ¶ 37, 846 N.W.2d at

346 (Gilbertson, C.J., dissenting).

[¶35.]       Although the lack of a Boykin canvassing can certainly evidence an

unknowing plea, such evidence is not dispositive unless it constitutes “the greater of

weight of evidence.” L.S. v. C.T., 2009 S.D. 2, ¶ 23, 760 N.W.2d 145, 151 (quoting

Gross v. CT Mut. Life Ins. Co., 361 N.W.2d 259, 269 (S.D. 1985)) (defining the

preponderance standard). It is not sufficient that a circuit court fails to advise a

defendant that pleading guilty will waive his rights against self-incrimination, to a


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jury trial, and to confrontation; in an appropriate habeas petition, a petitioner must

instead prove by a preponderance that his plea, in actuality, was not knowing.

Thus, while the Court reaches a totality-of-the-circumstances analysis in the

present case, it does so only because it concludes there was not “a complete absence

of canvassing.” See supra ¶ 14. The same analysis—applied in a subsequent

habeas petition—would grant relief to a petitioner able to prove the absence of a

complete Boykin canvassing, even if the greater weight of evidence proves he

knowingly entered his plea.

[¶36.]       Even if I generally agreed with the two-step approach, the Court’s

application of it in this case is inapposite because this is a habeas action and not a

direct appeal. The Court’s analysis should be as simple as this: Oleson’s simple

assertion that the circuit court failed to inform him of the individual effect of

waiving his right against self-incrimination does not establish by the greater weight

of evidence that he did not knowingly enter his plea. Therefore, granting habeas

relief is not appropriate.

                                     Conclusion

[¶37.]       Our pre-Rosen decisions firmly establish that a Boykin canvassing is

not a necessary condition of conducting a totality-of-the-circumstances analysis as

the Court maintains. Beckley, 2007 S.D. 122, ¶ 10, 742 N.W.2d at 844 (quoting

Moeller, 511 N.W.2d at 810); Quist, 486 N.W.2d at 267. However, I agree that the

greater weight of evidence tends to show that Oleson was fully aware of the

consequences of pleading guilty and the rights he would waive in doing so,

regardless of any asserted deficiency in the circuit court’s script. Consequently,


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Oleson has not met his burden as a habeas petitioner of proving by a preponderance

of the evidence that he did not knowingly waive his right against self-incrimination.

Therefore, I concur in result.


SEVERSON, Justice (concurring).

[¶38.]       In this Writ of Habeas Corpus proceeding Oleson contends that he was

not specifically advised of his right against self-incrimination at his plea hearing on

February 13, 2008, and from this he argues he did not waive his rights, which

constituted a constitutional rights violation sufficient to deny the court jurisdiction

and warrant the habeas writ.

[¶39.]       This Court has on many occasions addressed the necessity for the

record to show that a guilty plea has been made voluntarily and knowingly as

addressed by Boykin, 395 U.S. 238, 89 S. Ct. 1709. Our decisions include the often

cited cases of Apple, Goodwin, Logan, and Nachtigall. Apple, 2008 S.D. 120, 759

N.W.2d 283; Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d at 852; Logan v. Solem, 406

N.W.2d 714 (S.D. 1987); Nachtigall, 85 S.D. 122, 178 N.W.2d 198. More recently

the cases of State v. Woodard and Smith have addressed the issue. 2014 S.D. 39,

851 N.W.2d 188; 2013 S.D. 79, 840 N.W.2d 117. I do not agree that in Monette we

adopted a two-step approach in determining whether a plea is knowing and

voluntary. See Bilben, 2014 S.D. 24, ¶ 19, 846 N.W.2d at 340; Rosen, 2012 S.D. 15,

¶ 9, 810 N.W.2d at 766. Monette did not establish a two part analysis, nor did

Boykin.

[¶40.]       Monette does not require specific articulation of the three rights noted

in Boykin as “there is no constitutional requirement that the trial court employ a

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particular litany to validate a guilty plea.” Stacy v. Solem, 801 F.2d 1048, 1050 (8th

Cir. 1986). What we must examine is whether the record as a whole shows a

voluntary and intelligent plea with knowledge of the consequences and waiver of

federal constitutional rights. The United States Court of Appeals for the First

Circuit aptly described the duties of trial courts and appellate courts when

accepting and reviewing pleas when it stated:

             With scant recognition of its dual audience, Boykin
             simultaneously speaks to judges who accept guilty pleas and
             judges who later review challenges to the constitutional
             adequacy of those pleas, either on direct appeal or in collateral
             proceedings. Boykin reminds trial judges that a defendant’s
             plea of guilty “must be based on a ‘reliable determination on the
             voluntariness issue which satisfies the constitutional rights of
             the defendant.’” Boykin reminds judges reviewing challenges to
             the constitutional adequacy of a plea proceeding that due
             process requires that the record of the proceeding contain
             sufficient evidence to support the trial court’s decision to accept
             the plea. [Boykin, 395 U.S.]at 243, 89 S. Ct. [at 1712] (“We
             cannot presume a waiver . . . from a silent record.”); see Brady v.
             United States, 397 U.S. 742, 747 n.4, 90 S. Ct. 1463, 25 L. Ed. 2d
             747 (1970) (“The new element added in Boykin was the
             requirement that the record must affirmatively disclose that a
             defendant who pleaded guilty entered his plea understandingly
             and voluntarily.”).

United States v. Ward, 518 F.3d 75, 81 (1st Cir. 2008) (citations omitted) (footnotes

omitted).

[¶41.]       The failure to advise on waiver of a Boykin right is not necessarily a

silent record establishing a constitutionally infirm plea. We have explained:

“Specific articulation of the Boykin rights by the trial judge is not an indispensable

requisite for the record to establish a valid plea.” Moeller, 511 N.W.2d at 810.

“‘[T]he record in some manner must show the defendant entered his plea

understandingly and voluntarily.’ . . . ‘[T]he trial court must be able to determine

                                         -23-
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from its own record that the accused has made a free and intelligent waiver of his

constitutional rights before a guilty plea is accepted.’” Monette, 2009 S.D. 77, ¶ 11,

771 N.W.2d at 925 (citations omitted). Our totality-of-the-circumstances approach

considered, “[i]n addition to the procedure and in-court colloquy, . . . other factors

including ‘the defendant’s age; his prior criminal record; whether he is represented

by counsel; the existence of a plea agreement; and the time between advisement of

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

925 (quoting Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288); see also Goodwin, 2004

S.D. 75, ¶ 11, 681 N.W.2d at 852.

[¶42.]       In this habeas action, Oleson does not contend that he was coerced in

any manner into pleading guilty. Instead, he contends that failure by the court to

specifically state that he would be waiving his right to self-incrimination by

pleading guilty is an error which in itself renders his plea unconstitutional. The

circuit court, when a plea was entered, asked if Oleson understood that, “by

entering a guilty plea, you are giving up certain constitutional and statutory

rights?”. Oleson responded “Yes.” The court specifically inquired into whether

Oleson was giving up the right to: a jury trial, confronting and cross-examining

witnesses, calling witnesses, making the State prove all elements of the offense

beyond a reasonable doubt, and his presumption of innocence. At arraignment he

was given a full advisement of rights. This is not the completely silent record which

we encountered in Monette, where there was no inquiry as to the voluntariness of

the plea or waiver of rights. Monette, 2009 S.D. 77, ¶ 15, 771 N.W.2d at 926.




                                          -24-
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[¶43.]         Further, in this habeas action Oleson carries the burden of proving

that his plea was not knowing, intelligent, and voluntary. Due to the circuit court’s

failure to specifically advise him that he was waiving his right regarding self-

incrimination, Oleson contends that the plea was not voluntary and knowing.

However, at the habeas trial 5 Oleson admitted he knew he would be required to

talk about the facts in the case with the court and answer questions from the person

writing the presentence investigation. 6 Therefore, I concur.




5.       Regarding a habeas action, the ninth circuit has held: “We hold,
         alternatively, that an evidentiary hearing in the district court is proper, if
         necessary, to determine if the plea of guilty by a State defendant is
         voluntarily and intelligently made, and that such a hearing does not violate
         the ‘spirit’ of Boykin.” Wilkins v. Erickson, 505 F.2d 761, 765 (9th Cir. 1974).

6.       The following colloquy occurred:

               The State: “So you knew that by pleading guilty you’d have to come
               in and talk about the facts of this case with the Judge?”
               Oleson: “Yes.”
               State: “All right. You knew that you’d have to admit to certain facts
               of this case in court?”
               Oleson: “Yeah.”
               State: “You knew that if you plead guilty you would be asked
               questions about what happened by the Court?”
               Oleson: “Yes.”
               State: “And you’d also be asked questions about what happened by
               the person writing that presentence report?”
               Oleson: “Yes.”

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