#26905-rev & rem-SLZ

2014 S.D. 89

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

BRANDON M. WOLF,                          Defendant and Appellee.

                                 ****

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

                                 ****

                  THE HONORABLE THOMAS L. TRIMBLE
                              Judge

                                 ****

MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
ELLIE J. BAILEY
Assistant Attorneys General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellant.


ROBBIE J. ROHL of
DeMersseman, Jensen,
 Tellinghuisen & Huffman, LLP
Rapid City, South Dakota                  Attorneys for defendant
                                          and appellee.

                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 17, 2014

                                          OPINION FILED 12/17/14
#26905

ZINTER, Justice

[¶1.]         Brandon Wolf was arrested for driving under the influence (DUI) in

2013. Wolf had been previously convicted of DUI in 2005 and 2012. Wolf argued

that the 2005 conviction was constitutionally invalid for sentence-enhancement

purposes because he did not knowingly and voluntarily enter his guilty plea. The

circuit court agreed, and we granted the State’s petition for an intermediate appeal.

We reverse.

[¶2.]         Wolf was arrested for DUI on March 31, 2013, in Pennington County.

The State filed a part II information charging Wolf with third offense DUI based on

a 2005 DUI conviction in Cass County, North Dakota and a 2012 DUI conviction in

Pennington County.

[¶3.]         Wolf filed a King challenge to the validity of his 2005 DUI conviction

for sentence-enhancement purposes. See State v. King, 383 N.W.2d 854 (S.D. 1986)

(abrogated by State v. Chant, 2014 S.D. 77, ___ N.W.2d ___). Wolf argued that he

had not knowingly and voluntarily entered a guilty plea on that conviction. He

contended that at the time of the plea, he was not provided with adequate

information concerning the nature of his plea and his constitutional and statutory

rights. He also contended that he pleaded guilty without the advice of counsel.

[¶4.]         The written records relating to the 2005 plea indicated that Wolf had

waived his statutory and constitutional rights, including his right to counsel. There

were, however, no recordings or transcripts of the 2005 proceedings. The circuit

court ruled that because there was no transcript showing the colloquy between Wolf

and the court, Wolf’s advisement and waiver of rights records were insufficient to


                                          -1-
#26905

establish that his plea was voluntary, that he understood the consequences of

pleading guilty, and that he waived his Boykin rights. See Boykin v. Alabama, 395

U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Although no evidentiary hearing

was held on Wolf’s collateral attack, the court also found that the plea was

involuntary under the factual circumstances. The circuit court struck the 2005 DUI

conviction from the part II information, and we granted the State’s petition for an

intermediate appeal.

[¶5.]        A procedural question has developed since we granted the petition for

intermediate appeal. Based on our recent decision in Chant, 2014 S.D. 77, ___

N.W.2d ___, we must determine whether Wolf’s collateral attack was procedurally

barred. In Chant this Court held that “a defendant may only collaterally attack

prior convictions used for enhancement if he or she was unrepresented by counsel

when pleading guilty.” Id. ¶ 12, ___ N.W.2d at ___. Wolf was unrepresented in the

2005 proceedings. However, the written record of those proceedings reflects that

Wolf waived his right to counsel. Therefore, the question is whether Chant’s

procedural bar applies in cases where a defendant waives the right to counsel.

[¶6.]        Chant adopted the rule set forth in Custis v. United States, 511 U.S.

485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994). Custis held that there was no right

to collaterally attack the validity of prior convictions used for sentence enhancement

“with the sole exception of convictions obtained in violation of the right to counsel[.]”

Id. at 487, 114 S. Ct. at 1734. In discussing the nature of the right to counsel

violations that would permit a collateral attack, the Supreme Court observed: “If

the accused . . . is not represented by counsel and has not competently and


                                           -2-
#26905

intelligently waived his constitutional right, the Sixth Amendment stands as a

jurisdictional bar to a valid conviction and sentence depriving him of his life or his

liberty.” Id. at 494, 114 S. Ct. at 1737 (emphasis added) (quoting Johnson v. Zerbst,

304 U.S. 458, 468, 58 S. Ct. 1019, 1024, 82 L. Ed. 1461 (1938)). Thus, Custis

contemplated that the procedural bar applied in cases where defendants waived

their right to counsel.

[¶7.]        The federal circuits analyzing Custis confirm that conclusion. See

United States v. Rubio, 629 F.3d 490, 493-94 (5th Cir. 2010) (denying collateral

attack on prior convictions because the defendant failed to meet his burden of

showing an invalid waiver of counsel); United States v. Reyes-Solano, 543 F.3d 474,

478 (8th Cir. 2008) (holding Mississippi convictions counted as criminal history

points because the defendant did not testify that he was unaware of his right to

counsel or that his waiver was invalid); United States v. Krejcarek, 453 F.3d 1290,

1295-99 (10th Cir. 2006) (holding that the defendant failed to carry his burden of

proving the invalidity of the waivers of counsel for prior Colorado convictions);

United States v. Dahler, 171 F.3d 441, 442 (7th Cir. 1999) (holding that the

defendant’s prior conviction was not obtained in violation of his right to counsel

because he had the opportunity for appointed counsel at public expense); Moore v.

United States, 178 F.3d 994, 997-98 (8th Cir. 1999) (holding that a prior conviction

in a Georgia state court was appropriately used to qualify the defendant as a career

offender because he failed to prove he did not knowingly and voluntarily waive his

right to counsel); United States v. Allen, 153 F.3d 1037, 1040-42 (9th Cir. 1998)

(holding that the prior conviction was valid for calculation of the defendant’s


                                          -3-
#26905

criminal history because his wavier of the right to counsel was valid). Thus, the

Custis/Chant procedural bar to collateral attacks applies not only to defendants

who have counsel, but also to defendants who have validly waived their right to

counsel.

[¶8.]         In this case, Wolf executed a written waiver of his right to counsel in

the 2005 proceedings. Although Wolf acknowledges Custis in his brief, he does not

suggest that his waiver of counsel may have been invalid. Therefore, Wolf may not

collaterally attack his 2005 conviction for sentence-enhancement purposes.* Based

on Custis and Chant, we reverse and remand.

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

WILBUR, Justices, concur.



*       Wolf acknowledged the Custis argument in his brief on appeal. However, he
        urges us to refrain from applying it in this case because it was not briefed or
        addressed at the circuit court level. However, as we noted in Chant, we may
        consider such issues in cases where the question is one “of substantive law
        which is not affected by any factual dispute.” Chant, 2014 S.D. 77, ¶ 7, ___
        N.W.2d at ___ (quoting Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D. 1988)).
        This is such a case. First, there is no dispute that Wolf signed a written
        waiver of his right to court-appointed counsel in the 2005 proceedings.
        Second, “in a collateral attack on an uncounseled conviction, it is the
        defendant’s burden to prove that he did not competently and intelligently
        waive his right to the assistance of counsel.” Iowa v. Tovar, 541 U.S. 77, 92,
        124 S. Ct. 1379, 1390, 158 L. Ed. 2d 209 (2004) (citing Watts v. State, 257
        N.W.2d 70, 71 (Iowa 1977)). And although Wolf acknowledges the Custis
        argument in his brief, he does not argue that his written waiver of counsel
        was invalid. Therefore, there is no factual dispute that could influence the
        substantive law question. Finally, this Court’s adoption of Custis in Chant
        occurred before Wolf’s conviction became final on direct appeal. Therefore,
        even if Chant is a “new rule,” “‘the integrity of judicial review’ requires the
        application of the new rule to ‘all similar cases pending on direct review.’”
        Teague v. Lane, 489 U.S. 288, 304, 109 S. Ct. 1060, 1072, 103 L. Ed. 2d 334
        (1989) (quoting Griffith v. Kentucky, 479 U.S. 314, 323, 107 S. Ct. 708, 713,
        93 L. Ed. 2d 649 (1987)).

                                           -4-
