#27536-a-SLZ

2016 S.D. 32

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

MAURICE SANDERS,                           Defendant and Appellant.


                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                    HUGHES COUNTY, SOUTH DAKOTA

                                    ****

                     THE HONORABLE JOHN L. BROWN
                                Judge

                                    ****

MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.


JEREMY LUND of
The Schreiber Law Firm, Prof. LLC
Pierre, South Dakota                       Attorneys for defendant
                                           and appellant.

                                    ****

                                           CONSIDERED ON BRIEFS
                                           ON MARCH 21, 2016

                                           OPINION FILED 04/06/16
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ZINTER, Justice

[¶1.]         Maurice Sanders pleaded guilty to forgery and engaged in a colloquy

with the circuit court regarding the factual basis for the plea. The court accepted

the plea and entered a judgment of conviction and sentence. Sanders appeals. He

claims that the circuit court did not have subject matter jurisdiction because

Sanders’s factual basis did not affirmatively establish that the offense occurred in

South Dakota. We affirm because an inadequate factual basis does not deprive a

circuit court of its subject matter jurisdiction.

[¶2.]         Sanders was indicted on one count of forgery in violation of SDCL 22-

39-36. 1 Two and one-half years later, while incarcerated in Illinois, he made a

request for disposition of the indictment. Pursuant to that request, he was returned

to South Dakota to face the indictment under the Interstate Agreement on

Detainers Act. With the assistance of court-appointed counsel, Sanders entered into

a plea agreement with the State. The court subsequently advised Sanders of his

statutory and constitutional rights, and he pleaded guilty to the charge. The court

then engaged in a colloquy with Sanders to establish a factual basis for the plea.

After determining that a factual basis existed, the court accepted the plea. During

Sanders’s subsequent presentence investigation, he indicated that he had lived in

Pierre, that he had been employed in Pierre, and that the check was obtained from

the EZ Payday Advance in Pierre. However, Sanders indicated that he forged the

check in Illinois. Sanders never raised a factual issue about the location of the


1.      SDCL 22-39-36 provides: “Any person who, with intent to defraud, falsely
        makes, completes, or alters a written instrument of any kind, or passes any
        forged instrument of any kind is guilty of forgery.”

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offense in the circuit court proceedings. The court sentenced Sanders without

objection, and Sanders now, for the first time, raises the location of the forgery as

an issue.

[¶3.]         Sanders argues that the adequacy of a factual basis for a plea is a

jurisdictional issue. He also points out that jurisdictional defects may be raised for

the first time on appeal. State v. Neitge, 2000 S.D. 37, ¶ 9, 607 N.W.2d 258, 260.

Sanders’s argument begins with the contention that the circuit court failed to obtain

a factual basis that the offense occurred in South Dakota. 2 See SDCL 23A-7-14

(Rule 11(f)) (requiring a plea-taking court to “defer acceptance of any plea except a

plea of nolo contendere until it is satisfied that there is a factual basis for the

offense charged or to which the defendant pleads”). Sanders then points out that a

plea-taking court is required to obtain a factual basis for each element of the


2.      During the arraignment colloquy, the following exchange took place:
              Court: So why don’t you tell me how you came into possession
              of that check.
              Sanders: I was hurting for cash. I was looking around and I
              got ahold of the check and I forged my signature on there. I
              wrote the dollar amount –
              Court: You need to speak up, sir.
              Sanders: I wrote the dollar amount on the check and I cashed
              it.
              Court: How did you get the check in the first place?
              Sanders: I received it from Rapken, Jody.
              Court: And you knew it wasn’t your check?
              Sanders: Yeah, but I mean I was hurting for money at the
              time. That’s the only reason why I wrote it, I was strapped for
              cash.
              Court: How much was the check for?
              Sander’s Attorney: Two-fifty-nine, I believe, your honor.
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#27536

offense. See State v. Nachtigall, 2007 S.D. 109, ¶ 5, 741 N.W.2d 216, 219. Sanders

concludes that the “location of the offense is an essential element the court must

inquire upon in finding a factual basis for a guilty plea because it is fundamental to

subject matter jurisdiction[.]” Sanders, however, incorrectly conflates the factual

basis requirement in SDCL 23A-7-14 (Rule 11(f)) with a court’s subject matter

jurisdiction.

[¶4.]           The factual basis requirement in SDCL 23A-7-14 (Rule 11(f)) is not

jurisdictional. See United States v. Timmreck, 441 U.S. 780, 783, 99 S. Ct. 2085,

2087, 60 L. Ed. 2d 634 (1979) (concluding that a failure to comply with Rule 11 of

the Federal Rules of Criminal Procedure is neither “constitutional nor

jurisdictional”); State v. Moeller, 511 N.W.2d 803, 811 (S.D. 1994) (concluding that

failure to inquire into the factual basis for a plea is neither “constitutional nor

jurisdictional”); Petrilli v. Leapley, 491 N.W.2d 79, 83 n.2 (S.D. 1992) (same).

Therefore, a failure to comply with the factual basis requirement in SDCL 23A-7-14

(Rule 11(f)) does not deprive the circuit court of jurisdiction over the subject matter

alleged in the indictment.

[¶5.]           Subject matter jurisdiction is “the courts’ statutory or constitutional

power to adjudicate the case[,]” United States v. Cotton, 535 U.S. 625, 630, 122 S.

Ct. 1781, 1785, 152 L. Ed. 2d 860 (2002), and whether a court has subject matter

jurisdiction is determined by the indictment. State v. Janssen, 371 N.W.2d 353, 356

(S.D. 1985) (“a valid and sufficient [indictment] confers subject matter jurisdiction

upon the court.”); State v. Osborn, 58 N.E. 491, 493 (Ind. 1900) (“jurisdiction over

the subject-matter of the offense charged depends upon the allegations of said


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indictment or affidavit and information and not upon the actual facts”). In this

case, the indictment alleged, in relevant part, that Sanders committed forgery on or

about the 26th day of March, 2012, in Hughes County, South Dakota. Forgery is a

felony under South Dakota law, SDCL 22-39-36, and the circuit court of the Sixth

Judicial Circuit has original jurisdiction to adjudicate felonies alleged to have

occurred in Hughes County, South Dakota. S.D. Const. art. V, § 5; SDCL 16-6-12.

Thus, the circuit court had subject matter jurisdiction to adjudicate this case.

[¶6.]        Whether Sanders was in Illinois, instead of Hughes County, when he

forged the check is a factual assertion that he was entitled to have a jury determine.

See State v. Rasch, 70 S.D. 517, 524-25, 19 N.W.2d 339, 342-43 (1945). However,

Sanders waived his right to a jury determination of that fact when he pleaded guilty

to the acts alleged in the indictment. See Boykin v. Alabama, 395 U.S. 238, 243, 89

S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). We acknowledge that for a “waiver to be

valid under the Due Process Clause, it must be ‘an intentional relinquishment or

abandonment of a known right or privilege.’” McCarthy v. United States, 394 U.S.

459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969) (quoting Johnson v. Zerbst,

304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). “Consequently, if a

defendant’s guilty plea is not equally voluntary and knowing, it has been obtained

in violation of due process and is therefore void.” Id. But here, Sanders does not

claim a due process violation based on an involuntary or unknowing plea or waiver

of rights. Therefore, he asserts no claim upon which the judgment could be void.

[¶7.]        The circuit court had subject matter jurisdiction to adjudicate

Sanders’s guilt. We affirm.


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[¶8.]        GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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