#27444-dismissed-LSW

2016 S.D. 24

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

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

      v.

COREY D. KAUFMAN,                          Defendant and Appellant.


                                  ****

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

                                  ****

               THE HONORABLE MICHELLE K. PALMER PERCY
                               Judge

                                  ****

MARTY J. JACKLEY
Attorney General

JARED C. TIDEMANN
Assistant Attorney General
Pierre, South Dakota                       Attorneys for plaintiff
                                           and appellee.


TIMOTHY J. BARNAUD
Spearfish, South Dakota                    Attorney for defendant
                                           and appellant.

                                  ****

                                           CONSIDERED ON BRIEFS
                                           ON JANUARY 11, 2016

                                           OPINION FILED 03/16/16
#27444

WILBUR, Justice

[¶1.]        Defendant pleaded guilty in South Dakota to driving under the

influence and admitted to being a habitual offender. After entry of the judgment of

conviction, the State of Nebraska suspended defendant’s commercial driver’s

license. Defendant filed a motion in a South Dakota circuit court to reopen his case

and allow him to withdraw his guilty plea under SDCL 23A-27-11. He claimed the

loss of his commercial driver’s license constituted a manifest injustice. The circuit

court denied defendant’s motion, and he appeals. The State asserts that this Court

lacks jurisdiction to consider defendant’s appeal. We agree and dismiss for lack of

appellate jurisdiction.

                                    Background

[¶2.]        On August 8, 2013, a law enforcement officer stopped Corey Kaufman

for driving erratically. The officer smelled the odor of alcohol, and Kaufman

admitted he had been drinking. He failed five of seven sobriety tests, and his blood

alcohol content was .142. The officer arrested Kaufman. An information filed on

August 9, 2013, charged Kaufman with driving under the influence in violation of

SDCL 32-23-1(2), and, in the alternative, driving while having a blood alcohol

content of .08 percent or more in violation of SDCL 32-23-1(1). A part II

information alleged Kaufman to be a habitual offender in violation of SDCL 32-23-3.

[¶3.]        At his initial appearance, on August 9, 2013, the magistrate court

advised Kaufman of his rights. Kaufman intended to plead guilty. Prior to

accepting Kaufman’s plea, the court generally explained that a plea of guilty could

impact one’s driving privileges. The court did not specifically inform Kaufman that


                                          -1-
#27444

a guilty plea would impact his Nebraska commercial driver’s license (CDL).

Kaufman pleaded guilty to violating SDCL 32-23-1(1) and admitted to the part II

information. On August 13, 2013, the court sentenced Kaufman and entered a

judgment of conviction. Kaufman did not appeal.

[¶4.]        On October 21, 2014, Kaufman moved the circuit court to reopen his

case and allow him to withdraw his guilty plea under SDCL 23A-27-11. That

statute provides that a court may allow a defendant to withdraw a guilty plea after

sentence, but only to correct a manifest injustice. Id. Kaufman alleged that a

manifest injustice occurred because the magistrate court failed to advise him that a

guilty plea would result in the suspension of his Nebraska CDL for life with a

possibility of reinstatement after ten years. He claimed he would not have pleaded

guilty had he been aware of the consequence to his CDL. Kaufman asserted that

his CDL was necessary to his “livelihood” and ability to provide for his child and

ailing parents.

[¶5.]        On April 7, 2015, the circuit court orally denied Kaufman’s motion. It

ruled that Kaufman did not present clear and convincing evidence that a manifest

injustice occurred. The court also ruled that the loss of a CDL is a collateral

consequence, of which the court had no duty to advise Kaufman. The court entered

an order on April 29, 2015, denying Kaufman’s motion.

[¶6.]        Kaufman appeals and asserts that he “should be allowed to withdraw

his guilty plea due to the magistrate court’s failure to inform him at his initial

appearance that a plea to DUI second would cause him to lose his commercial




                                          -2-
#27444

driver’s license for life.” The State responds that this Court does not have

jurisdiction to consider Kaufman’s appeal.

                                       Analysis

[¶7.]        We first address whether this Court has jurisdiction to consider

Kaufman’s appeal. According to the State, no statute expressly gives a defendant

the right to appeal a circuit court’s stand-alone order denying a motion to withdraw

a guilty plea under SDCL 23A-27-11. The State similarly claims that no statute

gives this Court the discretion to consider an appeal from a stand-alone order under

SDCL 23A-27-11. Kaufman, in response, asserts that so long as a defendant timely

files his appeal under SDCL 23A-32-15 this Court has jurisdiction.

[¶8.]        “The Supreme Court shall have such appellate jurisdiction as may be

provided by the Legislature[.]” S.D. Const. art. V, § 5. The Legislature enacted

SDCL chapter 23A-32 governing criminal appeals to the South Dakota Supreme

Court. Within this chapter, the Legislature gave this Court appellate jurisdiction in

three instances. Under SDCL 23A-32-2, a defendant may take an appeal to this

Court from a final judgment of conviction. For an appeal “not allowed as a matter

of right,” the state or defendant can appeal to the Supreme Court on “any

intermediate order made before trial[.]” SDCL 23A-32-12. The appeal is “not as a

matter of right, but of sound judicial discretion” and is “to be allowed by the

Supreme Court only when the court considers that the ends of justice will be served

by the determination of the questions involved without awaiting the final

determination of the action.” Id. The Legislature similarly provided this Court

discretion to consider an appeal by “the state or the defendant from an order


                                          -3-
#27444

granting or denying a motion to correct an illegal sentence or an order granting or

denying a motion to correct a sentence imposed in an illegal manner.” SDCL 23A-

32-22.

[¶9.]        From our review of these three statutes, the Legislature did not give

this Court jurisdiction to consider an appeal from an order granting or denying a

motion to withdraw a guilty plea under SDCL 23A-27-11. It is undisputed that

Kaufman’s appeal is not from a final judgment of conviction. It is also not an appeal

from an intermediate order made before trial. And, Kaufman did not move the

circuit court to correct an illegal sentence or a sentence imposed in an illegal

manner.

[¶10.]       Kaufman, however, contends that this Court has jurisdiction to

consider his appeal because the Legislature gave the circuit court authority under

SDCL 23A-27-11 to consider his motion to withdraw his plea, and Kaufman timely

appealed the court’s order under SDCL 23A-32-15. Kaufman is correct, SDCL 23A-

27-11 gives the circuit court authority after a defendant is sentenced to “set aside a

judgment of conviction and permit the defendant to withdraw his plea” to “correct

manifest injustice[.]” But the circuit court’s authority to consider a motion under

SDCL 23A-27-11 does not mean the Legislature gave this Court jurisdiction to

consider an appeal from the circuit court’s order. Also, although Kaufman timely

filed an appeal under SDCL 23A-32-15, that statute prescribes the time for taking

an appeal. It is not a Legislative grant of appellate jurisdiction.

[¶11.]       The fact this Court does not have jurisdiction in this case is further

evident because the Legislature enacted SDCL 23A-32-22 in 2015 and expressly


                                          -4-
#27444

gave this Court jurisdiction to consider an appeal from a motion to correct an illegal

sentence. See State v. Litschewski, 2011 S.D. 88, 807 N.W.2d 230 (neither party

questioned this Court’s jurisdiction to consider an appeal from a motion to correct

an illegal sentence). The Legislature did not similarly give this Court jurisdiction to

consider an appeal from a motion to withdraw a guilty plea. This is relevant

because SDCL 23A-31-1—the statute authorizing a circuit court to consider a

defendant’s motion to correct an illegal sentence—is akin to SDCL 23A-27-11.

Neither statute gives this Court appellate jurisdiction.

[¶12.]       Because the Legislature has not enacted a provision authorizing an

appeal from a motion to withdraw a guilty plea under SDCL 23A-27-11, this Court

does not have jurisdiction to consider an appeal when a defendant files a motion

under SDCL 23A-27-11 more than 30 days after entry of the judgment of conviction.

Here, Kaufman did not file his motion to withdraw his guilty plea under SDCL 23A-

27-11 until a year after judgment of conviction was entered. Therefore, this Court

does not have appellate jurisdiction to consider Kaufman’s appeal.

[¶13.]       Dismissed.

[¶14.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




                                          -5-
