#25934-rev & rem-SLZ

2012 S.D. 15

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                 ****
GARRY ALAN ROSEN,                       Petitioner and Appellant,

      v.

DOUGLAS WEBER, WARDEN OF
THE SOUTH DAKOTA STATE
PENITENTIARY,                           Respondent and Appellee.

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

                                 ****

                 THE HONORABLE WILLIAM J. SRSTKA, JR.
                               Judge

                                 ****

CYNTHIA A. HOWARD of
Minnehaha County Office of
 the Public Advocate
Sioux Falls, South Dakota               Attorneys for petitioner
                                        and appellant.

MARTY J. JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota                    Attorneys for respondent
                                        and appellee.

                                 ****
                                        CONSIDERED ON BRIEFS
                                        ON NOVEMBER 14, 2011
                                        REASSIGNED JANUARY 03, 2012

                                        OPINION FILED 02/15/12
#25934

ZINTER, Justice (on reassignment).

[¶1.]        Garry Rosen pleaded guilty to kidnapping. He later contended that his

plea was involuntary, and he petitioned for habeas corpus relief. The habeas court

concluded that Rosen’s plea was voluntary. We reverse because Rosen was never

advised that by pleading guilty he would waive his right to trial by a jury, he would

waive his right to compulsory process, and he would waive his right against self-

incrimination. Additionally, Rosen was never asked whether he understood he

would be waiving those rights.

                            Facts and Procedural History

[¶2.]        Rosen was arraigned in November 2003 on three counts of kidnapping.

He was advised of his constitutional rights. However, he was not advised that if he

pleaded guilty, he would waive his Boykin rights: the right to trial by a jury, the

right to compulsory process, and the right against self-incrimination. Rosen

pleaded not guilty.

[¶3.]        Rosen later entered into a plea agreement. In February 2004, a

change of plea hearing was held before the sentencing court. Rosen was again

advised of his constitutional rights. However, with respect to the waiver of his

Boykin rights, Rosen was only advised (and stated he understood) that a guilty plea

would waive his right to “a trial.” He was not advised or asked whether he

understood that by pleading guilty he would waive his right to trial by a jury, his




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right to compulsory process, and his right against self-incrimination.1 At that

hearing, Rosen pleaded guilty to one count of kidnapping.

[¶4.]         A month later, Rosen filed a motion to withdraw his plea, alleging that

he did not fully understand certain rights. Rosen indicated that he did not

understand the State’s burden of proving the charges against him, the meaning of

reasonable doubt, and his right against self-incrimination. The court further



1.      The following is the entire colloquy regarding Rosen’s advisement of rights
        and the court’s canvassing regarding the waiver of his Boykin rights.

              THE COURT: Mr. Rosen, I am going to go through rights that
              apply to you in these proceedings. First, you have the right to be
              represented by an attorney. You are presumed to be innocent
              until proven guilty. The state carries the burden of proving you
              guilty. They must do that beyond a reasonable doubt. You have
              the right to a trial to the court or trial by jury. If you have a
              trial to a jury, the verdict of the jury must be unanimous.

              You have a right to remain silent, meaning the state can’t force
              you to testify and use that to prove the charges against you.
              You have a right to ask questions of witnesses who appear, to
              call any witnesses you wish to appear. And you have a right to
              have subpoenas issued to compel the appearance of witnesses
              who would not voluntarily appear. Do you understand those
              rights?

              ROSEN: Yes, I do.

              THE COURT: The pleas available to you if you wish to have a
              trial – you may enter a plea of not guilty or not guilty by reason
              of insanity. If you wish to avoid a trial, you may enter a plea of
              guilty or guilty but mentally ill or under certain instances you
              may enter a plea of no contest. If you plead guilty or no contest,
              you would waive your rights to a trial and all that remains is to
              enter sentence.

              Do you understand that?

              ROSEN: Yes, I do.

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explained those and Rosen’s other constitutional rights. The explanation did not,

however, include an advisement of or inquiry whether Rosen understood that a plea

of guilty would waive his Boykin rights. At the conclusion of the hearing, Rosen

indicated that he then understood the rights he previously misunderstood, and he

withdrew his motion to withdraw his plea.

[¶5.]        Rosen was sentenced two days later. Although there was no further

advisement of rights at the sentencing hearing, the court gave Rosen an opportunity

to withdraw his plea. Rosen indicated he wanted to proceed with sentencing. He

was sentenced and did not file a direct appeal.

[¶6.]        In August 2010, Rosen petitioned for a writ of habeas corpus. He

contended that his plea was involuntary because the sentencing court failed to

advise him that he would waive his Boykin rights by pleading guilty. Rosen also

contended that the plea was involuntary because the sentencing court failed to

determine whether Rosen understood he was waiving those rights. The habeas

court denied relief but granted Rosen’s motion for a certificate of probable cause.

                                       Decision

[¶7.]        The question on appeal is whether Rosen’s plea was constitutionally

invalid because the sentencing court failed to advise, and then determine whether

Rosen understood, that he was waiving his Boykin rights by pleading guilty. The

facts concerning the sentencing court’s advisement of rights and the Boykin

canvassing are not in dispute. We review the habeas court’s conclusions of law de

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




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[¶8.]         A criminal defendant entering a guilty plea waives three fundamental

constitutional rights: the right against compulsory self-incrimination, the right to

confront one’s accusers, and the right to a trial by a jury. Boykin v. Alabama, 395

U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). Therefore, “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 intentionally relinquish or

abandon known rights.” Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 924 (citing

Boykin, 395 U.S. at 243 n.5, 89 S. Ct. at 1712 n.5). Further, the “record must

affirmatively show . . . that the defendant explicitly waived” those constitutional

rights. Id. (second emphasis added); State v. Goodwin, 2004 S.D. 75, ¶ 23, 681

N.W.2d 847, 855 (requiring affirmative showing of explicit waiver). “We cannot

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

Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 925.

[¶9.]         In this case, no court ever conducted the required Boykin canvassing.

Therefore, Rosen was never advised, and he was never asked whether he

understood, that by pleading guilty he was waiving his right to a trial by a jury, his

right against self-incrimination, and his right to confrontation. Indeed, the habeas

court recognized that Rosen was not canvassed regarding all three Boykin rights.

The habeas court only found that “Rosen was advised . . . that if he pled guilty, he

would waive his right to a trial . . . .”2 Therefore, as we said in Monette, by


2.      Although Rosen was advised he would “waive [his] rights to a trial,” he was
        not advised he would waive his right to a trial by a jury. Boykin specifically
        requires advisement of “the right to trial by jury.” 395 U.S. at 243, 89 S. Ct.
        at 1712.


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#25934

accepting the change of plea without a Boykin canvassing, “[t]he sentencing court

failed 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].”

2009 S.D. 77, ¶ 13, 771 N.W.2d at 925-26. And, despite being fully advised of his

constitutional rights, the lack of a Boykin canvassing renders the plea

unconstitutional.

             The issue . . . is not whether [the defendant’s] plea was knowing.
             [The defendant] had been fully advised of his constitutional
             rights. . . . Instead, the issue is whether a record, noticeably
             silent . . . and thus no record of an effective waiver of federal
             constitutional rights, renders the plea unconstitutional. Boykin
             holds it does.

Id. ¶ 14.

[¶10.]       The failure to canvass Rosen regarding a waiver of his Boykin rights

invalidates his guilty plea even under our less intense standard of review in habeas

corpus cases. In Monette, we stated that when there 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. “[A] habeas court [has] no basis on a silent

record from the sentencing court to determine by a preponderance of the evidence

that the plea was voluntary and was a waiver of constitutional rights when it was

entered.” Id. ¶ 16. It is only when the sentencing court “canvass[es] the matter

with the accused to make sure he has a full understanding of what the plea

connotes and of its consequence” that the sentencing court “leaves a record adequate

for any review.” Boykin, 395 U.S. at 244, 89 S. Ct. at 1712.



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#25934

[¶11.]       The habeas court concluded that the plea was voluntary considering

the totality of the circumstances. The State and the dissent adopt this argument on

appeal. The State contends that we should examine factors such as Rosen’s age,

prior criminal record, whether he was represented by counsel, the existence of a

plea agreement, and the time between the advisement of rights and the time of

entering the plea. Under Monette, however, the totality of the circumstances

analysis is inapplicable when the record reflects that no canvassing regarding a

Boykin waiver ever took place. In the 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.” Monette, 2009 S.D. 77, ¶ 16, 771

N.W.2d at 926-27.

[¶12.]       The dissent claims that the “record is not silent on this issue, as Rosen

did waive his rights, including his Boykin rights.” See infra dissent ¶ 23. The

record demonstrates that this claim is incorrect. The change of plea colloquy clearly

shows that the sentencing court’s Boykin waiver advisement and inquiry was

limited to the right to “a trial.” See supra note 1. The dissent agrees. See infra

dissent ¶ 21 (quoting the sentencing court’s waiver advisement, which only

mentions the waiver of the right to “a trial”). Thus, the record is silent regarding a

waiver of all three Boykin rights. Those rights were never discussed. See supra

note 1.

[¶13.]       The dissent also claims that the sentencing court made “explicit

findings” that Rosen “made a voluntary waiver” and “[t]here is nothing indicating

that the [sentencing] court’s findings of fact are clearly erroneous.” See infra


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dissent ¶ 23. The dissent’s cited finding, however, does not even mention a waiver

of Rosen’s Boykin rights. See id. That is because a waiver of Rosen’s Boykin rights

was never mentioned in any of Rosen’s appearances before the arraigning and

sentencing courts. Because there was never any Boykin waiver advisement or

canvassing, it is difficult to understand how the dissent can conclude that Rosen

“made a voluntary and explicit waiver” of his Boykin rights. See id. Ultimately, one

must ask how a pleading defendant could have knowingly and voluntarily waived

his or her Boykin rights when that defendant was never advised that those rights

would be waived by pleading guilty. And, unless there is a written Boykin waiver

(which is not present in this case), how can the record explicitly show an affirmative

waiver unless the court canvasses the defendant about the matter? Boykin’s

requirements are not satisfied when the subject is never discussed.

[¶14.]       Although the arraigning and the sentencing courts fully advised Rosen

of his basic constitutional rights, those advisements were not sufficient to satisfy

the waiver requirements of Boykin. In considering this issue in Monette, we

acknowledged that prior to the change of plea, that judge had “fully advised [the

defendant] of his constitutional rights.” 2009 S.D. 77, ¶ 7, 771 N.W.2d at 923.

Nevertheless, we found the plea involuntary because “the sentencing court failed to

inquire if Monette waived his constitutional rights.” Id. ¶ 9. In this case, Rosen

was never advised that if he pleaded guilty he would waive his right against self-

incrimination, his right of confrontation, and his right to a trial by a jury. Further,

the sentencing court never inquired whether Rosen understood that he would waive

those rights by pleading guilty. Therefore, Boykin requires the relief granted in


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Monette, 2009 S.D. 77, ¶ 17, 771 N.W.2d at 927. This case is reversed and

remanded to the habeas court with direction to void the plea and remand to the

sentencing court for further proceedings in accordance with this decision and SDCL

ch. 21-27.3

[¶15.]          KONENKAMP and WILBUR, Justices, concur.

[¶16.]          GILBERTSON, Chief Justice, and FOLEY, Circuit Court Judge,

dissent.

[¶17.]          FOLEY, Circuit Court Judge, sitting for SEVERSON, Justice,

disqualified.



GILBERTSON, Chief Justice (dissenting).

[¶18.]          I respectfully dissent. I would affirm because a review of the record

under the limited standard of review does not support Rosen’s petition for habeas

relief.

[¶19.]          We have a well-established standard of review for habeas decisions:

                Our review of habeas corpus proceedings is limited because it is
                a collateral attack on a final judgment. The review is limited to
                jurisdictional errors. In criminal cases, a violation of the
                defendant’s constitutional rights constitutes a jurisdictional
                error. The petitioner has the burden of proving he is entitled to
                relief by a preponderance of the evidence.

                The findings of facts shall not be disturbed unless they are
                clearly erroneous. . . . The habeas court’s conclusions of law are
                reviewed de novo.


3.        Rosen also argues that the sentencing court accepted his plea without an
          adequate factual basis. We do not address this argument because the plea is
          invalid under Boykin and Monette. The sentencing court should consider the
          factual basis issue on remand.

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#25934


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).

[¶20.]       This Court has held that the “record must affirmatively show the plea

was voluntary, that the defendant understood the consequences of pleading guilty,

and that the defendant explicitly waived the constitutional right against

compulsory self-incrimination, the right to trial by jury, and the right to confront

one’s accusers.” Id. ¶ 10, 771 N.W.2d at 925 (emphasis omitted). However, this

requirement does not necessitate the “recitation of a formula by rote or the spelling

out of every detail by the trial court.” Id. ¶ 11 (quoting Nachtigall v. Erickson, 85

S.D. 122, 128, 178 N.W.2d 198, 201 (1970)). The circuit court “must be able to

determine from its own record that the accused has made a free and intelligent

waiver of his constitutional rights before the guilty plea was accepted.” Id. (citing

State v. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287).

[¶21.]       At the plea hearing, the court read Rosen his rights in full. See

Majority Opinion ¶ 3 n.1. The circuit court told Rosen: “I am going to go through

rights that apply to you in these proceedings. . . . You have the right to a trial to the

court or trial by jury. . . . You have a right to remain silent, meaning the state can’t

force you to testify and use that to prove the charges against you. You have a right

to ask questions of witnesses . . . to call any witnesses you wish . . . . Do you

understand these rights?” Rosen responded, “Yes, I do.” The circuit court

immediately warned Rosen: “If you plead guilty or no contest, you would waive your

rights to a trial and all that remains is to enter sentence. Do you understand that?”

Rosen answered, “Yes, I do.” The court found that Rosen was entering his plea

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voluntarily. The court further found that Rosen had been advised of his

constitutional rights and that he understood them.

[¶22.]        The circuit court did not recite a rote formula or spell out every detail

of Rosen’s rights yet again in the proceeding. However, under Monette, that is not

required. Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (emphasizing that Boykin

“does not require the recitation of a formula by rote or the spelling out of every

detail by the trial court” (quoting Nachtigall, 85 S.D. at 128, 178 N.W.2d at 201)).

We take this as an indication that form will not be exalted over substance. This is

consistent with the Supreme Court’s intent in Boykin that a plea be knowing and

voluntary, and to the satisfaction of the court that it was a free and voluntary

waiver. See Parke v. Raley, 506 U.S. 20, 29, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391

(1992).

[¶23.]        We cannot overlook the explicit findings of the circuit court, which had

the benefit of observing and conversing with Rosen live. The court found Rosen

knew and understood his rights and made a voluntary waiver. Specifically, the

court said:

              The court will find that Gary Rosen has been regularly held to
              answer the charges against him. He’s represented by competent
              counsel. He’s been advised of the charges against him, his
              Constitutional and statutory rights, the pleas available to him,
              and the maximum penalty. And I find he understands them. I
              will further find he’s acting of his own free will and is competent
              to enter a plea.

The record is not silent on this issue, as Rosen did waive his rights, including his

Boykin rights. Therefore, “the record in some manner [shows] the defendant

entered his plea understandingly and voluntarily.” Monette, 2009 S.D. 77, ¶11, 771


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N.W.2d at 925 (quoting Quist v. Leapley, 486 N.W.2d 265, 267 (S.D. 1992)). When

the record indicates that a defendant has voluntarily and explicitly waived his

rights, Boykin is satisfied. There is nothing indicating that the circuit court’s

findings of fact are clearly erroneous. When the record is examined as a whole, the

totality of circumstances indicates that Rosen made a voluntary and explicit waiver

of all his constitutional rights.

[¶24.]         Based upon the colloquy at the plea hearing, Rosen knew his rights

and voluntarily chose to plead guilty. However, even if there was error, it was

cured by what occurred at the change of plea hearing. Rosen stated that he

understood his rights to the best of his ability. The court began to go through

Rosen’s rights with him to determine which he did not understand. Rosen indicated

that he thought the State had already proven the charges against him. He

explained that after his plea, the concept of the State having the burden of proof

was explained to him further and he now understood it. Rosen was asked by his

own counsel, “Do you feel like you understand those rights now?” He responded

“yes.” The hearing primarily consisted of discussion on what Rosen’s claim was as a

basis for withdrawing his guilty plea. Rosen testified that he felt rushed to accept

the plea and that some of the evidence was irrelevant.4 At the conclusion of the

hearing, Rosen withdrew his motion to withdraw his plea.



4.       In Monette, the petitioner testified at the habeas trial that his plea before the
         sentencing court was coerced. Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at
         926. The habeas court then concluded that the plea was voluntary. Id. In
         this case, Rosen testified at the habeas hearing that he pleaded guilty
         because he did not want to receive life in prison. There is no claim that he
         was coerced and nothing in the record indicates any coercion.

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[¶25.]         From a full reading of the change of plea hearing transcript, it is

apparent that very little time was spent on Rosen’s misapprehension of his rights.

At the hearing, he testified that he understood his rights. When he was then given

the opportunity to withdraw his plea, he chose instead to withdraw his motion to

withdraw his plea. The court deferred ruling on Rosen’s motion until the

sentencing hearing two days later in order to give Rosen time to consider his

options. Rosen still chose to plead guilty when questioned at the sentencing

hearing.

[¶26.]         “The petitioner in a habeas action carries the burden of proving an

involuntary plea and that his constitutional rights were violated.” Monette, 2009

S.D. 77, ¶ 16, 771 N.W.2d at 926.5 The habeas court heard testimony from Rosen.

The habeas court concluded that Rosen’s guilty plea was voluntary and intelligent.

The court also found that Rosen was advised of his rights numerous times and that

he knew the consequences of pleading guilty.

[¶27.]         We have a confined standard of review on this issue. “Upon a direct

appeal from a conviction the defendant must be given all presumptions and

protections possible under our constitution. However, when the proceeding before

the court is in the nature of a collateral attack, as in a habeas corpus action . . . it

becomes subject to less intense scrutiny upon review.” State v. Moeller, 511 N.W.2d

803, 809 (S.D. 1994); see also State v. Jensen, 2011 S.D. 32, ¶ 8, 800 N.W.2d 359,



5.       At no point during any of the proceedings did Rosen’s counsel object to or
         comment on the advisement of the rights. Moreover, Rosen has made no
         allegation that counsel was incompetent. Rosen also chose not to exercise his
         right to file a direct appeal.

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363. Moreover, “this Court, acting in our appellate function on the cold and indeed

ancient record before us, cannot presume greater insight into the defendant’s

‘understanding of his rights . . . and his plea of guilty than that of the other courts

that have considered this case.’” Moeller, 511 N.W.2d at 808 (quoting Boyd v.

Dutton, 405 U.S. 1, 4, 92 S. Ct. 759, 761, 30 L. Ed. 2d 755 (1972)). Given the

standard of review and the record, I would affirm.

[¶28.]       FOLEY, Circuit Court Judge, joins this dissent.




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