#26694-a-JKK

2014 S.D. 39

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

ANDREA J. WOODARD,                        Defendant and Appellant.


                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                  BROOKINGS COUNTY, SOUTH DAKOTA

                                  ****

                   THE HONORABLE VINCENT A. FOLEY
                               Judge

                                  ****

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


MICHAEL E. MCCANN of
McCann, Ribstein, Hogan & McCarty, PC
Brookings, South Dakota                   Attorneys for defendant
                                          and appellant.

                                  ****

                                          CONSIDERED ON BRIEFS
                                          ON FEBRUARY 18, 2014

                                          OPINION FILED 06/25/14
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KONENKAMP, Justice

[¶1.]         Andrea Woodard appeals her conviction for second offense driving

under the influence (DUI). She alleges that her predicate DUI conviction was

invalid for sentencing enhancement purposes.

                                    Background

[¶2.]         Woodard was charged by information with DUI in Brookings County,

South Dakota. A supplemental information alleged that Woodard had been

convicted of another DUI in Clay County, South Dakota, on February 24, 2009. The

State asserted that the prior conviction enhanced the new charge to a second

offense DUI under SDCL 32-23-3.

[¶3.]         In response to this allegation, Woodard moved to strike the 2009

conviction from the supplemental information, asserting that the 2009 plea was not

entered knowingly and voluntarily. In support of her motion to strike the 2009

conviction, Woodard testified on the events that occurred at her arraignment

hearing before the Clay County magistrate court. The following is what Woodard

alleges transpired.

[¶4.]         On February 24, 2009, Woodard, who was charged with DUI, appeared

in magistrate court in Clay County. 1 There is no transcript of the hearing. 2 The

only written records are the information, the arraignment, and a statement-of-

rights form. Woodard testified that she was called to stand before the magistrate.


1.      Woodard was twenty-two years old at the time.

2.      “A verbatim record of a proceeding at which a defendant enters a plea to a
        misdemeanor need not be taken unless requested by the prosecuting attorney
        or the defendant.” SDCL 23A-7-15 (Rule 11(g)).

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She was not represented by counsel. She was then asked to enter a plea to the

charge of DUI. Woodard responded that she would plead guilty. The magistrate

then gave her a statement-of-rights form. According to Woodard, this was the first

time she had seen the form. It was also her first experience with the court system.

The magistrate instructed her to read and sign the form. Woodard was extremely

nervous. She quickly skimmed through the details of the form and signed it.

According to Woodard, the magistrate did not ask whether she had any questions

about the form or whether she understood the form.

[¶5.]        The statement-of-rights form specified a number of rights that

Woodard was entitled to. Most relevant to this appeal, the form stated:

             7. Defendant was advised that the burden is on the state to
             prove every element of the charge beyond a reasonable doubt
             and was further advised as to his right against self
             incrimination. Defendant was advised of his right to a speedy
             trial before a jury or the court in this county and that a jury
             would have to reach a unanimous verdict before he could be
             found guilty. Defendant was advised of his right to call and
             cross examine witnesses and compulsory process.

             8. Defendant was advised that if he wished to plead guilty he
             would give up his right to trial, the presumption of innocence,
             the right to confront and cross examine witnesses and the right
             not to be compelled to incriminate himself. Defendant was
             advised that if he pleads guilty or no contest, the court may ask
             him questions about the offense, and if he answers under oath
             on the record and in the presence of counsel, his answers may be
             used against him in a prosecution for perjury.

The form required Woodard to state what crime she was pleading guilty to.

Woodard wrote “DUI 1st.” The form also requested a factual basis for the plea.

Woodard wrote “2-13-09 drove in Clay Co. .206 BAC.” Finally, the form stated: “I

have been advised of the above rights and understand them. I voluntarily wish to


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enter a plea of guilty.” That statement was followed by a signature line where both

Woodard and the magistrate court signed.

[¶6.]        After considering Woodard’s testimony, the circuit court denied

Woodard’s motion to strike the 2009 conviction. The court concluded that

Woodard’s testimony did not overcome the presumption of regularity. Woodard was

subsequently found guilty of second offense DUI. She was sentenced to 90 days in

the Brookings County Detention Center, with 82 days suspended. On appeal, she

alleges that the circuit court erred in rejecting her motion to strike the 2009 plea

because it was not entered knowingly, intelligently, and voluntarily.

[¶7.]        In moving to strike her 2009 conviction, Woodard does not claim that

she is innocent of the predicate conviction. Rather, she “seeks to deprive that

conviction of its normal force and effect for sentence-enhancement purposes.” State

v. Smith, 2013 S.D. 79, ¶ 5, 840 N.W.2d 117, 119. Her challenge to the validity of

her predicate conviction is a collateral attack; therefore, her plea is subject to less

scrutiny than if it were raised on direct appeal. Id. (citing State v. Jensen, 2011

S.D. 32, ¶ 8, 800 N.W.2d 359, 363). “Further, our review of a collateral attack of a

predicate conviction is limited to jurisdictional errors.” Id. ¶ 6 (citing Monette v.

Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923). For purposes of a collateral attack

on a predicate criminal conviction, we have treated a constitutionally infirm guilty

plea as a jurisdictional error. Id. (citation omitted). We review the circuit court’s

findings of fact under the clearly erroneous standard. Id. (citation omitted). “And

we review the circuit court’s conclusions of law de novo.” Id. (citation omitted).




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[¶8.]        To initiate an attack on a predicate conviction, the “defendant has the

initial burden of placing the validity of the prior conviction in issue.” Jensen, 2011

S.D. 32, ¶ 9, 800 N.W.2d at 363 (quoting Stuck v. Leapley, 473 N.W.2d 476, 478

(S.D. 1991)). One way a defendant places the validity of a prior conviction in issue

is by a motion to strike. See Smith, 2013 S.D. 79, ¶ 7, 840 N.W.2d at 119 (citation

omitted). Once the defendant has placed the prior conviction in issue the burden

shifts “to the State to prove the existence of a prior valid conviction by a

preponderance of the evidence.” Id. (quoting Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d

at 363). “The State meets this burden by presenting a document that ‘appears on

its face to be a valid judgment.’” Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d at 363

(quoting State v. Moeller, 511 N.W.2d 803, 809 (S.D. 1994)). “If the State meets its

burden, the presumption of regularity arises and the burden shifts to the defendant

to show that the prior conviction is invalid.” Id. (citing Moeller, 511 N.W.2d at 809-

10).

[¶9.]        We have repeatedly acknowledged that “a plea of guilty is more than

an admission of conduct; it is a conviction.” Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d at

120 (quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712, 23 L. Ed.

2d 274 (1969)). “By pleading guilty, a defendant waives three fundamental

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

trial by jury, and the right to confront one’s accusers.” Id. (citing Boykin, 395 U.S.

at 243, 89 S. Ct. at 1712). “A guilty plea operates as a waiver of important rights,

and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient

awareness of the relevant circumstances and likely consequences.’” Bradshaw v.


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Stumpf, 545 U.S. 175, 183, 125 S. Ct. 2398, 2405, 62 L. Ed. 2d 143 (2005) (quoting

Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747

(1970)). Therefore, it is critical that a defendant is aware of these rights, and then,

knowingly and voluntarily relinquishes them by a plea of guilty. See 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). Lastly, “the record in some manner must show the defendant entered his

plea understandingly and voluntarily.” Id. ¶ 11, 771 N.W.2d at 925 (citation

omitted); see also Rosen v. Weber, 2012 S.D. 15, ¶ 8, 810 N.W.2d 763, 765.

[¶10.]       No transcript is available for Woodard’s 2009 guilty plea. Relying on

our precedent, Woodard asserts that without a transcript for her 2009 guilty plea

the record does not affirmatively show in some manner that her plea was entered

knowingly and voluntarily. See Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925. In

addition, Woodard submits that there is no evidence of any Boykin canvassing.

Therefore, Woodard claims that her plea was invalid.

[¶11.]       The State, relying on State v. Moeller, 511 N.W.2d 803 (S.D. 1994),

argues that the mere unavailability of a transcript does not overcome the

presumption of regularity. The State stresses that we should not presume that

Woodard’s guilty plea was constitutionally infirm in light of the presumption of

regularity. As we stated above, once the State has introduced a valid judgment of

conviction, the presumption of regularity arises, and the burden shifts to the

defendant to prove that the prior conviction was invalid. Smith, 2013 S.D. 79, ¶ 7,

840 N.W.2d at 119-20. A presumption exists that Woodard’s guilty plea was




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constitutionally sound. See Parke v. Raley, 506 U.S. 20, 30, 113 S. Ct. 517, 523-24,

121 L. Ed. 2d 391 (1992).

[¶12.]       In Moeller, we stated that “when no transcripts exist, for whatever

reason, absent misconduct by the state, the court will be presumed to have

discharged its duty.” 511 N.W.2d at 810 (citing United States v. Dickerson, 901 F.2d

579, 583 (7th Cir. 1990)). Similarly, the United States Supreme Court has stated,

“[o]n collateral review, we think it defies logic to presume from the mere

unavailability of a transcript (assuming no allegation that the unavailability is due

to governmental misconduct) that the defendant was not advised of his rights.”

Parke, 506 U.S. at 30, 113 S. Ct. at 524. Where no transcript exists, “Boykin does

not prohibit a state court, from presuming, at least initially, that a final judgment of

conviction offered for purposes of sentence enhancement was validly obtained.” Id.

[¶13.]       Yet Woodard argues that our holding in Monette requires a contrary

result to Moeller and Parke. Woodard notes that in Monette we stated that “[w]e

cannot presume a waiver of [Boykin] rights from a silent record.” 2009 S.D. 77, ¶

10, 771 N.W.2d at 925 (citation omitted). Woodard further argues that when no

transcript exists, the record is technically silent, which we have deemed insufficient

to support a knowing and voluntary waiver of a defendant’s Boykin rights. See id. ¶

11. And without a transcript, a court cannot “determine from its own record that

the accused has made a free and intelligent waiver of [her] constitutional rights . . .

.” Id.

[¶14.]       While Woodard correctly describes our precedent, this case does not

involve a transcript that is “suspiciously silent” on whether Woodard waived her


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constitutional rights. There simply is no transcript. Compare Parke, 506 U.S. at

30, 113 S. Ct. at 523-24 (rejecting the proposition that a record is “suspiciously

silent” because no transcript exists), with Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d

at 926 (observing that the transcript was silent as to whether defendant’s plea was

knowing and voluntary). “To import Boykin’s presumption of invalidity into this

very different context would . . . improperly ignore another presumption deeply

rooted in our jurisprudence: the ‘presumption of regularity’ that attaches to final

judgments, even when the question is waiver of constitutional rights.” Parke, 506

U.S. at 29, 113 S. Ct. at 523 (citation omitted). A transcript is not suspiciously

silent merely because it does not exist. An opposite conclusion would ignore the

presumption of regularity and risk invalidating guilty pleas entered years ago that

were never challenged on direct appeal.

[¶15.]       Furthermore, Woodard’s argument, if successful, would undermine the

State’s valid interest in deterring habitual offenders. See id. at 32, 113 S. Ct. at

524-25. The United States Supreme Court recognized this consequence in Parke,

noting:

             If raising a Boykin claim and pointing to a missing record
             suffices to place the entire burden of proof on the government,
             the prosecution will not infrequently be forced to expend
             considerable effort and expense attempting to reconstruct
             records from farflung States where procedures are unfamiliar
             and memories unreliable. To the extent that the government
             fails to carry its burden due to the staleness or unavailability of
             evidence, of course, its legitimate interest in differentially
             punishing repeat offenders is compromised.

Id.




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[¶16.]         Given this reasoning, we reaffirm our holding in Moeller that the mere

unavailability of a transcript does not overcome the presumption of regularity. See

Moeller, 511 N.W.2d at 810. Absent other evidence, we presume that the court

adequately advised Woodard before accepting her guilty plea.

[¶17.]         Woodard does not rely solely on the unavailability of the transcript to

assert that her plea was invalid. She testified that the magistrate court did not

canvass her on the waiver of her Boykin rights and whether her plea was knowing

and voluntary. She alleges that the magistrate intended for the statement-of-rights

form to serve as the transcript and a substitute for the canvassing requirement. 3

Therefore, she asserts that here plea was constitutionally infirm.

[¶18.]         While the mere assertion that the defendant does not remember

receiving her rights is insufficient to overcome the presumption of regularity,

producing credible evidence can overcome the presumption. Id. One of the most

useful ways to overcome the presumption is to produce the transcript of the plea.

Id. at 811. But without a transcript, Woodard could only testify about what

transpired. Where no transcript exists, it is appropriate for the court to take

testimony from those who have appeared regularly in the plea-taking court. Id.

But no additional evidence was presented to the circuit court. 4 Even without other

testimony, however, the circuit court determined that Woodard did not overcome


3.       In light of the presumption of regularity in this case, we need not consider
         whether the statement-of-rights form sufficiently apprised Woodard of her
         constitutional rights so that her 2009 guilty plea was knowing and voluntary.

4.       Because Woodard was not represented by counsel when she entered the 2009
         plea, she could not present evidence from an attorney on whether she was
         adequately advised.

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the presumption of regularity. Therefore, it appears the circuit court simply did not

believe Woodard’s rendition of the events.

[¶19.]         On occasion, the only evidence that will be presented to the court on

the validity of a predicate conviction is the testimony of the defendant. See Parke,

506 U.S. at 32, 113 S. Ct. at 524. This might result from a combination of factors

such as the evidence going stale, the unavailability of transcripts, or the case being

decided in a different jurisdiction. See id. In fact, it is not uncommon for a

defendant to have superior access to evidence in a collateral attack on a predicate

conviction. Id. As a result, courts will need to balance the defendant’s testimony

against the presumption of regularity. This rule requires deference to the trial

judge, who had the opportunity to hear first-hand and to determine the credibility

of the defendant’s testimony. In this case, the circuit court ruled that Woodard did

not overcome the presumption of regularity. Without any additional evidence other

than Woodard’s testimony, we cannot conclude that this finding was clearly

erroneous. 5

[¶20.]         Because Woodard did not overcome the presumption of regularity that

attached to her 2009 guilty plea, we uphold the circuit court’s denial of Woodard’s

motion to strike her predicate conviction. 6



5.       Neither side argued whether the guilty plea was knowing and voluntary
         under the totality of the circumstances. Therefore, we do not reach this
         issue.

6.       For the reasons explained in Justice Zinter’s special writing in State v.
         Burkett, 2014 S.D. 38, ___ N.W.2d ___, and this Court’s decision in State v.
         Bilben, 2014 S.D. 24, ¶¶ 18-19, 846 N.W.2d 336, 340, we decline to adopt, at
         this time, the position the Chief Justice takes in his concurrence in result.

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[¶21.]       Affirmed.

[¶22.]       ZINTER and WILBUR, Justices, concur.

[¶23.]       GILBERTSON, Chief Justice, and SEVERSON, Justice, concur in

result.



GILBERTSON, Chief Justice (concurring in result).

[¶24.]       The Court’s analysis appropriately recognizes the State’s valid interest

in deterring habitual offenders and properly applies the presumption of regularity

to the facts of this case. However, I maintain my position in State v. Bilben, 2014

S.D. 24, 846 N.W.2d 336 and State v. Burkett, 2014 S.D. 38, ___ N.W.2d ___, that

defendants should no longer be given the unrestricted power to collaterally attack

the validity of predicate convictions used for sentence-enhancement purposes.

Accordingly, I concur in the result.

[¶25.]       SEVERSON, Justice, joins this special writing.




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