Application of Dutro

• Decision Date: 16 February 1968
• Docket Number: No. 10476,10476
• Citation: 156 N.W.2d 771,83 S.D. 168
• Parties: Application of Frank DUTRO for a Writ of Habeas Corpus.
• Court: South Dakota Supreme Court

Page 771

156 N.W.2d 771

83 S.D. 168

Application of Frank DUTRO for a Writ of Habeas Corpus.

No. 10476.

Supreme Court of South Dakota.

Feb. 16, 1968.

Davenport, Evans, Hurwitz & Smith, Carleton R. Hoy, Sioux Falls, for appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.

HOMEYER, Judge.

Relator Frank Dutro appeals from a judgment of the Circuit Court of Minnehaha County denying his application for a writ of habeas corpus.

The record shows appellant was arrested and taken into custody by the sheriff of Yankton County and placed in the county jail on Saturday, September 4, 1965. On September 8th the sheriff filed a complaint in the municipal court charging appellant with having committed the crime of burglary in the third degree on September 4, 1965. A warrant of arrest was issued and returned on September 9th. The record shows that on the same day appellant appeared before the Municipal Judge, the complaint was read to him, he was informed of his constitutional rights, he waived preliminary hearing, was bound over to the next term of circuit court, and bail was fixed at $1,000.

An information was filed in circuit court on September 11th and on September 13th appellant appeared before the circuit court and was told that the information charging him with third degree burglary had been filed. He was asked if he had counsel and he said he was unable to hire counsel. He indicated a preference and the court appointed the counsel he requested.

On September 20th appellant was arraigned in circuit court and with his court appointed counsel present, the information was read in open court and copies furnished to appellant and his counsel. The court asked counsel if they were ready for a plea and he answered in the affirmative. The court then asked: 'Q. Frank Dutro to this information that has just been read in your hearing what do you say, 'guilty or not guilty?" Mr. Dutro: 'Guilty'. Statements were then made by the State's Attorney and by appellant's counsel and appellant was asked if he wished to say anything in his behalf and he responded in the negative. Appellant was then sentenced to a term of five years in the State Penitentiary. There has been no appeal from the judgment and sentence.

Appellant contends his constitutional rights, both federal and state, were denied him (1) because of the unreasonable delay between his incarceration and court appearance, and (2) the sentencing court did not advise him of his constitutional rights before he entered his plea of guilty.

SDC 1960 Supp. 34.1619 provides: 'The defendant must, in all cases, be taken before the magistrate without unnecessary delay.' The record discloses a delay of five days between appellant's arrest and his appearance before a magistrate and respondent attempts to excuse it because this was the Labor Day weekend. ¹ There is no logic in this excuse. However, even conceding an inexcusable delay, this was not a ground for the relief sought by appellant.

Illegal detention is a nonconstitutional and nonjurisdictional defect, and an irregularity in criminal proceedings, which is ordinarily waived by a voluntary plea of guilty. United States v. Morin, D.C., 163 F.Supp. 941, 944, aff'd 265 F.2d 241, 3 Cir.; Bradford v. Lefkowitz, D.C., 240 F.Supp. 969. See Brown v. Allen, 344 U.S. 443, 476, 73 S.Ct. 397, 417, 97 L.Ed. 469; Stein v. People of State of New York, 346 U.S. 156, 73 S.Ct. 1077, 97 L.Ed. 1522. In Brown the court said: 'If the delay in the arraignment of petitioner was greater than that which might be tolerated in a federal criminal proceeding, due process was not violated.' The rule is stated in 22 C.J.S. Criminal Law § 423(2), p. 1180:

'The mere fact that accused was illegally detained without being taken before a committing authority with reasonable promptness does not render his plea of guilty involuntary or invalid or deprive the court of jurisdiction to accept his plea.'

Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Fikes v. State of Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246, are cited and relied upon by appellant. Each of those cases involved convictions obtained after trial. Confessions were secured following extended illegal detention and prolonged interrogation by law enforcement officials and used in procuring convictions. No such situation is now before us for consideration.

With reference to appellant's second contention, statutes in this state permit a defendant charged with a crime and held to answer who desires to plead guilty to be promptly arraigned so that he may enter his plea of guilty. SDC 1960 Supp. 34.2301, 34.2302. ² In a recent case, State ex rel. Pekarek v. Erickson, S.D., 155 N.W.2d 313, the identical question here raised by appellant was considered and passed upon in a habeas corpus proceeding. The court disposed of the appeal by holding failure to follow the procedures set forth in the statute constituted an irregularity which did not void the judgment and could not be raised by habeas corpus. The court said: 'We are here concerned only with the question whether applicant is restrained of his liberty by judgment of the court acting without jurisdiction or whether any of appellant's constitutional rights have been violated.'

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