Application of Garritsen, 14721

• Citation: 376 N.W.2d 575
• Decision Date: 11 September 1985
• Docket Number: No. 14721,14721
• Parties: In the Matter of the Application of David Wayne GARRITSEN for Writ of Habeas Corpus. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 575

376 N.W.2d 575

In the Matter of the Application of David Wayne GARRITSEN

for Writ of Habeas Corpus.

No. 14721.

Supreme Court of South Dakota.

Considered on Briefs Sept. 11, 1985.

Decided Nov. 13, 1985.

Rita Haverly of Minnehaha County Public Defender's Office, Sioux Falls, for appellant Garritsen.

Thomas H. Harmon, Asst. Atty. Gen., Pierre, for appellee State of South Dakota; Mark V. Meierhenry, Atty. Gen., on brief.

HENDERSON, Justice.

This is an appeal from an Order denying an Application for Writ of Habeas Corpus. We reverse and remand for resentencing.

On January 27, 1970, David W. Garritsen (Garritsen), appellant-applicant herein, and three other codefendants, were arraigned in Sioux Falls Municipal Court on charges of third-degree burglary. During this hearing, the complaint charging the crime of third-degree burglary was read to the defendants and the Municipal Court explained the following: (1) the right to counsel and the appointment thereof if indigent; (2) the right to a preliminary hearing; (3) the privilege against self-incrimination; (4) the right to be advised of the nature of the complaint; (5) the right to a speedy and public jury trial in Minnehaha County; and (6) the right to confront and compel witnesses. After the explanation of each of these, Garritsen stated that he understood. Garritsen was appointed counsel on January 28, 1970, and in February of that same year, his case was bound over to circuit court.

On March 10, 1970, Garritsen was again before the Municipal Court for arraignment. This time Garritsen was charged with arson based on an incident arising in the county jail while he was awaiting trial on the burglary charges. At this time, the Municipal Court again explained the rights outlined above to Garritsen and Garritsen stated that he understood.

On May 6, 1970, Garritsen was arraigned on the burglary charge in circuit court. During this hearing, the Information was read and a copy thereof furnished to counsel. The circuit court explained the elements of third-degree burglary, Garritsen stated he understood, and counsel said he had also explained the charges and was satisfied that Garritsen understood. The circuit court further explained the right to a speedy and public trial; the right to an attorney and the appointment thereof if indigent; the right to confront and compel witnesses and that "pleas of guilty at this time ... would, of course, waive all those rights to trial." Garritsen, in response, stated that he understood and pleaded not guilty. Moments later, however, Garritsen changed his plea to guilty. The circuit court asked Garritsen if he understood the things previously mentioned and their importance and Garritsen stated that he understood and that he did commit the burglary. At no time, however, did the circuit court explain to or advise Garritsen of the privilege against self-incrimination. The Deputy State's Attorney recommended a sentence of 18 months, Garritsen said he had nothing further to say, that he was ready for sentencing and that no legal cause existed for not pronouncing sentence at that time. Thereupon, the circuit court pronounced sentence of 18 months in the South Dakota State Penitentiary. The transcripts of the arraignments held on January 27 and March 10, 1970, were in the court file during this proceeding and Garritsen's guilty plea was part of a plea bargain in which the arson charge was dropped.

In 1980, Garritsen's third-degree burglary conviction was used to support a Supplemental Information for Habitual Offender. After being found guilty of being a habitual offender, Garritsen was sentenced to two concurrent life sentences on two counts of rape.

In June 1984, Garritsen filed an Application for Writ of Habeas Corpus contending his 1970 burglary guilty plea was not voluntary. The circuit court denied this application and Garritsen now appeals.

Garritsen raises several issues addressing the propriety of his 1970 guilty plea. First, Garritsen contends that his guilty plea was not voluntary because the circuit court did not advise him of his privilege against compulsory self-incrimination. Second, Garritsen contends that his guilty plea was not voluntary because the circuit court did not advise him of the consequences of his plea, i.e., he was not advised of the maximum penalty. Third, Garritsen contends that under the totality of the circumstances, his guilty plea was not voluntary; and, fourth, Garritsen contends the circuit court erred by immediately imposing sentence and not waiting forty-eight hours. To the extent the resolution of the first issue is dispositive of this case, we deem the adjudication of the other issues presented to be unnecessary.

A guilty plea is not valid unless the record in some manner indicates that the defendant freely and intelligently waived his constitutional right to confront and cross-examine witnesses against him, waived his constitutional right to trial by jury, and waived his constitutional privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-80 (1969). In order for the record to so indicate a free and intelligent waiver of these constitutional rights, the circuit court must normally canvass the matter with the defendant prior to accepting a guilty plea. Boykin; Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970). "A silent record is not sufficient." Nachtigall, id.

Since the rendition of Boykin in June 1969, it has become the well-settled constitutional law of this state, that in addition to the canvassing of the above Boykin rights, the record must indicate that the pleading defendant understood the nature and consequences of his plea. Stacey v. State, 349 N.W.2d 439, 441 (S.D.1984); State v. Holmes, 270 N.W.2d 51, 53 (S.D.1978); Nachtigall. The record must indicate that the defendant was informed of his right to a jury trial in the county in which the crime was committed. Roseland v. State, 334 N.W.2d 43, 45 (S.D.1983); State v. Sutton, 317 N.W.2d 414, 415 (S.D.1982). The record must also indicate a factual basis for a guilty plea before it is accepted. Wabasha v. State, 292 N.W.2d 340, 342 (S.D.1980); Spirit Track v. State, 272 N.W.2d 803, 805 (S.D.1978); State v. Doherty, 261 N.W.2d 677, 682 (S.D.1978). The circuit court cannot assume counsel has so advised the defendant and the record of the preliminary hearing cannot substitute for the circuit court's duty to actively participate by informing and canvassing the defendant, so as to make certain he understands and knows his rights and the nature and consequences of his plea. Sutton, 317 N.W.2d at 415-16. "The trial 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 a guilty plea is accepted." Id....