Crew v. Nelson

• Decision Date: 03 April 1974
• Docket Number: No. 11273--,11273--
• Citation: 88 S.D. 162,216 N.W.2d 565
• Parties: Michael B. CREW, on behalf of William J. Carr, Petitioner, v. Arnold N. NELSON, Sheriff of Clay County, South Dakota, Respondent. a--FGD.
• Court: South Dakota Supreme Court

Page 565

216 N.W.2d 565

88 S.D. 162

Michael B. CREW, on behalf of William J. Carr, Petitioner, v. Arnold N. NELSON, Sheriff of Clay County, South Dakota Respondent.

No. 11273--a--FGD.

Supreme Court of South Dakota.

April 3, 1974.

Michael B. Crew of Crew & Crew, Vermillion, for petitioner.

Neil Carsrud, Asst. Atty. Gen., Pierre, for respondent; Kermit A. Sande, Atty. Gen., Pierre, Arthur L. Rusch, Clay County State's Atty., Vermillion, on the brief.

DUNN, Justice.

Appellant pled guilty to the misdemeanor charge of possession of marijuana, less than one ounce, in the District County Court for Clay County on January 18, 1973. He was sentenced to serve 15 days in the county jail and to pay a fine of $100 plus costs. No court reporter was present and a bare skeleton record was kept of the arraignment and sentencing by a deputy clerk of courts. Appellant then filed an application for a writ of habeas corpus in circuit court, which was heard on January 25, 1973. Following the hearing, appellant was released on $250 bail. After submission of briefs, the circuit court quashed the writ and this appeal is taken from the order quashing the writ.

SDCL 23--52--3 replaces all other remedies, including habeas corpus, which were previously available to a defendant challenging the validity of his conviction or sentence. The appellant's petition, while nominally seeking a writ of habeas corpus, does not refer to any statute and fulfills all of the requirements of the post-conviction statute. The circuit court took jurisdiction and held a post-conviction hearing; following which it 'quashed the writ of habeas corpus'. We will treat the matter here as a denial of post-conviction relief as no one has been prejudiced by the use of the wrong words in seeking the right remedy.

The scanty record kept of the proceeding in District County Court failed to show whether appellant had been advised of his basic constitutional rights as outlined in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and in this court's decision in Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198. At the habeas corpus hearing, however, evidence was permitted from the District County Judge outlining the explanation of constitutional rights given to the appellant at the original arraignment which was held just one week earlier. This statement of the District County Judge was not refuted by the appellant.

The main contention here is that Boykin requires that the record of a defendant's guilty plea in a misdemeanor case as well as in a felony case must affirmatively show that there was a free and intelligent waiver of the basic constitutional rights of self-incrimination, confrontation of witnesses and jury trial, and an understanding of the nature and consequences of the plea before it can be sustained. The record is deficient unless the evidence produced at the post-conviction hearing can be used to establish that the accused was advised of his constitutional rights at the time of entering his plea and that his plea was voluntarily and intelligently made.

We first conclude that the Boykin standards of arraignment apply generally to misdemeanor cases. A misdemeanor defendant has the same rights to trial, to confronting his accusers, and to his privilege against self-incrimination. Thus we see no rational basis for making a distinction between a felony and a misdemeanor case.

In Merrill v. State, 1973, S.D., 206 N.W.2d 828, this Court joined other jurisdictions in holding that 'Boykin does not require the record to show an...