Crowe v. State

• Decision Date: 01 February 1972
• Docket Number: No. 10871,10871
• Citation: 194 N.W.2d 234,86 S.D. 264
• Parties: Percy CROWE, Petitioner and Appellant, v. STATE of South Dakota, Respondent.
• Court: South Dakota Supreme Court

Page 234

194 N.W.2d 234

86 S.D. 264

Percy CROWE, Petitioner and Appellant, v.STATE of South Dakota, Respondent.

No. 10871.

Supreme Court of South Dakota.

Feb. 1, 1972.

William J. Janklow, Francis C. Lynch, Jr., Rosebud, for petitioner and appellant.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, Larry F. Hosmer, State's Atty., Yankton, for respondent.

WOLLMAN, Judge.

This is an appeal by petitioner from a judgment denying his petition for postconviction relief under the provisions of SDCL 23--52.

Petitioner was charged with the crime of first degree rape in Yankton County South Dakota, on June 22, 1966.He was arrested on June 23, 1966, appeared the following day in municipal court in Yankton and was committed to jail upon his failure to post bond.

Petitioner appeared before Circuit Judge C. C. Puckett on June 27, 1966, at which time attorney Louis French of Yankton was appointed to represent petitioner.

On July 12, 1966, petitioner waived preliminary hearing in municipal court and was bound over to circuit court for trial.

On July 16, 1966, petitioner was arraigned before Judge Puckett and entered a plea of guilty to the first degree rape charge.The state's attorney and defense counsel waived presentence investigation and report.The state's attorney introduced petitioner's FBI 'rap' sheet and a picture of the victim of the crime.Petitioner was then sentenced to a term of 40 years in the South Dakota State Penitentiary.Additional facts will be discussed in connection with the several questions raised by petitioner.

Petitioner contends that because he was not informed of the consequences of his plea his guilty plea was involuntary and unintelligent and thus was obtained in violation of his constitutional rights.

The transcript of the arraignment of July 16, 1966 indicates that Judge Puckett advised petitioner that he had a right to a jury trial, that he had the right to be free on bond until the next term of court, that he had the right to be confronted by the witnesses against him and that he had the right to have witnesses called on his behalf at state expense.Petitioner was not advised by the court of his constitutional privilege against compulsory self-incrimination nor was he advised by the court of the minimum and maximum penalties for the crime of first degree rape.

It was settled in Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 that in order to uphold a guilty plea the record must clearly show that the defendant knowingly and voluntarily waived his constitutional right of the privilege against compulsory self-incrimination, the right to trial by jury and the right to confront his accusers.In effect, Boykin held that Rule 11 of the Federal Rules of Criminal Procedure is applicable to the states as a matter of federal constitutional due process and that the record must show that the defendant had an understanding of the nature and consequences of his plea before a guilty plea can be sustained.

This court has held that Boykin should be given prospective application and that it is applicable only to guilty pleas entered after June 2, 1969.Nachtigall v. Erickson, S.D., 178 N.W.2d 198;Langdeau v. State, S.D., 179 N.W.2d 121.We must, then, review the facts in the light of the totality of the circumstances rule applicable to pre-Boykin cases.This court has held that where a defendant appears with counsel and pleads guilty to a criminal charge it is presumed that he has been informed of his constitutional rights by his counsel and it is not necessary for the court to advise him of such rights before accepting a guilty plea.SeeApplication of Dutro, 83 S.D. 168, 156 N.W.2d 771;Nachtigall v. Erickson, supra;State v. Brech, 84 S.D. 177, 169 N.W.2d 242.

The record of the arraignment reveals the following exchange between the court and petitioner:

'Q.You were before the court a couple of weeks ago for the appointment of an attorney since you have been arrested on a charge of Rape in the First Degree.I appointed Mr. French as your attorney.I presume Mr. French has advised you of your rights to a trial by jury, if you wish, You understand that?

'A.Yes sir.

'Q.You're entitled to be out on bond until the next term of court in this county which will be in September, you're entitled to be faced by the witnesses against you, if you wish them.You are entitled to have any of your own witnesses for you, all this at the State's expense.You understand.Mr. French has explained this to you I take it.You know what you are doing this morning.

'A.Yes.

'Q.This is of your own free will?

'A.Yes sir.'

After the information was read in open court by the state's attorney, the defense attorney stated that he and petitioner were ready to enter a plea, whereupon petitioner pleaded guilty to the charge of first degree rape set forth in the information.

Petitioner is an American Indian who was 49 years old at the time of his arrest in 1966.He is able to read and write the English language.His formal education ended during the 8th grade of public school.His Federal Bureau of Investigation identification record, which will be discussed in greater detail later, reveals that petitioner's first contact with the judicial process occurred in the fall of 1937 when he received a ten-year federal penitentiary sentence on a charge of rape on an Indian reservation.Thereafter, petitioner was at various times charged with grand larceny, breaking jail, fourth degree burglary and escape from jail.He also has a record of numerous charges of public intoxication.Thus it is fair to say that when petitioner appeared in circuit court on July 16, 1966, he was not totally unfamiliar with the processes of the criminal law.

Petitioner testified at the post-conviction hearing that Mr. French told him during their second conference how serious the crime was that petitioner was charged with.Mr. French, who died prior to the evidentiary hearing on the post-conviction petition, was an experienced attorney in Yankton, South Dakota.He had served as Yankton County State's Attorney for four years and had represented numerous defendants in criminal trials in his capacity as a private attorney.Judge Puckett testified at the post-conviction hearing that:

'Well, I was advised of the charge, the serious charge which had been filed against Percy Crowe and I felt that I wanted him to be represented by competent counsel and Mr. French was the man; he was an experienced lawyer, had been State's Attorney for four years, and had also defendant many other criminals when he was not State's Attorney, so I appointed Mr. French because I wanted Mr. Crowe to have competent counsel.'

In view of the fact that petitioner had had considerable experience with courts and criminal procedures prior to the offense in question, including a prior conviction on a charge of rape which resulted in a ten-year penitentiary sentence, and in view of the fact that he was represented by competent, experienced counsel who, by petitioner's own testimony, had informed him how serious the charge against him was, we cannot say that the circumstances attendant upon petitioner's guilty plea were such as to render petitioner's plea unintelligent and involuntary.Notwithstanding the inexplicable failure of the trial court to advise petitioner of the minimum and maximum penalties for the charge against him and of his privilege against self-incrimination, we do not believe that petitioner has carried his burden of proof of showing that his guilty plea was involuntary and that his constitutional rights were violated.Nachtigall v. Erickson, supra;State v. Brech, supra;McMann v. Richardson, 1970, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763;Parker v. North Carolina, 1970, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785;Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747.

Petitioner contends that he was deprived of his constitutional right to the effective assistance of counsel because his court-appointed counsel failed to provide more than mere perfunctory and casual representation.

This court has held that:

'The constitutional guaranty of the right to defend assisted by counsel means adequate and effective assistance and the trial court has the duty to appoint competent counsel to represent and advise an indigent accused.A mere perfunctory and casual representation does not satisfy the constitutional guaranty.* * *

'The right of an accused to the services of legal counsel envisages that his attorney will investigate and consider possible defenses and, if none, other procedures, and exercise his good faith judgment thereon.It does not contemplate that an accused may take charge of the case after an attorney has been appointed, or dictate its course, or make counsel's educated judgment the pawn of an unreasonable and obdurate malefactor.'State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715.

Petitioner alleges that he was denied the effective assistance of counsel in four different respects.First, he alleges that the time period between counsel's entry in the case and petitioner's plea did not offer adequate opportunity for investigation and that the limited opportunity presented was not grasped.Petitioner's attorney was appointed by Judge Puckett on June 27, 1966, and, according to petitioner, did not visit petitioner until three or four days after the appointment.Petitioner argues that the time period between Mr. French's initial visit and the date of the plea provided an opportunity for only a very limited investigation and preparation of a defense.¹

It should be noted that this case does not involve a situation where counsel was appointed within a relatively short time before the date of trial.Even in such cases, late appointment does not necessarily compel a finding that a defendant was denied the effective assistance of counsel.SeeState v. Watkins, S.D., 187...