Lodermeier v. State, s. 12281

• Court: Supreme Court of South Dakota
• Citation: 273 N.W.2d 163
• Docket Number: 12383,Nos. 12281,s. 12281
• Parties: Gene Vernal LODERMEIER, Petitioner and Appellant, v. The STATE of South Dakota, Respondent.
• Decision Date: 29 December 1978

Page 163

273 N.W.2d 163 Gene Vernal LODERMEIER, Petitioner and Appellant,
v.
The STATE of South Dakota, Respondent. Nos. 12281, 12383. Supreme Court of South Dakota. Argued Sept. 13, 1978.
Decided Dec. 29, 1978.

Page 164

Gale E. Fisher of May, Johnson, Doyle, Becker & Fisher, Sioux Falls, for petitioner and appellant.

John P. Guhin, Asst. Atty. Gen., Pierre, for respondent; William J. Janklow, Atty. Gen., Pierre, on brief.

HECK, Circuit Judge.

This case involves a petition for post-conviction relief from a conviction for third degree burglary which was based upon petitioner Lodermeier's plea of guilty. The trial court denied the petition and petitioner appeals. We reverse and remand.

Petitioner was charged with third degree burglary in Brown County in 1968. At his arraignment, petitioner entered a plea of guilty. The sentencing judge suspended imposition of sentence and placed petitioner on probation. After a motion hearing in 1971, the trial court revoked the order suspending imposition of sentence and sentenced petitioner to one year in the state penitentiary. This sentence, however, was suspended, and petitioner was again placed on probation. Petitioner was discharged from his probation in 1972 upon satisfactory completion of his term of probation.

On May 6, 1977, petitioner filed a petition for post-conviction relief claiming that his guilty plea was illegal and void because there was no affirmative showing on the record that the plea was intelligent and voluntary or that petitioner intelligently waived his constitutional rights with respect to the following: (1) his privilege against compulsory self-incrimination; (2) his right to be confronted with the witnesses against him; (3) his right to have compulsory process for obtaining witnesses in his favor; and (4) his right to be advised that a guilty plea constitutes a waiver of his constitutional presumption of innocence. A hearing was held on this petition for post-conviction relief, and the trial court dismissed the petition.

The record indicates that at the time of arraignment petitioner was not advised by the trial court of his privilege against compulsory self-incrimination, or his right to be confronted with the witnesses against him, or his right to have compulsory process served for obtaining witnesses in his favor. At the arraignment, the trial court was informed by counsel that petitioner had been advised of his rights. Upon such information, the trial court advised petitioner of the charge against him, of his right to trial by jury, and of the maximum penalty which could be imposed upon his plea of guilty. The trial court concluded that petitioner was represented by competent counsel who informed him of his constitutional and statutory rights, that petitioner had shown an understanding of his rights, that petitioner understood the nature and cause of the accusation against him and the maximum possible sentence, and that petitioner was acting of his own free will and accord without duress.

We have said that in order for a conviction based upon a guilty plea to stand the plea must be intelligent and voluntary. Such a plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having that understanding, waives these rights by a plea of guilty. State v. Holmes, 1978, S.D., 270 N.W.2d 51, citing Boykin v. Alabama,

Page 165

1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Nachtigall v. Erickson, 1970, 85 S.D. 122, 178 N.W.2d 198; State v. Doherty, 1978, S.D., 261 N.W.2d 677.

Our statutes covering arraignments and pleas prescribe the duty of the trial court prior...