Nachtigall v. Erickson

Decision Date16 June 1970
Docket NumberNo. 10786,10786
Citation85 S.D. 122,178 N.W.2d 198
PartiesJohn NACHTIGALL, Petitioner, v. Don R. ERICKSON, as the duly appointed, qualified and acting Warden of the South Dakota State Penitentiary, Respondent.
CourtSouth Dakota Supreme Court

David V. Vrooman, Sioux Falls, for petitioner.

Gordon Mydland, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for respondent.

HOMEYER, Judge.

On May 15, 1968, the petitioner, John Nachtigall, pleaded guilty in the circuit court of Minnehaha County to two counts of indecent molestation of a child, SDCL 22--22--7, and attempt to escape, SDCL 24--12--3. He was sentenced to the state penitentiary for a term of five years on each count of indecent molestation and to a term of one year in the county jail for attempted escape, all sentences to run concurrently.

In this habeas corpus proceeding petitioner contends that his guilty plea to the indecent molestation counts was not voluntary and asks that the judgment and sentence be reversed, his plea vacated, and that he be rearraigned.

The gist of petitioner's argument is that his court-appointed counsel, Robert L. Jones, informed him that the state's attorney would recommend a sentence of 18 months and Jones would recommend a sentence not exceeding one year; that petitioner felt the maximum sentence he would receive was 18 months and he was not told prior to his guilty plea and sentencing that the court had not been so informed or agreed to such sentence. If petitioner had so known he now says he would not have pleaded guilty. We hold the trial court did not err when it quashed petitioner's writ of habeas corpus.

Before proceeding with a discussion of petitioner's claims we deem it appropriate to review our decisions on guilty pleas and recent revelopments of the law in this area. Since 1913 South Dakota statutes have defined the duty of the judge at the time of arraignment of an accused before permitting a guilty plea. 1

In State v. Sewell, 69 S.D. 494, 12 N.W.2d 198, the court in discussing the statute said where a defendant unaided by counsel enters a guilty plea it should not be accepted without 'painstaking explanation of the rights afforded the accused by law, and of the extreme consequences his plea may entail' and ascertainment that he 'is acting with volition and understanding * * *.' In State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731, in a habeas corpus proceeding, we held a trial court was without jurisdiction to accept a guilty plea without advising the accused of his constitutional rights, Constitution of South Dakota, Art. VI, § 7, where he was not represented by counsel. See also State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743.

On the other hand, where the accused was represented by counsel in proceedings before a guilty plea was entered and had consulted freely with his attorney 'about the charges against him and his constitutional rights' a failure of the sentencing judge to follow the statute or advise him of his constitutional rights did not make the plea of guilty involuntary or deny him due process. State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441. See also State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W.2d 832 and State ex rel. Pekarek v. Erickson, 83 S.D. 79, 155 N.W.2d 313.

In Application of Dutro, 83 S.D. 168, 156 N.W.2d 771, a habeas corpus proceeding, we distinguished State ex rel. Henning v. Jameson, supra, and held that where a defendant appeared with counsel it is presumed that the defendant had been informed of his constitutional rights by his counsel and it is not necessary for the court to advise him of such rights before the guilty plea is entered. We there said the defendant 'freely and voluntarily in the presence of competent counsel admitted his guilt. This he was privileged to do. * * * There is no showing whatsoever that the plea of guilty was induced by fear, misrepresentation, trickery, deception, duress or coercion. If it was established that a plea was so induced, it would be void as a violation of due process and would undermine the jurisdiction of the court and be open to collateral attack.'

In a recent case, Boykin v. Alabama (June 2, 1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, 2 the United States Supreme Court said that a plea of guilty is more than an admission of conduct. When properly accepted, it is a conviction and nothing remains but to give judgment and determine punishment. The opinion of the court clearly holds that it is error to accept a guilty plea without an affirmative showing that it was intelligent and voluntary. If it is not intelligent and voluntary it has been obtained in violation of due process and is void. For a guilty plea to be intelligent consideration must be given to the fact that a waiver takes place when it is entered. The court's opinion states, 395 U.S. 243, 244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274:

'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. We cannot presume a waiver of these three important federal rights from a silent record.

'What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought * * * and forestalls the spin-off of collateral proceedings that seek to probe murky memories.'

The court's thinking is further manifested by footnote 7 in Boykin where it quotes with approval advice given the bench and bar of Pennsylvania in Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196, at page 197:

'A majority of criminal convictions are obtained after a plea of guilty. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.'

In analyzing Boykin, the California court in In re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. Rptr. 577, 584, 460 P.2d 449, 456, wrote:

'This does not require the recitation of a formula by rote or the spelling out of every detail by the trial court. It does mean that the record must contain on its face direct evidence that the accused was aware, or made aware, of his right to confrontation, to a jury trial, and against self-incrimination, as well as the nature of the charge and the consequences of his plea. Each must be enumerated and responses elicited from the person of the defendant. Because mere inference is no longer sufficient, the presence of an attorney cannot alone satisfy these requirements; as noted, the defendant in Boykin was represented by counsel.'

For many years South Dakota courts by virtue of the statute and our decisions interpreting the statute have been to a large extent conforming to many of the requirements of Boykin in accepting guilty pleas. Nevertheless, it is now settled as a principle of the constitutional law that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin--self-incrimination, confrontation and jury trial--and an understanding of the nature and consequences of the plea. South Dakota judges can no longer assume that an accused represented by counsel has been informed of such matters and the judge must actively participate by 'canvassing the matter with the accused'. A silent record is not sufficient.

In our opinion Boykin should be given prospective application only; i.e., applicable to guilty pleas entered after June 2, 1969. Before Boykin the United States Supreme Court in Halliday v. United States, (May 5, 1969) 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, held that McCarthy v. United States, supra, decided on April 2, 1969, should be applied prospectively only. Reasoning that Boykin merely made McCarthy applicable to the states, most courts have given Boykin prospective application citing Halliday as precedent. See In re Tahl, supra; Ernst v. State, supra; Crego v. State, Mo., 447 S.W.2d 550; State v. Griswold, 105 Ariz. 1, 457 P.2d 331; Montanye v. State, 7 Md.App. 627, 256 A.2d 706; Child v. State, Me., 253 A.2d 691; Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923; Hall v. Alabama, 45 Ala.App. 252, 228 So.2d 863.

We now turn to petitioner's contention that his guilty plea was involuntary. To determine this question the trial court conducted an evidentiary hearing. This was in accord with suggested practice in Halliday v. United States, supra, where the court indicated that in post-conviction proceedings the voluntariness of a guilty plea made before Boykin could be determined. At this hearing petitioner testified, as did Jones, and the deputy state's attorney who was in charge of the prosecution. Files and transcripts of the proceedings incident to the guilty pleas were also received as evidence.

When the guilty plea was entered the accused and his lawyer and the deputy state's attorney were present. Also present was a second court-appointed lawyer who represented the defendant on a pending charge of obtaining money under false pretenses. The...

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