Oleson v. Young, #27037
| Decision Date | 26 August 2015 |
| Docket Number | #27037 |
| Court | South Dakota Supreme Court |
| Parties | TERRY LEE OLESON, Petitioner and Appellant, v. DARIN YOUNG, Warden, South Dakota State Penitentiary, Respondent and Appellee. |
#27037-a-LSW
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA
STEVEN R. BINGER
Sioux Falls, South Dakota
Attorney for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
Pierre, South Dakota
BETHANY L. ERICKSON
Assistant Attorney General
Sioux Falls, South Dakota
Attorneys for respondent
and appellee.
[¶1.] Terry Oleson pleaded guilty to first-degree rape. Oleson petitioned for habeas relief and argued that his plea was unconstitutional because the sentencing court did not properly advise him of his right against self-incrimination or that a guilty plea would waive that right. The habeas court found that Oleson was properly advised of his constitutional rights. We affirm.
[¶2.] Oleson was charged by indictment on November 29, 2007, with first-degree rape, third-degree rape, and sexual contact with a child under 16 years of age. SDCL 22-22-1(1), -1(3), -7. The State filed a part II habitual offender information. Oleson was arraigned by the Honorable Bradley G. Zell and was advised of his rights, including but not limited to, all three Boykin rights. During arraignment, the court specifically advised Oleson of his right against self-incrimination; but the court did not advise him that a plea of guilty would waive that right.
[¶3.] Oleson agreed to plead guilty to first-degree rape in exchange for the dismissal of the remaining charges and the part II information. The court canvassed Oleson at the change-of-plea hearing individually as to his statutory and constitutional rights. Notably, and for purposes of this appeal, the court did not canvass Oleson as to his right against self-incrimination; nor did the court advise him that a guilty plea would waive this right:
[¶4.] The sentencing court sentenced Oleson to 70 years in the South Dakota State Penitentiary. Oleson did not file a direct appeal of his conviction or sentence. About five years later, on January 20, 2012, Oleson filed a petition for habeas relief. Oleson alleged (1) that the sentencing court failed to advise him of his right against self-incrimination, (2) the court failed to establish the voluntariness of his plea, (3) the court failed to establish a factual basis for his plea, and (4) that he received ineffective assistance of counsel. The habeas court issued findings of fact, conclusions of law, and an incorporated memorandum opinion. The habeas court concluded that the record reflected that Oleson was aware at the timeof his guilty plea that his rights included the right against self-incrimination, and that he understood that he was waiving all of his constitutional and statutory rights including, but not limited to, all three Boykin rights. Consequently, the court denied Oleson's writ for habeas corpus relief. The habeas court granted Oleson's motion for certificate of probable cause, allowing him to appeal the issue of whether his guilty plea was a valid waiver of his privilege against self-incrimination. Oleson raises the following issue for our review:
Whether the habeas court erred in finding that Oleson's plea was constitutional.
[¶5.] Habeas corpus "is a collateral attack on a final judgment." Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923 (quoting Owens v. Russell, 2008 S.D. 3, ¶ 6, 726 N.W.2d 610, 614-15). Accordingly, "habeas corpus can be used only to review (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights." McDonough v. Weber, 2015 S.D. 1, ¶ 15, 859 N.W.2d 26, 34 (quoting Flute v. Class, 1997 S.D. 10, ¶ 8, 559 N.W.2d 554, 556).1 "The petitioner must 'prove he is entitled to relief by a preponderance of the evidence.'" Id. (quoting Vanden Hoek v.Weber, 2006 S.D. 102, ¶ 8, 724 N.W.2d 858, 861-62). "'Preponderance of the evidence' is defined as 'the greater weight of evidence.'" Pieper v. Pieper, 2013 S.D. 98, ¶ 22, 841 N.W.2d 781, 787 (quoting L.S. v. C.T., 2009 S.D. 2, ¶ 23, 760 N.W.2d 145, 151). "We review habeas factual findings under the clearly erroneous standard and legal conclusions under the de novo standard." McDonough, 2015 S.D. 1, ¶ 15, 859 N.W.2d at 34 (quoting Meinders v. Weber, 2000 S.D. 2, ¶ 5, 604 N.W.2d 248, 252).
[¶6.] When a criminal defendant enters a plea of guilty, the defendant waives three fundamental constitutional rights: "the privilege against compulsory self-incrimination," "the right to a trial by jury," and "the right to confront one's accusers." Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). The United States Supreme Court stated in Boykin that because a criminal defendant waives these three fundamental rights by pleading guilty, "an accused facing . . . 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." Id. at 243-44, 89 S. Ct. at 1712. The Supreme Court proclaimed that it "cannot presume a waiver of these three important federal rights from a silent record." Id., quoted in Rosen v. Weber, 2012 S.D. 15, ¶ 8, 810 N.W.2d 763, 765. Similarly, we have stressed that "it is critical not only that a defendant be advised of his rights relating to self-incrimination, trial by jury, and confrontation, but also that the defendantintentionally relinquish or abandon known rights." State v. Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d 117, 120 (quoting Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 924).
[¶7.] We have acknowledged, however, that "Boykin 'does not require the recitation of a formula by rote or the spelling out of every detail by the trial court[.]'" Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (quoting Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970)). "[S]pecific articulation of the Boykin rights by the trial judge is not an indispensable requisite for the record to establish a valid plea." Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23 (quoting State v. Moeller, 511 N.W.2d 803, 810 (S.D. 1994)). Rather, "if the record reflects that a Boykin canvassing occurred, we require only that the 'record in some manner shows the defendant entered his plea understandingly and voluntarily.'" State v. Bilben, 2014 S.D. 24, ¶ 11, 846 N.W.2d 336, 339 (quoting Quist v. Leapley, 486 N.W.2d 265, 267 (S.D. 1992)). We applied a "two-step approach"2 in Rosen and Monette to determine whether the record reflects that the defendant relinquished his rights. See id. ¶ 19, 846 N.W.2d at 340. We said in Rosen, "[T]he totality of the circumstances analysis is inapplicable when the record reflects that no canvassingregarding a Boykin waiver ever took place." 2012 S.D. 15, ¶ 11, 810 N.W.2d at 766 (emphasis added). See also Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926-27. "In the complete absence of a Boykin canvassing, a 'critical step' is missing and the reviewing court does 'not consider the additional factors under the totality of the circumstances analysis.'" Bilben, 2014 S.D. 24, ¶ 14, 846 N.W.2d at 339 (quoting Rosen, 2012 S.D. 79, ¶ 11, 810 N.W.2d at 766).
[¶8.] There is no dispute in this case that the sentencing court did not advise Oleson during the change-of-plea hearing of his right against self-incrimination or that by entering a guilty plea he would waive that right. The first question, then, under the two-step approach in Monette and Rosen is whether the absence of this advisement constitutes a "complete absence of Boykin canvassing" such that a "critical step" is missing. See id. Oleson argues that this case is analogous to our recent cases where we reversed and remanded for resentencing because we held that this first step was missing. See Bilben, 2014 S.D. 24, 846 N.W.2d 336; Rosen, 2012 S.D. 15, 810 N.W.2d 763; Monette, 2009 S.D. 77, 771 N.W.2d 920. However, our decisions in Monette, Rosen, and Bilben are factually distinguishable from the present case.
[¶9.] The issue in Monette was whether the plea entered was voluntary in the absence of "any inquiry into the voluntariness of a no contest plea, and thus no record of an effective waiver of federal constitutional rights[.]" Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d at 926 (emphasis added). "No inquiry was made by the sentencing court to determine if the plea was coerced or influenced by threats or promises." Id. ¶ 15. In addition, the "court failed to inquire if Monette waived hisconstitutional rights." Id. ¶ 9, 771 N.W.2d at 924. The absence of that "critical step" led us to conclude that no further inquiry into the totality of the circumstances was necessary to determine that the plea was...
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