Petrilli v. Leapley

• Decision Date: 22 April 1992
• Docket Number: No. 17646,17646
• Parties: Steven Wayne PETRILLI, Sr., Petitioner and Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 79

491 N.W.2d 79

Steven Wayne PETRILLI, Sr., Petitioner and Appellant, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary,

Appellee.

No. 17646.

Supreme Court of South Dakota.

Considered on Briefs April 22, 1992.

Decided Sept. 23, 1992.

N. Dean Nasser, Jr. and Timothy J. Langley of Nasser Law Office, P.C., Sioux Falls, for petitioner and appellant.

Mark Barnett, Atty. Gen., Scott Bogue, Asst. Atty. Gen., Pierre, for appellee.

WUEST, Justice.

Wayne Petrilli, Sr. (Petrilli) appeals from the circuit court's Order denying his Application for Writ of Habeas Corpus. He raises four issues on appeal. We have combined two issues and will discuss the following three issues:

(1) Whether the felony conviction underlying Petrilli's conviction for being an habitual offender was constitutionally infirm because the court failed to establish a factual basis for the guilty plea.

(2) Whether the prior felony underlying Petrilli's conviction for being an habitual offender was improperly considered for purposes of enhancing his punishment.

(3) Whether Petrilli was denied effective assistance of counsel.

We affirm.

FACTS

On February 4, 1988, a Minnehaha County Grand Jury indicted Petrilli for the offenses of attempted premeditated murder in the first degree, attempted felony murder, robbery in the first degree and aggravated assault. Petrilli was represented by an attorney with the Minnehaha County Public Defender's Office. ¹ As part of a plea bargain, wherein Petrilli agreed to cooperate in the State's prosecution of his co-defendant, Petrilli pled guilty to aggravated assault. In return, the State agreed to recommend a fifteen year sentence. Initially there was confusion whether this was intended to be a "cap" or merely a recommendation. Petrilli's defense counsel agreed it was only a recommendation.

The circuit court also accepted Petrilli's guilty plea to being an habitual offender. He had been convicted eight years earlier of being an accessory to a burglary in California. Aggravated assault is a class three felony, the maximum punishment is fifteen years and a $15,000 fine. Petrilli's admission to being an habitual offender enhanced the maximum possible punishment to twenty-five years and a $25,000 fine.

As a result of Petrilli's pleas, the circuit court sentenced him to twenty years. At that time, Petrilli had not yet testified against his co-defendant. The co-defendant later pled guilty. Therefore, at the court's invitation, Petrilli applied for a sentence reduction, and the sentence was reduced to fifteen years.

The habitual offender charge arose from a 1980 California conviction as an accessory to burglary. That conviction resulted from Petrilli pleading guilty as part of a plea bargain. Petrilli pled guilty to being an accessory to the offense charged in the second count of the Information against him. Count two charged him and two co-defendants with burglary. Petrilli was assisted by counsel during the California proceedings. Before accepting the plea, the court received affirmative responses that Petrilli understood he was waiving his right to trial, to avoid self-incrimination, and to confront the witnesses against him.

When Petrilli's South Dakota trial counsel was asked whether, based on his investigation, he was satisfied the California conviction was a felony in South Dakota, counsel answered, "Yes, sir. It would be the same as our accessory statute."

SCOPE OF REVIEW

We note initially, on habeas corpus, the petitioner has the burden of proof. Alexander v. Solem, 383 N.W.2d 486, 489 (S.D.1986); Spirit Track v. State, 272 N.W.2d 803, 804 (S.D.1978). "Since habeas corpus is in the nature of a collateral attack upon a final judgment, the scope of review is limited." Gross v. Solem, 446 N.W.2d 49, 50 (S.D.1989). Accord Everitt v. Solem, 412 N.W.2d 119, 120 (S.D.1987); Goodroad v. Solem, 406 N.W.2d 141, 142 (S.D.1987); State v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964).

Habeas corpus can be used only to review (1) whether the court had 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.

Gross, 446 N.W.2d at 50. Accord O'Conner v. Leapley, 488 N.W.2d 421, 422-423 (S.D.1992); Goodroad, 406 N.W.2d at 144; Everitt, 412 N.W.2d at 121 (citing Logan v. Solem, 406 N.W.2d 714 (S.D.1987)); Erickson, 129 N.W.2d at 715. Habeas corpus is not a substitute for direct review. O'Conner, at 422; Goodroad, 406 N.W.2d at 143-44.

I. FACTUAL BASIS FOR PRIOR GUILTY PLEA

Petrilli pled guilty to aiding and abetting a burglary in violation of sections 459 and 32 of the California Penal Code. He argues the guilty plea was constitutionally defective because the California court made no record of a factual basis for accepting the plea. We disagree.

"In Goodroad, 406 N.W.2d at 145, we held that the factual predicate of a guilty plea could not be raised in a habeas corpus review[.]" Gross, 446 N.W.2d at 51. In Everitt, we explained:

Errors and irregularities in the proceedings of a court having jurisdiction of the person, subject matter and power to decide questions of law, are not reviewable though they may have been grounds for reversal on direct appeal. Jurisdiction is the power to hear and determine a controversy and to render judgment in accord with law. Excepting those actions in which the court may lose jurisdiction by a denial of due process, [citation omitted] this power includes the power to decide wrongly as well as rightly, to render an erroneous judgment as well as a correct one.... If error occur the remedy is by appeal.

Everitt, 412 N.W.2d at 121 (quoting Goodroad, 406 N.W.2d at 143).

The requirement that the trial court determine that there is a factual basis for accepting the plea is statutory. SDCL 23A-7-14; Goodroad supra; Logan, supra; State v. King, 400 N.W.2d 878 (S.D.1987). Failure of the trial court to comply with SDCL 23A-7-14 may be grounds for appeal, but it does not reach the constitutional or jurisdictional proportions necessary to bring the question within the purview of habeas corpus. In Goodroad, supra, 406 N.W.2d at 143, we said, " 'Habeas corpus cannot be utilized as a substitute for an appeal' [citations omitted]. Habeas corpus is not the proper remedy to correct irregular procedures, rather, in the context of post-conviction attacks on the conviction itself, habeas corpus reaches only jurisdictional error."

Id. (Emphasis added.) Accord Gross, 446 N.W.2d at 51-52; Podoll v. Solem, 408 N.W.2d 759 (S.D.1987); W. LaFave, J. Israel, Criminal Procedure Sec. 20.4, at 653 (1984). But see Spirit Track, 272 N.W.2d at 805.

In this case, the sentence received by Petrilli appears to have been authorized by California law--at least Petrilli does not argue it was not. Further, the California court appears to have had jurisdiction of the person and of the subject matter before it. In his reply brief, Petrilli argues the California court's failure to make a record of the factual basis for his California guilty plea rendered the prior conviction both constitutionally and jurisdictionally infirm because, as a result, Petrilli's guilty plea was involuntary and not knowingly made. Thus, we must decide whether the court lost jurisdiction through a denial of due process. Everitt, 412 N.W.2d at 121.

The rule that a trial court must establish a factual basis for a guilty plea is designed to protect the "core considerations" of the right against self-incrimination and the right to confront one's accusers. State v. Schulz, 409 N.W.2d 655, 658 (S.D.1987). A trial court may not accept a guilty plea without an affirmative showing the plea was voluntarily and intelligently made. Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198, 200 (1970). A plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having that understanding, waives them. Lodermeier v. State, 273 N.W.2d 163, 164 (S.D.1978). If the plea is not intelligent and voluntary, it has been obtained in violation of due process and is void. Nachtigall, 178 N.W.2d at 200 (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). The Nachtigall court found, post-Boykin, a guilty plea cannot stand "unless the record in some manner indicates a free and intelligent waiver of three constitutional rights ...; self-incrimination; confrontation; and jury trial--and an understanding of the nature and consequences of the plea." Id. at 201. Here, the California court canvassed Petrilli on the record regarding whether Petrilli was aware of and waived his rights (1) to a trial "of any kind," (2) to face and question his accusers, (3) to present a defense, (4) to require the State to prove its case beyond a reasonable doubt, and (5) to remain silent. The court explained to Petrilli that by pleading guilty, he was waiving all of those rights. Petrilli replied affirmatively to all of the court's inquiries.

While it is true the California court did not inquire into the factual basis for Petrilli's plea on the record, we can find nothing in the authorities cited by Petrilli which would indicate this alone rendered Petrilli's plea involuntary or not knowingly made so as to subject the guilty plea to habeas review. ² This is especially true since Petrilli was represented by counsel when he pled guilty to being an accomplice.

II. THE CALIFORNIA CRIME WAS A FELONY IN SOUTH DAKOTA

In the next two issues raised by Petrilli, which we treat as one, Petrilli argues the record of the California conviction fails to show Petrilli was convicted of anything that would have constituted a felony in South Dakota. SDCL 22-7-7 (1988) provides in pertinent part:

When a defendant has been convicted of one or two prior felonies under the laws of this state or any other state or the United States, in addition to the principal felony, the...