Runge v. State

• Decision Date: 28 September 1971
• Docket Number: Nos. 10894,10895,s. 10894
• Citation: 86 S.D. 9,190 N.W.2d 381
• Parties: Daniel Lee RUNGE, Petitioner, v. STATE of South Dakota, Respondent.
• Court: South Dakota Supreme Court

Page 381

190 N.W.2d 381

86 S.D. 9

Daniel Lee RUNGE, Petitioner, v. STATE of South Dakota, Respondent.

Nos. 10894, 10895.

Supreme Court of South Dakota.

Sept. 28, 1971.

Acie W. Matthews, Sioux Falls, for petitioner.

Gordon Mydland, Atty. Gen., C. J. Kelly, Asst. Atty. Gen., Pierce, for respondent.

BIEGELMEIER, Presiding Judge.

These are appeals from orders denying relief requested under our Uniform Post-Conviction Procedure Act, SDCL 23--52.

In #10894 a complaint was filed on February 19, 1968, in the municipal court at Mitchell charging petitioner with a burglary, herein sometimes designated as the Daily Republic burglary. Taken before that court it appeared he was 16 years of age so he was transferred to the juvenile division of the Davison county court which, the same day, entered an order remanding him to the municipal court for further proceedings.

On March 20th upon advice of his attorney, whom his parents had retained, he waived a preliminary hearing and was bound over to circuit court where an information charging him with the third degree Daily Republic burglary was filed.

On April 2nd accompanied by his attorney and his parents he appeared in circuit court and was arraigned on an information charging him with that burglary. The presiding judge conducted an inquiry wherein he asked questions directly of petitioner, his attorney and his parents. Petitioner then entered a plea of guilty and after further inquiries and a statement by his attorney the judge announced the court would postpone the imposition of sentence until the first day of the November 1968 term of court under certain conditions. These were set forth in an order to that effect which placed petitioner on parole, in custody of his parents and under supervision of an agent of the department of probation and parole. This order was evidently entered under a statute which provides a court 'may suspend the imposition of sentence and place the defendant on probation'. See SDC 1960 Supp. 34.3708--2 as amended by Ch. 186, S.L.1961, now SDCL 23--57--4. Petitioner had promptly furnished bond for his appearances and so was at liberty thereafter as to this charge.

On July 11, 1968, the Mitchell Prairie Market was burglarized. Entrance was obtained by cutting a hole in a side of the building. Vending machines were broken into and among other property a case of rifle shells and about 100 cases of beer were stolen. Acting on a tip officers placed a stakeout on a cave located on an abandoned farm where about 60 cases of the stolen beer were cached. Later petitioner and three other persons were observed at the site loading some of the beer in a station wagon which was shortly thereafter stopped on the highway by the officers. It contained 10 cases of the stolen beer covered by a blanket. Petitioner was driving the station wagon which was owned by his father.

On the recovery of this Prairie Market burglary property, a complaint was filed in the same municipal court on July 22, 1968, charging petitioner with that burglary. A like order was made that day transferring petitioner to the juvenile division of the county court which, the next day, entered an order remanding him to the municipal court for further proceedings.

On August 9, 1968, by reason of petitioner's arrest for the Prairie Market burglary and other claimed violations of the conditions of his parole and the order suspending imposition of sentence theretofore made as to the Daily Republic burglary, petitioner was brought before the circuit court at the request of the agent of the board of pardons and paroles under whose supervision petitioner had been placed. An extensive hearing was had as to why the order postponing imposition of sentence should not be revoked and petitioner sentenced on his plea of guilty. He appeared with counsel and witnesses for the state were sworn and testified. Petitioner's counsel cross-examined these witnesses, but offered no evidence contrary thereto. At the conclusion of that hearing the court entered an order setting aside the order postponing the imposition of sentence. The presiding judge was the same judge who had entered the earlier postponing order. After some further colloquy between the judge, petitioner and his counsel, petitioner was sentenced for the Daily Republic burglary to four years in the reformatory section of the state penitentiary.

Returning now to the Prairie Market burglary charge, three days later on August 12, 1968, on advice of the same attorney who appeared with and for him, petitioner waived a preliminary hearing in the municipal court and was bound over to circuit court. Later that day he was arraigned on an information filed in circuit court charging him with the Prairie Market burglary in the third degree. He appeared with his counsel and his father and entered a plea of guilty. The court sentence was for a similar four years to run concurrently with the four-year Daily Republic sentence. Both of these sentences were commuted to three years and six months by the Governor.

The post-conviction court entered findings of fact, conclusions of law and a judgment denying the relief sought by petitioner and he appeals.

Petitioner contends that in #10894 (the Daily Republic burglary) his claimed interrogation after midnight when he and others were found hiding beside the building in possession of some of the fruits of the break-in was in violation of the Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, decisions. While petitioner testified he walked over to the officers' car and was asked what building he had broken into, ¹ his counsel testified petitioner had never indicated he had made any admissions to the police and the case was not based on any claimed admissions. Petitioner's contention is thus without basis as the court found there was no evidence of improper interrogation. Further Escobedo and Miranda are not apposite. The latter decision held that noncompliance with any one of the Miranda requirements of warnings makes the statements obtained by law enforcement officers during in-custody interrogations inadmissible. Coleman v. Alabama, 1970, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, Stewart, J., dissenting. Additionally, petitioner's claim is academic for he entered a plea of guilty to the information. The court made this plain in State ex rel. Condon v. Erickson, 1970, S.D., 182 N.W.2d 304, when it wrote:

'It is well settled that judgment on a plea of guilty which is entered voluntarily is not rendered invalid because for some reason the defendant had previously made a confession under circumstances which might have rendered it inadmissible, if the defendant had pleaded not guilty and had gone to trial. This is so because the plea, if voluntarily and understandably made, is conclusive as to the defendant's guilt, admitting all the facts charged and waiving all nonjurisdictional defects in the prior proceedings against him. The judgment and sentence which follow the plea of guilty are based solely upon the plea and not upon any evidence which might have been acquired improperly by the prosecutor. Thus, a confession in the possession of the prosecutor which has been illegally obtained cannot be made the basis of a collateral attack upon a judgment of conviction entered upon a plea of guilty which was voluntarily and understandably made.'

Petitioner next argues he was denied due process of law on his claim he was not afforded a hearing in the juvenile division of the county court on July 23, 1968, basing this claim on the first part of SDCL 26--11--4. This was formerly part of SDC 43.0313 as amended by Ch. 164, S.L.1968 which reads:

'The court may, in its discretion, in any case of a delinquent child, after transfer hearing, permit such child to be proceeded against in accordance with the laws that may be in force in this state governing the commission of crimes or violation of municipal ordinances. In such cases the petition filed under this chapter shall be dismissed.'

In July 1968 the laws in effect with reference to the proceedings to be followed as to persons arrested under 18 years of age were found in SDC 43, as variously amended. SDC 43.0318, as amended by Ch. 214, S.L.1961, provided:

'If the arrest be for any other offense * * * if such child is taken before a * * * municipal court upon complaint sworn out in such court * * * it shall be the duty of such * * * municipal court to transfer the case to the county court and the officer having the child in charge to take the child before that court and in such case the court may proceed to hear and dispose of the case in the same manner as if such child had been brought before the court upon petition originally filed therein, as provided in this chapter; or when necessary, in cases where the delinquency charge would otherwise constitute a felony, the county court may direct that such child be kept in proper custody until an information or complaint may be filed against him as in other cases under the criminal laws of this state.'

The quoted part of this section did not change the original SDC 43.0318; the change was in the prelude thereto which permitted prosecution of certain motor vehicle violations as if the persons were over 18 years of age. Nor did Ch. 164, S.L.1968, effective July 1, 1968, which amended many sections of SDC 43.03, make any change in SDC 43.0318. Not being an adjudicatory hearing, it did not require a verbatim record; it was conducted under such rules as that court prescribed to inform it as stated therein. Prior thereto the hearings were 'informal in their nature', SDC 43.0327.

The statutes and the piecemeal amendments are not examples of clarity. Where a child under 18 years of age was arrested, the county court's authority to act was contained in SDC 43.0318, as amended in 1961, and not specifically under SDC...