Stacey v. State, 14346

• Decision Date: 06 June 1984
• Docket Number: No. 14346,14346
• Citation: 349 N.W.2d 439
• Parties: John Kendal STACEY, Petitioner and Appellant, v. STATE of South Dakota, Appellee.
• Court: South Dakota Supreme Court

Page 439

349 N.W.2d 439

John Kendal STACEY, Petitioner and Appellant, v. STATE of South Dakota, Appellee.

No. 14346.

Supreme Court of South Dakota.

Argued Feb. 15, 1984.

Decided June 6, 1984.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for petitioner and appellant.

Richard Dale, Asst. Atty. Gen., Pierre, for appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

WOLLMAN, Justice.

Petitioner appeals from a judgment denying post-conviction relief. ¹ We affirm.

On December 31, 1981, petitioner was at a party at a trailer house in Watertown, South Dakota. Petitioner and Larry Schoenbeck became involved in an altercation, whereupon someone pushed them outside the trailer house. While the two were engaged in a fight outside, petitioner stabbed Schoenbeck in the stomach.

Schoenbeck's version of the fight was that only he and petitioner were fighting at the time he was stabbed, that as soon as he saw the knife blade come out of his stomach he called out that he had been stabbed, prompting his step-brother, who was standing in the yard, to run over and wrestle with petitioner in an attempt to dislodge the knife from his hand. Although unsuccessful in this attempt, the step-brother succeeded in getting petitioner to release Schoenbeck. The step-brother corroborated this version of the incident at trial. Petitioner's version of the incident was that Schoenbeck and his step-brother were together beating him up prior to the stabbing, and that if he had not used his knife he would have sustained extensive injuries from the two of them.

Petitioner was charged with aggravated assault. A jury trial commenced on February 16, 1982. At the close of the first day of trial, petitioner's trial counsel advised petitioner that in the light of the evidence that had been presented petitioner really had little chance of an acquittal. Trial counsel asked petitioner to reconsider the plea bargain that the state's attorney had earlier offered, which was for a sentence not to exceed five years in the penitentiary. After confirming with the state's attorney that this plea bargain was still available if petitioner should decide to plead guilty, trial counsel advised petitioner accordingly. When trial counsel discussed the matter with petitioner the following morning, he learned that petitioner had made up his mind to "go with the plea bargain." Accordingly, later that morning petitioner changed his plea from not guilty to guilty. His trial counsel requested that petitioner not be imprisoned longer than five years. Pursuant to his guilty plea, petitioner was convicted of aggravated assault, SDCL 22-18-1.1(2) and 22-6-1(6), and sentenced to five years in the penitentiary. The maximum penalty for aggravated assault, a Class 4 felony, SDCL 22-18-1.1, is ten years imprisonment and a fine of ten thousand dollars. SDCL 22-6-1(6).

Petitioner contends that his plea of guilty was not given knowingly, voluntarily, and intelligently and that he was deprived of effective assistance of counsel.

A plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198 (1970). The record must also indicate that the defendant had an understanding of the nature and consequences of his plea. Nachtigall, supra; see also SDCL 23A-7-4.

Petitioner was represented by counsel at what appears to have been a combined arraignment and preliminary hearing, which was held on January 18, 1982. At this hearing, petitioner acknowledged having been advised of his statutory and constitutional rights at a previous appearance. Petitioner had, in fact, signed a Preliminary Statement of Rights which listed the rights mentioned above. His trial attorney also stated that he believed he had gone over these rights with petitioner. The circuit court judge, however, again apprised petitioner of his rights, including those outlined in Boykin v. Alabama, supra.

When petitioner entered his guilty plea on February 17, 1982, he was before the same circuit court judge who had conducted the combined arraignment and preliminary hearing. The circuit court judge questioned petitioner extensively as to the voluntariness of his plea. Petitioner stated that his trial counsel had advised him of his statutory and constitutional rights, that he was completely satisfied with the representation given him by his trial counsel, and that the reason for his change of plea was "[t]hat I'm guilty." Before accepting the plea, the trial court did not, however, specifically advise petitioner of the right of confrontation and privilege against self-incrimination.

We have held that although a "[d]efendant must ordinarily be made to understand the nature of the plea by the trial court's 'canvassing the matter with [him].' ... It is sufficient, however, when the record affirmatively shows that defendant understandingly and voluntarily entered his plea." Roseland v. State, 334 N.W.2d 43, 45 (S.D.1983) (quoting State v. Holmes, 270 N.W.2d 51, 53 (S.D.1978)). Also, we have held that a criminal defendant need not be readvised of his rights immediately prior to his entering a plea of guilty, but that it is only necessary that the record show that he knew of his rights and the consequences of his guilty plea at the time the plea was entered. Clark v. State, 294 N.W.2d 916 (S.D.1980).

In State v. Sutton, 317 N.W.2d 414 (S.D.1982), we held that the requirement that the defendant be advised of his right to a trial by jury in the county in which the offense was alleged to have been committed was not satisfied when the defendant was advised of this right at a preliminary hearing before a lay magistrate, but was not again advised of this right by the circuit court judge prior to entering his guilty plea. We stated, "The trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted." Sutton, supra, 317 N.W.2d at 416. In this case, the circuit court judge, having conducted the combined arraignment and preliminary hearing as well as a day of jury trial on the case, was able to make this determination.

The interval of time from the advisement of the "Boykin Rights" until the entry of a guilty plea is only one factor in the totality of the circumstances to be considered in determining whether there was a knowing, intelligent, and voluntary entry of a guilty plea. Singletary v. State, 88 S.D. 655, 227 N.W.2d 424 (1975). The other elements include the defendant's age, prior criminal record and whether the defendant is represented by counsel. Clark v. State, supra. At the time petitioner entered his guilty plea he was twenty-six years old, had previously been convicted of a felony, and was represented by counsel. Most importantly, petitioner had just completed a full day of a jury trial, during which he had confronted and cross-examined witnesses as well as testified himself.

In Singletary v. State, supra, the defendant had participated in trial for five hours before entering a plea of guilty on the charges for which he was previously being tried. This court stated: "[Defendant] was not only explained his rights but participated in the very proceedings those rights guaranteed. The record conclusively shows that the petitioner was knowledgeable of his rights." 88 S.D. at 660, 227 N.W.2d at 426. After considering the totality of the circumstances in this case, we likewise conclude that the record conclusively shows that petitioner entered his plea knowingly, intelligently, and voluntarily.

Petitioner contends he was denied effective assistance of counsel as a result of various omissions and commissions of his trial counsel. Every defendant in a criminal prosecution is guaranteed the right to the assistance of counsel under Article VI, Sec. 7 of the South Dakota Constitution and the Sixth Amendment to the United States Constitution. This constitutional right to assistance of counsel means adequate and effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); High Elk v. State, 344 N.W.2d 497 (S.D.1984).

Our review of a claim of ineffective assistance of counsel begins with the premise that: (1) an attorney is presumed competent, and (2) the party alleging incompetence has a heavy burden in establishing his allegation. State v. McBride, 296 N.W.2d 551 (S.D.1980). In addition, reversal of a conviction is not required unless the defendant demonstrates that he has suffered material prejudice. Lufkins v. Solem, 716 F.2d 532 (8th Cir.1983); High Elk, supra.

Our determination of whether counsel has provided effective assistance of counsel is based on whether counsel exercised "the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." High Elk, supra, 344 N.W.2d at 500 (quoting United States v. Easter, 539 F.2d 663, 666 (8th Cir.1976)). Although it is not our function to second guess the decisions of experienced trial attorneys regarding matters of trial tactics, State v. Walker, 287 N.W.2d 705 (S.D.1980), we should not hesitate in reversing a conviction if the defendant was not afforded effective assistance of counsel. Crowe v. State, 86 S.D. 264, 194 N.W.2d 234 (1972). ²

Petitioner contends that his trial counsel was ineffective because of his failure to secure the presence at trial of Jim Novy and Larry McMillan, who were present at the party on the night of the knifing incident. On the first day of trial, ...