State ex rel. Burke v. Erickson, 10703

• Decision Date: 16 December 1969
• Docket Number: No. 10703,10703
• Citation: 173 N.W.2d 44,84 S.D. 487
• Parties: STATE of South Dakota ex rel. Robert F. BURKE, Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 44

173 N.W.2d 44

84 S.D. 487

STATE of South Dakota ex rel. Robert F. BURKE, Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant and Respondent.

No. 10703.

Supreme Court of South Dakota.

Dec. 16, 1969.

Rehearing Denied Dec. 31, 1969.

John E. Simko, Jr., Sioux Falls, for plaintiff and appellant.

Leonard E. Andera, Asst. Atty. Gen., Pierre, for defendant and respondent; Gordon Mydland, Atty. Gen., Pierre, on the brief.

BIEGELMEIER, Presiding Judge.

By complaint sworn to July 6, 1967 and filed in municipal court on July 10, 1967, petitioner was charged with embezzlement by a bailee in Pennington County on July 6, 1967 of a Plymouth car contrary to SDC 13.4006. Pursuant to a warrant of arrest, petitioner was apprehended in Utah, returned to Rapid City and counsel, who appeared in all the criminal proceedings, was appointed for him.

A preliminary hearing held November 29, 1967 showed that about 7 a.m., July 6, 1967, petitioner told Mrs. Post, a fellow cafe employee who knew him about 10 days, that a friend of his had been in a bad wreck the night before and asked if he could take her car to see him in the hospital, and it was understood he would return it before ten o'clock that morning; that he took the keys and left with the car and she had not seen it since.

A deputy sheriff testified that he saw the car in a car salvage lot in Ogden, Utah on November 13, 1967, the day he apprehended petitioner who was held to answer the charge in circuit court. On December 7, 1967 an information was filed charging him with the embezzlement.

The transcript of December 8, 1967 proceedings shows defendant appeared in court with his attorney and was given a copy of the information; his right to a trial by jury and other rights were explained to him by the presiding judge. He was asked if he had any questions and answered, 'No', said he desired to enter a plea and did plead guilty 'to the charge of embezzlement by bailee, as set forth in the Information.' The court accepted the plea, found defendant guilty and after some further discussion sentenced defendant to a term in the penitentiary.

In 1969 petitioner, with different appointed counsel, made application for a writ of habeas corpus alleging his plea of guilty was not entered intelligently or voluntarily and that SDC 13.4010, now SDCL 1967, § 22--38--11, deprived him of his right to a trial by jury as guaranteed by § 6, Art. VI of the South Dakota Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. The statute involved and criminal charge are first stated.

SDC 13.4006 (now SDCL 1967, § 22--38--6), pertinent here, provided:

'13.4006 Bailee; * * * embezzlement: defined. If any person being intrusted with any property as bailee * * * fraudulently converts the same * * * to his own use, he is guilty of embezzlement'.

Both the preliminary complaint and information were titled 'EMBEZZLEMENT BY BAILEE' and, while no claim is made of any defect therein, they clearly charged in detail that petitioner wilfully, unlawfully, feloniously and fraudulently did convert to his own use a light blue 1965 4-door Plymouth with the serial and car license numbers stated, he being intrusted with the property as bailee by Kathleen Post, contrary to SDC 13.4006.

The trial court heard evidence of petitioner and, on it and the records introduced, concluded in an opinion and later Findings of Fact and Conclusions of Law that petitioner was not denied any of his legal, statutory or constitutional rights and quashed the writ.

The only evidence other than the court records was testimony of petitioner:

'Q Mr. Burke, you have alleged * * * your plea of guilty was not entered intelligently. Would you tell the Court what you base that allegation on?

'A Well, prior to coming to the penitentiary and reading the statute myself in the prison library I didn't understand the statute.

'Q What statute?

'A Embezzlement by bailee. At the time that my attorney talked to me I explained to him exactly what had transpired. He at that time told me that charge would not lie. Later when he visited me in jail he told me that I was guilty of the crime ¹ and at no time did I ever deny that I kept the girl's car possibly longer than I should have, so when he told me that I was guilty I assumed that I was guilty and I pled guilty, * * *

'Q Do you have anything else to add to that?

'A Other than I never heard tell of this charge prior to this so I had no way of knowing what it entailed until after, like I say, I got to the penitentiary and read the statute in the law books in the library.

'Q Then all of what you have told us now forms the basis of your contention that your plea of guilty was not entered intelligently?

'A That is right. * * * I understood I was charged with embezzlement by bailee.'

Petitioner was 43 years old and had a high school education and in the course of interrogation by the sentencing court he admitted prior convictions for violation of the Dyer Act in 1947, for issuing fraudulent checks in 1951, escape from the Indiana State Reformatory, second degree burglary in 1952 and forgery and grand theft in California. ² That he knew of the charge and what his guilty plea might bring to him is apparent by the record which shows he made an intelligent and reasoned plea to the sentencing judge in an attempt to convince him that the several prior convictions should not be weighed too heavily against him; that he realized the judge was going to 'take into consideration my past record, and I realize that this does, somehow, influence it. But, by the same token, for anything in the past, I have already been punished'. Petitioner with assistance of counsel having intelligently and voluntarily entered a plea of guilty was not deprived of a trial by jury, but by his plea admitted his guilt and this left nothing for a jury to determine. The plea of guilty is a conviction and includes a waiver of trial by jury. Ex parte Carper, 144 Neb. 623, 14 N.W.2d 225; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and see State v. Ross, 47 S.D. 188, 197 N.W. 234. Habeas corpus reaches only jurisdictional error. State ex rel. Medicine Horn v. Jameson, 78 S.D. 282, 100 N.W.2d 829; State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712. The record in the habeas corpus proceeding disclosed no such error and that court properly quashed the writ.

Defendant makes an argument that SDC 13.4010 influenced his plea of guilty and that it is unconstitutional. That section pro...