State ex rel. Condon v. Erickson, No. 10767

CourtSupreme Court of South Dakota
Writing for the CourtHOMEYER
Citation182 N.W.2d 304,85 S.D. 302
Decision Date15 December 1970
Docket NumberNo. 10767
PartiesSTATE of South Dakota, ex rel. Tilden Louis CONDON, Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Defendant and Respondent.

Page 304

182 N.W.2d 304
85 S.D. 302
STATE of South Dakota, ex rel. Tilden Louis CONDON,
Plaintiff and Appellant,
v.
Don R. ERICKSON, Warden of the South Dakota State
Penitentiary, Defendant and Respondent.
No. 10767.
Supreme Court of South Dakota.
Dec. 15, 1970.

[85 S.D. 303] Woods, Fuller, Shultz & Smith, John E. Simko, Jr., Sioux Falls, for appellant.

Gordon Mydland, Atty. Gen., Leonard E. Andera, Asst. Atty. Gen., Pierre, for respondent.

HOMEYER, Judge.

This is an appeal from the judgment of the circuit court of Minnehaha County which quashed petitioner's writ of habeas corpus brought to compel his release from the custody of the respondent. The petitioner, Tilden Louis Condon, on August 12, 1965, was convicted of first degree rape upon his plea of guilty and sentenced to a term of 15 years in the state penitentiary by the circuit court of Dewey County. He is an Indian, 23 years of age at the time

Page 305

of his conviction and a member of the Cheyenne River Sioux tribe. Petitioner will hereafter be referred to as Condon.

At the habeas corpus hearing held on July 24, 1969, the only witness was Condon. However, earlier he had filed a pro se petition for post-conviction relief under SDCL 23--52 on which an evidentiary hearing was held in Dewey County before the sentencing judge on June 11, 1968. In that proceeding, in the main he asserted his guilty plea was involuntary[85 S.D. 304] and resulted from fear and threats allegedly made by the prosecuting attorney. Condon was represented by counsel at the hearing. He testified as did his mother and also the prosecuting attorney. The court found adversely to his contentions. No appeal was taken. We believe the record in that proceeding supports this determination. The court file from Dewey County with complete transcripts of all proceedings was received as evidence in the present proceeding.

On November 2, 1964, the date of the alleged offense, Condon was serving a jail sentence in the tribal jail at Eagle Butte for public intoxication. He testified, on that day at about 10 a.m. while working as a trustee near the jail, he found a half gallon of wine; that he drank all of it before about 1:45 p.m. except for four pop bottles full which he sold for $2.00. He then went to the hospital to see a doctor. About 2 p.m. he went downtown to a bar and had a bottle of beer. He woke up about 7 p.m. on the football field, returned to downtown bars, had some more to drink and was picked up by tribal police at about 7:30 p.m. who returned him to the tribal jail.

That evening he was questioned in the tribal jail by an officer from the Bureau of Indian Affairs and was physically examined by a special agent from the state office of the Division of Criminal Investigation. He was kept in a segregated jail cell that night and the following day he signed a written statement pertaining to the crime. About a day and a half after the alleged rape, he was identified by the victim.

Condon was kept in the tribal jail until November 12, 1964 on the public intoxication charge when he was arrested by a United States Marshal on a warrant charging him with first degree rape. He says this was the first time he knew he was charged with the offense. Bond was fixed by a United States Commissioner at Mobridge and he was then taken to the Brown County jail at Aberdeen. He says he was interrogated by a FBI agent at Aberdeen on November 13th and two statements were taken from him. Condon was in jail in Aberdeen from November 12, 1964 to April 16, 1965, except for 65 days spent at a federal medical center in Springfield,[85 S.D. 305] Missouri, for psychiatric tests. A federal grand jury indictment was filed against him on March 1, 1965, which was dismissed by the government on its own motion on May 25, 1965.

Condon was arrested on the state charge on April 16, 1965 and bond was fixed. He was taken to the Walworth County jail at Selby. The following day he was contracted by his counsel, Arend E. Lakeman of Mobridge. So far as we can determine from the record this was the first time he was represented by counsel. Thereafter Lakeman represented him to and through his plea of guilty.

On April 20, 1965, Condon through his counsel waived preliminary hearing. At the same time he moved for a dismissal of the complaint. 1 On May 4, 1965 at the

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opening of the spring term of circuit court the motion for dismissal was denied as was a motion for continuance. Condon was formally arraigned, acknowledged he had been advised of his constitutional rights, and entered a plea of not guilty. On May 11, 1965, with the jury reporting for the trial, Lakeman renewed the motions and informed the court Condon had been indicted for the same offense in the United States courts and was awaiting trial. The court then continued the case until the action in the federal court had been disposed of. On June 15, 1965, the court denied Condon's motion for change of venue.

During the forepart of August while in the Walworth County jail awaiting trial, Condon escaped from the custody of the sheriff and was apprehended at Mobridge after about one day of freedom. On A.L.R.3d 974, 2 and also when he was identified court with his counsel and moved that his plea of not [85 S.D. 306] guilty be withdrawn. The motion was granted. He then entered a plea of guilty and informed the court that the change of plea was made after thorough consultation with his counsel.

Condon in the court below and here on appeal contends his constitutional rights were violated voiding his plea of guilty. His claims of constitutional error are predicated on (1) denial of effective assistance of counsel, and (2) the record shows his guilty plea was not voluntary.

I.

As we understand Condon's argument on this point, he finds no real fault with counsel who represented him in the state court proceedings, but he claims he should have had the assistance of counsel or advised of his right to assistance of counsel, while in the tribal jail and in the Brown County jail when he was interrogated and written statements were taken concerning the alleged crime. He says the accusatory stage had been reached at that time, Escobedo v. Illinois (June 22, 1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. Arizona (June 13, 1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, 2 aand also when he was identified by the victim, United States v. Wade (June 12, 1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v....

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14 practice notes
  • State v. Grosh, No. 14830
    • United States
    • South Dakota Supreme Court
    • 15 Enero 1986
    ...N.W.2d 126, 126 (S.D.1978); State v. Thundershield, 90 S.D. 391, 395, 242 N.W.2d 159, 163 (1976); and State ex rel. Condon v. Erickson, 85 S.D. 302, 307, 182 N.W.2d 304, 306-07 (1970). Rationale being a guilty plea represents a break in the chain of events which has preceded it in the crimi......
  • United States v. Erickson, No. 72-1529.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 Abril 1973
    ...in state court and received a fifteen-year sentence. Post-conviction efforts in state courts failed. State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970). Condon then petitioned the United States District Court for the District of South Dakota claiming that (1) he had been denied eff......
  • United States ex rel. Condon v. Erickson, No. 71-1518.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 13 Abril 1972
    ...He was sentenced to fifteen years. Upon being denied post-conviction relief in the South Dakota courts, State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970), Condon petitioned unsuccessfully the United States District Court for the District of South Dakota. 459 F.2d 665 In his appeal......
  • Runge v. State, Nos. 10894
    • United States
    • Supreme Court of South Dakota
    • 28 Septiembre 1971
    ...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 'It is well settled that judgment on a plea of guilty which is entered voluntarily is not rendered invalid because for some reason ......
  • Request a trial to view additional results
14 cases
  • State v. Grosh, No. 14830
    • United States
    • South Dakota Supreme Court
    • 15 Enero 1986
    ...N.W.2d 126, 126 (S.D.1978); State v. Thundershield, 90 S.D. 391, 395, 242 N.W.2d 159, 163 (1976); and State ex rel. Condon v. Erickson, 85 S.D. 302, 307, 182 N.W.2d 304, 306-07 (1970). Rationale being a guilty plea represents a break in the chain of events which has preceded it in the crimi......
  • United States v. Erickson, No. 72-1529.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 25 Abril 1973
    ...in state court and received a fifteen-year sentence. Post-conviction efforts in state courts failed. State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970). Condon then petitioned the United States District Court for the District of South Dakota claiming that (1) he had been denied eff......
  • United States ex rel. Condon v. Erickson, No. 71-1518.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 13 Abril 1972
    ...He was sentenced to fifteen years. Upon being denied post-conviction relief in the South Dakota courts, State ex rel. Condon v. Erickson, 182 N.W.2d 304 (S.D.1970), Condon petitioned unsuccessfully the United States District Court for the District of South Dakota. 459 F.2d 665 In his appeal......
  • Runge v. State, Nos. 10894
    • United States
    • Supreme Court of South Dakota
    • 28 Septiembre 1971
    ...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 'It is well settled that judgment on a plea of guilty which is entered voluntarily is not rendered invalid because for some reason ......
  • Request a trial to view additional results

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