State ex rel. Condon v. Erickson

• Decision Date: 15 December 1970
• Docket Number: No. 10767,10767
• Citation: State ex rel. Condon v. Erickson, 182 N.W.2d 304, 85 S.D. 302 (S.D. 1970)
• Parties: 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.
• Court: South Dakota Supreme Court

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.

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 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 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, 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 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 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. California (June 12, 1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, ³ and later when it was decided he should be sent for psychiatric examination; and thus he says he had the right to counsel at those times and he did not waive that right.

The record does not contain the written statements purportedly taken. Neither are we told of the contents of the statements or how damaging they might have been to Condon. Even if we assume such statements amounted to a confession of guilt, and further assume they would be inadmissible as evidence upon a trial for some reason urged by Condon or otherwise, since Condon pleaded guilty they are relevant in the present proceeding only to the extent that they may have affected the voluntary character of his plea. 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. McMullen v. State, S.D., 173 N.W.2d 499; Hawkins v. State of Wisconsin, 26 Wis.2d 443, 132 N.W.2d 545, 20 A.L.R.3d 717. The same rule is applicable to a lineup identification in the absence of counsel. People v. Coles, 34 A.D.2d 1051, 312 N.Y.S.2d 621.

II.

Under this point Condon argues the record reveals a totality of facts and circumstances from which it must be concluded that his plea of guilty was not voluntarily and understandingly made.

It is well settled that a conviction, whether it be in state or federal court which is based upon an involuntary or coerced plea, whether it be unfairly obtained or given through ignorance, fear, trickery or coercion, is invalid as inconsistent with due process of law. Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473.

This court in a recent case, Application of Dutro, 83 S.D. 168, 156 N.W.2d 771, reiterated a long standing rule that a plea of guilty if induced by fear, misrepresentation, trickery, deception, duress or coercion was void as a violation of due process undermining the jurisdiction of the court and subject to collateral attack. State v. Sewell, 69 S.D. 494, 12 N.W.2d 198; State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731; State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441; State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712. In Nachtigall v. Erickson, S.D., 178 N.W.2d 198, we said:

'For many years South Dakota courts by virtue of the statute and our decisions interpreting the statute have been to a large extent conforming to many of the requirements of Boykin ⁴ in accepting guilty pleas. Nevertheless, it is...