State ex rel. Pekarek v. Erickson

• Decision Date: 27 December 1967
• Docket Number: No. 10357,10357
• Citation: 83 S.D. 79,155 N.W.2d 313
• Parties: STATE of South Dakota ex rel. Joe PEKAREK, Sr., Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 313

155 N.W.2d 313

83 S.D. 79

STATE of South Dakota ex rel. Joe PEKAREK, Sr., Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary,

Defendant and Respondent.

No. 10357.

Supreme Court of South Dakota.

Dec. 27, 1967.

Morris Myers, Aberdeen, for plaintiff and appellant.

Frank L. Farrar, Atty. Gen., Walter W. Andre, Asst. Atty. Gen., Pierre, for defendant and respondent.

ROBERTS, Judge.

Appellant entered a plea of guilty to an information in which he was charged with indecent molestation of a girl, age eleven. Judgment was entered on the plea and accused was sentenced to the penitentiary for a term of five years. An application to withdraw his plea of guilty was overruled and the ruling was affirmed on appeal. State v. Pekarek, S.D., 148 N.W.2d 328.

Appellant sought through his present counsel in the Circuit Court of Minnehaha County a writ of habeas corpus. Several grounds for relief were urged, all of which are presented here after their rejection by the trial court following a hearing.

It appears from the record before us which includes a signed statement given by accused to the state's attorney and certified transcripts of the proceedings had and testimony taken at the preliminary hearing and of the arraignment and sentencing that accused was taken into custody on August 16, 1965, and was brought that day before a justice of the peace sitting as a committing magistrate. He was represented at the preliminary hearing by an attorney of his own choice. He was held to answer at the next term of the circuit court. Accused had offered through his attorney to plead guilty to indecent molestation of a minor whereupon an information was filed and he appeared at Mobridge, Walworth County, before Judge H. E. Mundt for arraignment.

The first ground of relief asserted is that appellant was deprived of effective 'assistance of counsel' which is guaranteed by the Sixth Amendment of the United States Constitution. The guaranty therein is that in all criminal cases 'the accused shall enjoy the right * * * to have the assistance of counsel for his defense.' This provision of the Bill of Rights which is fundamental and essential to a fair trial is made obligatory upon the states by the due process clause of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. Within our state constitution (§ 7, Art. 6), an accused in a criminal prosecution has the right 'to defend in person and by counsel'. It is not the responsibility of the court to exercise any control over the selection of counsel by an accused. Counsel for appellant may have taken the initiative in suggesting as appellant indicates that a charge of rape be 'dropped' in exchange for a confession. ¹ The decision to plead guilty or not to plead guilty was for appellant to make. His attorney having considered possible defenses could have reasonably concluded that there was ample evidence to secure a conviction for the more serious charge if appellant did not plead guilty to the charge of indecent molestation. In re Beaty, 64 Cal.2d 760, 51 Cal.Rptr. 521, 414 P.2d 817. Appellant has not demonstrated that the proceedings and sentence were unfair because he was prejudiced by the representation accorded him or that there was a violation of due process because the representation was so inadequate as to be equivalent to no representation.

Appellant contends that the written statement obtained from him while in custody of the sheriff and in the absence of counsel was in violation of the United States Supreme Court decisions in Escobedo v. State of Illinois, June 22, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 and Miranda v. State of Arizona, June 13, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. These decisions delineate certain rules of procedural safeguards with respect to in-custody interrogation by police. ² The United States Supreme Court in Johnson v. State of New Jersey, June 20, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, held that these decisions apply only to trials commenced after the date on which each decision was announced. See also State v. Connors, S.D., 149 N.W.2d 65. The written statement was obtained and the arraignment and sentencing occurred prior to the decisions in question and therefore they were not here mandatory. We think that there was a substantial basis in fact for the determination that the statement in question was voluntarily made. See Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.

Appellant contends that he was not adequately advised of his constitutional rights prior to his plea of guilty and sentencing. He asserts that he did not with understanding plead guilty because he was not advised of the nature of the accusation and consequences of the plea and the court did not inquire of him personally before sentencing whether he had anything to say as to why judgment against him should not be pronounced. The record of the proceedings when the plea was accepted reveals the following colloquy between the court and defendant's counsel: 'Q. I presume you have advised the defendant of his constitutional rights? A. I have, Your Honor. Q. Including the right to have a trial before an impartial jury. A. He understands what he is waiving by pleading guilty. Q. You have also advised him, I assume, that any plea he makes must be voluntary and of his own free will? A. Yes, he realizes that, Your Honor.'

Furthermore, the record discloses that the information was read to him and a copy furnished to his counsel. The court after affording opportunity to defense counsel to state whether there was any cause why sentence...