State ex rel. Pekarek v. Erickson, No. 10357

CourtSouth Dakota Supreme Court
Writing for the CourtROBERTS
Citation83 S.D. 79,155 N.W.2d 313
PartiesSTATE of South Dakota ex rel. Joe PEKAREK, Sr., Plaintiff and Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary, Defendant and Respondent.
Docket NumberNo. 10357
Decision Date27 December 1967

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.

[83 S.D. 80] 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. [83 S.D. 81] 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

Page 314

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 [83 S.D. 82] 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...

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11 practice notes
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.1968); State v. Goode, 171 N.W.2d 733, 734 (S.D.1969). The right to co......
  • State v. Grosh, No. 14830
    • United States
    • South Dakota Supreme Court
    • January 15, 1986
    ...84 S.D. 369, 372, 171 N.W.2d 733, 734 (1969); State v. Buffalo Chief, 83 S.D. 131, 138, 155 N.W.2d 914, 918 (1968); and State v. Erickson, 83 S.D. 79, 81, 155 N.W.2d 313, 314 (1967). Right to trial by jury is guaranteed by the Sixth Amendment to the United States Constitution and South Dako......
  • Nachtigall v. Erickson, No. 10786
    • United States
    • Supreme Court of South Dakota
    • June 16, 1970
    ...72 S.D. 638, 38 N.W.2d 441. See also State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W.2d 832 and State ex rel. Pekarek v. Erickson, 83 S.D. 79, 155 N.W.2d In Application of Dutro, 83 S.D. 168, 156 N.W.2d 771, a habeas corpus proceeding, we distinguished State ex rel. Henning v. Jameson,......
  • State v. Thundershield, No. 10336
    • United States
    • Supreme Court of South Dakota
    • July 23, 1968
    ...Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, State v. Connors, S.D., 149 N.W.2d 65 and State ex rel. Pekarek v. Erickson, S.D., 155 N.W.2d 313. Likewise, the statutory codification of rights of an accused contained in Chapter 145, Laws of 1967 do not retroactively apply to the facts......
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11 cases
  • United States ex rel. Miner v. Erickson, No. 19977.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 5, 1970
    ...80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.1968); State v. Goode, 171 N.W.2d 733, 734 (S.D.1969). The right to co......
  • State v. Grosh, No. 14830
    • United States
    • South Dakota Supreme Court
    • January 15, 1986
    ...84 S.D. 369, 372, 171 N.W.2d 733, 734 (1969); State v. Buffalo Chief, 83 S.D. 131, 138, 155 N.W.2d 914, 918 (1968); and State v. Erickson, 83 S.D. 79, 81, 155 N.W.2d 313, 314 (1967). Right to trial by jury is guaranteed by the Sixth Amendment to the United States Constitution and South Dako......
  • Nachtigall v. Erickson, No. 10786
    • United States
    • Supreme Court of South Dakota
    • June 16, 1970
    ...72 S.D. 638, 38 N.W.2d 441. See also State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W.2d 832 and State ex rel. Pekarek v. Erickson, 83 S.D. 79, 155 N.W.2d In Application of Dutro, 83 S.D. 168, 156 N.W.2d 771, a habeas corpus proceeding, we distinguished State ex rel. Henning v. Jameson,......
  • State v. Thundershield, No. 10336
    • United States
    • Supreme Court of South Dakota
    • July 23, 1968
    ...Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, State v. Connors, S.D., 149 N.W.2d 65 and State ex rel. Pekarek v. Erickson, S.D., 155 N.W.2d 313. Likewise, the statutory codification of rights of an accused contained in Chapter 145, Laws of 1967 do not retroactively apply to the facts......
  • Request a trial to view additional results

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