State v. Anderson, 20121
| Decision Date | 29 April 1998 |
| Docket Number | No. 20121,20121 |
| Citation | 583 N.W.2d 151,1998 SD 98 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Lee Iver ANDERSON, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for plaintiff and appellee.
D. Sonny Walter, Sioux Falls, for defendant and appellant.
¶1 Defendant, Lee Iver Anderson, appeals his life sentence for first degree burglary and lesser prison terms for burglary and three counts of aggravated assault. He also challenges his habitual offender conviction. We affirm all the convictions and find these sentences neither cruel nor unusual.
¶2 Defendant performed occasional plumbing work on rental properties owned by Elwood Anderson, a retired farmer and insurance agent from Sioux Falls. 1 Elwood sometimes paid defendant in cash from a billfold typically containing two or three hundred dollars in bills. On the night of September 4, 1996, Elwood and his girlfriend, Carol Daniels, went to bed around 10:30. While they were in bed, defendant disconnected Elwood's electricity and entered the residence through a door left open for ventilation. Once in the house, defendant made his way into the bedroom where he crept onto the bed and began stabbing Elwood with a buck knife. As Elwood tried to defend himself, defendant repeatedly stabbed and slashed at him. Defendant also swung his knife at Carol as she tried to defend herself. Defendant then grabbed Carol by the hair, beat her on the head, dragged her out of the bed and threw her onto the floor where he hit and kicked her. After grabbing Carol's hair and repeatedly slamming her head against the side of the waterbed, defendant fled the residence.
¶3 Both Elwood and Carol were seriously injured during defendant's attack. After defendant's departure, Carol phoned 911 and the police and an ambulance arrived. Elwood was immediately taken to the hospital because he had the most serious injuries. The police questioned Carol who, despite being unable to see the assailant in the dark, immediately identified defendant as a suspect based on her familiarity and prior dealings with him.
¶4 Subsequent investigation revealed independent evidence of defendant's attack on Elwood and Carol. Defendant was indicted for two counts of first degree burglary and three counts of aggravated assault. Along with the indictment, the State filed a part two habitual offender information alleging defendant had a prior felony conviction for grand theft. Defendant's jury trial was in January 1997 and the jury returned guilty verdicts on all five counts in the indictment. Before trial on the part two information, defendant filed a motion to strike the grand theft conviction from the information. A hearing was held and the trial court took the matter under advisement.
¶5 The court trial on the part two information was on March 24, 1997. At the close of trial, the court denied the motion to strike and adjudicated defendant a habitual felony offender. Based upon his habitual offender status, defendant was sentenced for his burglary and assault convictions as follows:
Ct. 1 [burglary] Life;
Ct. 2 [burglary] No sentence;
Ct. 3 [assault] Twenty five (25) years, concurrent to Ct. 1;
Ct. 4 [assault] Twenty five (25) years, concurrent to Ct. 1;
Ct. 5 [assault] No sentence[.]
Defendant appeals.
¶6 Did the trial court err in denying defendant's motion to strike the grand theft conviction from the part two information and in adjudicating defendant a habitual offender?
"[A] plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in [Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) ]--self-incrimination, confrontation and jury trial--and an understanding of the nature and consequences of the plea." Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970). Convictions based upon guilty pleas obtained in violation of Boykin cannot be used to enhance a sentence under the habitual offender statutes. State v. King, 383 N.W.2d 854 (S.D.1986); Application of Garritsen, 376 N.W.2d 575 (S.D.1985).
State v. Randen, 497 N.W.2d 107, 108-109 (S.D.1993).
¶7 In Croan v. State, 295 N.W.2d 728, 729 (S.D.1980), this Court held that for a record to indicate a free and intelligent waiver of the right to jury trial, it must be shown that before pleading guilty the accused was advised of the right to a " 'speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.' " Accord State v. Sutton, 317 N.W.2d 414 (S.D.1982). Defendant argued before the trial court and argues on appeal that the record of his grand theft conviction fails to reflect an adequate advisement of his right to jury trial before entry of his guilty plea. Accordingly, he asserts the conviction is invalid and could not be used to sustain his habitual offender conviction. The argument is meritless.
¶8 The information charging grand theft alleged defendant committed the offense, "in the county of Minnehaha and State of South Dakota[.]" Defendant's own briefs concede that, before he entered his guilty plea, the trial court twice advised him of his right to jury trial in Minnehaha County. Although the advisements might not have conformed word for word to Croan's recitation of the right to a " 'speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed' " (Croan, 295 N.W.2d at 730), they did not have to. In Roseland v. State, 334 N.W.2d 43, 45 (S.D.1983), this Court rejected the necessity of such "catechistic incantation[s]." What is important, this Court held, is that the totality of the circumstances clearly show the defendant was aware of and understood these rights at the time of the guilty plea. Roseland, 334 N.W.2d at 45. Here, defendant's concession he was twice advised of his right to jury trial in Minnehaha County fulfills this requirement.
¶9 Defendant confuses analysis of this issue by referring to questions raised over the propriety of the venue of the grand theft prosecution at the time of that proceeding. He is too late. If there were questions over venue, they should have been raised by an appropriate pretrial motion or at the close of the State's evidence during a trial. See e.g. State v. Haase, 446 N.W.2d 62, 65 (S.D.1989). They were not. Instead, defendant simply entered a guilty plea. A guilty plea waives nonjurisdictional defects in a prior proceeding. Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994). Improper venue is a nonjurisdictional defect subject to waiver. Haase, supra. Accordingly, any issue over the propriety of venue of the grand theft prosecution was waived with the entry of defendant's guilty plea. 2
¶10 Based on the foregoing, the trial court did not err in denying defendant's motion to strike the grand theft conviction from the part two information and in adjudicating defendant a habitual felony offender on the basis of that conviction.
¶11 Is defendant's life sentence for first degree burglary cruel and unusual punishment?
¶12 Defendant argues his life sentence for first degree burglary is cruel and unusual punishment. In State v. Bonner, 1998 SD 30, p 17, 577 N.W.2d 575, 580 this Court held:
[T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court. If these circumstances fail to suggest gross disproportionality, our review ends. If, on the other hand, the sentence appears grossly disproportionate, we may, in addition to examining the other Solem factors, conduct an intra- and inter-jurisdictional analysis to aid our comparison or remand to the circuit court to conduct such comparison before resentencing. We may also consider other relevant factors, such as the effect upon society of this type of offense. (emphasis added)
¶13 Here, the trial court was well aware of the conduct involved with defendant's burglary and with his relevant past conduct by the time of its imposition of sentence. During trial, the court heard testimony regarding defendant's invasion of the home of two vulnerable and unsuspecting victims in the midst of the night and his vicious and savage attack on them with a seven inch buck knife. Based upon testimony concerning defendant's possession of the knife and his disconnection of Elwood's electricity, the trial court could only conclude defendant conceived the burglary and attack in advance and carried out his nefarious mission according to plan. Further, the trial court heard testimony regarding the severe injuries sustained by the victims as a result of the attack: Elwood to his chest, abdomen and neck; and, Carol, to her hand. Elwood himself testified at the sentencing hearing that he suffered severe pain and mental distress as a result of the attack and concluded that, Carol joined with this recommendation, stating,
¶14 Reflecting on this testimony at sentencing, the trial court discussed the heinous nature of defendant's crimes, Elwood's grave injuries in defendant's attack and defendant's past conduct and record of violence. In that regard, the trial court observed:
Going back a number of years from your rap sheet, the first offense is approximately 1978 where I think you were 12 years old, to what, as far...
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