State v. Auen

• Decision Date: 25 October 1983
• Docket Number: No. 14191,14191
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Hugo A. AUEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 236

342 N.W.2d 236

STATE of South Dakota, Plaintiff and Appellee, v. Hugo A. AUEN, Defendant and Appellant.

No. 14191.

Supreme Court of South Dakota.

Considered on Briefs Oct. 25, 1983.

Decided Jan. 11, 1984.

Mikal Hanson, Asst. Atty. Gen., Pierre, Richard Coit, Legal Intern, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Michael A. Jackley and Bryce Flint, Sturgis, for defendant and appellant.

FOSHEIM, Chief Justice.

Hugo A. Auen appeals a conviction of speeding in violation of SDCL 32-25-8. We affirm.

Mr. Auen was issued a uniform traffic ticket by a Sturgis city policeman for allegedly traveling 67 m.p.h. in a 55 m.p.h. speed zone. He pled not guilty and requested a jury trial. The law-trained magistrate stated he intended to impose no jail sentence and denied the request. Mr. Auen was tried without a jury, found guilty, and fined $50. Costs of $2.50 were added. The decision of the magistrate was affirmed on appeal to the circuit court.

Mr. Auen appeals, urging that he was wrongfully denied the jury trial guaranteed in all criminal prosecutions by Article VI, Section 7 of the South Dakota Constitution. He correctly indicates that a proceeding against a speeder is a criminal prosecution for which a direct penalty of incarceration is authorized. ^* On the strength of this statutory classification, Mr. Auen contends the criminal nature of the offense and the potential penalty entitle him to a jury trial notwithstanding the no-jail assurance of the magistrate at arraignment.

The Supreme Court of the United States decided long ago that the constitutional jury trial guarantee "in all criminal prosecutions" extends only to the prosecution of serious crimes. See Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888); District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930); District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). More recently, a plurality of the Court in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), held that a crime can be viewed as petty and not requiring a jury trial where the accused cannot possibly face more than a six month imprisonment. In State v. Wikle, 291 N.W.2d 792 (S.D.1980), we chose to align ourselves with the concurring opinion of Justices Black and Douglas in Baldwin. We stated, in dictum, at 794: "in any criminal prosecution, whether for violation of state law or city ordinance, in which a direct penalty of incarceration for any period of time could be imposed, the accused is entitled to trial by jury upon demand." Our Wikle statement ostensibly includes speeding and similar traffic misdemeanors within the scope of the right to jury trial, since they are crimes and carry a possible jail sentence.

In view of the limited degree of social opprobrium associated with such offenses and the impractical court burden of jury trials for these cases, we feel compelled to review our alliance in Wikle with the concurring opinion to Baldwin. We hold that a court may deny a jury trial request in a criminal prosecution when the court assures the defendant at the time of request that no jail sentence will be imposed. This is, of course, limited to prosecution of offenses with maximum authorized jail sentences of less than six months. We are in accord with the comment of the plurality in Baldwin that any disadvantages of limited access to jury trials for petty crimes, onerous as they may be, are outweighed by the benefits that result from speedy and inexpensive nonjury adjudications. Our decision in Wikle is modified to the extent it is inconsistent with this opinion.

Affirmed.

DUNN and MORGAN, JJ., concur.

WOLLMAN and HENDERSON, JJ., dissent.

WOLLMAN, Justice (dissenting).

I would adhere to our decision in State v. Wikle, 291 N.W.2d 792 (S.D.1980), and would hold that the magistrate erred in denying defendant's request for a jury trial.

As has been pointed out, Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), does not hold that offenses which carry a maximum punishment of six months or less are automatically petty offenses. See United States v. Stewart, 568 F.2d 501 (6th Cir.1978); United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir.1976). As the Court was careful to say:

In this case, we decide only that a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of "petty." None of our decisions involving this issue have ever held such an offense "petty."

Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888, 26 L.Ed.2d at 440, n. 6.

Although I do not for a moment believe that our magistrates and circuit court judges have attempted, in this case or in any other like case, to cudgel our citizens into surrendering their constitutional rights, I believe that it is for the legislature to make the initial decision, subject to ultimate judicial review, whether the social opprobrium attached to a conviction of a Class 2 misdemeanor has been so attenuated by changing public attitudes that a jail sentence, and perforce the commensurate safeguard of a jury trial, is no longer warranted. Even if we could agree that because jail sentences are in practice no longer imposed for speeding violations the social opprobrium attached to a conviction of speeding is so minuscule as to render the offense petty, would we, or could we, say the same regarding convictions for second degree petty theft (SDCL 22-30A-17), indecent exposure (SDCL 22-24-1), or gambling (SDCL 22-25-1)? These too are Class 2 misdemeanors, but it is doubtful whether they are petty offenses within the meaning of Wikle.

Moreover, even if the majority opinion were limited to speeding cases, leaving for another day the determination regarding other Class 2 misdemeanors, I would be loath to make a defendant's right to a jury trial dependent upon the ad hoc determination of a magistrate or judge. As the Supreme Court of Louisiana has held,

[A] defendant may not be deprived of his right to a jury trial through the expedient of a trial judge's guarantee of a sentence of six months or less in the event of conviction. State v. Grimble, 397 So.2d 1254 (La.1981). The legislative determination of a case's seriousness entitles an accused to a jury trial, not the possibly arbitrary decision of a trial court.

State v. Jones, 396 So.2d 1272, 1274 (La.1981). Likewise, the Court of Appeals for the Ninth Circuit has stated: "The Supreme Court has repeatedly asserted that the right to a jury trial should depend not upon the predelictions of the particular judge, but upon application of objective standards reflected in the law and practices of the community ...." United States v. Hamdan, 552 F.2d 276, 279 (9th Cir.1977).

In sum, then, rather than to make a blanket pronouncement that all Class 2 misdemeanors are petty offenses or to engage in a case by case analysis of what constitutes a petty offense, I would leave it to the legislature to determine whether certain Class 2 misdemeanors are no longer deserving of carrying a penalty of a possible jail sentence. Once that legislative determination has been made, then pursuant to Wikle no jury trial need be afforded.

HENDERSON, Justice (dissenting).

I dissent.

The State Legislature has the power to set maximum sentences for crime. The trial courts of this state must use discretion to impose sentences within maximums and minimums allowed by the legislature. By changing the maximum sentence as set by the legislature, the law-trained magistrate attempted to skirt the constitutional right of a trial by jury. The legislature prescribed a maximum sentence for this offense which included incarceration. A trial court judge affirmed the law-trained magistrate's decision. Constitutionally, and by enactments of the State Legislature, they were both wrong. I ground my dissent on a quote from the United States Supreme Court found in Bak v. Jones County, 87 S.D. 468, 477, 210 N.W.2d 65, 70 (1973), written by the first Chief Justice of this Court, the Honorable Frank Biegelmeier: " 'Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.' " (Quoting Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed. 204, 234 (1824)). This Court, or the trial court, must give effect to the will of the legislature--to the will of the law. A judicial system cannot survive where judicial power is exercised for the purpose of giving effect to the will of a judge.

Violation of SDCL 32-25-8 (state speeding statute) is a Class 2 misdemeanor as provided expressly by SDCL 32-25-20. Punishment for a Class 2 misdemeanor is thirty days imprisonment in a county jail or $100 fine, or both. See SDCL 22-6-2. The South Dakota Unified Judicial System data reflects some "jail time" sentencing on speeding convictions.

A crime in South Dakota is defined under SDCL 22-1-3 and includes an offense punishable, upon conviction, by

(1) Imprisonment[.]

The South Dakota Constitution art. VI, Sec. 7, provides:

In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Unilaterally, the law-trained magistrate reclassified a Class 2 misdemeanor as a petty offense. He tried to bend the law for the sake of convenience. He exercised his judicial power to give effect to his will, not the will of the law.

The legislature may come forth and change the law if it wishes but it cannot be done at magistrate court or ...