State v. Bailey

• Decision Date: 14 March 1996
• Docket Number: No. 19283,19283
• Citation: 546 N.W.2d 387,1996 SD 45
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Eric D. BAILEY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 387

546 N.W.2d 387

1996 SD 45

STATE of South Dakota, Plaintiff and Appellee, v. Eric D. BAILEY, Defendant and Appellant.

No. 19283.

Supreme Court of South Dakota.

Considered on Briefs March 14, 1996.

Decided April 24, 1996.

Mark Barnett, Attorney General, Jennifer K. Trucano, Assistant Attorney General, Pierre, for plaintiff and appellee.

Steven R. Binger, Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 Eric D. Bailey appeals from a judgment convicting him of first degree manslaughter and from the trial court's order denying his motion to withdraw a guilty plea entered prior to sentencing. We affirm.

FACTS AND PROCEDURE

¶2 Anthony Rowe, was shot and killed during a struggle that occurred outside the Frontier Bar in Sioux Falls, South Dakota on April 17, 1994. On April 29, 1994, Eric D. Bailey was indicted by a grand jury on count one, first degree murder and count two, first degree manslaughter in the death of Rowe.

¶3 The court appointed Sidney B. Strange, a Sioux Falls attorney, to represent Bailey. At the time of this appointment, Strange had over twenty-five years of substantial experience as a criminal defense attorney in both state and federal courts. His experience included defending many persons charged with homicide. The trial court granted Strange authority to hire a defense team for Bailey consisting of a private investigator, two firearms experts from Texas, a forensic pathologist, another lawyer, and a legal intern.

¶4 Bailey was arraigned and pled not guilty to both counts. Preparation of Bailey's defense included travel by Strange or members of Bailey's defense team to Arizona, Louisiana, Texas, Kansas, Missouri, and throughout South Dakota. Pre-trial motions were filed on Bailey's behalf. Beginning October 3, 1994, a week was spent selecting a jury for trial. During this week, plea negotiations took place but no agreement was reached. After selection of the jury but before opening statements, Bailey moved to postpone trial due to newly discovered evidence. This motion was granted and a new trial date set for February 21, 1995.

¶5 On February 13 and 14, 1995, Bailey, Strange, and the private investigator, Tim Mulloy, discussed prospective pleas and the ramifications of entering into a plea agreement. Bailey authorized Strange to contact the State's Attorney about the possibility of a plea bargain. The State's Attorney informed Strange he would need to speak with the victim's family first and would get back to Strange. On the morning of February 14, at approximately 7:30 a.m., the State communicated an offer of a plea bargain to Strange, who in turn communicated the offer to Bailey at approximately 8:15 a.m. The offer consisted of the State's agreement to dismiss the count one, first degree murder charge if Bailey pled guilty to count two, first degree manslaughter. This was to be an "open" plea, with both the State and Bailey free to recommend a sentence. By dropping the murder charge, upon a conviction Bailey would not be facing the possibility of the death penalty or the alternative of a mandatory life sentence with no parole. The first degree manslaughter charge carried a maximum sentence of life without parole and imposition of a $25,000 fine but no mandatory minimum sentence. SDCL 22-16-15; SDCL 22-6-1(3).

¶6 On the afternoon of February 14, at approximately 3:30 p.m., Strange communicated to the trial court that Bailey intended to plead guilty to manslaughter in the first degree. This was after Strange had spent two hours with Bailey discussing his rights and the consequences of a change of plea from not guilty to guilty. As the trial court found it had time available that afternoon, Bailey was brought to the Minnehaha County Courthouse where the trial court re-arraigned Bailey and accepted Bailey's plea of guilty. Sentencing was deferred pending completion of a presentence investigation.

¶7 In conducting the presentence investigation, a court services officer visited with Bailey in his jail cell. Bailey advised the officer he felt he had been hurried into the plea, had not spent sufficient time with Strange, had been misadvised regarding the situation, and that he wished to withdraw his guilty plea. On March 27, 1995, Bailey filed a motion to withdraw his guilty plea. Bailey supported the motion with an affidavit in which he informed the trial court, among other things, 1) he had been hurried into the courtroom on February 14 when he had not yet made a firm decision on whether he would change his plea; 2) he was traumatized at the time and does not remember the proceedings; 3) he had had difficulty sleeping since the change of plea; 4) the guilty plea was not his own but actually his attorney's plea; and 5) his lack of education and intelligence interfered with his ability to enter a fully informed and voluntary plea. Bailey further affied that he "was forced to appear before the Court and enter a purported guilty plea without having nearly enough time to think things through for himself." He claimed he was "absolutely innocent" of the crime charged and had no memory of it. At Bailey's request, the trial court appointed substitute counsel for Bailey. Also at Bailey's request, the court ordered Bailey to undergo psychiatric examination.

¶8 A hearing was held June 6, 1995 on Bailey's motion to withdraw his plea. The psychiatrist who examined Bailey, Dr. David Bean, testified that Bailey was competent to stand trial and competent to enter a plea. Dr. Bean testified Bailey was not suffering from any mental diseases or delusions, but that he was "intellectually impoverished" and tested for I.Q. in the mild mental retardation range. He further testified that Bailey may not have understood what the trial court was asking of him at his re-arraignment and if not, Bailey's answers would not be reliable. Dr. Bean also admitted Bailey may have understood the court's questions. Although present at this hearing, Bailey did not testify in support of his motion. After considering the testimony and evidence presented at the hearing, the trial court denied Bailey's motion. Bailey appeals raising the following issues:

1. Whether the trial court abused its discretion by denying Bailey's motion to withdraw his guilty plea?

2. Whether the trial court improperly admitted an affidavit by the State to establish prejudice?

ANALYSIS AND DECISION

¶9 1. Whether the trial court abused its discretion by denying Bailey's motion to withdraw his guilty plea?

¶10 SDCL 23A-27-11 provides that:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice a court after sentence may set aside a judgment of conviction and permit the defendant to withdraw his plea.

¶11 The withdrawal of a guilty plea before the imposition of sentence is within the sound discretion of the trial court. There is no absolute right to withdraw a guilty plea. State v. Grosh, 387 N.W.2d 503, 505 (S.D.1986). We review a trial court's refusal to permit a defendant to withdraw his guilty plea prior to sentencing under an abuse of discretion standard. "The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." State v. Engelmann, 541 N.W.2d 96, 100 (S.D.1995) (quoting State v. Flying Horse, 455 N.W.2d 605, 607-08 (S.D.1990)).

¶12 When a defendant moves to withdraw a guilty plea prior to imposition of sentence, the trial judge's discretion in the matter should be exercised liberally in favor of withdrawal, unless it appears that the state has detrimentally relied upon the plea and the prosecution of the defendant has been thereby prejudiced. State v. Lohnes, 344 N.W.2d 686, 687 (S.D.1984). "When deciding whether to allow a criminal defendant to withdraw his plea, the trial court must look at the reasons why the plea is sought to be withdrawn and if the request to withdraw is obviously frivolous, the trial court need not grant it." State v. Wahle, 521 N.W.2d 134, 137 (S.D.1994) (quoting Grosh, 387 N.W.2d at 506).

¶13 Bailey bears the burden of proving sufficient grounds to withdraw his guilty plea. See United States v. Smith, 818 F.Supp. 123, 126 (W.D.Pa.1993), aff'd, 14 F.3d 50, cert. denied, 510 U.S. 1184, 114 S.Ct. 1235, 127 L.Ed.2d 579 (1994) (Defendant who has pled guilty no longer enjoys presumption of innocence and, on motion to withdraw plea, bears burden of production and persuasion). He must state a persuasive reason why withdrawal should be permitted and that reason must show more than the mere desire to have a trial. Grosh, 387 N.W.2d at 506.

¶14 Bailey claims the trial court abused its discretion in not granting his motion to withdraw his plea of guilty in view of his mental retardation, his assertion of innocence and the State's failure to produce evidence of prejudice. We address these contentions seriatim.

¶15 A. Bailey's mental capacity

¶16 Bailey dropped out of school after the eighth grade and, by all accounts, he can barely read or write. The examination by Dr. Bean revealed Bailey lacks basic math skills and knowledge of our governmental system. Dr. Bean testified that Bailey's I.Q. score of 66 indicated mild mental retardation. ¹ However, Bailey did understand and express knowledge of the basic functions of defense lawyers, prosecutors, the judge and jury, in a criminal case.

¶17 Bailey's criminal record indicates he has had previous experience with plea negotiations and the consequence of entering a guilty plea. In 1987, he pled guilty to armed robbery in the State of Louisiana. As a result of this plea, Bailey was sentenced to six years of hard labor in that state's prison system. While incarcerated in the Minnehaha County jail, Bailey also revealed his knowledge of legal procedures by filing, pro se, a Title 42 USC § 1983 action against the county sheriff. Bailey also meaningfully...