State v. Bailey, 16911

• Decision Date: 19 September 1990
• Docket Number: No. 16911,16911
• Citation: 464 N.W.2d 626
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. James BAILEY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 626

464 N.W.2d 626

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

No. 16911.

Supreme Court of South Dakota.

Considered on Briefs Sept. 19, 1990.

Decided Jan. 2, 1991.

Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief.

Gary G. Colbath of Banks, Johnson, Johnson, Colbath & Huffman, P.C., Rapid City, for defendant and appellant.

SABERS, Justice.

Bailey pled guilty to a charge of intentional damage to property and received a suspended sentence. He appeals the revocation of his probation based on aggravated assault.

FACTS

On January 18, 1989, Bailey was arraigned on a felony charge of intentionally damaging property at a Belle Fourche motel in violation of SDCL 22-34-1. Bailey pled guilty. The court suspended imposition of sentence and placed Bailey on 5 years probation on the condition that he "obey all federal and state laws and municipal ordinances" and "take medication as prescribed by Ft. Meade."

The purpose of the medication Bailey was receiving from the Ft. Meade Veteran's Administration Medical Center was to control the onset of psychotic episodes caused by a bipolar mood disorder. Bailey would periodically receive injections of the drug Haldol at Ft. Meade, and, in the interim between Haldol injections, would take the drug Ativan orally. The property damage at the Belle Fourche motel was associated with Bailey's failure to take his prescribed medication.

On April 18, 1989, Bailey began to feel the onset of another psychotic episode. His next Haldol injection was not scheduled until the following day and the Ativan was not working. Bailey attempted to persuade emergency room personnel at a Spearfish hospital and the Ft. Meade V.A. Center to administer his Haldol injection early, but both refused. The next day Bailey was arrested for disorderly conduct during a loud public argument with a friend in Spearfish. On the night of his arrest, Bailey was without any medication and attacked a guard at the Lawrence County Jail in Deadwood. Bailey was indicted for aggravated assault against the jailer in violation of SDCL 22-18-1.1(3).

On May 4, 1989, the court services officer assigned to supervise Bailey's probation on the earlier damage to property charge petitioned the court to revoke Bailey's probation based on the aggravated assault charge. During the summer of 1989, Bailey was examined by Dr. Johnson of the South Dakota Human Services Center in Yankton pursuant to a court order, and Dr. Manlove of Rapid City, at the request of Bailey's counsel. Both psychiatrists diagnosed Bailey's bipolar mood disorder, and both reported that he was capable of assisting in his own defense and knew right from wrong on April 19.

Following a Probation Revocation Hearing on September 22, 1989, the court ruled that Bailey violated the terms of his probation. Bailey was evaluated a second time at the Human Services Center in Yankton to determine his competence. The examining psychiatrist, Dr. Lee, affirmed that Bailey was competent to stand trial.

On October 30, 1989, Bailey was permitted to withdraw his January 18, 1989, guilty plea to the property damage charge and to substitute a plea of guilty but mentally ill. SDCL 23A-7-2(5), 23A-27-38. The court revoked Bailey's probation, sentenced him to four years' imprisonment for intentional damage to property in violation of SDCL 22-34-1, and ordered that he receive psychiatric help while in prison consistent with the provisions of SDCL 23A-27-38. The court entered Supplemental Findings of Fact and Conclusions of Law to the effect that Bailey was mentally ill--but neither insane nor incompetent to stand trial--at all times relevant to this proceeding. The aggravated assault charge was subsequently dropped.

Bailey appeals the order revoking his probation on two grounds: (1) lack of adequate factual basis for the trial court's determinations, and (2) lack of sufficiently informed consent by Bailey to the pleas.

1. Lack of Factual Basis

Bailey claims the trial court lacked a sufficient factual basis for accepting his January 18 guilty plea and his October 30 guilty but mentally ill plea. See SDCL 23A-7-14. The burden is on Bailey to demonstrate this, Spirit Track v. State, 272 N.W.2d 803, 804 (S.D.1978), and we may not upset the trial court's factual findings unless they are clearly erroneous. SDCL 15-6-52(a); Spirit Track, at 804.

In Spirit Track, we found a lack of factual basis for the trial court's acceptance of the defendant's guilty plea. In that case, however, there was no testimony or evidence suggesting the defendant's guilt except for the defendant's plea, and that plea was contradicted by the defendant's own collateral remarks to the court. Here, there is evidence consistent with Bailey's original plea that he did in fact do damage to the motel room in excess of $200.00. The trial court also had the testimony of two psychiatrists that, consistent with Bailey's amended plea, he was mentally ill at the time of the offense. See SDCL 23A-7-16. In short, the finding of a factual basis for acceptance of the pleas is not clearly erroneous.

Bailey's brief suggests that a mentally ill person could not have formed the specific intent to "intentionally injure[ ], damage[ ], or destroy[ ]" the motel property (emphasis supplied). SDCL 22-34-1. The simple answer is that SDCL 22-34-1 is not a specific intent crime. State v. Balint, 426 N.W.2d 316 (S.D.1988). See also State v. Huber, 356 N.W.2d 468 (S.D.1984). The crime as defined in the statute calls for intent as opposed to negligence or recklessness--not specific intent as opposed to general intent.

Bailey also claims insufficient evidence in the record to justify the ultimate decision to revoke probation. However, as Bailey concedes, the requisite standard of proof is low: as long as the court is "reasonably satisfied" that Bailey's probation conditions were violated, and the evidence is adequate to support that minimal level of certainty, the court has not abused its discretion in revoking probation and its decision will be upheld. State v. Herrlein, 424 N.W.2d 376, 377 (S.D.1988); State v. Burkman, 281 N.W.2d 442, 443 (S.D.1978).

Although conviction of a collateral offense is not a prerequisite to revocation Herrlein, 424 N.W.2d at 378 (Henderson, J., concurring in result), in this case the revocation was based on the allegation that Bailey had violated his probation by breaking a law. Therefore, the court had to be reasonably satisfied that Bailey committed aggravated assault.

In view of the extenuating circumstance of Bailey's attempts to get the medication he required and the psychiatric testimony about his degree of contact with reality, it is not a foregone conclusion that he would have been convicted of aggravated assault. See, e.g., Robinson v. Solem, 432 N.W.2d 246, 250 (S.D.1988). Nevertheless, there is sufficient evidence in the record to "reasonably satisfy" the trial court of Bailey's guilt. Therefore, its decision to revoke probation was not an abuse of discretion.

2. Lack of Informed Consent

Even assuming the court had an adequate factual basis for accepting Bailey's pleas and for revoking his probation, Bailey argues that he did not make the pleas "knowingly, voluntarily and intelligently."

As a matter of federal constitutional law, "[a] plea of guilty cannot stand unless the record in some way indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination." Stacey v. State, 349 N.W.2d 439, 441 (S.D.1984) (citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). In addition to waivers of these three "Boykin rights," the record must disclose, as a matter of South Dakota law, that the defendant understood the nature and consequences of his plea. Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198 (1970). While there is no set formula for establishing on the record the voluntariness of a guilty plea, "[t]he trial court must normally inform the defendant of these rights personally to insure that the record indicates a free and intelligent waiver of these rights." Logan v. Solem, 406 N.W.2d 714, 716-717 (S.D.1987) (emphasis original). The court's obligation to satisfy itself as to each of these four prerequisites before accepting a guilty or a guilty but mentally ill plea by "address[ing] the defendant...