State v. Beckley

• Decision Date: 05 December 2007
• Docket Number: No. 24062.,24062.
• Citation: 2007 SD 122,742 N.W.2d 841
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Joshua Steven BECKLEY, Defendant and Appellant.
• Court: South Dakota Supreme Court

742 N.W.2d 841

2007 SD 122

STATE of South Dakota, Plaintiff and Appellee, v. Joshua Steven BECKLEY, Defendant and Appellant.

No. 24062.

Supreme Court of South Dakota.

Considered on Briefs February 13, 2007.

Decided December 5, 2007.

Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Attorneys for plaintiff Pierre, South Dakota and appellee.

Steven R. Binger, Attorney for defendant Sioux Falls, South Dakota and appellant.

ZINTER, Justice.

[¶ 1.] Joshua Beckley (Beckley) appeals his conviction of possession of a controlled substance. He contends that the trial court failed to properly advise him of his right to compel witnesses prior to receiving his guilty plea. He also contends that the trial court abused its discretion in refusing to continue the sentencing hearing to allow a psychological evaluation. We affirm on the advisement of rights issue, but reverse and remand for resentencing for the failure to grant the continuance.

[¶ 2.] After being previously told to leave, Beckley was observed videotaping a young woman at a retail store in Sioux Falls. He was again asked to leave and law enforcement responded. Earlier that day Beckley was involved in another incident where he stopped two young women in a car, approached them with a video camera, and asked them to get out of their vehicle. He claimed he was a city employee investigating littering. The women refused his request, left the scene, and reported the incident to law enforcement.

[¶ 3.] During a search incident to his subsequent arrest, methamphetamine was found in Beckley's sock and a methamphetamine pipe with residue was found in his vehicle. While he was free on bond on these charges, Beckley was observed taking pictures of a young girl from behind. In yet another incident, Beckley was observed staring in windows and attempting to enter a university dormitory wearing only underwear and a tank top. In a final incident, Beckley was arrested for driving under the influence. As a result of the foregoing conduct, Beckley was charged with possession of methamphetamine, possession of drug paraphernalia, unlawful occupancy, window peeking and third offense driving under the influence.

[¶ 4.] On April 6, 2005, Beckley was arraigned before Magistrate Judge Julie Irvine. During the arraignment he was advised of his constitutional and statutory rights, including the right to compel witnesses. On May 16, 2005, Beckley appeared before Circuit Judge Peter H. Lieberman for a second arraignment. Beckley was again advised of his constitutional and statutory rights, including the right to compel witnesses. Thereafter, Beckley entered into a plea agreement under which he agreed to plead guilty to possession of methamphetamine in exchange for a dismissal of the remaining charges and reduction of the third offense DUI to a misdemeanor.

[¶ 5.] On January 13, 2006, Beckley appeared with counsel at his change of plea hearing. Judge Lieberman again informed Beckley of his constitutional and statutory rights, but this time did not inform him of his right to compel witnesses. The court did, however, canvass defense counsel concerning Beckley's understanding of his rights. Counsel indicated Beckley understood the consequences of his plea after their "considerable discussion." Beckley then entered a guilty plea to possession of methamphetamine. The DUI charge was the subject of a separate proceeding that is not at issue in this appeal.

[¶ 6.] On March 8, 2006, Beckley appeared for sentencing on the methamphetamine offense. Judge Lieberman asked Beckley's separate counsel on the DUI charge if she and Beckley had also discussed his constitutional and statutory rights. She indicated they had. Defense counsel on the methamphetamine charge then attempted to call two sentencing mitigation witnesses and sought a continuance to obtain psychological testing at the defendant's own expense to be utilized at sentencing. This motion for the continuance was accompanied by a subpoena for Jack Dodge, a former doctor and one of Beckley's fellow inmates who was awaiting sentencing on federal drug charges. Counsel sought to call Dodge as a witness to Beckley's mental state, which would have further supported the request for the psychological testing in mitigation of punishment. A handwritten note from Dodge explained the nature of his proposed testimony. The motion was finally supported by an affidavit of counsel indicating that the continuance was necessary because of a conflict in the scheduling of a professional examination. The circuit court denied the request to call the witness and denied the request for a continuance. Beckley was sentenced to eight years in the state penitentiary. He appeals raising two issues.

I.

[¶ 7.] Whether Beckley should be allowed to withdraw his guilty plea because the sentencing court did not advise him of his right to compel witnesses prior to receiving the guilty plea.

[¶ 8.] "[I]n order for a conviction based upon a guilty plea to stand the plea must be intelligent and voluntary. Such a plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having that understanding, waives these rights by a plea of guilty." Lodermeier v. State, 273 N.W.2d 163, 164 (S.D.1978) (citations omitted).¹ SDCL 23A-7-4 (Rule 11(c)) "establishes a procedure for the judge to follow to ensure that a guilty plea is knowing and voluntary." State v. Goodwin, 2004 SD 75, ¶ 7, 681 N.W.2d 847, 850. That statute provides:

Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in 23A-7-5, and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law (2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;

(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;

(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and

(5) That if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.

[¶ 9.] Although SDCL 23A-7-4 does not specifically require an advisement of the right to compel witnesses, both the United States and South Dakota Constitutions guarantee that right. US Const amend VI; SD Const art VI, sec 7. This Court has reiterated the United States Supreme Court's characterization of the right to compulsory process:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

State v. Wiegers, 373 N.W.2d 1, 8 (S.D. 1985) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967)).²

[¶ 10.] Although compulsory process has been recognized as a fundamental element of due process, the failure to advise a defendant of all constitutional and statutory rights does not necessarily vitiate a guilty plea. For example, SDCL 23A-7-4 has been characterized as only a "procedural safeguard" for determining that a guilty plea is knowing and voluntarily entered. State v. Miller, 2006 SD 54, ¶ 18, 717 N.W.2d 614, 620. "There is no requirement that the record show an express enumeration by the court nor an express waiver by the defendant ... as a condition precedent to a voluntary and intelligent guilty plea." State v. Moeller, 511 N.W.2d 803, 810 (S.D.1994) (citation omitted). Furthermore, even "[s]pecific articulation of the Boykin rights by the trial judge is not an indispensable requisite for the record to establish a valid plea." Id. "It is sufficient when the record in some manner shows the defendant entered his plea understandingly and voluntarily." Id. "The record need only show that he knew of his rights and the consequences of his guilty plea." Id.

[¶ 11.] Beckley, however, cites this Court's decision in State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731 (1946), for the proposition that the failure to advise of the right to compel witnesses before receiving a guilty plea requires automatic reversal. In that case, this Court held that a failure to advise a pro se defendant of various rights, including the right to confront the witnesses against him, the right to compulsory process for the witnesses on his behalf, and the right to a speedy public trial by an impartial jury of the county was a jurisdictional defect entitling the defendant to habeas relief when the record indicated the defendant did not sufficiently understand these rights. Id. at 732-33. At the time Henning was decided, this Court recognized a presumption that a defendant represented by counsel waived these rights by a guilty plea; however, a ...