State v. Bolger, 13837

• Decision Date: 27 April 1983
• Docket Number: No. 13837,13837
• Citation: 332 N.W.2d 718
• Parties: STATE of South Dakota, Respondent and Appellee, v. Paul Anthony BOLGER, Petitioner and Appellant.
• Court: South Dakota Supreme Court

Page 718

332 N.W.2d 718

STATE of South Dakota, Respondent and Appellee, v. Paul Anthony BOLGER, Petitioner and Appellant.

No. 13837.

Supreme Court of South Dakota.

Argued Nov. 17, 1982.

Decided April 27, 1983.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, for respondent and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Jeffrey L. Viken of Finch & Viken, Rapid City, for petitioner and appellant.

MORGAN, Justice.

This appeal arises from the denial of appellant Paul Bolger's (Bolger) petition for post-conviction relief. We affirm.

Bolger sought relief below from a plea of guilty arising from a murder charge for the beating death of Emory Joe Charging on April 17, 1979. In May of 1979, Bolger originally entered a plea of not guilty and not guilty by reason of mental illness. On September 17, 1979, as a result of plea bargaining negotiations, the State moved to reduce the murder charge to manslaughter in the first degree and Bolger pled guilty to the latter charge. On that plea, he was sentenced on October 4, 1979, to serve a term of eighty years in the South Dakota State Penitentiary. He petitions for post-conviction relief, asserting two grounds: first, that the sentencing judge had participated in the plea-bargaining arrangements, contrary to SDCL 23A-7-8, thereby vitiating the same; and second, that his plea of guilty was not intelligently, knowingly and voluntarily entered.

Bolger's initial contention is based upon SDCL 23A-7-8 and centers on the last sentence thereof, which provides: "A court shall not participate in such discussions." Bolger contended that on September 10, 1979, when the negotiations were in progress, counsel met with the trial judge to discuss the plea bargain. This was one week before the same trial judge presided at his change-of-plea proceedings. Bolger urges this court to adopt a strict application of this rule, which would prohibit any exchange between counsel and the court.

The court below found as a finding of fact "[t]hat there is no indication from the record that there was any participation by the judge in the plea bargaining between counsel in this matter." Finding of Fact IX. Additionally, the trial court held, "[t]hat the Court did not participate in any plea bargaining between counsel, and only became involved after the parties had reached an agreement." Finding of Fact X. On review, this court may disturb a circuit court's finding of fact only if the evidence preponderates against them. Brim v. State, 290 N.W.2d 680 (S.D.1980).

The record reflects that during the September 10, 1979, meeting between counsel and the trial judge, counsel approached the trial judge concerning the likelihood of his accepting a plea bargain. ¹ The plea bargain itself had apparently been developed by counsel. In effect, the plea bargain called for the State to file an amended information charging manslaughter in the first degree, dismissing the Murder information, and recommending to the trial court that a sentence up to a maximum seventy years be imposed. Bolger, on his part, would plead guilty to the manslaughter charge. The record shows that the trial court merely indicated that it would go along with the charge adjustment but that it would not be bound by a seventy-year maximum on the sentence.

We note that the trial judge meticulously questioned Bolger regarding his understanding of the charge, his constitutional rights and possible ramifications of the plea. These actions are a judge's responsibility and cannot be construed as participation prohibited by SDCL 23A-7-8. In our view, from the record, Bolger has neither established a basis for post-conviction relief, nor has he shown that the evidence preponderates against the findings that the judge did not participate in the plea bargain. Consequently, we affirm the trial court below on this issue.

Bolger's second issue on appeal is that his guilty plea to manslaughter in the first degree was not voluntarily made because the circumstances here rendered his guilty plea invalid. According to Bolger, these circumstances include participation by the trial judge in the plea-bargain process, his age of nineteen and one-half years when he made this plea bargain, his mental condition, his consumption of medication during the plea process, and the complex nature of the plea-bargain arrangement. This court in Clark v. State, 294 N.W.2d 916 (S.D.1980), stated that the court will look at the totality of the circumstances to determine whether a guilty plea was made knowingly and voluntarily. ²

We have already discussed the participation by the trial judge in the plea-bargaining process. As to Bolger's mental condition, the record reflects that he had been diagnosed as suffering from schizophrenic psychosis and had been deemed a sociopath. However, at the change of plea hearing Bolger's counsel acknowledged that, due to the psychiatric reports, it was unlikely that a jury would find Bolger not guilty by reason of mental illness.

As to the complexity of the nature of the plea-bargaining arrangement, the trial judge repeatedly asked Bolger if he understood the plea arrangement. Bolger expressed some confusion but when he did not understand a point, either the judge or Bolger's attorney explained it. As Bolger stated at one point, "No, I've already decided I'm going to make my plea. I had six months to think about it."

The record reflects that Bolger expressed some confusion at the change-of-plea proceeding. The post-conviction court made extensive findings on this issue. The court found:

V.

That counsel and the Court...