State v. Burgers
| Decision Date | 27 October 1999 |
| Docket Number | No. 20790.,20790. |
| Citation | 602 N.W.2d 277,1999 SD 140 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. James Walter BURGERS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
Michael J. Butler, Sioux Falls, for defendant and appellant.
[¶ 1.] James Walter Burgers appeals the denial of an order for change of judge and the refusal to grant bail pending appeal. His request for a change of judge was untimely because he pleaded guilty earlier, and the denial of bail was not an abuse of discretion. We affirm.
[¶ 2.] On June 12, 1998, Burgers appeared with counsel in magistrate court on a complaint charging sexual contact with a child. He waived his right to a preliminary hearing. The magistrate judge then set bond at $10,000 because he found that Burgers posed a danger to others and was a flight risk. An arraignment was scheduled for Monday, June 15, 1998, before Presiding Circuit Judge Judith K. Meierhenry. Because of a death in her family, Judge Meierhenry was away on June 15. Judge William J. Srstka, Jr. handled the scheduled arraignments in her absence. At the beginning of the proceedings, however, Judge Srstka informed all parties that the cases he heard that morning would be assigned to him.
[¶ 3.] In open court, Burgers was fully informed of all his constitutional and statutory rights. Following the reading of the information charging Burgers with the same offense alleged in the earlier complaint, the judge thoroughly canvassed him about his rights and his intent to plead guilty. By plea agreement he was to plead guilty to one incident and no other charges concerning the same victim would be brought against him. The record shows that Burgers made his decision knowingly, intelligently, and voluntarily, with advice and assistance of counsel. He pleaded guilty to sexual contact with a child under sixteen years of age, a violation of SDCL 22-22-7. When the judge sought the facts to support the plea, the prosecutor responded that both sides had agreed to "reserving a factual basis until the time of sentencing." The court therefore postponed taking a factual basis and ordered a presentence investigation. No sentencing date was set at that time.
[¶ 4.] Eleven days later, by letter dated June 26, 1998, Burgers' attorney asked Judge Srstka to recuse himself. Counsel also filed an affidavit for change of judge. The matter came before Presiding Judge Meierhenry who declined to assign another judge because Burgers' request was untimely. Burgers asked for reconsideration, contending that Judge Srstka's appearance at the arraignment was unanticipated. Judge Meierhenry then granted Burgers' request for a change of judge.
[¶ 5.] On August 12, 1998, Judge Meierhenry again reconsidered. She concluded that Burgers waived his right to disqualify Judge Srstka by entering a guilty plea. Her letter decision stated: But here, before the guilty plea, Judge Srstka had announced that he was assigned to the case. A guilty plea, Judge Meierhenry ruled, was a "submission to a judge ... of argument or proof in support of a motion or application." Burgers' request for a change of judge was again denied.
[¶ 6.] On October 26, 1998, Burgers appeared for sentencing before Judge Srstka. The court accepted the guilty plea as voluntary: Burgers was represented by competent counsel, was advised of his rights, knew the nature of the charges against him, and realized the consequences of a guilty plea. By agreement, the presentence investigation report provided the factual basis. Burgers was sentenced to fifteen years in the penitentiary, with ten years suspended on conditions. He then moved for bail pending appeal. His request was summarily denied. [¶ 7.] Burgers now appeals, raising two issues: (1) Whether the presiding judge erred in holding that a guilty plea is a "submission to a judge ... of argument or proof in support of a motion or application" under SDCL 15-12-24.(2) Whether the sentencing court erred in denying bail pending appeal.
[¶ 8.] An objection to a designated judge raises a question of jurisdiction. Denny v. Commonwealth, 175 Ky. 357, 194 S.W. 330, 332 (1917); see J.H. Cooper, Annotation, Time for Asserting Disqualification of Judge, and Waiver of Disqualification, 73 A.L.R.2d 1238, 1263 (1960). Jurisdiction is a question of law. Kroupa v. Kroupa, 1998 SD 4, ¶ 10, 574 N.W.2d 208, 210. We review legal questions de novo. Id. (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17). With legal questions no deference is given to the circuit court's conclusions. Id. (citing Kent v. Lyon, 1996 SD 131, ¶ 15, 555 N.W.2d 106, 110).
[¶ 9.] Although some situations will permit late filing of affidavits for change of judge (SDCL 15-12-28), parties waive the right to disqualify judges to whom they submit "argument or proof in support of a motion or application[.]" SDCL 15-12-24.1 The question here is whether a guilty plea is a "submission." Our procedural rules give no explicit answer.
[¶ 10.] Out-of-state authority provides little assistance because other jurisdictions have dissimilar recusal statutes. In reviewing those cases, nonetheless, we see that some courts find a distinction between a defendant offering a guilty plea and a court accepting that plea. Those decisions are based on statutory language allowing removal of a judge before a matter is "called for trial" or a "contested issue" is determined.2 Our rule makes the triggering event the "submission" of "argument or proof." Although it was not until after his change of judge request that Burgers' plea was accepted, it was before the request that his plea was submitted.
[¶ 11.] South Dakota law expressly sanctions delayed acceptance of a guilty plea. Under SDCL 23A-7-14 (Rule 11(f)), "[t]he court shall defer acceptance of any plea except a plea of nolo contendere until it is satisfied that there is a factual basis for the offense charged or to which the defendant pleads." (Emphasis added.) "The court may not enter a judgment unless it is satisfied that there is a factual basis for any plea except a plea of nolo contendere." SDCL 23A-7-2 (Rule 11(a)). Furthermore, "the court may accept or reject the [plea] agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report." SDCL 23A-7-9 (Rule 11(e)(2))(emphasis added). These enactments contemplate no change of judge while acceptance of a plea is delayed. On the contrary, deferment allows a judge further time to consider the matter.3 Here, both sides agreed to reserve inquiry into the factual basis until the sentencing date.
[¶ 12.] In State v. Chamley, 1997 SD 107, ¶ 42, 568 N.W.2d 607, 619, we held that the submittal of motions and an attempt to argue their merits constitute a waiver of the right to seek recusal. Waiver affixed though the court made no ruling on any pending motion. Id. Likewise, we interpret the recusal waiver rule as not requiring a court to accept a plea before it is considered a "submission." A guilty plea is "proof" on an "application" which a court may reject, accept, or defer. With a plea of guilty the prosecutor's burden of proof is relieved, and thus the plea is itself proof or its equivalent.
[¶ 13.] Here, we are interpreting our own rules, not legislative enactments, but we see no reason to depart from established canons. Our aim in interpretation, discovering intent, should not be limited to reading bare language; "we must also reflect upon the purpose of the [rule], the matter sought to be corrected and the goal to be attained." De Smet Ins. Co. of South Dakota v. Gibson, 1996 SD 102, ¶ 7, 552 N.W.2d 98, 100 (citations omitted). The purpose behind our peremptory recusal rules is to allow removal of a judge without stating any reason if a party entertains concern about a judge's impartiality. Once a party puts a matter before a judge, however, judicial economy and fairness to the other parties require that it remain there. Presiding Judge Meierhenry did not err in disallowing the affidavit for change of judge.
[¶ 14.] Burgers argues that the trial court abused its discretion by not setting bail pending appeal. SDCL 23A-43-16 states in part:
On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment, pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay.... If, however, the judgment imposes only a fine, conditional release under this section is a matter of right.
(emphasis added). SDCL 23A-43-4 lists the factors the court shall consider in bail matters:
In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record...
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