State v. Burkett, No. 26812.

CourtSupreme Court of South Dakota
Writing for the CourtGILBERTSON
Citation849 N.W.2d 624,2014 S.D. 38
Decision Date25 June 2014
Docket NumberNo. 26812.
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Joseph BURKETT, Defendant and Appellant.

849 N.W.2d 624
2014 S.D. 38

STATE of South Dakota, Plaintiff and Appellee,
v.
Joseph BURKETT, Defendant and Appellant.

No. 26812.

Supreme Court of South Dakota.

Considered on Briefs March 24, 2014.
Decided June 25, 2014.


[849 N.W.2d 625]


Marty J. Jackley, Attorney General, Paul S. Swedlund, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

[849 N.W.2d 626]

Kirk W. Albertson, Office of the Lawrence County, Public Defender, Deadwood, South Dakota, Attorneys for defendant and appellant.


GILBERTSON, Chief Justice, and ZINTER, Justice.

[¶ 1.] Chief Justice Gilbertson delivers the majority opinion of the Court as to Issue 2 and Issue 3. Justice ZINTER delivers the majority opinion of the Court as to Issue 1.

[¶ 2.] Gilbertson, Chief Justice, writing for the Court on Issue 2 and Issue 3.

[¶ 3.] Joseph Burkett appeals his conviction for third offense driving under the influence (DUI). We affirm.

Facts and Procedural History

[¶ 4.] On January 26, 2013, Joseph Burkett visited a Napa Auto Parts store near Deadwood, South Dakota. Burkett entered the store around 11:00 a.m., where he was assisted by one of the store's clerks, Steve Henderson. Burkett left the store without purchasing anything, but returned later in the day. Henderson testified that he could smell alcohol on Burkett when Burkett entered the store the second time.

[¶ 5.] Around 3:30 p.m., Burkett entered the Napa store a third time. Henderson testified that he detected a “strong alcohol odor” emanating from Burkett. According to Henderson, Burkett was “incoherent” and was “slurring” his words. Henderson testified that Burkett began to leave the store on several occasions, but would reenter the store to request various “oddball” items. Henderson stated that he felt uncomfortable placing the orders for Burkett because he suspected Burkett would not return to purchase the items in his condition.

[¶ 6.] Upon exiting the store Burkett entered into his light blue Dodge van. Henderson observed that Burkett revved his engine and appeared to have trouble shifting the van into reverse. Henderson testified that as Burkett left the Napa parking lot, Burkett's tires “chirped” as he reversed, and then “screeched” out of the parking lot.

[¶ 7.] Henderson called 911 to report seeing a driver “under the influence” leaving the store and headed toward Deadwood. He provided dispatch with a description of Burkett's van and the license plate number. Henderson identified himself by name and included his personal phone number and home address. However, Henderson requested that the tip remain anonymous. Dispatch passed along Henderson's concerns of the possibility of an impaired driver, but did not disclose Henderson's name to the officers.

[¶ 8.] Officer Justin Lux was on patrol when dispatch notified him of a possible impaired driver. Officer Lux saw a van meeting Henderson's description and matching the reported license plate number driving through Deadwood toward the address registered to the vehicle. The officer turned his patrol car around and began following the van. Officer Lux testified that when he finally reached the van, it was stopped in the middle of a residential street and revving its engine for no apparent reason. The van resumed driving forward for one block and turned right into a residential driveway. Officer Lux stated that the van's right, rear wheel drove over the curb and that once the van reached the driveway the van's driver “hit the brakes hard and the vehicle skidded forward a short distance before stopping.”

[¶ 9.] Officer Lux activated his emergency lights and pulled in front of the driveway where Burkett's vehicle was parked. Burkett was exiting from the vehicle when the officer approached him. Although Officer Lux's patrol car video system was active, his car was parked in such a manner that only the audio recording

[849 N.W.2d 627]

portrays the interaction between Officer Lux and Burkett.

[¶ 10.] Officer Lux questioned Burkett about why he stopped in the middle of the road. Burkett claimed that his carburetor was malfunctioning. When asked if he had been drinking, Burkett paused, and stated he had not. Officer Lux testified that Burkett “slurred” his words, “swayed” where he stood, was “nervous,” “belligerent,” “uncooperative,” “evasive,” “confused,” and smelled like alcohol. Burkett declined a preliminary breath test and declined to participate in field sobriety tests. Nevertheless, Officer Lux concluded that based on his observations Burkett had been driving under the influence, and he placed Burkett under arrest.

[¶ 11.] Following his arrest, Burkett was formally charged with DUI. Because Burkett had two prior DUI convictions within ten years of the current offense, the State sought to enhance Burkett's charge to a third offense DUI under SDCL 32–23–4. Burkett moved to suppress the evidence against him. He challenged both the admissibility of the blood alcohol concentration (BAC) test and whether Officer Lux unlawfully stopped him. The circuit court suppressed the BAC test; however, the court determined that Officer Lux's stop was lawful. Burkett also sought to strike the first of his two prior DUI convictions. The court denied Burkett's motion to strike his predicate convictions. At trial, Burkett moved for an acquittal based on the insufficiency of the State's evidence. The circuit court denied this motion, and the jury found Burkett guilty of DUI. Based on the two prior DUI convictions Burkett was sentenced to a Class 6 felony.

[¶ 12.] Burkett appeals his conviction, raising the following issues:

1. Whether the use of Burkett's prior DUI convictions for sentencing enhancement purposes violated his right to due process.

2. Whether there was sufficient evidence to support a conviction of driving under the influence.

3. Whether the circuit court erred in denying Burkett's motion to suppress based on Officer Lux's stop of Burkett.

Analysis and Decision

[¶ 13.] 1. Whether the use of Burkett's prior DUI convictions for sentencing enhancement purposes violated his right to due process.

[¶ 14.] Burkett argues that the use of his prior DUI convictions for sentencing enhancement purposes violated his right to due process. He alleges that his March 2003 plea was constitutionally infirm under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In response, the State contends that even if Burkett's March 2003 plea was constitutionally infirm, Burkett's ability to challenge the validity of that plea is procedurally waived because he admitted to the March 2003 plea when he pleaded guilty to a different DUI offense in August 2003.1

[¶ 15.] In State v. King, 383 N.W.2d 854, 856 (S.D.1986), this Court held that “a

[849 N.W.2d 628]

constitutionally infirm conviction cannot be used to enhance [a] sentence under our habitual offender statutes.” Id. (citing Application of Garritsen, 376 N.W.2d 575 (S.D.1985)). As a result, we stated that “a defendant may challenge the constitutional validity of a prior conviction whenever it is used as a basis for augmenting punishment.” Id. (citation omitted). Additionally, we instructed that “[a] motion to strike a prior conviction allegation from an accusatory pleading is a proper vehicle for attacking such conviction if the presence of the prior will activate the statutory machinery relating to penal status or severity of sanction in a subsequent criminal proceeding.” Id. (quoting In re Rogers, 28 Cal.3d 429, 169 Cal.Rptr. 222, 619 P.2d 415, 417 (Cal.1980)). King appears to be the first time we allowed a defendant to collaterally challenge a predicate conviction whenever it is used to enhance a sentence.2See id. Since King, this Court has allowed defendants to raise what we will refer to as a “ King challenge” without much restriction. See, e.g., State v. Smith, 2013 S.D. 79, ¶ 5, 840 N.W.2d 117, 119 (allowing a defendant to collaterally attack a predicate DUI conviction when it was used for sentence enhancement).

[¶ 16.] In asking us to limit Burkett's ability to raise this King challenge, the State leads us to question the very nature of these kinds of collateral attacks in South Dakota. Burkett frames the denial of his King challenge as a violation of his due process rights. Although we initially permitted King challenges based on due process considerations, that justification is no longer valid under federal constitutional standards.

[¶ 17.] When this Court first outlined the remedy of a King challenge, it did not rely on statutory interpretation of South Dakota law. See King, 383 N.W.2d at 856. Nor did this Court point to the common law as recognizing such a remedy. See id. Instead, this Court adopted a blanket rule from California that this special type of collateral attack was required by due process. Id. (citing Rogers, 169 Cal.Rptr. 222, 619 P.2d at 417). 3 And since King, this Court has allowed defendants to collaterally attack any allegedly constitutionally infirm predicate conviction used for sentence enhancement—even if the constitutionality of the predicate conviction had never previously been raised.

[¶ 18.] However, since our holding in King the United States Supreme Court has defined what protections are afforded to a defendant who seeks to challenge a predicate conviction used for sentencing enhancement. See Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). In Custis, the defendant challenged the use of prior convictions to enhance sentencing on federal drug and firearm charges brought against him. Id. at 488, 114 S.Ct. at 1734. Like Burkett, Custis alleged that one of his predicate convictions was the result of a guilty plea that was not entered knowingly

[849 N.W.2d 629]

and voluntarily. Id. Because the conviction was therefore attained in violation of Boykin, Custis argued that the constitutional infirmity should prevent that conviction from being used for sentence-enhancement purposes. Id. The lower courts held that the...

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8 practice notes
  • State v. Edwards, Nos. 26847
    • United States
    • Supreme Court of South Dakota
    • August 20, 2014
    ...of blood or other bodily substances as evidence.5 For the reasons set forth in Justice Zinter's special writing in State v. Burkett, 2014 S.D. 38, 849 N.W.2d 624, and the Court's decision in State v. Bilben, 2014 S.D. 24, ¶¶ 18–19, 846 N.W.2d 336, 340 and in State v. Woodard, 2014 S.D. 39, ......
  • State v. Stanage, 27769
    • United States
    • Supreme Court of South Dakota
    • April 5, 2017
    ...tips also support the conclusion that Deputy Kriese did not have a reasonable suspicion of criminal activity. In State v. Burkett , 2014 S.D. 38, 849 N.W.2d 624, an unidentified-but-identifiable informant contacted law enforcement to report a possibly intoxicated driver. As in the present c......
  • State v. Meyer, No. 27218.
    • United States
    • Supreme Court of South Dakota
    • July 22, 2015
    ...301 (1990) ). “The tip's degree of reliability depends on the quantity and quality of the tipster's information.” State v. Burkett, 2014 S.D. 38, ¶ 47, 849 N.W.2d 624, 636 (quoting State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556 ). [¶ 14.] Here, Dunteman was an on-duty, student-pa......
  • State v. Meyer, #27218
    • United States
    • Supreme Court of South Dakota
    • July 22, 2015
    ...Ed .2d 301 (1990)). "The tip's degree of reliability depends on the quantity and quality of the tipster's information." State v. Burkett, 2014 S.D. 38, ¶ 47, 849 N.W.2d 624, 636 (quoting State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556).[¶14.] Here, Dunteman was an on-duty, student......
  • Request a trial to view additional results
8 cases
  • State v. Edwards, Nos. 26847
    • United States
    • Supreme Court of South Dakota
    • August 20, 2014
    ...of blood or other bodily substances as evidence.5 For the reasons set forth in Justice Zinter's special writing in State v. Burkett, 2014 S.D. 38, 849 N.W.2d 624, and the Court's decision in State v. Bilben, 2014 S.D. 24, ¶¶ 18–19, 846 N.W.2d 336, 340 and in State v. Woodard, 2014 S.D. 39, ......
  • State v. Stanage, 27769
    • United States
    • Supreme Court of South Dakota
    • April 5, 2017
    ...tips also support the conclusion that Deputy Kriese did not have a reasonable suspicion of criminal activity. In State v. Burkett , 2014 S.D. 38, 849 N.W.2d 624, an unidentified-but-identifiable informant contacted law enforcement to report a possibly intoxicated driver. As in the present c......
  • State v. Meyer, No. 27218.
    • United States
    • Supreme Court of South Dakota
    • July 22, 2015
    ...301 (1990) ). “The tip's degree of reliability depends on the quantity and quality of the tipster's information.” State v. Burkett, 2014 S.D. 38, ¶ 47, 849 N.W.2d 624, 636 (quoting State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556 ). [¶ 14.] Here, Dunteman was an on-duty, student-pa......
  • State v. Meyer, #27218
    • United States
    • Supreme Court of South Dakota
    • July 22, 2015
    ...Ed .2d 301 (1990)). "The tip's degree of reliability depends on the quantity and quality of the tipster's information." State v. Burkett, 2014 S.D. 38, ¶ 47, 849 N.W.2d 624, 636 (quoting State v. Herren, 2010 S.D. 101, ¶ 17, 792 N.W.2d 551, 556).[¶14.] Here, Dunteman was an on-duty, student......
  • Request a trial to view additional results

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