State v. DeNoyer

• Decision Date: 20 December 1995
• Docket Number: No. 18804,18804
• Citation: 541 N.W.2d 725
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Charles Ray DeNOYER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 725

541 N.W.2d 725

STATE of South Dakota, Plaintiff and Appellee, v. Charles Ray DeNOYER, Defendant and Appellant.

No. 18804.

Supreme Court of South Dakota.

Argued Sept. 13, 1995.

Decided Dec. 20, 1995.

Mark Barnett, Attorney General, Patricia J. Froning, Assistant Attorney General, Pierre, for plaintiff and appellee.

Becky A. Janssen, Office of the Public Defender, Rapid City, for defendant and appellant.

SABERS, Justice.

DeNoyer was convicted of first degree burglary, second degree rape and as a habitual offender. He was sentenced to life imprisonment on the burglary and rape convictions. He appeals the convictions and enhanced sentences. We affirm.

FACTS

On June 26, 1993, K.P. and her 3-year-old son drove from her home in Rapid City to visit a friend in Black Hawk, South Dakota. ¹ She arrived at her friend's home around 5:30 p.m. While there, K.P. started drinking. Around midnight, she left her son with her friend and went to a bar and continued to drink. Later, she asked a friend, Steve Brandsted, for a ride home. He gave her a ride to pick up her son and to her home. He walked her and her son into the house.

Once inside, K.P. put her son into her bed and laid down beside him. She was wearing blue jeans and a t-shirt at the time which she did not remove. She fell asleep within 10 minutes and Brandsted left through the back door, apparently without locking it.

K.P. was awakened by a man on top of her having sexual intercourse. She began pushing and hitting him. Her son identified the man, saying "Momma, it's Charlie." She continued to strike the man and told him to get out. The man left the bedroom and K.P. went to a neighbor's home to call the police. She told the officers that she had been raped by DeNoyer.

The police searched for DeNoyer and found him walking approximately three miles from K.P.'s residence. He had blood spatters on his shirt and scratch marks on his face. DeNoyer was arrested and taken to the county jail to be interviewed. DeNoyer claims he was informed of some Miranda rights, but was not informed of the continuing right to remain silent. He gave a statement to the detective which corroborated K.P.'s account. This statement was suppressed based on ineffective waiver. However, the trial court ruled the statement could be used to impeach DeNoyer if he testified. DeNoyer did not testify.

At a pretrial hearing, DeNoyer offered testimony of two witnesses of prior sexual acts and comments by K.P. These statements were held inadmissible under SDCL 23A-22-15 (the "rape shield" statute) or because the evidence was misleading, de minimus, or unfairly prejudicial.

The State also filed an information alleging DeNoyer was a habitual offender under SDCL 22-7-8.1. Four prior felony convictions were introduced and DeNoyer stipulated to his identity. DeNoyer argued the prior convictions could not be used to enhance his sentence because the convictions were obtained in violation of his constitutional rights. The trial court held that DeNoyer did not overcome the presumption of regularity of the prior convictions. DeNoyer appeals.

1. Were DeNoyer's Prior Convictions Valid for Enhancement Purposes?

DeNoyer was convicted of first degree burglary and second degree rape, and upon application of the habitual offender statutes, he received two life sentences.

DeNoyer claims his sentence should not have been enhanced because his prior convictions were obtained in violation of his constitutional rights. This court discussed collateral attacks on convictions in Stuck v. Leapley, 473 N.W.2d 476 (S.D.1991).

First, the defendant has the initial burden of placing the validity of the prior convictions in issue[.]

Second, ... where the defendant places the constitutional validity of the prior convictions in issue by a motion to strike or other appropriate means, the state has an initial burden of proving the existence of prior valid convictions by a preponderance of the evidence[.]

Third, when state meets its initial burden of proof, the burden shifts to the defendant to show that the prior convictions are invalid.

Stuck, 473 N.W.2d at 478-79 (citations omitted).

Additionally, in State v. Moeller, 511 N.W.2d 803 (S.D.1994) we stated:

[W]e require the state first establish that there is a document which appears on its face to be a valid judgment. Upon such a showing by the state the doctrine of "presumption of regularity" is then applied, and unless the defendant presents credible evidence that there is some constitutional infirmity in the judgment it must stand.

Moeller, 511 N.W.2d at 809, (citing State v. King, 400 N.W.2d 878, 879 (S.D.1987)).

DeNoyer questions the validity of three of his four prior convictions:

A. Accessory to Commit a Crime. At his arraignment, DeNoyer entered a plea of "not guilty" to this charge. He later pled guilty, apparently as part of a plea agreement. He argues this conviction cannot be used for enhancement because he was not advised of his Boykin ² rights when he entered his guilty plea. Guilty pleas obtained in violation of the defendant's constitutional rights cannot be used for enhancement purposes. State v. (John H.) King, 383 N.W.2d 854, 856 (S.D.1986) (citations omitted).

DeNoyer introduced a transcript from the continuation of a hearing to establish that he was not advised of his Boykin rights. However, at an arraignment on burglary and accessory charges on May 12, 1989, he was advised of his Boykin rights. The hearing at which he asserts he was not advised and did not waive his Boykin rights was a "Continued Hearing and Sentencing." That record states that he was charged with accessory to commit a crime and third-degree burglary and that he entered guilty pleas to both crimes. The initial sentencing hearing is not part of the record. At that hearing, he apparently pled guilty to both charges, but when a factual basis for the accessory charge was not established, the judge continued the hearing.

In order to challenge the conviction, "the defendant must produce credible evidence to establish a basis to declare his conviction was constitutionally defective." Moeller, 511 N.W.2d at 810. "[W]hen no transcripts exist, for whatever reason, absent misconduct by the state, the court will be presumed to have discharged its duty." Id., citing U.S. v. Dickerson, 901 F.2d 579, 583 (7th Cir.1990); see also Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 523, 121 L.Ed.2d 391, 404 (1992). Without the transcript from the initial sentencing hearing, DeNoyer has not established the absence of his Boykin rights.

B. Third Degree Burglary. Using the same "continued hearing" transcript, DeNoyer claims his conviction for third degree burglary cannot be used because there is no record that he pled guilty to the charge. It is defendant's duty to challenge the facially valid judgment with evidence of the invalidity. Moeller, 511 N.W.2d at 810. Without a transcript of his guilty plea, DeNoyer did not meet the challenge.

C. Receiving Stolen Property. DeNoyer argues that although he was advised of his Boykin rights, he did not expressly waive them on the record. Boykin requires an "intelligent and voluntary" guilty plea, which can be shown by a waiver of the defendant's rights. Boykin, 395 U.S. at 244, 89 S.Ct. at 1712-13. Before accepting a guilty plea, the trial court must, "address the defendant personally in open court ... and inform him of, and determine that he understands:

(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[.]"

SDCL 23A-7-4 (emphasis added).

The trial court advised DeNoyer of each of his rights separately and asked whether he understood each right. The trial court also asked if he was represented by counsel and asked if his plea was "of [his] own free will and accord." To both questions, he answered "Yes." The trial court asked him: "You understand if you enter a plea of guilty, you will give up the right to have a trial by court or jury?" He answered, "Yes."

South Dakota law requires a showing that defendant understood the nature and consequences of his plea. SDCL 23A-7-4; Moeller, 511 N.W.2d at 810 (quoting Logan v. Solem, 406 N.W.2d 714, 717 (S.D.1987)). " 'It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.' " Weiker v. Solem, 515 N.W.2d 827, 833 (S.D.1994) (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437, 443 (1984)). We hold that the guilty plea on the "receiving stolen property" charge was not shown to be involuntary.

2. Was Enhancement of DeNoyer's Sentences Proper?

DeNoyer was convicted of second degree rape and third degree burglary, two Class II felonies. None of his prior offenses were "violent," as defined by SDCL 22-1-2(9). His sentences were enhanced to Class B felonies punishable by mandatory life sentences under SDCL 22-7-8.1. DeNoyer claims this result is illogical, because if an offender has been convicted of prior crimes of violence, the sentence for the principal felony is enhanced only to the level of a Class 1 felony, punishable by a maximum of life imprisonment.

This court found the sentence enhancement scheme was not necessarily inconsistent in State v. Stetter, 513 N.W.2d 87 (S.D.1994). Sentences for prior violent offenders are enhanced to a Class 1 felony "regardless of the classification of the principal felony." Id. at 89 (emphasis original). Sentences for offenders with three or more prior nonviolent crimes are enhanced by two classes from that of the principal felony. SDCL 22-7-8.1; Stetter, 513 N.W.2d at 89.

DeNoyer argues he is essentially being punished for not committing a violent offense. He claims such a result...