State v. Driver

Decision Date09 April 1980
Docket NumberNo. 12818,12818
Citation290 N.W.2d 856
PartiesSTATE of South Dakota, Plaintiff and Respondent, v. Vance Dwight DRIVER, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Judith A. Atkinson, Asst. Atty. Gen., Pierre, for plaintiff and respondent; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief.

Steve Miller, Sioux Falls, for defendant and appellant.

DUNN, Justice (on reassignment).

This is an appeal by defendant of his conviction for third offense DWI, a felony. Defendant contends that his two prior DWI guilty pleas were not entered intelligently and voluntarily and that the convictions based thereupon were unconstitutional and inadmissible as evidence at trial on the third offense charge. We affirm.

On April 12, 1979, the defendant was found guilty of driving while under the influence of alcoholic beverages and was sentenced under the third offense penalty provision of SDCL 32-23-4. At the trial, certified copies of a 1975 and a 1977 judgment, based upon pleas of guilty to driving while under the influence of an alcoholic beverage, were admitted into evidence. The defendant stipulated that he was the person identified in both judgments, but he objected to their introduction. He now claims that he entered the prior pleas on advice of counsel and that he was not informed by the court of the exact nature of the charges against him, his right against self-incrimination, and his right to confront the witnesses against him. He recalls being informed of his right to a jury trial, but contends that neither plea was voluntarily and intelligently made. There is no transcript of either proceeding, and the court records and the judgments of conviction do not indicate whether he was advised of his constitutional rights before intelligently and voluntarily entering pleas of guilty as mandated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Boykin was given application in South Dakota by Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970), with this language:

Nevertheless, it is now settled as a principle of the constitutional law that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin selfincrimination, confrontation and jury trial and an understanding of the nature and the consequences of the plea. South Dakota judges can no longer assume that an accused represented by counsel has been informed of such matters and the judge must actively participate by "canvassing the matter with the accused."

Boykin and Nachtigall require that a waiver of these constitutional rights cannot be presumed from a silent record. In Nachtigall, the trial court conducted an evidentiary hearing to determine the voluntary nature of the plea. We held that procedure to be in accord with the practice suggested in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), in post-conviction proceedings. This was followed by Merrill v. State, 87 S.D. 285, 206 N.W.2d 828 (1973), wherein we adopted the body of authority that Boykin does not require the arraignment record to show an express enumeration by the court, nor an express waiver by the defendant, of the constitutional rights mentioned in Boykin as a condition precedent to a voluntary and intelligent guilty plea. In Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974), we held that the Boykin standards apply to misdemeanor as well as felony cases and that in the absence of a stenographic record collateral evidence from the trial judge can be considered in determining whether the accused was aware of his constitutional rights and understood those rights at the time of the plea. See also, Lodermeier v. State, 273 N.W.2d 163 (S.D.1978); State v. Holmes, 270 N.W.2d 51 (S.D.1978).

The trial court supplemented the record regarding the previous guilty pleas with the testimony of Judge Keller, the magistrate who accepted both prior pleas, and with transcripts of proceedings in magistrate court in December of 1978, with Judge Keller presiding. The transcripts were prepared by Katherine Bakke, who took the proceedings at the request of defendant to show what rights were explained en masse to people pleading guilty to DWI. This was permissible in light of Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974), and Merrill v. State, 87 S.D. 285, 206 N.W.2d 828 (1973). Upon considering Judge Keller's deposition and the transcripts prepared by Miss Bakke, the trial court determined that the defendant had been advised of his Boykin rights when he entered his guilty pleas to DWI in 1975 and 1977 and upheld the third offense DWI charge.

A fair summary of the deposition of Judge Keller indicates that during the period in question he had advised defendants either en masse or individually that they were entitled to a jury trial; that they were entitled to confront the witnesses against them and cross-examine them; that they were entitled to bring in witnesses in their own behalf; that the state had to prove them guilty of the offenses charged; and that they need not testify or incriminate themselves in any way. Judge Keller also advised them that as a consequence of a plea of guilty they would waive all of these enumerated rights. He did not recall "spelling out the sentences" for each defendant.

The transcripts prepared by Miss Bakke constitute the only real record of the en masse proceedings in magistrate court and the attention given to individual defendants, and therefore certain portions of the transcripts are set out verbatim. The first transcript covers the general statements made to all defendants by the judge:

Each person appearing in court is charged with a violation of the law. You are entitled to know and understand the charge against you. If you do not understand the charge, inform me and I will explain further. You are presumed innocent until proven guilty.

1. You are entitled to a speedy and public trial * You are entitled to a trial by jury.

2. You are not required to testify against yourself or produce any evidence.

3. You may have witnesses in court sworn an oath and they may be cross examined.

4. You may use subpoena power to compel witnesses to testify in your behalf.

5. You may represent yourself, or have a lawyer represent you. If you are not able to afford a lawyer, one will be appointed for you at the expense of the state.

The second transcript covers the individual attention given to a defendant who is pleading guilty to DWI: *

Miss , you entered a plea of guilty to a charge of driving while under the influence of alcoholic beverages. Miss , if you plead guilty, you're trying to admit something. Do you admit that at the time you were driving, you were under the influence of alcoholic beverages. True?


Do you enter a plea of guilty?


If you enter a plea of guilty, you give up the right to have witnesses in court. You may represent yourself, or you may have the assistance of Mr. Arneson. You give up the right to compel witnesses to come into testify in your behalf, and you give up the right to have these witnesses sworn an oath and cross examined. Do you understand this?


Do you know what the maximum penalty could be?


I could fine you as much as $1,000 or I could send you to the County Jail for as long as one year.

Was there a blood test taken?


Was there a preliminary hearing in this case?


Were you present?


Was the arresting officer present?


Did he testify as to whether he had you recite the alphabet?


What is your recollection of the night you were arrested?

He made me do a lot of different things.

Like what?

I had to touch my finger to my nose.

Did you do this successfully?

I guess not.

What else did the officer have you do?

Stand on one leg for 30 seconds.

Did you do this successfully?

Well, he thought I didn't.

What time were you arrested?

At about 11:30.

Where were you prior to this time?

At a friends house.

Had you been drinking?


How much did you drink?

We had a case of beer.

How many people were there?

Five of us.

Was it all gone before you left?


I will accept your plea of guilty.

These proceedings were taken by Miss Bakke prior to the taking of Judge Keller's deposition, and they were apparently taken without Judge Keller's knowledge. The transcripts reflect a record of a typical day in magistrate court. The transcripts were introduced into evidence by the defendant and accepted by the court over objections by the state, and the trial court was justified in considering these transcripts along with other evidence.

There is ample evidence in the supplemental record to substantiate the trial court's finding that all of the rights in Boykin self-incrimination, confrontation, jury trial and an understanding of the nature and the consequences of the plea were explained to the defendant on the occasions of his pleas in 1975 and 1977 and that he understood those rights. We will not disturb that finding.

We are also impressed with the nature of the sentences meted out to defendant in 1975 and 1977. These were not the routine "30 days and $100 sentences with jail sentence suspended upon payment of fine." In both instances, the sentence, standing alone, has every indication of a negotiated plea or plea bargain in which the defendant and his attorney actively participated. Why else was a heavy jail sentence given and then suspended on condition that defendant try and rehabilitate himself? Why else would the trial court set out the installment method of paying the fine if it was not at the request of the defendant?

In plain language, this defendant not only knew of the possible consequences of his plea, he apparently knew exactly what the consequences and the penalty would be as a result of his plea. He now comes in some four or five years later, claiming that he was not advised of his rights and hoping...

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5 cases
  • State v. Jones
    • United States
    • Louisiana Supreme Court
    • September 10, 1981
    ...31 Ohio App.2d 167, 287 N.E.2d 281 (1972); City of Cleveland v. Whipkey, 29 Ohio App.2d 79, 278 N.E.2d 374 (1972); State v. Driver, 290 N.W.2d 856 (S.D.1980); Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974). Some of these state courts have determined, however, that identical procedures t......
  • State v. Edwards
    • United States
    • South Dakota Supreme Court
    • August 20, 2014
    ...a circuit court is not required to “personally” or individually advise each defendant separately of his rights. See State v. Driver, 290 N.W.2d 856, 859 (S.D.1980). In addition to the en masse advisory, Judge Macy then individually canvassed Edwards about his understanding of the rights and......
  • State v. Outka
    • United States
    • South Dakota Supreme Court
    • February 26, 2014
    ...“All that is necessary is that an understanding of the nature of the charge be conveyed to a defendant.” Id. (citing State v. Driver, 290 N.W.2d 856 (S.D.1980)) (citations omitted). [¶ 38.] At Outka's initial appearance the magistrate court advised Outka of the charges against him. Although......
  • Logan v. Solem, 15409
    • United States
    • South Dakota Supreme Court
    • February 17, 1987
    ...of the three constitutional rights mentioned in Boykin as a condition precedent to a voluntary and intelligent guilty plea. State v. Driver, 290 N.W.2d 856 (S.D.1980); Lodermeir v. State, 273 N.W.2d 163 (S.D.1978); Rust v. State, 88 S.D. 265, 218 N.W.2d 482 (1974); Crew v. Nelson, 88 S.D. 1......
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