State v. King

Decision Date14 January 1986
Docket NumberNo. 15033,15033
Citation383 N.W.2d 854
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. John H. KING, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Grant Gormley, Chief Deputy Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

Richard Braithwaite, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

This is an appeal from a judgment of conviction of John H. King (King) of issuing an insufficient funds check in the first degree and on a Part II information as a habitual offender. King was sentenced to a term of fifteen years in the South Dakota State Penitentiary. King is not appealing the underlying conviction on the check charge; he attacks only the determination of habitual criminal status. We reverse and remand.

The Part II information alleged that King had three prior felony convictions: (1) first-degree robbery in Yankton County, South Dakota on March 8, 1968; (2) forgery in Day County, South Dakota, on March 21, 1979; and (3) forgery in Hennepin County, Minnesota, on April 28, 1977.

The first issue is with regard to the Minnesota conviction. King denied that he was the same person as convicted in Hennepin County. State sought to establish identity through fingerprint evidence. King contends that certified copies of fingerprint cards were erroneously admitted by the trial court. King contends that the dictates of SDCL 22-7-11 were not met. That statute provides, inter alia: "[A]n official court record under seal or a criminal history together with fingerprints certified by the public official having custody thereof will be sufficient to be admitted in evidence without further foundation to prove the allegation that the defendant is an habitual criminal."

At trial, as foundation for expert testimony on fingerprint comparisons, the State offered two fingerprint cards: (1) A certified copy of a fingerprint card from South Dakota, and (2) a certified copy of a fingerprint card from Minnesota. King objected to the introduction of these cards on the basis that there was no showing that the certification was made by "a public official having custody" of the fingerprint cards.

This court has previously held that prints taken by law enforcement officers and recorded on standard Division of Criminal Investigation forms are properly receivable into evidence as public records. State v. Provost, 266 N.W.2d 96 (S.D.1978). See also State v. Grooms, 359 N.W.2d 901 (S.D.1984).

King does not contend that either the South Dakota Criminal Laboratory nor the Minnesota Bureau of Criminal Apprehension are improper custodians of the fingerprint cards. It would seem to be a supertechnical reading of the statute to require that the official in charge of the department having custody of the fingerprint cards must be the certifying official as opposed to any employee having access to those records. King's fingerprint argument, therefore, is without merit.

The second issue is with regard to the use of the Yankton County and Day County convictions for enhancement purposes. While King admitted that he was the person convicted in both of those convictions, he alleges that his pleas of guilty in both instances were not knowingly and voluntarily made due to the trial courts' failure to adequately apprise him of his constitutional rights. He raised this issue at a motion hearing prior to trial on the Part II information. By memorandum decision, the trial court refused to reach the merits of King's constitutional claim, instead ruling that the earlier convictions were not subject to collateral attack. King alleges the trial court was in error.

[T]he individual [defendant] may challenge the constitutional validity of a prior conviction whenever it is used as a basis for augmenting punishment. 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.

In Re Rogers, 28 Cal.3d 429, 434, 169 Cal.Rptr. 222, 224, 619 P.2d 415, 417 (1980) (citation omitted).

This court has also held that a constitutionally infirm conviction cannot be used to enhance the sentence under our habitual offender statutes. Application of Garritsen, 376 N.W.2d 575 (S.D.1985). See also Santillanes v. United States Parole Commission, 754 F.2d 887 (10th Cir.1985); People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979); State v. Loveday, 48 Md.App. 478, 427 A.2d 1087 (1981); State v. Sharp, 390 So.2d 1288 (La.1980); N.Y.Crim.Pro.Law Sec. 400.20 (McKinney 1983); Ga.Code Annot., Sec. 26-1813(c)(2)(i) (1968).

As noted in Rogers, supra, a motion to strike is the proper vehicle for attacking such a constitutionally infirm conviction. See also Collins v. State, 275 Ind. 86, 415 N.E.2d 46 (1982) cert. den. 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1982) (defendant has the burden to produce evidence in support of a defense that his prior convictions are invalid); State v. Nelson, 379 So.2d 1072 (La.1980); Alexander v. Solem 383 N.W.2d 486 (S.D.1986) (defendant has burden in habeas corpus proceeding to show prior convictions were invalid). "If the district court has the power to strike invalid prior convictions, it is only fundamental that the same court with its inherent fact finding power and incidental power to conduct hearings can determine which prior convictions are invalid." United States v. Martinez, 413 F.2d 61, 63 (7th Cir.1969).

State argues that even if King is allowed to challenge his prior convictions, that the constitutional problems in his prior convictions are not the type of problems which would make the convictions invalid for enhancement purposes. State claims only convictions resulting from uncounseled guilty pleas are constitutionally infirm for enhancement purposes. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The United States Supreme Court, however, has determined that when the subsequent punishment depends upon the reliability of the former conviction, it becomes constitutionally infirm. Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).

Certain conclusions follow from these decisions by the Supreme Court. When the proper use of the constitutionally...

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16 cases
  • State v. Burkett
    • United States
    • South Dakota Supreme Court
    • June 25, 2014
    ...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 constitutionally infirm conviction cannot be used to enhance [a] sentence under our habitual offend......
  • State v. Bilben
    • United States
    • South Dakota Supreme Court
    • April 23, 2014
    ...Bypassing the adversarial process today could result in just as significant an oversight as the dissent argues occurred in State v. King, 383 N.W.2d 854 (S.D.1986), and our cases since Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). [¶ 19.] The dissent also pr......
  • State v. Bartlett
    • United States
    • South Dakota Supreme Court
    • May 22, 1987
    ...the prints on the forms to Defendant was insufficient. In making his assertions, Defendant overlooks our language in State v. King, 383 N.W.2d 854, 856 (S.D.1986), This court has previously held that prints taken by law enforcement officers and recorded on standard Division of Criminal Inve......
  • State v. Randen, 17765
    • United States
    • South Dakota Supreme Court
    • September 3, 1992
    ...upon guilty pleas obtained in violation of Boykin cannot be used to enhance a sentence under the habitual offender statutes. State v. King, 383 N.W.2d 854 (S.D.1986); Application of Garritsen, 376 N.W.2d 575 (S.D.1985). This principle applies equally to DUI habitual offender proceedings. St......
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