State v. King

• Decision Date: 20 November 1986
• Docket Number: No. 15345,15345
• Citation: 400 N.W.2d 878
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Leonard KING, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 878

400 N.W.2d 878

STATE of South Dakota, Plaintiff and Appellee, v. Leonard KING, Defendant and Appellant.

No. 15345.

Supreme Court of South Dakota.

Considered on Briefs Nov. 20, 1986.

Decided Feb. 11, 1987.

Rehearing Denied March 19, 1987.

Janine Kern, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen. (on brief), Pierre, for plaintiff and appellee.

Michael Stonefield, Office of Public Defender, Rapid City, for defendant and appellant.

MORGAN, Justice.

By way of this appeal Leonard King (King) collaterally attacks two previous DWI convictions which contributed to his third offense DWI felony conviction under SDCL 32-23-4. We affirm.

On March 24, 1986, King entered a guilty plea to Part I of an information alleging that he had driven while under the influence of alcohol on January 11, 1986. A court trial was also held on that day relating to the Part II information which charged King with a violation of SDCL 32-23-4. The trial court found beyond a reasonable doubt that King was previously convicted of two counts of driving while intoxicated and further held that he was guilty as alleged in the Part II information. King appeals this conviction on the Part II information alleging that the guilty pleas entered in the prior two DWI's were not valid.

King raises three issues on appeal. Initially, King claims that he did not freely and intelligently waive his Boykin rights prior to his guilty pleas. Secondly, King claims that he did not fully understand the nature and consequences of his 1981 DWI guilty pleas since the court failed to advise him of the maximum penalty as required by SDCL 23A-7-4(1). Finally, King claims there was no factual basis for the 1981 DWI guilty pleas.

At the outset, we note that this appeal is actually a collateral attack on two earlier convictions. Appeals in this posture are afforded a different review than those appeals taken directly from a conviction.

A defendant seeking to set aside a prior conviction obtained as a result of the entry of a guilty plea must initially make a prima facie showing that the guilty plea was constitutionally infirm; only when the defendant has satisfied this initial evidentiary requirement is the prosecution required to establish by a preponderance of the evidence that the guilty plea did not violate constitutional due process standards.

People v. Wade, 708 P.2d 1366, 1368 (Colo.1985) (emphasis added). The trial court in a memorandum opinion to both counsel specifically stated its belief that King was afforded his constitutional protections before making the guilty pleas in 1981.

In the recent case of Application of Garritsen, 376 N.W.2d 575, 577 (S.D.1985), we noted: "A guilty plea is not valid unless the record in some manner indicates that the defendant freely and intelligently waived his constitutional right to confront and cross-examine witnesses against him, waived his constitutional right to trial by jury, and waived his constitutional privilege against self-incrimination." These rights were established in the case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). King does not claim that he was not advised of these rights; rather, he claims that the record does not reflect that he freely and intelligently waived these rights.

While the record does not show that King expressly and in so many words waived his Boykin rights, King does not cite a single case supporting the proposition that such an express and unequivocal waiver is required to meet constitutional muster. State on the other hand cites several cases supporting the proposition that there is no requirement of an express waiver of the Boykin rights. See Banks v. McGougan, 717 F.2d 186 (5th Cir.1983); Brown v. Jernigan, 622 F.2d 914 (5th Cir.1980) cert. denied 449 U.S. 958, 101 S.Ct. 368, 66 L.Ed.2d 224; People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 (1983); People v. Wade, 708 P.2d 1366 (Colo.1985). The transcripts of the arraignments preceding the 1981 guilty pleas clearly indicate that King was told of his right to "a speedy public trial before an impartial jury." Furthermore, the trial judge informed King:

At that jury trial you would be entitled to meet and to hear and to see and to cross-examine, that is, ask questions of, any of the witnesses that the State might call in order to prove its case....

At that trial and during all these proceedings you have an additional right that we refer to as the privilege against self-incrimination. That is your so-called Fifth Amendment right and what it means is that you cannot be forced or required in any way to furnish evidence or give any testimony against yourself.

However, of course, if you wanted to testify at that trial in your own behalf and in your own defense you could do so as a voluntary thing. But you could not be forced or required to do that.

The transcripts thus indicate that King knew that he had a right to jury trial and that he had certain other rights that attach during that jury trial. In addition, King was expressly advised of his right to counsel, which he waived.

In Stacey v. State, 349 N.W.2d 439 (S.D.1984), we held that the defendant's age, prior criminal record, presence of counsel, and interval of time between the plea and the notice of the rights were important considerations in determining whether there was a knowing, intelligent, and voluntary plea. The record indicates that King's date of birth was November 10, 1951. We also note that King had one other DWI conviction, however, no other experience with the courts is indicated prior to the 1981 guilty pleas. King was not represented by counsel while entering either plea. The time interval between the advisement of his rights and his plea of guilty was very short. The advisement and the plea actually took place during the same arraignment. We hold that these circumstances are similar to those presented in Stacey, and hold further that the record conclusively shows that King impliedly waived his Boykin rights by pleading guilty after those rights were carefully explained to him.

It is undisputed that the trial court did not advise King of the maximum sentence he could receive upon his plea of guilty. This is a violation of SDCL 23A-7-4 (Federal Rule of Criminal Procedure 11(c)) which states in pertinent part:

Before accepting a plea of guilty or nolo contendere a court must advise the defendant personally in open court, ... and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law....

We note that this issue was raised in the case of Application of Garritsen, supra, but was not reached at that time. We also note that a number of other courts have been presented with this dilemma. See United States v. Ammirato, 670 F.2d 552 (5th Cir.1982); United States v. Sisneros, 599 F.2d 946 (10th Cir.1979); Keel v. United States, 585 F.2d 110 (5th Cir.1978); Cheely v. United States, 535 F.2d 934 (5th Cir.1976). In both Sisneros and Keel, the courts held that the defendant must show prejudice before relief can be granted.

Regardless of what principal of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for Sec. 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.

Keel, 585 F.2d at 113. Likewise, we hold that prejudice must be shown before relief can be granted for a violation of our counterpart to the federal rule, SDCL 23A-7-4. King does not allege nor is there any evidence indicating that he would have changed his plea if he would have been notified of the maximum penalty.

King's third contention is that there was not sufficient factual basis to support the guilty pleas. After carefully reviewing the record, we do not find where this contention was raised in the trial court below. King's motion to vacate and dismiss the prior two DWI convictions alleged only that the "convictions are null, void, without legal effect, and constitutionally invalid." Furthermore, the trial court's letter to counsel denying this motion made no mention of a claim of lack of a factual basis to support the guilty pleas. Since the factual basis requirement arises from statute and not the constitution, ^* we will not allow King to raise this issue for the first time on appeal. Mayrose v. Fendrich, 347 N.W.2d 585 (S.D.1984); Mortweet v. Eliason, 335 N.W.2d 812 (S.D.1983); Weaver v. Boortz, 301 N.W.2d 673 (S.D.1981). "An issue may not be presented for a first time on appeal. [citations omitted] The appellant must affirmatively establish a record on appeal that shows the existence of error. He must show that the trial court was given an opportunity to correct the grievance he complains about on appeal." Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D.1980).

Having disposed of King's contentions, we affirm the trial court.

WUEST, C.J., and FOSHEIM, Retired J., concur.

HENDERSON and SABERS, JJ., dissent.

MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.

HENDERSON, Justice (dissenting).

RITUALISTIC, CATECHISTIC RECITATIONS? NOT REQUIRED.

FREE AND VOLUNTARY PLEA THROUGH EXPLANATION OF RIGHTS? YES, REQUIRED.

Appellant's 1981 guilty pleas are used as a basis to enhance his punishment for a third DWI conviction in 1986. These were Tripp County convictions in the Sixth Judicial Circuit. Appellant, in the immediate proceedings below, filed a motion to vacate these two prior Tripp County...