State v. Miller, 23846.
| Decision Date | 21 June 2006 |
| Docket Number | No. 23846.,23846. |
| Citation | 2006 SD 54,717 N.W.2d 614 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Myron MILLER, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Lawrence E. Long, Attorney General, Jeremy Lund, Special Assistant Attorney General, Legal Division, Department of Social Services, Pierre, South Dakota, Attorneys for plaintiff and appellee.
John R. Murphy, Rapid City, South Dakota, Attorney for defendant and appellant.
[¶1.] Myron Miller (Miller) was charged by indictment and arraigned on three counts of first degree rape and three alternative counts of sexual contact with a child under the age of sixteen. He was informed of the possible maximum penalty at the arraignment but not the mandatory minimum. Miller pleaded not guilty and proceeded to trial. He was convicted on two counts of sexual contact with a child under the age of sixteen and sentenced to five years in the state penitentiary. Miller appeals contending his constitutional rights were violated by the failure of the circuit court to advise him of the statutory mandatory minimum sentence he faced. We affirm.
[¶2.] Miller was charged with three counts (Count I, III and V) of first degree rape under SDCL 22-22-1,1 and three alternative counts (Counts II, IV and VI) of sexual contact with a child under the age of sixteen under SDCL 22-22-7.2 The charges resulted from an incident between Miller and B.K., the daughter of his girlfriend. B.K. was eight or nine years old at the time of the molestation. Miller's theory of defense was that L.K. urged B.K. to fabricate the sexual molestation in an effort to prevail in the custody dispute between Miller and L.K. over the couple's child, C.M.
[¶3.] On April 5, 2004, at his arraignment, Miller was advised that the possible maximum penalty for first degree rape under SDCL 22-22-1(1) was life in prison, and the sexual contact charge under SDCL 22-22-7 had a maximum sentence of fifteen years. However, he was not advised of the possible minimum penalties under SDCL 22-22-1.2. SDCL 22-22-1.2 provides:
If any adult is convicted of any of the following violations, the court shall impose the following minimum sentences:
(1) For a violation of subdivision 22-22-1(1), ten years for a first offense and twenty years for a subsequent offense; and
(2) For a violation of § 22-22-7 if the victim is less than ten years of age, five years for a first offense and ten years for a subsequent offense.
The State filed a Part II Habitual Offender Information that was eventually dismissed upon motion by Miller.
[¶4.] Prior to trial, Counts V and VI were dismissed by the State. Trial on the matter was held before a jury on February 22 through 25, 2005. Miller was acquitted on the first degree rape charges under Counts I and III, but was found guilty on the two charges of sexual contact with a minor under Counts II and IV. Miller moved for a directed verdict and judgment of acquittal at the close of the State's case and the close of the defense case. Both motions were denied.
[¶5.] After trial, Miller filed a motion for new trial and objections to mandatory minimum sentence, which were presented to the circuit court on July 1, 2005, and September 2, 2005. The circuit court denied Miller's motion for new trial. The circuit court found Miller had a due process right to notification of the mandatory minimum sentence upon a plea of not guilty, and sustained his objection.
[¶6.] The circuit court advised the parties that it would follow the authority cited by Miller in his brief, State v. Crawford, 128 Wash.App. 376, 115 P.3d 387 (2005). The circuit court narrowed the issue to whether Miller had received notice of the mandatory minimum sentence such that his due process rights were not violated. The circuit court further held that under Crawford, any notice, whether from the State, the trial court, or defense counsel, would fulfill the due process requirement to provide notice of mandatory minimum penalties. The circuit court then ordered Miller's arraignment and trial counsel to testify at a hearing on the issue of notice.
[¶7.] Miller objected to the circuit court's broad interpretation of the notice requirement in Crawford, arguing instead that the duty to inform fell on the circuit court and not on defense counsel. Miller clearly and emphatically stated to the circuit court that he was not raising an ineffective assistance of counsel claim. Despite his objection, the circuit court called the defense attorney who represented Miller at the arraignment and the defense attorney who represented Miller at trial to testify against him. Miller's objection was overruled by the circuit court, which held that the attorney-client privilege would not prevent the court from gathering facts to determine whether Miller had received notice of the mandatory minimum sentences he faced. The circuit court found that the communication of "mere facts" between an attorney and client was not covered by the attorney-client privilege and that any exchange of information on minimum sentences was not a confidential communication.
[¶8.] At the hearing, Miller's arraignment counsel testified that he did not recall discussing mandatory minimum sentences with Miller. His arraignment counsel also testified that a plea letter from the State to Miller during his representation did not reference the mandatory minimum sentences. Miller's trial counsel testified to plea negotiations that occurred with the State on the eve of trial. A letter from the state's attorney to trial counsel dated February 18, 2005, was introduced in which two vague references to the mandatory minimum penalties were made. Trial counsel testified that he did not send the letter to Miller, but that he discussed the contents of the letter with him the weekend before the trial.
[¶9.] Thereafter, the circuit court granted Miller's objection and refused to apply the mandatory minimum sentences, instead holding that Miller's due process rights were violated when he was not given notice either before or during trial that he faced a mandatory minimum sentence. After mitigation testimony was received, the circuit court orally imposed a fifteen-year penitentiary sentence on Count II, but suspended the entire sentence. As to Count IV, Miller was sentenced to fifteen years in prison with five years suspended. The sentences were imposed consecutively.
[¶10.] Miller appeals the circuit court's denial of his motion for new trial contending his Fifth Amendment due process rights were violated when he was not advised by the circuit court that he faced potential mandatory minimum sentences. He also contends the circuit court erred when it found that the attorney-client privilege did not apply to communications between Miller and his counsel as to the mandatory minimum penalties. We reframe his issue as follows:
Whether a defendant who pleads not guilty suffers a violation of his Fifth Amendment right to due process such that a new trial is warranted when the circuit court fails to advise him of the statutory mandatory minimum sentences for the charges he faces.
[¶11.] Appeals asserting an infringement of a constitutional right are reviewed under the de novo standard of review. State v. Dillon, 2001 SD 97, ¶ 12, 632 N.W.2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶ 8, 617 N.W.2d 486, 488). A direct appeal from a conviction must be afforded greater scrutiny than a collateral challenge by habeas corpus action. State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994). Thus, on a direct appeal from a conviction the defendant is entitled to all presumptions and protections possible under our constitution. Id.
[¶12.] Miller argues that he was entitled under the Due Process Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, to notice of the mandatory minimum penalties he faced upon entering a plea of not guilty. Miller concedes that this issue is not controlled by statute, as SDCL 23A-7-4 pertains to defendants who enter a plea of guilty or nolo contendere.
[¶13.] The Due Process Clause of the Fifth Amendment provides:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
US Const. amend V (emphasis added). The Due Process Clause serves to safeguard against an unintentional or coerced relinquishment of known rights and privileges. Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 1712 n. 5, 23 L.Ed.2d 274 (1969) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)).
[¶14.] In the context of criminal prosecutions, the Due Process Clause safeguards against an involuntary and unknowing waiver of three important federal rights via a plea of guilty or plea of nolo contendere, 1) the privilege against compulsory self-incrimination, 2) the right to a speedy trial, and 3) the right to confront one's accusers. Id. at 243, 89 S.Ct. 1709 395 U.S. 238, 89 S.Ct. at 1712, 23 L.Ed.2d 274 (citing Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). In order to affect a voluntary and knowing waiver of these rights via a guilty plea or plea of nolo contendere, the court...
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