State v. Moeller

• Decision Date: 26 January 1994
• Docket Number: No. 17886,17886
• Citation: 511 N.W.2d 803
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Donald Eugene MOELLER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 803

511 N.W.2d 803

STATE of South Dakota, Plaintiff and Appellee, v. Donald Eugene MOELLER, Defendant and Appellant.

No. 17886.

Supreme Court of South Dakota.

Argued March 15, 1993.

Decided Jan. 26, 1994.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Patricia C. Riepel, Office of Public Defender, Sioux Falls, for defendant and appellant.

TICE, Circuit Judge.

Donald Eugene Moeller (Moeller) appeals his conviction of being a habitual offender. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the evening of January 20, 1990 when the victim, Tracy Warner (Tracy), was sitting in the living room of her apartment watching television and working on a latch hook project with her baby daughter asleep in the next room, Moeller entered her apartment. Although Moeller and Tracy had briefly met previously, she could not recall his name.

After ten or fifteen minutes, Moeller asked if Tracy would mind him coming back another time, and departed. Later that evening, Moeller "tapped lightly" on the apartment door and entered unannounced. At the time, Moeller was carrying a bottle of Jack Daniels. He asked if he could watch television with Tracy and she acquiesced.

Subsequently, upon returning from the kitchen, Moeller stood over Tracy in her chair and ran a knife, with a three and one half inch blade, up and down Tracy's breast while ordering, "lift up your shirt or I'm going to cut you, show them to me or I'm going cut you." Thereafter, Moeller alternated running the knife over Tracy's arm, and her breast.

Upon being warned by Tracy, Moeller retorted, "who do you think is going to get cut first, you or her." At that point, fearing for the safety of her baby and herself, Tracy attempted to grab the knife and sustained permanent injury to two fingers because of lacerated tendons and nerves. Tracy then broke free from Moeller and ran out of her apartment door to summon help. After summoning help and upon returning to her apartment she saw Moeller leaving and memorized his vehicle's license plate number.

The state presented evidence of Tracy's eye-witness identification, her memory of the license plate number and the blood stain on Moeller's clothing which was consistent with Tracy's blood type. Moeller did not testify or call witnesses on his behalf. He was found guilty on two counts of aggravated assault in violation of SDCL §§ 22-18-1.1(2) and (5).

Through the state's part two information and amendments Moeller was charged with being a habitual offender for the following convictions: January 1973 conviction (72-139) for grand larceny; May 1974 conviction for escape; March 1976 conviction (76-55) for burglary in the third degree; March 1976 conviction (76-54) for grand theft; April 1979 conviction (Cr. No. 1283, Campbell County, Wyoming) for aggravated assault; and, the 1983 conviction (83-209) for grand theft. The Honorable Richard D. Hurd denied Moeller's motion to vacate criminal record numbers 76-54, 76-55 and 72-139. However, the court did grant Moeller's motion to strike the May 1974 conviction for escape.

On January 8, 1992, the state and Moeller filed a stipulation and agreement acknowledging that Moeller was the person who actually committed the offenses (identity) in Minnehaha County criminal file numbers 83-209, 76-54, 76-55, and 72-139. However, Moeller did not stipulate "to anything with regards to the validity of his 1976 convictions." At the motion hearing on November 25, 1991 Moeller did not raise any challenge below to the validity of the record in Minnehaha County record number 83-209. Moeller's sentence was enhanced based upon these four prior convictions.

Moeller contends that the guilty pleas entered in criminal record numbers 76-54 and 76-55 were not made voluntarily, intelligently, or knowingly; ¹ that the record is silent concerning the factual basis for these guilty pleas; that he was never advised as to the penalty he faced on these charges; that the guilty pleas are involuntary because the record is silent as to whether he was advised or aware of the forty-eight hour waiting period between plea and sentencing; that the 1976 guilty pleas were involuntary, based upon the "totality of the circumstances" in that he was twenty-three years old and had an eighth grade education at the time of the pleas; that the burden of proof described in Stuck v. Leapley, 473 N.W.2d 476 (S.D.1991) violated due process; that the trial court improperly permitted the state to amend the habitual offender information for a second time; and, that the trial improperly denied his motion in limine regarding the victim's state of mind as relevant to the charge.

While the record below indicates there are no transcripts for the 1976 convictions, the record is also far from silent. The March 17, 1976 minutes of the combined plea proceedings disclose the following:

The court advised the defendant as to the nature of the charges. The defendant said he understood.

The court advised the defendant as to his legal and constitutional rights to a jury trial, have witness testify on his own behalf, etc. and by a plea of guilty he would wave all of these rights. The defendant said he understands.

Mr. Breit and Mr. Sabers [Moeller's attorneys] said that they are satisfied that the defendant understands.

Being asked by the court, the defendant said he was ready to plead and entered his oral plea of not guilty to Cr. 76-54 Ct. 1--burglary 3rd degree; an oral plea of guilty to Cr. 76-54 Ct.--2--grand larceny. The court questioned the defendant as to his pleas. The court received the defendants plea of not guilty to Ct. 1 and Guilty to Ct. 2. The defendant entered an oral plea of guilty to Cr. 76-55 Burglary 3rd Degree.

The court questioned the defendant as to the guilty plea. The court received the defendant's plea of guilty.

The certified judgment relating to Cr. 76-54 states "the said defendant was informed by the court of the nature of the information and of his plea, and was asked by the court whether he had any legal cause to show why judgment should not be pronounced against him." The judgment states that the court fully advised the accused of his "rights in the premises." ² Likewise, the certified judgment and sentence pertaining to Cr. 76-55 states that:

Upon such arraignment said defendant having then been first advised of his constitutional and statutory rights and having waived such rights and duly entered in open court his oral plea of guilty of the charge in said information contained; and the Court having examined the Defendant, finds that such plea was voluntary and not made under duress or coercion; the Court accepts such plea of guilty ...

Moreover, in the record below there was also testimony of the former Minnehaha County states attorney, Gene Paul Kean, to establish the standard practice or customary procedure employed by the Honorable R.J. Patterson, who was deceased by the time the defendant raised his Boykin challenges below, approximately fourteen years after the entry of the pleas. The testimony elicited from Kean established that Judge Patterson would unwaveringly advise each and every defendant of their statutory and constitutional rights from "plastic laminated sheets." At the end of each right Judge Patterson would ask the defendant "do you understand that." Kean testified that Judge Patterson would inform each defendant of their right to a jury trial, to confront witnesses in open court, to cross-examine witnesses and remain silent in accordance with Boykin, in addition to going into other matters, "that weren't mandatory but he used to throw in all the time."

With regard to the advisement of possible penalties for the 1976 guilty pleas, Kean testified that:

[Judge Patterson] used to talk about the punishment and would want to know about the maximum punishment and the proper maximum punishment. He would check it with the code book, even, you know, all the time. And then he would ask that the defendant repeat it back to him what the punishment was both as to jail or the prison time, fines that could be levied, used to even talk about forfeitures of rights, you know, like use of fire arms and things like that on occasion.

I.

THE TRIAL COURT PROPERLY USED THE GUILTY PLEAS ENTERED BY MOELLER TO ENHANCE THE SENTENCE UNDER THE HABITUAL OFFENDER STATUTES.

As a matter of federal constitutional law, Moeller has the unequivocal right to trial by jury, the privilege against self-incrimination, the right to confront and cross-examine witness and to be represented by counsel. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d. 562 (1975). The Boykin rights to jury trial, against self-incrimination, and confrontation are of such importance in our system of justice, that on direct appeal from a conviction the conviction cannot stand if the record is devoid of a knowing and intelligent waiver of these rights.

Unfortunately the reference to a "silent record" has been viewed by many to be a basis to challenge the validity of convictions other than from a direct appeal. It is our hope to clarify the law and procedure for examination of prior convictions under circumstances not involving a direct appeal. As the chronological and procedural challenge to a conviction becomes more removed from the conviction itself, the court must exercise decreasing scrutiny in the review of constitutional issues. There is an inverse relationship between the sensitivity of the courts to constitutional protection and the procedural and chronological distance from the original conviction. Challenges to distant convictions strike at finality, and it is of paramount importance to remember that:

One of the law's very objects is the finality of its judgments. Neither innocence nor just punishment can be vindicated until...