State v. Outka

Decision Date26 February 2014
Docket NumberNo. 26599.,26599.
Citation844 N.W.2d 598,2014 S.D. 11
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Mark OUTKA, Defendant and Appellant.
CourtSouth Dakota Supreme Court


Marty J. Jackley, Attorney General, Matt Naasz, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Terry L. Pechota, Rapid City, South Dakota, Attorney for defendant and appellant.

WILBUR, Justice.

[¶ 1.] Mark Outka appeals the magistrate court's denial of his post-sentencing motion to withdraw his guilty plea.


[¶ 2.] Outka was charged by information with alternative counts of simple assault for an altercation involving his live-in girlfriend, Jillian Anderson. Although the caption of the information included the words “domestic abuse,” the rest of the information made no reference to domestic abuse. The only statute referenced in the information was SDCL 22–18–1, the simple assault statute.

[¶ 3.] The State and Outka, who was represented by counsel, entered into a plea agreement whereby Outka pleaded guilty to simple assault under SDCL 22–18–1(4).1 Outka admitted that he yelled at Anderson and threatened to kick her out of the house. Outka did not contest the “domestic abuse” notation in the caption of his information before entering his guilty plea. Nor did he challenge whether the assault involved domestic abuse. Additionally, Outka's attorney acknowledged at Outka's preliminary hearing that Outka would plead guilty to simple assault (domestic abuse). The magistrate court sentenced Outka to 360 days in jail, with all 360 days suspended, and one year of probation.

[¶ 4.] Outka subsequently appealed his conviction to circuit court. The circuit court remanded the matter to the magistrate court to allow Outka to move to withdraw his guilty plea. The magistrate court, in its denial of Outka's motion to withdraw the plea, determined that the information was sufficient and that Outka knowingly and voluntarily pleaded guilty to simple assault (domestic abuse). Outka appealed to circuit court, which affirmed the decision of the magistrate court.

[¶ 5.] Outka appeals to this Court, arguing that he should have been allowed to withdraw his plea because the charging information (1) was insufficient, (2) failed to conform to pleading requirements, and (3) failed to inform him of the charges against him. Outka further argues that SDCL 25–10–34 is unconstitutional. Finally, he contends that he did not knowingly and voluntarily plead guilty to simple assault.


[¶ 6.] “When a defendant moves to withdraw his guilty plea after [a] sentence has been imposed, the trial court will set aside the judgment of conviction and permit the defendant to withdraw his plea only to correct manifest injustice.” State v. McColl, 2011 S.D. 90, ¶ 8, 807 N.W.2d 813, 815 (quoting State v. Lohnes, 344 N.W.2d 686, 687–88 (S.D.1984)); see alsoSDCL 23A–27–11. A defendant seeking withdrawal of a plea on the grounds of manifest injustice must “show entitlement to relief by clear and convincing evidence.” McColl, 2011 S.D. 90, ¶ 9, 807 N.W.2d at 816 (citation omitted). Normally, [t]he decision to allow a defendant to withdraw a guilty plea is a matter solely within the discretion of the trial court and is reviewed under an abuse of discretion standard.” State v. Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849 (citing State v. Wahle, 521 N.W.2d 134, 136–37 (S.D.1994)).

[¶ 7.] While “the trial court's discretion to allow withdrawal of a guilty plea prior to ‘sentencing should be exercised liberally in favor of withdrawal,’ ... a stricter standard should be applied when a defendant requests to withdraw a guilty plea after a sentence has been imposed.” Id. (quoting Wahle, 521 N.W.2d at 137). The purpose of the stricter standard is “to prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe.” Lohnes, 344 N.W.2d at 688 (quoting United States v. McKoy, 645 F.2d 1037, 1040 n. 3 (D.C.Cir.1981)). While a decision to permit withdrawal of a guilty plea is normally within the trial court's discretion, when a defendant alleges that his plea is constitutionally infirm this Court must conduct a de novo review to determine whether the alleged constitutional violation occurred. See Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d at 849;see also State v. Cain, 342 Wis.2d 1, 816 N.W.2d 177, 183 (2012).


[¶ 8.] 1. Whether the information was sufficient.

[¶ 9.] Outka first argues that he should be permitted to withdraw his guilty plea because the information was not sufficient. Specifically, Outka alleges that there is no offense titled “simple assault (domestic abuse).” Effectively, Outka asks this Court to decide whether the practice of tagging a domestic abuse notation on an assault charge, consistent with SDCL 25–10–34, changes the nature of the crime so that it is no longer the public offense listed in SDCL 22–18–1 (the simple assault statute). Because Outka did not object to the alleged defect in the caption of the information prior to pleading guilty, he is only entitled to relief if he can illustrate a jurisdictional defect. SDCL 23A–8–3(3).2 Outka contends that because the caption of the information included the words “domestic abuse,” he was charged with an offense that does not exist. Therefore, he claims the information failed to state a public offense, depriving the magistrate court of jurisdiction.

[¶ 10.] The State argues that the domestic abuse notation does not change the fact that Outka was charged with the public offense of simple assault. The State asserts that the notation in the caption merely indicates the relationship between the victim and the perpetrator.

[¶ 11.] The information was sufficient to charge Outka with a public offense: simple assault. It cited the relevant statute for and defined the elements of simple assault. And the information provided a factual allegation, which if proven, would establish a violation of simple assault. In drafting the information the state's attorney complied with the statutory requirement found in SDCL 25–10–34, which provides that:

The state's attorney of the county where a crime is believed to have been committed shall indicate on the summons, complaint, information, indictment, arrest warrant, and judgment of conviction whether the charge involves domestic abuse.

[¶ 12.] Outka does not contest that the body of the information charged him with simple assault in violation of SDCL 22–18–1(4). He only takes issue with the caption of the information. But even if the caption of the information contains errors, it is the body of the information that defines the charged crime. See State v. Wurdemann, 265 Minn. 92, 120 N.W.2d 317, 319 (1963); State v. Bossart, 62 N.D. 11, 241 N.W. 78, 81 (1932); State v. McIntyre, 59 Iowa 267, 13 N.W. 287, 288 (1882). Because the body of the information clearly charged Outka with an act punishable by statute—simple assault—he was charged with a public offense.

[¶ 13.] Outka next argues that domestic abuse is an essential element that must be charged in the body of the information and proven beyond a reasonable doubt because, according the United States Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), if he is convicted he may be subject to increased state and federal consequences. The State contends that under SDCL 23A–8–3(3) this defect in the information is not jurisdictional and was therefore waived because it was not raised prior to Outka's guilty plea.

[¶ 14.] Outka's reliance on Apprendi is misplaced for two reasons. First, domestic abuse is not an element of simple assault. SeeSDCL 22–18–1. Additionally, even if the domestic abuse notation could somehow be considered an element of simple assault that increased the penalty Outka could receive, the failure to include an element in an information does not constitute a jurisdictional defect. United States v. Cotton, 535 U.S. 625, 630–31, 122 S.Ct. 1781, 1784–85, 152 L.Ed.2d 860 (2002) (holding that defects in an indictment are not jurisdictional errors). Because this error or defect does not deprive the court of jurisdiction, an objection based on the failure to include an element in an information is waived by a guilty plea. See United States v. Todd, 521 F.3d 891, 895 (8th Cir.2008).

[¶ 15.] Furthermore, Outka's Apprendi argument fails because Outka was not subjected to an enhanced sentence as a result of the domestic abuse notation. The notation did not change the punishment Outka could have received for a conviction of simple assault, it only indicated that the crime involved domestic abuse.3 Likewise, removing the domestic abuse notation from the caption of the information would not lessen the maximum penalty Outka could have received. Outka cannot show that his sentence exceeded the maximum authorized for simple assault because his sentence fit within the authorized range of punishment for that offense. Because the maximum possible sentence is the same with or without the domestic abuse notation, the notation is not an Apprendi element that must be proven beyond a reasonable doubt. The notation is merely an indication of the relationship between the victim and the perpetrator.4

[¶ 16.] Outka also relies on State v. Lodermeier, 481 N.W.2d 614 (S.D.1992), for the proposition that failing to set forth all elements of an offense in an information renders it defective. In Lodermeier, the missing element came directly from the statute. Id. at 618–19. We held that the omission of the element was not fatal because instructions and proof at trial included the missing element. Id. at 619. But in this case, domestic abuse is not an element of the charge against Outka. Outka's claim regarding failure to include an element does not amount to a jurisdictional defect, therefore, pursuant...

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  • Legrand v. Weber
    • United States
    • South Dakota Supreme Court
    • October 1, 2014
    ...Because the defendant is waiving constitutionally guaranteed rights, an admission of guilt must be voluntary and intelligent. State v. Outka, 2014 S.D. 11, ¶ 32, 844 N.W.2d 598, 607. A guilty plea is voluntary and intelligent when the record affirmatively shows that “the accused has a full ......
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    ...abuse." SDCL 25-10-34. However, the "domestic" notation does not signal an essential element of the underlying offense. See State v. Outka , 2014 S.D. 11, ¶ 14, 844 N.W.2d 598, 604 (holding that "domestic abuse is not an element of simple assault" even where the simple assault is designated......
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    • South Dakota Supreme Court
    • November 13, 2019
    ...on evidentiary grounds beyond claiming his constitutional rights were violated. We review constitutional challenges de novo. State v. Outka , 2014 S.D. 11, ¶ 7, 844 N.W.2d 598, 603.[¶24.] The Sixth Amendment declares: "In all criminal prosecutions, the accused shall enjoy the right ... to b......
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    • South Dakota Supreme Court
    • April 24, 2019
    ...Indeed, in State v. Outka , we held that the domestic abuse notation made under SDCL 25-10-34 does not change the nature of the crime. 2014 S.D. 11, ¶ 15, 844 N.W.2d 598, 604. So the "domestic" notation in Scott’s judgment and sentence did not alter his conviction for aggravated assault. No......
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