State v. Phipps

• Decision Date: 20 May 1987
• Docket Number: No. 15349,15349
• Citation: 406 N.W.2d 146
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Richard Duane PHIPPS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 146

406 N.W.2d 146

STATE of South Dakota, Plaintiff and Appellee, v. Richard Duane PHIPPS, Defendant and Appellant.

No. 15349.

Supreme Court of South Dakota.

Argued March 25, 1987.

Decided May 20, 1987.

Thomas H. Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.

Peter Gregory of Gregory Law Office, Sioux Falls, for defendant and appellant.

GILBERTSON, Circuit Judge.

PRELIMINARY STATEMENT

Appellant Richard Duane Phipps was convicted of two counts of sexual contact with a minor in Davison County Circuit Court in 1981. We affirmed on direct appeal. State v. Phipps, 318 N.W.2d 128 (S.D.1982). This appeal centers on jurisdictional issues surrounding Phipps' quest for post-conviction relief.

PROCEDURAL HISTORY

During the 1981 trial, the circuit court conducted a hearing to determine the voluntariness of Phipps' confession. The trial court found it to be voluntary but failed to enter written findings of fact and conclusions of law. This court affirmed the trial court's ruling on the voluntariness of the confession. Phipps, supra.

Phipps petitioned the Davison County Circuit Court for post-conviction relief in January 1983. The circuit court entered findings of fact and conclusions of law deciding against Phipps on his claim of inadequate representation of counsel at trial. The court placed a letter into the record denying a certificate of probable cause required by SDCL 23A-34-20 (now SDCL 21-27-18.1) to take an appeal to this court. Phipps further failed to apply to this court for such a certificate.

Phipps next sought federal habeas corpus relief under 28 U.S.C. Sec. 2254 in the United States District Court, District of South Dakota, Southern Division in June 1983. The District Court denied Phipps' claim of ineffective assistance of counsel but "remanded" the case back to the Davison County Circuit Court for a more specific factual determination on the question of whether Phipps' confession was voluntary. The District Court further stated in its "remand" order that if the state circuit court found the confession to be voluntary, then the federal habeas petition would be dismissed.

The Davison County Circuit Court held the voluntariness hearing in February 1986. Circuit Judge Thomas L. Anderst entered findings of fact and conclusions of law finding Phipps' confession to be voluntary.

At oral argument, both parties stipulated that the circuit court's findings and order concerning the confession have not been forwarded to the United States District Court. It was also agreed that there has been no action in the District Court file since the "remand" order was issued on December 11, 1985.

Phipps now seeks to appeal the February 1986 decision of the Davison County Circuit Court. ¹ This court, however, raised additional jurisdictional questions, State v. Huftile, 367 N.W.2d 193, 195 (S.D.1985), which were also briefed by counsel.

FEDERAL AUTHORITY TO RETURN FACT FINDING TO STATE TRIAL

COURTS

The federal court doctrine of initially returning to the state trial court the process of fact finding concerning the voluntariness of a confession has long been recognized in the federal system. In Jackson v Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the United States Supreme Court held that when the issue of voluntariness of a confession was brought to a federal court in a habeas proceeding from a state criminal conviction, the determination of voluntariness was to be initially made by the state trial court rather than the federal court. To do otherwise would "pre-empt functions that belong to state machinery in the administration of state criminal law." Jackson, supra, 378 U.S. at 393, 84 S.Ct. at 1790, 12 L.Ed.2d at 925. (citing Rogers v. Richmond, 365 U.S. 534, 548, 81 S.Ct. 735, 743, 5 L.Ed.2d 760, 771 (1961)).

In Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109 (1964), the Court reviewed a district court's habeas order which required that the defendant either be released or retried because the state had not properly established the voluntariness of a confession which had been used against him. The Supreme Court citing Jackson, supra, modified the district court's order and held that the case be remanded to the state trial court to hold a hearing on the voluntariness of the defendant's confession in lieu of a new trial. Boles, supra, 379 U.S. at 45-46, 85 S.Ct. at 175-76. Only if the confession was found to be involuntary was a new trial or release mandated. Id.

Sigler v. Parker, 396 U.S. 482, 90 S.Ct. 667, 24 L.Ed.2d 672 (1970) is a case similar to Jackson and Boles. In Sigler, the Court ruled that where a state trial court failed to make proper findings on the voluntariness of a confession, the proper remedy is "to allow the State a reasonable time to make an error-free determination of the voluntariness of the confession at issue." Sigler, supra, 396 U.S. at 484, 90 S.Ct. at 669, 24 L.Ed.2d at 674. See also Lufkins v. Solem, 554 F.Supp. 988 (D.S.D.1983), aff'd, 716 F.2d 532 (8th Cir.1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984); Hizel v. Sigler, 430 F.2d 1398 (8th Cir.1970).

Thus, the precedent of returning the fact finding to the state court for an initial voluntariness determination is firmly established at the federal level. We then turn to the two state jurisdictional issues raised by this court.

ISSUE I

WHETHER THE SUPREME COURT OF SOUTH DAKOTA HAS JURISDICTION TO HEAR THIS APPEAL, OR MORE SPECIFICALLY, IF THE SUPREME COURT SHOULD DISMISS THIS APPEAL BECAUSE IT HAS NO JURISDICTION DUE TO THE PENDING FEDERAL HABEAS CORPUS PROCEEDING?

"It is the rule in this state that jurisdiction must affirmatively appear from the record and this court is required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not." Huftile, supra, 367 N.W.2d at 195 (emphasis original). "This court has consistently held that the right to appeal is statutory and no appeal may be taken unless a statute clearly authorizes one." South Dakota Dep't of Transportation v. Freeman, 378 N.W.2d 241, 241 (S.D.1985).

An appeal may not be taken from an order unless it is authorized by one of [the provisions of SDCL 15-26A-3]. Wilge v. Cropp, 74 S.D. 511, 54 N.W.2d 568 [1952]. An attempted appeal from an order from which no appeal lies is a nullity, Deere & Webber Co. v. Hinckley, 20 S.D. 359, 106 N.W. 138 [1906], and confers no jurisdiction on this court, except to dismiss it.

Oahe Enterprises, Incorporated v. Golden, 88 S.D. 296, 299, 218 N.W.2d 485, 487 (1974). "The test for determining jurisdiction is ordinarily the nature of the case, as made by the complaint, and the relief sought." Gruwell v. Hinds, 81 S.D. 6, 8, 130 N.W.2d 92, 93 (1964).

Phipps urges this court to find the jurisdiction to entertain this appeal under SDCL 23A-32-2, 23A-32-15, and 15-26A-3(2). We must find jurisdiction under these statutes or dismiss this appeal. Oahe Enterprises, supra.

The genesis of this proceeding began with Phipps filing a habeas corpus petition in federal court seeking the federal court's relief. No state statutes were invoked, only 28 U.S.C. Sec. 2554. The United States District Court, in its order determining the case, stated in part:

(2) That this action is remanded to the Circuit Court, Davison County, State of South Dakota to make a determination of the voluntariness of the petitioner's confession in the case of the State of South Dakota v. Richard Duane Phipps, No. 80-289.

(3) That if the State Court determines that the confession was voluntarily made, the petition for a Writ of Habeas Corpus would be dismissed....

When the matter came on for hearing in the Davison County Circuit Court, the court made it clear that although the proceedings were captioned "State of South Dakota v. Richard Duane Phipps," the sole purpose of the hearing was to comply with the order of the United States District Court to make a voluntariness determination on Phipps' confession. Furthermore, the circuit court's findings of fact, conclusions of law, and order state that they are entered "pursuant to the Memorandum Opinion and Order ... of the United States District Court, District of South Dakota."

Phipps first cites SDCL 23A-32-2 and 23A-32-15 as the statutory basis for this appeal. These statutes refer to the direct appeal of a criminal conviction. Phipps has already received his direct appeal. Phipps, supra, was a final determination of the trial record. Phipps cites no authority for the proposition that a federal habeas corpus proceeding somehow reopens a previously final determination of this court thereby affording Phipps an entirely new appeal of his criminal conviction. "The failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and the issue is thereby deemed waived." State v. Shull, 331 N.W.2d 284, 285 n. 1 (S.D.1983).

That leaves SDCL 15-26A-3(2) as Phipps' sole remaining claim of statutory right for this appeal. This section states that an appeal may be taken to this court from "(2) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken...." SDCL 15-26A-3(2). We must then decide if the trial court's voluntariness determination "in effect determines [this] action and prevents a judgment from which an appeal might be taken."

At first glance, the United States District Court's order seems to be self-executing, with a dismissal of the federal habeas corpus if the state court finds the confession to be voluntary. Such an order, however, is no longer allowed under the dictates of Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), which was decided only days before the District Court's order.

In Miller, supra, the United States Supreme Court held that "the ultimate question [of] whether, under the totality of the circumstances,...