State v. Schulz, 15273

Decision Date15 January 1987
Docket NumberNo. 15273,15273
Citation409 N.W.2d 655
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Steven SCHULZ, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Richard D. Coit, Asst. Atty. Gen., Pierre, for plaintiff and appellee; and Mark Meierhenry, Atty. Gen., Pierre, on brief.

Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for defendant and appellant.

GERKEN, Circuit Judge.

Steven Schulz (defendant) appeals from a final judgment of conviction for the crimes of commission of a felony while armed with other than a machine gun or short shotgun, SDCL 22-14-13, and possession of a firearm with an altered serial number, a violation of SDCL 22-14-5.

On February 22, 1985, an informant who knew defendant provided Butte County States Attorney, John Fitzgerald, with information regarding defendant's possession of drugs. The informant told Fitzgerald that at 3:30 or 3:45 p.m. that day a beat-up yellow Datsun car would be traveling on Highway 85 toward Lead, South Dakota, after having been at a residence in Belle Fourche. The informant identified the two occupants of the vehicle as defendant and Wayne Courtney, both of whom he described. The informant reported that the vehicle had Wyoming license plates and he recited the numbers to Fitzgerald. Fitzgerald later was able to verify that the vehicle was registered in defendant's name. The informant also described the type and quantity of drugs, as well as the location of the drugs in the vehicle.

Fitzgerald told local law enforcement officials about the information he had obtained and directed them to locate and stop the car. At approximately 3:30 p.m. the officers located the vehicle Fitzgerald described. It was traveling through Belle Fourche on Highway 85 toward Lead. Although defendant was the only occupant of the vehicle, the officers stopped the car. Defendant produced his driver's license upon request, which verified his identity. Defendant denied he had any drugs, but he was carrying a .22 caliber pistol which had altered serial numbers. After the police officer discovered this weapon, a search of defendant's person and the vehicle revealed various types and quantities of controlled substances and drugs.

On March 13, 1985, a grand jury returned an indictment charging defendant with the following crimes:

Count 1--Possession of marijuana in violation of SDCL 22-42-6.

Count II--Unauthorized possession of a controlled substance (cocaine) in violation of SDCL 22-42-5 and SDCL 34-20B-16.

Count III--Unauthorized possession of a controlled substance (methamphetamine) in violation of SDCL 22-42-5 and SDCL 34-20B-16.

Count IV--Commission of a felony while armed with other than a machine gun or short shotgun in violation of SDCL 22-14-13.

Count V--Possession of a firearm with altered serial number in violation of SDCL 22-14-5.

Count VI--Carrying a pistol without a license in violation of SDCL 22-14-9.

The Butte County State's Attorney later filed a supplemental information charging defendant as a habitual offender as defined by SDCL 22-7-8.

At arraignment on March 29, 1985, defendant pleaded not guilty to all charges. On June 24, 1985, pursuant to a plea agreement with the state, defendant pled guilty to Counts II and III of the indictment. The circuit judge refused to accept that plea, citing an insufficient factual basis, and ordered the plea withdrawn. Defendant and the state presented a second plea agreement to the court on November 1, 1985, where defendant pled guilty to Counts IV and V of the indictment in return for the state's dismissal of all the other charges. The court accepted the plea and convicted and sentenced the defendant to a term of three years in the penitentiary.

Defendant challenges the warrantless stop of his vehicle, the factual basis for his guilty plea, and the effectiveness of his counsel.


Defendant moved to suppress evidence obtained after the warrantless stop of his vehicle, claiming a violation of his constitutional right to be free from unreasonable searches and seizures. The trial court denied defendant's motion to suppress.

This court has consistently followed the general rule that a voluntary and intelligent plea of guilty waives a defendant's right to appeal all nonjurisdictional defects in the prior proceedings. State v. Grosh, 387 N.W.2d 503 (S.D.1986); State v. Janssen, 371 N.W.2d 353 (S.D.1985); State v. Morrison, 337 N.W.2d 825 (S.D.1983); State v. Culton, 273 N.W.2d 200 (S.D.1979); State v. Losieau, 266 N.W.2d 259 (S.D.1978); State v. Jordan, 261 N.W.2d 126 (S.D.1978).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea ...

Grosh, supra, 387 N.W.2d at 507 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973)).

The erroneous denial of a motion to suppress evidence would be a nonjurisdictional defect. Losieau, supra, Jordan, supra. Because he pled guilty, defendant waived any such nonjurisdictional defect. He may only attack the voluntary and intelligent nature of his guilty plea.

Notwithstanding this waiver of the right to appeal nonjurisdictional defects, we find that the warrantless stop of his vehicle did not deprive defendant of his constitutional rights. In State v. Anderson, 331 N.W.2d 568 (S.D.1983), we examined the requisite grounds for a justifiable investigatory traffic stop and adopted a "reasonable suspicion" standard. We held, consistent with the principles set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that the "officer must have a specific and articulable suspicion of a violation before the stop will be justified." Anderson, supra, 331 N.W.2d at 570. We emphasized that the factual basis necessary to support a stop for a routine traffic check is minimal. All that is required is that the stop not be the product of mere whim, caprice, or idle curiosity. It is enough that the stop is based upon specific and articulable facts which, taken together with rational inferences drawn from those facts, reasonably warrant the intrusion. Id.

We have extended the "reasonable suspicion" standard to stops based upon an anonymous tip by a private citizen. State v. Czmowski, 393 N.W.2d 72 (S.D.1986). "An anonymous first hand tip, when it is corroborated by other details, may serve as a sufficient basis on which to uphold a stop." Id. at 73. In this case the information provided to the state's attorney was specific in every detail and was substantially verified by the observations of the officer who stopped the defendant's vehicle. The automobile and its license plates matched the informant's description and it was traveling at the same time, place and direction as described by the informant. Defendant was driving the automobile, even though the second occupant of the automobile was absent, contrary to the informant's prediction. In this case there existed a reasonable suspicion which justified the investigatory stop.


Defendant claims the trial court did not establish a factual basis for his guilty plea. Defendant claims the record does not sufficiently identify the substances seized from him as cocaine or methamphetamine. Defendant also argues that the record lacks any support for the trial court's finding that he knowingly possessed cocaine or methamphetamine, an essential element of Count IV of the indictment.

Before the trial court accepted defendant's guilty plea, defendant's attorney stated, "Excuse me, your honor, talking to [defendant] earlier in regard to Count IV, he told me that at the time he possessed the gun he also had in his possession, cocaine." Defendant argues that his attorney's statement cannot be considered by the trial court to establish a factual basis for his guilty plea.

Whether defense counsel's statements may be used to establish a factual basis for a guilty plea is an issue never addressed by this court, even though we have examined the factual basis requirement several times. State v. Lashwood, 384 N.W.2d 319 (S.D.1986); Halverson v. State, 372 N.W.2d 463 (S.D.1985); Graham v. State, 328 N.W.2d 254 (S.D.1982); Gregory v. State, 325 N.W.2d 297 (S.D.1982); State v. Sutton, 317 N.W.2d 414 (S.D.1982); Spirit Track v. State, 272 N.W.2d 803 (S.D.1978); State v. Doherty, 261 N.W.2d 677 (S.D.1978). The factual basis requirement, codified at SDCL 23A-7-2, is very closely patterned after Federal Rule of Criminal Procedure 11(f). Thus, to guide our interpretation of SDCL 23A-7-2, we look to the federal courts' interpretation of Rule 11(f).

Receiving guilty pleas is a process beset with pitfalls. The two most dangerous of these have long been recognized: coerced pleas and ignorant pleas. The first of these plainly is condemned by the Fifth Amendment's mandate that no one be compelled in any criminal case to be a witness against himself. The second arises from the guilty plea as perhaps the supreme instance of waiver known to our system of justice, one by which all of its trial rights and safeguards are voluntarily foregone, and a defendant deliberately submits to conviction. If this is to be permitted, a decent system of justice, at a minimum, will concern itself that the admission is voluntary and intelligently made. These are core considerations, requirements that manifestly must lie at the heart of any respectable system for settling (as opposed to trying) criminal charges. United States v. Dayton, 604 F.2d 931, (5th Cir.1979).

Rule 11 is designed to protect these core considerations by ensuring that a guilty plea is entered voluntarily and intelligently. Rule 11(f) provides:

Notwithstanding the acceptance of a plea of guilty, the court...

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