State v. Thundershield

• Citation: 90 S.D. 391,242 N.W.2d 159
• Decision Date: 06 May 1976
• Docket Number: No. 11479,11479
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Bedie THUNDERSHIELD a/k/a 'Bede' Thundershield, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 159

242 N.W.2d 159

90 S.D. 391

STATE of South Dakota, Plaintiff and Respondent, v. Bedie THUNDERSHIELD a/k/a 'Bede' Thundershield, Defendant and Appellant.

No. 11479.

Supreme Court of South Dakota.

May 6, 1976.

Woods, Fuller, Shultz & Smith, and William P. Fuller, Sioux Falls, for defendant and appellant; Kermit Sande, Atty. Gen., on the brief.

R. Van Johnson, Asst. Atty. Gen., Pierre, for plaintiff and respondent.

COLER, Justice.

Petitioner, in this proceeding under SDCL 23--52, cited as the Uniform Post-Conviction Procedure Act, was originally charged with murder in the death of one Paul Raymond Gilchrist. Following negotiations between counsel for petitioner and the state's attorney the charge was reduced to manslaughter in the second degree to which charge petitioner entered a guilty plea. The pst-conviction hearing was held by the trial court at which was received depositions, oral testimony, including that of petitioner through a duly sworn interpreter, as well as certain exhibits as authorized by SDCL 23--52--2. The trial court entered findings of fact and conclusions of law denying post-conviction relief. From these findings of fact and conclusions of law, which constitute a judgment under SDCL 23--52--14, petitioner has appealed. We affirm.

Petitioner's assignments of error are essentially that the trial court erred in failing to grant relief on the basis of petitioner's claims that: (1) certain statements given to Bureau of Indian Affairs police were used in connection with the preliminary hearing at which defendant was bound over for trial on the charge of murder; (2) petitioner did not knowingly, voluntarily or understandingly enter a plea of guilty to second degree manslaughter and (3) petitioner did not intelligently sign the extradition waiver allowing for his extradition from North Dakota to South Dakota and was thus not afforded fully his rights under the North Dakota extradition law.

As evidenced by the memorandum decision ¹ the state's attorney drew findings of fact and conclusions of law purportedly complying with SDCL 23--52--14. That statute clearly obligates the trial court to deal with each issue presented by petitioner:

23--52--14. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each federal, state or other issue presented. This order is a final judgment for purposes of review.

This statute, essentially taken from the language of the Uniform Post-Conviction Procedure Act, § 7, ABA Standards Relating to Post-Conviction Remedies, § 7, appears not to have been complied with but petitioner has not challenged the sufficiency of the findings of fact or the conclusions of law. ² It would appear from the findings of fact and conclusions of law entered that the trial court applied the test of sufficiency of the evidence necessary to establish the right to relief as established by this court in State v. Roth, 1969, 84 S.D. 44, 166 N.W.2d 564, to-wit: 'The burden of establishing a basis for relief rests on the petitioner.'

The scope of this court's review is likewise set forth in State v. Roth, supra, 'That this court may disturb a trial court's findings of fact only if the evidence preponderates against them.' 84 S.D. at 47, 166 N.W.2d at 565.

Due to the paucity of the findings of fact and conclusions of law we have reviewed the entire record, much of which is duplicated in the settled record, and find that the evidence does not preponderate against the minimal findings of fact entered by the trial court.

Petitioner, while in custody in Ft. Yates, North Dakota, on violation of tribal law, was interviewed by two investigators for the Bureau of Indian Affairs relating to his involvement in the death of Gilchrist. It developed, during the course of the preliminary hearing, that there was some question of whether, during the course of the interrogation and after petitioner had been given his Miranda rights, petitioner may have requested an attorney. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The testimony of the two officers involved was in conflict in that regard and by virtue of the ultimate plea of guilty no suppression hearing was held or order entered relative to the admissibility of the statements made. The petitioner, in oral argument and in both his original and reply briefs sheds little light upon what, if any, effect the threatened evidence may have had on the voluntariness of the plea of guilty entered by petitioner to the lesser offense.

As stated by this court in State ex rel. Condon v. Erickson, 1970, 85 S.D. 302, 182 N.W.2d 304:

'It is well settled that judgment on a plea of guilty which is entered voluntarily is not rendered invalid because for some reason the defendant had previously made a confession under circumstances which might have rendered it inadmissible, if the defendant had pleaded not guilty and had gone to trial. This is so because the plea, if voluntarily and understandably made, is conclusive as to the defendant's guilt, admitting all the facts charged and waiving all nonjurisdictional defects in the prior proceedings against him. The judgment and sentence which follow the plea of guilty are based solely upon the plea and not upon any evidence which might have been acquired improperly by the prosecutor. Thus, a confession in the possession of the prosecutor which has been illegally obtained cannot be made the basis of a collateral attack upon a judgment of conviction entered upon a plea of guilty which was voluntarily and understandably made.' (citations omitted) 85 S.D. at 307, 182 N.W.2d at 306, 307.

Even if we were to assume that the statements amounted to a confession of guilt and further assume that they would be inadmissible as evidence upon a trial for the reasons urged by petitioner, since he pleaded guilty 'they are relevant in the present proceeding only to the extent that they may have affected the voluntary character of his plea.' State ex rel. Condon v. Erickson, supra, at 307. We are unable to supply the logic which would support petitioner's claim that the questioned admissions are the sole basis for the guilty plea. Petitioner has not established that his admissions were the sole evidence linking him with the crime and on the record before us we cannot engage in such a presumption. That conclusion would be inconsistent with the fact of petitioner's being sought for questioning in the first instance. Petitioner in this case entered a plea to manslaughter in the second degree in order to avoid prosecution on the murder charge. The state's attorney agreed to forego prosecution upon a plea to the lesser offense without going into recommendations as to the sentence to be imposed. The fact that petitioner accepted the bargain does not spell coercion. Weston & Palmer v. Erickson, 1972, 86 S.D. 777, 201 N.W.2d 861. We find petitioner's first contention to be without merit.

The salient point of petitioner's claim that his guilty plea was not knowingly or understandingly entered is that he lacked sufficient education and comprehension of the English language to have fully understood his rights, thereby tending to negate knowledgeable waiver of his constitutional rights by the entry of a plea of guilty. For the purposes of establishing his claimed lack of understanding, a deposition of petitioner was taken with the aid of an interpreter. Throughout the course of that deposition, attempt was made to show his claimed deficiency. Contrary to that deposition, which evidence this court is as well qualified to weigh as was the trial court, Geo. A. Clark & Son, Inc. v. Nold, 1971, 85 S.D. 468, 185 N.W.2d 677, there was other evidence before the trial court which the trial court obviously determined to be more credible. From the testimony of one of the attorneys who had represented petitioner at the time of the entry of his plea of guilty, as well as certain correspondence, some of which was addressed to the trial court prior to sentencing, which the trial court obviously believed to be in the handwriting of petitioner, we cannot say that the trial court was in error in disbelieving the deposition. The deposition, when countered against the testimony and demeanor of petitioner in the presence of the trial judge, is such that we must agree with the trial court, which gave no credibility to his depositional testimony, that petitioner has not met his burden of proof in his asserting the conviction to have been obtained by violation of some provision of the Constitution of the United States or the Constitution or laws of this state. State v. Roth, supra; Fanning v. State, 1970, 85 S.D. 246, 180 N.W.2d 853. We would necessarily affirm a finding which would support a conclusion of law, had they been made, that the plea of petitioner was made with knowledge and understanding and was voluntary. We are not...