State v. Wika, 16927

• Decision Date: 21 September 1990
• Docket Number: No. 16927,16927
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Philip P. WIKA, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 630

464 N.W.2d 630

STATE of South Dakota, Plaintiff and Appellee, v. Philip P. WIKA, Defendant and Appellant.

No. 16927.

Supreme Court of South Dakota.

Considered on Briefs Sept. 21, 1990.

Decided Jan. 2, 1991.

David D. Wiest, Asst. Atty. Gen., Pierre, (Roger A. Tellinghuisen, Atty. Gen., Pierre, on brief), for plaintiff and appellee.

Steve Miller, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

Philip P. Wika (Wika) appeals from a judgment of conviction for sexual contact with a child under the age of 16 and the denial of his motion to withdraw his nolo contendere plea to the same charge. We affirm.

FACTS

On October 13, 1988, Wika was charged in an indictment with two counts of sexual contact with a child under the age of 16 (SDCL 22-22-7 ¹) and one count of first degree rape in violation of SDCL 22-22-1(4) ² (sexual penetration with person less than ten years of age). The charges were based upon allegations concerning Wika's conduct with his two minor granddaughters. Wika entered not guilty pleas to all three charges and retained counsel, an attorney with some nineteen years of experience, to represent him.

Subsequent to his retention, counsel met with Wika several times to discuss the charges, Wika's rights and the potential penalties. He filed numerous motions on Wika's behalf. He also secured the services of a private investigator to look into the charges. Eventually, counsel proposed a possible plea bargain to Wika.

The plea bargain involved Wika's entry of a nolo contendere plea to one of the sexual contact charges. Counsel explained the nolo contendere plea to Wika, its difference from a guilty plea and that it would not be an admission of guilt. This was a concern of Wika's, who maintained his innocence of the charges against him. Counsel further explained that under the terms of the plea bargain probation would be left up to the court and that Wika would probably have to attend counseling and would have to cooperate and complete any counseling requirements that the court set forth. After these explanations, it appeared to counsel that Wika understood the plea and he ultimately agreed to accept the plea bargain.

The change of plea hearing was conducted before Circuit Judge Amundson. The deputy state's attorney outlined the terms of the plea agreement: that Wika plead nolo contendere to one count of sexual contact with a child under age sixteen; that the other two counts in the indictment be dismissed; that there be no actual jail time; that imposition of sentence be suspended; and, that the other terms of the fine and probation be left up to the court. Judge Amundson ordered a presentence investigation and delayed acceptance of the plea and sentencing until after completion of the report.

Sentencing was conducted on February 3, 1989, by Circuit Judge Hurd. Judge Hurd entered his order suspending imposition of sentence and placing Wika on supervised probation for life. Condition three of the conditions of probation provided, "[t]hat the defendant abide by any and all counseling that is recommended through Court Services during the first three years of probation." Thereafter, Wika was placed in a sexual offender group therapy program.

On July 31, 1989, state filed a motion to revoke Wika's probation. The motion was based upon a probation violation report submitted by Wika's court services officer. The report alleged that Wika had been terminated from the sexual offender therapy group, "due to his continued lack of cooperation, denial, and disruptive attitude."

Prior to the probation revocation hearing, Wika, through a newly retained attorney, filed a motion to withdraw his nolo contendere plea. Wika contended that he should be allowed to withdraw his plea because it was not freely and voluntarily entered.

A hearing on state's motion to revoke Wika's probation and on Wika's motion to withdraw his plea was held on November 15, 1989. After the hearing, the trial court entered its order revoking probation and sentencing Wika to ten years in the penitentiary. The trial court also entered findings of fact, conclusions of law and an order denying Wika's motion to withdraw his plea. Wika appeals.

ISSUE

WHETHER THE CIRCUIT COURT ABUSED ITS DISCRETION IN DENYING

WIKA'S MOTION TO WITHDRAW HIS NOLO CONTENDERE

PLEA?

SDCL 23A-27-11 on withdrawal of pleas provides:

A motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice a court after sentence may set aside a judgment of conviction and permit the defendant to withdraw his plea. (emphasis added).

The statutory language is clear. It allows a motion to withdraw a nolo contendere plea only before sentence is imposed or imposition of sentence is suspended. Thereafter, a stringent standard is applied in permitting the withdrawal of a nolo contendere plea and withdrawal will be allowed only to correct a manifest injustice. We explained this distinction between pre- and post-sentence plea withdrawal in State v. Lohnes, 344 N.W.2d 686 (S.D.1984):

When a defendant moves to withdraw a plea of guilty prior to imposition of sentence, the trial judge's discretion in the matter should be exercised liberally in favor of withdrawal, unless it appears that the State has detrimentally relied upon the plea and the prosecution of the defendant has been thereby prejudiced. When, however, a defendant moves to withdraw his guilty plea after sentence has been imposed, the trial judge will set aside the judgment of conviction and permit defendant to withdraw his plea only to correct manifest injustice. The purpose of this stringent standard for post-sentence plea withdrawal motion is "to prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe."

Id. at 687-88 (citations and footnote omitted). Here, Wika moved to withdraw his nolo contendere plea after imposition of his sentence was suspended. Therefore, we hold that the stringent standard of SDCL 23A-27-11 and Lohnes should be applied and that Wika could only be allowed to withdraw his nolo contendere plea by establishing that withdrawal was necessary to correct a manifest injustice.

In Lohnes we held that the trial court abused its discretion in denying the defendant's post-sentence plea withdrawal motion. We reached this conclusion on the basis that the defendant's plea was not voluntarily entered because it was not entered with sufficient awareness of the likely consequences of the plea. Wika similarly argues that his plea was not voluntarily entered because it was not made with sufficient awareness of the consequence that he would have to undergo counseling and admit his guilt in therapy. He asserts that the only reason he entered the nolo contendere plea was so that he would not have to admit his guilt and that had he known of that consequence he would never have entered the plea. He further asserts that his attorney should have told him of the possibility that he would have to admit his guilt in therapy and because of his attorney's failure in that respect he should have been allowed to withdraw his plea. In essence, therefore, Wika challenges the voluntariness of his plea based upon ineffectiveness of his counsel in the advice he gave him on the consequences of the plea.

Ordinarily, claims of ineffective assistance of counsel will not be reviewed on direct appeal. Luna v. Solem, 411 N.W.2d 656 (S.D.1987). Here, however, Wika's contentions concerning the voluntariness of his plea are so intertwined with his argument regarding the advice his counsel gave him on the plea that we deem it appropriate to address the effectiveness of his counsel's representation in this regard. Where a claim of ineffective assistance of counsel is reviewed on direct appeal the review is limited to determining whether the representation was so casual that the record evinces a "manifest usurpation" of the appellant's constitutional rights. Luna, 411 N.W.2d at 659. Here, we discern no usurpation of Wika's constitutional rights resulting from his counsel's failure to advise him of the requirements of the counseling sessions he would have to attend as a condition of probation.

At the outset, we observe that Wika's counsel did not bear the sole responsibility for insuring that Wika understood the consequences of his plea. The ultimate burden in this regard rested with the trial court. In Gregory v. Solem, 449 N.W.2d 827 (S.D.1989) a habeas corpus petitioner raised contentions concerning the effectiveness of his counsel's representation claiming his counsel had failed to explain the elements of the crime with which he was charged and to which he had pled guilty. We noted the rule that before a plea can be voluntarily entered, the defendant must possess an understanding of the nature of the charge and further noted that, "[t]he ultimate burden of assuring that a defendant is advised of the nature of the charge against him falls upon the trial court and not upon the defendant's attorney." Gregory, 449 N.W.2d at 832 n. 7. (emphasis added).

We based our premise in Gregory, on our decision in Application of Garritsen, 376 N.W.2d 575 (S.D.1985) wherein we held:

[T]he record must indicate that the pleading defendant understood the nature and consequences of his plea. The record must indicate that the defendant was informed of his right to a jury trial in the county in which the crime was committed. The record must also indicate a factual basis for a guilty plea before it is accepted. The circuit court cannot assume counsel has so advised the defendant and the record of the preliminary hearing cannot substitute for the circuit court's duty to actively participate by informing and canvassing the defendant, so as to make certain he understands and knows his rights and the nature and consequences of his plea.

Id. at 577 (emphasis...