Weiker v. Solem, 18337

• Decision Date: 15 February 1994
• Docket Number: No. 18337,18337
• Citation: 515 N.W.2d 827
• Parties: Kenneth R. WEIKER, Applicant and Appellant, v. Herman SOLEM, Warden of the South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 827

515 N.W.2d 827

Kenneth R. WEIKER, Applicant and Appellant, v. Herman SOLEM, Warden of the South Dakota State Penitentiary, Appellee.

No. 18337.

Supreme Court of South Dakota.

Considered on Briefs Feb. 15, 1994.

Decided April 27, 1994.

Richard L. Johnson, Sioux Falls, for applicant and appellant.

Mark Barnett, Atty. Gen., Ann C. Meyer, Asst. Atty. Gen., Pierre, for appellee.

AMUNDSON, Justice.

Kenneth Weiker (Weiker) appeals from an Order denying his Application for Writ of Habeas Corpus. We affirm.

FACTS

On March 22, 1982, State filed an Information. Part I charged Weiker with one count of distribution of hashish, two counts of distribution of cocaine and one count of receiving stolen property. Part II of the Information charged Weiker as a habitual offender.

That same day, Weiker was arraigned on Part I and Part II of the Information by the Honorable Marshall Young. Judge Young fully advised Weiker of his Boykin rights. On April 19, 1982, a hearing was held because Weiker claimed that he had a conflict with his court-appointed defense counsel. The alleged conflict arose over a hunger strike Weiker had launched in protest of the jail conditions at the Pennington County Jail. At the hearing, Weiker agreed to proceed to trial with his court-appointed attorney.

On April 22, 1982, a jury found Weiker guilty of one count of distribution of hashish and two counts of distribution of cocaine. The next day, Judge Young arraigned Weiker for a second time on the Part II habitual offender Information. Weiker was represented by counsel during this second arraignment. The court again advised Weiker of his "legal and constitutional rights" but failed to mention his right to confront the witnesses against him during the Part II trial. Following this advisement, Weiker admitted to three prior felony convictions set forth in Part II of the Information pursuant to a plea agreement with the State.

Of particular interest to this habeas corpus appeal is Weiker's admission at the second arraignment that he was "the same individual that was convicted of third-degree burglary in Minnehaha County on May 8, 1978." The judgment for this conviction stated that Weiker had been arraigned on the information charging him with burglary in the third degree and grand theft and that he had entered a plea of not guilty to those charges. The judgment further states that the case had been brought before the court for a trial upon the stipulated facts of the parties as to Count I, burglary in the third degree. From these stipulated facts, the court determined that Weiker was guilty of burglary in the third degree. The 1978 judgment does not indicate whether Weiker was advised of his right to a jury trial on the charges against him or that he waived his right to a jury trial.

During this 1982 enhancement proceeding, Judge Young took judicial notice of the files and records pertaining to Weiker's prior felony convictions. Judge Young then found Weiker guilty of being a habitual offender and sentenced him to life imprisonment. On appeal, this court affirmed his conviction but remanded for resentencing. State v. Weiker, 342 N.W.2d 7 (S.D.1983) (Weiker I ). On remand, Judge Young resentenced Weiker to three concurrent eighty-year terms in the South Dakota State Penitentiary. On a second direct appeal, Weiker's sentences were affirmed by this court. State v. Weiker, 366 N.W.2d 823 (S.D.1985) (Weiker II ).

On January 28, 1987, Weiker filed an application for writ of habeas corpus. A habeas corpus hearing was held by the Honorable Merton B. Tice, Jr. Following the hearing but prior to his decision, the trial court allowed State to supplement the record over Weiker's objection. State supplemented the record by submitting the March 6, 1978, Transcript of Arraignment and the April 17, 1978, Transcript of Waiver of Jury Trial and Stipulation. Judge Tice entered findings of fact and conclusions of law denying Weiker's writ of habeas corpus on March 29, 1993. Weiker appeals.

ISSUES

1. Was it proper for the trial court to use Weiker's May 11, 1978, third-degree burglary conviction to enhance his sentence under state and federal constitutional standards?

2. Whether Weiker's double jeopardy rights were violated when the habeas court permitted State to supplement the record to establish that Weiker had been advised of his Boykin rights and had waived his right to a jury trial during his 1978 third-degree burglary prosecution in Minnehaha County.

3. Whether Weiker's plea to the habitual offender information was invalid because the trial court did not advise him of his right to confront the witnesses against him in the advisement given at a second arraignment for a Part II habitual offender information.

4. Whether Weiker was denied effective assistance of counsel because his attorney did not object to the use of his May 11, 1978, third-degree burglary conviction in Minnehaha County to enhance his sentence during the April 23, 1982 habitual offender proceedings.

5. Whether Weiker was denied effective assistance of counsel when the trial court refused to appoint another attorney to represent him at a conflict-of-interest hearing.

STANDARD OF REVIEW

The remedy of post-conviction habeas corpus is restricted by the provisions of SDCL 21-27-16 and the prior decisions of this court. The statutory provisions were fairly well summarized in our decision, State v. Erickson, 80 S.D. 639, 129 N.W.2d 712 (1964), wherein we pointed out that since the remedy is in the nature of a collateral attack upon a final judgment, the scope of review in habeas corpus proceedings is limited. As we said: 'Habeas corpus can be used only to review (1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.' Id., 80 S.D. at 645, 129 N.W.2d at 715. See also Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987). Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional err. Id., 406 N.W.2d at 143; SDCL 21-27-16. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Goodroad, 406 N.W.2d at 143; Podoll v. Solem, 408 N.W.2d 759 (S.D.1987).... Further, we may not upset the habeas court's findings unless they are clearly erroneous. SDCL 15-6-52(a); Satter v. Solem, 422 N.W.2d 425 (S.D.1988).

McCafferty v. Solem, 449 N.W.2d 590, 591-92 (S.D.1989), reh'g denied January 3, 1990 (McCafferty III ). See also Gregory v. Solem, 449 N.W.2d 827 (S.D.1989).

DISCUSSION

Issue 1

Was it proper for the trial court to use Weiker's May 11, 1978, third-degree burglary conviction to enhance his sentence under state and federal constitutional standards?

Weiker argues that the May 11, 1978, Minnehaha County judgment was constitutionally infirm and should not have been used to enhance his sentence in 1982. The 1978 burglary conviction came after the State and Weiker submitted the case for a court trial on stipulated facts. Weiker claims the judgment entered after the court trial is constitutionally infirm because the judgment document does not reflect that he waived his right to a jury trial. We disagree.

In a habitual offender proceeding the defendant has the initial burden of placing the validity of the prior convictions in issue. Stuck v. Leapley, 473 N.W.2d 476, 478 (S.D.1991). Weiker has failed to successfully challenge the validity of this conviction.

It is settled law that a guilty plea cannot stand unless the record indicates that a free and intelligent waiver of the three constitutional rights mentioned in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), was given. However, Weiker has not cited any authority which requires a judgment document reflect that a defendant has waived his constitutional rights when submitting to a court trial on stipulated facts.

Weiker never stipulated that he was guilty of burglary; in fact, he pled not guilty to all three charges brought against him. Weiker and his attorney only signed a document stipulating that certain facts existed for the trial "[c]ourt's determination as to whether [Weiker] is guilty of the crime of Burglary in the third degree." In exchange for this stipulation, State dropped two of the charges brought against Weiker.

A stipulation to facts from which a judge or jury may infer guilt is simply not the same as a stipulation to guilt, or a guilty plea. 'A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.' Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969). If the Boykin court itself recognized this distinction then we are hardly in a position to ignore it--or to hold that the full Boykin protections extend to the circumstance of a stipulation.

Adams v. Peterson, 968 F.2d 835, 839 (9th Cir.1992), cert. denied --- U.S. ----, 113 S.Ct. 1818, 123 L.Ed.2d 448 (1993).

It is clear that a defendant who is only stipulating to facts is not entitled to the full protections that attend a guilty plea. See Id.; United States v. Robertson, 698 F.2d 703 (5th Cir.1983); United States v. Stalder, 696 F.2d 59 (8th Cir.1982); Witherspoon v. United States, 633 F.2d 1247 (6th Cir.1980) cert. denied, 450 U.S. 933, 101 S.Ct. 1396, 67 L.Ed.2d 367 (1981); United States v. Lyons, 898 F.2d 210 (1st Cir.) (collecting cases), cert. denied, 498 U.S. 920, 111 S.Ct. 295, 112 L.Ed.2d 249 (1990); Lyons v. Pearce, 298 Or. 569, 694 P.2d 978 (1985). Nevertheless, this record indicates that the trial court painstakingly informed Weiker of his constitutional rights at his arraignment and in a subsequent hearing carefully explained the ramifications of stipulating to the facts for a court trial. ¹ ...