SPENCER LACROIX v. BRENT FLUKE, Wаrden, Mike Durfee State Prison
#29493-a-JMK
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2022 S.D. 29; OPINION FILED 05/25/22
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, CODINGTON COUNTY, SOUTH DAKOTA; THE HONORABLE PATRICK T. PARDY, Judge
SPENCER LACROIX, Petitioner and Appellant,
v.
BRENT FLUKE, Warden, Mike Durfee State Prison, Respondent and Appellee.
MANUEL J. DE CASTRO, JR., Madison, South Dakota, Attorney for petitioner and appellant.
JASON R. RAVNSBORG, Attorney General, JENNIFER M. JORGENSON, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
CONSIDERED ON BRIEFS AUGUST 23, 2021
#29493
[¶1.] Spencer LaCroix was charged with the first-degree rape of a child under thirteen years of age and sexual contact without consent against his daughter C.L. Pursuant to a written plea agreement, he pled nolo contendere to both charges. The circuit court imposеd a lengthy penitentiary sentence for the rape conviction and a suspended sentence in the county jail for the sexual contact offense. Approximately six weeks later, LaCroix filed an amended application for a writ of habeas corpus alleging that his conviction should be vacated. LaCroix claimed that the indictment under which he was charged did not describe a public offense and that he was convicted and sentenced in violation of the state and federal constitutional provisions prohibiting an ex post facto application of a criminal statute. The habeas court denied his petition but granted LaCroix‘s motion for a certificate of probable cause to appeal the question whether there “was an application of an ex post facto law upon [LaCroix].” We affirm.
Facts and Procedural History
[¶2.] In 2002, LaCroix lived near Watertown, South Dakota, with his wife and, at that time, only daughter, C.L., born January 21, 1992.1 C.L. turned ten years of age on January 21, 2002. When C.L. was age 26, she reported to law enforcement that LaCroix had raped her orally and vaginally from the time she was four years of agе into her adulthood. In describing the abuse that occurred, C.L. recounted to law enforcement the details of incidents in 2000 through 2018. During law enforcement‘s interview with LaCroix about the allegations, LaCroix made some limited admissions regarding the
[¶3.] In 2018, a Codington County grand jury indicted LaCroix for five counts of sexual abuse, three involving C.L.3 On April 5, 2019, LaCroix filed a motion to dismiss the first-degree rape charges in counts 1 and 2. LaCroix made two challenges to count 2, which alleged an act of first-degree rape of C.L. occurring between January and December of 2002. First, he claimed that the indictmеnt did not “describe a public offense” because the provisions of the specific statute in place in 2002 criminalized sexual penetration of a child under ten years of age and C.L. was ten years of age when LaCroix committed the alleged acts. Additionally, LaCroix argued that the charges were barred by the statute of limitations because the controlling statute required the charges to be filed before the victim was 25 years old or within seven years of the commission of the crime, whichever is longer, and C.L. was 26 at the time the charges were filed.
[¶4.] LaCroix‘s motion to dismiss contained а notice of hearing, indicating that the matter would be heard by the court on April 17. However, there is no indication in the record that the April 17 hearing occurred or that LaCroix‘s challenges were resolved. Instead, on April 23, 2019, LaCroix signed a written plea agreement and waiver of rights wherein he agreed to plead nolo contendere to counts 2 and 3 of the indictment. In return, the State agreed to dismiss the remaining counts and refrain from bringing new charges in connection with its ongoing investigation. The State agreed to cap its sentencing recommendation at 25 yеars, and the agreement stated that the court had agreed to impose a sentence within this cap. As part of the agreement, LaCroix agreed to waive a non-exhaustive list of constitutional and statutory rights. The factual basis for the plea was not referenced or set forth in the agreement.
[¶5.] The day after LaCroix signed the agreement, the circuit court rearraigned LaCroix, and he pled nolo contendere to counts 2 and 3 pursuant to the terms of the agreement. The record does not contain a transcript of this hearing. The judgment of сonviction reflects that the court found that LaCroix was regularly held to answer and represented by counsel, that his pleas were knowing, voluntary, and intelligent, and that a factual basis existed to support the pleas. The court ordered a PSI report and psycho-sexual evaluation prior to sentencing.
[¶6.] LaCroix appeared before the court for sentencing on July 31, 2019. The court sentenced LaCroix on count 2 (first-degree rape) to serve 25 years in the state penitentiary with five years suspended and payment of fines, fees, and costs. On count 3 (misdemeanor sexual contact without consent), the court imposed a one-year suspended jail sentence in the Codington County Detention Center.4 LaCroix did not file a direct appeal.
[¶8.] After ordering the parties to brief the legal issues, the court issued a memorandum opinion on November 9, 2020, denying LaCroix‘s habeas application. The court characterized LaCroix‘s habeas argument as asserting only “that his constitutional rights were violated by the ex post facto application of
- That [LaCroix] had an opportunity to review the entire file herein, including the police reports, the Child‘s Voice records, the Grand Jury Transcript, the text messages, and all evidence the State has in its possession as given to him by his attorney;
- That [LaCroix] had sufficient time to visit about his case with his attorney and is satisfied with the ability and efforts of his attorney;
- That “[b]eing fully aware of his constitutional and statutory rights, [LaCroix] hereby waives those rights and enters into this Plea Agreement voluntarily, fully understanding the nature and consequences of his plea.”
[¶9.] After the court filed its memorаndum decision, but before the court issued its findings of fact and conclusions of law and order, LaCroix petitioned the habeas court on December 7, 2020, for a certificate of probable cause that an appealable issue exists.8 The court summarily granted the motion and provided in an order on December 13, 2020 that LaCroix “may appeal” the issue whether the “change in
[¶10.] LaCroix appeals, asserting that the habeas court erred in dismissing his amended application for a writ of habeas corpus.
Standard of Review
[¶11.] “The remedy of a writ of habeas corpus is in the nature of a collateral attack on a final judgment, therefore, our scope of review is limited.” Rhines v. Weber, 2000 S.D. 19, ¶ 8, 608 N.W.2d 303, 306 (cleaned up). “Habeas corpus is not a substitute for direct review . . . . The habeas petitioner has the initial burden to prove by a preponderance of the evidence that he is entitled to relief.” Id. ¶ 9, 608 N.W.2d at 306 (citation omitted). “We review only (1) whether the court had 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.” Iannarelli v. Young, 2017 S.D. 71, ¶ 18, 904 N.W.2d 82, 87 (cleaned up). “[T]his Court reviews a habeas court‘s factual findings under the clearly erroneous standard and legal conclusions under the de novo standard.” Madetzke v. Dooley, 2018 S.D. 38, ¶ 8, 912 N.W.2d 350, 353 (cleaned up).
Analysis and Decision
Appellate Jurisdiction
[¶12.] The State raises a twofold argument that this Court has no jurisdiction to hear LaCroix‘s habeas appeal. First, the State argues that because LaCroix did not timely file a motion for a certificate of probable cause (CPC) from a final order under
Timeliness of Certificate of Probable Cause
[¶13.] The State first argues that becаuse the CPC was filed early, it was incorrectly filed and does not meet the requirements for a proper CPC under
[¶14.] Here, LaCroix filed his motion seeking the CPC on December 7, 2020, following the issuance of the habeas court‘s memorandum decision, which was filed on November 9, 2020. The State did not object to LaCroix‘s motion for the CPC on the ground that it was рrematurely filed. The habeas court issued the CPC on December 13, 2020, allowing LaCroix to appeal the sole issue of whether the change in
[¶15.] This fact pattern falls within the parameters of
Notice of Appeal
[¶16.] Because
[¶17.] The State argues that because LaCroix‘s notice of appeal was filed before the court entered its final order, he is attempting to appeal an unappealable memorandum decision. See Jones v. Jones, 334 N.W.2d 492, 494 (S.D. 1983) (holding that “[the circuit] court‘s memorandum decision is not reviewable by this court“). Therefore, the State argues LaCroix‘s “appeal results in a nullity and confers no jurisdiction on this Court[.]”
[¶18.] Despite this contention,
Waiver of Rights Through Entry of Plea
[¶19.] LaCroix contends that the habeas court erred in concluding that he waived his right to challenge his conviction of first-degree rape as alleged in count 2 of the indictment. In particular, he asserts that because he is challenging “the very power of the State to bring [him] into court to answer the charge brought against him[,]” see United States v. Barboa, 777 F.2d 1420, 1423 n.3 (10th Cir. 1985), he did not, by pleading nolo contendere, waive the right to assert the jurisdictional defect that the indictment failed to charge a public offense. He further claims that he did not waive the right to assert that he was “subject to an unconstitutional ex post facto law.” In his view, he “was charged and pled guilty to a crime that wasn‘t a crime at the time it was committed[.]”
[¶20.] We first address LaCroix‘s claim that the indictment failed to charge a public offense because the failure to charge a public offense would have deprived the circuit court of jurisdiction to act on the charge and accept LaCroix‘s guilty plea. See State v. Outka, 2014 S.D. 11, ¶¶ 9-12, 844 N.W.2d 598, 603-04 (concluding that because the information charged a public offense, the magistrate court had jurisdiction). As this Court long ago explained, before a court can “act on a criminal charge[,]” the “court must have personal and subject matter jurisdiction[.]” Honomichl v. State, 333 N.W.2d 797, 798 (S.D. 1983). We have further concluded that a defendant can challenge, in a request for post-conviction relief, the circuit court‘s jurisdiction to act on a criminal
[¶21.] Count 2 in the indictment alleged that “on or about January through December 2002,” LaCroix committed “the public offense” of first-degree rape, a Class C felony, in violation of
[¶22.] Nеvertheless, the record establishes that C.L. was born on January 21, 1992, which means she was under ten years of age prior to January 21, 2002, a date within the range of dates alleged in the indictment. Further, a Class C felony carries the same maximum penitentiary sentence of life in prison as that available for a Class 1 felony in 2002.10 Because count 2 of the indictment cites the relevant statute and provides a factual allegation regarding conduct, which if proven, would establish a first-degree rape under the version of
[¶23.] The defects in the indictment upon which LaCroix was convicted did not deprive the circuit court of jurisdiction to enter a judgment against LaCroix for first-degree rape. As the Court in Outka concluded, neither an error in the citation of the statute nor a failure to include an element of the offense are jurisdictional defects. 2014 S.D. 11, ¶¶ 16, 19, 844 N.W.2d at 605. Rather, they are defects that must be raised and resolved prior to trial. Under
[¶24.] Having concluded that the indictment charged a public offense, we next examine LaCroix‘s further claim that he was subject to an ex post facto application of the amended version of
[¶25.] LaCroix‘s claim instead presents a challenge to the factual basis underlying his conviction. In this regard, the State asserts that LaCroix waived the right to chаllenge the factual basis, and further asserts that such issue is non-jurisdictional and outside the scope of habeas review.12 Whether C.L. was under ten years old at the time of the alleged rape, such that LaCroix could be found guilty under the 2002 version of the statute, was a fact LaCroix could have submitted to the trier of fact, if disputed, but instead he waived his right to do so by pleading nolo contendere to the charged offense. Moreover, by pleading nolo contendere, LaCroix waived the right to challenge on appeal or in a habeas action the faсtual basis supporting his conviction. As the Sixth Circuit Court of Appeals explained, “[l]ike a plea of guilty, a plea of nolo contendere constitutes a waiver of all so-called ‘non-jurisdictional defects[,]” including “the right to contest the factual merits of the charges against him.” United States v. Freed, 688 F.2d 24, 25 (6th Cir. 1982) (citations omitted) (emphasis added); see also United States v. Bessemer and Lake Erie R.R. Co., 717 F.2d 593, 597-98 (D.C. Cir. 1983) (“Convictions pursuant to a nolo [contendere] plea cannot be attacked on the merits, and can only be challenged by showing defects that affect the court‘s subject matter jurisdiction, or by showing that the indictment ‘fails to charge an offense.‘” (citation omitted)).
[¶26.] This Court has similarly stated that “[a] plea of nolo contendere has the same effect as a guilty plea in waiving nonjurisdictional defects.” State v. Hoeft, 1999 S.D. 24, ¶ 12, 594 N.W.2d 323, 326. We have also said, in the context of guilty pleas, that “[the failure of a trial court to establish a factual basis does not reach the constitutional or jurisdictional proportions necessary to bring the question within the scope of habeas corpus.” McDonough v. Weber, 2015 S.D. 1, ¶ 18, 859 N.W.2d 26, 35. Therefore, while a court may not be required to establish a factual basis before
Statute of Limitations
[¶27.] Finally, in his brief, LaCroix argues that the State was required to file the charges at issue against him “within seven (7) years [of the alleged act], or by the time ‘C.L.’ had turned twenty-five (25) years old” in accordance with
[¶28.] Because LaCroix has failed to assert a claim upon which his judgment could be void, we affirm the habeas court‘s denial of LaCroix‘s application for habeas corpus relief.
[¶29.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN, Justices, concur.