Logan v. Solem

Gen., Pierre, Quist, Atty. Asst. affirm judgment ordering perma- Carl W. the plaintiff appellee. injunction. nent Jr., Sambroak, Kadoka, A. Robert appellants.

defendants All the Justices concur.

MORGAN, Justice. Lyle O’Bryan (O’Bryan)

Defendant ap-

peals judgment ordering perma- from a injunction O’Bryan involving

nent advertising signs.

two outdoor We affirm. brought O’Bryan action

seeking injunction compel to the remov- advertising signs

al of outdoor two owned signs O’Bryan. were erected some- LOGAN, Douglas after passage time of SDCL Appellant, regulates which 31-29-63 outdoor advertis- ing signs. pаrties appear Both recog- to signs nize that were erected unlawful- SOLEM, Respondent Herman ly- Appellee. O’Bryan presents appeal. two issues on No. 15409. Initially he claims permanent injunc- necessary proper tion was not a reme- Supreme Court of Dakota. South dy adequate remedy since there was an at law Secondly, O’Bryan available State. on Considered Briefs Fеb. 1987. claims advertising signs that outdoor Decided are public nuisances and thus are not subject by injunction. to abatement O’Bryan’s argument

We first consider appropriateness legal of another reme-

dy. correctly prerequisite He notes: “The

to injunctive relief is lack of an ade-

quate complete remedy at law.” Hein ‍​‌‌‌​‌‌‌‌​​​‌​​​​​​​​‌​‌‌​​​​​‌​​​‌​​​​​​​​‌​‌​​‍Marts, 295 N.W.2d 31-29-72, urges

He pro- taking

vides for state of noncon- signs

forming therefore, compensation adequate legal remedy available to

the state. The applies only signs statute

lawfully erected the state. It is ludi- argue

crous to the state should be

required compensate the owner of an

illegally sign erected can be re- argument

moved. We find the to be friv- reject

olous and it out of hand. premises

O’Bryan his second issue

the trial court’s determination that

signs question public were nuisances.

We need reach that issue since the

signs illegal 31-29-63, under SDCL require finding

which does not public injunction

nuisance. The will lie to enforce provisions оf SDCL 31-29-63 and we

jury, right to confront hostile witnesses privilege against and the self-incrimination. judge The did petitioner not advise plea would constitute waiver of these pled Petitioner not guilty to all three counts in the indictment. joined two cases motion the State. Pursuant agreement, petitioner agreed to withdraw of not of sexual contact with return, a child under sixteen. In the State agreed to dismiss the first and second de- gree rape charges in both cases. At the arraignment, Judge Hurd told petitioner: Logan, ... Mr. before I [THE COURT] proceed you plead to ask anew to Count I again want to once recall with you that your at the time of initial ar- raignment you were advised of various statutory rights constitutional and you enjoy in regards to this matter.... judge again The reviewed the various with summary but in his did not mention self-inсrimination. Hurd continued: you ... Do recall me [THE COURT] Braithwaite, Palls, pe- Richard Sioux for advising you of matters? those appellant. titioner and Yes, DEFENDANT LOGEN: sir. Kern, Gen., Pierre, Atty. Janine Asst. for you THE any ques- COURT: Do have respondent appellee; Mark V. Meier- tions at all about those constitutional Gen., Pierre, henry, Atty. on brief. rights? WUEST, DEFENDANT LOGEN: No. Chief Justice. THE COURT: want to make sure that appeal denying from an order also, you you understаnd this sir. If corpus relief. We affirm. charge enter no contest to Petitioner, Douglas Logan, was indicted you waiving many would be of those rape degree for in the first and was later important rights by pleading because no arraigned before Gene Paul Kean. longer contest the State no has the bur- explained Kean to trial proving your guilt beyond den of a rea-

jury, to confront hostile witnessеs sonable doubt.... privilege against self-incrimination. Hurd then told there judge The also advised would no no confron- be trial and therefore guilty plea would constitute waiver of witnesses, tation with hostile but the pled omitted the self-incrimina- Petitioner was indicted in a second case discussing peti- tion when he was waiver of rape degree, rape in the first tioner’s degree, second and sexual сontact with a age of nolo con- child under the of sixteen. He entered arraigned III. Richard D. Hurd. tendere to Count He was sentenced to explained Peni- years to trial ten the South Dakota State petition filed a

tentiary.1 Nachtigall, He then ha- this court held that the record must also requested that his case show the accused had “an beas be understanding of the nature and conse re-arraignment. Petitioner remanded for quences plea.” of the requirement argued plea of nolo contendere was appeared 11(c) in former Rule of the Feder invalid because the court did not advise him (“under al Rules of Criminal Procedure plea against ‍​‌‌‌​‌‌‌‌​​​‌​​​​​​​​‌​‌‌​​​​​‌​​​‌​​​​​​​​‌​‌​​‍that constituted waiver standing of the charge nature and peti- of self-incrimination or ascertain whether consequences plea”). 18 See hearing, tioner understood this. After U.S.C.A., (1986); Advisory Rule 11 States, 1463, 90 United 397 U.S. S.Ct. State, meir v. 273 N.W.2d 163 North (1970); Car 25 L.Ed.2d 747 State, Rust v. 88 S.D. 218 482 25, 31, 91 Alford, Nelson, olina v. (1974); 400 U.S. Crew v. 88 S.D. 216 (1970); State, Wilkins v. N.W.2d 565 (1974); 27 L.Ed.2d 162 Merrill v. 87 (9th Cir.1974). (1973). 505 F.2d N.W.2d 828 language stating any is devoid of that valid petitioner was aware The record shows requires specifical waiver the defendant be privilege self-incrimination. rights ly waiving told each of those he is specifi- Both Kean and right expressly and then waive each for the petitioner privilege on the cally canvassed record. during initial self-incrimination petitioner The arraignments. Although Judge record shows that knew he rights. was these constitutional specific right at again failed to mention this petitioner Kean informed that a arraignment, the continued a criminal de- guilty plea three would waive the constitu- rights fendant need not be readvised of his Boykin. During rights tionаl mentioned in entering immediately prior to his case, in the second only necessary It is that the record Hurd did not discuss waiver these rights show that he knew of his rights. arraignment, At the continued guilty plea time consequences of his at the however, petitioner stated that he recalled Garritsen, supra; was entered. important men- those State, supra; Stacey, Clark v. 294 N.W.2d tioned at his earlier (S.D.1980). applies We hold this rule Hurd, petitioner told pleadings. for nolo of nolo contendere would consti- judges’ canvassing In addition to the important many of those tute waiver petitioner, the record these began Hurd then When petitioner thirty also reveals that was specific right, he address waiver of each years age, had received assistance of against self- forgot to mention the counsel, and once had even been tried on oversight incrimination. Thus, charges in similar a court law.4 invalidate The does not conclusively the record shows voluntarily en- record shows that jury he had a to a understood that understanding of with a full tered including the rights, and those other trial waiving. Nothing he would be self-incrimination, which constitutionally valid required more is for a attach to a trial. determining validity that he was Petitioner does not claim and remains pleas the “standard was Boykin rights. Nor does voluntary unaware of his plea represents a whether the to ad- intelligent among he assert that the trial court failed the alterna- choice record, in rights, open him of these on the action to the defend- vise tive causes of 30, 91 S.Ct. at Alford, that he was aware of ant.” 400 U.S. at order to establish Rather, claims that the Stacey, supra; tary plea. supra; Roseland presence in the record is an 4. of these facts determining wheth- consideration 334 N.W.2d 43 intelligent, knowing, and volun- er there was 23A-7-4(4) Habeck, cites argument structures his main around the We do Attorney’s not condone the State’s language in the 23A-7-4 statute. SDCL perform duty provided failure to and subsection are identical to Rule Nevertheless, SDCL 21-27-9.3. 11(c)(4) language except emphasized for the Heege required was to determine whether below: imprisoned without authori- ty of accepting

Before law. SDCL 21-27-14. This determi- or required hearing nolo a court must nation contendere address the evidence on wheth- open personally intelligently er Boy- court and waived his of, inform him and determine that he kin Therefore we find no error or understands, following: examining abuse of discretion in the court the State’s evidence on merits. pleads guilty if he That or nolo there contendere will be a further Judgment affirmed. kind, by pleading so that guilty or nolo contendere he waives the J., MORGAN, concurs. trial, to confront MILLER, JJ., SABERS and concur cross-examine witnesses specially. him, riot to be com- pelled (Em- to incriminate HENDERSON, J., himself. dissents. phasis supplied). SABERS, (concurring Justice specially). 23A-7-4(4). See 18 Rule U.S.C.A. I specially write because cannot concur 11(c). the page with author’s statements on ‍​‌‌‌​‌‌‌‌​​​‌​​​​​​​​‌​‌‌​​​​​‌​​​‌​​​​​​​​‌​‌​​‍seven comply statutory pro- Failure to the with that: to comply statutory “Failure visions SDCL 23A-7-4 does not amount provisions of SDCL 23A-7-4 does not to a constitutional defect. See Goodroad amount to a citing constitutional defect” Solem, Goodroad, “(factual basis of a is (factual King, 400 N.W.2d at 880 basis a proper not constitutional consideration or plea is not a constitutional consideration or citing appeal)” on habeas King. I think proper However, on appeal). we jury the is still out on these matters and note that if the trial had canvassed agree. the impliedly author’s authorities appellant the under the statute this case questionable King Gоodroad and are au- would have appeared any never oth- thority for propositions. er court. Separately, put the State was to allowed argues transcripts Petitioner only parties in evidence all not after rested prior the arraignments from should have their attorney cases but even after the never been allowed into evidence. These argued had his case. This transcripts were not in the record at the procedure gives the undue advan- hearing, start of by but were admitted tage and encouraged. should not be Judge Heege after motion the State. objected introducing Petitioner to the State MILLER, (concurring specially). Justice these transcripts other evidence I concur. because the State failed to file a to return requirеd by the writ as SDCL 21-27-9.3. points This case out neces- argues this failure constituted sity for our religiously trial courts to utilize default the State and therefore barred arraignment It is checklists. seldom that admission of the State’s evidence on are to fully we able hold that failure to authority merits. He argu cites no for his Boykin/Nachti- advise a ment. gall does not result a constitution- Here, ally arraignment. failure to makе a formal infirm return will collec- merits, hearing par- invalidate a proceedings on tive circumstances of in multi- ticularly result, where substantial ple adequate actions resulted parties Application are not perfect. affected. far judges albeit from The trial (1) experienced, competent trial and here are judicially most active. It incum- of confrontation mention and cross-ex- judges, irrespective of the concerning bent all amination. Silent is the record tasks, arraignment frequency of their the loss of self-incrimina- arraignment checklists to as- arraignment follow their hearing tion. completely 24,1985, sure that all salient origi- June at 3-4. Petitioner’s explained. nal was on 1985. See arraignment, time, at 1-8. At said briefly alluded to Secondly, as advised, detail, majority, it was not error for the habe- offenses, possible penal- nature of the receive evi trial court to into ties, and his statutory constitutional and transcripts prior proceedings. dence However, pleas were entered at Admittedly, the circumstances were un that time and no advice was tendered to namely, transcripts were usual— received petitioner that a (for non-reported at some unex right against would waive the self-incrimi- reason) plained hearing, two weeks follow nation. ing principal hearing petition. on the matter, practical as a was not it Kean’s of March necessary for the court to receive these bootstrap position cannot the State’s evidence, transcripts they into since were though even an advisement was made part of the court’s own records which self-incrimination if properly Al judicial could take notice. for, thereat, pleaded guilty, petitioner was though delay some of the was caused facing totally charge. different reporter the time it took for the court (S.D.1980), Clark v. notes, In transcribe that is irrelevant. held, alia, we inter that a record must many other circuits in this state it is the knowledge show the defendant had practice routinely and better transcribe rights consequences of the felony arraignments file all and sentenc- Here, plea at the time it is entered. we ings transcripts immediately so that the have a record which does not meet the any subsequent available for review in in Clark criterion. quiry. Judge It is to be further noted that Lastly, attorney’s the state’s failure to pertained Kеan’s advice to the conse- fulfill his duties 21-27-9.3 under SDCL quences a not guilty -plea of to the very serious. The record is unclear as to consequences of a nolo contendere complying his reasons for not with the This Court assumes too much. Petitioner Although statute. his inaction could have privi- expected cannot be to know that the type in resulted some of sanction him lege against self-incrimination is waived office, or his the trial court did not abuse guilty plea or either a nolo contendere denying petitioner’s its in discretion mo- Judge Kean did not refer to a nolo tion. plea. Judge did not refer contendere 6,May to a at the HENDEKSON, (dissenting). Justice contendere, arraignment. as Nolo a keeping spirit my In dissent plea, by any judge never until was advised in State v. Judge consequences mentioned the (S.D.1987),as well as the authorities recit- petition- Did such a on June therein, I ed dissent. er understand that his nolo contendere privilege would amount to a loss of his conviction should be reversed against Nothing in the being set aside with the case remanded to self-incrimination? arraign- in re-arraignment. supports it. It is not the trial court for There- record Kean; it is in the by, protect integrity we of ar- ment before not would Hurd; raignments arraignment before it is in this state and serve the con- arraignment before petitioner. far in the continued stitutional this So Hurd; determine, in the habeas Hurd advised and it is not as can hearing/proceedings Heege. set my before three forth in dissent in State us delve further into the factual back- Let King infirmities (1) arraign- first ground of this case: In the arising from failure of a free intelli- Hurd, ment beforе was gent waiver of the three constitutional consequences possi- advised of the of a Boykin mentioned in —self-incrimi- plea; before ble confrontation—jury trial. We nation— adopted Kean, only of the he was advised principles in consequences guilty plea per- of a Nachtigall (3) only charge; to a different at the tained additionally N.W.2d 198 And we Judge Hurd, imposed that a defendant have an under- was advised conse- standing the nature consequences contendere, quences of nolo commentary dreadfully which advisement suffered and Clark, 294 N.W.2d at 919. constitutionally from an omission: loss of majority opinion For the to characterize petitioner’s privilege against self-incrimina- having failed to assert that Constitution, South BILL tion. Dakota OF argu- of this unaware and not VI, 7, RIGHTS, provides: article § ing that he was unaware prosecutions all criminal the ac- (self-incrimination) fairly does not cused shall have the to defend in present the contentions of counsel; person to demand the brief. nature and cause of the accusation written, When the Constitution was him; thereof; copy to have a represented a dramatic idea perpetuate meet the witnesses him face to people’s right governed free to be them- face; to have compulsory process served under, prayerfully, enduring selves doc- obtaining behalf, witnesses approach ument. We its 200th anniversa- speedy public impartial ry. join opinion I cannot as I am county or district which the Logan convinced has been con- alleged

offense is been denied his to have commit- ted. stitutional This mirrors the Sixth Amendment States

United Constitution. Our state con-

stitution added provision furnishing copy of These Information. character,

“are fundamental in and the fail- protect

ure of the court them a crimi- prosecution process

nal is a denial of due Amendment, U.S. law. Const. Fourteenth Const, WOLKEN, Wolken, 2; Fred 1; VI, A. ‍​‌‌‌​‌‌‌‌​​​‌​​​​​​​​‌​‌‌​​​​​‌​​​‌​​​​​​​​‌​‌​​‍Carol L. Powell v. art. § § Wolken, Alabama, and Daniel L. Plaintiffs State U.S. Appellees, 77 L.Ed. 84 A.L.R. 527 [1932].” Jameson, Const., See also S.D. BILL Wade, Leslie WADE L. and Idella S. RIGHTS, VI, provides: art. OF which § Appellants. Defendants and person “No compelled shall be crimi- give nal case to evidence himself or No. 15294. put

be twice jeopardy for same of- Supreme Court of South Dakota. fense.” Considered Briefs Feb. 1987. summation, was in- voluntary support and will the convic- Decided tion and the sentence it is appellant’s based. The last sentence of

reply brief is that not know did would surrender the Notes Heege denied the Robert C. writ for 245, 7, Compare Boykin, 395 U.S. at n. 89 relief. 7; S.Ct. at 1713 n. Commonwealth v. Run dle, 102, 105-106, 196, 428 Pa. 237 A.2d this Petitioner asks court to vacate (1968); 197-198 Myers, Commonwealth v. sentence, judgment and to remand 1, 3, 918, 423 Pa. 5 & n. 222 A.2d 921 & n. 3 re-arraign the case to the trial court for (1966). Although 11 Rule is constitutional argues plea ment. Petitioner that his based, ly compliance full statutory invalid because Hurd did not “advise constitutionally rule is not mandated him or ascertain whether he understood States, Boykin. Halliday See v. United plea that a no contest would waive his 394 U.S. 89 S.Ct. 23 L.Ed.2d 16 privilege against self-incrimination.” Peti (1969); States, McCarthy v. United 394 tioner does not assert that he was unaware U.S. L.Ed.2d 418 privilege, of this argue nor does he (1969). right. was unaware of his Nachtigall requirement held this second effect, petitioner argues that because an necessary is constitutionally for a valid express of waiver does not occur However, plea. it must be made clear that record, cannot be found to application of the rule as a constitutional voluntarily have intelligently been requirement is bound to the free and intelli- understanding made or with an of the na gent analysis Boykin. waiver Waiver consequences plea. ture and Boykin rights one is of the “conse- A cannot stand unless the quences” or nolo In еf- record in some manner indicates a free and fect, requirements overlap two intelligent waiver the defendant of his purposes analysis. constitutional to confront and cross- Knowledge consequences, of other such as him, against examine witnesses range penalties, his consti the maximum is also tutional by jury, help to trial a defendant his con evaluate the case him and make an stitutional informed self-incriminat plea, knowledge but such necessary is not Alabama, ion.2 Boykin v. 395 U.S. process for constitutional Boy- due under (1969); 89 S.Ct. 23 L.Ed.2d 274 kin.3 (S.D.1987); Appli 400 N.W.2d 878 Garritsen, (S.D. cation 376 N.W.2d 575 Logic requires that a defendant know 1985); Stacey v. 349 N.W.2d 439 what his Boykin they are and what (S.D.1984); Sutton, State v. involve, knowledge ‍​‌‌‌​‌‌‌‌​​​‌​​​​​​​​‌​‌‌​​​​​‌​​​‌​​​​​​​​‌​‌​​‍for without he cannot (S.D.1982); Nachtigall v. 85 understanding^ waive those 178 N.W.2d 198 trial court normally must inform the de- 25, 35-36, sentencing hearing Alford, Evidence at the indicated olina v. 400 U.S. 91 S.Ct. occasions, during period 166-167, that on numerous 27 L.Ed.2d 170-71 years, рlaced some 15 had either been care, arrested, psychiatric prosecuted and/or 11(c)(2) requires 3. Federal rule rape and other sex crimes. to inform the defendant of maximum and receive, may minimum sentences he is one of given 2. A nolo contendere must also be the amendments to the former Rule 11 which voluntarily intelligently. A nolo required the court to inform the defendant of essentially practical criminal cases has effect as a the same "consequences plea.” guilty plea, and this includes waiver Boykin rights. of defendant’s See North Car rights personally freely to insure record does not establish fendant of these that he waived one of those intelligently free intelli that the record indicates a spe gent of these waiver rights by of these the trial cific articulation requirement There is no that the record indispensible requisite for judge is not an express show enumeration court It record to establish a valid express nor an waiver when the record in some man sufficient the three constitutional mentioned ner shows the defendant entered his Boykin as a condition precedent to a volun Garrit voluntarily. understanding^ and State v. tary intelligent guilty plea. sen, supra; Stacey, supra. Brady v. Driver, Loder

Case Details

Case Name: Logan v. Solem

Court Name: South Dakota Supreme Court

Date Published: May 27, 1987

Citation: 406 N.W.2d 714

Docket Number: 15409

Court Abbreviation: S.D.