Petition of Brockmueller

back to the trial court to determine wheth- er intelligently the defendant’s consent was In the Matter of the Petition of Scott freely given.

and Knowledge right to BROCKMUELLER For a ofWrit one refuse is factor be considered in Error Coram Nobis. determining whether consent was vol- untary. Therefore, the Colorado court rec- No. 14740. ognized right that a defendant has a However, refuse the tests. the Colorado Supreme Court of South Dakota. apparently pre- has not addressed Argued April 1985. cise we issue decide herein. That wheth- er an uninformed refusal is admissible evi- Sept. Decided dence. case, appellant

In the instant was not consequences

advised of of his refusal sobriety submit field tests. Under holding Neville, supra,

our this violated

appellant’s protection state constitutional giving against

from evidence himself. As result, him, pro- unbeknownst to he

vided testimonial or communicative self-in-

criminating knowledge evidence without consequences. Therefore, it cannot be appellant knowingly,

said that intelligently, voluntarily waived his constitutional

protection giving against from evidence jury’s

himself. The note during delibera-

tions indicates that admission of this

evidence prejudicial constitutes error.

I Constitution, believe South Dakota VI, protects

art. person from com-

pelled self-incrimination at all times.

Whenever an requested individual is

perform field sobriety police tests he compelled things per- to do one of two — form tests major- or refuse. Under the

ity holding in person case has no prevent

choice that will self-incrimination.

He truly in a “Catch 22” situation. yet,

Worse he does even know it.

I holding that the majority places believe

an impermissible burden on the exercise of federal rights. constitutional Ne-

ville atwas least advised there would consequences

be flowing adverse from his

refusal to take test. Hoenscheid're- warnings;

ceived no it cannot said

he knew there would be adverse conse- quences flowing his refusal. He did had-., option

not have the that Neville Hes way knowing

had that he harbor sailing

was into booby-trapped.

Craig Thompson, Clay County K. State’s Vermillion, Atty., appellant. Stevens, John Blackburn of Blackburn & Yankton, appellee; Donna K. Dietrich Stevens, Yankton, of Blackburn & on brief. WOLLMAN, Justice. appeal by

This is an the state from an granted order of the trial court that Scott petition Brockmueller’s for a writ of error coram nobis and vacated Brockmueller’s driving conviction on a third offense while charge. intoxicated We affirm and re- mand. 4, 1981, February

On Brockmueller was Dakota, County, in Turner convicted South 27, 1981, May of DWI. On County, was convicted in Yankton South Dakota, of DWI. neither of these cases was an information filed the state. February On Brockmueller was Clay County, arrested for DWI South by Clay County Dakota. He indicted Jury Grand on March 1982. On March 31, 1982, the state filed a II Part informa- charging tion Brockmueller with a Class 6 based his two DWI con- victions. SDCL 32-23-4. by jury convicted

Brockmueller was on June on the DWI offense. July On Brockmueller admitted the convictions contained in Part II information year and was sentenced to one county jail, with nine months sus- conditions, pended on placed certain probation period years. for a of two No post-conviction proceedings were initiated by Brockmueller. April 20, we held

On Honomichl which survive satisfaction of sen (S.D.1983), Byrnes tence. supra, acquire subject (United that a cannot matter citing Morgan, supra). States v. a DWI offense over unless Scherer, supra. See United States and sufficient indictment or infor- “formal importantly, statutory More remedies must January Consequently, mation” is filed. peti or inadequate unavailable before a 1, 1984, February and Brockmuel- tion coram nobis granted. relief can be in County ler’s DWI convictions Turner and Correa-Negron States, v. United 473 F.2d were, upon application County Yankton (5th Cir.1973); 685 United States v. courts, respective magistrate the vacated Katz, F.Supp. 1287, (M.D.Fla. 494 1291 subject jurisdiction. due to lack of matter July 27, peti- On questions (1) appeal Clay County tioned the court circuit the whether writ coram nobis is avail- seeking writ of error noram Nobis va- Dakota, (2) in South able and whether the cate his Class the facts of this application. case warrant its ground that his DWI two convictions were void and had been vacated. It is from provides pertinent SDCL 1-1-24 in granting petition the order the part: “In this state the rules of com appeals. state force, mon law in except ... are where they sovereign conflict with the will extraordinary is an nobis Coram power, expressed in the manner origin. stated writ of common law United States 502, 507, 1-1-23.” SDCL 1-1-23 reads: U.S. L.Ed. See also power The will of ex- sovereign Fanning S.D. pressed: N.W.2d It has been held (1) By the Constitution of the United States; grant of a re- court [t]he (2) By authority treaties made under the Any lief scope. under it is limited States; of the United proceeding challenged by (3) By by Congress statutes enacted presumed writ is to be correct and the States; of the United burden rests on its assailant to show otherwise. v. Morgan, United States state; (4) By the of this Constitution 98 L.Ed. (5) By by Legisla- statutes enacted (1954). Only where there are errors ture; kind, of fact of “the most fundamental (6) By by statutes enacted vote of the is, proceeding such render the electors; irregular invalid,” itself can redress (7) By the ordinances of sub- authorized granted only be had. Relief will be when bodies; ordinate compel “to circumstances such action justice.” achieve United States v. Mor- (8) procedure pre- practice Rules of supra, p. gan, p. adopted by scribed courts or de- commission's,boards, partments, offi- cers of its or subdivisions Cariola, 180, 184 F.2d United States v. pursuant authority so to do. (3rd Cir.1963) approval (quoted with States, Byrnes v. United 408 F.2d 602 Thus, supplanted to the extent not under (9th Cir.1969)(citations omitted)). See also 1-1-23, provisions SDCL the rules of Scherer, 176, 178 United States v. 673 F.2d apply. the common law The state contends (7th Cir.1982). legislature preempted writ that the enacting Generally, extraordinary this of coram nobis statutes writ vacating govern judgments. available to attack in We volving legal disadvantages disagree. collateral legislature

In 1966 the enacted interpreting the Uni- sions Rule 35 of the Federal form Post Conviction Procedure SDCL Procedure, Rule of Criminal on which 23A-34, providing part: modeled, SDCL 23A-31-1 is hold that a chapter comprehends and takes motion for illegal correction of an [T]his sentence place of all other common presupposes a valid conviction. See Foosh statutory or other remedies which have States, (5th ee v. United 203 F.2d heretofore challenging been available for Cir.1953); States, Cook v. United 171 F.2d sentence, of a conviction or (1st Cir.1948). See also Moss v. and shall be used exclusively place of (5th Cir.1959) F.2d them. (rule relating to correction or reduction of contemplates the correction of a SDCL 23A-34-2. having jurisdiction); Wright & Mil Fanning supra, ler, Federal Procedure, Practice as, alia, court construed the Act inter (cid:127) (2nd 1982). 582 at 380-81 ed. § preempting the common law writ of coram nobis. 85 S.D. at 180 N.W.2d at 854. Inasmuch as Brockmueller has been question There is no pursuant to the felony convicted of a Class 6 based on two Act Brockmueller could have obtained the subsequently convictions, vacated DWI relief he presently seeks. how foregoing because the provide statutes ever, legislature repealed the Post Con recourse to vacate the felony invalid convic viction Procedure 1983 S.D.Sess.Laws tion, we hold that the writ of error coram 169, 15, incorporating large part it in § appropriate nobis is the remedy. Corpus within the Habeas Act as amended The state nevertheless contends that in 1983. SDCL ch. 21-27. The writ of Brockmueller jurisdictional waived the de- corpus habeas will be only issued if the by admitting fects the Turner and Yankton applicant imprisoned or restrained of his County DWI convictions at the time he liberty. Solemn, Moeller v. 363 N.W.2d plea entered a guilty to the felony (S.D.1985) (citing Application charge. Painter, 85 S.D. 179 N.W.2d (1970)). 21-27-1, 21-27-3, See SDCL The argument ignores state’s and 21-27-16. Because Brockmueller’s rule of jurisdiction Honomichl that cannot term of completed, incarceration has been acquired by estoppel. be also State v. corpus habeas will not issue. Mee, 67 S.D. 297 N.W. Furthermore, apparent it is that no other stated, Simply jurisdictional de statutory remedy is available to Brock- fects cannot be waived. mueller to vacate his invalid felony convic- argues state further that coram tion. SDCL 23A-30-1 authorizes a court to inapplicable nobis is in this case as the writ arrest jurisdiction for lack of to only available redress errors of fact over the charged, offense upon but hold, and not however, of law. We motion to the court made days within ten encompasses coram nobis legal errors of after verdict. correctly significance constitutional jurisdic such as argues that he could not charged be with tional defects. McCord, United States v. knowledge that approximately nine (D.C.Cir.1974); F.2d subsequent months felony to his Wickham, F.Supp. this States v. court would hold that a court could not (C.D.Cal.1979); Miller, acquire Wright & over a DWI in Federal offense Procedure, (2nd Practice the absence of an 592 at information. Honomichl ed. supra. empowers presented SDCL 23A-31-1 the court to The error in this case is of the illegal correct an anytime sentence at fundamental contemplated by nature coram illegally reduce a imposed within nobis. To allow conviction year imposition. one from its Federal deci- stand when it is based void convic- injustice (1961); Kiger tions would be an of the first v. United 315 F.2d magnitude. (7th Cir.1963), 11 L.Ed.2d 166 however, add, We hasten to repeal With the of the Uniform Post Con holding our should not be construed as Legislature viction Act the State in equating error the writ of coram nobis with 1983,the remedies available under the com formerly the broader remedies encom mon specifically became passed within the Uniform Post Conviction subject, course, available. This is encompassed Procedure Act and now with Corpus Act, Habeas as amended in It corpus our habeas statutes. will be 21-27, largely SDCL ch. supplanted the rare case indeed which coram nobis the Post Conviction Procedure Act. Brock- recognized will be as the appropriate reme mueller is not liberty. restrained of his dy. It merely will not be countenanced as Thus, Corpus the Habeas Act is avail appeal, another avenue of but will be limit able to And I say: him. became available cases, ed those such one as the before again, for the verbiage Fanning us, its application necessary when 85 S.D. remedy pro what would otherwise Court, injustice. suggests recog found nized this ancient writ as historic common question There is some whether the trial law writ. The language in im Fanning broadly court’s order is so worded plies had engulfed by that it been Uni the principal vacate DWI on which offense form Post Conviction Act. Brockmueller was convicted on June 1982. juris- Brockmueller concedes that no The Supreme United States Court dictional defect with respect exists to that recognized validity the the of writ of coram conviction, felony as contrasted the with nobis. A research of coram nobis cases resulting the use of the will reveal several highest cases the Accordingly, invalid convictions. al- Court general support of this land and of though from, we affirm order appealed the said writ. a supporting For case the con we remand the case to the circuit court writ, cept just as the issued in this changes with directions to make whatever case, rectify unjust is to an situation for an necessary clarify in the order to error apparent of fact not on the record of judgment status entered with re- and unknown to the at court the time spect June offense brought trial which would a have about conviction. result, McCorkle, different see v. 52 Janiec affirmed, order The and the ease is 1, (1958), N.J.Super. 144 561 A.2d cert. remanded with the directions heretofore denied, 944, 811, 362 U.S. 80 4 S.Ct. set forth. (1960), denied, L.Ed.2d 772 U.S. cert. 365 470, 804, (1961). 81 461 S.Ct. 5 L.Ed.2d

MORGAN, J., concurs. State, 382, also, Me. 120 A. Dwyer v. 151 Florida, (1956) (citing v. J., Hysler 2d 276 HENDERSON, specially. concurs 411, 688, 315 U.S. 62 S.Ct. L.Ed. FOSHEIM, WUEST, C.J., Acting (1942)). Historically, at common cor- a Justice, dissent. am presented nobis writ error to a was HENDERSON, (concurring spe- Justice chancery judgment but a chal court is now cially). lenged judgment in the court where the was entered. United States v. necessity, Born of as an emergency mea- 502, 346 U.S. sure, L.Ed. originating writ of coram (1954). procedural background As re Century, Sixteenth exists afford a bar, against flects in case remedy injustice no at Brockmueller did other —when go remedy People Hairston, is available. before the trial court where his invalid v. 10 N.Y.2d 217 N.Y.S.2d 176 N.E.2d were record. denied, Brockmueller was trial on cert. called

When (1960); he (felony), Robbins, II Information was the Part L.Ed.2d 1732 Duncan v. to call to the attention position Third, (1963). 159 Me. 193 A.2d 362 by a decision made this Court trial court proof upon petitioner burden (S.D. v. Honomichl by pleading to establish of his For, legal if point This is critical. evidence, preponderance Dwyer of the v. grounds relief and Brockmueller knew (1956), proce 120 A.2d 276 and civil of the to call it to the attention trial failed govern dure generally premises. rules in the court, by he could raise it not thereafter People, See Merkie 15 Ill.2d Painter, People coram writ of nobis. N.E.2d 581 (1963). Cal.App.2d Cal.Rptr. (1959); L.Ed.2d 1039 judgments, felony upon which That the People, Glenn v. 9 Ill.2d 137 N.E.2d due predicated, would be later vacated was defects, jurisdictional a fact un was my supplant It is not intention to entry to him at the of his known time of thought opin- majority substantive of the part. It plea and without fault on his was I A agree ion. with its substantive base: part. of fact on his This was a mistake felony man should have a conviction on to the when the also unknown trial court based his record two invalid convic- accepted. If to Brock- plea known court, Court; or the trial rendition of the tions. Coram nobis: our vo- mueller judgment taken you. would not have separate bis: These are writs. before People lies. place. Coram nobis therefore being The latter writ of error directed Tuthill, 32 Cal.2d 198 P.2d 505 reviewing tribunal to a lower II invalidity of the Part Infor (which cause) tried the error correct an could mation be shown reference to of fact. record, dehors the matters matters occurring subsequently. Events af arose WUEST, Acting (dissenting). Justice treated ter the have been the ambit of coram I within nobis. Hair- dissent.

ston, N.E.2d N.Y.S.2d 1966, legislature In Uni- enacted the specifically, applied as the case at More form Conviction Act. Post Procedure bar, judgment judgment a a —based 121, 1966, Chapter Session Laws of Section may is subsequently reversed— 1, provided, among things, other Act vacated a writ of error coram vobis. “comprehends place of all takes the Eaton, 240, 985, v. Butler law, statutory other rem- common or other (1891). 35 L.Ed. edies which have heretofore been available legal points are three final I wish There challenging validity of the convic- First, the to address. writ of error sentence, and shall exclu- tion or be used simply is not exhausted due to the nobis sively place of them.” In a comment fully exe fact that been the Act Commissioners on uniform 397, Lopez Ind. Killigrew, cuted. v. laws, they stated: state 808, (1931). 74 A.L.R. 631 Sec N.E. togeth- bring The aim this section is to of civil, ond, of is a a writ error coram nobis simple er and into one consolidate statute criminal, distinguished proceeding. remedies, beyond all the those that Yet, is available in and civil it criminal procedures incident to the usual trial of cases. United States v. 346 U.S. review, present which are at avail- 248; v. People 98 L.Ed. challenging of a able (1948); Paiva, 31 Cal.2d 190 P.2d imprisonment. of Miller, 161 Kan. P.2d 680 State v. proposed of the (1946), Section 1 act is aimed (1946); Fowler, incorporate protect pres- People rights L.Ed. 646 all Cal.App.2d ently corpus, under cor- 346 P.2d available habeas am other admitting remedies. tions them. Honomichl change procedural is a change one. not merely did it educated Brockmueller and others. 11 ULA at 486. requirements of opinion, One majority As stated of the Writ is Legislature repealed it will the Post Convic- lie to correct errors of fact Act, tion Procedure ch. and not of S.D.Sess.L. errors law. Am.Jur.2d Cor- 15, incorporating large 3; part section am Nobis C.J.S. Criminal Law § Corpus 1606(2)(a); within the Habeas Act. Becker, See SDCL State 263 Minn. purpose change of 21-27. The (1962); State judicial Turner, to eliminate review 194 Neb. 231 N.W.2d 345 except Corpus as authorized the Habeas

Act, as amended. Since the issue raised here is lack of my opinion, legislature preempted knowledge legal of the effect of Honom- the writ coram nobis—if it ever existed ichl, supra, knowledge and not lack adopted South Dakota —when they facts, any fact or ofWrit Coram Nobis it, repealed Post Conviction Procedure will lie. corpus remedy. and broadened the habeas See, Iverson, Ida. e.g., State v. I am authorized to Chief Jus- P.2d 803 joins tice FOSHEIM in this dissent. case,

In this Brockmueller admitted the part

convictions contained in two challenged them,

information. He never

appealed, brought nor pdst-conviction

proceeding repeal. before its There towas finality judgment.

be some Brock- could challenged

mueller have the convic-

Case Details

Case Name: Petition of Brockmueller

Court Name: South Dakota Supreme Court

Date Published: Sep 6, 1985

Citation: 374 N.W.2d 135

Docket Number: 14740

Court Abbreviation: S.D.