Harold PODOLL, Defendant and Appellant, v. Herman SOLEM, Plaintiff and Appellee.
No. 15596.
Supreme Court of South Dakota.
Decided July 8, 1987.
Considered on Briefs April 22, 1987.
409 N.W.2d 759
Richard Braithwaite of Braithwaite Law Offices, Sioux Falls, for defendant and appellant.
PER CURIAM.
Defendant appeals from his conviction and sentence for possessing more than ten pounds of marijuana.
Defendant pleaded not guilty to the charges against him. In the course of this prosecution defendant made a motion to suppress. The motion to suppress was made on the grounds that defendant had given statements to law enforcement officers while he was in custody but had not been informed of his Miranda1 rights. After the trial court denied defendant‘s motion to suppress, he petitioned to enter a plea of nolo contendere. See
The issue raised by defendant is whether he was “in custody” at the time he made certain statements to law enforcement officers and whether he should have been informed of his Miranda rights. We do not reach the issue of whether the defendant was “in custody” because we determine that defendant‘s plea of nolo contendere was a waiver of any alleged error in the denial of the motion to suppress.
This court has consistently followed the general rule that a voluntary and intelligent plea of guilty waives a defendant‘s right to appeal all nonjurisdictional defects in the prior proceedings. State v. Grosh, 387 N.W.2d 503 (S.D.1986); State v. Janssen, 371 N.W.2d 353 (S.D.1985); State v. Morrison, 337 N.W.2d 825 (S.D.1983); State v. Culton, 273 N.W.2d 200 (S.D. 1979); State v. Losieau, 266 N.W.2d 259 (S.D.1978); State v. Jordan, 261 N.W.2d 126 (S.D.1978). Any alleged error in denying a motion to suppress is a nonjurisdictional defect and is waived by a voluntary and intelligent guilty plea. Losieau, supra, and Jordan, supra.
A plea of nolo contendere has the same effect of waiving nonjurisdictional defects, including any alleged error in denying a motion to suppress evidence. State v. Arnsberg, 27 Ariz.App. 205, 553 P.2d 238 (1976); see also U.S. v. Mizell, 488 F.2d 97 (5th Cir.1973); see generally 1 & 2 W. LaFave and J. Israel, Criminal Procedure, §§ 10.2(d), 20.4, 637 (1984). Thus, defendant‘s plea of nolo contendere waived any alleged error in the ruling on the motion to suppress.
The judgment of the trial court is affirmed.
Grant Gormley, Asst. Atty. Gen., Pierre, on the brief: Roger Tellinghuisen, Atty. Gen., Pierre, for plaintiff and appellee.
MILLER, Justice.
This is an appeal from a denial of habeas corpus relief. We affirm because the error urged is not of a type cognizable in habeas corpus actions.
Harold Podoll (Podoll) was charged with committing twenty-six sex offenses, primarily or solely with minors, over a three-year period. He initially pleaded not guilty to all twenty-six charges. A plea bargain was next struck whereby Podoll pleaded nolo contendere to three charges of rape in violation of
Podoll challenges his conviction on the basis that the evidence presented to the sentencing judge was insufficient to establish a factual basis upon which the judge could conclude that Podoll was mentally ill at the time of the offenses. See
In the recent case of Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987), Justice Morgan authored an appropriate, timely review of the availability of habeas corpus relief. Reiterating that our scope of review is limited, we said:
“Habeas corpus cannot be utilized as a substitute for an appeal.” (citations omitted) Habeas corpus is not the proper remedy to correct irregular procedures, rather, in the context of post-conviction attacks on the conviction itself, habeas corpus reaches only jurisdictional error. (citations omitted)
Id. at 143 (quoting State ex rel. Smith v. Jameson, 70 S.D. 503, 507, 19 N.W.2d 505, 507 (1945)). For purposes of habeas corpus, deprivation of a constitutional right constitutes a jurisdictional error within the meaning of
Goodroad sought release from confinement on the grounds there was an insufficient factual basis to accept his guilty plea. We held habeas corpus did not lie for his claim because “the factual basis requirement rests in statute and not the constitution....” 406 N.W.2d at 145 (citing Wabasha v. Solem, 694 F.2d 155 (8th Cir.1982)). See also Logan v. Solem, 406 N.W.2d 714 (S.D.1987).
Although Podoll‘s challenge is based upon failure to establish a factual
Affirmed.
WUEST, C.J., and MORGAN and HENDERSON, JJ., concur.
SABERS, J., concurs specially.
SABERS, Justice (concurring specially).
I concur specially because:
Podoll claims there is no factual basis in this record to support his plea that he was mentally ill at the time of the offenses. If no factual basis appears, Podoll may not have been mentally ill. If he was not mentally ill, then he may be sane but imprisoned as mentally ill.
The majority opinion refuses to examine Podoll‘s claim on the merits because it chooses not to expend judicial resources doing so. The majority opinion‘s “choice” is made despite subsection (3) of
(3) Where the process is defective in some substantial form required by law; (emphasis added)
and despite this court‘s unanimous decision in Security Sav. Bank v. Mueller, 308 N.W.2d 761 (S.D.1981), which held that compliance with substantive statutory procedures are also subject to challenge in habeas corpus proceedings. Podoll‘s claim involves substantive statutory procedures and goes to whether his plea can even be accepted.