STATE оf South Dakota, Plaintiff and Appellee, v. Joshua Steven BECKLEY, Defendant and Appellant.
No. 24062
Supreme Court of South Dakota
Decided Dec. 5, 2007
2007 SD 122 | 742 N.W.2d 841
Considered on Briefs Feb. 13, 2007.
Steven R. Binger, Attorney for defendant Sioux Falls, South Dakota and appellant.
ZINTER, Justice.
[¶1.] Joshua Beckley (Beckley) appeals his conviction of possession of a controlled substance. He contends that the trial court failed to properly advise him of his right to compel witnesses prior to receiving his guilty plea. He also contends that the trial court abused its discretion in refusing to continue the sentencing hearing to allow a psychological evaluation. We affirm on the advisement of rights issue, but reverse and remand for resentencing for the failure to grant the continuance.
[¶2.] After being previously told to leave, Beckley was observed videotaping a young woman at a retail store in Sioux Falls. He was again asked to leave and law enforcement responded. Earlier that day Beckley was involved in another incident where he stopped two young women in a car, approached them with a video camera, and asked them to get out of their vehicle. He claimed he was a city employee investigating littering. The women refused his request, left the scene, and reported the incident to law enforcement.
[¶3.] During a search incident to his subsequent arrest, methamphetamine was found in Beckley‘s sock and a methamphetamine pipe with residue was found in his vehicle. While he was free on bond on these charges, Beckley was observed taking pictures of a young girl from behind. In yet another incident, Beckley was observed staring in windows and attempting to enter a university dormitory wearing only underwear and a tank top. In a final incident, Beckley was arrested for driving under the influence. As a result of the foregoing conduct, Beckley was charged with possession of methamphetamine, possession of drug paraphernalia, unlawful occupancy, window peeking and third offense driving under the influence.
[¶4.] On April 6, 2005, Beckley was arraigned before Magistrate Judge Julie Irvine. During the arraignment he was advised of his constitutional and statutory rights, including the right to compel witnesses. On May 16, 2005, Beckley appeared before Circuit Judge Peter H. Lieberman for a second arraignment. Beckley was again advised of his constitutional and statutory rights, including the right to compel witnessеs. Thereafter, Beckley entered into a plea agreement under which he agreed to plead guilty to possession of methamphetamine in exchange for a dismissal of the remaining charges and reduction of the third offense DUI to a misdemeanor.
[¶6.] On March 8, 2006, Beckley appeared for sentencing on the methamphetamine offense. Judge Lieberman asked Beckley‘s separate counsel on the DUI charge if she and Beckley had also discussed his constitutional and statutory rights. She indicated they had. Defense counsel on the methamphetamine charge then attempted to call two sentencing mitigation witnesses and sought a continuance to obtain psychological testing at the defendant‘s own expense to be utilized at sentencing. This motion for the continuance was accompanied by a subpoena for Jack Dodge, a former doctor and one of Beckley‘s fellow inmates who was awaiting sentencing on federal drug charges. Counsel sought to call Dodge as a witness to Beckley‘s mental state, which would have further supported the request for the psychological testing in mitigation of punishment. A handwritten note from Dodge explained the nature of his proposed testimony. The motion was finally supported by an affidavit of counsel indicating that the continuance was necessary because of a conflict in the scheduling of a professional examination. The circuit court denied the request to call the witness and denied the request for a continuance. Beckley was sentenced to eight years in the state penitentiary. He appeals raising two issues.
I.
[¶7.] Whether Beckley should be allowed to withdraw his guilty plea because the sentencing court did not advise him of his right to compel witnesses prior to receiving the guilty plea.
[¶8.] “[I]n ordеr for a conviction based upon a guilty plea to stand the plea must be intelligent and voluntary. Such a plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having that understanding, waives these rights by a plea of guilty.” Lodermeier v. State, 273 N.W.2d 163, 164 (S.D.1978) (citations omitted).1
Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in
23A-7-5 , and inform him of, and determine that he understands, the following:(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
(2) If the defendant is not represented by an attorney, that he has thе right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
(5) That if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleаded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.
[¶9.] Although
The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant‘s version of the facts as well as the prosecution‘s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution‘s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
State v. Wiegers, 373 N.W.2d 1, 8 (S.D.1985) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967)).2
[¶10.] Although compulsory process has been recognized as a fundamental element of due process, the failure to advise a defendant of all constitutional and statutory rights does not necessarily vitiate a guilty plea. For example,
[¶11.] Beckley, however, cites this Court‘s decision in State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731 (1946), for the proposition that the failure to advise of the right to compel witnesses
[¶12.] Under the modern framework, the more analogous South Dakota cases are Lodermeier, 273 N.W.2d at 165, and State v. Gagne, 421 N.W.2d 502, 503 (S.D.1988). In Lodermeier, the defendant was not advised of his right to confront witnesses (a Boykin right) or his right to compel witnesses on his behalf (a non-Boykin right). 273 N.W.2d at 165. In Gagne, the defendant was not advised of his right to confront and cross-examine witnesses (a Boykin right) or his right to compulsory process to secure witnesses (a non-Boykin right). 421 N.W.2d at 503. In both cases, the Court reversed in accord with Boykin. However, in this case Beckley was advised of his Boykin rights, and Boykin rights do not include compulsory process.
[¶13.] Additionally, in both Lodermeier and Gagne, the record did not indicate the defendants were otherwise aware of their rights. “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative causes of action open to the defendant.” Moeller, 511 N.W.2d at 810. Therefore, although it is advisable to inform a defendant of his right to compulsory process, not doing so is not automatic reversible error. As the Colorado Supreme Court explained:
[W]e reject the defendant‘s claim that the trial court‘s advisement did not satisfy the requirements of due process because the trial court failed to advise the defendant that he could subpoena out-of-state witnesses at the state‘s expense. Due process of law does not require that a court inform a defendant of every conceivable constitutional right that might be waived by a guilty or nolo contendere plea. Carried to its logical extreme, this argument would require a court before accepting a guilty or nolo contendere plea, to inform a defendant, among other things, of his right to be free from cruel and unusual punishment, his right to be free from unreasonable searches and seizures, his right to be protected against being placed twice in jeopardy for the same crime, and his right to reasonable bail.
People v. Drake, 785 P.2d 1257, 1272 (Colo. 1990). See also State v. Moses, 280 Kan. 939, 127 P.3d 330, 335-40 (2006) (recognizing the failure to advise a defendant of compulsory process and other rights does not automatically result in the withdrawal of a guilty plea and examining the circumstances surrounding that plea including a written waiver, representation by counsel, familiarity with the criminal justice system and defendants familiarity with the case against him and the benefit of the plea agreement); State v. Salter, 515 So.2d 609, 610 (La.Ct.App.1987) (concluding “[t]he right to compulsory process is not one of the rights required by the trial judge in
[¶14.] Rather than mechanically determining whether certain rights were given, we look to “the totality of the circumstances when ascertaining whether a plea was made knowingly and voluntarily.” Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852. “In examining the ‘totality of the circumstances’ we have taken into consideration the following factors: the defendant‘s age; his prior criminal record; whether he is represented by counsel; the еxistence of a plea agreement; and the time between advisement of rights and entering a plea of guilty.” Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852 (internal citations omitted).
[¶15.] In this case, Beckley was thirty years old; he was represented by counsel; and although this was his first felony, he had a prior criminal history of driving under the influence, theft, reckless driving and driving without a license. In addition to the knowledge gained from the foregoing experiences, he was advised on three occasions, including the day he entered his guilty plea, of the required constitutional and statutory rights in accord with Boykin and
II.
[¶16.] Whether the trial court abused its discretion in refusing to continue the sentencing hearing to allow Beckley to obtain a psychological evaluation.
[¶17.] On March 2, 2006, six days before sentencing, Beckley moved to continue the sentencing hearing in order to obtain a psychological evaluation at his own expense. The motion was supported by an affidavit from defense counsel indicating that a professional evaluator (Michael McGrath) had been contacted but was unable to complete the evaluation in time for the sentencing hearing. Counsel indicated he only learned of this on March 1, 2006. The motion was also supported by the letter from Dodge, the fellow inmаte and former doctor, recommending that Beckley receive a psychological examination.
[¶18.] At the sentencing hearing, defense counsel again sought permission to call Dodge as a witness to Beckley‘s mental state. The trial court immediately asked to see both attorneys in chambers for an off-the-record discussion. Upon returning, the court indicated a record needed to be made to support the need for the psychological evaluation. After argument from counsel, the trial court denied the request to call Dodge, finding he lacked credibility and the presentence investigation was “extremely complete.” The trial court also denied permission to allow Beckley‘s foster father to testify.
I have a report from the Human Services Center and I also have an extensive letter from your client. Okay, so [defense counsel] we are going to proceed with sentencing and if you would, please, proceed with your sentencing comments.
This possession of other psychological information is the only reasoning reflected in the record for denial of the motion for continuance. Although Beckley is not appealing the trial court‘s denial of the witness’ testimony, he argues that the trial court erred in refusing to continue the hearing. Beckley contends that an evaluation would have allowed him to present psychological evidence in mitigation at the sentencing hearing, particularly concerning his sexual proclivities.
[¶20.] A trial court‘s decision to grant or deny a continuance is reviewed under an abuse of discretion standard. State v. Letcher, 1996 SD 88, ¶ 29, 552 N.W.2d 402, 407. “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations omitted).
[¶21.] “In deciding whether to grant a continuance, a trial court must consider: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court‘s refusal to grant the continuance; and, (4) whether there have been any prior continuances or delays.” In re J.G.R., 2004 SD 131, ¶ 15, 691 N.W.2d 586, 591. Furthermore, before imposing sentence, the trial court must acquire a thorough acquaintance with the character and history of the defendant:
[T]he circuit court must “acquire a thorough acquaintance with the character and history of the [person] before it.” The [State v. Hinger, 1999 SD 91, 600 N.W.2d 542 (1999)]/Bonner factors are the appropriate factors for the circuit court to consider when determining sentencing, which include the defendant‘s “general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record.” In addition, the trial court considers the rehabilitation prospects of the particular defendant.
State v. Blair, 2006 SD 75, ¶ 27, 721 N.W.2d 55, 63-64 (internal citations omitted).
[¶22.] In this case, the trial court was presented with a presentence investigation detailing Beckley‘s comments regarding the offense. It also included personal information such as Beckley‘s family, marital, educational, military, religious, medical, employment and financial history. The presentence report finally included Beckley‘s plea agreement, prior criminal record, and a discussion of his drug and alcohol problems. Although the professional evaluations contained in the presentence report mentioned past problems with depression, as well as sexual, emotional and physical abuse, they did not go into any detail about those issues. Those evaluations focused on Beckley‘s drug and alcohol addiction, which was understandable considеring the fact that Beckley was being sentenced for the possession of a controlled substance. The presentence report did, however, specifically recommend fur-
[¶23.] Despite these omissions and the denial of Beckley‘s request for his own psychological evaluation, the sentencing transcripts indicate that the court proceeded with sentencing focusing on Beckley‘s sexual proclivities. In fact, that was the trial court‘s main concern and motivating factor for the sentence it imposed. The trial court‘s statement in sentencing speaks for itself:
I don‘t even know where to start here. If this were just a methamphetamine case, I would treat it as I do with other possession of methamphetamine cases where we have a jail sentence and a person goes into treatment and I try to keep them out of the penitentiary. I am sorry to say that this is more — more than a methamphetamine case. He is being sentenced on methamphetamine, but as we all know I am required to take into consideration all of the facts of someone‘s life and it isn‘t the possession of methamphetamine that is of greater concern to me, in this case, it is the sexual proclivity of Mr. Beckley. It appears to me that during the period of time that he was under the jurisdiction of this Court or immediately before that time he was involved in three separate sexual incidents and I share [victim‘s father‘s] concern about the defendant involving his daughter. When I hear that this man had weapons on him, that he was stopping young girls and video taping them and saying that he was a personal investigator for the City and I heard he had knives on his person, [victim‘s father], you are not the only one who got the chills, I did also.
* * *
We then have the incident at the [university] where Mr. Beckley is in underwear and he is peeking into the windows of young women, and then I also remember that the State brought Mr. Beckley before this Court to have his bond revoked based on the fact that he was out at the driver‘s license bureau and, again, was taking photographs and it should be noted that he wasn‘t taking pictures of any women‘s behinds, but, again, my memory serves me that he was taking photographs of the behinds of very young women. This is a real problem here and the particular problem is that Mr. Beckley, under the jurisdiction of this Court, knew that he was facing penitentiary time and despite that was unable to control his sexual proclivities.
Frankly, in this case, I have reached the point where I am frightened. I am frightened for the young women of this community as to where this is going. Mr. Beckley has knives, he‘s stopping women saying he is a private investigator, taping them, and all the while he was under the supervision of this Court. This situation has gotten too scary for me to take any chances.
You talk about throwing someone else away, I don‘t throw people away, I wоrk with people who have methamphetamine problems, but when someone keeps committing sexual crimes, the Court gets scared and I am scared. Now, at some point the balance has to shift. I have some concern for Mr. Beckley and I realize that he has serious problems, but at some point the balance of the scale has to shift towards the safety of girls in our community, and I am afraid that through his repeated actions over and over and over again that has caused that balance to shift traumatically. If he needs help, he‘ll have to receive that help at the penitentiary. At this point he needs to get himself under control. He‘s too scary at this point to be on the streets of this city and community. I am imposing a sentence of eight years in the South Dakota State Penitеntiary.
These concerns continued after sentencing. The trial court‘s judgment of conviction recommended that the Parole Board obtain a psychosexual evaluation and have Beckley placed in a sex offender group. This record demonstrates that Beckley‘s psychosexual state was the major motivating factor and weighed heavily in the trial court‘s formulation of its sentence.
[¶24.] Notwithstanding this focus, the court denied the continuance twice stating its belief that it had adequate information on this subject. The record does not support the trial court‘s conclusion. The information in the presentence report (or otherwise before the Court) was wholly lacking concerning the psychological aspects of Beckley‘s sexual proclivities, the area of main concern to the trial court in determining punishment. More importantly, the denial of Beckley‘s requests for continuance to present highly relevant and potentially mitigating evidence violated
At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
[¶25.] Although we are not suggesting that the failure to include particular information in a presentence investigation is a matter that is generally appealable, in this case we consider that fact because it was the sole basis for the trial court‘s denial of the continuance and Beckley had a right to present that information tо the sentencing court. “Fundamental principles of procedural fairness apply with no less force at the penalty phase of a criminal trial than they do in the guilt-determining phase of a criminal trial.” State v. Phelps, 297 N.W.2d 769, 776 (N.D.1980) (citing Presnell v. Georgia, 439 U.S. 14, 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978)).4
[¶26.] Unable to procure the mitigating psychological evaluation allowed under
[¶27.] On this record, the trial court abused its discretion in denying the continuance to allow Beckley to obtain the psychological evaluation to mitigate the evidence relating to his sexual misconduct. The trial court failed to consider the relevant continuance factors, its sole reason for denying the continuance was not supported, and its denial of Beckley‘s attempt to present this mitigation witness violated the statutory right to present mitigation evidence. Compare, State v. Milk, 2000 SD 28, ¶ 23, 607 N.W.2d 14, 21 (foreclosing the defendant from seeking to re-open the sentencing phase to allow psychological evidence because he did not attempt to call the witness or seek a continuance of the sentencing hearing). Therefore, we reverse and remand for resentencing after Beckley has been provided an opportunity to obtain a psychological evaluation.
[¶28.] Affirmed in part, reversed in part and remanded.
[¶29.] SABERS, KONENKAMP and MEIERHENRY, Justices, concur.
[¶30.] GILBERTSON, Chief Justice, concurs in part and dissents in part.
GILBERTSON, Chief Justice (concurring in part and dissenting in part).
[¶31.] While I concur with the Court‘s holding on Issue 1, I write to dissent with its holding on Issue 2 — that the circuit
[¶32.] It is the duty of a sentencing court to insure that the punishment “fit[s] the offender and not merely the crime.” State v. Anderson, 1996 SD 46, ¶ 32, 546 N.W.2d 395, 403 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342 (1949)). In order to impose an appropriate sentence, the sentencing court must “acquire a thorough acquaintance with the character and history of [the defendant.]” State v. Blair, 2006 SD 75, ¶ 27, 721 N.W.2d 55, 63 (citing State v. Bonner, 1998 SD 30, ¶ 19, 577 N.W.2d 575, 580 (quoting State v. Chase in Winter, 534 N.W.2d 350, 354-55 (S.D. 1995))). Appropriate factors to consider when determining sentence include, “the defendant‘s ‘general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record,‘” Id. (citing Bonner, 1998 SD 30, ¶ 19, 577 N.W.2d at 580 (quoting Chase in Winter, 534 N.W.2d at 354-55)). “This consideration may include . . . ‘uncharged conduct.‘”8 Id. ¶ 27, 721 N.W.2d at 64 (quoting State v. McKinney, 2005 SD 74, ¶ 17, 699 N.W.2d 460, 466 (McKinney II) (citing United States v. Schaefer, 291 F.3d 932, 944 (7th Cir.2002))). However, “[t]he primary criterion in sentencing is good order and protection of the publiс and society, and all other factors must be subservient to that end.” Anderson, 1996 SD 46, ¶ 31, 546 N.W.2d at 403 (citations omitted).
[¶33.] Whether, a presentencing investigation and report is ordered is a discretionary matter.
[¶35.] Despite the fact that Beсkley offered no explanation as to why the evaluation had not been completed in advance of the March 8, 2006 sentencing hearing,11 the Court bases its conclusion that Beckley was entitled to the continuance on an interpretation of
The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.
(Emphasis added). The only requirement under this statute is that the presentence report “shall contain any prior criminal record.” After ordering a presentence investigation and report, the sentencing court then has the discretion to direct that it include whatever other information “as may be helpful” and “required” in imposing sentence.
[¶36.] In addition to the detailed presentence report in this case, the record indicates that the sentencing court was well informed as to the detail and extent of Beckley‘s perverse conduct. As reflected in the Court‘s opinion, supra note 10, the sentencing court went to great lengths to establish for the record the basis for its sentence.
[¶37.] The sentencing court discussed at length how Beckley had pulled over a car with two young girls on April 5, 2005, under the false pretence of working undercover for the City of Sioux Falls. The court discussed how he attempted to videotape the girls. Later that day, Beckley was arrested for methamphetamine possession at the Best Buy in Sioux Falls after police had been summoned there to investigate his strange behavior, which included videotaping other young women. There, Beckley was found in possession of the video camera and knives. The camera‘s videotape contained footage of the rear ends of
[¶38.] Despite the obvious and extensive justification for the sentence handed down by the court, this Court now determines that Beckley was entitled to a continuance on the chance that a psychological evaluation of his perverse sexual behavior would have rendered some finding that the sentencing court would have justified as a reason to impose a lesser sentence. This defies reason. The record is replete with evidentiary support for the sentencing court‘s determination that Beckley‘s behavior posed a clear and present danger to the community, thereby justifying the lengthy sentence that he received.
[¶39.] The Court also concludes that the sentencing court‘s refusal to grant a continuance violated
[¶40.] There was support in the record for the sentence imposed by the court; the presentencе report notwithstanding. The Court‘s holding imposes mandatory content in a discretionary report. The result of this holding will be that sentencing courts will forego ordering presentence reports in favor of determination based on the trial court record in order to avoid the threat of reversal established by this Court today.