*1 177 purpose compensation of workmen's acts.3 Our conclusion purposes provide prompt seems in accord with its sure and yet possible relief for the workmen and avoid uncertain and general catastrophic employers losses to contractors. To subject permit employee construe our Law to actions an against general employer that Law contractor or for all ’the exceptions negate named in the Restatement would in effect compensation purposes provisions. being genuine
There
no
issue of
material fact de
judgment
fendant was entitled to
as a matter of law. Wilson v.
207,
Railway Company,
Great Northern
83 S.D.
Affirmed. Judges
All the concur.
STATE, BRECH, Respondent Appellant v.
(169 242) N.W.2d (File Opinion July 1, 1969) No. 10562. filed 3. Oviatt N.W.2d v. Oviatt 900; Dairy, C.J.S. Inc., Workmen’s [80] S.D. Compensation [119] N.W.2d 649; 5.§ Breitwieser State, N.D., *3 Bruce, Murphy, Richard R. appellant. for defendant and Farrar, Andre, Gen., Atty. Gen., L. Atty. Frank Walter W. Asst. Pierre, respondent. plaintiff and .
HANSON, Judge. denying under appeals relief from an order Defendant 1966). He is (Chapter Laws Act Post-Conviction Uniform serving year Penitentiary sentence a 40 the State confined in now day 17th H. Seacat on imposed Honorable Walter Manslaughter following guilty plea to the crime April sought Degree. have is to post-conviction relief The the First alternative, or, to allow in the vacated the sentence degree manslaughter allow plea first withdraw his manslaughter de- guilty in the second plea crime of rights gree. violated were fundamental asserts his Defendant as follows: and there was aid in his defense He was unable to
I. range competency within the to his a doubt as State, Magenton 76 S.D. the rule enunciated 894; 512, 81 N.W.2d to the crime did not enter He
II. degree manslaughter the court did in the first one; elicit defense; legal inadequate counsel He received III. his discretion in trial abused IV. *4 defendant; sentencing and failed to trial advise defend- The V. rights. his ant of H. Walter Seacat the Honorable dis- reasons obvious
For proceedings post-conviction and the Hon- in the qualified himself Judge appointed Bandy to act in his stead. R. orable James hearing evidentiary proceeded conduct an extended Bandy attended and testified. The record defendant and which hearing pages. At transcripts contain 388 such conclusion of hearing Judge Bandy prepared page and filed a 17 mem- of the findings opinion detailed of and entered fact and con- orandum denying upon order relief which the is based. lawof clusions
181 during evening The record shows that of November daughter 19-year-old Betty, defendant shot and killed his family in tragedy a 30-30 rifle home The Mitchell. place presence took in the of defendant's wife and another daughter. charged He was and arrested with the crime of Fuller, murder. After arrest H. defendant retained T. one of the Morgan senior members of law firm of & Fuller of Mitchell represent past president Mr. him. is a Fuller of the South able, Bar competent Dakota Association and a most and ex- perienced lawyer. trial appeared person
On by December 1963 defendant and counsel, Fuller, arraignment charge his H. T. on the of mur- arraignment by der. The was conducted the Honorable Fred J. Nichol, judges Circuit, one of the of the Fourth who is Judicial now Chief of the United States District Court. Pleas of guilty" guilty by insanity" "not and "not of reason en- were Following pleas such tered. defendant was ordered to ex- be choosing by psychiatrists amined of his own and he was further transported Hospital ordered Mentally State for the by Behan, Ill at Yankton for examination Dr. Lawrence G. Sup- Baker, Hospital by of erintendent and Dr. a member its staff, sanity insanity, "his relative to both with reference to alleged offense, day November, 1963, the date 7th respect capability and the current date with to his to stand trial said offense." He was thereafter examined two choosing psychiatrists own his members of the staff Hospital. at the State April shows that record further on counsel, person Fuller,
appeared H. T. before the H. Walter Seacat at Honorable which time defendant withdrew previous pleas guilty" guilty by "not and "not reason insanity" "guilty" the crime murder entered a manslaughter lesser offense in the de- to the included first gree. thereupon years sentenced to serve He was *5 alleged Penitentiary. All of defendant's violations con- State rights proceeding. relate to this stitutional rights. This We find no of defendant's fundamental violation following fully convincingly, accurately, and reflected opinion Bandy's portion R. memorandum of the Honorable James adopt: approve we and which consider the Post- Laws
"The Commissioners on Uniform proceeding and statute to be in the nature of a civil Conviction Sain, 372 U.S. 83 S.Ct. it is indicated in Townsend v. petitioner to estab- the burden is L.Ed.2d 770], [9 Townsend, language course, used in lish claims. corpus purpose proceeding of the to habeas but since the refers same, rights it would seem to be ascertained are and entirely applicable. therein written: It was prisoners federal habeas
'State are entitled to relief on corpus only upon proving that their detention violates safeguarded person, of the the fundamental liberties against Federal state action Constitution.' Magenton (supra) ap- v. State our Court construed 34.2002, saying: plied SDC necessary not the ac-
'Under this code section it is hearing actually to a cused be insane to be entitled present sanity. He must accorded on the issue of his only protection if the facts are sufficient to raise sanity. doubt as to his The doubt referred to is one that must arise in the mind of mind of some other person. trial judge, * [*] rather * It must than be a real doubt a substantial character. arising from [*] * facts and circumstances sanity applying 'In this statute the test of the accused's right wrong rule above referred to. That sanity responsibility in the sense of criminal concerns sanity an We are here concerned with for the act. regard triability. Sanity purpose present in this by appraising present ability of the ac- determined purpose to so understand the nature cused proceedings his own defense taken in a rational manner. *6 against him as to be able to conduct [*] * [*] The brought say statute does not how this matter to be to is court, the attention of the but omission is unim- portant. may application It be done on formal or where made, application may no is it be done the court' judge on own its motion. And if the trial has real sanity duty doubt as to the of the it is accused to * * though inquiry, requested. order the even However, knows, because court or has reason to be- lieve, claiming the accused is that he was insane time offense committed does not of itself necessary inquiry present sanity. make an into his [*] ¥ (cid:127)¥
'Whether a trial on its court own initiative should order inquiry judicial such is a matter addressed its sound discretion, and its decision will not be disturbed in the absence an abuse of that discretion. [*] [*] [*]
accused has the burden in this regard, [*] [*] [*] and a strong * [*] showing [*] Ordinarily required sanity to establish an abuse thereof. presumed where urged had, had, court trial or should have present accused, sanity doubt as to the of the court's inquiry failure order on its own motion is aided presumption.' '* [*] Magenton [*] the trial court had examined Supreme Court of South Dakota the conclusions assumed, of the expert psychologist's witnesses out report.' above set and the carefully It also wrote: 'We have studied these documents.' All foregoing product of the related to the had examinations pursuant provisions of SDC 36.0109. Magenton, Judge express- Unlike the situation in Nichol had * '* *
ly experts ordered the to examine the said defend- sanity insanity, ant to his relative both reference alleged offense, November, day date of the the 7th respect his'capability the current date with to stand trial sentencing offense;' Trial reports were before the These said authority 17, 1964, April no better I can think of on reports trial for the consideration such clearly Supreme reports These show than our own Court. *7 Brech, Doyle of their capacity to stand trial at the date Sr. of Nothing making. subsequent appears. to show deterioration (albeit through had, open Additionally, court the defendant counsel, presence) prior withdrawn in the defendant's but insanity. guilty by plea of reason of Magenton: language Paraphrasing the used in stages represented trial the accused was 'At all the [of] proceeding this Not until the institution of counsel. 1967) suggested (January that was it to court on sanity doubt to the of the accused at there was a as of trial.' the time recognizes precise question the that considered
This Court sentencing Magenton Judge to Trial whether the was erred hearing holding sanity a accordance SDC 34.2002. in not petition not attack in that manner. It asserts herein does The and claims. 7, 1963, through times from November all
'That at sentencing, day April, on or about the 17th of of date Petitioner, cooperate and remained unable to was defense, and, further, on own the date in his aid sentencing, anything, unable to he was do was un- answer, understand, comprehend, to unable com- able to * * *' municate; August that, testimony Brech of shows at least The a sentencing prior Petitioner the actual was advised month thought Judge years be a would fair sentence the Trial charge Manslaughter plea to the lesser on a right'. Degree it Petitioner 'didn't think was First August Again, testimony supplemented Brech Bartling testimony presence of Leona establish the Petitioner, Brech, 17th, Doyle April shows Sr. knew on charge expected Guilty 1964 that he was enter Manslaughter sentencing Degree in the First and that Judge forty impose an had indicated intention to a sentence of years. Doyle The Brech Sr. shows that sentencing immediately prior fully he aware of followed, procedure inquired to be as to whether accept plea by would use 'Yes' of the word rather 'Guilty', inquired than reports, as to the content of the medical questions asked his counsel 'several about the law'. This Court establishing must find that instead of that the defendant was in- Magenton sentencing, sane within the rule at the time of the fairly taking fully comprehended establishes that he what was place. only real contention the Petitioner in this re
gard is that he was to unable recall the circumstances of his daughter's death. We cannot know whether this or was real feigned. event, any parital memory, In loss of limited to hours, period insanity. aof few could not be classified As circumstances, to such the record establishes at the of that time tragedy', what the Petitioner chooses to call 'the or incident' 'the Yet, family present. the members of his were not of them one mitigation was called when in was offered. One that, any finds it difficult to believe if there had been evidence extenuating whatever of circumstances such evidence would not forthcoming. have been
As to the contention that the defendant never entered a Manslaughter Charge Degree, Guilty to a of in the First the testimony of the record of the Petitioner himself and of his coun- that, abundantly sel establishes because he could not recall having remorse, committed the act and because his de- bring sug- 'Guilty' not fendant could himself to use the term but hearing gested say present 'Yes'. that he would On the counsel sought petitioner to establish that the defendant for the was that such a mental state he was unable to articulate word 'Guilty'. accept interpretation by Court does This that coun- sel. defendant, time fully record establishes precisely arraignment fully knew
of his second judge going transpire. experienced trial and: An what was to (who any experienced reporter not shown to have had is warning to as to intention the defendant or information 'Guilty') say 'Yes'. the trial instead of heard While 'Yes' defendant, require yes answer from the did not an additional having pause, there the Trial shows that was a record given any opportunity misun an for correction event enlightening derstanding. connection, that at time it is no this 'No'. The contended that he answered fact has words, that, trying I was to in his own 'Well the business answer, my plugged up— throat but conjecture whether the witness was here left as to
We are claiming my word mind' was 'Yes' 'sound admitting having made an 'utterance'. In the whether he and, 'voluntary' 'utterance' was breath he denied same accordingly, heard it rather reasonable assume he seems my the 'sound of mind'. 'Yes' as required, explanation further of this situation
If arraignment, transcript portions of the later be found counsel his retained said wherein '* * [*] difficulty he had answering yes that, question your of the fact as he told was because times, plead I "How can hundreds and hundreds me something *9 that I don't know that I did to member magnitude." after, that he did how he He did realizes kill his it. * nów, daughter: n [*] and he did *' But he doesn't shortly there- re- page of the contains the last of the record The following:
your '* [*] * plea Now of guilty Mr. Brech, manslaughter the court is in the murder of going to accept daughter; being place your and this the time fixed
187 judgment by pronouncement the court for the of the of upon again, your plea guilty, you the court of I'll ask you legal why do have excuse to offer it should not none, pronounced? you?' be You have have you anything you'd 'MR. FULLER: Do have more like to say you?' the before sentences 'THE DEFENDANT: No.'
There is testimony not one word in pre the now negate sented the Petitioner which even seeks to this clear showing sentencing Judge accepted plea Guilty had a of and was about sentence To him. his credit it must be said thought the Petitioner does not now claim that he Manslaughter was about to sentence him for in the Second De gree. This, course, pretension of would be inconsistent his transpiring that he did not know what was at the of time his ar raignment plea. was, While the record does show that he quite understandably, shaken at he plea time entered his 'Yes', undisputed of it is composed thereafter he became intently and listened to the adduced in his behalf.1 1. plea not of vital Manriquez, guilty court, lesser Supplemental open Court.” ant ditional”. consent his confession of record of his guilty Likewise, SDC 34.3520. "There Every plea SDC The Defendant: offense "The (1) (3) A former (1) (2) Not confessing must be on or crime known as construing If the defendant Guilty; Court: 34.3522. manslaughter arraignment Court: charged 188 Cal. importance, Guilty; in Herold v. guilty entered arraignment himself defendant, must You’re Yes. guilt "*(cid:127) * * * judgment similar Question * * * * in should be asked accused manslaughter guilty in the first oral and must be entered manslaughter provided substantially are three plead guilty: given Now, statutory Haugh, shows P. plea of whether or not [*] 63, 20 Mr. [*] explicitly crime manslaughter pleas *. him degree.” Breeh, requirements guilty in if he desired to A.L.R. admission following: Iowa should not be entered personally the defendant made following must be an first included first indictment in degree? * * * concluded degree. the first put guilt form: within the crime change N.W.2d direct pleads California Court in [but] You entered a I’ll minutes clear, definite, degree information. terms "that the defendant 657,’it except that he is have to answer the form of the ask —enter you of the plea appears plea with the ánd his open now, guilty murder A defend a of Court. and uncon himself, court, People plea guilty the trial attorney are express plea plea that. of the of: you in *10 hearing improved had have been
The record on this would who State fit to elicit of other officials seen However, arraignment. present the bur- time of were at the this petitioner has sustained not not the State and the den is veracity burden, considerations. probability on either fact, Sr., in Doyle Brech did The record establishes charged, daughter. does he so He was and kill his shoot charge fact, guilty it, and, plea to a of deny offers a in he to enter Degree Manslaughter this time. of in the Second having therefore, Clearly, homicide. committed a he concedes By SDC 13.2001 defined; killing
'Homicide; classified. Homicide being- by It is either: one another. human (1)Murder;
(2)Manslaughter;
(3)Excusable homicide; or,
(4)Justifiable homicide.' plea ing such as habeas F.2d waived tioner’s open sel, with that “The amount relief written ceremonial denial of due acquiesced edgment two or three “replied replied * * Also m the 505: approval court in time he wished plea. to a required assertion in in the affirmative”. in the Iowa plea “*(cid:127) * presence Parrott in the collateral while assisted or verbal open denial of process times He at no pronouncement court [*] guilty plea, following to enter a Court corpus.” if that was in fact it can no section proceeding [of law] plea Haugh, formality due is not can time voiced held process by failed 777.12. Minor deviations statement only that “a Iowa, presence plea Although Section longer for counsel of sentence in violation of such be made who knew and understood what was which conviction must entitling respect 158 N.W.2d comply disapproval be plea guilty. from as of his said habeas in which petitioner he plea Mayes with that mere failure guilty open due attorney arraignment knowingly 777.12 of 766, the he wished to make or dissatisfaction section 777.12. He process corpus”. trial court in v. from to relief then open United court the Iowa be tantamount which entitles defendant imposed. statutory court set aside”. The court by found “no States, then asked intelligently the defendant entry a collateral by comply Code, 1962, with Such procedure defendant’s to an acknowledged and the being further Cir., Ark., merit with an acknowl- open signed plea plea. done and proceed- requires accused accused himself in precise do not quoted court coun- peti- is a He in Bandy personal We agree reached defendant’s the conclusion with response query substantially complies guilt in direct to the court’s affirmation put mandatory requirement “a the defendant must the himself open court”. *11 Painter, In State v. S.D. 17 N.W.2d our precisely says. Court said that this statute means what There slightest is not the contention that the homicide was ex either justifiable. Accordingly, cusable it must have been murder degrees manslaughter. may or one of the A homicide Manslaughter Degree only in Second the if it is not murder or Manslaughter Degree. abundantly First It is clear that 13.2013(2) Manslaughter SDC makes homicide in the First De gree dangerous weapon when is the means. A rifle is a dan gerous weapon.
It is correct that the record shows that on at least two oc- forty year casions the Petitioner said that a sentence 'was not right'. cry This is a far from the contention that he said a right any was not or at time contended that he did not daughter kill his with rifle. He claimed that he did not recall that, act. There not one scintilla evidence to indicate time, any any did he have doubts but he that had killed his daughter. got any Where he particular information is not of importance. questioned It is not but that it is true. This Court meaning only protestations can read the Petitioner's that he considered, considers, forty years imprisonment and still as too high taking daughter's price Opinions for his vary life. would as to this. petitioner counsel
Present assumes that unlimited witnesses were character available. this .before testify who Court indicates that the witnesses did were named supplied Experience Petitioner himself. a list indicates obtaining tesiimony extremely effective character ihat difficult impossible approaches in most cases in defense of crimes of violence. argues
Counsel visiting Mr. Fuller was derelict in not point any the scene of the homicide. possible He fails to out might doing. from his benefit have obtained so Had there daughter's accidental, death been evidence family been obtained from the who this would have members eyewitnesses, from the scene. not were essence, reasonably Doyle clear. Brech Sr. the situation daughter presence oí a number and killed his shot charged apprehended family. He was of his members brother, through good He, employed offices of Murder. outstanding County Fuller, Bar. member of the Davison T. an H. shooting daugh- could recall Brech claimed he Mr. eyewitnesses and learned noth- interviewed Mr. Fuller ter. ing a defense in the circumstances. A constitute which would *12 Guilty by Guilty Plea of Reason In- and a Not plea of Not had which interposed. Psychiatric were sanity examinations was nothing Doyle purposes. Brech produced of value defensive put was able trial for his life. Mr. Fuller Sr. was to be on about accept prevail upon to to the Trial Manslaughter Degree offense of in the First lesser included greater impose sentence of than that he would not to indicate imprisonment. forty years. life It could have been Jameson, v. 75 S.D. 61 N.W.2d In State ex rel. Parker our wrote: Court capabilities lawyer question 'For an accused conviction, following oppor- had the accused when obtaining counsel, quite a different matter.' tunity of following quoted: may opinions many of like tenor From that his asserts constitu- 'When a criminal right representation competent adequate tional sustaining violated, been burden has counsel Crooker, allegation People upon him.' 47 Cal.2d rests v. Pac2d 753. handling counsel of accused's of the defense 'The inadequate except declared will not be own choice displays his counsel such a lack cases where those rare diligence competence to a as to the trial reduce Wein, People 50 Cal.2d 326 Pac2d farce or sham.' 457. foregoing,
Contrary willing this Court would be to find that skillfully the defendant was most defended counsel. forty years clearly sentence within the
discretionary Judge. power By SDC 13.2015 provided: it is
'Every manslaughter person guilty degree in the first punishable by imprisonment Penitentiary in the State years.' for not less than four
By provided: SDC 13.0609 it is any person
'Whenever punishable is declared for a crime by imprisonment Penitentiary in the State for a term of any specified years, less than number of and no imprisonment declared, limit to the duration of such judgment pronounce the court authorized upon such may, discretion, conviction in its sentence such offender *13 during imprisonment to natural life or for num- years ber of not less than prescribed.' such as are sentencing Judge It is claimed that abused his discretion imposition of such sentence in that he considered matters not included within the which prin- he had received. The cipal foundation for this claim is a letter which Seacat wrote, 23, 1964, April under date of and addressed to the State Pardons, Board of the Warden of the South Penitentiary, Dakota Department and South Dakota of Pardon and Parole. This days imposed upon six after sentence had been peti- tioner, Doyle Brech Sr. People (U.S.1949)
In Williams v. of the State of New York 337 U.S. [241] 93 L.Ed. S.Ct. Supreme wrote: Court judges deprive
'To of this kind of informa- penological procedural tion would undermine modem through- cautiously adopted policies that have been experi- nation careful consideration out after recognize infor- that most of the mentation. We must judges guide them in. to mation now relied intelligent imposition un- of sentences would be given, if were restricted available information subject open court witnesses cross-examination. report probation drawn on informa- And the modern concerning every aspect life. The of defendant's tion totally type information make im- extent of this open impossible practical not court if endlessly procedure Such a could cross-examination. delay in a retrial of collateral criminal administration issues. against
'The considerations we have set out admonish us treating process as a the due clause uniform command age- throughout Nation their courts abandon seeking practice information sour- from out-of-court old enlightened judgment guide toward a more their ces just York New statutes a state sentence. Under fixing grave escape responsibility sentence. cannot determining a one- whether a defendant shall receive sentence, twenty-year we maximum year minimum or a view of restricts the not think the Federal Constitution do sentencing judge open to the information received due-process clause should not be treated court. The freezing procedure sen- device the evidential tencing procedure. trial in the mold of So to treat due-process preclude hinder if clause would all courts making progressive federal —from —state and efforts justice. improve the administration of criminal *14 urged, however, that we should a constitu- draw 'It obtaining procedure for in- distinction as tional imposed. death We where sentence formation Leaving accept the contention. cannot judge himself of out-of-court information free avail making does secure such choice sentence a fateful discretionary power, susceptible to him a broad one rigid considering abuse. But in constitutional whether a created, barrier should that it must be remembered judge possibility there is a of abuse wherever must imprisonment choose And it between life and death. objection is conceded that no federal constitutional would judge possible have been if the here had sentenced applicant appellant's to death because trial manner judge impressed appellant was a bad risk for judge giv- society, or if the had sentenced him to death ing say due-pro- no reason at all. We cannot merely cess clause renders a sentence void because gets additional out-of-court information to assist power imposing him in the exercise of this awesome the death sentence.' letter, '2', required
This Exhibit is not the 'Official Statement' by provided SDC 34.3711. It is for and authorized 13.5304, provisions SDC amended: preparing history may 'In the case the Director enlist the services any [*] [*] Circuit any wise case, connected with said and such other officers who knowledge concerning inmate, may have or the cir- surrounding cumstances commission crime sentenced, previous history for which he or the of the inmate.'
This Court knows the Director as well at the Board of repeatly requested Pardons and Paroles have all of the trial judges greatest report possible inmates detail and require specific inquiry proof therefore would not was made fact, probably was not. this case. Petitioner, counsel or referred to not cited While amended), (subsequently provided 34.3704 anent it was SDC sentencing: kind, representation
'No affidavit or written, by the to or received can be offered verbal or *15 aggravation mitigation punishment, Court of the except provided in this section.' prohibits procedures approved Whether SDC 34.3704 Judge unnecessary Williams to decide in this case. Seacat prosecu- testified that some of the information assembled preparation may tion in for the trial come into his hands have sentencing that, prior preserve complete impartiality, but deliberately reading he had avoided it. testimony sentencing
As to the conflict between the Judge present Petitioner, Trial counsel for the it can be ex- justification plained praesenti as in of the sentence which had light imposed, been in the of the information which came to the Judge subsequent imposition Trial of sentence. While Judge this Court is not so naive as to believe that the Trial had sentencing, did, gossip' not heard 'courthouse at the time of he oath, testify under that he sentenced the basis of the of- charged. compelled If veracity, fense this Court to determine Judge testimony find accepted. will Seacat is to be privileged
While this Court feels '2' that Exhibit general public, as to the it did not believe that it should be so treated as to the inmate as to whom it was written. Exhibit '2' was therefore received in evidence to ascertain whether it dis any sentencing Judge closes in manner had considered imposition matters contained in the of sentence. This Court nothing has found in it which in manner indicates the matters therein recited were in the mind of the Judge April on 1964. Exhibit '2' in no manner contradicts Judge Judge Seacat. This Court will find that Seacat had not examined and did not consider the data in the prosecution prior imposing hands sentence. tence The printed writing form used in contains reducing language Judgment [*] * and Sen be Judge fully fore a was entered the said advised said De v rights premises, fendant of transcript nothing establishes Seacat said at all as to Con rights arraignment. language stitutional at this It is clear that *16 reciting printed of the form is erroneous that he did. It is arraignment Judge equally well established that the before Nichol the advised the defendant of the nature of the * * charge against him and asked his counsel: I assume you Mr. Fuller Mr. have advised Brech of all his constitutional rights?' have, and that Mr. 'I Fuller answered: Your Honor.' hearing explicit
Mr. Fuller's on this is as to his advising rights fully prior the defendant as to his Constitutional arraignment forty years. which resulted in the sentence of requires unrepresented
SDC 34.3506 that an defendant be right Diligent advised as to his to counsel. search has not brought light any requirement represented that a defendant rights by be advised as Constitutional whatever Court, although, caution, perhaps in an excess of it is often procedural. done. SDC 34.2302 is deemed It judge: is premises to be noted that '* * [*] * * fully This statute does not contain a re- advise statute, such SDC 34.2302 person of his requires rights that quirement must also advise 'to the conse- quences plea' required by of such as is the statutes of some states. language Sewell,
It
of State
is made clear
v.
unrepresented
69 S.D.
12 N.W.2d
an
explanation
such an
in South Dakota:
entitled to
capital
'When one accused
of a
offense comes before
counsel,
court,
plea
unaided
to tender a
the bar of a
nothing
guilty,
less than the utmost of caution will
justice.
satisfy
requirements
In such circum-
ceremony
contemplate
empty
law does not
a
stances
solemnly
persuaded
court
of substance. Until the
rights
explanation
painstaking
afforded
law,
consequences
by the
and of the extreme
accused
acting
entail,
plea may
the accused is
with voli-
understanding,
plea
should not
tion and
(Emphasis
supplied)
be entered.'
ago
Reddington,
Many years
it was written in
State
S.D.
'Neither or criminal are cases tried for vindicating purpose exemplifying formulated rules object get practice. every of law or trial is to right very controversy.' the matter charged capital While the Information the defendant offense and the term at which trial would had thereon was impending, crystal everyone present clear knew 'that to, going not, the defendant was not and he did tender a *17 charge guilty Everyone of of murder. knew that he was going included, to tender non-capital, the charge Manslaughter Degree. in First knew He that when Judge impose he did so Trial would a sentence of not more forty years, represented by than which was done. He was coun- Any attempt by advising sel. person the Trial 'such rights would, indeed, premises' to his in have been a 'cere- substance', mony empty particularly as to a defendant aided relationship transpired counsel. This bears no to what (supra). State v. Sewell present difficulty
In the mind of this
much
Court
attempt
administration
of the criminal
law arises
from an
ap-
ply decisional
statements
found in extreme
cases
to matters
bearing little resemblance.
Recurrence
principles
to fundamental
VI,
may
helpful.
be
at times
Sec. 27 Art.
S. D. Constitution.
Miller,
Territory
It was written in
4 Dak.
It is most that at no time has the Petitioner any him of out or claimed that there was a failure to advise right present predicated this he had. His contention precise which he learned error the record as to the means rights. There is not word in record to show that these one right was denied or invaded. 1966, being applicable portion Chapter 121 Laws of provides: our Post-Conviction statute
'Any person convicted of a crime and under sentence imprisonment the convic- of death or who claims *18 obtained, imposed, tion was or that the sentence was in violation of the Constitution of the United States or * * *' State, the Constitution or laws of this nothing
This finds in this record or in the law Court indicating sentencing Judge any necessity there was for the rights rights, any any to advise the defendant of that he had advised, right, to which he was not or that whether con tained in the Federal or State Constitution or laws was denied or invaded. foregoing
It follows from the the relief asked Petitioner will be denied."
Affirmed. HOMEYER,JJ.,
RENTTO and concur. BIEGELMEIER, Judge (concurs specially). President ROBERTS,J., dissents. Presiding
BIEGELMEIER, Judge (concurring specially). interpret opinion I Because determine evidence findings supports by appellant, on the raised I issues con- affirming Bogue opinion Clay cur in the the trial court's order. 140, County, 75 S.D. N.W.2d 218.
ROBERTS,Judge (dissenting). Act, proceeding Chap. This is under the Post-Conviction hearing evidentiary Laws 1966. After an the trial court made findings specific of fact and stated its conclusions of law and the proceeding appeal deny- before this court on from an order ing provides Section relief. 6 of the Act order such is a judgment purposes question pre- final of review. The sole appeal sented on is whether the record sustains court's find- ings infringements and conclusions of law that there were no rights. appellant's constitutional right
A defendant has the fundamental
to stand trial and
charges against
require
prove
the state to
him accord-
procedural
something
process.
ance with
due
A
more than a
It
jury
confession.
is itself a conviction
like a
States,
verdict is conclusive. Kercheval v. United
U.S.
47 S.Ct.
In defend- State v. 69 S.D. 12 N.W.2d judgment appealed imposing ant from a the death sentence plea guilty did of the crime of murder. the case of While rights, present any of of constitutional this issue violation construing making 34.2302, provisions court it the of SDC judge duty entry plea guilty of de- before of of to advise rights recognized premises”, fendant "his of that the court offering duty plea guilty has a to the accused a of without appreciates possible indication that con- accused knows or sequences plea respect of such to admonish him with thereto. solemnly persuaded This court said: "Until the court rights painstaking explanation afforded the accused law, entail, consequences may plea and of the extreme acting understanding, plea that the accused is with volition and guilty should not be entered." (June 2, 1969), Boykin v. State of Alabama 395 U.S. case, 89 S.Ct. 23 L.Ed.2d as in the instant the record inquiries did not show that were made the court to deter- plea guilty voluntarily knowingly. mine that the was made error, court, record, "plain It was said the on the face of the accept petitioner's guilty plea the trial without an af- showing intelligent voluntary." firmative it was Con- cerning rights compulsory the waiver of constitutional in- crimination, right right by jury to trial and the to confront place plea guilty accusers takes when a one's is entered trial, in a state criminal it was no held that waiver of such fed- rights presumed eral constitutional would be "from a silent record".
Rule 11 of provides the Federal Rules of Criminal Procedure acceptance plea a standard for the in federal courts of a guilty. expressly accept It directs the trial court shall not determining plea inquiring without first voluntary and whether defendant understands the na- charge against consequences ture him and is aware of the holding Alabama, plea. Boykin supra, of his State principles con- is to the effect that Rule embodies of federal process applicable stitutional due which are to the states. *20 McCarthy States, recognized In supra, v. United court the among opinion that there a ap- was difference of of the courts regarding peal noncompliance of the effect with this rule. If record, could was voluntariness not be determined from the it practice evidentiary the in certain circuits to remand for hear- ing on com- the issue. In other circuits if a district court did not rule, ply guilty plea with the the was set aside the cause hearing permissible was remanded for at which another rule, replead. Adopting to the latter the court McCarthy perspective, case said: "From the defendant's shifting efficacy proof of the burden of to Government hearing meeting questionable. a later voluntariness is burden, undoubtedly rely upon its the Government will the de- plead fendant's guilty frequent- statement that he desired to ly a plea statement that was not induced threats or promises. prima This likely facie case for voluntariness is to one, be treated as irrebuttable cases such as this where the reply allegations plaintiff defendant's is limited to his own charge he did not understand nature and therefore guilty plea only failed to a assert valid defense or to limit his allega- to a lesser included offense. No matter how true these be, ever, may rarely, tions if can a defendant them corroborate post-plea hearing." rule, in a voluntariness This said the court case, Boykin spin-off "forestalls proceed- of collateral ings probe murky seek memories." appears plea
It
had
there
been
discussions
and an
agreement
charged
to reduce
offense of murder
man-
slaughter
degree.
interrogated
in the first
Defendant was
at his
arraignment
guilty
as follows:
"THE COURT:
not
You're
mur-
* * * Now,
der? DEFENDANT: No. THE COURT:
Mr.
Brech,
included within the crime of murder
a
is
lesser crime
manslaughter
degree.
now,
you
known as
the first
I'll ask
manslaughter
you
guilty
degree?
guilty or
are
in the first
You have to answer
that. DEFENDANT: Yes." The court
then
manslaughter
plea
entry
directed
in the first de-
gree.
question
There is
serious
whether
the answer
"Yes" to
compound
question
trustworthy
and sufficient
record
plea
guilty.
equivalent
plea
of a
Even if the answer was
to a
arraignment
guilty,
time of the
there
no valid record at the
knowingly.
voluntarily
plea
A
was made
subject
stringent
court,
guilty,
open
a confession in
to no less
applicable
simple
test
than that
confession.
See State v.
*21
Hinz,
656;
442,
Denno,
78 S.D.
103
378
N.W.2d
v.
U.S.
Jackson
84 S.Ct.
12 L.Ed.2d
The court concludes a mere deviation from arraignment procedure entry plea does not amount agree process. particular to denial of due I that a ritual is not necessary, but this pro- does not end the matter. Whatever followed, plea guilty cedure for a to be valid under federal binding courts, standards fairly appear on state it must from voluntarily the record that was made knowingly. Boykin Alabama, supra. v. State of Because show, affirmatively impelled record does not so I am to dissent. judg- I would reverse and remand with directions to vacate permit replead. ment and to STATE, BROWN, Respondent Appellant
(169 239) N.W.2d (File Opinion July 3, 1969) No. 10626. filed