Lead Opinion
Defendant and appellant, Gary Lynn Loop (Loop or defendant), appeals from a 1981 jury verdict convicting Loop of sexual contact with a child under the age of fifteen. We affirm.
A recitation of the facts, as they relate to the merits of the underlying conviction, is not necessary to the disposition of this appeal and will be referred to only as pertinent to a given issue. Defendant was initially arraigned on the underlying charge by information on October 26, 1981. On November 4, 1981, State dismissed this information and immеdiately refiled an information charging the same crime, together with a Part II information alleging that defendant was an habitual offender. Defendant was subsequently convicted and, on December 1,1981, admitted having committed the three prior felonies. On January 7, 1982, the trial court entered a judgment of conviction, sentencing defendant to twenty years in the South Dakota State
Defendant submits four issues for consideration. First, whether defendant was prejudiced by an incorrect citation in the habitual offender charge. Second, whether State failed to follоw the strict requirements of the habitual offender statutes by failing to file its Part II habitual offender information prior to arraignment on the initial information. Third, whether the trial court erred by admitting evidence of a prior bad act without a proper determination аs to relevancy and prejudicial impact. Fourth, whether the trial court failed to find that defendant had waived his constitutional rights or to find that there was a factual basis for his pleas to prior felonies.
Relative to the first issue, Loop contends that an erroneous statutory citation in the habitual offender information misled him into believing that he was being charged with only two prior felonies. State concedes that erroneous citations were made. The information cites to SDCL 22-7-2 and 22-7-7.
“An information is sufficient if it [apprises] the accused of the nature of the accusation against him with reasonable certainty so that he may prepare a defense and be protected from double jeopardy.” State v. Boutchee,
SDCL 22-7-11 requires that Part II of the habitual information ‘must state the times, places and specific crimes alleged to be prior convictions and must be signed by the prosecutor.’ (cited as emphasized.) Although an information оn the principal charge is required to cite the statute which a defendant is alleged to have violated, SDCL 23A-6-4, there is no comparable requirement for a habitual offender information, SDCL 22-7-11. Consequently, even though the habitual information here does not cite to SDCL 22-7-8, that is not a requirement of the statute.
Cited with approval in State v. Conaty,
Loop was initially arraigned by information on October 26, 1981. He entered a plea of not guilty. It was after this time that State discovered Loop had prior felony convictions. On November 4, 1981, the initial information was dismissed and a new information, with the same charge, was filed together with a Part II information for habitual offender. Loop again pleaded
We have held in the past that the habitual offender act should be strictly construed and applied, because of its highly penal nature. State v. Graycek,
This court has also held that a state may amend an habitual offender information where the defendant is not prejudiced thereby. Graycek, supra; Layton, supra; State v. Garritsen,
For his third issue, defendant argues that the trial cоurt erred in admitting evidence of prior bad acts without first determining whether the evidence was relevant. Defendant also argues that the prejudicial effect of the evidence substantially outweighed its probative value. At trial, both the victim and her younger sistеr testified to an incident that had occurred earlier in the week. The mother also testified as to this incident. Defendant raised no objection to this testimony. State contends that as no objection was raised this issue is not preserved for appellаte review. We agree.
To preclude Loop from using the failure of counsel to object as evidence of ineffective assistance of counsel in a habe-as corpus application, we hold that, had Loop preservеd this issue for appeal, such evidence was properly admissible as being contemporaneous with the crime charged and as going to proof of motive, opportunity, intent, preparation, plan, knowledge, and absence of mistake or accident. SDCL 19-12-5; State v. Sieler,
For defendant’s last argument he contends that there was not a showing on the record that he had waived right to counsel at conviction of prior felonies аnd that there was likewise no showing of a factual basis for those pleas. He therefore asserts that his conviction as an habitual offender must be reversed.
In Application of Garritsen,
It is State’s burden to provide sufficient evidence that the defendant is an habitual offender. SDCL 22-7-11 provides that an official court record under seal or a criminal history, together with fingerprints certified by a рublic official, is sufficient. Once State has met its burden, it remains for the defendant to attack the validity of the prior convictions. A defendant has two opportunities to have prior convictions, offered for enhancement purposes, set aside. First, he may challenge the validity of the prior convictions at a pretrial hearing, or at the trial on the Count 2 information. In State v. John H. King,
[t]he individual [defendant] may challenge the constitutional validity of a prior conviction whenever it is used as a basis for augmenting punishment. A motion to strike a prior conviction allegation from an accusatory pleading is a proper vehicle for attacking suсh conviction if the presence of the prior will activate the statutory machinery relating to penal status or severity of sanction in a subsequent criminal proceeding.
Second, he can collaterally attack the judgment of convictiоn, wherein the prior convictions were utilized to enhance sentence, by way of a habeas corpus proceeding. In Alexander v. Solem,
‘[w]here a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extrаordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel.’ (Emphasis in original.)
Citing Johnson v. Zerbst,
[a] defendant seeking to set aside a prior conviction obtained as а result of the entry of a guilty plea must initially make a prima facie showing that the guilty plea was constitutionally infirm; only when the defendant has satisfied this initial evidentiary requirement is the prosecution required to establish by a preponderance of the evidence that the guilty plea did not violate constitutional due process standards.
State v. Leonard King,
We held in State v. Aspen,
We affirm.
Notes
. SDCL 22-7-2 was repealed in 1976. SDCL 22-7-7 provides for enhancement of sentence when there are one or two prior felony convictions.
. SDCL 22-7-8 provides for enhancement of sentence, when there are three or more additional felony convictions, to a Class 1 felony.
Concurrence Opinion
(concurring specially).
I concur in all respects except for the attempt and the reasons given therefor “to preclude Loop from using the failure of counsel to object as evidence of ineffective assistance оf counsel in a habeas corpus application....”
1) Although the testimony by the victim, her sister, and mother of an incident that occurred earlier in the week may be sufficiently contemporaneous with the crime charged to be properly ad*425 missible, that question is not before us now.
2) There is no showing that any of these incidents goes to proof of motive, opportunity, intent, preparation, plan, knowledge, absence of mistake nor accident; nor does this evidence show a plan or scheme of criminal action. On the сontrary, none of these factors were even at issue in this case.
The prejudicial effect of this evidence also far outweighs any probative value as to any of these factors.
I believe that the law relating to “prior bad acts” toоk a “wrong turn” during the last few years in South Dakota. I believe that this “wrong turn” is best demonstrated by cases such as State v. Means,
As a result of the “wrong turn” we have proceeded a long way down the “wrong road.” We should go no further down that road. We should return to the rule and enforce the first sentence. SDCL 19-12-5.