State v. Moeller

Dakota, Plaintiff STATE South Appellee, MOELLER, Eugene Defendant

Donald Appellant.

No. 17886. Dakota. Court of South

Argued March 1993.

Decided Jan. Barnett, Gen., Atty. Meyer,

Mark Ann C. Gen., Pierre, Atty. plaintiff Asst. for appellee. Riepel,

Patricia C. Office Public Defend- er, Falls, appellant. for defendant and Sioux TICE, Judge. Circuit (Moeller) Eugene appeals Donald Moeller being conviction of a habitual offender. affirm. AND STATEMENT OF FACTS

PROCEDURAL HISTORY evening January 1990 when On victim, Tracy (Tracy), sitting Warner living apartment watching room of her working pro- on a latch hook television ject baby daughter asleep with her room, apartment. next Moeller entered her Although Tracy briefly Moeller and had met previously, not recall his name. she could minutes, After ten or fifteen Moeller asked Tracy coming him if would mind back anoth- time, departed. evening, Later that er lightly” “tapped apartment on the Moeller time, entered unannounced. At door and carrying Dan- Moeller was a bottle of Jack asked if he could watch television iels. He Tracy acquiesced. and she Subsequently, upon returning from the kitchen, Tracy in Moeller stood over her knife, chair and ran a with a three and one blade, Tracy’s up half inch and down breast ordering, up your “lift I’m while shirt or going you, to cut show them to me or I’m Thereafter, going you.” cut alter- arm, running Tracy’s nated the knife over and her breast.

Upon being Tracy, warned Moeller re- torted, you going get think “who do cut guilty pleas en- point, fearing Moeller contends that the first, At that you or her.” herself, numbers 76-54 and Tracy tered in criminal record baby and safety of her voluntarily, intelligent- 76-55 were not made grab the knife and sustained attempted to ly, knowingly;1 that the record is silent injury fingers to two because of permanent concerning the factual basis for these Tracy then tendons and nerves. lacerated pleas; that he was never ran her Moeller and out of broke free from charges; penalty he faced on these help. After sum- apartment to summon door guilty pleas involuntary because the rec- are help upon returning to her moning is silent as to whether he was advised or ord leaving and me- apartment she saw Moeller forty-eight waiting period aware of the hour plate number. his vehicle’s license morized sentencing; that the 1976 between Tracy’s presented evidence of The state involuntary, upon guilty pleas were based identification, memory eye-witness her “totality of the circumstances” in that he was plate number and the blood stain license twenty-three years eighth old and had an clothing which was consistent with Moeller’s pleas; grade at the time of the education testify Tracy’s type. Moeller did not blood proof that the described Stuck v. burden on his behalf. He was or call witnesses violated guilty aggravated counts of found on two process; improperly trial court due 22-18-1.1(2) §§ in violation of SDCL assault permitted the to amend the habitual state time; and, offender information for a second improperly that the trial denied his motion part two information Through the state’s regarding as limine the victim’s state mind charged with and amendments Moeller was charge. relevant to the following for the being a habitual offender (72- January 1973 conviction convictions: While the record below indicates there are 139) larceny; May grand 1974 conviction for convictions, transcripts no for the 1976 (76-55) for escape; for March 1976 conviction record is also far from silent. The March degree; burglary in the third March 1976 plea proceed- 1976 minutes of the combined (76-54) theft; grand April 1979 for conviction ings following: disclose the (Cr. County, Campbell No. The court advised the defendant as to the assault; and, Wyoming) aggravated for charges. nature of the The defendant said (83-209) grand for theft. 1983 conviction he understood. D. The Richard Hurd denied Honorable The court advised the defendant as to his motion to vacate criminal record Moeller’s legal and constitutional However, 76-54, 72-139. numbers 76-55 and trial, testify on his own be- witness motion to grant the court Moeller’s strike did half, by plea guilty etc. and he would May escape. 1974 conviction rights. all wave of these The defendant said he understands. 8, 1992, January On the state and Moeller [Moeller’s Mr. Breit and Mr. Sabers attor- agreement stipulation filed a acknowl- neys] they said that are satisfied that the person edging that Moeller was the who defendant understands. (identity) actually the offenses committed court, Being by County Minnehaha criminal file numbers 83- the defendant asked However, 209, 76-54, 76-55, ready plead he and entered his and 72-139. said was stipulate anything plea guilty “to oral of not to Cr. 76-54 Ct. 1— Moeller did not degree; plea guilty regards validity burglary of his 1976 convic- 3rd an oral 2—grand larceny. hearing tions.” At the motion on November to Cr. 76-54 The Ct.— any challenge questioned court the defendant as to his 1991 Moeller did not raise pleas. in Minne- The court received the defendants below to the record guilty Guilty County haha record number 83-209. Moel- of not to Ct. to Ct. 2. The entered an oral ler’s sentence was enhanced based defendant Burglary Degree. 3rd these four convictions. Cr. transcripts appeal apparently did not the convictions in either state or did not order plea proceedings his combined 1976 because he federal court. matters, mandatory as to into other “that weren’t questioned court received the but he guilty plea. The court throw all the time.” used guilty. plea of defendant’s regard possible With to the advisement of penalties guilty pleas, for the 1976 Kean judgment relating to Cr. 76-54 The certified testified that: was informed states “the said defendant [Judge used to talk about the Patterson] the nature of the information the court of punishment and would want to know about plea, was asked the court and of and. punishment proper the maximum and the any legal why he had cause to show whether punishment. maximum He check would it pronounced against judgment should not be book, even, know, you with the code all the judgment him.” The states that the court time. And then he ask that would fully “rights the accused of his repeat it back to him what the Likewise, judg- premises.”2 the certified punishment jail was both or the pertaining ment and sentence to Cr. 76-55 time, levied, prison fines that could be used that: states rights, you to even talk about forfeitures arraignment Upon such said defendant know, things like use of fire arms and like having then been first advised of his con- that on occasion. statutory rights having stitutional and and rights duly and entered in waived such I. open plea guilty court his oral of of the THE TRIAL COURT PROPERLY USED contained; charge in said information and THE BY GUILTY PLEAS ENTERED Defendant, having the examined the Court MOELLER TO ENHANCE THE SEN- plea voluntary finds that such was and not TENCE UNDER THE HABITUAL OF- coercion; made under duress or the Court FENDER STATUTES. accepts plea guilty ... such of As a matter of federal constitutional Moreover, in the record below there was law, right unequivocal Moeller has the to testimony Minnehaha also of the former by jury, privilege against trial the self-in Kean, County attorney, Paul states Gene crimination, right to confront and cross- practice customary establish the standard represented by examine witness and to be procedure employed by the Honorable R.J. Alabama, Boykin counsel. 395 U.S. Patterson, who deceased the time the (1969); Arger 89 S.Ct. 23 L.Ed.2d 274 Boykin challenges defendant raised his be- Hamlin, singer v. 407 U.S. 92 S.Ct. low, years approximately fourteen after the (1972); California, 32 L.Ed.2d 530 Faretta v. entry The pleas. of the elicited L.Ed.2d. 562 Judge Kean Patterson from established trial, Boykin rights jury unwaveringly every and would advise each self-incrimination, against and confrontation statutory defendant of their and constitution- system importance are of such in our of “plastic rights al from laminated sheets.” At justice, appeal that on direct from convic right Judge the end of each Patterson would stand if the record tion conviction cannot you the defendant “do understand that.” ask intelligent knowing is devoid of a and waiver Judge Kean testified Patterson would rights. of these right inform each defendant of their trial, court, open Unfortunately the reference to a “si to confront witnesses by many and remain silent in lent record” has been viewed to be cross-examine witnesses Boykin, going challenge a basis to of convictions accordance with addition to (which governed entry judge appears if it to the satisfaction of such 2. SDCL 23-35-19 of 1976) guilty plea regularly of under South Dakota law in that the accused has been held to provided as follows: charges acting upon answer the offense and is matter, arraignment person Upon the of such of his own free will and accord permitting entry guilty before of the judge such shall there receive such duty judge whom it shall be the before charges the offense in the informa- may brought fully be advise accused tion. person premises, such of his point procedural There comes a where appeal. It is our a direct than other from perpetually leaves matters system which procedure for clarify the law and hope to longer humane concern open no under cir- prior convictions examination of reflects anxiety immo- merely and a desire but appeal. involving a direct As cumstances bility. challenge procedural chronological and from the added) (internal more removed becomes quotations conviction (emphasis Id. itself, exercise de- omitted). the court must perpetual review citation Such scrutiny in the review of constitu- creasing litigants to withhold “give[s] incentives an inverse relation- There is purposes tional issues. ... manipulative [ and] claims for sensitivity of the courts ship present between the claims disincentives to establishes] procedural protection and the Id. State v. when evidence is fresh”. Cf. (Chief (S.D.1987), original chronological distance from Aspen, Moreover, Miller, Challenges dissenting). to distant convictions in ad- conviction. Justice paramount in- finality, undermining and it is of confidence in the dition to strike inroads on tegrity procedures, that: court these importance to remember work, judicial finality the volume of increase objects finality very is the of the law’s One orderly delaying impairing the inevitably nor judgments. Neither innocence of its Lockhart, justice, Hill v. administration can vindicated until the just punishment be directly contravenes one of judgment is known. “Without final finali- Boykin, [the] to wit: to “forestall ends deprived law much ty, the criminal proceedings that seek to spin-off of collateral [citations omitted]. its deterrent effect.” Boykin probe murky memories”. v. Ala- petitioner succeeds And when a habeas “ 1712-13, bama, 89 S.Ct. at 395 U.S. trial, obtaining a new ‘erosion at 23 L.Ed.2d 280.3 memory’ dispersion of witnesses time,” passage [citation of Likewise, Court, occur with acting in our government and di- prejudice the omitted] cold and indeed appellate function on the a criminal us, minish the chances of reliable presume ancient record before cannot adjudication. greater insight into the defendant’s “under counsel, standing rights, of of his his waiver Zant, 491, 467, 111 McCleskey v. 499 U.S. plea guilty than that of the other and his 517, (1991), 1454, 1468,113 542 L.Ed.2d S.Ct. Boyd this case.” courts that have considered added). Lockhart, (emphasis also Hill v. 761, Dutton, 1, 4, 759, 92 30 405 U.S. S.Ct. 52, 366, 203 474 106 S.Ct. 88 L.Ed.2d U.S. (Justice White, 755, (1972), dis L.Ed.2d 759 (1985). highest Court noted that “collat Our minuscule, that senting). The likelihood is the ordeal eral review of a conviction extends judicial scrutiny, a half decades new one and accused,” society and the of trial for both later, dependable fact be conducive to will ever-worsening during subsequent col each enlarge upon evidence finding or will breeding perpetual proceeding, lateral already considered. Id. finality of and nec disrespect for convictions essarily resulting disparagement of the right to an the defendant’s While justice system. McCleskey, entire criminal attorney importance a defen equal is of 491, 1469, supra, at at 113 499 U.S. S.Ct. “Boykin rights,” the defendant must dant’s 543, Isaac, (quoting Engle L.Ed.2d significantly prejudiced show that he was 126-127, 1558, 1571, 107, U.S. S.Ct. attorney. because he did not have (1982)). Moreover, L.Ed.2d 799-800 rights. in his imprison will not (S.D. Jenner, procedural system permits an

[a] State v. 1990). repetition inquiry into facts and a endless “It is well settled that defendant may affirmatively law in a vain for ultimate certitude waive constitutional search trial, pos- to confront and cross-examine implies a lack of confidence about witnesses, privi Fifth Amendment justice war with and to the sibilities of that cannot but incrimination.” v. Ru- underlying lege against self substantive commands.... guilty they majority and that should be insulated specifically that a 3. The court noted from a attack. criminal convictions are obtained after Cir.1992). (8th done, rightly until tan, sumed to have been 956 F.2d right contrary Raley, to coun- may appears.” also waive the Parke v. 506 U.S. defendant Thus, plea, guilty -, -, a the ab- sel. Id. 113 S.Ct. L.Ed.2d not, itself, attorney in and of a 391, here, of an sence The defendant setting aside a conviction. definition, basis collaterally previ has attacked his merely not allowed to The defendant will be convictions, contending ous not that he was mere lack of an rely on a silent record or the convictions, predicate innocent of the but error. attorney to establish a constitutional seeking deprive them of their normal force showing a an affirmative There must be purposes. and effect for enhancement “On a right of the to counsel or specific denial review, logic we think it defies collateral right of this failure to advise the defendant presume unavailability from the mere of a challenges a conviction. when one transcript (assuming allegation no Faretta, require Argersinger, and a While unavailability governmental is due to miscon explanation dangers of self- detailed duct) that the defendant was not advised of evidentiary pro- representation at a trial or Id., at -, rights.” his 506 U.S. dangers on the ceeding, such advisement added). 524, 121 (emphasis L.Ed.2d at 404. required for a valid self-representation is not “[Ejven when collateral attack on final right to when a defen- waiver of the counsel grounds, conviction rests a criminal enters a dant Cashman, regularity attaches charge. judgments appropriate “By definition, a who to final makes it He, Id., relinquishes pleads guilty assign proof his burden to the defendant.” defense. therefore, -, as to does not need to be examined 506 U.S. at 113 S.Ct. at understanding procedure.” courtroom required, L.Ed.2d at 405. The is not state quoting Dugger, 921 F.2d clause, Id. at 464 Stano adopt process pro the due one (11th Cir.1991). Any other may produce cedure over another because it requirement “fail ... to make common would results more favorable to the accused. Id. eviscerate the “chief virtues of sense” and challenges a defendant of a When speed, economy and plea agreements [ ] previous guilty plea, government — “the will Rutan, finality.” F.2d at 829. It usually, invariably, perhaps even expect a trial court to is unreasonable to ... superior [t]he access to evidence defen explain the defendant’s with the same only may be the witness who was actu dant disorderly' charged fervor to one with con- Id., ally present proceeding.” at the earlier duct, fac- the court would to a defendant at -, 524, at 121 Ed.2d 506 U.S. S.Ct. fact, charge. ing point a murder In of where at 405. jail imposed upon a defendant on a is not not, charge, he is constitution- misdemeanor Leapley, supra, we set Stuck v. Illinois, 440 ally, entitled to counsel. Scott v. shifting pattern the fundamental forth 1158, 367, 59 L.Ed.2d 383 U.S. 99 S.Ct. testing process in the for the validi burdens Hamlin, (1979); supra. Argersinger v. clarify the ty predicate convictions. To Missouri, 673, 159 U.S. also Moore v. require to first estab process, we the state 40 L.Ed. St.Ct. appears a lish that there is document judgment. Upon face to be a valid on its Upon appeal from a convic a direct showing by a the state the doctrine such given pre all the defendant must be tion regularity” applied, “presumption of is then protections possible under our sumptions and presents the credible and unless defendant However, proceeding the constitution. when there is some constitutional evidence a collater the court is in the nature of before infirmity judgment it must stand. attack, corpus action or a al as in a habeas (S.D.1987). King, v. validity predicate convic challenge to the facially to be judgment the is shown Once tions, subject intense scru it becomes to less state, proof then by the the burden of valid tiny principal There is “no upon review. that there settled, the defendant to establish every act of a shifts to than that law better in the substance of pre- a constitutional defect competent jurisdiction shall be is court of 8X0 require- is no by guilty plea. his Id. “There have been afforded rights he should

the express taking Putting court. the burden ment record show an enu- that the the express the defendant is a reason production upon by court nor an meration waiver approach, ground and has been middle by prece- able ... as a condition defendant constitutionally by valid recognized as intelligent voluntary guilty dent a Parke, su Court. United States plea” Id. was and remains The “standard Kentucky procedure, pra. which we plea represents voluntary whether the parallel noted to be to our previously intelligent among the choice alternative King, procedure, supra, Stuck open causes of action defendant.” Id. supra, “requires the defendant to King, supra, 400 Accord State v. invalidity” the fact produce evidence of once Basic, conclusionary records 879. of the de- has been shown the state. he prior specifying fendant’s convictions at -, Parke, supra, 506 U.S. voluntary knowing made a waiver of his L.Ed.2d at rights” pleading, are “constitutional before convic- sufficient to establish challenge Raising con to a constitutionally sound. tions were U.S. v. requires the defendant do more than viction (6th Cir.1989). Taylor, 882 F.2d just claim. He initiate a make a naked must challenge by presenting some credible evi challenge predi initiate a To “through his affir or other dence conviction, produce cate the defendant must Simmons, Dunn v. mative evidence.” credible to establish a to de evidence basis (6th Cir.1989), (Circuit Judge F.2d constitutionally clare his de conviction was part; Ryan, concurring dissenting part). that he fective. A bald assertion does not not create a Silent records will receiving rights is patently remember are prior convictions unconstitutional. State, insufficient. Wabasha Lownes, 499 N.W.2d 896 State v. (S.D.1980). Likewise, when tran no rights by “Specific Boykin articulation of exist, scripts reason, for whatever absent judge indispensable requi not an the trial is state, misconduct court will be plea.” to establish a site for the record valid (cid:127) noted, presumed discharged duty. its Judge to have As the Honorable Wollman (7th Dickerson, 901 F.2d Cir. sitting this Court dec when almost two 1990). impose upon the ago, require fact that we an on In order to state the “[t]he ades inquiry guilty plea establishing when record burden of not, ... require plea, also us to offer accepted does must first evidence automatically wipe out the if Boykin. no such non-compliance Dunn v. State, (Circuit inquiry Simmons, Judge made.” Merrill v. 87 S.D. Ryan, con (1973); Common curring dissenting part). part; As we 532, Godfrey, Pa. Loumes, v. 434 254 A.2d 923 recently wealth v. stated State (1969); v. Garritsen 421 State N.W.2d failed to produce where the has Cf. (S.D.1988). 499, 502, 3, n. “It is sufficient evidence that convictions were constitu the record in some when manner shows infirm, tionally may properly the convictions plea understandingly defendant entered purposes.4 used be for enhancement Quist voluntarily.” Leapley, v. 486 and (S.D.1992); Solem, has set 265, the defendant forth Logan Once 267 v. N.W.2d (S.D.1987) 714, evidentiary predicate basis which casts (emphasis 406 717 N.W.2d doubt, encourage the only record need he conviction in we would original). The show that consequences parties produce relevant evidence to assist knew of his merely area; appreciate precedent, point very South but to out much Justice Amundson’s Dakota process emerging particu emphasizing originally authorities in this discussed Randen, appeals lar the between direct v. distinction in State exception one seeks to Stuck. No is taken to collateral attacks where buffer whatsoever regular past juxtaposed when "presumption that the effect of criminal conduct his observation criminality, implicitly recognized present ity” as a which rec means which the state ognized cases re validity. It is in the South Dakota as most meets its burden of constitutional cently sweep in Lownes. the intent of this aside set forth not decision to

811 Solem, Among Logan inquiry. in this eral attacks. v. the fact finder N.W.2d (S.D.1987). are, proof inquire that would be useful of 714 Failure methods of into the course, original record and the factual the verbatim basis for a would not render a may recognize plea involuntary that these not “knowingly court file. We or violate the requirement subject the defendant seeks to made” be available when so as to unconstitutionality guilty plea claims of exhume elusive collateral attack. Petrilli v. relatively from ancient convictions. Conse- Such appropriate juris to utilize testi- quently, it is also a violation is neither constitutional nor mony specifically who recall the dictional. Id. at n. 2. The lack from those particular plea taking procedure judge inquiry factual basis does not rise level justice appeared miscarriage allowing in the court of a a collater or those who regularly to establish what the court’s nor- al attack on the the conviction “to Jacobson, ordinary procedure explain- appeal.” was in do service for an v. mal and (S.D.1992); Petrilli, rights to a defendant. U.S. v. Dicker- su ing (7th Cir.1990); son, pra, v. n. 2. also 901 F.2d 579 U.S. N.W.2d Gross (9th Goodheim, Cir.1982); Solem, (S.D.1989); F.2d 776 U.S. v. v. (7th Gallman, Cir.1990); Lownes, Newman, supra; F.2d 639 912 F.2d U.S. (8th Cir.1989). (9th Cir.1990). Dickens, F.2d 410 U.S. v. up to the court to determine It is III. met his burden of

whether ha? ALLEGED FAILURE TO ADVISE OF producing credible evidence that there was a MAXIMUM PENALTIES CREATES NO infirmity guilty plea, in his IMPEDIMENT TO OF CONSIDERATION resulting met then whether the state has its PREDICATED CONVICTIONS. specific establishing con burden stitutional defect of which evidence has been indicates that record below defendant, presented, did not occur properly pursuant Moeller was predicate the time of the conviction. 23-35-19, governed entry SDCL which Dakota law in under South Only defects claimed constitutional and/or require admonition of did face, manifestly, on their establish those that penalties as later amended. has im justice given miscarriage should be coun- statutory require properly relied tenance, purposes, by for review the court. below, 23A-7-4 and in this ments of SDCL challenge validi appeal, to the constitutional II. larceny ty grand conviction for of his THERE WAS NO BASIS FOR CHAL- burglary. This statute was not effect THE LACK OF LENGING ASSERTED proce of criminal 1976. The “revised rules FOR MOELLER’S FACTUAL BASIS attack a conviction dure cannot be used to IN NOS. 76- GUILTY PLEAS CRIMINAL otherwise valid under rules.” U.S. USED TO 54 AND 76-55 WHICH WERE (6th Cir.1991), Bradley, 922 F.2d ENHANCE HIS SENTENCE. citing Davenport, 884 F.2d (4th Cir.1989). aside, Statutory discussion Rule 11 of the Federal Rules of (factual previously held that the failure to plea) for a we have Procedure basis Criminal a defendant of the maximum sentence adopted this Court advise substance defect, (S.D.1978), and of Doherty, 677 is not a constitutional v. 261 N.W.2d State, miscarriage of does not smack of a Spirit v. 272 N.W.2d 803 itself Track Moreover, give justice. generally it does not and 23A- before SDCL 23A-7-2 Sutton, launch a collateral opportunity to an v. 317 rise 7-14 were enacted. State (S.D.1982). v. However, predicate a conviction. State failure to attack on 414 N.W.2d Solem, v. statutory provisions King, supra; see also Everitt comply with the (S.D.1987), and Goodroad So of a N.W.2d 119 does not rise to the level SDCL 23A-7 (S.D.1987). lem, Finally, issue, proper it for con N.W.2d nor is nothing is “[t]here contention that appeal, or similar collat- Moeller’s sideration on habeas dispositive, though the above factors are not that defendant knew what in the record disingenuous. they certainly penalty support lend was” is maximum State, Stacey v.

defendant’s convictions. IV. (S.D.1984). 349 N.W.2d WAITING PERIOD LACK OF HOUR PROPERLY RAISED.

NOT VI. point Initially, we wish out REQUIRED IS THE STATE NOT TO purely failed to raise statu that Moeller THAT THE CONVICTIONS PROVE below, tory challenge and has waived this USED ENHANCE SEN- TO MOELLER’S Rich, appeal. 417 N.W.2d issue WERE TENCE CONSTITUTIONALLY (S.D.1988), supra, King, 400 N.W.2d VALID, THE BURDEN UNDER HIGHER However, op we wish take this at 880.5 OF PROOF BEYOND REASONABLE clarify the law to portunity reiterate DOUBT. future in the area. Moeller avoid confusion any signifi no credible evidence offered It held has been on numerous occasions prejudice as a cant he suffered result of pred- a that the constitutional foundations for frames. “In the absence of time question icate is a mixed law that this additional time would have been questions Such must be estab- fact. or take some [the] used withdraw pre- the trial a lished court based behalf,” own there defendant’s] action [the Stuck, ponderance of the evidence. justifying post prejudice conviction re is not White, 476; N.W.2d F.2d State, 292 at 343. lief. Wabasha v. (8th Cir.1989). Moreover, significance placed should due be “guilt upon the fact Moeller’s was deter that by plea prearranged with a mined a in accord VII.

bargain opposed or ver bench THE TRIAL COURT PROPERLY AL- State, dict.” 294 N.W.2d Clark LOWED THE STATE AMEND THE (S.D.1980). TO arguendo, assuming, that Even violation, HABITUAL OFFENDER INFORMA- every á there was technical not TION. requires violation a reversal. State technical (S.D. Camp,

v. Moves á requires SDCL 22-7-11 that habit 1985). ual offender information “must be filed aas of, separate information time at the be V. arraignment. purpose fore” of this “The sec MOELLER’S 1976 GUILTY PLEAS fully tion is to insure a defendant KNOWINGLY, WERE MADE VOLUN- consequences aware conviction on TARILY, AND INTELLIGENTLY BASED principal felony count.” State v. Gard THE OF THE CIR- UPON “TOTALITY ner, CUMSTANCES.” amendments this case were done in a timely fashion to conviction. Moeller pleas Moeller contends were seriously suggest “does not that he was in knowingly voluntarily given, not consid any way prejudiced by the amendments. In ering totality of the circumstances. We that, the absence of evidence of summarily reject [Moeller’s] note this contention. We claim of error without merit.” Id. following: one, completed Moeller had GED; two, Amendments to habitual offender informa Moeller received assistance of three, counsel; providing tion allowed are defendant is the minutes reflect prejudiced. not there is repeatedly this case indicated he “under stood”; four, prejudice, experi was claimed otherwise. State v. Moeller well system. 809, justice Layton, Al- enced criminal 337 N.W.2d 814 23-35-20, taking pursuant judge charged repeal to its 5. A in 1976 was to SDCL 1, duty July immediately to the accused sentence

813 jury tion the that the state of mind of the VIII. relevant, only victim was itself but THE VICTIM OF MIND OF STATE belief of Moeller. Under the circumstances PRESENTED NOT IMPROPERLY WAS legitimate inquire it was for the state to THE JURY. TO concerning the state mind of the victim asserts that the trial court Moeller to both establish motivation for conduct allowing inquire to con in the state provide erred the victim to as well as an indication time cerning the victim's state of mind possibility may per- of the that Moeller aggravated assault. Whether the vic of the ceived this emotion. We would also note that charge tim in fear is irrelevant to the prosecutor was no made effort to utilize the of Moeller aggravated assault. The intention impact emotional of this and con- offense, not gravamen of the the belief sistently that the element of Bradley, issue, of the victim. State v. 431 N.W.2d Moeller’s intention was the not the LaCroix, (S.D.1988); v. 423 subjective N.W.2d of the victim. belief (S.D.1988); Stapleton, Affirmed. (S.D.1986). However, the victim’s important explain state of mind is WUEST, J., concurs. during her conduct the as motivation for C.J., MILLER, specially part in concurs knife, grabbed Here she Moeller’s sault. part. in result in concurs permanent injury. resulting in severe and explanation. Why she would do so deserves AMUNDSON, JJ., HENDERSON Interestingly, argued at trial that Moeller in concur result. essence, was, in an accidental action on TICE, SABERS, J., Judge, Circuit other, logical explana part. The more her disqualified. it was a defensive move to tion was or her child. diminish a threat to herself MILLER, (concurring spe- Chief Justice Historically, explain one to we have allowed cially part, concurring part). in in result Additionally, what motivation for conduct. agree adoption specially I with the write concerning gener the fear believed Moeller Court’s deter- United States to the ated in the victim is relevant issue may presume, “at mination that a state court recognized It that one is entitled assault. judgment initially, that a final of convic- least apparent testify to the observations of the purposes of sentence en- tion offered for 19-15-1. state of mind of another. SDCL validly obtained.” Parke hancement was may characteristics of fear be observ Subtle -, 517, -, Raley, 506 U.S. 113 S.Ct. Such charac able but difficult articulate. (1992). 524, 391, 121 L.Ed.2d face, sweating, trem include flushed teristics Randen, 497 N.W.2d ors, movement, noted in State v. eye subtle conduct We and other 107, (S.D.1993), any the “lack of 109 n. may give to the awareness of the rise the bur between Parke and instilling apparent conflict that he has succeeded defendant * proof we outlined Stuck.” The fact that fear did dens fear in a victim. Lownes, also State v. gives rise to the reasonable belief fact exist that a silent rec aware, (stating dicta through observa victim, create a ord would not the demeanor the tions of unconstitutional). Moreover, conviction was in fact in fear as a result of his victim was pre previously referred this court has The court here was careful to cau- conduct. * Randen, record is ing from a silent presump waiver of counsel adopt we declined to Parke's Cochran, Carnley (citing impermissible”) Boykin tion of from a silent record as (1962)); Randen, 8 L.Ed.2d agreed U.S. 82 S.Ct. rights. I 497 N.W.2d at 109. Cashman, pleas accord State with uncounseled because Randen dealt 1992) (S.D. (holding prior convic uncounseled Boykin which were silent as may sentence enhancement be used for showing tions that the defen which the state made no validly Id.; waives only purposes where knowingly counsel. see dant had waived - -, denied, counsel) 114-15, 113 S.Ct. Texas, cert. Burgett v. 389 U.S. 258, 262, (1967) ("presum- 122 L.Ed.2d 19 L.Ed.2d brief, digesting Appellant’s final In the I note regularity that

sumption of attaches Solem, refers to six decisions 383 N.W.2d that it federal and judgment. Alexander Supreme of the decisions Court South Appellant’s Reply Brief Dakota. contains burden-shifting procedure formulated by way in two new authorities of decisions in by this court Stuck this Court. is consistent with validity attaching to presumption of Parke’s approximately in There are 50 cases cited In the judgment. Stuck final a majority opinion, many the of which are fed- prior use of convictions challenged the state’s decisions, and, impacting perhaps, eral all in sentence, claiming prior his the enhance other, way modifying the one or the decision- they es were infirm as failed to convictions appears to al of this state. It me that law Boykin advised as he had been tablish Supreme are South Dakota Court decisions Dunn, heavily upon relying rights swept federal aside deference to decisions. Kentucky’s shifting burden down struck cannot, not, fully I and will vote this Stuck, as unconstitutional. scheme majority opinion unsettling the which aids (distinguishing at 477 Dunn v. Sim appears law It to me the of this state. that (6th Cir.1989) mons, abrogated F.2d line of relevant South Dakota decisions have U.S. -, Parke, by by heavy quoted been cast aside the hand of 391). In we determined the L.Ed.2d Stuck Therefore, authorities. the federal unfore- of the convictions did establish records damage, by type of writ- seeable caused voluntarily “knowingly entered his Stuck ing, Only unknown. future will is the unfold Stuck, prior pleas.” 473 N.W.2d at majority implications writing. the the simply adds that where Adoption of Parke length cannot the the simply examine nor silent, conviction is the record a writing impactual today. of this breadth is a there is heavy law, With the citations of federal it is valid, presented by absent credible evidence writer, difficult, appellate a make conviction was ob- judgment interpreting princi- valued right. of a constitutional tained violation ples legal precept of law or stare decisis or Therefore, adoption I of Parke as do not view (in by any the writer. It strikes me selected departure precedent this court. a from jurisdiction) given metamorphosis join shaped, I Justice Amundson’s concurrence through years, down law brought in to concerning Thereby, result the evidence mold scholasticism. the law mind degree shape show the state of was relevant permanent victim’s on a in its takes charge aggravated in a assault. evolution. Having part growth been a of the of deci- HENDERSON, (concurring in re- Justice period sional law in this for a state sult). one-half, not willing decade and I am citations brief contains federal State’s writings gentlemen I surrender refer throughout States five United with, such as served this Court ences to the United States Code. Further Wollman, Roger former Chief Justices Fran- more, are to the Feder there two references Dunn, Fosheim, Miller, cis Jon and Robert al Rules of Criminal Procedure and three Sabers, Morgan, to mention Justices Sentencing

references Guidelines. Acting E.W. Amundson Justice Hertz. (Said having- guidelines sentencing never applies likewise former Chief This Justice Dakota.) adopted by of South been the State Wuest, joined George majority opin- who supplemental In a submitted brief ion. Dakota, an additional United South cited, namely appellate I mention that the Supreme case Need review States Court U.S. -, Raley, process quest is a for rational Parke v. troubled out- S.Ct. addition, Through come? countless hours of academic L.Ed.2d 391 research, decisions in this cited to 42 Dakota Court thousands of South Court, Dakota law. we arrive settled South decisions. effect, testimony to that Here, other evidence or merit of the case—to affirm— the held that he failed to meet his burden magnitude of this we escapes me not —but the showing invalidity prior some competing federal and South writing, with upheld convictions and his habitual offend- I cannot hobbles me—for Dakota authorities er conviction. durability of the law. safely in the walk Further, (emphasis original). Id. in the Therefore, only in I can concur the result discussing in court held Footnote when technique in not subscribe to the and do ' U.S. -, Raley, Parke v. S.Ct. arriving at an affirmance. (1992), 121 L.Ed.2d 391 there was no reason precedent to deviate from the established in AMUNDSON, (concurring in re- Justice Stuck, supra, I sult). at that time. continue to agree depart there is no need even Randen, In State v. N.W.2d By prior adhering prece this time.* to our (S.D.1993), prior court held that a con- this dent, the decision of the trial court this regularity. carries a viction case should be affirmed. procedures to be fol- also discussed the parties agreed that and the trial court proceedings: lowed in enhancement the of mind not an element victim’s state was Recently, in Stuck v. required prove which the was in its (S.D.1991), we careful- N.W.2d against Notwithstanding case Moeller. this proof in ly outlined the various burdens of agreement, the trial court held the vic- proceedings. habitual offender tim’s state of mind was relevant to determine places the consti- [W]here attempting what Moeller was to do at the validity prior the tutional convictions time of the incident. the victim’s state Was by a motion to strike or other issue prove any of mind relevant to fact at issue means, ini- appropriate the state has an record, prosecution? obviously the On proving tial burden of the existence of Brings Plenty, not. State v. by preponder- prior valid convictions (S.D.1990). precedent of The established ance of the evidence.... clearly that the victim’s state this state shows state meets its initial burden [W]hen prosecuting an of mind is not relevant proof, shifts to the defendant the burden Stapleton, aggravated assault case. State v. prior to show that the convictions are I would not set a appears require invalid. This precedent by allowing victim’s state of the indicating prior plea transcript appropri- creep mind to into settled law as an valid, was not to that effect aggravated assault. The ma- ate element of participant plea proceeding jority opinion seems to make the victim’s (i.e., defendant, attorney, defendant’s aggra- of mind an additional element of state etc.), prosecutor, judge, (emphasis vated assault. (footnote original) and citations omit- question proba- The next is to consider ted). having impact on bility of this evidence Stuck, In we held that state met its Mitchell, jury verdict. State proving initial burden of (S.D.1992). Considering Moel- validity prior challenged convictions incident, during the I do not ler’s conduct by submitting corpus petitioner a habeas prejudicial find admission of this evidence that, showing convictions records mandating ver- error a reversal guilty- petitioner entered his the time dict. pleas, fully of his constitu- he was represented by rights and coun- tional petitioner failed to offer

sel. Because the indicating

plea transcripts any and failed to offer

pleas were not valid n Parke, any statutory procedure such a de- adopted for Court ruled the United States procedure Kentucky’s Dakota’s has validity termination. South statu- on the constitutional prior opin- by precedent determining in our tory procedure of a been established legislature has not ions. conviction. Our state

Case Details

Case Name: State v. Moeller

Court Name: South Dakota Supreme Court

Date Published: Jan 26, 1994

Citation: 511 N.W.2d 803

Docket Number: 17886

Court Abbreviation: S.D.