State v. Randen

in fear for her she had been reflect that health, to use

life, elected limb testimony practitioner

high-powered only healing arts as the direct alleged apprehension of the victim’s

about bodily injury. judge spe- The trial

serious testimony on

cifically noted that call the fact find-

element was a close possible without this

er/jury. It is the ultimate issue the

expert had, that the victim

jury could have found bodily inju- sustained a serious actuality, requires harmless error rule

ry, but the This possibility. a mere rule

more than beyond

requires this court to be convinced jury would

a reasonable doubt Lybarger this im-

have convicted without testimony. expert I

proper high-powered beyond a reasonable

am not so convinced Although this defendant is not enti-

doubt. trial, injection of perfect erro-

tled by State

neous evidence into the record Lybarger

denied a fair trial. and re-

I reverse this conviction so

mand the case

new, can had. fair trial Dakota, Plaintiff

STATE of South Appellee, RANDEN,

Craig Lee Defendant Appellant.

No. of South Dakota.

Supreme Court 3, 1992. Sept. on Briefs

Considered

Decided March

ing DUI Randen with offense (SDCL 32-23-4.6) upon prior based DUI 21, Coding- convictions on: October Dakota; 25, County, February ton South County; and, 1988 in October 23, County, Dakota. Hughes South 1991, pre- August Randen filed a On trial motion for a determination that alleged in Part II in- prior convictions and, constitutionally invalid formation therefore, a convic- available fourth offense DUI. The motion tion for pretrial hearing denied after a motions September on On October Randen entered guilty plea charge driving while having more of in his or alcohol 0.10% plea pursuant was entered blood. bargain involving plea the terms driving alternative while dismissal charge of alcohol and under influence charge personation. of false Part II took The trial information trial, place During October fingerprint state submitted evidence to es- was one tablish Randen and the of DUI person previously convicted Geagh- Barnett, Gen., Frank Atty. alleged Mark dates information. an, Gen., Pierre, plaintiff objection, Over Randen’s Atty. Asst. judicial pertinent por- also took notice appellee. of the tions records convictions. Stonefield, of Public Michael Office S. trial, At the close Randen moved for a

Defender, City, Rapid acquittal the basis appellant. to establish constitutional validity of The mo- convictions. WUEST, Justice. and the trial found tion was denied (Randen) appeals his Craig Randen Lee guilty A Randen of fourth driving while fourth offense judgment was entered on November (DUI) 1 of alcohol We under influence 1991, sentencing years Randen to five reverse remand. penitentiary. appeals. ISSUE FACTS THE TRIAL 15, 1991, infor- WHETHER COURT August state filed an On IN ERRED ALLOWING USE OF TWO charging mation Randen with one count INVALID CON- CONSTITUTIONALLY driving of alcohol under the influence while SUSTAIN RANDEN’S VICTIONS TO (SDCL 32-23-1(2)), an alternative count CONVICTION FOR FOURTH OFFENSE driving having more of alco- while or 0.10% DUI? 32-23-1(1)) (SDCL and one hol in his blood 22-40-1). (SDCL personation plea count of false cannot stand “[A] charg- indicates unless the in some manner a Part information record filed decision, 1(2)) having acronym driving or more of used while 0.10% 1. As in this (SDCL 32-23-1(1)). applies driving offenses while both the alcohol the blood (SDCL under the influence of alcohol 32-23- valid, of the three to that effect intelligent waiver free and [Boykin participant mentioned in rights constitutional defendant, Alabama, (i.e., attorney, (1969) self-incrimination, etc.), prosecutor, judge, L.Ed.2d ] — under (footnote trial —and an omitted). original) confrontation and citations consequences of the nature and standing of Stuck, met we held that state its Erickson, 85 S.D. plea.” Nachtigall v. proving the initial burden of constitutional (1970). 122, 128, 201 Con 178 N.W.2d prior challenged by of convictions a upon guilty pleas obtained victions based corpus petitioner by submitting rec- used en Boykin of cannot be violation that, showing ords at the convictions offend under the habitual hance a sentence pleas, petitioner guilty time the entered his 383 N.W.2d 854 King, er statutes. fully he advised of his constitutional Garritsen, 376 (S.D.1986); Application of rights represented by and was counsel. (S.D.1985). principle ap This 575 N.W.2d plea petitioner Because to offer pro equally DUI habitual plies indicating pleas transcripts prior that the Escalante, N.W.2d ceedings. v. 458 any were not valid and failed to offer other (S.D.1990). 787 effect, we erro- argues that the Randen he failed meet held that his burden prior of his two neously allowed use invalidity prior in the convic- County to sus- Codington convictions upheld his habitual offender con- tions and offense DUI. tain his conviction viction. is because the records of He contends this present The is true in the compli- fail to establish those convictions The important with one distinction. rec courts’ Boykin plea-taking ance with prior Codington County ords of the two acceptance guilty pleas on which challenged by plainly Randen convictions convictions were based. that he did have the assistance indicate Leapley, v. 473 Recently, Stuck pleas when he entered the counsel careful 478-79 we the convictions were based. proof in ly outlined the various burdens of minutes from the 1986 Court proceedings2: habitual offender state, pres County plea proceedings “Deft places the consti- the defendant [WJhere minutes from ent w/o Counsel.” Similar validity of the convictions tutional state, plea proceedings “deft 1988 motion to strike or other issue present counsel.”3 w/o means, has an ini- appropriate tial existence ], burden “In v. Tucker 404 States [United by a preponder- convictions valid 92 30 L.Ed.2d 592 U.S. S.Ct. ance of evidence.... (1972), held that un- Supreme Court of Gide convictions violation meets its initial counseled state burden [W]hen U.S. 83 S.Ct. Wainwright, 372 burden shifts to defendant v. proof, the (1963),may 799 not be used are 9 L.Ed.2d show of require punishment another appears to enhance invalid. This Johnson, v. indicating prior plea fense.” United States transcript — U.S. -, holding in Stuck at the Recently, Raley, ture from our 2. in Parke v. (1992), United 121 L.Ed.2d 391 time. upheld, pro Supreme under a due States challenge, cess the allocation of the burden of conviction relative to Kentucky pro proof in the that, represented "the does recite Defendant decision, high paid defer cess. In its Nevertheless, competent ...” counsel contemporary practice range ence concerning submits, the handwritten minutes from proof allocation indicating appeared he without deference, proceedings. Given that recidivism question raise a over are sufficient to counsel apparent conflict between and the lack represented coun- he was or whether Parke and burdens of we outlined plea proceedings. sel in Stuck, depar- supra, perceive no reason for we However, Gallman, also, Cir.1985). 643 n. See F.2d Clark, (N.D.Ill. F.Supp. 861 right to counsel U.S. may waive his 1990) (if copy certified after such obtained and a conviction face, shows defect such as lack of a later used to enhance may be waiver counsel, remains with Pallais, See, sentence. validity). the conviction’s to establish Cir.1990) (where circum- convincingly showed that defen- authorities, stances upon the in or- Based above to counsel knowingly waived dant der to use Randen’s Coun- previous conviction prior proceeding, ty to enhance his sentence for punishment for to enhance could be used DUI, fourth offense the burden remained offense). also, later criminal Greene with state to show that he either had (11th Cir.1989) (unless entering of counsel in his Cod- assistance counsel, right his un- waived defendant County ington pleas knowingly, or that he guilty plea could not be used counseled voluntarily intelligently waived his subsequent for a of- enhance his sentence See, right proceedings. to counsel in those fense). Luna, (where 772 F.2d at 450 records of prior convictions show defendant was not Gallman, 907 F.2d 639 In U.S. v. represented by stages at all critical counsel Cir.1990), Ap- Circuit Court of the Seventh prior proceedings, burden shifts to state proof in ha- peals outlined the burdens represented). defendant was proceedings in terms simi- bitual offender also, Greene, (on 880 F.2d at 1303 direct recognized by this court in lar those appeal, government burden Stuck, supra: proving right effective waiver of to counsel that a government has shown [0]nce prior guilty plea proceedings where it is prior three “violent felo defendant has undisputed unrepresented defendant was convictions, rests with ny” the burden Accord, guilty plea). when he entered his that the conviction the defendant to show Orr, (N.D.1985) 375 N.W.2d 171 See, United was unconstitutional. (state prosecuting motorist for second of- Taylor, 882 F.2d States presumptively fense DUI based on void (once (6th Cir.) government introduces prior conviction entered on uncounseled conviction, certifying valid record showing had burden of defen- defendant), modified, 1989 WL shifts right dant had counsel or his waived (1989); U.S.App. Lexis 19644 in prior proceeding). counsel Black, 772 F.2d Luna v. Here, Cir.1985)(for proof to shift to state failed to establish that Ran- knowing- that he government, accused must introduce den either had counsel or ly, voluntarily intelligently was un waived his that conviction constitutional). prior Codington to counsel in the Accordingly, cases. state Gallman, (footnote at omit- establishing failed in its burden of the va- ted). However, also cau- the Circuit Court lidity those convictions and the trial tioned: erroneously judicial took notice of the circumstances, example, In records of the convictions in order to sus- where the certified record of conviction for fourth offense tain Randen’s conviction face that the conviction indicates on its unconstitutional, was the defendant’s automatically the de- 412 N.W.2d 881 burden is met and introduce no evidence at all. this court held that where the fendant need Gantt, See, produce 659 state failed to sufficient evidence e.g., United States (where (W.D.Pa.1987) offender status F.Supp. 73 certi- of the defendant’s habitual sentencing during “on its his first enhancement fied record of conviction shows jeopardy clause of proceeding, face” that defendant was without benefit the double counsel, bar a second had burden of the fifth amendment would However, otherwise). proceeding. enhancement

m procedural dant convicted of a analysis of the unusual was criminal offense close Aspen important involved in as a in a sentenced scenario case. The disposition separate proceeding. During our convicted of a was proceeding, defendant contended trial and then offense after prior one of four convictions the state Thus, victions briefs. hearing and petition been challenging, fendant ceedings appeal, court ings, than mand viction. record established the proceeding, evidence fendant dence of dant’s court should lying conviction. fense DUI. important distinction for mining dy. cedure violated admitted sustain In contrast one of resentencing. During resentencing on the defendant’s under- prior conviction Accordingly, used to any presenting judicially in the the record state honored the state’s the matter prior convictions in the whether double we held Randen’s conviction for fourth of- to the habeas later filed a in his for relief.4 The defendant information for state submitted As agreed enhance his sentence. Rather with the habeas the record before the trial at that habeas noticed principles explained that we remanded to the convictions sufficient granted point not devoid of case was to submit records challenged by habeas convictions that had stage court, state Instead, corpus jeopardy devoid validity of during the trial on to its purposes of appealed resentencing pro- in time. The de- time, sentencing of double the below, the defendant’s request corpus resentencing present action. The of corpus pro- the prohibits a record of this is an proceed- and, case on the de- jeopar- habeas matter status. defen- to re- action deter- court con- con- evi- had been had been pardoned. When it was revealed dant’s held that vented the state submitted resentence the defendant as a fender enhanced sentence was invalid corpus ment doned, the U.S. District Court declared the consideration of the conviction for enhance- ever, tence sentencing proceeding. The District Court subsequently affirmed and the jury’s Burks Id., that below. has S.Ct. evidence was set aside for error late ognized an Clause bars dant’s conviction following analysis: Burks v. United alleging purposes. the defendant bar the at succeeded court ^[*] contention, using the Double action, Eighth Supreme 18 [98 verdict, the double then announced during pardoned. Despite convictions was based enhanced ^[*] excéption another a retrial for enhancement retrial of the defendant asserted his insufficient S.Ct., L.Ed.2d Circuit Court of in getting held that the is reversed had, ^[*] Jeopardy as a sole States, jeopardy later attempting that at to Double reversed, offering sentence 1] a the same 2150], ground ^[*] decision. How- fact, federal habeas when (1978), conviction not to sustain his conviction Clause general because intention to proceedings habitual clause the defen- ^[*] been ... Jeopardy purposes an to resen- offender a defen- Appeals original allowed we invalid. charge. appel- upon does who par- rule pre- rec- ^[*] one [98 of- sentencing new for a enhancement remand that a Burks was careful point out case. instant proceeding evidentiary in- based.solely reversal Nelson, fundamentally different sufficiency has Lockhart pur- jeopardy double 285, 102 (1988), implications, defen- L.Ed.2d 265 inaccurate, offend- originally admitted his habitual Although procedurally per- it is fendant result, and, was relieved corpus as a haps the habeas er status of assistance to view until proceedings as proceedings. corpus as the de- enhancement inasmuch quantum on such than a reversal based evidence which is poses, considered ordinary reviewing “incorrect “trial errors” as the court. rejection of evidence.” 437 Permitting retrial in is this instance S.Ct., 2148-2149], at 14-16 at governmental [98 oppression the sort at finding the former is in effect While Jeopardy which the Double is Clause prove “that the has failed aimed; rather, it serves the interest defendant, against case” the lat- oppor- affording the defendant him an respect "implies nothing ter with tunity readjudication fair “obtai[n] defendant,” guilt or innocence of the but guilt Burks, free from error.” simply “a determination that has [he] S.Ct., supra, 2149], at at Had the [98 through judicial process convicted been defendant offered evidence at the sen- fundamental defective tencing hearing that the convic- S.Ct.,

respect.” at at Id. 15 [98 2149] nullity by tion had become a reason added). pardon, judge presum- appears dispute beyond to us to be It ably prosecutor op- have allowed the an this is a situation described Burks portunity to offer evidence of another reversal for “trial error” —the trial support conviction to the habitual particular admitting erred in charge. today holding Our evidence, piece of and without there merely thus recreates the situation that insufficient would have been obtained if the trial clearly But conviction. with court had excluded the evidence, enough sup- there was conviction because of the of a port the sentence: the court and had pardon. Burks, Cf. our discussion in copies them certified four before S.Ct., supra, at 6-7 [98 2144-2145]. felony convictions, that is sufficient Lockhart, 39-42, 488 U.S. at support a un- to verdict of enhancement 290-91, (citations 102 L.Ed.2d at 272-75 der the statute. See Ark.Stat.Ann. 41- § omitted) (emphasis original). footnotes (1977)(current at Ark.Code version principles these Applying in would (1987)). Ann. 5-4-504 The fact that § yielded have the same result. In of the had been later one no of the defendant’s convic- pardoned by the vitiated its Governor presented tions was the when effect, deprive legal but it the did state was to its of convic- copy of certified of that conviction corpus proceedings. tions in the habeas probative It value under the statute. Thus, totally the evidence was insufficient quite opinion clear from our Burks the sustain offend- habitual reviewing consider all that court must short, er conviction. In the state failed to evidence admitted trial prove its case. The habeas court’s remand in deciding per- retrial is whether was, to the court for what Jeopardy missible under the Double essence, pro- second habitual offender indeed, that was the ratio deci- Clause— ceeding gave opportunity state another Burks, dendi at 16-17 see supply evidence which it failed to muster S.Ct., at the over [98 2149-2150] — and proceeding. pro- This is a result whelming majority appellate courts Jeopardy hibited un- Double Clause considering agreed. question Burks, supra. der exception basis for the to the Burks general instance, for however, rule is that a reversal insuffi this In ciency of the be clearly evidence should treated sufficient dur submitted differently grant ing no than a trial court’s II trial Part offend ing acquittal at the close er information to sustain fourth Randen’s pass invalid, all evidence. A trial court offense DUI conviction. Like the on such ing Lockhart, a motion all of pardoned considers conviction in fact admitted, evidence it has and make the were two of Randen’s analogy complete this guilty pleas must be based on uncounseled vitiated

H3 HENDERSON, (concurring deprive them Justice but did not legal effect their Thus, dissenting part). part; Randen’s probative value. of their not reversed conviction is September February As the 1986 and insufficiency for the evidentiary but for from 1988 convictions incorrect court’s error trial constitutionally valid were not Lockhart, a reversal Under evidence. Information, prohibit a does not retrial this foundation have been convicted DUI Second Of- charge. Accord- on the habitual fense, rather than DUI Fourth Offense. conviction for Randen’s ingly, we reverse aspect I join majority DUI and remand a new opinion. infor- II habitual offender trial on the Part I Essentially, part company with the ma- mation. jority opinion on its ultimate conclusion AMUNDSON, J., very MILLER, C.J., found in its last sentence. Under sentence, last Randen’s conviction for concur. case Fourth Offense is reversed but the SABERS, J., specially. concurs Part II remanded new trial HENDERSON, J., part concurs in Information. A new tri- Habitual Offender in part. dissents held; rather, al should should be reversed remanded SABERS, (concurring specially). Justice resentencing. prior Codington two The records of the Aspen, 412 challenged by Randen County convictions resentencing procedure held the vi- he plainly did not have assis- show principles jeopardy. olated double when he tance of counsel entered Bar, case at State failed establish pleas which the convictions based. Codington County con- from the Court minutes produce evi- it failed to victions because state, pres- County plea proceedings “Deft dence, i.e., sufficiency of evidence es- counsel.” Similar minutes ent w/o knowingly, had intelli- tablish that Randen state, “deft proceedings voluntarily gently, and Nor had Randen present w/o counsel.” counsel. State had intelligently knowingly, voluntarily and in requirement proof. it failed its this right counsel. (N.D. Orr, 375 N.W.2d 171 v. Cf. State Despite persuasive this evidence of Nelson, 33, 1988). 488 U.S. Lockhart convictions, the trial illegality of the two 285, (1988) 265 109 S.Ct. 102 L.Ed.2d in evi- court received two convictions pardon. inapposite for it involved guilty on and found Randen dence When State introduced of fourth offense DUI. We II information convictions, challenged ground that this reverse on the them, proceedings re and the lower court resulting error in the evidence present but without counsel. flected he was conviction, insufficiency than rather (8th Black, 772 Under Luna 412 as evidence occurred of N.W.2d Cir.1985), shifted to the the burden States, 881 and Burks United also, v. Gall United States State. See 1 437 98 S.Ct. 57 L.Ed.2d Cir.1990), man, cert. (1978). — denied, U.S. -, 111 S.Ct. Therefore, be reversed the case should (1991). for It did not come L.Ed.2d 219 rather than for a new trial and remanded Now, permit a sec Court will ward. this Lockhart, resentencing. 488 U.S. attempt muster ond trial for 285, 102 In this L.Ed.2d 265. time produce the first it failed to sense, clearly distinguishable this case around. it does constitute United The Fifth Amendment apple." As- prohibited “second bite added). provides pertinent States Constitution pen, proof. This was not “trial to adduce subject for shall ... be person part: “No error,” i.e., jeopar- error,” inepti put was “state to be twice ” Dakota for, indeed, South the valid life or limb.... it failed to dy of tude personal protects County convic Constitution ity of the two VI, provides: Article and in States, § also, v. United Greene tions. denied, compelled person Cir.1989), shall cert. No 880 F.2d 1299 against give 108 L.Ed.2d 110 S.Ct. jeopardy put twice himself or be (1990). same offense. decision, notwithstanding By this Court’s burden, Randen meet failure to State’s He is second trial. through a go now

must He is forced jeopardy.

being twice alleged of the same

to defend twice Simply because why? And

fense. proof, State, the burden carried

Case Details

Case Name: State v. Randen

Court Name: South Dakota Supreme Court

Date Published: Mar 3, 1993

Citation: 497 N.W.2d 107

Docket Number: 17765

Court Abbreviation: S.D.