State v. Richards
640 N.W.2d 480
S.D.
2002
Check Treatment

*1 Therefore, we affirm erroneous. the deci- and

sions both OHE the circuit court

this case. SABERS, AMUNDSON, and

KONENKAMP, Justices, GORS, Justice, Acting concur. Barnett, General, Mark Attorney John Strohman,

M. General, Attorney Assistant Pierre, Dakota, South Attorneys for plain- appellee. tiff and 2002 SD 18 Bryan Andersen, T. Office of Public De- Dakota, fender, STATE of South Plaintiff Rapid Dakota, City, South Attor- Appellee, ney for defendant and appellant. GORS, Acting Justice. RICHARDS, Bevis R. Defendant pled [¶ 1.] Bevis R. Richards guilty to Appellant. escape and was sentenced to serve seven No. 21935. years in the penitentiary consecutively to Supreme Court of South Dakota. the sentence already he was serving. On appeal he contends that he did not under- on Considered Briefs Nov. 2001. stand the nature and consequences of his Decided Feb. 2002. not, because the trial court did required by 23A-7-4, inform him

of the mandatory minimum penitentiary sentence. We reverse and remand. FACTS 26, 2000, May On Richards was sentenced to five penitentiary for third offense On July DUI. Richards, who was housed at the Commu- nity Hills, Alternatives of the Black did not return from work release. apprehended was February charged with escape, 22-11A-1, as defined from the custody of authorities of the South Dakota State Penitentiary, in violation of SDCL 22-11A-2. At arraignment court advised Richards: THE COURT: At this time it’s been [sic], alleged, Mr. you Bevis were custody of the State of South Dakota under supervision of the South Da- kota Penitentiary you and that *2 request That’s our the 10th of MR. ANDERSEN: custody from that escaped Honor, too, go past is not you the Your that If this is found to be July, 2000. years. the minimum of seven case, penalty a facing maximum you’re the where penitentiary return to He’ll $10,000 both. years, fine or of ten portion seven-year a his got good he’s trial, jury a or right have a to You from the and it’s sentence DWI’s left against confront witnesses right a to get parole doubtful that would he even self-incrimination, you, right against a on those. to testi- right subpoena to witnesses court and After Richards addressed the any hearings. or you for at trials fy him, court con- questioned the court plead guilty, you’re presumed If not you fit to legislature cluded has seen “[t]he prove and the must innocent State to be give years me no choice as the seven far as you did a reasonable doubt that beyond going you.” all I’m and that’s to they say you did in the Informa- what a unani- must convince tion. The State DISCUSSION your guilt this jury county mous that Richards contends he should [¶ 6.] you a reasonable doubt before beyond be allowed to withdraw his convicted. could be court, accepting because before But if you plead guilty. if wish may You failed 23A-7- plea, under SDCL waiv- plead guilty, you’d be you should 4(1)(Rule 11(c)), man to him of the advise rights I mentioned earlier. ing the While he did sentence. words, you right not have a would other his claim of a violation of present not trial, against not have a self- right to a 23A-7-4(l) court, to trial this SDCL incrimination, you’d admitting be error. appeal plain Court reviews doing alleged what’s in the Information. Nikolaev, 142, 619 v. 2000 SD State rights? understand youDo these 244. that Richards informed the court affecting “Plain errors or defects sub rights prepared he understood his and was may although rights be noticed stantial accepted the plead guilty. to The court the attention they brought were not voluntary a finding 23A-44-15; free and after v. a court.” SDCL (S.D.1989). a rights and factual basis. Baker, waiver Hernandez-Fraire, United States See sentencing, At the State Cir.2000)(Rule (11th F.3d mandatory mini- requested the previously presented 11 violations not mum sentence: plain are the trial court reviewed Honor, my Your it’s MS. THOMAS: error). that understanding there is ¶ Id., at at 245. 2000 SD 142 minimum under these circumstances 23A-7-4(1) provides: penitentiary. in the seven state may portion that sentence not—no And or nolo accepting plea Before may So suspended. must address contendere court request court, at this time State would sub- personally open at the mandato- impose this Court least § 23A-7- exception ject to the stated my years. minimum of It’s ry of, him inform and determine there understanding is no restitution understands, following: he matter. this (1) charge nature of offered, you. Thank Counsel? THE COURT: law, penalty provided by if Escape 4 felony, is Class 22-11A-2, a maximum any, possible penal- penalty and the maximum of ten law; years imprisonment ty provided by penitentiary $10,000 22-6-1(6). and a fine. SDCL A responsibility is the trial court’s in *3 conviction as a result escape punished of mandatory form a defendant of the mini by a mandatory minimum sentence: mum penalty and the maximum possible § A conviction under 22-11A-2 as a re- Wilson, penalty provided by law. State v. sult of an escape Department from (S.D.1990). 459 N.W.2d 457 custody Corrections shall punished be 11, [¶ 8.] Under Rule there must by a mandatory sentence the state compliance. be substantial State v. Niko penitentiary of not than less ¶ laev, 142 2000 SD at 619 N.W.2d at years, may which suspended. not be Sutton, 246. In State v. suspended Probation or execution of (S.D.1982), 415 this Court reversed a may sentence not form the basis for guilty plea because the trial court had not reducing time of incar- informed the right defendant of his to a ceration required by this section. jury Tripp trial in County. This Court SDCL 22-11A-8. informing added the defendant that 23A-7-4(l) obligated right he had a jury to a trial in Tripp trial court to inform Richards of the man- County at the preliminary hearing would prescribed sentence not be substantial compliance. Due pro 22-11A-8. did not do so. required cess the defendant in formed at arraignment pled before he [¶ 11.] While this Court has discussed State, guilty. See Croan v. 295 N.W.2d the consequences of a failure to advise aof 728 (S.D.1980)(guilty plea invalid where maximum penalty in the context of collat- defendant was never advised that he had a eral attacks to pleas,1 it has not constitutional statutory right to a implications discussed the of the failure to speedy public trial County.) Yankton advise a mandatory minimum sentence Accord, State, Violett v. 295 730 N.W.2d in the context of a direct appeal. The (S.D.1980); State, Blindert v. has, N.W.2d Supreme North Dakota howev- (S.D.1980). er. (S.D. King, 1. In State v. 400 N.W.2d 878 proce- inconsistent with the demands of fair 1987), King dure, collaterally attacking was two given relief cannot be in a collateral prior contributing convictions to his DWI guilty plea attack on a conviction based on third. The trial court did not advise him of compliance failure of Rule 11 when the pursuant the maximum sentence to SDCL plea was taken. 23A-7-4. The Court embraced Keel v. United Moeller, (S.D. In State v. 511 N.W.2d 803 States, (5thCir.1978) 585 F.2d 1994) the Court noted that failure to held: with SDCL 23A-7 does not rise to the level of proper constitutional issue and is not for Regardless principal ap- of what of law is corpus consideration of habeas or similar col plied appeals, in direct we hold that when a lateral attack. The failure to advise defen collateral attack is made on dant of a maximum failure of the sentence under SDCL literally district court to com- defect, ply 23A-7-4 is not a constitutional with new Rule the defendant in and must prejudice show qualify miscarriage in order itself does smack not justice, 2255 relief. opportu the absence of a funda- and does not rise to an inherently nity mental defect which results in predi launch a collateral attack on a miscarriage justice, or an omission cate conviction. Schumacher, 452 trial court’s statement express In State not, an (N.D.1990) record of applicable the court did minimum sentence eliminates inher- equivalent to the North Dakota pursuant danger misinterpreting ent whether 23A-7-4(1), advise Schumacher of SDCL plead guilty defendant’s decision prior sentence knowledge made with full of the was in Rich guilty plea. As accepting imposed which must be as a ards, argued there was sub the State plea. of that Schumacher. That result 11 because compliance stantial not appear advice does on the record sentencing counsel at the Schumacher’s trial court before us. When the does man imposition of the hearing requested not advise manda- The court minimum sentence. datory *4 in tory minimum sentence accordance said: 11(b)(2), jus- Rule the interests of with minimum mandatory fact that the The that the be al- require tice procedure was discussed sentencing plea guilty. lowed to withdraw his of sentencing argued by counsel at the Schumacher. accept- plea after the had been hearing, See, al, 5 R. LaFave et generally, Wayne ed not cure the failure to does 21.5(d) (1999). Procedure We Criminal 11. The requirements with the of Rule persua- North rationale find the Dakota procedure of the outlined purpose sive. 11(b) the defen- is to ensure that 23A-7-4(1) Under SDCL the [¶ 15.] consequences aware of fully dant is inform a duty trial court has to defen plea. his plea before he enters guilty penalty minimum dant of the is not evidence purpose That satisfied maximum possible penalty. and the counsel the issue showing that raised importance advising a defendant sentencing after the during proceedings, penalty minimum cannot be denied since a made plea accepted. had been an penalty is absolute Schumacher, 452 N.W.2d at 346-347. only possi penalty while a maximum is that The Schumacher court held [¶ 13.] clear that the bility. Here record is min- failure to advise court did not advise Richards trial imum sentence: according mandatory minimum sentence technical, harmless error is more than 23A-7-4(1). the dictates of SDCL Conse in- a manifestation of and demonstrates record not indicate that quently, the does justice. v. 278 Gustafson, See State understood the nature conse Richards (N.D.1979). conclude 358 We Wika, See, plea. v. of his State quences trial not advise that when the court does (S.D.1991). The interests mandatory mini- the defendant require Richards be allowed justice with Rule mum accordance plea. his to withdraw 11(b)(2), justice require the interests of is Accordingly, judgment re- [¶ 16.] with- the defendant be allowed to remanded allow versed and case guilty. draw his plea. to withdraw his Richards Schumacher, 452 N.W.2d at 348. AMUNDSON, SABERS and [¶ 17.] Supreme The North Dakota Justices, concur. further elaborated Justice, (N.D. GILBERTSON,

Schweitzer, Chief Justice, KONENKAMP, 1994): dissent. GILBERTSON, (dissent- Chief Justice not move to withdraw plea upon his hear- ing). the minimum ing penalty at A sentencing. defendant is entitled to move to withdraw respectfully I dissent. until such up time as the sentence undisputed is imposed. SDCL 23A-27-11. At a bare court failed to advise Richards of the man minimum, Richards could have moved to escape, sentence for guilty plea withdraw his when the State’s 23A-7-4, required by up until the Attorney my stated “it’s understanding sentencing hearing. time of the that there is a mandatory minimum under was, however, informed of the minimum these years circumstances of seven penalty pronounced. before sentence was penitentiary.” state He had a second op- This procedural flaw is not sufficient to portunity when the judge stated “the sentencing withdraw a once has [Legislature has seen fit give me no Timmreck, occurred. See United States v. choice as far as the and that’s U.S. S.Ct. 60 L.Ed.2d 634 all going Instead, I’m you.” de- (1979) (holding collateral relief not avail simply fense counsel agreed able to defendant only who shows violation Attorney State’s and requested the seven- requirements formal of Rule 11 and no *5 year minimum imposed. prejudice). majority attempts to make precedent,

[¶ 21.] Under this Court’s an artificial distinction between failing to required prejudice Richards is to show advise defendant of the Moeller, mandatory maxi granted. before relief can be See mum 809-10; penalty, as King, 511 N.W.2d at decided this Court in Moeller, King at 880. and failing to advise the defendant minimum pen Regardless what principal [sic] law alty, alleged as herein. I do not find applied appeals, direct we hold that See, North Dakota rationale persuasive. when collateral attack is made aon e.g., States, Holmes v. United guilty plea for failure of 876 F.2d the district (11thCir.1989) literally court to new (holding failure 11, the to inform prejudice ten-year must show defendant of in order to qualify fundamentally sentence not “so defective relief the absence of a fundamental defect complete to result miscarriage of inherently results miscar- justice, or inconsistent with rudimentary riage justice, or an omission inconsis- procedure.” Keel, demands of fair (quoting tent with the of fair procedure, demands 114)); Rouse, 585 F.2d at State v. 206 Neb. given relief cannot be collateral (1980) (holding attack on a plea conviction based failure to advise defendant of maximum or on failure 11 compliance of Rule when minimum penalty “did not prejudice the was taken. rights of the defendant or result in mani King, Keel, injustice.”). Therefore, 400 N.W.2d at (quoting 585 fest I affirm would 113) added). (emphasis F.2d at judgment of the trial court in this case. neglected has to show sufficient evidence KONENKAMP, Justice, joins

that he would changed have had this dissent. he been notified of the consecutive seven- year minimum sentence required

offense of escape. Furthermore, Richards failed to

preserve his claim for appeal when he did