State v. Wika

reasoning of that dis- (dissenting). apply the HENDERSON, come Justice sent. decision in State v. as our As recent (S.D.1990), by Legisla-

Reed, been taken the 451 N.W.2d No heed has Henderson, J., my dissenting, diligently attempted I reiterated they have ture and in perusal statutes South position statutory the GBMI scheme. correct "These stat- are unconstitutional: Compiled Dakota Laws dem- Dakota South process cor- of due badly in need utes are Legislature has done onstrates that appealed 411. Reed had rection.” Reed criteria of Vitek. Un- nothing to meet the mentally ill guilty but his convictions 23A-27-38, prison Dakota der SDCL South on two counts (GBMI)following jury required anything to do are not officials Baker, v. Aggravated Assault. State rather, language is prisoner; treat the (S.D.1989),I also dissented 440 N.W.2d prisoner. merely examine the confined unconstitutionality of grounds nec- is determined to be Even if treatment statutes, my in two set forth the GBMI available, prisoner (Bailey essary Solem, dissenting opinions in Robinson v. vegetate case) may be allowed to with- 246, (S.D.1988) 252-58 432 N.W.2d “If under SDCL 23A-27-38: out treatment Robinson, 327-30 399 N.W.2d v. State sentenced to the state the defendant is case, (S.D.1987). In the 1987 Robinson ex- penitentiary undergo further shall Sabers, majority writer in this Justice may given treatment amination and on the uncon- joined my rationale opinion, indicated his men- psychiatrically is for statutes of this stitutionality of the GBMI mine). I (emphasis supplied tal illness.” reason, alia, inter state for decision, Court, any in this join cannot as set forth criteria was followed approves of a expressly impliedly Supreme Court Vitek the United States Penitentiary to the State where sentence 480, 494-96, Jones, 100 S.Ct. v. 445 U.S. man, Bailey, found such as has been 1254, 1263-65, 565-67 63 L.Ed.2d mentally guarantee ill unless there is but case, again I (1980). In the 1988Robinson Dakota of treatment. The State South constitutionality of GBMI attacked the Board, and the Warden of and its Parole majority writer of Again, the statutes. Penitentiary, should be mandat- the State decision, follows: “Al- expressed as In- help mentally ill. to secure though my belief that SDCL I maintain ill, mentally without carceration of the for reasons is unconstitutional 23A-27-38 treatment, is barbaric. Henderson's dissent expressed in Justice I, in the result of this I concur Robinson basis that Robin-

part case on the challenge constitutionality son’s premature.” In the 1988 is 23A-27-38 decision, J., Morgan, concurred Robinson Dakota, Plaintiff STATE of South part. He part in result and concurred Appellee, expressed: is reluc- My first issue concurrence v. Robinson, 399 N.W.2d tant. WIKA, Philip P. Defendant (S.D.1987), strong dis- there was Appellant. mem- representing the views two sent No. 16927. think that the views of this Court. I bers premature and that were that dissent Dakota. Supreme Court of South I wish that why therein. concurred Sept. on Briefs 1990. Considered of that legislature take heed to correct diligently as dissent and strive 2, 1991. Decided Jan. change statutory as it has scheme might avoid a proof. burden majority possible problem future when has that the time

possibly would decide Wiest, Gen., Atty. Pierre, D.

David Asst. Gen., Pierre, (Roger Tellinghuisen, Atty. A. brief), plaintiff appellee. Miller, Falls, for Steve Sioux defendant appellant. MORGAN, Justice. (Wika)

Philip appeals P. Wika from a judgment of conviction for sexual contact age with a under the of 16 and the .child denial of his motion to withdraw his nolo charge. same We affirm.

FACTS 13, 1988, charged

On October Wika was in an indictment with two counts of sexual age child of 16 contact with a under 1) (SDCL 22-22-7 and one count of first degree rape in 22-22-1 violation of SDCL (4)2 (sexual penetration person with less 1. We note that several ch. ch. years person, such other is less than three another who Any person, 1988, knowingly engages in sexual times since § § he is guilty person, 1 and ch. SDCL 22-22-7 2. person this statute has been fourteen of a Class 4 other than his 1988. years is under of a Class misdemeanor. years § provided: older than See 1989 S.D.Sess.L. felony. 1; 1990 S.D.Sess.L. age age spouse contact If of sixteen the other amended the actor older, when with 2. We note that this statute has also been amended several times since 1988. See 1989 nent plished with Rape spouse ing circumstances: (4) age[.] 1988, part: ^[*] Where the victim is less than ten is under an act of sexual SDCL any person any one 22-22-1(4) ^[*] or more n other than the actor's penetration provided n of the follow- S.D.Sess.L. ^[*] accom- years perti- age). charges years placing

than ten were tion of super- sentence and Wika on upon allegations concerning Wika’s vised for life. Condition three of granddaugh conduct his two minor probation provided, conditions of guilty pleas ters. entered not to all by any the defendant abide and all “[t]hat counsel, retained charges three an at counseling that through is recommended years experi torney with some nineteen of during Court Services years first three ence, represent him. probation.” Thereafter, Wika was placed in group therapy a sexual offender retention, Subsequent to his counsel met program. times to with Wika several discuss the charges, rights potential 31, 1989, July On state filed a motion to penalties. He filed numerous motions on revoke Wika’s The motion was He Wika’s behalf. also secured the servic- probation a report violation private investigator es of a to look into the submitted Wika’s court services officer. charges. Eventually, proposed counsel a report alleged The that Wika had been possible plea bargain to Wika. terminated from the sexual offender thera- plea bargain

The involved Wika’s py group, “due to his continued lack of of a nolo contendere to one of the denial, cooperation, disruptive and atti- charges. explained sexual contact Counsel tude.” plea Wika, the nolo contendere its differ- probation Prior to the revocation hear- ence from a and that it would Wika, ing, through newly retained attor- guilt. not be an admission of This was a ney, filed a motion to withdraw his nolo Wika’s, concern of who maintained in- Wika contended that he charges nocence against him. Coun- should be allowed to withdraw his sel further that under the terms freely because it voluntarily and plea bargain probation left be entered. up to the court and proba- that Wika would hearing A on state’s motion to revoke bly have to attend and would probation and on Wika’s motion to cooperate complete any have to and coun- withdraw his was held on November seling requirements that the court set 15, 1989. hearing, After the the trial court forth. explanations, ap- After these it revoking probation entered its order peared to counsel that Wika understood the sentencing years peni- Wika to ten ultimately agreed accept and he tentiary. The trial court also plea bargain. entered find- ings fact, conclusions of law and an change plea hearing The was conduct- denying order Wika’s motion to withdraw Judge before Circuit Amundson. The appeals. Wika deputy state’s outlined the terms agreement: that plead nolo contendere to one count of sexual con- ISSUE sixteen; tact age child under WHETHER THE CIRCUIT COURT the other two counts the indictment be ABUSED ITS DISCRETION IN DE- dismissed; time; that there jail be no actual NYING WIKA’S MOTION TO WITH- imposition of sentence suspended; be DRAW HIS NOLO CONTENDERE and, that the other terms of the fine and PLEA? up left Judge to the court. presentence Amundson investiga- ordered SDCL 23A-27-11 on pleas withdrawal of delayed acceptance tion and provides: sentencing until after completion motion to withdraw a or report. may only be made be- Sentencing February imposed was conducted on fore sentence is imposition or 3, 1989, by Judge Judge Circuit Hurd. suspended; sentence is but to correct Hurd suspending imposi- injustice order manifest a court after sentence 2;

ch. § 1990 S.D.Sess.L. ch. 2 § ch. l.§ judgment ly argues aside a may set of conviction that his was not it entered because was not made with the defendant to suffi- permit consequence cient awareness of the added). undergo would have to counseling and ad- statutory language is clear. guilt therapy. mit his He asserts conten- allows a motion withdraw nolo only reason entered the nolo conten- only imposed before sentence dere dere so that he would not have imposition suspended. sentence is guilt and that had he known Thereafter, stringent applied standard is consequence he would en- never have con- permitting withdrawal of a nolo tered the He further asserts al tendere withdrawal will be attorney should have told him of possi- injustice. only lowed correct a manifest bility that he would have to admit his pre- We distinction between in therapy attorney’s and because of his post-sentence plea and withdrawal respect failure in that he should have been Lohnes, (S.D.1984): 344 N.W.2d 686 v. plea. essence, allowed to withdraw his In When a defendant moves to withdraw a therefore, challenges Wika the voluntari- prior imposition of plea sen upon ness of his ineffectiveness tence, judge’s trial in the gave the discretion his counsel the advice he on consequences plea. of the liberally be matter should exercised withdrawal, it favor of unless Ordinarily, claims of as ineffective detrimentally the State has relied sistance of counsel will not be reviewed upon prosecution Solem, appeal. direct Luna v. 411 N.W.2d thereby prejudiced. defendant has been (S.D.1987). Here, however, 656 When, however, a defendant moves concerning the contentions voluntariness of withdraw after sentence argu are so intertwined with his imposed, the will judge has been trial set regarding gave ment the advice his counsel judgment per aside the of conviction and him on the that we deem appropriate it only mit defendant withdraw his address the effectiveness of his coun representation regard. pur sel’s injustice. manifest Where correct a claim of ineffective assistance of counsel pose stringent post- of this standard for appeal is reviewed on direct review sentence withdrawal motion is “to determining repre limited to whether the testing a defendant prevent from so sentation was casual that the record potential weight punishment, then usurpation” ap evinces a “manifest of the withdrawing he finds sen pellant’s rights. Luna, 411 constitutional unexpectedly tence severe.” Here, N.W.2d at 659. we discern no usur (citations omit- Id. 687-88 footnote pation rights constitutional re Here, ted). Wika moved to withdraw his sulting from his counsel’s failure to advise imposition of his after requirements counseling him of the of the Therefore, suspended. we sentence was have to attend con sessions he would as a stringent hold that the standard of SDCL probation. dition of applied 23A-27-11 Lohnes should be outset, we At the observe that Wika’s only could and that Wika be allowed responsibility counsel did not bear the sole his nolo contendere es- insuring that Wika understood the con- tablishing necessary that withdrawal was plea. sequences The ultimate bur- injustice. to correct a manifest regard trial den in this rested with the we held that the court Lohnes Solem, Gregory court. 449 N.W.2d discretion in denying its abused (S.D.1989) corpus petitioner 827 a habeas mo- post-sentence plea withdrawal dant’s raised contentions the effective- reached this tion. We conclusion representation claim- ness of his counsel’s basis that defendant’s explain had ing his counsel failed to not en- voluntarily because it was crime with which he was elements of the like- pled charged guilty. tered with sufficient awareness and to which he had similar- noted the rule before a can ly consequences We entered, Institution, the defendant must Patuxent 475 F.2d understanding (4th Cir.1973)). nature of possess an noted charge and further “[t]he Here, perceive we fail to how the re- assuring that a defen- burden of ultimate quirements sessions charge of the nature of the dant is advised definite, immediate or automatic effect on upon the trial court against him falls range Rather, punishment. of Wika’s attorney.” the defendant’s it was Wika’s failure to fulfill the counsel- at 832 n. 7. Gregory, 449 N.W.2d ing requirements ultimately affected added). punishment by leading to the revocation premise Gregory, our on our We based result, however, probation. of his Such Garritsen, Application decision was neither definite nor immediate at the (S.D.1985) wherein we held: respect time he entered his In this plead- record must indicate that the note only that it was not Wika’s refusal [T]he the nature ing defendant understood to admit his expulsion led to his consequences The record and, later, therapy group from the the rev- that the defendant in- must indicate therapist’s ocation of his His jury of his trial in the formed report also indicates that he had disdain for county in the crime was commit- being group; frequently The record indicate ted. must also needing wanting mentioned not to be guilty plea factual basis for a before it is there; displayed anger that he often accepted. The circuit court cannot as- feedback; group openly referred to sume counsel has so advised the house”; group and, as “the nut that on preliminary dant and the record of the day expelled group, he was from the hearing substitute for the circuit cannot verbally group harassed.the leader and de- duty actively participate by court’s group opinion meaned the with his usual of defendant, informing canvassing the Clearly activity them. contravened the so as to make certain he understands and specific advice Wika did receive from his rights and knows the nature and attorney cooperate that he would have to consequences of counseling requirements. added) (citations Id. at 577 omit- Moreover, pro- revocation of Wika’s ted). Thus, just Gregory as we noted in but, product bation was not automatic advising ultimate burden of legal proceeding of a distinct in which he charge defendant of the nature of the falls hearing, notice of the court, upon similarly the trial conclude hearing, opportunity testify an advising that the ultimate burden a de- present on his evidence own behalf and consequences fendant of the of his right to cross examination of state’s wit- upon falls the trial court and not the defen- Thus, George, supra. nesses. See we con- attorney. dant’s requirements clude that the of the counsel- vein, however, In this we have held ing merely sessions were collateral conse- necessary “it court to inform a quences Wika’s consequences defendant of the collateral necessary prior which no advice was ... order for a to be of his intelligently entered.” State, Gregory v. ISSUE TWO (S.D.1984). WHETHER THE TRIAL COURT ERRED “The distinction between ‘direct’ and ‘col- IN FAILING TO AFFORD WIKA consequences plea,

lateral’ of a while TO FULL OPPORTUNITY DEVELOP sometimes shaded the relevant deci- THE ISSUE OF INEFFECTIVE AS- sions, repre- turns on whether the result SISTANCE OF COUNSEL DURING definite, largely sents a immediate and THE HEARING ON WIKA’S MO- range automatic effect on the of the de- WITHDRAW HIS PLEA? punishment.” TION TO fendant’s Black, (8th present argues counsel George v. 732 F.2d Wika’s Cir.1984) Director, opportunity (quoting he was not afforded a full Cuthrell v. develop the issue of ineffective rely assistance and would lawyer’s have to during hearing on this counsel mat- advice. attempted ter. He contends that when he Picture, your eye, mind’s a 72-year- attorney to examine first on Wika’s grandfather being old sexually accused of competence facts relevant to the of his contacting raping his granddaughters. advice, ques- the trial court disallowed the Consider the enormity of his fear of enter- tioning. ing guilty, he, particularly when simply supported This contention is grandfather, has steadfastly main- by the pages record. The of the motion tained that he did not molest grand- hearing/sentencing transcript referenced daughters. present support counsel Though there a strong case argument reveal his cross examination against misdeeds, Wika for his throughout attorney concerning of Wika’s first his ad- lawyer’s the first representation Wika, vice bargain possibility Wika insisted that he was innocent and counseling. He asked the if he acknowledged guilt never once specifically particular mentioned a sexual charges proffered against him. His first group. objected offender’s oath, lawyer, under testified that Wika had question and the trial court overruled the a difficult time understanding proceed- repeated objection objection ings. Upon the date set for his nolo con- present was overruled. Wika’s counsel tendere while on the courthouse then went on to ask Wika was told that steps, Wika maintained his innocence. he would have to admit specifically, lawyer Most the first testi- attorney responded to which his first fied at a hearing, motions that Wika and he negative. At point, present discussed, occasions, plea agree- several ques- counsel stated that he had no further proposals, ment any type but Wika refused Thus, tions. prohibit- trial court never plea which in would result admission asking from Wika’s first that he had molested granddaughters. his questions concerning the advice he had or Further, testified, lawyer the first concern- given

had not to Wika. The contentions in ing plea, the nolo contendere that he ex- regard this are meritless. plained the difference “guilty” between a Affirmed. plea plea. and a “nolo contendere” Follow- discussion, ing that Wika was still reluc- MILLER, C.J., and WUEST and tant to enter a nolo contendere In SABERS, JJ., concur. lawyer, explained fairness to the first he HENDERSON, J., dissents. sentencing aspects agreement of the including the fact that Wika would serve HENDERSON, (dissenting). Justice jail no time and that there would be a phrase Nolo contendere is a latin which probation requirement that Wika obtain “I means will not contest it.” A counseling. Apparently, lawyer the first this nature in posi- leaves the defendant a explained “might” required that Wika to tion wherein he neither admits nor denies Unfortunately, attend such sessions. charges. totally undisputed, lawyer it is the first lawyer, Wika asked his first not the “counseling” law- never that the re- yer representing him appeal, quirement in this what would include that Wika would he, do, lawyer if guilt by admitting would he was in have to admit his lawyer sexually Wika’s shoes. His told him that he grand- violated the bodies of his daughters. Further, would enter a lawyer nolo contendere. the first never lawyers specific Few know the ramifications of a discovered the ramifications of the quaint counseling by It is a questioning animal the court servic- in Surely, 72-year-old the criminal law. es officer or the Southeastern Mental man, law, group unlearned would not know Health Center’s Sexual Offender Falls, the ramifications of a nolo contendere which is located at Sioux South Da- no certainly appreciate that If we deduce Wika’s was involun- kota. perfect lawyer must, to tary, nor then conclude perforce, is entitled dant However, case, in this under perfect injustice” defense. there is “manifest SDCL voluntary satisfy knowing opinion, to In my order 23A-27-11. Wika’s nolo known, should have when he plea, knowing neither contendere nor was road plea, that down the he simply voluntary it was a com- because guilt. to have understanding would pletely mistaken agreement. Surely, if his of nolo con- me, reviewing from understanding tendere was made with the case, motivating factor the sole guilt, he to admit would have nolo was that entering the contendere requiring terms him to admit his guilt. never have to admit In Wika would are guilt conflict. fundamental 100% briefs, reviewing my conclu- carefully these promise bargain was broken Dakota sion is that State of South has knowledge without because first brief, challenged, by its disputed never lawyer not explain did that he would have motivating entering factor on the sole counseling admit these deeds sessions. receiving nolo Accord- falls squarely This case within the four hearings transcript, ing to the motion plea agreement corners was 27-29, precisely it was pages because the Lohnes, by this stricken Court lawyer knew that Wika refused first Lohnes, (S.D.1984). N.W.2d 686 acknowledge guilt, that the nolo contendere permit court Lohnes refused part by tendered as a offer though he even made of South Dakota. Little did Wika the State request a sentence of 347 later, he know that would have to acknowl- promise he years when had received a meetings, edge open before prison. not be to life in he would sentenced offenders, sex convicted he reversing, we held that Lohnes “could so, he refused to do would be terminated reasonably have understood” sessions and from agreement year foreclosed a 347 sentence. revocation of his face a Lohnes, Using my leap the rationale of his inno- So adamant legal logic is that Wika was entitled to a cence, so stricken conclusion that understanding reasonable that he would judicial lawyer system done never have to admit to the acts of which he plea bargain, him in on a he refused to be was accused. “cooperative” counseling sessions, at the i.e., closing, refuse I disparaging would am not the en- participate legal strategy refuse to in discussions which defense of the first tire law- require molesting him to yer. expressing would admit to I am that under the totali- granddaughters. circumstances, shows ty This record nolo lawyer, lawyer, his first trial-level abso- contendere herein was not know- lutely just knew ingly minutes before the entered. Wika should permitted of the nolo defen- have contendere been to withdraw and, therefore, gusto, his inno- I maintaining, respectfully dant was dissent. This questioning jury cence and was whether he afford trial. enter a nolo should agree certainly that this case must be upon the phraseology

decided of SDCL Bolger, 23A-27-11. State v. (S.D.1983), indi- this Court scope cated the of review us; very type of case before we stated we totality would “look at the the circum- stances to determine whether [no contest] voluntarily.” was made knowingly and

Case Details

Case Name: State v. Wika

Court Name: South Dakota Supreme Court

Date Published: Jan 2, 1991

Citation: 464 N.W.2d 630

Docket Number: 16927

Court Abbreviation: S.D.