State v. Shelton , 901 N.W.2d 741 ( 2017 )

#28016-a-JMK
2017 S.D. 55IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHARLES MICHAEL SHELTON, JR., Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA
* * * *
THE HONORABLE JON R. ERICKSON
Judge
* * * *
MARTY J. JACKLEY
Attorney General
GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JEFF BURNS of
Churchill, Manolis, Freeman,
Kludt, Shelton & Burns LLP
Huron, South Dakota Attorneys for defendant
and appellant.
* * * *
CONSIDERED ON BRIEFS
ON AUGUST 28, 2017
OPINION FILED 09/13/17
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KERN, Justice
[¶1.] Charles Shelton appeals from a judgment of conviction for fourth-
degree rape. He contends that his conviction should be reversed because the circuit
court judge lacked jurisdiction to enter the judgment and because he did not receive
a preliminary hearing after the State filed an amended information. We affirm.
Facts and Procedural History
[¶2.] Following accusations that he provided a minor with alcohol and then
had sexual intercourse with her while she was passed out, Shelton was indicted on
one count of third-degree rape and one count of fourth-degree rape. The minor was
fifteen years old at the time of the incident.
[¶3.] Approximately one month before Shelton’s trial, his attorney moved to
withdraw from the case. Shelton’s former cellmate came forward with information
that Shelton confessed to him that Shelton had committed the rape. The attorney
represented both Shelton and the former cellmate. Due to the conflict, the court
allowed the attorney to withdraw and appointed a new attorney to represent
Shelton. A week later, the circuit judge overseeing the matter sent a letter to the
new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s
law firm and that this was a potential basis for disqualification. The judge stated:
You are now advised that I will disqualify myself from this
proceeding, and another judge will be assigned to hear this case,
unless you and your client agree in writing that I should not be
disqualified, and that I may continue to preside over this action.
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A written agreement waiving disqualification was not provided and there was no
further mention of the issue in the record. Nevertheless, the same judge continued
to preside over the trial.
[¶4.] Three days before the trial, the State filed an amended complaint and
information. This was done to correct a clerical error in the original indictment.
The caption of the indictment reflected that Shelton was charged with one count of
third-degree rape and one count of fourth-degree rape. However, in the body of the
indictment under Count I, it stated that Shelton “did commit the public offense of
RAPE – SECOND DEGREE (SDCL 22-22-1(4))[.]” While the citation to the statute
correctly corresponded with third-degree rape, the text before it indicated Shelton
was charged with second-degree rape. The amended information corrected the
mistake. Before Shelton’s jury trial commenced, the court noted that the amended
information had been filed and arraigned Shelton on the charges. Shelton was not
advised of his right to a preliminary hearing—nor did he receive one. Yet Shelton
failed to object. The jury was instructed on the elements of third-degree rape and
fourth-degree rape and the evidence presented at trial conformed to those charges.
[¶5.] Following trial, Shelton was acquitted of third-degree rape but found
guilty of fourth-degree rape. The court sentenced Shelton to fifteen years in the
penitentiary. Shelton appeals, arguing that the judge lacked jurisdiction to enter
the judgment of conviction due to judicial disqualification and that in the absence of
a preliminary hearing on the amended information, the court lacked jurisdiction to
proceed.
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Analysis
Judicial Disqualification
[¶6.] Under South Dakota law, there are three avenues for judicial
disqualification. The first is under the Due Process Clause of the United States and
South Dakota Constitutions. Due process violations for judicial bias constitute
structural error. 1 Isaacson v. Manty, 721 F.3d 533, 540 (8th Cir. 2013). The second
is a statutory right to file an affidavit for a change of judge, which is codified in
SDCL chapter 15-12. This is accomplished by informally requesting the judge to
disqualify themselves, and if the judge declines, filing a formal affidavit alleging
that “the party making such affidavit has good reason to believe and does actually
believe that such party cannot have a fair and impartial trial before the named
judge or magistrate.” SDCL 15-12-26. “Filing a timely and compliant affidavit
results in mandatory, automatic disqualification[,]” O’Neill v. O’Neill, 2016 S.D. 15,
¶ 41, 876 N.W.2d 486, 502, and if a judge continues to preside over the proceedings
after a proper affidavit is filed, “all subsequent orders and judgments are void[,]”
State v. Johnson, 2004 S.D. 135, ¶ 9, 691 N.W.2d 319, 322 (quoting State v.
Peterson, 531 N.W.2d 581, 583 (S.D. 1995)). The third avenue for disqualification is
provided in the Code of Judicial Conduct, which is codified at SDCL chapter 16-2,
appendix A.
[¶7.] Citing Johnson, Shelton maintains that the judge lost jurisdiction over
this matter when he deemed himself disqualified under the Code of Judicial
1. Shelton does not argue that his due process rights were violated.
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Conduct and that the judgment of conviction entered by the judge is, therefore, void.
Shelton conflates the issues of the statutory right to file an affidavit for a change of
judge and judicial disqualification under the Code of Judicial Conduct. In Johnson,
we acknowledged that “[o]nce disqualified by the filing of an affidavit for change of
judge, the challenged judge has no jurisdiction to consider the propriety of the
affidavit or to continue with the action.” Id. ¶ 8. As a consequence for continuing to
preside over the proceedings after an affidavit was properly filed, we deemed that
all subsequent orders and judgments were void. Id. ¶ 9. But an affidavit for change
of judge was not filed in this case. As such, Johnson is not applicable.
[¶8.] Rather, in this case, the judge deemed himself disqualified under
Canon 3 E(1) of the Code of Judicial Conduct. 2 Under the Code of Judicial Conduct,
2. Canon 3 E(1) provides:
A judge shall disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned, including but not
limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a
party’s lawyer, or personal knowledge of disputed evidentiary
facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a
lawyer with whom the judge previously practiced law served
during such association as a lawyer concerning the matter, or the
judge has been a material witness concerning it.
(c) the judge knows that he or she, individually or as a fiduciary, or
the judge’s spouse, parent or child wherever residing, or any
other member of the judge’s family residing in the judge’s
household, has an economic interest in the subject matter in
controversy or in a party to the proceeding or has any other more
than de minimis interest that could be substantially affected by
the outcome of the proceeding;
(continued . . .)
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“[a] judge exercises discretion in deciding whether the facts and circumstances fit
within the disqualifying criteria.” Marko v. Marko, 2012 S.D. 54, ¶18, 816 N.W.2d
820, 826. However, once the judge answers that question affirmatively, “he must
recuse himself; that is not discretionary.” Id. (quoting Childers and Davis, Federal
Standards of Review § 12.05, at 12–31 (3d ed.1999)). The judge in this matter
determined that he was disqualified, and absent a waiver from the parties, erred by
continuing to preside over the matter.
[¶9.] We have had occasion to review whether judges have erred in refusing
to disqualify themselves under the Code of Judicial Conduct. See, e.g., Id. ¶¶ 17-30,
816 N.W.2d at 825-29. We have not, however, had occasion to determine what
(. . . continued)
(d) the judge or the judge’s spouse, or a person within the third
degree of relationship to either of them or the spouse of such a
person:
(i) is a party to the proceeding, or an officer, director or
trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis
interest that could be substantially affected by the
proceeding, but the judge shall disclose such de minimis
interest to the parties;
(iv) is to the judge’s knowledge likely to be a material witness
in the proceeding.
(e) the judge, while a judge or a candidate for judicial office, has
made a public statement that commits, or appears to commit, the
judge with respect to:
(i) an issue in the proceeding; or
(ii) the controversy in the proceeding.
SDCL ch. 16-2 app. A. So long as the grounds for potential disqualification
are not personal bias or prejudice, Canon 3 F permits a judge otherwise
disqualified under Canon 3 E(1) to disclose the basis of the disqualification
and ask the parties to waive any potential disqualification. Id.
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action is necessary when a judge does, in fact, err. The United States Supreme
Court has provided guidance in this area.
[¶10.] In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.
Ct. 2194, 100 L. Ed. 2d 855 (1988), the plaintiff claimed, after trial and entry of a
final judgment, that the trial judge should have recused himself from the matter
under the Code of Judicial Conduct. 3 Id. at 850, 108 S. Ct. 2198. The Court
recognized that while Canon 3 E(1) “defines the circumstances that mandate
disqualification of . . . judges, it neither prescribes nor prohibits any particular
remedy for a violation of that duty.” 4 Id. at 862, 108 S. Ct. at 2204. This decision
was “wisely delegated to the judiciary” and thus, the courts are left to fashion a
remedy that would “best serve the purpose of the [Code of Judicial Conduct].” Id.The Court reasoned that “[t]here need not be a draconian remedy for every violation
of [Canon 3 E(1),]” and that “there is surely room for harmless error committed by
busy judges who inadvertently overlook a disqualifying circumstance.” Id., 108 S.
Ct. at 2203-04. Keeping these principles in mind, the Court crafted a three-part
test to aid in determining what action should be taken for a violation of Canon 3
E(1).
[¶11.] The test is this: in determining what action, if any, should be taken for
a violation of Canon 3 E(1), “it is appropriate to consider the risk of injustice to the
3. The plaintiff did not learn of the potential basis for disqualification until ten
months after the judgment was entered.
4. The federal counterpart to Canon 3 E(1) is codified at 28 U.S.C. § 455 (2015).
The federal statute is substantially similar to our rule.
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parties in the particular case, the risk that the denial of relief will produce injustice
in other cases, and the risk of undermining the public’s confidence in the judicial
process.” Id. at 864, 108 S. Ct. at 2205. Other courts that employ this test
emphasize that these cases are “extremely fact intensive and fact bound, and must
be judged on [their] unique facts and circumstances more than by comparison to
situations considered in prior jurisprudence.” United States v. Jordan, 49 F.3d 152,
157 (5th Cir. 1995); see also Scott v. United States, 559 A.2d 745, 753 (D.C. 1989)
(“The extent of the risk is, of course, dependent upon the circumstances surrounding
the violation.”). We agree with the United States Supreme Court’s reasoning and
adopt the test set forth in Liljeberg. 5
[¶12.] In upholding the conviction in this case, there is little risk of injustice
to the parties. Initially, Shelton does not argue that the judge was biased or
prejudiced against him in any way. Instead, Shelton erroneously argues that the
judge lacked jurisdiction to proceed in the case, and as a result, the judgment of
conviction was void. A thorough review of the record does not reveal any evidence of
5. The adoption of this test does not in any way supersede or alter the well-
settled test for determining whether a judge’s impartiality might reasonably
be questioned. That test is, and remains, whether “a reasonable person
knowing all the facts [would] conclude that the judge’s impartiality might
reasonably be questioned[.]” Marko, 2012 S.D. 54, ¶ 22, 816 N.W.2d at 827
(citing Sao Paulo State v. Am. Tobacco Co., 535 U.S. 229, 232–33, 122 S. Ct.
1290, 1292, 152 L. Ed. 2d 346 (2002); Liljeberg, 486 U.S. at 861, 108 S. Ct. at
2203). In the present case, the judge already made that determination. The
test announced today is merely an aid in determining what action must be
taken once it is found that a judge did, in fact, err by continuing to preside
over the matter when their impartiality may have been reasonably
questioned.
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partiality. Further, it is not alleged, and it does not appear from the record, that
the judge’s ex-wife had any involvement in the matter. And while Shelton argues
that in his experience, “an overwhelming majority of divorce cases have at least
some level of animosity[,]” none was shown here.
[¶13.] There is also little risk that denial of relief would produce injustice in
other cases. Unlike the situation presented in Liljeberg, where the judge failed to
disclose the potential basis for disqualification to the parties, the judge in this case
upheld his ethical obligations under the Code of Judicial Conduct and made a full
disclosure. The judge sent a letter to Shelton’s counsel informing him of the
potential basis for disqualification and filed the letter in the record. Although the
judge erred by continuing to preside over the matter absent a waiver, Shelton
compounded this error by failing to raise it. Other diligent parties faced with this
scenario could simply object, bringing the matter to the judge’s attention. If the
judge persists, alternative remedies such as filing a writ of mandamus are also
available. Our analysis in no way relieves judges of their obligation to disqualify
themselves—this is, and remains, the ethical duty of judges. See Canon 3 E(1) (“A
judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned . . . .”). However, in determining
whether upholding this conviction would produce injustice in other cases, we expect
that parties in other cases would act diligently in preserving their rights.
[¶14.] Finally, we must decide whether upholding this conviction would
undermine the public’s confidence in the judicial process. Based on the facts of this
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particular case, we do not believe the public’s confidence would be undermined.
Most importantly, the judge disclosed to the parties the potential basis for
disqualification. The purpose of Canon 3 E(1) “is to promote confidence in the
judiciary by avoiding even the appearance of impropriety whenever possible.”
Liljeberg, 486 U.S. at 865, 108 S. Ct. at 2205. This purpose was fulfilled when the
judge made his disclosure. Both parties knew of the potential basis for
disqualification. Second, by requesting a written waiver, it was clear that the judge
believed that he could remain impartial in the proceedings. Indeed, Canon 3 F only
permits the waiver of judicial disqualification in instances where there is no
“personal bias or prejudice concerning a party[.]” SDCL ch. 16-2 app. A. And
finally, the record in this case does not reveal any instances of partiality.
Consequently, while the judge erred by continuing to preside over this matter, we
find that the error was harmless.
Amended Information
[¶15.] Next, Shelton contends that the court lacked jurisdiction to proceed in
this matter because he did not receive a preliminary hearing after the State filed an
amended information. As authority for this argument, Shelton cites Honomichl v.
State, 333 N.W.2d 797, 798 (S.D. 1983), for the general proposition that courts do
not acquire subject matter jurisdiction without “a formal and sufficient indictment
or information[.]” The State maintains that the filing of the amended information
was unnecessary and that the original indictment filed was sufficient for the court
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to proceed. We do not reach the State’s argument because Shelton’s position on
jurisdictional defect is incorrect.
[¶16.] It is well settled that a court’s failure to hold a preliminary hearing is
not a jurisdictional defect. See State v. King, 62 S.D. 184, 252 N.W. 36, 37 (1934);
State v. Janssen, 371 N.W.2d 353, 356 (S.D. 1985); see also 22 C.J.S. Criminal
Procedure and Rights of Accused §24, Westlaw (database updated June 2017) (“The
failure to give a preliminary hearing or examination is not a jurisdictional
defect . . . .”). Instead, it is grounds for the dismissal of the information, SDCL 23A-
8-2(9), but only if the defendant objects before trial, SDCL 23A-8-3(1). If a
defendant fails to object before trial, the issue is waived. SDCL 23A-8-9. Shelton
failed to object before trial. As a result, this issue “is not preserved for appeal.”
State v. Lachowitzer, 314 N.W.2d 307, 309 (S.D. 1982). We reiterated in
Lachowitzer, “[a] criminal trial is not a game where defendant’s counsel may lie in
the weeds and hold back motions or objections that go to the very heart of the
prosecution. There exist ample means of attacking the sufficiency of the charge
prior to trial.” Id. (quoting State v. Williams, 297 N.W.2d 491, 493 (S.D. 1980)).
Conclusion
[¶17.] Absent a waiver by the parties, the judge in this case erred by
continuing to preside over the matter after he deemed himself disqualified under
the Code of Judicial Conduct. However, the error was harmless under the test set
forth in Liljeberg. Further, Shelton waived the issue relating to a preliminary
hearing when he failed to object before trial.
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[¶18.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
and WILBUR, Retired Justice, concur.
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