State v. Woodard , 851 N.W.2d 188 ( 2014 )

#26694-a-JKK
2014 S.D. 39
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ANDREA J. WOODARD, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
****
THE HONORABLE VINCENT A. FOLEY
Judge
****
MARTY J. JACKLEY
Attorney General
ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
MICHAEL E. MCCANN of
McCann, Ribstein, Hogan & McCarty, PC
Brookings, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON FEBRUARY 18, 2014
OPINION FILED 06/25/14
#26694
KONENKAMP, Justice
[¶1.] Andrea Woodard appeals her conviction for second offense driving
under the influence (DUI). She alleges that her predicate DUI conviction was
invalid for sentencing enhancement purposes.
Background
[¶2.] Woodard was charged by information with DUI in Brookings County,
South Dakota. A supplemental information alleged that Woodard had been
convicted of another DUI in Clay County, South Dakota, on February 24, 2009. The
State asserted that the prior conviction enhanced the new charge to a second
offense DUI under SDCL 32-23-3.
[¶3.] In response to this allegation, Woodard moved to strike the 2009
conviction from the supplemental information, asserting that the 2009 plea was not
entered knowingly and voluntarily. In support of her motion to strike the 2009
conviction, Woodard testified on the events that occurred at her arraignment
hearing before the Clay County magistrate court. The following is what Woodard
alleges transpired.
[¶4.] On February 24, 2009, Woodard, who was charged with DUI, appeared
in magistrate court in Clay County. 1 There is no transcript of the hearing. 2 The
only written records are the information, the arraignment, and a statement-of-
rights form. Woodard testified that she was called to stand before the magistrate.
1. Woodard was twenty-two years old at the time.
2. “A verbatim record of a proceeding at which a defendant enters a plea to a
misdemeanor need not be taken unless requested by the prosecuting attorney
or the defendant.” SDCL 23A-7-15 (Rule 11(g)).
-1-
#26694
She was not represented by counsel. She was then asked to enter a plea to the
charge of DUI. Woodard responded that she would plead guilty. The magistrate
then gave her a statement-of-rights form. According to Woodard, this was the first
time she had seen the form. It was also her first experience with the court system.
The magistrate instructed her to read and sign the form. Woodard was extremely
nervous. She quickly skimmed through the details of the form and signed it.
According to Woodard, the magistrate did not ask whether she had any questions
about the form or whether she understood the form.
[¶5.] The statement-of-rights form specified a number of rights that
Woodard was entitled to. Most relevant to this appeal, the form stated:
7. Defendant was advised that the burden is on the state to
prove every element of the charge beyond a reasonable doubt
and was further advised as to his right against self
incrimination. Defendant was advised of his right to a speedy
trial before a jury or the court in this county and that a jury
would have to reach a unanimous verdict before he could be
found guilty. Defendant was advised of his right to call and
cross examine witnesses and compulsory process.
8. Defendant was advised that if he wished to plead guilty he
would give up his right to trial, the presumption of innocence,
the right to confront and cross examine witnesses and the right
not to be compelled to incriminate himself. Defendant was
advised that if he pleads guilty or no contest, the court may ask
him questions about the offense, and if he answers under oath
on the record and in the presence of counsel, his answers may be
used against him in a prosecution for perjury.
The form required Woodard to state what crime she was pleading guilty to.
Woodard wrote “DUI 1st.” The form also requested a factual basis for the plea.
Woodard wrote “2-13-09 drove in Clay Co. .206 BAC.” Finally, the form stated: “I
have been advised of the above rights and understand them. I voluntarily wish to
-2-
#26694
enter a plea of guilty.” That statement was followed by a signature line where both
Woodard and the magistrate court signed.
[¶6.] After considering Woodard’s testimony, the circuit court denied
Woodard’s motion to strike the 2009 conviction. The court concluded that
Woodard’s testimony did not overcome the presumption of regularity. Woodard was
subsequently found guilty of second offense DUI. She was sentenced to 90 days in
the Brookings County Detention Center, with 82 days suspended. On appeal, she
alleges that the circuit court erred in rejecting her motion to strike the 2009 plea
because it was not entered knowingly, intelligently, and voluntarily.
[¶7.] In moving to strike her 2009 conviction, Woodard does not claim that
she is innocent of the predicate conviction. Rather, she “seeks to deprive that
conviction of its normal force and effect for sentence-enhancement purposes.” State
v. Smith, 2013 S.D. 79, ¶ 5, 840 N.W.2d 117, 119. Her challenge to the validity of
her predicate conviction is a collateral attack; therefore, her plea is subject to less
scrutiny than if it were raised on direct appeal. Id. (citing State v. Jensen, 2011
S.D. 32, ¶ 8, 800 N.W.2d 359, 363). “Further, our review of a collateral attack of a
predicate conviction is limited to jurisdictional errors.” Id. ¶ 6 (citing Monette v.
Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923). For purposes of a collateral attack
on a predicate criminal conviction, we have treated a constitutionally infirm guilty
plea as a jurisdictional error. Id. (citation omitted). We review the circuit court’s
findings of fact under the clearly erroneous standard. Id. (citation omitted). “And
we review the circuit court’s conclusions of law de novo.” Id. (citation omitted).
-3-
#26694
[¶8.] To initiate an attack on a predicate conviction, the “defendant has the
initial burden of placing the validity of the prior conviction in issue.” Jensen, 2011
S.D. 32, ¶ 9, 800 N.W.2d at 363 (quoting Stuck v. Leapley, 473 N.W.2d 476, 478
(S.D. 1991)). One way a defendant places the validity of a prior conviction in issue
is by a motion to strike. See Smith, 2013 S.D. 79, ¶ 7, 840 N.W.2d at 119 (citation
omitted). Once the defendant has placed the prior conviction in issue the burden
shifts “to the State to prove the existence of a prior valid conviction by a
preponderance of the evidence.” Id. (quoting Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d
at 363). “The State meets this burden by presenting a document that ‘appears on
its face to be a valid judgment.’” Jensen, 2011 S.D. 32, ¶ 9, 800 N.W.2d at 363
(quoting State v. Moeller, 511 N.W.2d 803, 809 (S.D. 1994)). “If the State meets its
burden, the presumption of regularity arises and the burden shifts to the defendant
to show that the prior conviction is invalid.” Id. (citing Moeller, 511 N.W.2d at 809-
10).
[¶9.] We have repeatedly acknowledged that “a plea of guilty is more than
an admission of conduct; it is a conviction.” Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d at
120 (quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712, 23 L. Ed.
2d 274 (1969)). “By pleading guilty, a defendant waives three fundamental
constitutional rights: the right against compulsory self-incrimination, the right to a
trial by jury, and the right to confront one’s accusers.” Id. (citing Boykin, 395 U.S.
at 243, 89 S. Ct. at 1712). “A guilty plea operates as a waiver of important rights,
and is valid only if done voluntarily, knowingly, and intelligently, ‘with sufficient
awareness of the relevant circumstances and likely consequences.’” Bradshaw v.
-4-
#26694
Stumpf, 545 U.S. 175, 183, 125 S. Ct. 2398, 2405, 62 L. Ed. 2d 143 (2005) (quoting
Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747
(1970)). Therefore, it is critical that a defendant is aware of these rights, and then,
knowingly and voluntarily relinquishes them by a plea of guilty. See Monette, 2009
S.D. 77, ¶ 10, 771 N.W.2d at 924 (citing Boykin, 395 U.S. at 243 n.5, 89 S. Ct. at
1712 n.5). Lastly, “the record in some manner must show the defendant entered his
plea understandingly and voluntarily.” Id. ¶ 11, 771 N.W.2d at 925 (citation
omitted); see also Rosen v. Weber, 2012 S.D. 15, ¶ 8, 810 N.W.2d 763, 765.
[¶10.] No transcript is available for Woodard’s 2009 guilty plea. Relying on
our precedent, Woodard asserts that without a transcript for her 2009 guilty plea
the record does not affirmatively show in some manner that her plea was entered
knowingly and voluntarily. See Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925. In
addition, Woodard submits that there is no evidence of any Boykin canvassing.
Therefore, Woodard claims that her plea was invalid.
[¶11.] The State, relying on State v. Moeller, 511 N.W.2d 803 (S.D. 1994),
argues that the mere unavailability of a transcript does not overcome the
presumption of regularity. The State stresses that we should not presume that
Woodard’s guilty plea was constitutionally infirm in light of the presumption of
regularity. As we stated above, once the State has introduced a valid judgment of
conviction, the presumption of regularity arises, and the burden shifts to the
defendant to prove that the prior conviction was invalid. Smith, 2013 S.D. 79, ¶ 7,
840 N.W.2d at 119-20. A presumption exists that Woodard’s guilty plea was
-5-
#26694
constitutionally sound. See Parke v. Raley, 506 U.S. 20, 30, 113 S. Ct. 517, 523-24,
121 L. Ed. 2d 391 (1992).
[¶12.] In Moeller, we stated that “when no transcripts exist, for whatever
reason, absent misconduct by the state, the court will be presumed to have
discharged its duty.” 511 N.W.2d at 810 (citing United States v. Dickerson, 901 F.2d
579, 583 (7th Cir. 1990)). Similarly, the United States Supreme Court has stated,
“[o]n collateral review, we think it defies logic to presume from the mere
unavailability of a transcript (assuming no allegation that the unavailability is due
to governmental misconduct) that the defendant was not advised of his rights.”
Parke, 506 U.S. at 30, 113 S. Ct. at 524. Where no transcript exists, “Boykin does
not prohibit a state court, from presuming, at least initially, that a final judgment of
conviction offered for purposes of sentence enhancement was validly obtained.” Id.
[¶13.] Yet Woodard argues that our holding in Monette requires a contrary
result to Moeller and Parke. Woodard notes that in Monette we stated that “[w]e
cannot presume a waiver of [Boykin] rights from a silent record.” 2009 S.D. 77, ¶
10, 771 N.W.2d at 925 (citation omitted). Woodard further argues that when no
transcript exists, the record is technically silent, which we have deemed insufficient
to support a knowing and voluntary waiver of a defendant’s Boykin rights. See id. ¶
11. And without a transcript, a court cannot “determine from its own record that
the accused has made a free and intelligent waiver of [her] constitutional rights . . .
.” Id.
[¶14.] While Woodard correctly describes our precedent, this case does not
involve a transcript that is “suspiciously silent” on whether Woodard waived her
-6-
#26694
constitutional rights. There simply is no transcript. Compare Parke, 506 U.S. at
30, 113 S. Ct. at 523-24 (rejecting the proposition that a record is “suspiciously
silent” because no transcript exists), with Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d
at 926 (observing that the transcript was silent as to whether defendant’s plea was
knowing and voluntary). “To import Boykin’s presumption of invalidity into this
very different context would . . . improperly ignore another presumption deeply
rooted in our jurisprudence: the ‘presumption of regularity’ that attaches to final
judgments, even when the question is waiver of constitutional rights.” Parke, 506
U.S. at 29, 113 S. Ct. at 523 (citation omitted). A transcript is not suspiciously
silent merely because it does not exist. An opposite conclusion would ignore the
presumption of regularity and risk invalidating guilty pleas entered years ago that
were never challenged on direct appeal.
[¶15.] Furthermore, Woodard’s argument, if successful, would undermine the
State’s valid interest in deterring habitual offenders. See id. at 32, 113 S. Ct. at
524-25. The United States Supreme Court recognized this consequence in Parke,
noting:
If raising a Boykin claim and pointing to a missing record
suffices to place the entire burden of proof on the government,
the prosecution will not infrequently be forced to expend
considerable effort and expense attempting to reconstruct
records from farflung States where procedures are unfamiliar
and memories unreliable. To the extent that the government
fails to carry its burden due to the staleness or unavailability of
evidence, of course, its legitimate interest in differentially
punishing repeat offenders is compromised.
Id.
-7-
#26694
[¶16.] Given this reasoning, we reaffirm our holding in Moeller that the mere
unavailability of a transcript does not overcome the presumption of regularity. See
Moeller, 511 N.W.2d at 810. Absent other evidence, we presume that the court
adequately advised Woodard before accepting her guilty plea.
[¶17.] Woodard does not rely solely on the unavailability of the transcript to
assert that her plea was invalid. She testified that the magistrate court did not
canvass her on the waiver of her Boykin rights and whether her plea was knowing
and voluntary. She alleges that the magistrate intended for the statement-of-rights
form to serve as the transcript and a substitute for the canvassing requirement. 3
Therefore, she asserts that here plea was constitutionally infirm.
[¶18.] While the mere assertion that the defendant does not remember
receiving her rights is insufficient to overcome the presumption of regularity,
producing credible evidence can overcome the presumption. Id. One of the most
useful ways to overcome the presumption is to produce the transcript of the plea.
Id. at 811. But without a transcript, Woodard could only testify about what
transpired. Where no transcript exists, it is appropriate for the court to take
testimony from those who have appeared regularly in the plea-taking court. Id.
But no additional evidence was presented to the circuit court. 4 Even without other
testimony, however, the circuit court determined that Woodard did not overcome
3. In light of the presumption of regularity in this case, we need not consider
whether the statement-of-rights form sufficiently apprised Woodard of her
constitutional rights so that her 2009 guilty plea was knowing and voluntary.
4. Because Woodard was not represented by counsel when she entered the 2009
plea, she could not present evidence from an attorney on whether she was
adequately advised.
-8-
#26694
the presumption of regularity. Therefore, it appears the circuit court simply did not
believe Woodard’s rendition of the events.
[¶19.] On occasion, the only evidence that will be presented to the court on
the validity of a predicate conviction is the testimony of the defendant. See Parke,
506 U.S. at 32, 113 S. Ct. at 524. This might result from a combination of factors
such as the evidence going stale, the unavailability of transcripts, or the case being
decided in a different jurisdiction. See id. In fact, it is not uncommon for a
defendant to have superior access to evidence in a collateral attack on a predicate
conviction. Id. As a result, courts will need to balance the defendant’s testimony
against the presumption of regularity. This rule requires deference to the trial
judge, who had the opportunity to hear first-hand and to determine the credibility
of the defendant’s testimony. In this case, the circuit court ruled that Woodard did
not overcome the presumption of regularity. Without any additional evidence other
than Woodard’s testimony, we cannot conclude that this finding was clearly
erroneous. 5
[¶20.] Because Woodard did not overcome the presumption of regularity that
attached to her 2009 guilty plea, we uphold the circuit court’s denial of Woodard’s
motion to strike her predicate conviction. 6
5. Neither side argued whether the guilty plea was knowing and voluntary
under the totality of the circumstances. Therefore, we do not reach this
issue.
6. For the reasons explained in Justice Zinter’s special writing in State v.
Burkett, 2014 S.D. 38, ___ N.W.2d ___, and this Court’s decision in State v.
Bilben, 2014 S.D. 24, ¶¶ 18-19, 846 N.W.2d 336, 340, we decline to adopt, at
this time, the position the Chief Justice takes in his concurrence in result.
-9-
#26694
[¶21.] Affirmed.
[¶22.] ZINTER and WILBUR, Justices, concur.
[¶23.] GILBERTSON, Chief Justice, and SEVERSON, Justice, concur in
result.
GILBERTSON, Chief Justice (concurring in result).
[¶24.] The Court’s analysis appropriately recognizes the State’s valid interest
in deterring habitual offenders and properly applies the presumption of regularity
to the facts of this case. However, I maintain my position in State v. Bilben, 2014
S.D. 24, 846 N.W.2d 336 and State v. Burkett, 2014 S.D. 38, ___ N.W.2d ___, that
defendants should no longer be given the unrestricted power to collaterally attack
the validity of predicate convictions used for sentence-enhancement purposes.
Accordingly, I concur in the result.
[¶25.] SEVERSON, Justice, joins this special writing.
-10-