APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE THOMAS L. TRIMBLE Judge.
The opinion of the court was delivered by: Meierhenry, Justice
CONSIDERED ON BRIEFS ON AUGUST 26, 2008
[¶1.] Duane Apple appeals his judgment and sentence for the crimes of Third and Fourth Degree Burglary. He claims that his guilty plea was not intelligent and voluntary. Based on the totality of the circumstances, we agree and reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Apple was arrested and charged in a four-count complaint, including one count of Third Degree Burglary, two counts of Fourth Degree Burglary, and one count of Possession of Stolen Property.*fn1 His initial appearance on the complaint was before a magistrate judge on March 20, 2002. At the initial appearance, the magistrate judge advised Apple of the charges in the complaint, the possible penalties of each charge, and his constitutional and statutory rights. The complaint was superseded by an indictment from a grand jury. The indictment charged Apple with three counts of Third Degree Burglary and one count of Fourth Degree Burglary.
[¶3.] Two of four charges in the indictment were the same as charges in the complaint: Third Degree Burglary of the maintenance building at Sioux San Hospital committed on March 19, 2002 and Fourth Degree Burglary of a pickup truck committed between March 18 and 19, 2002. Two of the charges in the indictment were different from those in the complaint and carried different penalties: Third Degree Burglary of the maintenance building at Sioux San Hospital committed on March 6, 2002, (not charged in the complaint) and Third Degree Burglary of the cargo trailer committed between March 18 and 19, 2002, (charged in the complaint as Fourth Degree Burglary). After the indictment, the State additionally filed a part II information charging Apple with being a habitual offender.*fn2
[¶4.] Apple was arraigned on the indictment in circuit court on April 15, 2002. The court arraigned several other defendants at the same time. The circuit court explained the constitutional and statutory rights to all defendants as a group and the consequences of entering a guilty plea, including waiving their rights to a trial, to confront witnesses against them, and to remain silent. Then, the circuit court addressed each defendant individually to determine if the defendant understood the rights. When the circuit court asked Apple if he understood his rights, he indicated that he did. The circuit court then asked each defendant to enter a plea. When the circuit court reached Apple's case, Apple's attorney advised the court that, as a result of a plea agreement with the State, Apple would plead guilty to Count (2), Fourth Degree Burglary and to Count (3), Third Degree Burglary. In exchange, the State would dismiss the remaining counts and the habitual offender information.
[¶5.] Although it is not apparent from the record whether Apple had a copy of the indictment, the record does indicate that the charges were read in open court.*fn3 Beyond reading the indictment, the circuit court did not explain the charges or the possible penalties. The entire plea colloquy was as follows:
Defense counsel: My client is going to enter into a plea agreement with the state.
Defense counsel: My client agrees to plead guilty to Count Three, third degree burglary; and to Count Two, fourth degree burglary, and pay for costs and restitution. And the state agrees to dismiss the remaining counts and the habitual offender information.
The court: Is that your understanding of the agreement, Mr. Apple?
The court: I am going to ask you, as to Count Two, Mr. Apple, alleging you committed a fourth degree burglary, what is your plea, Guilty or not guilty?
The court: Can you tell me what you did? That's the pick up.
The defendant: What was that now again?
The court: You just said you were guilty of a fourth degree burglary. Shows a 1992 Toyota pickup. What did you do?
The defendant: I was pretty d[r]unk that night, Your Honor. I don't really ...