Considered on Briefs Aug. 27, 2013.
Marty J. Jackley, Attorney General, Matt Naasz, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
John R. Murphy, Rapid City, South Dakota, Attorney for defendant and appellee.
[¶ 1.] Justin Smith was charged with driving under the influence of alcohol (DUI) in Pennington County, South Dakota, on August 13, 2012. A Part II Information alleged that Smith had two previous DUI convictions within the last ten years, one in 2011 (Lawrence County, South Dakota) and the other in 2009 (Douglas County, Nebraska). Smith moved to strike the 2011 conviction from the Part II Information, claiming his guilty plea was constitutionally infirm because he was not fully advised of the waiver effect of pleading guilty (a violation of Boykin rights). The Seventh Circuit Court (circuit court) agreed, granting Smith's motion to strike on November 28, 2012. The State of South Dakota petitioned this Court for an intermediate appeal, which we granted. We reverse the circuit court's order granting Smith's motion to strike
and remand to the circuit court with the direction to include Smith's 2011 Lawrence County conviction in the Part II Information because Smith was fully advised of his Boykin rights during his 2011 conviction and intelligently and voluntarily waived those rights.
[¶ 2.] On the early morning of August 13, 2012, Justin Smith was arrested for DUI in Pennington County, South Dakota. Smith was arraigned on September 25, 2012, where an Information and a Part II Information, which enhanced the DUI charge to a third offense, were filed. Smith moved to strike his 2011 Lawrence County DUI conviction (2011 conviction) from the Part II Information but did not challenge the 2009 DUI conviction in Nebraska.
[¶ 3.] Smith claims the 2011 sentencing court never expressly advised him at the time his guilty plea was received that he would waive his right to a jury trial, right to confrontation, and right against self-incrimination. As a result, based on Rosen v. Weber, 2012 S.D. 15, 810 N.W.2d 763, Smith alleges that the 2011 conviction was invalid. Upon hearing Smith's motion to strike, the circuit court agreed, ordering on November 28, 2012, that the 2011 conviction be stricken from the Part II Information.
[¶ 4.] The State of South Dakota appeals, raising the issue of whether the circuit court erred in striking Smith's 2011 conviction.
Standard of Review
[¶ 5.] Smith is not contending that he is innocent of the 2011 conviction; rather, he seeks to deprive that conviction of its normal force and effect for sentence-enhancement purposes. Smith's challenge, therefore, is a collateral attack of a predicate conviction, which is subject to a lesser scrutiny than a direct appeal:
Upon a direct appeal from a conviction, the defendant must be given all presumptions and protections possible under our Constitution. However, when the proceeding before the court is in the nature of a collateral attack, as in a habeas corpus action or a challenge to the validity of predicate convictions, it becomes subject to less intense scrutiny upon review.
State v. Jensen, 2011 S.D. 32, ¶ 8, 800 N.W.2d 359, 363 (quoting State v. Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849).
[¶ 6.] Further, our review of a collateral attack of a predicate conviction is limited to jurisdictional errors. Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923 (citing Owens v. Russell, 2007 S.D. 3, ¶ 6, 726 N.W.2d 610, 614-15). In criminal cases, violating " a defendant's constitutional rights constitutes a jurisdictional error." Id. Also, the circuit court's " finding of facts shall not be disturbed unless they are clearly erroneous." Id. And we review the circuit court's conclusions of law de novo. Id.
[¶ 7.] Smith carried " 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)). Smith met his initial burden by raising the issue in his motion to strike. Id. The burden then shifted " to the State to prove ‘ the existence of a prior valid conviction by a preponderance of the evidence.’ " Id. (quoting Stuck, 473 N.W.2d at 478-79). The State met its burden by providing the 2011 judgment of conviction, which " appears on its face to be ...