Considered on Briefs: February 18, 2014.
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA. THE HONORABLE WARREN G. JOHNSON, Judge.
Affirmed in Part, Reversed in Part and Remanded.
MARTY J. JACKLEY, Attorney General, PAUL S. SWEDLUND, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
MATTHEW J. KINNEY, Spearfish, South Dakota, Attorney for defendant and appellant.
ZINTER, Justice. KONENKAMP and WILBUR, Justices, concur. GILBERTSON, Chief Justice, and SEVERSON, Justice, dissent.
[¶1] In 2012, Wayne Bilben was charged with driving under the influence of alcohol. A part II information alleged that he had three prior DUI convictions within the last ten years (in 2003, 2004, and 2007). Bilben moved to strike the prior convictions. He claimed that he pleaded guilty to the prior DUI charges without adequate Boykin advisements, rendering the prior convictions invalid. The circuit court denied his motion. On appeal, Bilben withdraws his challenge to his 2004 conviction, but continues to challenge the validity of his 2003 and 2007 convictions. We affirm in part, reverse in part, and remand for resentencing.
Facts and Procedural History
[¶2] In 2003, Bilben was charged with DUI. At a change-of-plea hearing, the court simultaneously advised all defendants present of their rights, including their Boykin rights: their right to a jury trial, their right to confront their accusers, and their privilege against compulsory self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The court then advised that a guilty plea would " give up [their] right to a jury trial and all rights that accompany a jury trial." The court also canvassed Bilben individually to ensure that he understood those rights.
Court: All right. [Defense Counsel], have you discussed with your client his statutory and constitutional rights and maximum penalties?
Defense Counsel: I have, your Honor. And I understand he was present today, and he heard them before. And I believe he understands them; is that correct?
Court: Mr. Bilben, you understand your rights?
Court: You've been in court at least on two occasions when your rights have been given to you.
Court: Do you understand your rights?
Bilben: Yes, sir.
Court: Okay. Have there been any threats or promises made to you, other than this plea agreement that's been discussed in court, to get you to enter a plea of guilty to this charge.
Bilben: No, sir.
Bilben then pleaded guilty to the 2003 DUI charge.
[¶3] In 2006, Bilben was charged with another DUI. At his plea hearing, he was advised by that court of his rights, including his Boykin rights. However, Bilben was not advised that a guilty plea would waive his Boykin rights. He ...