Considered on Briefs August 25, 2014
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE WALLY EKLUND, Judge.
MARTY J. JACKLEY, Attorney General, KELLY MARNETTE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
JAMY PATTERSON, Pennington County Public, Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant.
SEVERSON, Justice. GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and WILBUR, Justices, concur.
[¶1] Harold Chant was charged with driving under the influence in Pennington County in 2012. A Part II Information alleged that Chant had two previous driving under the influence (DUI) convictions
--one each in 2004 and 2006. Chant moved to strike the 2004 DUI, claiming his plea was constitutionally infirm because the circuit court failed to advise him of the waiver effect of a guilty plea, and failed to inquire into whether the plea was voluntary. The Seventh Judicial Circuit Court denied Chant's motion to strike on April 20, 2013. Following a court trial in which the parties filed a written stipulation of facts and the state presented evidence of two DUI convictions within ten years, the court entered a final judgment of conviction for third offense DUI. Chant appeals.
[¶2] On December 15, 2012, Harold Chant was arrested and charged with DUI in Pennington County. Chant appeared with counsel for arraignment on February 26, 2013, at which time the State presented a Part II Information alleging two prior convictions in Pennington County of DUI--one in 2004 and a second in 2006. Chant pleaded not guilty to all charges stemming from the December 15th arrest and denied the allegations in the Part II Information. On April 5, 2013, Chant filed a motion to strike the Part II Information, challenging the 2004 conviction of DUI as unconstitutional.
[¶3] At the arraignment on October 18, 2004, the circuit court informed Chant of his right against self-incrimination, to be represented by an attorney, to have a jury trial, to remain silent, to subpoena witnesses, and to confront the State's witnesses. The circuit court explained that Chant could plead not guilty, not guilty by reason of insanity, or guilty but mentally ill. The court further informed Chant that a plea of guilty or nolo contendere would result in a waiver of all the rights that the court had just explained. Following the court's advisement regarding Chant's rights, the court asked Chant if he understood those rights. Chant answered in the affirmative. Chant's counsel noted that the State had just offered a plea agreement, and a status hearing was set for October 25, 2004, to allow time for Chant to consider the plea agreement.
[¶4] At the plea hearing on October 25, 2004, the court again asked Chant if he understood his rights or if he would like to be re-advised of the rights that had been enumerated the week prior to the hearing. Chant replied that he understood those rights. The court asked whether Chant understood that the court was not bound by the plea agreement and could sentence Chant to the maximum sentence. Chant again stated that he understood. Thereafter, Chant pleaded guilty to the charge of driving while under the influence. The court accepted Chant's guilty plea, finding it was entered voluntarily and a factual basis existed.
[¶5] Chant's motion to strike the Part II Information asserted there was not an effective waiver of his constitutional rights for the 2004 charge, because the court neither re-advised Chant of his constitutional rights before he pleaded guilty nor inquired into whether his plea was voluntary at the October 25, 2004 plea hearing. As a result, Chant claimed that this DUI could not be used for enhancement purposes. The Seventh Judicial Circuit Court denied Chant's motion on April 30, 2013, and filed its findings of fact and ...