Considered on Briefs November 17, 2014
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE THOMAS L. TRIMBLE, Judge.
MARTY J. JACKLEY, Attorney General, KELLY MARNETTE, ELLIE J. BAILEY, Assistant Attorneys General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
ROBBIE J. ROHL of DeMersseman, Jensen, Tellinghuisen & Huffman, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee.
ZINTER, Justice. GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.
[¶1] Brandon Wolf was arrested for driving under the influence (DUI) in 2013. Wolf had been previously convicted of DUI in 2005 and 2012. Wolf argued that the 2005 conviction was constitutionally invalid for sentence-enhancement purposes because he did not knowingly and voluntarily enter his guilty plea. The circuit court
agreed, and we granted the State's petition for an intermediate appeal. We reverse.
[¶2] Wolf was arrested for DUI on March 31, 2013, in Pennington County. The State filed a part II information charging Wolf with third offense DUI based on a 2005 DUI conviction in Cass County, North Dakota and a 2012 DUI conviction in Pennington County.
[¶3] Wolf filed a King challenge to the validity of his 2005 DUI conviction for sentence-enhancement purposes. See State v. King, 383 N.W.2d 854 (S.D. 1986) (abrogated by State v. Chant, 2014 S.D. 77, 856 N.W.2d 167). Wolf argued that he had not knowingly and voluntarily entered a guilty plea on that conviction. He contended that at the time of the plea, he was not provided with adequate information concerning the nature of his plea and his constitutional and statutory rights. He also contended that he pleaded guilty without the advice of counsel.
[¶4] The written records relating to the 2005 plea indicated that Wolf had waived his statutory and constitutional rights, including his right to counsel. There were, however, no recordings or transcripts of the 2005 proceedings. The circuit court ruled that because there was no transcript showing the colloquy between Wolf and the court, Wolf's advisement and waiver of rights records were insufficient to establish that his plea was voluntary, that he understood the consequences of pleading guilty, and that he waived his Boykin rights. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Although no evidentiary hearing was held on Wolf's collateral attack, the court also found that the plea was involuntary under the factual circumstances. The circuit court struck the 2005 DUI conviction from the part II information, and we granted the State's petition for an intermediate appeal.
[¶5] A procedural question has developed since we granted the petition for intermediate appeal. Based on our recent decision in Chant, 2014 S.D. 77, 856 N.W.2d 167, we must determine whether Wolf's collateral attack was procedurally barred. In Chant this Court held that " a defendant may only collaterally attack prior convictions used for enhancement if he or she was unrepresented by counsel when pleading guilty." Id. ¶ 12, 856 N.W.2d at
__. Wolf was unrepresented in the 2005 proceedings. However, the written record of those proceedings reflects that Wolf waived his right to counsel. Therefore, the question is whether Chant's procedural bar applies in cases where a defendant waives the right to counsel.
Chant adopted the rule set forth in Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Custis held that there was no right to collaterally attack the validity of prior convictions used for sentence enhancement " with the sole exception of convictions obtained in violation of the right to counsel[.]" Id. at 487, 114 S.Ct. at 1734. In discussing the nature of the right to counsel violations that would permit a collateral attack, the Supreme Court observed: " If the accused . . . is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty." Id. at 494, 114 S.Ct. at 1737 (emphasis added) (quoting Johnson v. Zerbst, ...