on Briefs January 11, 2016
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE
COUNTY, SOUTH DAKOTA. THE HONORABLE MICHELLE K. PALMER PERCY,
J. JACKLEY, Attorney General, JARED C. TIDEMANN, Assistant
Attorney General, Pierre, South Dakota, Attorneys for
plaintiff and appellee.
J. BARNAUD, Spearfish, South Dakota, Attorney for defendant
Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
KERN, Justices, concur.
[¶1] Defendant pleaded guilty in South
Dakota to driving under the influence and admitted to being a
habitual offender. After entry of the judgment of conviction,
the State of Nebraska suspended defendant's commercial
driver's license. Defendant filed a motion in a South
Dakota circuit court to reopen his case and allow him to
withdraw his guilty plea under SDCL 23A-27-11. He claimed the
loss of his commercial driver's license constituted a
manifest injustice. The circuit court denied defendant's
motion, and he appeals. The State asserts that this Court
lacks jurisdiction to consider defendant's appeal. We
agree and dismiss for lack of appellate jurisdiction.
[¶2] On August 8, 2013, a law enforcement
officer stopped Corey Kaufman for driving erratically. The
officer smelled the odor of alcohol, and Kaufman admitted he
had been drinking. He failed five of seven sobriety tests,
and his blood alcohol
content was .142. The officer arrested Kaufman. An
information filed on August 9, 2013, charged Kaufman with
driving under the influence in violation of SDCL 32-23-1(2),
and, in the alternative, driving while having a blood alcohol
content of .08 percent or more in violation of SDCL
32-23-1(1). A part II information alleged Kaufman to be a
habitual offender in violation of SDCL 32-23-3.
[¶3] At his initial appearance, on August 9,
2013, the magistrate court advised Kaufman of his rights.
Kaufman intended to plead guilty. Prior to accepting
Kaufman's plea, the court generally explained that a plea
of guilty could impact one's driving privileges. The
court did not specifically inform Kaufman that a guilty plea
would impact his Nebraska commercial driver's license
(CDL). Kaufman pleaded guilty to violating SDCL 32-23-1(1)
and admitted to the part II information. On August 13, 2013,
the court sentenced Kaufman and entered a judgment of
conviction. Kaufman did not appeal.
[¶4] On October 21, 2014, Kaufman moved the
circuit court to reopen his case and allow him to withdraw
his guilty plea under SDCL 23A-27-11. That statute provides
that a court may allow a defendant to withdraw a guilty plea
after sentence, but only to correct a manifest injustice.
Id. Kaufman alleged that a manifest injustice
occurred because the magistrate court failed to advise him
that a guilty plea would result in the suspension of his
Nebraska CDL for life with a possibility of reinstatement
after ten years. He claimed he would not have pleaded guilty
had he been aware of the consequence to his CDL. Kaufman
asserted that his CDL was necessary to his "
livelihood" and ability to provide for his child and
[¶5] On April 7, 2015, the circuit court
orally denied Kaufman's motion. It ruled that Kaufman did
not present clear and convincing evidence that a manifest
injustice occurred. The court also ruled that the loss of a
CDL is a collateral consequence, of which the court had no
duty to ...