on Briefs March 21, 2016.
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES
COUNTY, SOUTH DAKOTA. THE HONORABLE JOHN L. BROWN, Judge.
J. JACKLEY, Attorney General, CRAIG M. EICHSTADT, Assistant
Attorney General, Pierre, South Dakota, Attorneys for
LUND of, The Schreiber Law Firm, Prof. LLC, Pierre, South
Dakota, Attorneys for defendant and appellant.
Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and
KERN, Justices, concur.
[¶1] Maurice Sanders pleaded guilty to
forgery and engaged in a colloquy with the circuit court
regarding the factual basis for the plea. The court accepted
the plea and entered a judgment of conviction and sentence.
Sanders appeals. He claims that the circuit court did not
have subject matter jurisdiction because Sanders's
factual basis did not affirmatively establish that the
offense occurred in South Dakota. We affirm because an
inadequate factual basis does not deprive a circuit court of
its subject matter jurisdiction.
[¶2] Sanders was indicted on one count of
forgery in violation of SDCL 22-39-36. Two and one-half
years later, while incarcerated in Illinois, he made a
request for disposition of the indictment. Pursuant to that
request, he was returned to South Dakota to face the
indictment under the Interstate Agreement on Detainers Act.
With the assistance of court-appointed counsel, Sanders
entered into a plea agreement with the State. The court
subsequently advised Sanders of his statutory and
constitutional rights, and he pleaded guilty to the charge.
The court then engaged in a colloquy with Sanders to
establish a factual basis for the plea. After determining
that a factual basis existed, the court accepted the plea.
During Sanders's subsequent presentence investigation, he
indicated that he had lived in Pierre, that he had been
employed in Pierre, and that the check was obtained from the
EZ Payday Advance in Pierre. However, Sanders indicated that
he forged the check
in Illinois. Sanders never raised a factual issue about the
location of the offense in the circuit court proceedings. The
court sentenced Sanders without objection, and Sanders now,
for the first time, raises the location of the forgery as an
[¶3] Sanders argues that the adequacy of a
factual basis for a plea is a jurisdictional issue. He also
points out that jurisdictional defects may be raised for the
first time on appeal. State v. Neitge, 2000 S.D. 37,
¶ 9, 607 N.W.2d 258, 260. Sanders's argument begins with
the contention that the circuit court failed to obtain a
factual basis that the offense occurred in South
Dakota. See SDCL 23A-7-14 (Rule
11(f)) (requiring a plea-taking court to " defer
acceptance of any plea except a plea of nolo contendere until
it is satisfied that there is a factual basis for the offense
charged or to which the defendant pleads" ). Sanders
then points out that a plea-taking court is required to
obtain a factual basis for each element of the offense.
See State v. Nachtigall, 2007 S.D. 109, ¶
5, 741 N.W.2d 216, 219. Sanders concludes that the "
location of the offense is an essential element the court
must inquire upon in finding a factual basis for a guilty
plea because it is fundamental to subject matter
jurisdiction[.]" Sanders, however, incorrectly conflates
the factual basis requirement in SDCL 23A-7-14 (Rule 11(f))
with a court's subject matter jurisdiction.
[¶4] The factual basis requirement in SDCL
23A-7-14 (Rule 11(f)) is not jurisdictional. See
United States v. Timmreck, 441 U.S. 780, 783, 99
S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (concluding that a
failure to comply with Rule 11 of the Federal Rules of
Criminal Procedure is neither " constitutional nor
jurisdictional" ); State v. Moeller, 511 N.W.2d
803, 811 (S.D. 1994) (concluding that failure to inquire into
the factual basis for a plea is neither " constitutional
nor jurisdictional" ); Petrilli v. Leapley, 491
N.W.2d 79, 83 n.2 (S.D. 1992) (same). Therefore, a failure to
comply with the factual basis requirement in SDCL 23A-7-14
(Rule 11(f)) does not deprive the circuit court of
jurisdiction over the subject matter alleged in the
[¶5] Subject matter jurisdiction is "
the courts' statutory or constitutional power to
adjudicate the case[,]" United States v.
Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 1785, 152
L.Ed.2d 860 (2002), and whether a court has subject matter
jurisdiction is determined by the indictment. State v.
Janssen, 371 N.W.2d 353, 356 (S.D. 1985) (" a valid
and sufficient [indictment] confers subject matter
jurisdiction upon the court." ); State v.
Osborn, 155 Ind. 385, 58 N.E. 491, 493 (Ind. 1900)
(" jurisdiction over the subject-matter of the offense
charged depends upon the ...