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State v. Shelton

Supreme Court of South Dakota

September 13, 2017

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHARLES MICHAEL SHELTON, JR., Defendant and Appellant.

          CONSIDERED ON BRIEFS ON AUGUST 28, 2017.

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA

          MARTY J. JACKLEY Attorney General GRANT FLYNN Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.

          JEFF BURNS of Churchill, Manolis, Freeman, Kludt, Shelton & Burns LLP Huron, South Dakota Attorneys for defendant and appellant.

          KERN, Justice

          THE HONORABLE JON R. ERICKSON Judge.

         [¶1.] Charles Shelton appeals from a judgment of conviction for fourth- degree rape. He contends that his conviction should be reversed because the circuit court judge lacked jurisdiction to enter the judgment and because he did not receive a preliminary hearing after the State filed an amended information. We affirm.

         Facts and Procedural History

         [¶2.] Following accusations that he provided a minor with alcohol and then had sexual intercourse with her while she was passed out, Shelton was indicted on one count of third-degree rape and one count of fourth-degree rape. The minor was fifteen years old at the time of the incident.

         [¶3.] Approximately one month before Shelton's trial, his attorney moved to withdraw from the case. Shelton's former cellmate came forward with information that Shelton confessed to him that Shelton had committed the rape. The attorney represented both Shelton and the former cellmate. Due to the conflict, the court allowed the attorney to withdraw and appointed a new attorney to represent Shelton. A week later, the circuit judge overseeing the matter sent a letter to the new attorney disclosing that the judge's ex-wife is a partner in the new attorney's law firm and that this was a potential basis for disqualification. The judge stated:

You are now advised that I will disqualify myself from this proceeding, and another judge will be assigned to hear this case, unless you and your client agree in writing that I should not be disqualified, and that I may continue to preside over this action.

         A written agreement waiving disqualification was not provided and there was no further mention of the issue in the record. Nevertheless, the same judge continued to preside over the trial.

         [¶4.] Three days before the trial, the State filed an amended complaint and information. This was done to correct a clerical error in the original indictment. The caption of the indictment reflected that Shelton was charged with one count of third-degree rape and one count of fourth-degree rape. However, in the body of the indictment under Count I, it stated that Shelton "did commit the public offense of RAPE - SECOND DEGREE (SDCL 22-22-1(4))[.]" While the citation to the statute correctly corresponded with third-degree rape, the text before it indicated Shelton was charged with second-degree rape. The amended information corrected the mistake. Before Shelton's jury trial commenced, the court noted that the amended information had been filed and arraigned Shelton on the charges. Shelton was not advised of his right to a preliminary hearing-nor did he receive one. Yet Shelton failed to object. The jury was instructed on the elements of third-degree rape and fourth-degree rape and the evidence presented at trial conformed to those charges.

         [¶5.] Following trial, Shelton was acquitted of third-degree rape but found guilty of fourth-degree rape. The court sentenced Shelton to fifteen years in the penitentiary. Shelton appeals, arguing that the judge lacked jurisdiction to enter the judgment of conviction due to judicial disqualification and that in the absence of ...


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