CONSIDERED ON BRIEFS ON AUGUST 28, 2017.
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE
COUNTY, SOUTH DAKOTA
J. JACKLEY Attorney General GRANT FLYNN Assistant Attorney
General Pierre, South Dakota Attorneys for plaintiff and
BURNS of Churchill, Manolis, Freeman, Kludt, Shelton &
Burns LLP Huron, South Dakota Attorneys for defendant and
HONORABLE JON R. ERICKSON Judge.
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.
and Procedural History
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.
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
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.
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
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.
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 ...