State v. Goodwin

2004 SD 75, 681 N.W.2d 847, 2004 S.D. LEXIS 81

• Court: South Dakota Supreme Court
• Decided: June 2, 2004
• Docket: None
• Status: Published

Opinions

MEIERHENRY, Justice

(on reassignment).

[¶ 1.] James Goodwin was charged with aggravated assault under SDCL 22-18-l.l(4).¹ At his arraignment, he entered a plea of not guilty. Subsequently, Goodwin changed his plea to guilty in accordance with a plea agreement with the State. After sentencing, Goodwin filed a motion to withdraw his plea claiming that his plea was not voluntary. The trial court denied Goodwin’s motion. Goodwin appeals. We reverse.

FACTS

[¶ 2.] Although some of the details are in dispute, the events leading up to the charged offense started when Patrick James (James), Jessica Yeoman, Joshua Feickert and others were at a party near a shopping mall in Rapid City, South Dakota. A verbal altercation ensued between Feickert and James, after which Feickert left the party. Yeoman gave Feickert a ride to the shopping mall to make a phone call. Yeoman returned to the party and told James where she had left Feickert. Yeoman and James returned to the mall. Goodwin who had just arrived at the party followed them. At the mall, James approached Feickert hitting him twice in the face with his fist. The two continued to fight until Feickert was on the ground. The testimony indicated that James continued to hit and kick Feickert as he lay on the ground. Defendant Goodwin who had not been in the fight up to this point approached the fallen Feickert and kicked him in the face. Feickert was taken to the hospital where it was determined his jaw was broken in two places. Goodwin and James were both charged for the incident. The charges against James were eventually dismissed.

[¶ 3.] At his arraignment, 19-year-old Goodwin was advised of his rights and responded affirmatively when asked if he understood his rights. Over the following weeks, Goodwin’s counsel negotiated a plea agreement with the State. At the Change of Plea Hearing, eighty-nine days after the arraignment, Goodwin pleaded guilty to the charge of aggravated assault. The judge accepted the plea and subsequently sentenced Goodwin to five years in the South Dakota Penitentiary and ordered him to pay full restitution of approximately $55,000.

ISSUE

Whether the trial court abused its discretion in denying Goodwin’s motion to withdraw his guilty plea to correct a manifest injustice.

STANDARD OF REVIEW

[¶ 4.] The decision to allow a defendant to withdraw a guilty plea is a matter solely within the discretion of the trial court and is reviewed under an abuse of discretion standard. State v. Wahle, 521 N.W.2d 134, 136-37 (S.D.1994). We have said that the trial court’s discretion to allow withdrawal of a guilty plea prior to “sentencing should be exercised liberally in favor of withdrawal.” Id. at 137. However, a stricter standard should be applied when a defendant requests to withdraw a guilty plea after, a sentence has been imposed. Withdrawal of a plea after sentencing may be granted “to correct manifest injustice.” SDCL 23A-27-11. The statute provides:

A motion to withdraw a plea of guilty ... may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice a court after sentence may set aside a judgment of conviction and permit the defendant to withdraw his plea.

Id. (emphasis added). The stricter standard for withdrawing a plea after sentencing is “ ‘to prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe.’ ” State v. Lohnes, 344 N.W.2d 686, 688 (S.D.1984) (quoting United States v. McKoy, 645 F.2d 1037, 1040 n. 3 (C.A.D.C. 1981)). However, if a defendant enters a plea “without full knowledge of the consequences and involuntarily” the trial court’s discretion should favor withdrawal of the guilty plea. Wahle, 521 N.W.2d at 137. Additionally a direct appeal is afforded more intense scrutiny than if the challenge is by a collateral habeas corpus action. State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994). As we said in Moeller:

Upon a direct appeal from a conviction the defendant must be given all presumptions and protections possible under our constitution. However, when the proceeding before the court is in the nature of a collateral attack, as in a habeas corpus action or a challenge to the validity of predicate convictions, it becomes subject to less intense scrutiny upon review.

Id. (emphasis added in part). Since Goodwin challenges the voluntariness of his guilty plea by direct appeal, we must give him “all the presumptions and protections possible under our constitution.” Id.

DECISION

[¶ 5.] Goodwin claims the trial court should have allowed him to withdraw his guilty plea (1) because his plea was not voluntary and (2) because he entered his plea without knowing the consequences.

[¶ 6.] In determining voluntariness of a guilty plea, we have repeatedly stated “that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial — and an understanding of the nature and consequences of the plea.” Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970); State v. Holmes, 270 N.W.2d 51, 53 (S.D.1978); Lodermeier v. State, 273 N.W.2d 163, 165 (S.D.1978). Specifically, in Boykin v. Alabama, the United States Supreme Court held that a defendant must know and understand his “privilege against compulsory self-incrimination”; his “right to trial by jury”; and his “right to confront [his] accusers.” 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d-274 (1969). Further, the defendant must know and understand that entering a plea of guilty constitutes a waiver of these rights. Id. at 243-44, 89 S.Ct. 1709. As the United States Supreme Court stated in Parke v. Raley, “It is beyond dispute that a guilty plea must be both knowing and voluntary.” 506 U.S. 20, 28, 113 S.Ct. 517, 523, 121 L.Ed.2d 391, 404.

[¶ 7.] SDCL 23A-7-4 (Rule 11(c)) establishes a procedure for the judge to follow to ensure that a guilty plea is knowing and voluntary. Rule 11(c) is fairly straightforward on what the trial court should do. The statute clearly states, “Before accepting a plea of guilty ... a court must address the defendant personally in open court ... and inform him of, and determine that he understands.” SDCL 23A-7-4 (emphasis added). The statute provides:

Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in § 23A-7-5, and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;

(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;

(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;

(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and

(5) That if he pleads guilty or nolo con-tendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.

Id.

[¶ 8.] When Goodwin was arraigned on October 25, 2001, the judge thoroughly explained the charges, penalties and rights. Eighty-nine days after the arraignment on January 22, 2002, Goodwin changed his plea to guilty. When Goodwin appeared before the judge to change his plea to guilty, the trial court abbreviated the proceeding significantly. The trial court’s entire colloquy at the plea hearing transpired as follows:

THE COURT: This is the case of State v. James Goodmn. This is the time set for a plea. What is the plea going to be to?

DEFENSE COUNSEL: To one count in the Information of aggravated assault.

THE COURT: Is that your understanding?

THE DEFENDANT: Yes, sir.

THE COURT: Is there a plea agreement, other than what you stated?

STATE’S ATTORNEY: The Defendant will plead guilty to one count of aggravated assault. The Defendant will be responsible for all the costs of the prosecution and his share of restitution at the time of sentencing. State will accept the recommendations set forth in the presentence, and otherwise will remain silent. As far as the amount of incarceration, penitentiary time would be our recommendation, but we would leave the actual amount of time up to the Judge. The State will recommend penitentiary, but no specific amount. State will oppose a suspended imposition.

THE COURT: Is that your understanding of the agreement, Mr. Goodwin?

THE DEFENDANT: Yes, sir.

THE COURT: I will ask you then, to the charge of aggravated assault, what is your plea, guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: Has anyone threatened, coerced or promised you anything, other than what you have heard here in open Court, to get you to enter this plea?

THE DEFENDANT: No, sir.

THE COURT: It says here that you assaulted a Joshua Feickert; is that correct?

THE DEFENDANT: Yes, sir.

THE COURT: How did you do that?

THE DEFENDANT: Joshua Feickert and Pat James were on the ground, and I kicked Joshua Feickert in the head.

THE COURT: Did it cause injury to him?

THE DEFENDANT: I don’t think so.

THE COURT: Does anybody know what the injuries were?

DEFENSE COUNSEL: He sustained injuries, and had to seek medical attention. He had a—

STATE’S ATTORNEY: He had a broken jaw, your Honor.

THE COURT: He sustained a broken jaw. I will accept the plea as being given freely and voluntarily, and find that there is a factual basis for the plea. We will set the matter for sentencing on March 4th at 9:00 o’clock. I want a presentence done also.

The trial judge asked Goodwin (1) what his plea was, (2) whether he understood that he was entering a plea to the charge of aggravated assault, (3) whether there was a plea agreement, (4) whether he understood the terms of the plea agreement, and (5) whether anyone had threatened, coerced or promised him anything to get him to enter the plea.

[¶ 9.] What is significant here is what the trial judge did not ask Goodwin. He does not ask him whether he understood that he was giving up his right to a trial, his right to confront the witnesses against him and his right against self incrimination. The judge also does not reiterate the possible penalties that could be imposed. The questions and answers at the time the defendant entered his guilty plea failed to elicit responses from which the judge could determine whether Goodwin “intelligently” or “knowingly” waived his rights. In fact, the judge did not specifically conclude the rights were “intelligently” and “knowingly” waived. The judge asked Goodwin, “Has anyone threatened, coerced or promised you anything, other than what you have heard here in open Court, to get you to enter this plea?” Goodwin answers, “No, sir.” Although the judge made no reference to the waiver of rights, the judge nevertheless concluded that he would “accept the plea as being given freely and voluntarily.” A defendant’s answer that he has not been forced or coerced into pleading guilty does not necessarily mean he understands the full ramification of the rights that he gives up by pleading guilty or the possible penalties he faces. That is why it is important, as we have previously stated, for the trial judge before accepting a guilty plea to “actively participate by ‘canvassing the matter with the accused.’ ” Nachtigall, 85 S.D. at 128, 178 N.W.2d at 201. “The trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.” State v. Sutton, 317 N.W.2d 414, 416 (S.D.1982).

[¶ 10.] The importance of canvassing the defendant when he enters a guilty plea is vital. For it is at this juncture that the defendant waives his rights and needs to understand the consequences of his plea. Shortcutting the procedure when accepting a guilty plea leaves a question about the defendant’s mental state and understanding. That is why courts have consistently emphasized the importance of the trial court’s dialogue with the defendant in order for the court to satisfy itself that the defendant understands what is at stake and the rights he is relinquishing.

[¶ 11.] The mere fact that the same judge explained Goodwin’s rights in detail at the arraignment is not sufficient alone in determining that Goodwin made a free and intelligent waiver at his plea 89 days later. We must look to “the totality of the circumstances when ascertaining whether a plea was made knowingly and voluntarily.” State v. Lashwood, 384 N.W.2d 319, 321 (S.D.1986). In examining the “totality of the circumstances” we have taken into consideration the following factors: the defendant’s age; his prior criminal record; whether he is represented by counsel; the existence of a plea agreement; Weiker v. Solem, 515 N.W.2d 827, 832 (S.D.1994); and the time between advisement of rights and entering a plea of guilty. Clark v. State, 294 N.W.2d 916, 919 (S.D.1980). We will, therefore, examine each of these factors as they apply to Goodwin.

[¶ 12.] The first factor in the analysis is the young age of defendant. Age as a factor relates to Goodwin’s maturity and experience and bears upon the determination of whether his plea was voluntary.² Goodwin was 19 years of age facing his first felony.³ He had just graduated from high school and still lived at home with his mother. Further, none of the court’s questions at the plea hearing explored Goodwin’s maturity and experience.

[¶ 13.] The second factor which enters into the analysis of whether a plea is voluntary is Goodwin’s lack of a prior criminal record. Goodwin had no prior experience with the legal system from which to draw knowledge or understanding. This factor, as with his age, mitigates against him having made a free and intelligent waiver of his rights.

[¶ 14.] The third factor in the totality of the circumstances analysis is legal representation. It is assumed that legal counsel has explained the consequences of a guilty plea to a defendant. Cf. Henderson v. Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258, 49 L.Ed.2d 108 (1976) (discussing that it is usually assumed counsel has explained the nature of the offense and what will have to be admitted). Goodwin claims in his affidavit in support of his motion to withdraw his guilty plea that his attorney had not explained the consequences of the guilty plea. Goodwin states: “Prior to entering my guilty plea on or about January 22, 2002, I was not advised of any rights by my attorney ... to confront and cross examine witnesses, and the right not to be compelled to incriminate myself. I also was not advised of those rights by the Court and did not waive those rights ... at the plea hearing held in this case.” Here Goodwin appears with counsel at the hearing. During the abbreviated plea hearing, very little is offered or said by Goodwin’s counsel. The trial court does not ask Goodwin’s counsel nor does counsel offer any information about whether he had discussed the consequences or voluntariness of the plea with Goodwin. At the hearing, Goodwin’s attorney only speaks twice: once to indicate the charge to which Goodwin will plead and second to answer a question about the victim’s injury which he is unable to finish answering because the State’s attorney interrupts him. Also, this Court recently said that “[t]he duty to explain these rights on the record belongs to the trial court and not to the defendant’s attorney.” State v. Nikolaev, 2000 SD 142, ¶ 7, 619 N.W.2d 244, 245 (citing Croan v. State, 295 N.W.2d 728, 729 (S.D.1980)).

[¶ 15.] The fourth factor that may be considered is the existence of a plea agreement. We considered a plea bargain in Clark in determining if the defendant understood the consequences of his guilty plea. 294 N.W.2d at 920. Specifically, Clark knew “that the prosecutor would recommend a sentence of 10 years,” Id. Along with the plea agreement, other factors weighed against Clark’s claim. He was twenty-eight years old, had previously been convicted of a felony, was adequately represented by counsel and “was not functioning blindly within the criminal court system.” Id. <

[¶ 16.] The plea agreement' with Goodwin as recited by the State’s attorney at the plea hearing was as follows:

The Defendant will plead guilty to one count of aggravated assault. The Defendant will be responsible for all the costs of the prosecution and his share of restitution at the time of sentencing. State will accept the recommendations set forth in the presentence, and otherwise will remain silent. As far as the amount of incarceration, penitentiary time would be our recommendation, but we would leave the actual amount of time up to the Judge. The State will recommend penitentiary, but no specific amount. State will oppose a suspended imposition.

The court then asked, “Is that your understanding of the agreement,.Mr. Goodwin?” To which Goodwin answered, “Yes, sir.” This short recitation offers little in the analysis of whether Goodwin’s plea was voluntary, and unlike Clark the specific term of the sentence was not stated. The agreement does, however, indicate that Goodwin would be responsible for “his share of restitution.” Goodwin claims that he expected to be required to pay part of the restitution and James, who was also charged, would pay the rest. The State dismissed the' charges against James and the trial court ordered Goodwin to pay the full amount. Goodwin claims as to restitution the plea agreement was not followed and that the inequity of requiring him to pay more than his share adds to his claim of manifest injustice.

[¶ 17.] Finally, in the totality of the circumstances analysis the time lapse between the explanation of rights at the arraignment and the guilty plea is considered. This is a relevant factor in this case because Goodwin was told his rights, the nature of the charge, and the maximum sentence at his arraignment but was not re-advised at his guilty plea nor. specifically canvassed concerning the waiver of those rights or consequences of the plea. Although we have previously determined that a court may not be required to repeat the rights and consequences at the plea hearing if the same judge provided an explanation at the arraignment, much depends on the circumstances of the individual case. Singletary v. State, 88 S.D. 655, 227 N.W.2d 424 (1975); Clark, 294 N.W.2d 916. In denying Goodwin’s motion to withdraw his guilty plea, the trial judge relied on the fact that he had advised Goodwin of his rights at the arraignment. However, the time frame here is significant. The closer the arraignment explanation is to the guilty plea the more likely the defendant remembers the recitation of rights. Our prior cases have allowed, in habeas challenges, time frames of five hours in Singletary, 88 S.D. 655, 227 N.W.2d 424; 26 days in Clark, 294 N.W.2d 916 (discussed supra); and 30 days in Stacey v. State, 349 N.W.2d 439 (S.D.1984). In Singletary, the defendant changed his plea after jury selection had commenced and the State’s first two witnesses had been cross-examined. 88 S.D. at 660, 227 N.W.2d 424. This Court reasoned that Singletary “was not only explained his rights but participated in the very proceedings those rights guaranteed,” leaving no doubt that he knew his rights' and voluntarily waived them. Id. In Stacey, the circuit court extensively questioned the defendant on the voluntariness of the plea. 349 N.W.2d at 442. In another case however, the plea was reversed because there was a 57 day lapse and a different judge presided at the plea hearing. In re Garritsen, 376 N.W.2d 575, 577-78 (S.D.1985). For Goodwin, 89 days had elapsed between the arraignment and guilty plea — far longer than 5 hours, 26 days, or 30 days. Additionally, his challenge is on direct appeal which requires more intense scrutiny than a habeas challenge. The trial court did not repeat nor make any reference to the explanation of the charges, penalty or rights which he had given to Goodwin 89 days earlier at the arraignment. Whether the defendant remembered the recitation of rights or understood that he waived those rights by entering a guilty plea is not apparent from the record. Nor does the record reveal his intellectual faculty to recall and understand.

[¶ 18.] A nineteen-year-old charged with a serious felony having no prior experience with criminal court should be afforded his constitutional and statutory rights and is entitled to have the trial judge, at least, canvass him meaningfully to determine if he understands the rights that he is waiving and the full consequences of entering a guilty plea. The record does not show that Goodwin knowingly and voluntarily waived his rights based upon the totality of the circumstances. The trial court abused its discretion by not allowing Goodwin to withdraw his guilty plea to correct a manifest injustice. We reverse and remand to allow the defendant to withdraw his guilty plea and proceed to trial.

[¶ 19.] SABERS, Justice, concurs, and KONENKAMP, Justice, concurs with writing. [¶ 20.] GILBERTSON, Chief Justice and ZINTER, Justice, dissent.

1 . SDCL 22-18-1.1 states in part:

Any person who:

[[Image here]]

(4) Assaults another with intent to commit bodily injury which results in serious bodily injury

[[Image here]]

is guilty of aggravated assault.

2 . Age is also a factor in determining if a confession was voluntarily given. It remains a factor even if the confessor is over the age of majority. See State v. Darby, 1996 SD 127, ¶ 29, 556 N.W.2d 311, 319.

3 . Goodwin was only 18 years of age at the time of the alleged assault.