Wabasha v. State

292 N.W.2d 340, 1980 S.D. LEXIS 310

• Court: South Dakota Supreme Court
• Decided: May 21, 1980
• Docket: 12655
• Status: Published

Opinions

DUNN, Justice (on reassignment).

This is an appeal from the trial court’s denial of petitioner’s request for post-conviction relief. We affirm.

Four days after petitioner was taken into custody by Yankton County authorities, he was taken before a law-trained magistrate, acting as a committing magistrate. He waived his rights to a preliminary hearing and was bound over for trial. He was arraigned before the circuit court the next . day and entered a plea of guilty to a charge of first degree robbery. The following day he appeared for sentencing and was sentenced to fifteen years in the penitentiary. At the time, petitioner, who had a seventh or eighth grade education, was twenty years old.

The pro se petition alleged that (1) there was an unnecessary delay in prosecution; (2) there was no effective waiver of right to counsel at either the preliminary examination before the committing magistrate or at the arraignment; (3) at the arraignment, the trial court failed to advise petitioner of the nature and elements of the charge against him; and (4) at the sentencing, he was not advised of his right to appeal. The petitioner contends that these procedures were defective and denied him due process of law under the federal and state constitutions.

The post-conviction trial judge concluded that petitioner had effectively waived counsel; that he had entered a voluntary and intelligent plea; that he had been informed of all the elements of the charge; and that the trial court had determined a sufficient factual basis for the plea. He further concluded that the sentencing was not in violation of SDCL 23-48-5.¹ He made no conclusion regarding delay in the prosecution, nor did petitioner propose any.

Our initial finding is that no error was committed by failing to make a record of the preliminary arraignment. At the póst-conviction hearing, the court received the Commitment for Trial and Certificate. This Commitment established that petitioner was informed of his constitutional rights and thereafter waived a preliminary hearing. In People v. Losinger, 331 Mich. 490, 50 N.W.2d 137 (1951), the Michigan Supreme Court held that the waiver of a preliminary examination is established by the return of the magistrate; the waiver of the accused need not be in writing. At a post-conviction hearing, the petitioner has the burden of proving that his constitutional rights have been denied. Petitioner’s mere assertion that he does not remember what the magistrate said to him is insufficient. State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969). .

Moreover, the petitioner pleaded guilty to the charge, and under State v. Mee, 67 S.D. 335, 292 N.W. 875 (1940), such a plea constitutes a waiver of the right to a preliminary examination. In response, petitioner contends that he was threatened by a DCI agent with the maximum penalty and an habitual offender charge. At the post-conviction hearing, however, Yankton County Sheriff Carl Moser, who the petitioner admitted was present during the only conversation between petitioner and the DCI agent, testified that no such threat was made. The lower court accepted the sheriff’s testimony, and this court will not disturb a trial court’s findings on post-conviction relief unless the evidence preponderates against them. State v. Roth, 84 S.D. 44, 166 N.W.2d 564. The petitioner has not met this burden, and we find that his guilty plea was voluntarily entered.

Likewise, petitioner’s waiver of counsel was voluntary. The trial court not only informed him of his right to counsel but strongly encouraged him to accept the assistance of counsel. Petitioner declined the court’s offer to appoint counsel.

At the arraignment, the information was read to the petitioner. It recited that petitioner took personal property from a named victim while pointing a handgun at him, thereby putting the victim in fear of immediate injury to his person. Next, petitioner responded affirmatively to questions by the court as to whether he had robbed the victim and whether he possessed a handgun at the time. Petitioner now claims that because the question did not contain a specific query as to whether the gun was pointed at the victim it is unclear whether the gun was actually employed in the robbery or merely in the getaway.

It is well-established that the trial court must develop a factual basis for a guilty plea before it may be accepted. Nachtigall v. Erickson, 85 S.D. 122, 178 N.W.2d 198 (1970). This is not done in a vacuum, however. The information was written in language understandable to a lay person and was read to petitioner. Combining the information’s allegations with petitioner’s affirmative answers, the trial court properly inferred that the petitioner committed the offense with which he was charged. Although the petitioner is not well educated, he is not unfamiliar with the criminal justice system, and we are convinced that he understood the nature of the charge. The fact that petitioner stated, in response to the court’s question, that he was pleading guilty to “armed robbery” instead of using the term “first degree robbery” does not sway us; we remain convinced that the nontechnical language of the information clearly explained the nature of the charge.² State v. Holmes, 270 N.W.2d 51 (S.D.1978).

The petitioner objects to the fact that he was sentenced the day after his guilty plea was accepted. It is true that SDCL 23-48-5³ requires a two-day period between the guilty plea and the sentencing; however, defendant made no objection to being sentenced on the day after his plea, and he did not indicate at the post-conviction hearing how he was prejudiced in any way by failure of the court to delay sentencing for forty-eight hours. In the absence of testimony that this additional time would have been used to withdraw his plea or take some other action in his own behalf, we see no prejudice requiring post-conviction relief.

The petitioner’s remaining arguments are all without merit.

The judgment denying post-conviction relief is affirmed.

WOLLMAN, C. j., and FOSHEIM, J., concur. MORGAN, J., concurs specially. HENDERSON, J., dissents.

1 . Repealed by 1978 Sess.L. ch. 178, § 577, and reenacted in pertinent part as SDCL 23A-27-1.

2 . This arraignment and plea took place in May of 1977, and previous to our decision in Spirit Track v. State, 272 N.W.2d 803 (S.D.1978), where the requirements of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), were stated with approval. Spirit Track also differs in that we were dealing there with a defendant who did not admit to the crime with which he was being charged; he stated only that he did not remember the acts charged.

3 . See note 1.