State v. Kaufman

#27444-dismissed-LSW
2016 S.D. 24
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
COREY D. KAUFMAN, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
MEADE COUNTY, SOUTH DAKOTA
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THE HONORABLE MICHELLE K. PALMER PERCY
Judge
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MARTY J. JACKLEY
Attorney General
JARED C. TIDEMANN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
TIMOTHY J. BARNAUD
Spearfish, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON JANUARY 11, 2016
OPINION FILED 03/16/16
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WILBUR, Justice
[¶1.] Defendant pleaded guilty in South Dakota to driving under the
influence and admitted to being a habitual offender. After entry of the judgment of
conviction, the State of Nebraska suspended defendant’s commercial driver’s
license. Defendant filed a motion in a South Dakota circuit court to reopen his case
and allow him to withdraw his guilty plea under SDCL 23A-27-11. He claimed the
loss of his commercial driver’s license constituted a manifest injustice. The circuit
court denied defendant’s motion, and he appeals. The State asserts that this Court
lacks jurisdiction to consider defendant’s appeal. We agree and dismiss for lack of
appellate jurisdiction.
Background
[¶2.] On August 8, 2013, a law enforcement officer stopped Corey Kaufman
for driving erratically. The officer smelled the odor of alcohol, and Kaufman
admitted he had been drinking. He failed five of seven sobriety tests, and his blood
alcohol content was .142. The officer arrested Kaufman. An information filed on
August 9, 2013, charged Kaufman with driving under the influence in violation of
SDCL 32-23-1(2), and, in the alternative, driving while having a blood alcohol
content of .08 percent or more in violation of SDCL 32-23-1(1). A part II
information alleged Kaufman to be a habitual offender in violation of SDCL 32-23-3.
[¶3.] At his initial appearance, on August 9, 2013, the magistrate court
advised Kaufman of his rights. Kaufman intended to plead guilty. Prior to
accepting Kaufman’s plea, the court generally explained that a plea of guilty could
impact one’s driving privileges. The court did not specifically inform Kaufman that
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a guilty plea would impact his Nebraska commercial driver’s license (CDL).
Kaufman pleaded guilty to violating SDCL 32-23-1(1) and admitted to the part II
information. On August 13, 2013, the court sentenced Kaufman and entered a
judgment of conviction. Kaufman did not appeal.
[¶4.] On October 21, 2014, Kaufman moved the circuit court to reopen his
case and allow him to withdraw his guilty plea under SDCL 23A-27-11. That
statute provides that a court may allow a defendant to withdraw a guilty plea after
sentence, but only to correct a manifest injustice. Id. Kaufman alleged that a
manifest injustice occurred because the magistrate court failed to advise him that a
guilty plea would result in the suspension of his Nebraska CDL for life with a
possibility of reinstatement after ten years. He claimed he would not have pleaded
guilty had he been aware of the consequence to his CDL. Kaufman asserted that
his CDL was necessary to his “livelihood” and ability to provide for his child and
ailing parents.
[¶5.] On April 7, 2015, the circuit court orally denied Kaufman’s motion. It
ruled that Kaufman did not present clear and convincing evidence that a manifest
injustice occurred. The court also ruled that the loss of a CDL is a collateral
consequence, of which the court had no duty to advise Kaufman. The court entered
an order on April 29, 2015, denying Kaufman’s motion.
[¶6.] Kaufman appeals and asserts that he “should be allowed to withdraw
his guilty plea due to the magistrate court’s failure to inform him at his initial
appearance that a plea to DUI second would cause him to lose his commercial
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driver’s license for life.” The State responds that this Court does not have
jurisdiction to consider Kaufman’s appeal.
Analysis
[¶7.] We first address whether this Court has jurisdiction to consider
Kaufman’s appeal. According to the State, no statute expressly gives a defendant
the right to appeal a circuit court’s stand-alone order denying a motion to withdraw
a guilty plea under SDCL 23A-27-11. The State similarly claims that no statute
gives this Court the discretion to consider an appeal from a stand-alone order under
SDCL 23A-27-11. Kaufman, in response, asserts that so long as a defendant timely
files his appeal under SDCL 23A-32-15 this Court has jurisdiction.
[¶8.] “The Supreme Court shall have such appellate jurisdiction as may be
provided by the Legislature[.]” S.D. Const. art. V, § 5. The Legislature enacted
SDCL chapter 23A-32 governing criminal appeals to the South Dakota Supreme
Court. Within this chapter, the Legislature gave this Court appellate jurisdiction in
three instances. Under SDCL 23A-32-2, a defendant may take an appeal to this
Court from a final judgment of conviction. For an appeal “not allowed as a matter
of right,” the state or defendant can appeal to the Supreme Court on “any
intermediate order made before trial[.]” SDCL 23A-32-12. The appeal is “not as a
matter of right, but of sound judicial discretion” and is “to be allowed by the
Supreme Court only when the court considers that the ends of justice will be served
by the determination of the questions involved without awaiting the final
determination of the action.” Id. The Legislature similarly provided this Court
discretion to consider an appeal by “the state or the defendant from an order
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granting or denying a motion to correct an illegal sentence or an order granting or
denying a motion to correct a sentence imposed in an illegal manner.” SDCL 23A-
32-22.
[¶9.] From our review of these three statutes, the Legislature did not give
this Court jurisdiction to consider an appeal from an order granting or denying a
motion to withdraw a guilty plea under SDCL 23A-27-11. It is undisputed that
Kaufman’s appeal is not from a final judgment of conviction. It is also not an appeal
from an intermediate order made before trial. And, Kaufman did not move the
circuit court to correct an illegal sentence or a sentence imposed in an illegal
manner.
[¶10.] Kaufman, however, contends that this Court has jurisdiction to
consider his appeal because the Legislature gave the circuit court authority under
SDCL 23A-27-11 to consider his motion to withdraw his plea, and Kaufman timely
appealed the court’s order under SDCL 23A-32-15. Kaufman is correct, SDCL 23A-
27-11 gives the circuit court authority after a defendant is sentenced to “set aside a
judgment of conviction and permit the defendant to withdraw his plea” to “correct
manifest injustice[.]” But the circuit court’s authority to consider a motion under
SDCL 23A-27-11 does not mean the Legislature gave this Court jurisdiction to
consider an appeal from the circuit court’s order. Also, although Kaufman timely
filed an appeal under SDCL 23A-32-15, that statute prescribes the time for taking
an appeal. It is not a Legislative grant of appellate jurisdiction.
[¶11.] The fact this Court does not have jurisdiction in this case is further
evident because the Legislature enacted SDCL 23A-32-22 in 2015 and expressly
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gave this Court jurisdiction to consider an appeal from a motion to correct an illegal
sentence. See State v. Litschewski, 2011 S.D. 88, 807 N.W.2d 230 (neither party
questioned this Court’s jurisdiction to consider an appeal from a motion to correct
an illegal sentence). The Legislature did not similarly give this Court jurisdiction to
consider an appeal from a motion to withdraw a guilty plea. This is relevant
because SDCL 23A-31-1—the statute authorizing a circuit court to consider a
defendant’s motion to correct an illegal sentence—is akin to SDCL 23A-27-11.
Neither statute gives this Court appellate jurisdiction.
[¶12.] Because the Legislature has not enacted a provision authorizing an
appeal from a motion to withdraw a guilty plea under SDCL 23A-27-11, this Court
does not have jurisdiction to consider an appeal when a defendant files a motion
under SDCL 23A-27-11 more than 30 days after entry of the judgment of conviction.
Here, Kaufman did not file his motion to withdraw his guilty plea under SDCL 23A-
27-11 until a year after judgment of conviction was entered. Therefore, this Court
does not have appellate jurisdiction to consider Kaufman’s appeal.
[¶13.] Dismissed.
[¶14.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,
Justices, concur.
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