Rosen v. Weber

#25934-rev & rem-SLZ
2012 S.D. 15IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
GARRY ALAN ROSEN, Petitioner and Appellant,
v.
DOUGLAS WEBER, WARDEN OF
THE SOUTH DAKOTA STATE
PENITENTIARY, Respondent and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE WILLIAM J. SRSTKA, JR.
Judge
****
CYNTHIA A. HOWARD of
Minnehaha County Office of
the Public Advocate
Sioux Falls, South Dakota Attorneys for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
****
CONSIDERED ON BRIEFS
ON NOVEMBER 14, 2011
REASSIGNED JANUARY 03, 2012
OPINION FILED 02/15/12
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ZINTER, Justice (on reassignment).
[¶1.] Garry Rosen pleaded guilty to kidnapping. He later contended that his
plea was involuntary, and he petitioned for habeas corpus relief. The habeas court
concluded that Rosen’s plea was voluntary. We reverse because Rosen was never
advised that by pleading guilty he would waive his right to trial by a jury, he would
waive his right to compulsory process, and he would waive his right against self-
incrimination. Additionally, Rosen was never asked whether he understood he
would be waiving those rights.
Facts and Procedural History
[¶2.] Rosen was arraigned in November 2003 on three counts of kidnapping.
He was advised of his constitutional rights. However, he was not advised that if he
pleaded guilty, he would waive his Boykin rights: the right to trial by a jury, the
right to compulsory process, and the right against self-incrimination. Rosen
pleaded not guilty.
[¶3.] Rosen later entered into a plea agreement. In February 2004, a
change of plea hearing was held before the sentencing court. Rosen was again
advised of his constitutional rights. However, with respect to the waiver of his
Boykin rights, Rosen was only advised (and stated he understood) that a guilty plea
would waive his right to “a trial.” He was not advised or asked whether he
understood that by pleading guilty he would waive his right to trial by a jury, his
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right to compulsory process, and his right against self-incrimination.1 At that
hearing, Rosen pleaded guilty to one count of kidnapping.
[¶4.] A month later, Rosen filed a motion to withdraw his plea, alleging that
he did not fully understand certain rights. Rosen indicated that he did not
understand the State’s burden of proving the charges against him, the meaning of
reasonable doubt, and his right against self-incrimination. The court further
1. The following is the entire colloquy regarding Rosen’s advisement of rights
and the court’s canvassing regarding the waiver of his Boykin rights.
THE COURT: Mr. Rosen, I am going to go through rights that
apply to you in these proceedings. First, you have the right to be
represented by an attorney. You are presumed to be innocent
until proven guilty. The state carries the burden of proving you
guilty. They must do that beyond a reasonable doubt. You have
the right to a trial to the court or trial by jury. If you have a
trial to a jury, the verdict of the jury must be unanimous.
You have a right to remain silent, meaning the state can’t force
you to testify and use that to prove the charges against you.
You have a right to ask questions of witnesses who appear, to
call any witnesses you wish to appear. And you have a right to
have subpoenas issued to compel the appearance of witnesses
who would not voluntarily appear. Do you understand those
rights?
ROSEN: Yes, I do.
THE COURT: The pleas available to you if you wish to have a
trial – you may enter a plea of not guilty or not guilty by reason
of insanity. If you wish to avoid a trial, you may enter a plea of
guilty or guilty but mentally ill or under certain instances you
may enter a plea of no contest. If you plead guilty or no contest,
you would waive your rights to a trial and all that remains is to
enter sentence.
Do you understand that?
ROSEN: Yes, I do.
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explained those and Rosen’s other constitutional rights. The explanation did not,
however, include an advisement of or inquiry whether Rosen understood that a plea
of guilty would waive his Boykin rights. At the conclusion of the hearing, Rosen
indicated that he then understood the rights he previously misunderstood, and he
withdrew his motion to withdraw his plea.
[¶5.] Rosen was sentenced two days later. Although there was no further
advisement of rights at the sentencing hearing, the court gave Rosen an opportunity
to withdraw his plea. Rosen indicated he wanted to proceed with sentencing. He
was sentenced and did not file a direct appeal.
[¶6.] In August 2010, Rosen petitioned for a writ of habeas corpus. He
contended that his plea was involuntary because the sentencing court failed to
advise him that he would waive his Boykin rights by pleading guilty. Rosen also
contended that the plea was involuntary because the sentencing court failed to
determine whether Rosen understood he was waiving those rights. The habeas
court denied relief but granted Rosen’s motion for a certificate of probable cause.
Decision
[¶7.] The question on appeal is whether Rosen’s plea was constitutionally
invalid because the sentencing court failed to advise, and then determine whether
Rosen understood, that he was waiving his Boykin rights by pleading guilty. The
facts concerning the sentencing court’s advisement of rights and the Boykin
canvassing are not in dispute. We review the habeas court’s conclusions of law de
novo. Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923.
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[¶8.] A criminal defendant entering a guilty plea waives three fundamental
constitutional rights: the right against compulsory self-incrimination, the right to
confront one’s accusers, and the right to a trial by a jury. Boykin v. Alabama, 395
U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). Therefore, “it is critical
not only that a defendant be advised of his rights relating to self-incrimination, trial
by jury, and confrontation, but also that the defendant intentionally relinquish or
abandon known rights.” Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 924 (citing
Boykin, 395 U.S. at 243 n.5, 89 S. Ct. at 1712 n.5). Further, the “record must
affirmatively show . . . that the defendant explicitly waived” those constitutional
rights. Id. (second emphasis added); State v. Goodwin, 2004 S.D. 75, ¶ 23, 681
N.W.2d 847, 855 (requiring affirmative showing of explicit waiver). “We cannot
presume a waiver of these three important federal rights from a silent record.”
Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 925.
[¶9.] In this case, no court ever conducted the required Boykin canvassing.
Therefore, Rosen was never advised, and he was never asked whether he
understood, that by pleading guilty he was waiving his right to a trial by a jury, his
right against self-incrimination, and his right to confrontation. Indeed, the habeas
court recognized that Rosen was not canvassed regarding all three Boykin rights.
The habeas court only found that “Rosen was advised . . . that if he pled guilty, he
would waive his right to a trial . . . .”2 Therefore, as we said in Monette, by
2. Although Rosen was advised he would “waive [his] rights to a trial,” he was
not advised he would waive his right to a trial by a jury. Boykin specifically
requires advisement of “the right to trial by jury.” 395 U.S. at 243, 89 S. Ct.
at 1712.
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accepting the change of plea without a Boykin canvassing, “[t]he sentencing court
failed to make critical inquiries and determinations when the inquiries were most
significant – when [the defendant] changed his not guilty plea to a plea of [guilty].”
2009 S.D. 77, ¶ 13, 771 N.W.2d at 925-26. And, despite being fully advised of his
constitutional rights, the lack of a Boykin canvassing renders the plea
unconstitutional.
The issue . . . is not whether [the defendant’s] plea was knowing.
[The defendant] had been fully advised of his constitutional
rights. . . . Instead, the issue is whether a record, noticeably
silent . . . and thus no record of an effective waiver of federal
constitutional rights, renders the plea unconstitutional. Boykin
holds it does.
Id. ¶ 14.
[¶10.] The failure to canvass Rosen regarding a waiver of his Boykin rights
invalidates his guilty plea even under our less intense standard of review in habeas
corpus cases. In Monette, we stated that when there is no record showing that the
sentencing court conducted a Boykin canvassing, the habeas court has no basis
upon which it may find that the sentencing court obtained a voluntary and valid
waiver of the defendant’s Boykin rights. “[A] habeas court [has] no basis on a silent
record from the sentencing court to determine by a preponderance of the evidence
that the plea was voluntary and was a waiver of constitutional rights when it was
entered.” Id. ¶ 16. It is only when the sentencing court “canvass[es] the matter
with the accused to make sure he has a full understanding of what the plea
connotes and of its consequence” that the sentencing court “leaves a record adequate
for any review.” Boykin, 395 U.S. at 244, 89 S. Ct. at 1712.
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[¶11.] The habeas court concluded that the plea was voluntary considering
the totality of the circumstances. The State and the dissent adopt this argument on
appeal. The State contends that we should examine factors such as Rosen’s age,
prior criminal record, whether he was represented by counsel, the existence of a
plea agreement, and the time between the advisement of rights and the time of
entering the plea. Under Monette, however, the totality of the circumstances
analysis is inapplicable when the record reflects that no canvassing regarding a
Boykin waiver ever took place. In the absence of a Boykin canvassing, a “critical
step” is missing and the reviewing court does “not consider the additional factors
under the totality of the circumstances analysis.” Monette, 2009 S.D. 77, ¶ 16, 771
N.W.2d at 926-27.
[¶12.] The dissent claims that the “record is not silent on this issue, as Rosen
did waive his rights, including his Boykin rights.” See infra dissent ¶ 23. The
record demonstrates that this claim is incorrect. The change of plea colloquy clearly
shows that the sentencing court’s Boykin waiver advisement and inquiry was
limited to the right to “a trial.” See supra note 1. The dissent agrees. See infra
dissent ¶ 21 (quoting the sentencing court’s waiver advisement, which only
mentions the waiver of the right to “a trial”). Thus, the record is silent regarding a
waiver of all three Boykin rights. Those rights were never discussed. See supra
note 1.
[¶13.] The dissent also claims that the sentencing court made “explicit
findings” that Rosen “made a voluntary waiver” and “[t]here is nothing indicating
that the [sentencing] court’s findings of fact are clearly erroneous.” See infra
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dissent ¶ 23. The dissent’s cited finding, however, does not even mention a waiver
of Rosen’s Boykin rights. See id. That is because a waiver of Rosen’s Boykin rights
was never mentioned in any of Rosen’s appearances before the arraigning and
sentencing courts. Because there was never any Boykin waiver advisement or
canvassing, it is difficult to understand how the dissent can conclude that Rosen
“made a voluntary and explicit waiver” of his Boykin rights. See id. Ultimately, one
must ask how a pleading defendant could have knowingly and voluntarily waived
his or her Boykin rights when that defendant was never advised that those rights
would be waived by pleading guilty. And, unless there is a written Boykin waiver
(which is not present in this case), how can the record explicitly show an affirmative
waiver unless the court canvasses the defendant about the matter? Boykin’s
requirements are not satisfied when the subject is never discussed.
[¶14.] Although the arraigning and the sentencing courts fully advised Rosen
of his basic constitutional rights, those advisements were not sufficient to satisfy
the waiver requirements of Boykin. In considering this issue in Monette, we
acknowledged that prior to the change of plea, that judge had “fully advised [the
defendant] of his constitutional rights.” 2009 S.D. 77, ¶ 7, 771 N.W.2d at 923.
Nevertheless, we found the plea involuntary because “the sentencing court failed to
inquire if Monette waived his constitutional rights.” Id. ¶ 9. In this case, Rosen
was never advised that if he pleaded guilty he would waive his right against self-
incrimination, his right of confrontation, and his right to a trial by a jury. Further,
the sentencing court never inquired whether Rosen understood that he would waive
those rights by pleading guilty. Therefore, Boykin requires the relief granted in
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Monette, 2009 S.D. 77, ¶ 17, 771 N.W.2d at 927. This case is reversed and
remanded to the habeas court with direction to void the plea and remand to the
sentencing court for further proceedings in accordance with this decision and SDCL
ch. 21-27.3
[¶15.] KONENKAMP and WILBUR, Justices, concur.
[¶16.] GILBERTSON, Chief Justice, and FOLEY, Circuit Court Judge,
dissent.
[¶17.] FOLEY, Circuit Court Judge, sitting for SEVERSON, Justice,
disqualified.
GILBERTSON, Chief Justice (dissenting).
[¶18.] I respectfully dissent. I would affirm because a review of the record
under the limited standard of review does not support Rosen’s petition for habeas
relief.
[¶19.] We have a well-established standard of review for habeas decisions:
Our review of habeas corpus proceedings is limited because it is
a collateral attack on a final judgment. The review is limited to
jurisdictional errors. In criminal cases, a violation of the
defendant’s constitutional rights constitutes a jurisdictional
error. The petitioner has the burden of proving he is entitled to
relief by a preponderance of the evidence.
The findings of facts shall not be disturbed unless they are
clearly erroneous. . . . The habeas court’s conclusions of law are
reviewed de novo.
3. Rosen also argues that the sentencing court accepted his plea without an
adequate factual basis. We do not address this argument because the plea is
invalid under Boykin and Monette. The sentencing court should consider the
factual basis issue on remand.
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Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923 (quoting Owens v. Russell,
2007 S.D. 3, ¶ 6, 726 N.W.2d 610, 614-15).
[¶20.] This Court has held that the “record must affirmatively show the plea
was voluntary, that the defendant understood the consequences of pleading guilty,
and that the defendant explicitly waived the constitutional right against
compulsory self-incrimination, the right to trial by jury, and the right to confront
one’s accusers.” Id. ¶ 10, 771 N.W.2d at 925 (emphasis omitted). However, this
requirement does not necessitate the “recitation of a formula by rote or the spelling
out of every detail by the trial court.” Id. ¶ 11 (quoting Nachtigall v. Erickson, 85
S.D. 122, 128, 178 N.W.2d 198, 201 (1970)). The circuit 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 the guilty plea was accepted.” Id. (citing
State v. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287).
[¶21.] At the plea hearing, the court read Rosen his rights in full. See
Majority Opinion ¶ 3 n.1. The circuit court told Rosen: “I am going to go through
rights that apply to you in these proceedings. . . . You have the right to a trial to the
court or trial by jury. . . . You have a right to remain silent, meaning the state can’t
force you to testify and use that to prove the charges against you. You have a right
to ask questions of witnesses . . . to call any witnesses you wish . . . . Do you
understand these rights?” Rosen responded, “Yes, I do.” The circuit court
immediately warned Rosen: “If you plead guilty or no contest, you would waive your
rights to a trial and all that remains is to enter sentence. Do you understand that?”
Rosen answered, “Yes, I do.” The court found that Rosen was entering his plea
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voluntarily. The court further found that Rosen had been advised of his
constitutional rights and that he understood them.
[¶22.] The circuit court did not recite a rote formula or spell out every detail
of Rosen’s rights yet again in the proceeding. However, under Monette, that is not
required. Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (emphasizing that Boykin
“does not require the recitation of a formula by rote or the spelling out of every
detail by the trial court” (quoting Nachtigall, 85 S.D. at 128, 178 N.W.2d at 201)).
We take this as an indication that form will not be exalted over substance. This is
consistent with the Supreme Court’s intent in Boykin that a plea be knowing and
voluntary, and to the satisfaction of the court that it was a free and voluntary
waiver. See Parke v. Raley, 506 U.S. 20, 29, 113 S. Ct. 517, 523, 121 L. Ed. 2d 391(1992).
[¶23.] We cannot overlook the explicit findings of the circuit court, which had
the benefit of observing and conversing with Rosen live. The court found Rosen
knew and understood his rights and made a voluntary waiver. Specifically, the
court said:
The court will find that Gary Rosen has been regularly held to
answer the charges against him. He’s represented by competent
counsel. He’s been advised of the charges against him, his
Constitutional and statutory rights, the pleas available to him,
and the maximum penalty. And I find he understands them. I
will further find he’s acting of his own free will and is competent
to enter a plea.
The record is not silent on this issue, as Rosen did waive his rights, including his
Boykin rights. Therefore, “the record in some manner [shows] the defendant
entered his plea understandingly and voluntarily.” Monette, 2009 S.D. 77, ¶11, 771
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N.W.2d at 925 (quoting Quist v. Leapley, 486 N.W.2d 265, 267 (S.D. 1992)). When
the record indicates that a defendant has voluntarily and explicitly waived his
rights, Boykin is satisfied. There is nothing indicating that the circuit court’s
findings of fact are clearly erroneous. When the record is examined as a whole, the
totality of circumstances indicates that Rosen made a voluntary and explicit waiver
of all his constitutional rights.
[¶24.] Based upon the colloquy at the plea hearing, Rosen knew his rights
and voluntarily chose to plead guilty. However, even if there was error, it was
cured by what occurred at the change of plea hearing. Rosen stated that he
understood his rights to the best of his ability. The court began to go through
Rosen’s rights with him to determine which he did not understand. Rosen indicated
that he thought the State had already proven the charges against him. He
explained that after his plea, the concept of the State having the burden of proof
was explained to him further and he now understood it. Rosen was asked by his
own counsel, “Do you feel like you understand those rights now?” He responded
“yes.” The hearing primarily consisted of discussion on what Rosen’s claim was as a
basis for withdrawing his guilty plea. Rosen testified that he felt rushed to accept
the plea and that some of the evidence was irrelevant.4 At the conclusion of the
hearing, Rosen withdrew his motion to withdraw his plea.
4. In Monette, the petitioner testified at the habeas trial that his plea before the
sentencing court was coerced. Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at
926. The habeas court then concluded that the plea was voluntary. Id. In
this case, Rosen testified at the habeas hearing that he pleaded guilty
because he did not want to receive life in prison. There is no claim that he
was coerced and nothing in the record indicates any coercion.
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[¶25.] From a full reading of the change of plea hearing transcript, it is
apparent that very little time was spent on Rosen’s misapprehension of his rights.
At the hearing, he testified that he understood his rights. When he was then given
the opportunity to withdraw his plea, he chose instead to withdraw his motion to
withdraw his plea. The court deferred ruling on Rosen’s motion until the
sentencing hearing two days later in order to give Rosen time to consider his
options. Rosen still chose to plead guilty when questioned at the sentencing
hearing.
[¶26.] “The petitioner in a habeas action carries the burden of proving an
involuntary plea and that his constitutional rights were violated.” Monette, 2009
S.D. 77, ¶ 16, 771 N.W.2d at 926.5 The habeas court heard testimony from Rosen.
The habeas court concluded that Rosen’s guilty plea was voluntary and intelligent.
The court also found that Rosen was advised of his rights numerous times and that
he knew the consequences of pleading guilty.
[¶27.] We have a confined standard of review on this issue. “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 . . . it
becomes subject to less intense scrutiny upon review.” State v. Moeller, 511 N.W.2d
803, 809 (S.D. 1994); see also State v. Jensen, 2011 S.D. 32, ¶ 8, 800 N.W.2d 359,
5. At no point during any of the proceedings did Rosen’s counsel object to or
comment on the advisement of the rights. Moreover, Rosen has made no
allegation that counsel was incompetent. Rosen also chose not to exercise his
right to file a direct appeal.
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363. Moreover, “this Court, acting in our appellate function on the cold and indeed
ancient record before us, cannot presume greater insight into the defendant’s
‘understanding of his rights . . . and his plea of guilty than that of the other courts
that have considered this case.’” Moeller, 511 N.W.2d at 808 (quoting Boyd v.
Dutton, 405 U.S. 1, 4, 92 S. Ct. 759, 761, 30 L. Ed. 2d 755 (1972)). Given the
standard of review and the record, I would affirm.
[¶28.] FOLEY, Circuit Court Judge, joins this dissent.
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