#23846-a-DG 

2006 SD 54

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

MYRON MILLER, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE A. PETER FULLER 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

JEREMY LUND 

Special Assistant Attorney General 

Legal Division 

Department of Social Services 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

JOHN R. MURPHY 

Rapid City, South Dakota Attorney for defendant 

and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON APRIL 24, 2006 

 OPINION FILED 06/21/06
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#23846 

GILBERTSON, Chief Justice 

[¶1.] Myron Miller (Miller) was charged by indictment and arraigned on 

three counts of first degree rape and three alternative counts of sexual contact with 

a child under the age of sixteen. He was informed of the possible maximum penalty 

at the arraignment but not the mandatory minimum. Miller pleaded not guilty and 

proceeded to trial. He was convicted on two counts of sexual contact with a child 

under the age of sixteen and sentenced to five years in the state penitentiary. 

Miller appeals contending his constitutional rights were violated by the failure of 

the circuit court to advise him of the statutory mandatory minimum sentence he 

faced. We affirm.

FACTS AND PROCEDURE 

[¶2.] Miller was charged with three counts (Count I, III and V) of first 

degree rape under SDCL 22-22-1,1 and three alternative counts (Counts II, IV and 

VI) of sexual contact with a child under the age of sixteen under SDCL 22-22-7.2 

The charges resulted from an incident between Miller and B.K., the daughter of his 

girlfriend. B.K. was eight or nine years old at the time of the molestation. Miller’s 

theory of defense was that L.K. urged B.K. to fabricate the sexual molestation in an 

1. SDCL 22-22-1(1) provides in relevant part: “Rape is an act of sexual 

penetration accomplished with any person under any of the following 

circumstances: (1) If the victim is less than ten years of age[.] ...A violation 

of subdivision (1) of this section is rape in the first degree, which is a Class 1 

felony.” 

 

2. SDCL 22-22-7 provides in relevant part: “Any person, sixteen years of age or 

older, who knowingly engages in sexual contact with another person, other 

than that person’s spouse if the other person is under the age of sixteen years 

is guilty of a Class 3 felony.” 
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effort to prevail in the custody dispute between Miller and L.K. over the couple’s 

child, C.M. 

[¶3.] On April 5, 2004, at his arraignment, Miller was advised that the 

possible maximum penalty for first degree rape under SDCL 22-22-1(1) was life in 

prison, and the sexual contact charge under SDCL 22-22-7 had a maximum 

sentence of fifteen years. However, he was not advised of the possible minimum 

penalties under SDCL 22-22-1.2. SDCL 22-22-1.2 provides: 

If any adult is convicted of any of the following violations, the 

court shall impose the following minimum sentences: 

(1) For a violation of subdivision 22-22-1(1), ten years for a 

first offense and twenty years for a subsequent offense; 

and 

(2) For a violation of § 22-22-7 if the victim is less than ten 

years of age, five years for a first offense and ten years for 

a subsequent offense. 

The State filed a Part II Habitual Offender Information that was eventually 

dismissed upon motion by Miller. 

[¶4.] Prior to trial, Counts V and VI were dismissed by the State. Trial on 

the matter was held before a jury on February 22 through 25, 2005. Miller was 

acquitted on the first degree rape charges under Counts I and III, but was found 

guilty on the two charges of sexual contact with a minor under Counts II and IV. 

Miller moved for a directed verdict and judgment of acquittal at the close of the 

State’s case and the close of the defense case. Both motions were denied. 

[¶5.] After trial, Miller filed a motion for new trial and objections to 

mandatory minimum sentence, which were presented to the circuit court on July 1, 

2005, and September 2, 2005. The circuit court denied Miller’s motion for new trial. 

The circuit court found Miller had a due process right to notification of the 
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mandatory minimum sentence upon a plea of not guilty, and sustained his 

objection. 

[¶6.] The circuit court advised the parties that it would follow the authority 

cited by Miller in his brief, State v. Crawford, 115 P3d 387 (WashAppCt 2005). The 

circuit court narrowed the issue to whether Miller had received notice of the 

mandatory minimum sentence such that his due process rights were not violated. 

The circuit court further held that under Crawford, any notice, whether from the 

State, the trial court, or defense counsel, would fulfill the due process requirement 

to provide notice of mandatory minimum penalties. The circuit court then ordered 

Miller’s arraignment and trial counsel to testify at a hearing on the issue of notice. 

[¶7.] Miller objected to the circuit court’s broad interpretation of the notice 

requirement in Crawford, arguing instead that the duty to inform fell on the circuit 

court and not on defense counsel. Miller clearly and emphatically stated to the 

circuit court that he was not raising an ineffective assistance of counsel claim. 

Despite his objection, the circuit court called the defense attorney who represented 

Miller at the arraignment and the defense attorney who represented Miller at trial 

to testify against him. Miller’s objection was overruled by the circuit court, which 

held that the attorney-client privilege would not prevent the court from gathering 

facts to determine whether Miller had received notice of the mandatory minimum 

sentences he faced. The circuit court found that the communication of “mere facts” 

between an attorney and client was not covered by the attorney-client privilege and 

that any exchange of information on minimum sentences was not a confidential 

communication. 
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[¶8.] At the hearing, Miller’s arraignment counsel testified that he did not 

recall discussing mandatory minimum sentences with Miller. His arraignment 

counsel also testified that a plea letter from the State to Miller during his 

representation did not reference the mandatory minimum sentences. Miller’s trial 

counsel testified to plea negotiations that occurred with the State on the eve of trial. 

A letter from the state’s attorney to trial counsel dated February 18, 2005, was 

introduced in which two vague references to the mandatory minimum penalties 

were made. Trial counsel testified that he did not send the letter to Miller, but that 

he discussed the contents of the letter with him the weekend before the trial. 

[¶9.] Thereafter, the circuit court granted Miller’s objection and refused to 

apply the mandatory minimum sentences, instead holding that Miller’s due process 

rights were violated when he was not given notice either before or during trial that 

he faced a mandatory minimum sentence. After mitigation testimony was received, 

the circuit court orally imposed a fifteen-year penitentiary sentence on Count II, but 

suspended the entire sentence. As to Count IV, Miller was sentenced to fifteen 

years in prison with five years suspended. The sentences were imposed 

consecutively. 

[¶10.] Miller appeals the circuit court’s denial of his motion for new trial 

contending his Fifth Amendment due process rights were violated when he was not 

advised by the circuit court that he faced potential mandatory minimum sentences. 

He also contends the circuit court erred when it found that the attorney-client 

privilege did not apply to communications between Miller and his counsel as to the 

mandatory minimum penalties. We reframe his issue as follows: 
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Whether a defendant who pleads not guilty suffers a violation of 

his Fifth Amendment right to due process such that a new trial 

is warranted when the circuit court fails to advise him of the 

statutory mandatory minimum sentences for the charges he 

faces. 

STANDARD OF REVIEW 

[¶11.] Appeals asserting an infringement of a constitutional right are 

reviewed under the de novo standard of review. State v. Dillon, 2001 SD 97, ¶12, 

632 NW2d 37, 43 (citing State v. Stanga, 2000 SD 129, ¶8, 617 NW2d 486, 488). A 

direct appeal from a conviction must be afforded greater scrutiny than a collateral 

challenge by habeas corpus action. State v. Moeller, 511 NW2d 803, 809 (SD 1994). 

Thus, on a direct appeal from a conviction the defendant is entitled to all 

presumptions and protections possible under our constitution. Id.

ANALYSIS AND DECISION 

[¶12.] Miller argues that he was entitled under the Due Process Clause of the 

Fifth Amendment, applicable to the states through the Fourteenth Amendment, to 

notice of the mandatory minimum penalties he faced upon entering a plea of not 

guilty. Miller concedes that this issue is not controlled by statute, as SDCL 23A-7-4 

pertains to defendants who enter a plea of guilty or nolo contendere. 

[¶13.] The Due Process Clause of the Fifth Amendment provides: 

No person shall be held to answer for a capital, or otherwise 

infamous crime, unless on a presentment or indictment of a 

Grand Jury, except in cases arising in the land or naval forces, 

or in the Militia, when in actual service in time of War or public 

danger; nor shall any person be subject for the same offence to 

be twice put in jeopardy of life or limb; nor shall be compelled in 

any criminal case to be a witness against himself, nor be 

deprived of life, liberty, or property, without due process of law; 

nor shall private property be taken for public use, without just 

compensation.
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US Const. amend V (emphasis added). The Due Process Clause serves to safeguard 

against an unintentional or coerced relinquishment of known rights and privileges. 

Boykin v. Alabama, 395 US 238, 243 n5, 89 SCt 1709, 1712 n5, 23 LEd2d 274 (1969) 

(citing Johnson v. Zerbst, 304 US 458, 464, 58 SCt 1019, 1023, 82 LEd 1461 (1938)). 

[¶14.] In the context of criminal prosecutions, the Due Process Clause 

safeguards against an involuntary and unknowing waiver of three important 

federal rights via a plea of guilty or plea of nolo contendere, 1) the privilege against 

compulsory self-incrimination, 2) the right to a speedy trial, and 3) the right to 

confront one’s accusers. Id. at 243, 89 SCt at 1712, 23 LEd2d 274 (citing Duncan v. 

Louisiana, 391 US 145, 88 SCt 1444, 20 LEd2d 491 (1968); Pointer v. Texas, 380 US 

400, 85 SCt 1065, 13 LEd2d 923 (1965); Malloy v. Hogan, 378 US 1, 84 SCt 1489, 12 

LEd2d 653 (1964)). In order to affect a voluntary and knowing waiver of these 

rights via a guilty plea or plea of nolo contendere, the court must be satisfied that a 

defendant understands that such a plea is a relinquishment of these rights and 

what these rights entail. Id. 

[¶15.] In addition to waiving these three constitutional rights, a defendant 

who pleads guilty is also entering an admission to all the elements of the formal 

criminal charge(s) against him. Id. at 243 n5, 89 SCt at 1712 n5, 23 LEd2d 274 

(quoting Johnson, 304 US at 466, 58 SCt at 1171, 82 LEd2d 1461). Therefore, a 

defendant cannot make an admission to all the elements of a crime unless he 

possesses an understanding of the law in relation to the facts. Id. at 243-44, 89 SCt 

at 1712-13, 23 LEd2d 274. The court must ascertain that the defendant 
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understands what a guilty plea entails and the consequences he will face as a result 

of the plea. Id. 

[¶16.] However, there is no constitutional right to be offered the opportunity 

to plea bargain. Weatherford v. Busey, 429 US 545, 561, 97 SCt 837, 846, 51 LEd2d 

30 (1977); Nguyen v. United States, 114 F3d 699 (8th Cir 1997) (quoting United 

States v. Gonzales, 65 F3d 814, 823 (10thCir 1995)) (citations omitted); People v. 

Curry, 687 NE2d 877 (Ill 1997) (citing People v. Palmer, 643 NE2d 797 (Ill 1994)); 

State v. McKinney, 917 P2d 1214 (Ariz 1996) (citing State v. Draper, 784 P2d 259, 

266 (Ariz 1989); State v. Morse, 617 P2d 1141, 1147-48 (Ariz 1980)); Medina v. 

State, 688 So2d 727 (Miss 1996) (quoting Weatherford, 429 US at 561, 97 SCt at 

846, 51 LEd2d 30); Carpenter v. State, 929 P2d 988 (OklaCrimApp 1996) (citing 

State ex rel. Stout v. Craytor, 753 P2d 1365, 1368 (OklaCrimApp 1988)). Only 

when a prosecutor offers a defendant the opportunity to enter into a plea 

agreement, must the circuit court ascertain that the defendant entered it 

voluntarily and knowingly and the circuit court must advise the defendant of both 

the statutory maximum and mandatory minimum sentence faced. State v. 

Richards, 2002 SD 18, ¶7, 640 NW2d 480, 481-82 (quoting SDCL 23A-7-4(1) (citing 

State v. Wilson, 459 NW2d 457 (SD 1990))). 

[¶17.] To ensure that guilty pleas and pleas of nolo contendere are voluntary 

and knowing and to safeguard against violations of a defendant’s right to due 
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process, Rule 11 of the Federal Rules of Criminal Procedure was enacted.3 

McCarthy v. United States, 394 US 459, 465, 89 SCt 1166, 1170, 22 LEd2d 418 

(1960) (citing Machibroda v. United States, 368 US 487, 493, 82 SCt 510, 513, 7 

LEd2d 473 (1962); Von Moltke v. Gillies, 332 US 708, 68 SCt 316, 92 LEd 309 

(1948); Waley v. Johnston, 316 US 101, 62 SCt 964, 86 LEd 1302 (1942)). However, 

the procedure embodied in Rule 11 is not mandated by the United States 

Constitution. Id. (citing Waddy v. Heer, 383 F2d 789 (6th Cir 1967)). Rather, it is 

designed to assist the courts with making the constitutionally required 

determination that a defendant’s guilty plea is voluntary and knowing, and to 

produce a complete record of the voluntariness determination. Id. More 

3. Rule 11 provides in relevant part: 

Before the court accepts a plea of guilty or nolo contendere, the 

defendant may be placed under oath, and the court must address the 

defendant personally in open court. During this address, the court 

must inform the defendant of, and determine that the defendant 

understands, the following: 

. . . 

(B) the right to plead not guilty, or having already so pleaded, to 

persist in that plea; 

(C) the right to a jury trial; 

(D) the right to be represented by counsel--and if necessary have the 

court appoint counsel--at trial and at every other stage of the 

proceeding; 

(E) the right at trial to confront and cross-examine adverse 

witnesses, to be protected from compelled self-incrimination, to 

testify and present evidence, and to compel the attendance of 

witnesses; 

(F) the defendant’s waiver of these trial rights if the court accepts a 

plea of guilty or nolo contendere; 

(G) the nature of each charge to which the defendant is pleading; 

(H) any maximum possible penalty, including imprisonment, fine, 

and term of supervised release; 

(I) any mandatory minimum penalty[.] 
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importantly, the advisement of these rights and penalties under Rule 11 is 

applicable only when a defendant intends to enter a plea of guilty or nolo 

contendere. FedRCrimP 11(a)(1). A defendant who elects to plead not guilty and 

proceed to trial is not provided the same procedural safeguards under Rule 11 as a 

defendant who pleads guilty or nolo contendere. See United States v. Robertson, 

698 F2d 703, 709 (5thCir 1983) (noting Rule 11 protections not applicable to a 

defendant who pleads not guilty even when not guilty plea is coupled with an 

inculpatory stipulation of facts) (citing Witherspoon v. United States, 633 F2d 1247, 

1252 (6thCir 1980), cert. denied, 450 US 933, 101 SCt 1396, 67 LEd2d 367 (1981); 

United States v. Strother, 578 F2d 397, 404-05 (DCCir 1978); United States v. 

Terrack, 515 F2d 558, 560 (9thCir 1975)); Gerald v. United States, 405 FSupp 404, 

406 (EDNC 1975) (noting that “[u]pon a plea of not guilty the court is not required 

to explain the elements of the offense, or explore with the defendant the range of 

possible defenses.”). 

[¶18.] SDCL 23A-7-4, South Dakota’s version of Rule 11 of the Federal Rules 

of Criminal Procedure, 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 
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cross-examine witnesses against him, and the right not to 

be compelled to incriminate himself; 

(4) That if he pleads guilty or nolo contendere 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 contendere, 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. 

South Dakota’s version of Rule 11 also serves as a procedural safeguard for 

determining that a guilty plea or plea of nolo contendere is voluntary and knowing. 

State v. DeNoyer, 541 NW2d 725, 729 (SD 1995). The language of SDCL 23A-7-4 

makes it clear that the circuit court is required to give an advisement of any 

mandatory minimum sentence the defendant might face only when the defendant 

enters a plea of guilty or nolo contendere 

[¶19.] Furthermore, SDCL 23A-7-15 provides: 

A verbatim record of the proceedings at which a defendant 

enters a plea shall be made and, if there is a plea of guilty or 

nolo contendere, the record shall include, without limitation, the 

court’s advice to the defendant, the inquiry into the 

voluntariness of the plea including any plea agreement, and the 

inquiry into the factual basis of a guilty plea. A verbatim record 

of a proceeding at which a defendant enters a plea to a 

misdemeanor need not be taken unless requested by the 

prosecuting attorney or the defendant. 

SDCL 23A-7-15 requires the circuit court to inquire on the record into the 

voluntariness and the factual basis of a guilty plea or plea of nolo contendere. No 

such inquiry is required for a not guilty plea. See SDCL 23A-7-15. 
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[¶20.] The North Dakota Supreme Court addressed a similar issue in City of 

Fargo v. Bommersbach, 511 NW2d 563 (ND 1994). In that case, the defendant 

pleaded not guilty to driving a motor vehicle while his driver’s license was 

suspended. Id. at 564. The defendant’s license had been suspended as the result of 

a violation of N.D.C.C. § 39-08-01(1), driving with a blood alcohol level by weight of 

.10 or greater. Id. The trial court, without objection, sentenced the defendant to 

thirty days in jail with twenty-six days suspended, and the four remaining days to 

be served consecutively in accordance with N.D.C.C. § 39-06-42(2). Id. N.D.C.C. § 

39-06-42(2) provided in relevant part: “[i]f the suspension or revocation was 

imposed for violation of section 39-08-01 [driving under the influence or with a 

blood alcohol weight in excess of .10] . . ., the sentence must be at least four 

consecutive days’ imprisonment and such fine as the court deems proper.” Id. 

[¶21.] On appeal, the defendant argued the circuit court committed reversible 

error when it failed to inform him of the mandatory minimum sentence he faced 

under N.D.C.C. § 39-06-42(2) prior to trial. Id. at 564-65. The defendant relied on 

authority from cases in which defendants were not afforded an opportunity to plead 

to an amended complaint, and authority that dealt with the use of prior convictions 

for offense-enhancing purposes. Id. (citing State v. Gahner, 413 NW2d 359 (ND 

1987); State v. Edinger, 331 NW2d 553 (ND 1983); State v. Gustafson, 278 NW2d 

358 (ND 1978); State v. Ruble, 77 ND 79, 40 NW2d 794 (1950)). The North Dakota 

Supreme Court noted that there was no failure to allow the defendant to plead 

anew to a new or amended complaint at issue in Bommersbach, and therefore the 

holding in Gustafson, 278 NW2d 358, did not apply. Id. at 565. That court 
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acknowledged that offense-enhancing (increasing the classification of the offense) 

and sentence-enhancing (increasing the maximum sentence) use of a prior 

conviction require notice to the defendant that the State intends to use prior 

convictions for enhancement purposes. Id. However, in Bommersbach that court 

held that N.D.C.C. § 39-06-42(2) “provides a minimum sentence for a particular 

type of driving-while-under-suspension conviction; it does not deal with offenseenhacing or sentence enhancing prior convictions.” Id. Finally, the North Dakota 

Supreme Court held that the North Dakota Rules of Criminal Procedure do not 

require specific notice of a mandatory minimum sentence upon a plea of not guilty. 

Id. at 565. 

[¶22.] The language of Rule 11 of the Federal Rules of Criminal Procedure 

and NDR CrimP Rule 11(b)4 parallel South Dakota’s version, in that it requires the 

 

4. North Dakota Rules of Criminal Procedure Rule 11(b) provides in relevant 

part: 

(b) Advice to defendant.

(1) The court may not accept a plea of guilty without first, by 

addressing the defendant personally [except as provided in Rule 

43(b)] in open court, informing the defendant of and determining 

that the defendant understands the following: 

(A) the right to plead not guilty, or having already so 

pleaded, to persist in that plea;

(B) the right to a jury trial;

(C) the right to be represented by counsel at trial and at 

 every other stage of the proceeding and, if necessary, the 

 right to have the court appoint counsel under Rule 44;

(D) the right at trial to confront and cross-examine adverse 

 witnesses, to be protected from compelled self-

 incrimination, to testify and present evidence, and to 

 compel the attendance of witnesses;

(E) the defendant's waiver of these trial rights if the court 

 accepts a plea of guilty;

(F) the nature of each charge to which the defendant is 

 (continued . . .) 
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trial court to advise the defendant of the mandatory minimum penalty only upon a 

plea of guilty or nolo contendere. Miller concedes that his alleged due process right 

to be advised by the circuit court of the mandatory minimum penalty does not have 

as its source SDCL 23A-7-4. However, as support for his proposition that he had a 

constitutional right to an advisement of the mandatory minimum penalty, Miller 

cites to State v. Richards, 2002 SD 18, 640 NW2d 480, a case that deals exclusively 

with the statutory right under SDCL 23A-7-4(1) to an advisement of the mandatory 

minimum penalty upon a plea of guilty. Given that Miller has waived the statutory 

argument, Richards offers no support for his contention that he had a due process 

right under the constitution to an advisement of the mandatory minimum penalty 

upon a plea of not guilty. Even if Miller had not waived the statutory argument, 

the above discussion makes it abundantly clear there is no such constitutional right 

upon entering a plea of not guilty. 

[¶23.] The only other case that Miller cites to in support of his claim of a 

violation of his due process rights is State v. Crawford, 115 P3d 387. In Crawford 

the defendant pleaded not guilty to first-degree robbery and second-degree assault. 

115 P3d at 388-89. At the time of trial, Crawford was unknowingly facing a 

mandatory minimum sentence of life in prison without parole under Washington’s 

Persistent Offender Accountability Act. Id. at 389. However, neither the 

________________________ 

(. . . continued) 

 pleading;

(G) any maximum possible penalty, including imprisonment, 

 fine, and mandatory fee;

(H) any mandatory minimum penalty[.] (emphasis added). 

 
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prosecutor nor defense counsel were aware that the sentence would be subject to a 

mandatory enhancement as neither realized at the time of prosecution that both of 

Crawford’s two previous convictions, one for first degree sex abuse in Kentucky and 

a Washington conviction for second degree robbery, would both count as “strikes” 

under Washington’s persistent offender enhancement scheme. Id. 

[¶24.] The question before the Washington Court of Appeals was “whether a 

defendant receives due process if he or she is sentenced to a mandatory minimum 

term of life without parole without any notice, before or during trial, that such a 

sentence is even possible.” Id. at 390. As that court noted “it is fundamentally 

unfair for the State not to notify a person before trial that he may be subject to a 

mandatory sentence of life without parole.” Id. at 391. It therefore reversed the 

conviction on due process grounds, noting that procedurally the defendant was 

entitled to know that he faced such a harsh sentence prior to trial. Id. The 

underlying rationale for that court’s decision was that “the person needs to know 

that such a sentence is possible when deciding how intensively to investigate, when 

deciding how intensively to plea bargain, and when deciding whether trial or plea is 

the better alternative.” Id. 

[¶25.] Crawford provides no support for Miller’s contention despite the fact 

that the defendant in that case pleaded not guilty and proceeded to trial. The issue 

before the Washington Court of Appeals was whether sentencing enhancement 
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under a habitual criminal statutory scheme without notice that the defendant faced 

a minimum mandatory life sentence without parole was constitutional. Id.5 

[¶26.] In the instant case, Miller was not facing the potential for a mandatory 

minimum life sentence without parole. Nor was Miller faced with such an 

enhancement to the sentence due to the State’s use of a prior conviction. Rather, 

Miller, like the defendant in Bommersbach, was facing “a minimum sentence for a 

particular type of [violation of SDCL 22-22-7 for sexual contact with-a-victim-lessthan-ten-years of age.]” (Bommersbach, 511 NW2d at 565). SDCL 22-22-7 and 

SDCL 22-22-1.2 do not provide offense or sentence enhancements based on prior 

convictions for a defendant facing his first conviction on a charge of sexual contact 

with a victim under the age of sixteen. 

[¶27.] Miller’s argument under the due process clause must fail. Miller was 

prosecuted for sexual contact with a victim less than sixteen years of age. SDCL 

22-22-7 gives clear notice that the offense is punishable as a Class 3 felony. SDCL 

22-22-1.2 gives further notice that penalties for sexual contact with a person under 

the age of ten are more severe in nature. Miller cannot now cry foul and attempt an 

end run around the penalty for sexual contact with a victim under the age of ten by 

claiming the circuit court failed to advise him of the mandatory minimum penalty 

 

5. South Dakota’s statutory scheme also provides that a defendant must be 

given notice, either at the time of or before arraignment, of the State’s intent 

to seek an enhanced penalty under the habitual offender statutory scheme in 

SDCL Chapter 22-7. Notice to the defendant is required per the provisions of 

SDCL 22-7-11. We have also held that the habitual offender act should be 

strictly construed in order to ensure that a defendant is fully aware prior to 

pleading to the principal felony, that he faces the possibility of an enhanced 

sentence. State v. Heftel, 513 NW2d 397, 402-03 (SD 1994).
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so clearly articulated in SDCL 22-22-1.2, especially when Miller had no 

constitutional right to such an advisement. 

[¶28.] The circuit court erred when it held that Miller was entitled to such 

advisements upon a plea of not guilty and refused to impose the mandatory 

minimum sentence. However, given that Miller received an effective sentence of 

ten years, which is the same amount of prison time he would have received had the 

circuit court imposed two consecutive five-year mandatory minimums, the error is 

harmless and as a consequence Miller suffered no prejudice. Because we hold that 

the defendant was not entitled by statute or by the Due Process Clause of the 

Constitution to an advisement of the mandatory minimum upon a plea of not guilty, 

we do not need to address Miller’s claim that the attorney-client privilege prohibited 

the circuit court from requiring testimony from his arraignment and trial counsel 

concerning the advisement. We affirm. 

[¶29.] SABERS, KONENKAMP, and MEIERHENRY, Justices, concur. 

[¶30.] ZINTER, Justice, concurs with a writing. 

ZINTER, Justice (concurring). 

[¶31.] I generally concur. I would hold that because the circuit court 

expressly declined to apply the mandatory minimum sentence, Miller suffered no 

prejudice.