#24672-rev & rem-JKM 

2008 SD 120 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

v. 

DUANE APPLE, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE THOMAS L. TRIMBLE 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

JOHN M. STROHMAN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

MURL L. WOODS Attorney for defendant 

Rapid City, South Dakota and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 26, 2008 

 OPINION FILED 12/17/08 
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MEIERHENRY, Justice 

[¶1.] Duane Apple appeals his judgment and sentence for the crimes of 

Third and Fourth Degree Burglary. He claims that his guilty plea was not 

intelligent and voluntary. Based on the totality of the circumstances, we agree and 

reverse and remand. 

FACTS AND PROCEDURAL BACKGROUND 

[¶2.] Apple was arrested and charged in a four-count complaint, including 

one count of Third Degree Burglary, two counts of Fourth Degree Burglary, and one 

count of Possession of Stolen Property.1 His initial appearance on the complaint 

was before a magistrate judge on March 20, 2002. At the initial appearance, the 

magistrate judge advised Apple of the charges in the complaint, the possible 

penalties of each charge, and his constitutional and statutory rights. The complaint 

was superseded by an indictment from a grand jury. The indictment charged Apple 

with three counts of Third Degree Burglary and one count of Fourth Degree 

Burglary. 

1. The complaint charged Apple with the following counts: (1) Third Degree 

Burglary of the maintenance building at Sioux San Hospital committed on 

March 19, 2002, (2) Possession of Stolen Property, (3) Fourth Degree 

Burglary of a pickup truck committed between March 18 and 19, 2002, and 

(4) Fourth Degree Burglary of a cargo trailer committed between March 18 

and 19, 2002. 

 The indictment charged Apple with the following counts: (1) Third Degree 

Burglary of the maintenance building at Sioux San Hospital committed on 

March 19, 2002, (2) Fourth Degree Burglary of a pickup truck committed 

between March 18 and 19, 2002, (3) Third Degree Burglary of the 

maintenance building at Sioux San Hospital committed on March 6, 2002, 

and (4) Third Degree Burglary of the cargo trailer committed between March 

18 and 19, 2002. 
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[¶3.] Two of four charges in the indictment were the same as charges in the 

complaint: Third Degree Burglary of the maintenance building at Sioux San 

Hospital committed on March 19, 2002 and Fourth Degree Burglary of a pickup 

truck committed between March 18 and 19, 2002. Two of the charges in the 

indictment were different from those in the complaint and carried different 

penalties: Third Degree Burglary of the maintenance building at Sioux San 

Hospital committed on March 6, 2002, (not charged in the complaint) and Third 

Degree Burglary of the cargo trailer committed between March 18 and 19, 2002, 

(charged in the complaint as Fourth Degree Burglary). After the indictment, the 

State additionally filed a part II information charging Apple with being a habitual 

offender.2

[¶4.] Apple was arraigned on the indictment in circuit court on April 15, 

2002. The court arraigned several other defendants at the same time. The circuit 

court explained the constitutional and statutory rights to all defendants as a group 

and the consequences of entering a guilty plea, including waiving their rights to a 

trial, to confront witnesses against them, and to remain silent. Then, the circuit 

court addressed each defendant individually to determine if the defendant 

understood the rights. When the circuit court asked Apple if he understood his 

rights, he indicated that he did. The circuit court then asked each defendant to 

enter a plea. When the circuit court reached Apple’s case, Apple’s attorney advised 

2. The prosecuting attorney filed a part II habitual offender information on 

April 4, 2002. The habitual offender information erroneously included two 

previous felony convictions for Apple. At the time of his pleas, Apple had only 

been convicted of one felony.
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the court that, as a result of a plea agreement with the State, Apple would plead 

guilty to Count (2), Fourth Degree Burglary and to Count (3), Third Degree 

Burglary. In exchange, the State would dismiss the remaining counts and the 

habitual offender information. 

[¶5.] Although it is not apparent from the record whether Apple had a copy 

of the indictment, the record does indicate that the charges were read in open 

court.3 Beyond reading the indictment, the circuit court did not explain the charges 

or the possible penalties. The entire plea colloquy was as follows: 

Defense counsel: My client is going to enter into a plea agreement 

with the state. 

The court: Okay. 

Defense counsel: My client agrees to plead guilty to Count Three, 

third degree burglary; and to Count Two, fourth degree burglary, and 

pay for costs and restitution. And the state agrees to dismiss the 

remaining counts and the habitual offender information. 

The court: Is that your understanding of the agreement, Mr. Apple? 

The defendant: Yes. 

. . . 

The court: I am going to ask you, as to Count Two, Mr. Apple, 

alleging you committed a fourth degree burglary, what is your plea, 

Guilty or not guilty? 

The defendant: Guilty. 

The court: Can you tell me what you did? That’s the pick up. 

The defendant: What was that now again? 

The court: You just said you were guilty of a fourth degree burglary. 

Shows a 1992 Toyota pickup. What did you do? 

The defendant: I was pretty d[r]unk that night, Your Honor. I don’t 

really remember too much of it. 

The court: Do you remember breaking into a pickup? 

The defendant: Yeah. I remember taking some stuff from a pickup. 

3. The transcript of the arraignment/plea hearing indicates as follows: 

The court: Do we have Mr. Apple? 

Defense counsel: He’s my client, Your Honor. 

 (At this time the Information was then read in open court.). 

 We assume the parenthetical note mistakenly referred to an Information 

rather than Indictment.
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The court: All right. Did you take any stuff out of it or was that your 

purpose of breaking into it? 

The defendant: Yeah. 

The court: All right. As to Count Three, the third degree burglary at 

Sioux San[ ] Hospital, what’s your plea, guilty or not guilty to Count 

Three? 

The defendant: Guilty. 

The court: And can you tell me what you did there? 

The defendant: I went into the building for an extension cord. 

The court: One of their extension cords? 

The defendant: Yeah. 

The court: All right. I will accept the pleas to Count Two and Count 

Three. I will find there is a factual basis. 

 Has anybody threat[en]ed you, forced you, or promised you 

anything other than what you have heard in court to get you to enter a 

plea to Count Two and Count Three? 

The defendant: No. 

The court: All right. I will find that the plea is freely and voluntarily 

given. We’ll set the matter for sentencing at 9:30 on April 29. 

 

[¶6.] At the sentencing on April 29, 2002, the circuit court sentenced Apple 

to two (2) years for Fourth Degree Burglary and seven (7) years for Third Degree 

Burglary in the South Dakota State Penitentiary, sentences to run concurrently. 

The State dismissed the other counts and the habitual offender information. Apple 

attempted to appeal his sentence and withdraw his plea. Apple’s appeal was 

dismissed due to procedural errors. Apple filed a writ of habeas corpus to vacate his 

sentence, claiming ineffective assistance of counsel. The circuit court found 

ineffective assistance of counsel for failure to file a timely appeal, vacated the 

original sentence, and directed that Apple be resentenced. Apple subsequently 

received the same sentence. 

[¶7.] Apple now appeals the resentence and raises the following issue: 

Whether Apple’s constitutional due process rights were violated 

in that his guilty plea was not voluntary because of the following 

errors by the circuit court: 
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(1) the circuit court failed to establish a factual basis 

prior to accepting his guilty plea, 

(2) the circuit court failed to inform him of the 

maximum penalties that could be imposed upon 

conviction, 

(3) the circuit court failed to inform him of the 

elements which the State would have to prove to 

convict him of the alleged crimes, and 

(4) the circuit court failed to establish that Apple 

understood the rights he waived and consequences 

of entering a guilty plea. 

ANALYSIS 

[¶8.] We review constitutional due process claims de novo. State v. Hayen, 

2008 SD 41, ¶5, 751 NW2d 306, 308 (citing State v. Muller, 2005 SD 66, ¶12, 698 

NW2d 285, 288). The State concedes that there were “irregularities” when Apple 

entered his plea of guilty. The State also admits “it is troubled by the apparent void 

in the transcript regarding notice of the maximum sentence prior to plea.” The 

State’s argument is simply that the plea can be considered voluntary based on the 

totality of the circumstances. The State argues that Apple’s plea was voluntary 

because, first, Apple was informed of the maximum penalties for Third and Fourth 

Degree Burglaries at his initial appearance before a magistrate 26 days earlier and, 

second, because of Apple’s age, background and experience with the legal system. 

Nevertheless, “[t]he State recognizes that if the initial appearance and other factors 

do not meet a totality of the circumstances standard, the case may be subject to 

reversal and remand.” 

[¶9.] Thus, the question is whether the totality of the circumstances 

sufficiently shows that Apple entered an intelligent and voluntary plea in spite of 
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the “irregularities,” or whether Apple’s right to due process has been violated.4 We 

are guided by the Due Process Clause of the United States and South Dakota 

Constitutions, and statutory rules. US Const amend V; US Const amend XIV; SD 

Const art VI §2; SDCL 23A-7-4; SDCL 23A-7-15. 

Due Process Requirements 

[¶10.] To satisfy due process, certain constitutional and procedural 

requirements must be followed. The constitutional rights include the right against 

self-incrimination, the right to confront witnesses, and the right to trial by jury. 

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

addition, codified criminal procedural rules act “[t]o 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 process[.]” State v. Miller, 2006 SD 54, ¶17, 

717 NW2d 614, 619 (citing McCarthy v. United States, 394 US 459, 465, 89 SCt 

1166, 1170, 22 LEd2d 418 (1969) (additional citations omitted)); see FedRCrimP 11;

SDCL 23A-7-4. The record must show in some manner that the defendant 

understood his rights in order for the defendant’s plea to be entered intelligently 

and voluntarily. See State v. Beckley, 2007 SD 122, ¶10, 742 NW2d 841, 844. This 

 

4. In State v. Wright, 2008 SD 118, __ NW2d __, unlike the present case, the 

defendant did not move to withdraw his guilty plea. Because Wright did not 

preserve the advisement failure for appellate review, we reviewed the failure 

in Wright under the plain error doctrine. For reversal under the plain error 

doctrine, the defendant “must show a reasonable probability that, but for the 

error, he would not have entered the plea.” U.S. v. Dominguez Benitez, 542 

US 74, 83, 124 SCt 2333, 2340, 159 LEd2d 157 (2004) (emphasis added). 

Because Apple asserts a constitutional violation, we need not consider 

Dominguez Benitez here.
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Court has required that “[t]he 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 NW2d 414, 416 (SD 

1982). The circuit court has the duty to properly inform defendants of the rights 

relinquished by entering a guilty plea or nolo contendere. State v. Goodwin, 2004 

SD 75, ¶14, 681 NW2d 847, 853 (quoting State v. Nikolaev, 2000 SD 142, ¶7, 619 

NW2d 244, 245 (citing Croan v. State, 295 NW2d 728, 729 (SD 1980))). 

[¶11.] Apple acknowledges that he was advised of the Boykin rights. Shortly 

before the circuit court asked Apple to enter a plea, the court advised the 

defendants of the Boykin rights as a group. Apple indicated that he understood that 

he waived his rights against self-incrimination, to confront witnesses, and to a jury 

trial if he entered a guilty plea. See Boykin, 395 US at 243, 89 SCt at 1712; 

Nachtigall v. Erickson, 85 SD 122, 126-27, 178 NW2d 198, 200 (1970) (applying the 

Boykin rights to South Dakota). Nevertheless, Apple claims that his plea was not 

voluntary and intelligent because the circuit court failed to advise him of the 

elements and maximum penalties of his charges and failed to establish a factual 

basis for his plea. 

[¶12.] South Dakota’s procedural rules give guidance on the proper procedure 

for a court to follow to ensure that a defendant knows and understands his rights. 

SDCL 23A-7-4 (Rule 11(c)) provides as follows: 

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 
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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 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 crossexamine 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. 

Id. (emphasis added). Also, the court must be “satisfied that there is a factual basis 

for the offense charged or to which the defendant pleads.” SDCL 23A-7-14.

[¶13.] The “verbatim record of the proceedings at which a defendant enters a 

plea” must clearly evidence that the court has advised the defendant of his rights 

and inquired “into the voluntariness of the plea” to ensure that a plea is intelligent 

and voluntary. SDCL 23A-7-15. The procedure as set forth by statute 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.

Id. Ultimately, we have said that “‘[i]n order for a conviction based upon a guilty 

plea to stand the plea must be intelligent and voluntary.’” Beckley, 2007 SD 122, 
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¶8, 742 NW2d 841, 842 (quoting Lodermeier v. State, 273 NW2d 163, 164 (SD 

1978)). 

Totality of the Circumstances 

[¶14.] To determine if a plea is voluntary and intelligent as required to 

satisfy due process requirements, we must look to the “totality of the 

circumstances.” Goodwin, 2004 SD 75, ¶11, 681 NW2d 847, 852 (citing State v. 

Lashwood, 384 NW2d 319, 321 (SD 1986)). In addition to the procedure and incourt colloquy with the defendant, we look at other factors including “the 

defendant’s age; his prior criminal record; whether he is represented by counsel; the 

existence of a plea agreement; and the time between advisement of rights and 

entering a plea of guilty.” Id. (internal citations omitted). 

[¶15.] Here, 37 year-old Apple had prior experience with the criminal justice 

system in South Dakota, as well as Texas, Arizona, and Colorado. Apple had been 

convicted of several misdemeanors and one felony. His ninth grade education and 

completion of a General Educational Development examination (GED) indicate he 

had the maturity level, knowledge, and the capability to understand the plea he 

made. See Id. ¶12, 681 NW2d at 852. Apple was represented by counsel at the plea 

hearing – although he successfully contended in a habeas proceeding that his 

counsel was ineffective in her representation. Through counsel, a plea agreement 

had been reached with the State, but the agreement did not include a penalty 

recommendation or recitation of the penalties he faced. Thus, the existence of the 

plea agreement does little to establish whether Apple understood the consequences 

of his guilty plea. See Id. ¶¶15-16, 681 NW2d at 853-54 (citations omitted)). 
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[¶16.] In some of our prior cases, we have determined that a deficiency in 

explaining the defendant’s rights at the time the defendant enters a guilty plea may 

be overcome with proof that the same judge had adequately explained the rights at 

an earlier arraignment. See Stacey v. State, 349 NW2d 439, 442 (SD 1984); Clark v. 

State, 294 NW2d 916, 919-20 (SD 1980); Singletary v. State, 88 SD 655, 659-60, 227 

NW2d 424, 426 (1975). We have said, “[t]he closer the arraignment explanation is 

to the guilty plea the more likely the defendant remembers the recitation of rights.” 

Goodwin, 2004 SD 75, ¶17, 681 NW2d at 854. Here, Apple’s arraignment does not 

overcome the deficiencies of his plea hearing. His arraignment was in front of a 

different judge on a different charging document. One of the charges to which Apple 

pleaded guilty did not appear in the charging document on which he was arraigned. 

[¶17.] Although the magistrate judge told Apple of the maximum penalties at 

the initial appearance on the complaint, the circuit court at no point told Apple of 

the maximum penalties as charged in the subsequent indictment. See SDCL 23A-7-

4. The four counts in the indictment notably differed from the counts charged in the 

complaint. The circuit court also failed to inform Apple of the effect of the habitual 

offender information on his sentence. Thus, the record fails to show that Apple was 

told of the possible penalties he faced when he pleaded guilty to two charges in the 

indictment. Simply being informed of the maximum penalty to a general category 

of felony, i.e. Third Degree Burglary, at an initial appearance does not necessarily 

lead to a voluntary and intelligent guilty plea to a similar charge from a subsequent

indictment. Due process requires greater precision.
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[¶18.] Additionally, Apple contends that the circuit court erred by failing to 

establish a factual basis for his charges before accepting his guilty plea. 

Establishing a factual basis for each element of an offense is essential to a knowing 

and voluntary plea. State v. Nachtigall, 2007 SD 109, ¶11, 741 NW2d 216, 220-21 

(citations omitted). In State v. Nachtigall, we reversed because the defendant did 

not understand the elements of the charges against him as related to the facts.5 Id. 

¶9, 741 NW2d at 220. We explained the importance of establishing a factual basis 

for a guilty plea as follows: 

It is essential that this suggested colloquy between the judge 

and the defendant be meaningful. Simple affirmative or 

negative answers or responses which merely mimic the 

indictment or the plea agreement cannot fully elucidate the 

defendant’s state of mind. For this reason the trial court should 

question the defendant in a manner that requires the accused to 

provide narrative responses. Questions concerning the setting of 

the crime, the precise nature of the defendant’s actions, or the 

motives of the defendant, for instance, will force the defendant 

to provide the factual basis in his own words. The court should 

not be satisfied with coached responses, nor allow a defendant to 

be unresponsive. 

Id. ¶13, 741 NW2d at 221 (quoting State v. Schulz, 409 NW2d 655, 659 (SD 1987)) 

(emphasis added). The court may not solely rely on “uncertain answers to 

incomplete questions.” Id. ¶12, 741 NW2d at 221. Such is the case for Apple. 

 

5. In State v. Nachtigall, the defendant pleaded guilty to grand theft. 2007 SD 

109, ¶3, 741 NW2d at 218. However, Nachtigall appealed, arguing that “he 

did not understand he was being charged with illegally obtaining property 

exceeding one thousand dollars. He argues that the factual basis upon which 

the trial court accepted his guilty plea was statutorily inadequate.” Id. ¶7, 

741 NW2d at 219 (emphasis in original). We held that this statutory 

violation alone warranted reversal. Id. ¶14, 741 NW2d at 221. 
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[¶19.] The court merely asked Apple for his plea, and then asked vague 

questions to establish a factual basis for each offense.6 Nothing in the record 

indicates that the circuit court ensured that Apple understood the elements of the 

charges against him. For the Fourth Degree Burglary charge, the court asked 

Apple, “Can you tell me what you did: That’s the pick up.” Apple responded that he 

was drunk and did not remember much of it. The court asked: “Did you take any 

stuff out of [the pickup] or was that your purpose of breaking into it?” Apple 

responded, “[y]eah,” without elaborating further. The court found a factual basis for 

Fourth Degree Burglary based solely on this short exchange. 

[¶20.] Then, Apple pleaded guilty to “Third Degree Burglary of the 

maintenance building at Sioux San Hospital committed on March 6, 2002.” Apple 

had not been arraigned on this charge in his earlier appearance before the 

magistrate because it was added later in the indictment. The indictment contained 

two charges involving burglary of Sioux San Hospital – one on March 6, 2002 and 

one on March 19, 2002. Only the March 19th burglary had been charged in the 

complaint. Nevertheless, the court simply asked Apple, “[a]s to Count Three, the 

third degree burglary at Sioux San[ ] Hospital, what’s your plea, guilty or not guilty 

to Count Three?” The court did not specify that this count referred to the burglary 

 

6. The elements for count two, Fourth Degree Burglary, include: “Any person 

who forcibly enters a motor vehicle with intent to commit any crime in that 

motor vehicle is guilty of aggravated criminal entry of a motor vehicle.” 

SDCL 22-32-19. For count three, Third Degree Burglary, the elements 

include: “[a]ny person who enters or remains in an unoccupied structure, 

other than a motor vehicle, with intent to commit any crime, unless the 

premises are, at the time, open to the public or the person is licensed or 

privileged to enter or remain, is guilty of third degree burglary.” SDCL 22-

32-8.
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at Sioux San Hospital on March 6, 2002, not the burglary at Sioux San Hospital on 

March 19, 2002. Apple pleaded guilty and said that he “went into the building for 

an extension cord.” The court asked, “[o]ne of their extension cords?” Apple 

responded, “[y]eah.” Apple’s uncertain responses do not provide a sufficient factual 

basis for each element of the offense of the March 6th burglary. 

[¶21.] A judge has the duty to make sure that a defendant understands the 

consequences of entering a guilty plea and the rights the defendant is waiving. The 

process should be careful and deliberate with convincing results. It must involve 

meaningful communication between the judge and the defendant. We have said: 

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. 

Goodwin, 2004 SD 75, ¶10, 681 NW2d at 852. Again, we emphasize the importance 

of following the codified rules and procedures. Doing so provides confidence that the 

defendant truly understands the charges, the penalties, and the consequences of a 

guilty plea. Shortcuts in procedure cast doubt on the validity of guilty pleas and 

lead to post-conviction challenges. A sparse record far afield of the procedures 

leaves a guilty plea questionable. 

[¶22.] Unfortunately, that is what we have here. After considering the 

totality of the circumstances for Apple’s guilty plea, we conclude that the plea 

cannot be considered intelligent and voluntary. 

[¶23.] We reverse and remand to allow the defendant to withdraw his guilty 

plea. 
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[¶24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

ZINTER, Justices, concur.