#24435-rev & rem-PER CURIAM 

2007 SD 109 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

JOHN H. NACHTIGALL, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE THIRD JUDICIAL CIRCUIT 

BROOKINGS COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE VINCENT A. FOLEY 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

STEVEN R. BLAIR 

Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

DAVID M. HOSMER 

Yankton, South Dakota Attorney for defendant 

and appellant. 

* * * * 

CONSIDERED ON BRIEFS 

ON AUGUST 27, 2007 

 OPINION FILED 10/24/07 
-1- 

 

#24435 

PER CURIAM 

[¶1.] John H. Nachtigall (Nachtigall) appeals his criminal conviction for 

illegally obtaining property or services with a credit card. He contends that his 

rights under SDCL 23A-7-2 (Rule 11(a)), and 23A-7-14 (Rule 11(f)) as well as his 

constitutional due process rights were violated due to an insufficient factual basis 

for accepting his guilty plea. We reverse and remand. 

FACTS AND PROCEDURE 

[¶2.] Between January 2, 2006 and November 21, 2006, Nachtigall worked 

for David Grayson (Grayson) on a contract basis. Grayson gave Nachtigall a gas 

credit card issued by Martin Oil, Brookings, South Dakota. Grayson authorized 

Nachtigall only to use the credit card for the purpose of purchasing gas for 

Grayson’s vehicles and equipment while Nachtigall was using them as part of his 

employment. Without Grayson’s permission, Nachtigall used the credit card for 

personal expenditures. 

[¶3.] On December 6, 2006, the State filed a complaint against Nachtigall 

charging him with illegally obtaining property or services with a credit card, in 

violation of SDCL 22-30A-8.1,1 22-30A-17,2 and 22-30A-18.3 Nachtigall was later 

 (continued . . .) 

1. SDCL 22-30A-8.1 provides: 

Any person who, by use of a credit card issued to another person, 

without the consent of the person to whom issued, or by use of a 

credit card which has been revoked or canceled or has expired, 

or by use of a falsified, mutilated, altered, or counterfeit credit 

card obtains property or services on credit, is guilty of theft. 

2. The relevant portion of SDCL 22-30A-17 provides: 

Theft is grand theft, if the property stolen: 

(1) Exceeds one thousand dollars in value; 
#24435 

-2-

________________________ 

(. . . continued) 

arrested and appointed counsel. Circuit Judge Rodney J. Steele arraigned 

Nachtigall on an indictment, which was read in open court. The court explained to 

Nachtigall the elements of the crime and all his constitutional and statutory rights. 

Nachtigall indicated that he understood the charge and his rights. 

[¶4.] Thereafter, pursuant to a plea agreement, Nachtigall entered a plea of 

guilty, and the court accepted it after the following colloquy: 

[The Court]: Between the 2nd of January and the 21st of 

November, 2006, in Brookings county, did you obtain gasoline by 

use of a credit card issued by Martin Oil to one David Grayson? 

[Nachtigall]: Yes, I did. 

[The Court]: Did you obtain that gasoline without his knowledge 

or consent? 

[Nachtigall]: No, not completely. 

[The Court]: What do you mean not completely? 

[Nachtigall]: Well, I have been working for him for the last two 

and a half years, and he gave me the credit card to use 

whenever I needed his vehicles, and like I said, I have been 

working for him and so I don’t know – okay. 

[The Court]: Did you seek his permission before each instance? 

[Nachtigall]: Okay. No. 

[The Court]: And the value of that gasoline exceeded a thousand 

dollars? 

*** 

3. SDCL 22-30A-18 provides: 

Amounts involved in thefts, whether from the same person or 

several persons, committed pursuant to one scheme or course of 

conduct, may be aggregated in determining the degree of the 

offense.
#24435 

-3-

 

[Nachtigall]: Yes. 

[The Court]: Based upon that, I will find a sufficient factual 

basis to receive the plea. 

 

Circuit Judge Vincent A. Foley sentenced Nachtigall to eight years in prison with 

two years suspended and ordered him to pay full restitution. Nachtigall appeals, 

arguing that there was an insufficient factual basis to accept his plea of guilty, 

under SDCL 23A-7-2 (Rule 11(a)),4 and 23A-7-14 (Rule 11(f)).5

ANALYSIS AND DECISION 

[¶5.] Our standard of review in a challenge to the adequacy of the factual 

basis for accepting a guilty plea is well settled. 

Before accepting a guilty plea, a court must be subjectively 

satisfied that a factual basis exists for the plea. The court must 

find a factual basis for each element of the offense. The factual 

basis must appear clearly on the record. 

State v. Schulz, 409 NW2d 655, 658 (SD 1987) (citations omitted). The factual basis 

may come from “anything that appears on the record.” Id. (noting “[i]t is not 

necessary that a defendant state the factual basis in his own words.”) (citations 

omitted). Moreover, 

[r]eading the indictment to the defendant coupled with his 

admission of the acts described in it is a sufficient factual basis 

for a guilty plea, as long as the charge is uncomplicated, the 

4. SDCL 23A-7-2 (Rule 11(a)) provides in pertinent part: 

The court may not enter a judgment unless it is satisfied that there is 

a factual basis for any plea except a plea of nolo contendere. 

5. SDCL 23A-7-14 (Rule 11(f)) provides: 

The court shall defer acceptance of any plea except a plea of nolo 

contendere until it is satisfied that there is a factual basis for the 

offense charged or to which the defendant pleads.
#24435 

-4-

indictment detailed and specific, and the admissions 

unequivocal. 

Id. (citations omitted). In cases where defendants proclaim their innocence while at 

the same time pleading guilty, the factual basis to support such pleas must be 

“strong.” Gregory v. State, 325 NW2d 297, 299 (SD 1982) (quoting North Carolina 

v. Alford, 400 US 25, 38 (1970)). This type of plea has been referred to as the 

“Alford plea.” “The so-called ‘Alford plea’ is nothing more than a guilty plea entered 

by a defendant who either: 1) maintains that he is innocent; or 2) without 

maintaining his innocence, ‘is unwilling or unable to admit’ that he committed ‘acts 

constituting the crime.’” United States v. Tunning, 69 F3d 107, 110 (6thCir 1995) 

(citation omitted). However, “[i]f the defendant cannot or will not admit to the facts 

establishing the elements of the crime, the trial court may admit transcripts [of 

testimony], [oral testimony, other sworn statements, or tangible evidence] which 

will satisfy [the court] of the existence of the factual basis for the plea.” Gregory, 

325 NW2d at 299 (quoting Spirit Track v. State, 272 NW2d 803, 805). In Gregory v. 

State, we noted a denial “of acts constituting essential elements of the offense raises 

further question of whether the defendant fully understood the nature of the offense 

charged.” Id. 

[¶6.] “The factual basis requirement, codified at SDCL 23A-7-2, is very 

closely patterned after Federal Rule of Criminal Procedure 11(f). Thus, to guide our 

interpretation of SDCL 23A-7-2, we look to the federal courts’ interpretation of Rule 

11(f).” Schulz, 409 NW2d at 657-58. 

[¶7.] Nachtigall contends that the trial court accepted his guilty plea 

without properly finding a factual basis for each element of the offense. He submits 
#24435 

-5-

 

that his responses to the court’s questioning demonstrate an equivocation 

illustrating his failure to understand the offense charged. In particular, Nachtigall 

claims 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. 

[¶8.] Developing a factual basis on the record is essential to the plea 

process. In Schulz we stated: 

Receiving guilty pleas is a process beset with pitfalls. The two 

most dangerous of these have long been recognized: coerced 

pleas6 and ignorant pleas. The first of these plainly is 

condemned by the Fifth Amendment’s mandate that no one be 

compelled in any criminal case to be a witness against himself. 

The second arises from the guilty plea as perhaps the supreme 

instance of waiver known to our system of justice, one by which 

all [ ] trial rights and safeguards are voluntarily foregone, and a 

defendant deliberately submits to conviction. If this is to be 

permitted, a decent system of justice, at a minimum, will 

concern itself that the admission is voluntary and intelligently 

made. These are core considerations, requirements that 

manifestly must lie at the heart of any respectable system for 

settling (as opposed to trying) criminal charges. 

Schulz, 409 NW2d at 658 (citing United States v. Dayton, 604 F2d 931 (5thCir 

1979)). The factual basis requirements in SDCL 23A-7-2 (Rule 11(a)) and SDCL 

23A-7-14 (Rule 11(f)) were “designed to protect these core considerations by 

ensuring that a guilty plea is entered voluntarily and intelligently.” Schulz, 409 

NW2d at 658. In this case, the lack of a sufficient factual basis leads us to 

6. In exchange for Nachtigall’s guilty plea, the State agreed not to bring a 

habitual offender charge. Nachtigall contends that his fear, based on the 

coercive tactics of the prosecutor, forced him to unwittingly plead to a charge 

he did not understand. In light of our holding on the statutory violation, we 

make no determination on this claim. 
#24435 

-6-

determine that the guilty plea was erroneously accepted. Without an adequate 

factual basis, the trial court cannot assure itself and this Court the guilty plea was 

voluntarily and intelligently entered. Schulz, 409 NW2d at 658. 

[¶9.] In plea hearings, the record must demonstrate that defendants not 

only understand the constitutional and statutory rights they are waiving by 

pleading guilty, but also fully understand the charges for which they are admitting 

guilt. “[B]ecause a guilty plea is an admission of all the elements of a formal 

criminal charge, it cannot be truly voluntary unless the defendant possesses an 

understanding of the law in relation to the facts.” McCarthy v. United States, 394 

US 459, 466, 89 SCt 1166, 1171, 22 LEd2d 418 (1969). Nachtigall’s responses to the 

court’s questions never demonstrated his understanding of the charge or how it 

related to the facts. 

[¶10.] During questioning, Nachtigall revealed that some of the credit card 

charges were permitted by his employer. When asked if the gas was purchased 

without consent, Nachtigall stated, “[n]o, not completely.” When the court asked 

what he meant by this answer, Nachtigall said that he had permission to use the 

credit card for his ongoing employment, adding, “so I don’t know – okay.” The court 

did inquire into whether he requested permission before each use of the credit card; 

however, it was never established whether any express permission was required 

before each use. Finally, the court asked if “the value of that gasoline exceeded a 

thousand dollars?” Nachtigall answered in the affirmative. 

[¶11.] The State argues that the court’s mention of “that gasoline” in its 

question was in reference to the illicitly obtained gas. Yet the earlier questioning 
#24435 

-7-

was in reference to all the gas Nachtigall purchased on the credit card. Although 

the previous exchange related to whether he received permission before each use, 

the court never clarified whether its question referred to the illicitly obtained gas. 

There must be “a factual basis for each element of the offense.” Schulz, 409 NW2d 

at 658 (citations omitted). This element, in particular, is extremely important, as it 

is the nucleus of the felony charge. See SDCL 22-30A-17(1). Nachtigall would only 

face a charge of petty theft without this element. See SDCL 22-30A-17.2 (petty 

theft in the first degree is when “value of the property stolen exceeds four hundred 

dollars but does not exceed one thousand dollars.”). The court never specifically 

inquired whether the illicit charges added up to over one thousand dollars, the key 

element of the felony charge. 

[¶12.] A guilty plea is an admission; however, a guilty plea cannot be 

accepted without a proper factual basis. SDCL 23A-7-2; and 23A-7-14. In this case, 

the record lacks any specific evidence permitting a judge to subjectively determine a 

factual basis for the guilty plea. Although a court may rely on any evidence to 

establish a factual basis, here the court relied solely on uncertain answers to 

incomplete questions. Neither the State nor Nachtigall’s attorney added any facts. 

There was no transcript of the preliminary hearing and no police report was 

submitted. 

[¶13.] While a factual basis may be gained by different means, a 

“conversation between the judge and the defendant is clearly the best method for 

establishing factual basis.” Schulz, 409 NW2d at 659. 

It is essential that this suggested colloquy between the judge 

and the defendant be meaningful. Simple affirmative or 
#24435 

-8-

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. 

. . . [F]actual admissions from the defendant in his own 

words and on the record will discourage frivolous post-conviction 

and appellate attacks on guilty pleas. 

Id.

[¶14.] When a defendant equivocates while pleading guilty, the court must 

take extra care to ensure that the record demonstrates a clear factual basis. 

Although the court conducted a partial canvassing process, Nachtigall’s equivocal 

statements gave an inadequate factual basis for the plea. This constitutes a 

violation of SDCL 23A-7-2 (Rule 11(a)), and 23A-7-14 (Rule 11(f)). If a factual basis 

fails to meet the statutory standard, the guilty plea must be set aside and the case 

must be remanded for another plea hearing. See State v. Sutton, 317 NW2d 414, 

414 (SD 1982) (stating a guilty plea shall not be accepted on a silent record). 

Because the statutory violation alone requires reversal, we need not consider the 

remaining issue of whether Nachtigall’s due process rights were violated. 

[¶15.] Accordingly, we reverse and remand. 

[¶16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER, 

and MEIERHENRY, Justices, participating.