#28016-a-JMK

2017 S.D. 55

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

 v.

CHARLES MICHAEL SHELTON, JR., Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

BEADLE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JON R. ERICKSON

Judge

* * * *

MARTY J. JACKLEY

Attorney General

GRANT FLYNN

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

JEFF BURNS of

Churchill, Manolis, Freeman,

 Kludt, Shelton & Burns LLP

Huron, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

ON AUGUST 28, 2017

 OPINION FILED 09/13/17
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KERN, Justice

[¶1.] Charles Shelton appeals from a judgment of conviction for fourthdegree rape. He contends that his conviction should be reversed because the circuit 

court judge lacked jurisdiction to enter the judgment and because he did not receive 

a preliminary hearing after the State filed an amended information. We affirm.

Facts and Procedural History 

[¶2.] Following accusations that he provided a minor with alcohol and then 

had sexual intercourse with her while she was passed out, Shelton was indicted on 

one count of third-degree rape and one count of fourth-degree rape. The minor was 

fifteen years old at the time of the incident. 

[¶3.] Approximately one month before Shelton’s trial, his attorney moved to 

withdraw from the case. Shelton’s former cellmate came forward with information 

that Shelton confessed to him that Shelton had committed the rape. The attorney 

represented both Shelton and the former cellmate. Due to the conflict, the court 

allowed the attorney to withdraw and appointed a new attorney to represent 

Shelton. A week later, the circuit judge overseeing the matter sent a letter to the 

new attorney disclosing that the judge’s ex-wife is a partner in the new attorney’s

law firm and that this was a potential basis for disqualification. The judge stated:

You are now advised that I will disqualify myself from this 

proceeding, and another judge will be assigned to hear this case, 

unless you and your client agree in writing that I should not be 

disqualified, and that I may continue to preside over this action.
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A written agreement waiving disqualification was not provided and there was no 

further mention of the issue in the record. Nevertheless, the same judge continued 

to preside over the trial. 

[¶4.] Three days before the trial, the State filed an amended complaint and 

information. This was done to correct a clerical error in the original indictment. 

The caption of the indictment reflected that Shelton was charged with one count of 

third-degree rape and one count of fourth-degree rape. However, in the body of the 

indictment under Count I, it stated that Shelton “did commit the public offense of 

RAPE – SECOND DEGREE (SDCL 22-22-1(4))[.]” While the citation to the statute 

correctly corresponded with third-degree rape, the text before it indicated Shelton 

was charged with second-degree rape. The amended information corrected the 

mistake. Before Shelton’s jury trial commenced, the court noted that the amended 

information had been filed and arraigned Shelton on the charges. Shelton was not 

advised of his right to a preliminary hearing—nor did he receive one. Yet Shelton 

failed to object. The jury was instructed on the elements of third-degree rape and 

fourth-degree rape and the evidence presented at trial conformed to those charges. 

[¶5.] Following trial, Shelton was acquitted of third-degree rape but found 

guilty of fourth-degree rape. The court sentenced Shelton to fifteen years in the 

penitentiary. Shelton appeals, arguing that the judge lacked jurisdiction to enter 

the judgment of conviction due to judicial disqualification and that in the absence of 

a preliminary hearing on the amended information, the court lacked jurisdiction to 

proceed.
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Analysis 

Judicial Disqualification 

[¶6.] Under South Dakota law, there are three avenues for judicial 

disqualification. The first is under the Due Process Clause of the United States and 

South Dakota Constitutions. Due process violations for judicial bias constitute 

structural error.1 Isaacson v. Manty, 721 F.3d 533, 540 (8th Cir. 2013). The second 

is a statutory right to file an affidavit for a change of judge, which is codified in 

SDCL chapter 15-12. This is accomplished by informally requesting the judge to 

disqualify themselves, and if the judge declines, filing a formal affidavit alleging 

that “the party making such affidavit has good reason to believe and does actually 

believe that such party cannot have a fair and impartial trial before the named 

judge or magistrate.” SDCL 15-12-26. “Filing a timely and compliant affidavit 

results in mandatory, automatic disqualification[,]” O’Neill v. O’Neill, 2016 S.D. 15, 

¶ 41, 876 N.W.2d 486, 502, and if a judge continues to preside over the proceedings 

after a proper affidavit is filed, “all subsequent orders and judgments are void[,]” 

State v. Johnson, 2004 S.D. 135, ¶ 9, 691 N.W.2d 319, 322 (quoting State v. 

Peterson, 531 N.W.2d 581, 583 (S.D. 1995)). The third avenue for disqualification is 

provided in the Code of Judicial Conduct, which is codified at SDCL chapter 16-2, 

appendix A. 

[¶7.] Citing Johnson, Shelton maintains that the judge lost jurisdiction over 

this matter when he deemed himself disqualified under the Code of Judicial 

 

1. Shelton does not argue that his due process rights were violated. 
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Conduct and that the judgment of conviction entered by the judge is, therefore, void. 

Shelton conflates the issues of the statutory right to file an affidavit for a change of 

judge and judicial disqualification under the Code of Judicial Conduct. In Johnson, 

we acknowledged that “[o]nce disqualified by the filing of an affidavit for change of 

judge, the challenged judge has no jurisdiction to consider the propriety of the 

affidavit or to continue with the action.” Id. ¶ 8. As a consequence for continuing to 

preside over the proceedings after an affidavit was properly filed, we deemed that 

all subsequent orders and judgments were void. Id. ¶ 9. But an affidavit for change 

of judge was not filed in this case. As such, Johnson is not applicable. 

[¶8.] Rather, in this case, the judge deemed himself disqualified under 

Canon 3 E(1) of the Code of Judicial Conduct.2 Under the Code of Judicial Conduct, 

 

2. Canon 3 E(1) provides:

A judge shall disqualify himself or herself in a proceeding in which the 

judge’s impartiality might reasonably be questioned, including but not 

limited to instances where:

(a) the judge has a personal bias or prejudice concerning a party or a

party’s lawyer, or personal knowledge of disputed evidentiary 

facts concerning the proceeding;

(b) the judge served as a lawyer in the matter in controversy, or a

lawyer with whom the judge previously practiced law served 

during such association as a lawyer concerning the matter, or the 

judge has been a material witness concerning it.

(c) the judge knows that he or she, individually or as a fiduciary, or 

the judge’s spouse, parent or child wherever residing, or any 

other member of the judge’s family residing in the judge’s 

household, has an economic interest in the subject matter in 

controversy or in a party to the proceeding or has any other more 

than de minimis interest that could be substantially affected by 

the outcome of the proceeding;

(continued . . .)
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“[a] judge exercises discretion in deciding whether the facts and circumstances fit 

within the disqualifying criteria.” Marko v. Marko, 2012 S.D. 54, ¶18, 816 N.W.2d 

820, 826. However, once the judge answers that question affirmatively, “he must 

recuse himself; that is not discretionary.” Id. (quoting Childers and Davis, Federal 

Standards of Review § 12.05, at 12–31 (3d ed.1999)). The judge in this matter

determined that he was disqualified, and absent a waiver from the parties, erred by 

continuing to preside over the matter. 

[¶9.] We have had occasion to review whether judges have erred in refusing 

to disqualify themselves under the Code of Judicial Conduct. See, e.g., Id. ¶¶ 17-30, 

816 N.W.2d at 825-29. We have not, however, had occasion to determine what 

 

(. . . continued)

(d) the judge or the judge’s spouse, or a person within the third 

degree of relationship to either of them or the spouse of such a 

person:

(i) is a party to the proceeding, or an officer, director or 

trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have a more than de minimis 

interest that could be substantially affected by the 

proceeding, but the judge shall disclose such de minimis 

interest to the parties;

(iv) is to the judge’s knowledge likely to be a material witness 

in the proceeding.

(e) the judge, while a judge or a candidate for judicial office, has

made a public statement that commits, or appears to commit, the 

judge with respect to: 

(i) an issue in the proceeding; or

(ii) the controversy in the proceeding.

SDCL ch. 16-2 app. A. So long as the grounds for potential disqualification 

are not personal bias or prejudice, Canon 3 F permits a judge otherwise 

disqualified under Canon 3 E(1) to disclose the basis of the disqualification 

and ask the parties to waive any potential disqualification. Id.
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action is necessary when a judge does, in fact, err. The United States Supreme 

Court has provided guidance in this area. 

[¶10.] In Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. 

Ct. 2194, 100 L. Ed. 2d 855 (1988), the plaintiff claimed, after trial and entry of a 

final judgment, that the trial judge should have recused himself from the matter 

under the Code of Judicial Conduct.3 Id. at 850, 108 S. Ct. 2198. The Court 

recognized that while Canon 3 E(1) “defines the circumstances that mandate 

disqualification of . . . judges, it neither prescribes nor prohibits any particular 

remedy for a violation of that duty.”4 Id. at 862, 108 S. Ct. at 2204. This decision 

was “wisely delegated to the judiciary” and thus, the courts are left to fashion a 

remedy that would “best serve the purpose of the [Code of Judicial Conduct].” Id. 

The Court reasoned that “[t]here need not be a draconian remedy for every violation 

of [Canon 3 E(1),]” and that “there is surely room for harmless error committed by 

busy judges who inadvertently overlook a disqualifying circumstance.” Id., 108 S. 

Ct. at 2203-04. Keeping these principles in mind, the Court crafted a three-part 

test to aid in determining what action should be taken for a violation of Canon 3 

E(1). 

[¶11.] The test is this: in determining what action, if any, should be taken for 

a violation of Canon 3 E(1), “it is appropriate to consider the risk of injustice to the 

 

3. The plaintiff did not learn of the potential basis for disqualification until ten 

months after the judgment was entered. 

4. The federal counterpart to Canon 3 E(1) is codified at 28 U.S.C. § 455 (2015). 

The federal statute is substantially similar to our rule. 
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parties in the particular case, the risk that the denial of relief will produce injustice 

in other cases, and the risk of undermining the public’s confidence in the judicial 

process.” Id. at 864, 108 S. Ct. at 2205. Other courts that employ this test 

emphasize that these cases are “extremely fact intensive and fact bound, and must 

be judged on [their] unique facts and circumstances more than by comparison to 

situations considered in prior jurisprudence.” United States v. Jordan, 49 F.3d 152, 

157 (5th Cir. 1995); see also Scott v. United States, 559 A.2d 745, 753 (D.C. 1989) 

(“The extent of the risk is, of course, dependent upon the circumstances surrounding 

the violation.”). We agree with the United States Supreme Court’s reasoning and 

adopt the test set forth in Liljeberg.5

[¶12.] In upholding the conviction in this case, there is little risk of injustice 

to the parties. Initially, Shelton does not argue that the judge was biased or 

prejudiced against him in any way. Instead, Shelton erroneously argues that the 

judge lacked jurisdiction to proceed in the case, and as a result, the judgment of 

conviction was void. A thorough review of the record does not reveal any evidence of 

 

5. The adoption of this test does not in any way supersede or alter the wellsettled test for determining whether a judge’s impartiality might reasonably 

be questioned. That test is, and remains, whether “a reasonable person 

knowing all the facts [would] conclude that the judge’s impartiality might 

reasonably be questioned[.]” Marko, 2012 S.D. 54, ¶ 22, 816 N.W.2d at 827 

(citing Sao Paulo State v. Am. Tobacco Co., 535 U.S. 229, 232–33, 122 S. Ct. 

1290, 1292, 152 L. Ed. 2d 346 (2002); Liljeberg, 486 U.S. at 861, 108 S. Ct. at 

2203). In the present case, the judge already made that determination. The 

test announced today is merely an aid in determining what action must be 

taken once it is found that a judge did, in fact, err by continuing to preside 

over the matter when their impartiality may have been reasonably 

questioned. 
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partiality. Further, it is not alleged, and it does not appear from the record, that 

the judge’s ex-wife had any involvement in the matter. And while Shelton argues 

that in his experience, “an overwhelming majority of divorce cases have at least 

some level of animosity[,]” none was shown here. 

[¶13.] There is also little risk that denial of relief would produce injustice in 

other cases. Unlike the situation presented in Liljeberg, where the judge failed to 

disclose the potential basis for disqualification to the parties, the judge in this case

upheld his ethical obligations under the Code of Judicial Conduct and made a full 

disclosure. The judge sent a letter to Shelton’s counsel informing him of the 

potential basis for disqualification and filed the letter in the record. Although the 

judge erred by continuing to preside over the matter absent a waiver, Shelton 

compounded this error by failing to raise it. Other diligent parties faced with this 

scenario could simply object, bringing the matter to the judge’s attention. If the 

judge persists, alternative remedies such as filing a writ of mandamus are also 

available. Our analysis in no way relieves judges of their obligation to disqualify 

themselves—this is, and remains, the ethical duty of judges. See Canon 3 E(1) (“A 

judge shall disqualify himself or herself in a proceeding in which the judge’s 

impartiality might reasonably be questioned . . . .”). However, in determining 

whether upholding this conviction would produce injustice in other cases, we expect 

that parties in other cases would act diligently in preserving their rights. 

[¶14.] Finally, we must decide whether upholding this conviction would 

undermine the public’s confidence in the judicial process. Based on the facts of this 
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particular case, we do not believe the public’s confidence would be undermined. 

Most importantly, the judge disclosed to the parties the potential basis for 

disqualification. The purpose of Canon 3 E(1) “is to promote confidence in the 

judiciary by avoiding even the appearance of impropriety whenever possible.” 

Liljeberg, 486 U.S. at 865, 108 S. Ct. at 2205. This purpose was fulfilled when the 

judge made his disclosure. Both parties knew of the potential basis for 

disqualification. Second, by requesting a written waiver, it was clear that the judge

believed that he could remain impartial in the proceedings. Indeed, Canon 3 F only 

permits the waiver of judicial disqualification in instances where there is no 

“personal bias or prejudice concerning a party[.]” SDCL ch. 16-2 app. A. And 

finally, the record in this case does not reveal any instances of partiality. 

Consequently, while the judge erred by continuing to preside over this matter, we 

find that the error was harmless. 

Amended Information

[¶15.] Next, Shelton contends that the court lacked jurisdiction to proceed in 

this matter because he did not receive a preliminary hearing after the State filed an 

amended information. As authority for this argument, Shelton cites Honomichl v. 

State, 333 N.W.2d 797, 798 (S.D. 1983), for the general proposition that courts do 

not acquire subject matter jurisdiction without “a formal and sufficient indictment 

or information[.]” The State maintains that the filing of the amended information 

was unnecessary and that the original indictment filed was sufficient for the court 
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to proceed. We do not reach the State’s argument because Shelton’s position on 

jurisdictional defect is incorrect.

[¶16.] It is well settled that a court’s failure to hold a preliminary hearing is 

not a jurisdictional defect. See State v. King, 62 S.D. 184, 252 N.W. 36, 37 (1934); 

State v. Janssen, 371 N.W.2d 353, 356 (S.D. 1985); see also 22 C.J.S. Criminal 

Procedure and Rights of Accused §24, Westlaw (database updated June 2017) (“The 

failure to give a preliminary hearing or examination is not a jurisdictional 

defect . . . .”). Instead, it is grounds for the dismissal of the information, SDCL 23A8-2(9), but only if the defendant objects before trial, SDCL 23A-8-3(1). If a 

defendant fails to object before trial, the issue is waived. SDCL 23A-8-9. Shelton 

failed to object before trial. As a result, this issue “is not preserved for appeal.” 

State v. Lachowitzer, 314 N.W.2d 307, 309 (S.D. 1982). We reiterated in 

Lachowitzer, “[a] criminal trial is not a game where defendant’s counsel may lie in 

the weeds and hold back motions or objections that go to the very heart of the 

prosecution. There exist ample means of attacking the sufficiency of the charge 

prior to trial.” Id. (quoting State v. Williams, 297 N.W.2d 491, 493 (S.D. 1980)). 

Conclusion 

[¶17.] Absent a waiver by the parties, the judge in this case erred by 

continuing to preside over the matter after he deemed himself disqualified under 

the Code of Judicial Conduct. However, the error was harmless under the test set 

forth in Liljeberg. Further, Shelton waived the issue relating to a preliminary 

hearing when he failed to object before trial. 
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[¶18.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and WILBUR, Retired Justice, concur.