#26681-a-GAS

2014 S.D. 19

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

ROGER BAINES KING, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIRST JUDICIAL CIRCUIT

AURORA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PATRICK SMITH

Judge

* * * *

MARTY J. JACKLEY

Attorney General

ELLIE J. BAILEY

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

PHILIP D. CARLSON

Tinan, Smith & Bucher

Mitchell, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

ON FEBRUARY 18, 2014

OPINION FILED 04/16/14
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SEVERSON, Justice

[¶1.] Roger Baines King pleaded guilty to grand theft by insufficient funds

check and was sentenced to eight years in the penitentiary. On appeal, King argues 

he was not properly advised of his constitutional and statutory rights and that his 

sentence violated the Eighth Amendment. We affirm. 

Background

[¶2.] King wrote several checks over a period of two days in March 2012 to 

varying businesses in Aurora County that were not honored by his bank. The 

checks totaled $1,755. King was charged by complaint with one count of grand theft 

by insufficient funds check in May 2012. King received a preliminary hearing and 

an Information was filed in August 2012. An arraignment was held on December 7, 

2012, in front of Judge Gering. King was advised of his constitutional and statutory 

rights, but no plea was taken as the hearing was continued. A second arraignment

and change of plea hearing was held on February 6, 2013, where King entered a 

guilty plea to the charge. This hearing was held in front of Judge Smith, who also 

sentenced King.

[¶3.] At the February 6 hearing, the following exchange took place:

Court: Do you understand that by entering a plea of guilty,

you’ll be giving up certain of your rights that I’ve previously 

explained, specifically your right to a jury trial?

Defendant: Yes, Your Honor.

Court: And your right to confront the State’s witnesses against 

you?

Defendant: Yes, Your Honor.

Court: And the right to not testify and remain silent? You’d be 

giving up all of that?

Defendant: Yes, Your Honor.
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Court: All right. Counsel, have you explained all of his 

constitutional and statutory rights and do you believe he 

understands the same?

Defendant’s counsel: I have, Judge. He fully understands 

them.

. . . .

Court: Apart from the agreement that’s been stated, has there 

been any force or threat or promise made to you to get you to 

plead guilty?

Defendant: No, Your Honor.

Court: Are you entering this plea of your own free will and 

accord?

Defendant: Yes, Your Honor. 

. . . .

Court: . . . [H]ow now do you plead?

Defendant: Guilty, Your Honor.

Court: This is a voluntary plea?

Defendant: Yes, Your Honor. 

King pleaded guilty pursuant to a plea agreement whereby the State agreed 

that it would not pursue other charges or a part II Information. King also 

explained the factual basis of his guilty plea to the court. On April 3, 2013, 

Judge Smith sentenced King to eight years in the penitentiary. King now 

appeals to this Court arguing Judge Smith failed to properly advise King of 

all of his constitutional and statutory rights at King’s plea hearing and that 

his sentence violated the Eighth Amendment. 

Standard of Review

[¶4.] An alleged violation of a defendant’s constitutional right to due process 

is reviewed de novo. State v. Tiegen, 2008 S.D. 6, ¶ 14, 744 N.W.2d 578, 585. Direct 

appeals from convictions are “afforded greater scrutiny than a collateral challenge 

by habeas corpus action.” State v. Anderson, 2013 S.D. 36, ¶ 11, 831 N.W.2d 54, 57
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(citation omitted). “Thus, on a direct appeal from a conviction the defendant is 

entitled to all presumptions and protections possible under our constitution.” Id.

(citation omitted).

Decision

[¶5.] King concedes he was properly advised at his December 7, 2012

arraignment in front of Judge Gering. Rather, King argues that he was not 

properly advised at his second arraignment and change of plea hearing in front of 

Judge Smith on February 6, 2013. King contends that he was not fully advised of

his Boykin rights. King further contends that Judge Smith’s right to jury

advisement failed because Judge Smith did not advise King that “he had the right 

to a speedy, public trial by an impartial jury in Aurora County.” As a result, King 

“was denied due process of the law” and requests this Court to remand “for a full 

advisement and re-arraignment.” 

[¶6.] By pleading guilty, a defendant waives three fundamental 

constitutional rights: the right against compulsory self-incrimination, the right to a 

trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U.S. 

238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274 (1969). In our review of a guilty 

plea, we examine the totality of the circumstances, using an objective standard, and 

determine if the plea was knowingly and voluntarily given. State v. Thielsen, 2004 

S.D. 17, ¶ 22, 675 N.W.2d 429, 434 (citations omitted). To be knowing and 

voluntary, the record must affirmatively show a free and intelligent waiver by the 

defendant of his constitutional rights against self-incrimination, right to confront 

witnesses, right to a jury trial, and evidence that the defendant understood the 
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nature and consequences of his guilty plea. Monette v. Weber, 2009 S.D. 77, ¶ 10, 

771 N.W.2d 920, 925; see also Boykin, 395 U.S. at 243-44, 89 S. Ct. at 1712. In 

making that determination, we consider “the procedure and in-court colloquy” and 

“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.” Monette, 2009 S.D. 77, ¶ 12, 771 

N.W.2d at 925 (quoting State v. Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d 283, 288).

[¶7.] Nowhere amongst the critical Boykin rights and SDCL chapter 23A-7 

is the requirement that a defendant, prior to entering his guilty plea, be advised of 

his right to a jury trial in the county in which the alleged crime occurred. Instead, 

that right is found in South Dakota Constitution article VI, § 7, which provides in 

part, “In all criminal prosecutions the accused shall have the right . . . to a speedy 

public trial by an impartial jury of the county or district in which the offense is 

alleged to have been committed.” See also SDCL 23A-16-3. Although our 

Constitution and related statutes require such a right be provided, an advisement 

prior to accepting a guilty plea need not recite every constitutional right. 

[¶8.] This Court in Croan v. State, 295 N.W.2d 728 (S.D. 1980), and State v. 

Sutton, 317 N.W.2d 414 (S.D. 1982), heavily weighed the advisement, whether 

incorrect or absent, of the right to a jury trial in the county where the alleged crime 

occurred. However, in Roseland v. State, 334 N.W.2d 43 (S.D. 1983), this Court 

affirmed an order dismissing Defendant’s petition for post-conviction relief even 

though Defendant was not advised prior to his guilty plea of his right to a speedy,

public trial in the county where the alleged offense occurred. In doing so, this Court 
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backtracked from a strict requirement to advise a defendant of that right. As 

mentioned in Roseland, this Court finds an advisement sufficient when the record 

affirmatively shows that a defendant knowingly and voluntarily enters a plea. Id.

at 45 (citing State v. Holmes, 270 N.W.2d 51, 53 (S.D. 1978)); see also Monette, 2009 

S.D. 77, ¶ 10, 771 N.W.2d at 925.

[¶9.] The record affirmatively shows King knowingly and voluntarily

pleaded guilty. Judge Smith asked King, who was represented by counsel, if he 

understood that by pleading guilty he would be giving up his “right to a jury trial[.]” 

King responded affirmatively. Judge Smith then asked, “And your right to confront 

the State’s witnesses against you?” King responded affirmatively. Judge Smith 

continued, “And the right to not testify and remain silent? You’d be giving up all of 

that?” King again responded affirmatively. Last, Judge Smith asked King’s trial 

counsel whether she had explained all of King’s constitutional and statutory rights 

and whether she believed King understood those rights. Counsel responded 

affirmatively.

[¶10.] Moreover, at the time of the plea King was 45 years old, had a GED, 

and represented that he was able to “understand everything being presented” to 

him. He confirmed that he was not “under the influence of any drug or alcohol that 

would impede [his] ability to proceed” and was under no coercion in making his 

plea. King’s prior criminal record reveals an extensive history with law 

enforcement and the judicial system, he pleaded guilty pursuant to a plea 

agreement, and he stated he entered his plea voluntarily. King also explained the 
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factual basis to his plea. Therefore, we conclude King knowingly and voluntarily 

entered his guilty plea. 

[¶11.] King’s additional contention that his eight-year penitentiary sentence 

constitutes cruel and unusual punishment is without merit. 

[¶12.] Affirmed. 

[¶13.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

WILBUR, Justices, concur.