#27037-a-LSW

2015 S.D. 73

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

TERRY LEE OLESON, Petitioner and Appellant,

v.

DARIN YOUNG, Warden, 

South Dakota State Penitentiary, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE PETER H. LIEBERMAN

Retired Judge

* * * *

STEVEN R. BINGER

Sioux Falls, South Dakota Attorney for petitioner 

and appellant. 

MARTY J. JACKLEY

Attorney General

Pierre, South Dakota

BETHANY L. ERICKSON

Assistant Attorney General

Sioux Falls, South Dakota Attorneys for respondent 

and appellee.

* * * *

CONSIDERED ON BRIEFS 

ON JANUARY 12, 2015

OPINION FILED 08/26/15
#27037

-1-

WILBUR, Justice

[¶1.] Terry Oleson pleaded guilty to first-degree rape. Oleson petitioned for 

habeas relief and argued that his plea was unconstitutional because the sentencing

court did not properly advise him of his right against self-incrimination or that a 

guilty plea would waive that right. The habeas court found that Oleson was 

properly advised of his constitutional rights. We affirm.

Background

[¶2.] Oleson was charged by indictment on November 29, 2007, with firstdegree rape, third-degree rape, and sexual contact with a child under 16 years of 

age. SDCL 22-22-1(1), -1(3), -7. The State filed a part II habitual offender 

information. Oleson was arraigned by the Honorable Bradley G. Zell and was 

advised of his rights, including but not limited to, all three Boykin rights. During 

arraignment, the court specifically advised Oleson of his right against selfincrimination; but the court did not advise him that a plea of guilty would waive 

that right.

[¶3.] Oleson agreed to plead guilty to first-degree rape in exchange for the 

dismissal of the remaining charges and the part II information. The court 

canvassed Oleson at the change-of-plea hearing individually as to his statutory and 

constitutional rights. Notably, and for purposes of this appeal, the court did not 

canvass Oleson as to his right against self-incrimination; nor did the court advise 

him that a guilty plea would waive this right:

COURT: Do you understand by entering a guilty plea, you are 

giving up certain constitutional and statutory rights?

OLESON: Yes, Your Honor.
#27037

-2-

COURT: You’re giving up the right to have a jury trial in 

relation to these charges?

OLESON: Yes, Your Honor.

COURT: You’re giving up your right to confront and crossexamine witnesses in relation to these charges?

OLESON: Yes.

COURT: You’re giving up your right to call witnesses on your 

own behalf?

OLESON: Yes, Your Honor.

COURT: You’re giving up your right to make the State prove 

beyond a reasonable doubt all of the elements of the offense 

charged against you?

OLESON: Yeah.

COURT: You’re waiving your presumption of innocence by 

pleading guilty. Do you understand that?

OLESON: Yes.

COURT: Have you had enough time to discuss this matter with 

your attorney[?]

OLESON: Yes, Sir.

COURT: Are you currently under the influence of any alcoholic 

beverage or controlled drug or substance?

OLESON: No.

[¶4.] The sentencing court sentenced Oleson to 70 years in the South 

Dakota State Penitentiary. Oleson did not file a direct appeal of his conviction or

sentence. About five years later, on January 20, 2012, Oleson filed a petition for 

habeas relief. Oleson alleged (1) that the sentencing court failed to advise him of 

his right against self-incrimination, (2) the court failed to establish the 

voluntariness of his plea, (3) the court failed to establish a factual basis for his plea, 

and (4) that he received ineffective assistance of counsel. The habeas court issued 

findings of fact, conclusions of law, and an incorporated memorandum opinion. The 

habeas court concluded that the record reflected that Oleson was aware at the time 
#27037

-3-

of his guilty plea that his rights included the right against self-incrimination, and 

that he understood that he was waiving all of his constitutional and statutory rights

including, but not limited to, all three Boykin rights. Consequently, the court 

denied Oleson’s writ for habeas corpus relief. The habeas court granted Oleson’s 

motion for certificate of probable cause, allowing him to appeal the issue of whether 

his guilty plea was a valid waiver of his privilege against self-incrimination. Oleson 

raises the following issue for our review:

Whether the habeas court erred in finding that Oleson’s plea was

constitutional.

Standard of Review

[¶5.] Habeas corpus “is a collateral attack on a final judgment.” Monette v. 

Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923 (quoting Owens v. Russell, 2008 S.D. 

3, ¶ 6, 726 N.W.2d 610, 614-15). Accordingly, “habeas corpus can be used only to 

review (1) whether the court has jurisdiction of the crime and the person of the 

defendant; (2) whether the sentence was authorized by law; and (3) in certain cases 

whether an incarcerated defendant has been deprived of basic constitutional 

rights.” McDonough v. Weber, 2015 S.D. 1, ¶ 15, 859 N.W.2d 26, 34 (quoting Flute 

v. Class, 1997 S.D. 10, ¶ 8, 559 N.W.2d 554, 556).1 “The petitioner must ‘prove he is 

entitled to relief by a preponderance of the evidence.’” Id. (quoting Vanden Hoek v. 

 

1. In two recent habeas corpus appeals to this Court, we considered the issue 

whether the record demonstrated that the defendant entered a 

constitutionally sufficient guilty plea. Rosen v. Weber, 2012 S.D. 15, 810 

N.W.2d 763 (holding that the record did not establish that defendant 

knowingly and voluntarily waived his Boykin rights); Monette, 2009 S.D. 77, 

771 N.W.2d 920 (holding that the record did not establish that defendant 

voluntarily waived his Boykin rights). 
#27037

-4-

Weber, 2006 S.D. 102, ¶ 8, 724 N.W.2d 858, 861-62). “‘Preponderance of the 

evidence’ is defined as ‘the greater weight of evidence.’” Pieper v. Pieper, 2013 S.D. 

98, ¶ 22, 841 N.W.2d 781, 787 (quoting L.S. v. C.T., 2009 S.D. 2, ¶ 23, 760 N.W.2d 

145, 151). “We review habeas factual findings under the clearly erroneous standard 

and legal conclusions under the de novo standard.” McDonough, 2015 S.D. 1, ¶ 15, 

859 N.W.2d at 34 (quoting Meinders v. Weber, 2000 S.D. 2, ¶ 5, 604 N.W.2d 248, 

252).

Analysis

[¶6.] When a criminal defendant enters a plea of guilty, the defendant 

waives three fundamental constitutional rights: “the privilege 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). The United States Supreme Court stated in Boykin that because a 

criminal defendant waives these three fundamental rights by pleading guilty, “an 

accused facing . . . imprisonment demands the utmost solicitude of which courts are 

capable in canvassing the matter with the accused to make sure he has a full 

understanding of what the plea connotes and of its consequence.” Id. at 243-44, 89 

S. Ct. at 1712. The Supreme Court proclaimed that it “cannot presume a waiver of 

these three important federal rights from a silent record.” Id., quoted in Rosen v. 

Weber, 2012 S.D. 15, ¶ 8, 810 N.W.2d 763, 765. Similarly, we have stressed that “it 

is critical not only that a defendant be advised of his rights relating to selfincrimination, trial by jury, and confrontation, but also that the defendant 
#27037

-5-

intentionally relinquish or abandon known rights.” State v. Smith, 2013 S.D. 79, 

¶ 8, 840 N.W.2d 117, 120 (quoting Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 924).

[¶7.] We have acknowledged, however, that “Boykin ‘does not require the 

recitation of a formula by rote or the spelling out of every detail by the trial court[.]’” 

Monette, 2009 S.D. 77, ¶ 11, 771 N.W.2d at 925 (quoting Nachtigall v. Erickson, 85 

S.D. 122, 128, 178 N.W.2d 198, 201 (1970)). “[S]pecific articulation of the Boykin 

rights by the trial judge is not an indispensable requisite for the record to establish 

a valid plea.” Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23 (quoting State v. 

Moeller, 511 N.W.2d 803, 810 (S.D. 1994)). Rather, “if the record reflects that a 

Boykin canvassing occurred, we require only that the ‘record in some manner shows 

the defendant entered his plea understandingly and voluntarily.’” State v. Bilben, 

2014 S.D. 24, ¶ 11, 846 N.W.2d 336, 339 (quoting Quist v. Leapley, 486 N.W.2d 265, 

267 (S.D. 1992)). We applied a “two-step approach”2 in Rosen and Monette to 

determine whether the record reflects that the defendant relinquished his rights. 

See id. ¶ 19, 846 N.W.2d at 340. We said in Rosen, “[T]he totality of the 

circumstances analysis is inapplicable when the record reflects that no canvassing

 

2. The majority opinion in Bilben recognized that the dissent “present[ed] a 

compelling argument that our case law, addressing alleged Boykin violations, 

has incorrectly strayed from a totality-of-the-circumstances analysis toward 

the two-step approach applied in Rosen and Monette.” 2014 S.D. 24, ¶ 19, 846 

N.W.2d at 340. We stated, however, that “we must wait for another day to 

address this matter” because “the State has not asked us to reconsider our 

case law declining to apply totality analysis when no waiver advisement has 

been given.” Id. Similarly, the State in this case does not request that we 

reconsider our case law. We therefore adhere to the precedent in Rosen and 

Monette, “awaiting a proper case in which we can also consider the 

arguments against the positions argued by [Chief Justice Gilbertson].” See 

id.
#27037

-6-

regarding a Boykin waiver ever took place.” 2012 S.D. 15, ¶ 11, 810 N.W.2d at 766

(emphasis added). See also Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926-27. “In 

the complete absence of a Boykin canvassing, a ‘critical step’ is missing and the 

reviewing court does ‘not consider the additional factors under the totality of the 

circumstances analysis.’” Bilben, 2014 S.D. 24, ¶ 14, 846 N.W.2d at 339 (quoting 

Rosen, 2012 S.D. 79, ¶ 11, 810 N.W.2d at 766).

[¶8.] There is no dispute in this case that the sentencing court did not 

advise Oleson during the change-of-plea hearing of his right against selfincrimination or that by entering a guilty plea he would waive that right. The first 

question, then, under the two-step approach in Monette and Rosen is whether the 

absence of this advisement constitutes a “complete absence of Boykin canvassing”

such that a “critical step” is missing. See id. Oleson argues that this case is 

analogous to our recent cases where we reversed and remanded for resentencing

because we held that this first step was missing. See Bilben, 2014 S.D. 24, 846 

N.W.2d 336; Rosen, 2012 S.D. 15, 810 N.W.2d 763; Monette, 2009 S.D. 77, 771 

N.W.2d 920. However, our decisions in Monette, Rosen, and Bilben are factually 

distinguishable from the present case.

[¶9.] The issue in Monette was whether the plea entered was voluntary in 

the absence of “any inquiry into the voluntariness of a no contest plea, and thus no 

record of an effective waiver of federal constitutional rights[.]” Monette, 2009 S.D. 

77, ¶ 14, 771 N.W.2d at 926 (emphasis added). “No inquiry was made by the 

sentencing court to determine if the plea was coerced or influenced by threats or 

promises.” Id. ¶ 15. In addition, the “court failed to inquire if Monette waived his 
#27037

-7-

constitutional rights.” Id. ¶ 9, 771 N.W.2d at 924. The absence of that “critical 

step” led us to conclude that no further inquiry into the totality of the circumstances 

was necessary to determine that the plea was unconstitutional. Id. ¶ 16, 771 

N.W.2d at 927.

[¶10.] In Rosen, we again considered whether the defendant’s plea was 

entered voluntarily and knowingly. The sentencing court did not advise Rosen that

by pleading guilty “he would waive his right against self-incrimination, his right of

confrontation, and his right to a trial by jury.” 2012 S.D. 15, ¶ 14, 810 N.W.2d at 

767. Nor did the court inquire of Rosen whether he “understood that he would 

waive those rights by pleading guilty.” Id. Instead, the court merely advised the 

defendant that by pleading guilty he would waive his right to “a trial.” Id. ¶ 3, 810 

N.W.2d at 764. We concluded that this was not sufficient. Id. ¶ 14, 810 N.W.2d at 

767. The record did not reflect a knowing and voluntary waiver of the defendant’s 

Boykin rights, and, therefore, we did not analyze the totality of the circumstances. 

Id.

[¶11.] In Bilben, the defendant collaterally attacked a prior conviction for

driving under the influence because the sentencing court did not canvass Bilben

regarding his waiver of his three Boykin rights. 2014 S.D. 24, ¶ 13, 846 N.W.2d at 

339. Further, the record indicated that he did not receive any waiver advisement. 

Id. We held, “Because there was a complete absence of any Boykin waiver 

advisement . . ., we do not apply the totality-of-the-circumstances analysis.” Id.

¶ 14 (emphasis added). Consequently, we reversed and remanded for resentencing. 
#27037

-8-

[¶12.] The common thread in Monette, Rosen, and Bilben is the “complete 

absence” of any Boykin waiver advisement as to each defendant on the right against 

self-incrimination, the right to confront witnesses, and the right to a jury trial.3 

Therefore, an analysis of the totality of the circumstances would be a nullity. “The 

habeas court had no basis on a silent record from the sentencing court to determine 

by a preponderance of the evidence that the plea was [constitutionally sufficient].” 

Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926. It follows that complete Boykin 

canvassing is a sufficient, but not a necessary, reason to examine the totality of the

circumstances.

[¶13.] Here, while the sentencing court did not explain the right of selfincrimination to Oleson at the change-of-plea hearing, the court had previously

explained this right to Oleson at arraignment.

COURT: You have the right against self-incrimination. What 

that means is, you have the right to plead not guilty, have the 

right to have the State prove beyond a reasonable doubt each 

and every element of the offense charged against you. You do 

not have to testify. You do not have to put on any evidence 

 

3. The habeas court and the State further relied on Merrill v. State, 87 S.D. 285, 

206 N.W.2d 828 (1973), for the proposition that the failure to advise Oleson of 

his right against self-incrimination did not render the plea invalid. In 

Merrill, “the sentencing court failed to specifically advise petitioner of his 

constitutional right against self-incrimination.” Id. at 286, 206 N.W.2d at 

829. We held “that the court’s failure to do so [did] not vitiate the plea where 

the post-conviction proceedings clearly show that the petitioner was aware of 

his constitutional rights and that he understood those rights at the time he 

entered his guilty plea.” Id. at 291, 206 N.W.2d at 831. While the underlying 

premise in Merrill is similar to the present case—i.e, the mere failure to 

advise the criminal defendant on one of three Boykin rights does not, by 

itself, vitiate a guilty plea—we acknowledge that Merrill was decided under 

the terms of the now-repealed Post-Conviction Relief Act, see SDCL chapter 

23-52. Id. at 286, 206 N.W.2d at 829. Therefore, Merrill is not applicable to 

this case. 
#27037

-9-

whatsoever, and if you choose not to testify or put on any 

evidence, neither the State nor that court can hold that against 

you.

We have recognized “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.” State v. 

Apple, 2008 S.D. 120, ¶ 16, 759 N.W.2d 283, 289. “The closer the arraignment 

explanation is to the guilty plea the more likely the defendant remembers the 

recitation of rights.” State v. Goodwin, 2004 S.D. 75, ¶ 17, 681 N.W.2d 847, 854. 

See also Garcia v. State, 2014 S.D. 5, ¶ 16, 843 N.W.2d 345, 351 (21-day interval); 

Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d at 926 (7-day interval); Stacey v. State, 349 

N.W.2d 439, 441-42 (S.D. 1984) (30-day interval); Clark v. State, 294 N.W.2d 916, 

919-20 (S.D. 1980) (26-day interval). The same judge in this case presided over 

arraignment and the change-of-plea hearing and adequately explained the right 

against self-incrimination at arraignment. Although 70 days elapsed between the 

two proceedings, the simple fact remains that Oleson was advised at arraignment 

regarding his right against self-incrimination. The question that arises, then, is 

whether the fact that Oleson was not advised that a guilty plea would waive this 

right deprived him of his constitutional right to due process such that relief is 

necessary.

[¶14.] The record reflects that the sentencing court specifically advised

Oleson at the change-of-plea-hearing that a guilty plea would waive his other two

Boykin rights. That is, the sentencing court advised Oleson of his right of 

confrontation and his right to a trial by jury, and that a guilty plea would waive 
#27037

-10-

these two rights. While the sentencing court at the change-of-plea hearing did not 

advise Oleson of his right against self-incrimination or that a guilty plea would 

waive that right at the change-of-plea hearing, “[s]pecific articulation of the Boykin 

rights by the trial judge is not an indispensable requisite for the record to establish 

a valid plea.” See Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23 (quoting Moeller, 

511 N.W.2d at 810). “Boykin ‘does not require the recitation of a formula by rote or 

the spelling out of every detail by the trial court[.]’” Monette, 2009 S.D. 77, ¶ 11, 

771 N.W.2d at 925 (quoting Nachtigall, 85 S.D. at 128, 178 N.W.2d at 201). See also 

Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974) (“Specific articulation of the 

Boykin rights is not the sine qua non of a valid guilty plea. . . . Boykin does not 

require specific articulation of the above mentioned three rights in a state 

proceeding.”); McChesney v. Henderson, 482 F.2d 1101, 1106 (5th Cir. 1973) (“[N]o 

rule of criminal procedure was mandated by Boykin, and there is no express 

requirement that specific articulation of the three constitutional rights above 

mentioned be given to the accused at the time of the acceptance of a plea of 

guilty . . . .”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir. 1972) (footnote omitted) 

(“We agree that for the plea to stand [a defendant] must have been ‘fully aware of 

the direct consequences’ of his plea, but we reject the contention that under . . . the 

Constitution . . . [a defendant is] entitled to specific monition as to the several 

constitutional rights waived by entry of the plea.”). Therefore, the mere fact that 

the sentencing court did not explain the right against self-incrimination to Oleson 

at the change-of-plea hearing—a right that was explained in extensive detail at 

arraignment—and that a guilty plea would waive this right does not render the 
#27037

-11-

record silent, see Rosen, 2012 S.D. 15, ¶ 8, 810 N.W.2d at 765; nor can it be 

described as a complete absence of canvassing, see Bilben, 2014 S.D. 24, ¶ 13, 846 

N.W.2d at 339.

[¶15.] We therefore examine the totality of the circumstances to determine

whether Oleson entered a voluntary and knowing guilty plea. To determine 

whether a guilty plea is voluntary and knowing “as required to satisfy due process 

requirements, we must look to the ‘totality of the circumstances.’” Apple, 2008 S.D. 

120, ¶ 14, 759 N.W.2d at 288 (quoting Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d at

852). “In addition to the procedure and in-court colloquy, 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.’” Monette, 2009 S.D. 77, ¶ 12, 771 N.W.2d at 

925 (quoting Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288). Here, Oleson argues 

simply that he did not knowingly enter his plea because the sentencing court did 

not advise him that pleading guilty would waive his right against selfincrimination. In contrast, the following facts weigh heavily in favor of Oleson 

entering his plea knowingly and voluntarily: Oleson was 42 years old at the time he 

pleaded guilty; he was represented by counsel; he pleaded guilty according to the 

terms of a plea agreement; the circuit court advised Oleson of his right against selfincrimination at arraignment only two months prior; and, most significantly, Oleson 

entered guilty pleas in no fewer than six previous criminal prosecutions.

[¶16.] Other circumstances also support the conclusion that Oleson 

knowingly entered his plea. At Oleson’s change-of-plea hearing, the sentencing 
#27037

-12-

court said, “Do you understand by entering a guilty plea, you are giving up certain 

constitutional and statutory rights?” The sentencing court then proceeded to ask 

Oleson if he understood that pleading guilty would waive his rights to a jury trial 

and to confront adverse witnesses. It is difficult to conclude that an adult 

defendant—one represented by counsel and well-versed in the consequences of 

pleading guilty—did not understand that pleading guilty and pleading not guilty 

were mutually exclusive. The sentencing court’s reference to two of the three 

Boykin rights that had been previously explained to Oleson at Oleson’s arraignment 

lends further support to the conclusion that the sentencing court’s reference to 

“certain constitutional and statutory rights” informed Oleson that pleading guilty 

would also waive his right against self-incrimination. Consequently, the habeas 

court did not err when it concluded that Oleson failed to establish by a 

preponderance of the evidence that he did not knowingly and voluntarily enter his 

plea.

[¶17.] Affirmed.

[¶18.] ZINTER, Justice, and KONENKAMP, Retired Justice, concur.

[¶19.] GILBERTSON, Chief Justice, concurs in result.

[¶20.] SEVERSON, Justice, concurs with a writing.

[¶21.] KERN, Justice, not having been a member of the Court at the time this 

action was assigned to the Court, did not participate.
#27037

-13-

GILBERTSON, Chief Justice (concurring in result).

[¶22.] As it did in Bilben, 2014 S.D. 24, 846 N.W.2d 336, the Court today 

declines to revisit the propriety of the two-step approach that evolved out of 

Monette, 2009 S.D. 77, 771 N.W.2d 920, and that the Court adopted in Rosen, 2012 

S.D. 15, 810 N.W.2d 763. See supra ¶ 7 n.2. Although I concur in the Court’s 

decision to deny Oleson habeas relief, I write separately because I adhere to my 

dissenting opinions in Rosen and Bilben. The two-step approach to reviewing the 

constitutionality of a defendant’s guilty plea employed in those cases and by the 

Court today equates the absence of a Boykin canvassing with the absence of 

evidence establishing the voluntariness of a plea. Furthermore, although the Court 

reaches the correct result today, it does so by applying this two-step approach in 

contravention of the long-standing burden of proof imposed on habeas petitioners.

Analysis

[¶23.] 1. The two-step approach equates the absence of a Boykin

canvassing with the absence of evidence establishing 

voluntariness.

[¶24.] Quoting Rosen, 2012 S.D. 15, ¶ 11, 810 N.W.2d at 766, the Court today 

says, “The totality of the circumstances analysis is inapplicable when the record 

reflects that no canvassing regarding a Boykin waiver ever took place.” See supra

¶ 7. Although I acknowledge that we have been consistently divided on the issue 

since Rosen, I continue to reject the Court’s “recent direction taken . . . away from a 

totality-of-the-circumstances review of guilty pleas and toward a two-step 

approach[.]” Bilben, 2014 S.D. 24, ¶ 35, 846 N.W.2d at 345 (Gilbertson, C.J., 

dissenting). This approach is inconsistent with Boykin itself, as well as our own 

cases prior to Monette.
#27037

-14-

[¶25.] In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 

(1969), the United States Supreme Court identified “[s]everal federal constitutional 

rights . . . involved in a waiver that takes place when a plea of guilty is entered in a 

state criminal trial.” Id. at 243, 89 S. Ct. at 1712. These include the right against 

self-incrimination, the right to a jury trial, and the right of confrontation. Id. A 

court may not “presume a waiver of these three important . . . rights from a silent 

record.” Id. However, “Boykin does not require specific articulation of the above 

mentioned three rights in a state proceeding.” Wilkins, 505 F.2d at 763; see also

Wade, 468 F.2d at 1060 (“[W]e reject the contention that under . . . the 

Constitution . . . [a defendant is] entitled to specific monition as to the several 

constitutional rights waived by entry of the plea.”). In other words, “no rule of 

criminal procedure was mandated by Boykin, and there is no express requirement 

that specific articulation of the three constitutional rights above mentioned be given 

to the accused at the time of the acceptance of a plea of guilty[.]” McChesney, 482 

F.2d at 1106. Instead, a circuit court’s acceptance of a defendant’s guilty plea 

should be upheld if the “record affirmatively show[s] that the plea was knowing and 

voluntary.” See Parke v. Raley, 506 U.S. 20, 29, 113 S. Ct. 517, 523, 121 L. Ed. 2d 

391 (1992) (emphasis added). Such a determination is made “by considering all of 

the relevant circumstances.” Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984) 

(per curiam) (citing Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469, 

25 L. Ed. 2d 747 (1970)).

[¶26.] Our own case law largely mirrors the federal analysis. Although the 

complete absence in the record of “any inquiry into the voluntariness [or 
#27037

-15-

knowingness] of a [guilty] plea . . . renders the plea unconstitutional[,]” Monette, 

2009 S.D. 77, ¶ 14, 771 N.W.2d at 926, “specific articulation of the Boykin rights by 

the trial judge is not an indispensable requisite for the record to establish a valid 

plea[,]” State v. Beckley, 2007 S.D. 122, ¶ 10, 742 N.W.2d 841, 844 (quoting Moeller, 

511 N.W.2d at 810). “The Boykin advisements are not the only mechanism by 

which a plea taking court can insure the intelligent entry of a guilty plea.” Quist, 

486 N.W.2d at 267. “It is sufficient when the record in some manner shows the 

defendant entered his plea understandingly and voluntarily[,]” Beckley, 2007 S.D. 

122, ¶ 10, 742 N.W.2d at 844 (quoting Moeller, 511 N.W.2d at 810); i.e., when the 

record demonstrates “that the accused was aware, or made aware, of his right to 

confrontation, to a jury trial, and against self-incrimination, as well as the nature of 

the charge and the consequences of his plea[,]” Nachtigall, 85 S.D. at 128, 178 

N.W.2d at 201 (emphasis added) (quoting In re Tahl, 460 P.2d 449, 456 (Cal. 1970) 

(en banc)). Thus, for decades, “[i]n determining whether a plea [was] voluntary, we 

consider[ed] the ‘totality of the circumstances.’” Monette, 2009 S.D. 77, ¶ 12, 771 

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

[¶27.] In 2009, this Court diverged from Beckley, Moeller, Quist, Nachtigall, 

and other similar cases in our Rosen decision. In Rosen, we reviewed the 

constitutionality of a guilty plea entered by a defendant who “was not advised or 

asked whether he understood that by pleading guilty he would waive his right to 

trial by a jury, his right to compulsory process, and his right against selfincrimination.” 2012 S.D. 15, ¶ 3, 810 N.W.2d at 764. This Court determined that 

“by accepting the . . . plea without a Boykin canvassing, ‘the sentencing court failed 
#27037

-16-

to make critical inquiries and determinations when the inquiries were most 

significant—when the defendant changed his not guilty plea to a plea of guilty.’” Id.

¶ 9, 810 N.W.2d at 766 (quoting Monette, 2009 S.D. 77, ¶ 13, 771 N.W.2d at 925-26). 

Because the circuit court had not fully canvassed the defendant regarding his 

Boykin rights, this Court declined to determine whether the defendant’s plea was 

actually entered knowingly and voluntarily under the totality-of-the-circumstances. 

Id. ¶ 11, 810 N.W.2d at 766 (quoting Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 

926-27). 

[¶28.] At the heart of our ongoing disagreement is a misperception of our 

historical approach to reviewing the constitutionality of a plea: that a totality-ofthe-circumstances analysis is not appropriate when the record is silent regarding 

the voluntariness of a plea. The better view is that such analysis is appropriate in 

every case, whether silent regarding a Boykin canvassing or voluntariness in 

general. On one hand, consider a totality-of-the-circumstances analysis in the 

absence of relevant circumstances—i.e., the totality of no circumstances. On the 

other hand, consider the refusal to conduct such analysis because of a record silent 

on voluntariness. When there are no circumstances establishing voluntariness to 

consider, the result in either case is the same: the impossibility of concluding that 

the plea was entered knowingly and voluntarily. While the result is the same, 

however, this artificial distinction and its resulting conditional application of 

totality analysis opened the door to equating the absence of evidence establishing 

voluntariness with the absence of canvassing on Boykin rights. Although the 

presence or absence of a Boykin canvassing is certainly relevant to the ultimate 
#27037

-17-

determination of voluntariness—and in some cases, may be very persuasive—such 

evidence is merely one circumstance among the totality that might establish that a 

defendant knowingly and voluntarily pleaded guilty.

[¶29.] In Bilben, this Court conceded that “[t]he dissent . . . presents a 

compelling argument that our case law, addressing alleged Boykin violations, has 

incorrectly strayed from a totality-of-the-circumstances analysis toward the twostep approach applied in Rosen and Monette.” 2014 S.D. 24, ¶ 19, 846 N.W.2d at 

340. Nevertheless, the Court declined to abandon the two-step approach in order to 

“await[] a proper case in which [the Court] can also consider the arguments against 

the positions argued by the dissent.” Id. The Court takes the same position today. 

See supra ¶ 7 n.2. However, this case is distinguishable from Bilben: while Bilben 

necessarily did not have the opportunity to respond to arguments raised in that 

dissent, Oleson has had such an opportunity. Additionally, the State raised the 

issue in this case. Quoting Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23, the 

State argues in its brief that “[s]pecific articulation of the Boykin rights by [the] 

trial judge is not an indispensable requisite for the record to establish a valid plea.” 

Again quoting Smith, 2013 S.D. 79, ¶ 14, 840 N.W.2d at 122-23, the State 

continues, “Instead, ‘the record in some manner must show the defendant entered 

his plea understandingly and voluntarily.’” Finally, citing Monette, 2009 S.D. 77, 

¶ 12, 771 N.W.2d at 925, the State argues that the totality of the circumstances 

should “determine whether Oleson understood that he was waiving all three Boykin

rights by entering a plea of guilty[.]” This analysis stands in stark contrast to the 

two-step approach articulated by this Court in Rosen, where it said, “[W]hen there 
#27037

-18-

is no record showing that the sentencing court conducted a Boykin canvassing, the 

habeas court has no basis upon which it may find that the sentencing court obtained 

a voluntary and valid waiver of the defendant’s Boykin rights.” Rosen, 2012 S.D. 

15, ¶ 10, 810 N.W.2d at 766 (emphasis added). Thus, even if it doesn’t explicitly 

ask, “Will you reconsider Rosen,” the State clearly invites us to revisit the issue by 

attacking the substance of the two-step approach. 

[¶30.] Furthermore, there is no indication in Monette or Rosen that the 

defendants in those cases explicitly asked the Court to reconsider 40 years of prior 

cases—such as Beckley, Moeller, Quist, Nachtigall, and others dating back to 

Boykin—that consistently affirmed our use of the totality-of-the-circumstances 

analysis in cases like this. Notably, we never overruled these prior cases. 

Therefore, an abandonment of the two-step approach would be, at worst, an 

unrequested correction to an unrequested deviation. I see little point in continuing 

to wait for the State to formally request that we resolve a conflict in case law of our 

own making.

[¶31.] Despite my disagreement with the Court’s application of the two-step 

approach in this case, I agree with the Court’s conclusion that the totality of the 

circumstances makes clear that Oleson understood pleading guilty would waive his 

right against self-incrimination.

[¶32.] 2. The Court applies a lower burden of proof than that normally 

required of a habeas petitioner.

[¶33.] We have consistently stressed that “we limit our review of a habeas 

appeal ‘because it is a collateral attack on a final judgment.’” McDonough, 2015 

S.D. 1, ¶ 15, 859 N.W.2d at 33-34 (quoting Vanden Hoek, 2006 S.D. 102, ¶ 8, 724 
#27037

-19-

N.W.2d at 861). Habeas corpus “deals only with such radical defects as render the 

proceeding or judgment absolutely void.” Acker v. Adamson, 67 S.D. 341, 347, 293 

N.W. 83, 85 (1940) (emphasis added). As such, “habeas corpus can be used only to 

review (1) whether the court has jurisdiction of the crime and the person of the 

defendant; (2) whether the sentence was authorized by law; and (3) in certain cases 

whether an incarcerated defendant has been deprived of basic constitutional 

rights.” McDonough, 2015 S.D. 1, ¶ 15, 859 N.W.2d at 34 (emphasis added) 

(quoting Flute, 1997 S.D. 10, ¶ 8, 559 N.W.2d at 556). Mere “[e]rrors and 

irregularities in the proceedings of a court having jurisdiction of the person, subject 

matter and power to decide questions of law, are not reviewable though they may 

have been grounds for reversal on direct appeal.” State ex rel. Ruffing v. Jameson, 

80 S.D. 362, 366, 123 N.W.2d 654, 656 (1963).

[¶34.] Even if habeas review is appropriate in this case,4 the Court’s 

application of the two-step approach contravenes the burden of proof established for 

 

4. As the Court points out, we have previously entertained habeas appeals 

involving challenges to the constitutionality of guilty pleas. However, 

entertaining a habeas appeal is not synonymous with holding that the 

content of the appeal is the proper subject of a habeas petition. Moreover, 

whether habeas corpus is appropriate is highly dependent on the facts of each 

individual case. “[W]e look at the full course of the proceeding which 

culminated in the challenged judgment of conviction to ascertain whether, 

when so viewed as a whole, it can reasonably be said that it so offends against 

the settled notions of fairness and justice . . . as to fail to amount to due 

process of law.” State ex rel. Baker v. Jameson, 72 S.D. 638, 644, 38 N.W.2d 

441, 444 (1949) (emphasis added). In Rosen and Monette, the State only 

answered the petitioners’ arguments on the merits; the State did not further 

assert that habeas relief was inappropriate because the error—if there was 

any—did not rise to the level of a jurisdictional defect. Likewise, the State 

has not raised this argument in the present case. 
#27037

-20-

habeas actions. “[T]he judgment of a court carries with it a presumption of 

regularity.” Johnson v. Zerbst, 304 U.S. 458, 468, 58 S. Ct. 1019, 1025, 82 L. Ed. 

1461 (1938). As the Court notes, it is Oleson who is required to “prove he is entitled 

to relief by a preponderance of the evidence.” McDonough, 2015 S.D. 1, ¶ 15, 859 

N.W.2d at 34 (emphasis added) (quoting Vanden Hoek, 2006 S.D. 102, ¶ 8, 724 

N.W.2d at 861-62); see also Monette, 2009 S.D. 77, ¶ 16, 771 N.W.2d at 926 (“The 

petitioner in a habeas action carries the burden of proving an involuntary plea and

that his constitutional rights were violated.” (emphasis added)). “Where a 

defendant . . . acquiesces in a trial resulting in his conviction and later seeks release 

by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to 

establish that he did not competently and intelligently waive his constitutional 

right . . . .” Johnson, 304 U.S. at 468-69, 58 S. Ct. at 1025. Yet, under the burden of 

proof applied by the Court today, “the defendant can . . . prevail by alleging that the 

judge failed to utter specific advisements, regardless of the surrounding 

circumstances and without claiming actual coercion or misunderstanding or 

ignorance of the rights being waived.” Bilben, 2014 S.D. 24, ¶ 37, 846 N.W.2d at 

346 (Gilbertson, C.J., dissenting).

[¶35.] Although the lack of a Boykin canvassing can certainly evidence an 

unknowing plea, such evidence is not dispositive unless it constitutes “the greater of 

weight of evidence.” L.S. v. C.T., 2009 S.D. 2, ¶ 23, 760 N.W.2d 145, 151 (quoting 

Gross v. CT Mut. Life Ins. Co., 361 N.W.2d 259, 269 (S.D. 1985)) (defining the 

preponderance standard). It is not sufficient that a circuit court fails to advise a 

defendant that pleading guilty will waive his rights against self-incrimination, to a 
#27037

-21-

jury trial, and to confrontation; in an appropriate habeas petition, a petitioner must 

instead prove by a preponderance that his plea, in actuality, was not knowing. 

Thus, while the Court reaches a totality-of-the-circumstances analysis in the 

present case, it does so only because it concludes there was not “a complete absence 

of canvassing.” See supra ¶ 14. The same analysis—applied in a subsequent 

habeas petition—would grant relief to a petitioner able to prove the absence of a 

complete Boykin canvassing, even if the greater weight of evidence proves he 

knowingly entered his plea.

[¶36.] Even if I generally agreed with the two-step approach, the Court’s 

application of it in this case is inapposite because this is a habeas action and not a 

direct appeal. The Court’s analysis should be as simple as this: Oleson’s simple 

assertion that the circuit court failed to inform him of the individual effect of 

waiving his right against self-incrimination does not establish by the greater weight 

of evidence that he did not knowingly enter his plea. Therefore, granting habeas 

relief is not appropriate.

Conclusion

[¶37.] Our pre-Rosen decisions firmly establish that a Boykin canvassing is 

not a necessary condition of conducting a totality-of-the-circumstances analysis as 

the Court maintains. Beckley, 2007 S.D. 122, ¶ 10, 742 N.W.2d at 844 (quoting 

Moeller, 511 N.W.2d at 810); Quist, 486 N.W.2d at 267. However, I agree that the 

greater weight of evidence tends to show that Oleson was fully aware of the 

consequences of pleading guilty and the rights he would waive in doing so, 

regardless of any asserted deficiency in the circuit court’s script. Consequently, 
#27037

-22-

Oleson has not met his burden as a habeas petitioner of proving by a preponderance 

of the evidence that he did not knowingly waive his right against self-incrimination. 

Therefore, I concur in result.

SEVERSON, Justice (concurring).

[¶38.] In this Writ of Habeas Corpus proceeding Oleson contends that he was 

not specifically advised of his right against self-incrimination at his plea hearing on 

February 13, 2008, and from this he argues he did not waive his rights, which 

constituted a constitutional rights violation sufficient to deny the court jurisdiction 

and warrant the habeas writ. 

[¶39.] This Court has on many occasions addressed the necessity for the 

record to show that a guilty plea has been made voluntarily and knowingly as 

addressed by Boykin, 395 U.S. 238, 89 S. Ct. 1709. Our decisions include the often 

cited cases of Apple, Goodwin, Logan, and Nachtigall. Apple, 2008 S.D. 120, 759 

N.W.2d 283; Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d at 852; Logan v. Solem, 406 

N.W.2d 714 (S.D. 1987); Nachtigall, 85 S.D. 122, 178 N.W.2d 198. More recently 

the cases of State v. Woodard and Smith have addressed the issue. 2014 S.D. 39, 

851 N.W.2d 188; 2013 S.D. 79, 840 N.W.2d 117. I do not agree that in Monette we 

adopted a two-step approach in determining whether a plea is knowing and 

voluntary. See Bilben, 2014 S.D. 24, ¶ 19, 846 N.W.2d at 340; Rosen, 2012 S.D. 15, 

¶ 9, 810 N.W.2d at 766. Monette did not establish a two part analysis, nor did 

Boykin. 

[¶40.] Monette does not require specific articulation of the three rights noted 

in Boykin as “there is no constitutional requirement that the trial court employ a 
#27037

-23-

particular litany to validate a guilty plea.” Stacy v. Solem, 801 F.2d 1048, 1050 (8th 

Cir. 1986). What we must examine is whether the record as a whole shows a 

voluntary and intelligent plea with knowledge of the consequences and waiver of 

federal constitutional rights. The United States Court of Appeals for the First 

Circuit aptly described the duties of trial courts and appellate courts when 

accepting and reviewing pleas when it stated:

With scant recognition of its dual audience, Boykin

simultaneously speaks to judges who accept guilty pleas and 

judges who later review challenges to the constitutional 

adequacy of those pleas, either on direct appeal or in collateral 

proceedings. Boykin reminds trial judges that a defendant’s 

plea of guilty “must be based on a ‘reliable determination on the 

voluntariness issue which satisfies the constitutional rights of 

the defendant.’” Boykin reminds judges reviewing challenges to 

the constitutional adequacy of a plea proceeding that due 

process requires that the record of the proceeding contain 

sufficient evidence to support the trial court’s decision to accept 

the plea. [Boykin, 395 U.S.]at 243, 89 S. Ct. [at 1712] (“We 

cannot presume a waiver . . . from a silent record.”); see Brady v. 

United States, 397 U.S. 742, 747 n.4, 90 S. Ct. 1463, 25 L. Ed. 2d 

747 (1970) (“The new element added in Boykin was the 

requirement that the record must affirmatively disclose that a 

defendant who pleaded guilty entered his plea understandingly 

and voluntarily.”).

United States v. Ward, 518 F.3d 75, 81 (1st Cir. 2008) (citations omitted) (footnotes 

omitted).

[¶41.] The failure to advise on waiver of a Boykin right is not necessarily a 

silent record establishing a constitutionally infirm plea. We have explained:

“Specific articulation of the Boykin rights by the trial judge is not an indispensable 

requisite for the record to establish a valid plea.” Moeller, 511 N.W.2d at 810.

“‘[T]he record in some manner must show the defendant entered his plea 

understandingly and voluntarily.’ . . . ‘[T]he trial court must be able to determine 
#27037

-24-

from its own record that the accused has made a free and intelligent waiver of his 

constitutional rights before a guilty plea is accepted.’” Monette, 2009 S.D. 77, ¶ 11, 

771 N.W.2d at 925 (citations omitted). Our totality-of-the-circumstances approach 

considered, “[i]n addition to the procedure and in-court colloquy, . . . 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 Apple, 2008 S.D. 120, ¶ 14, 759 N.W.2d at 288); see also Goodwin, 2004 

S.D. 75, ¶ 11, 681 N.W.2d at 852. 

[¶42.] In this habeas action, Oleson does not contend that he was coerced in 

any manner into pleading guilty. Instead, he contends that failure by the court to 

specifically state that he would be waiving his right to self-incrimination by 

pleading guilty is an error which in itself renders his plea unconstitutional. The 

circuit court, when a plea was entered, asked if Oleson understood that, “by 

entering a guilty plea, you are giving up certain constitutional and statutory 

rights?”. Oleson responded “Yes.” The court specifically inquired into whether 

Oleson was giving up the right to: a jury trial, confronting and cross-examining 

witnesses, calling witnesses, making the State prove all elements of the offense 

beyond a reasonable doubt, and his presumption of innocence. At arraignment he 

was given a full advisement of rights. This is not the completely silent record which 

we encountered in Monette, where there was no inquiry as to the voluntariness of 

the plea or waiver of rights. Monette, 2009 S.D. 77, ¶ 15, 771 N.W.2d at 926. 
#27037

-25-

[¶43.] Further, in this habeas action Oleson carries the burden of proving 

that his plea was not knowing, intelligent, and voluntary. Due to the circuit court’s 

failure to specifically advise him that he was waiving his right regarding selfincrimination, Oleson contends that the plea was not voluntary and knowing. 

However, at the habeas trial5 Oleson admitted he knew he would be required to 

talk about the facts in the case with the court and answer questions from the person 

writing the presentence investigation.6 Therefore, I concur. 

 

5. Regarding a habeas action, the ninth circuit has held: “We hold, 

alternatively, that an evidentiary hearing in the district court is proper, if 

necessary, to determine if the plea of guilty by a State defendant is 

voluntarily and intelligently made, and that such a hearing does not violate 

the ‘spirit’ of Boykin.” Wilkins v. Erickson, 505 F.2d 761, 765 (9th Cir. 1974).

6. The following colloquy occurred:

The State: “So you knew that by pleading guilty you’d have to come 

in and talk about the facts of this case with the Judge?”

Oleson: “Yes.” 

State: “All right. You knew that you’d have to admit to certain facts 

of this case in court?”

Oleson: “Yeah.”

State: “You knew that if you plead guilty you would be asked 

questions about what happened by the Court?”

Oleson: “Yes.”

State: “And you’d also be asked questions about what happened by 

the person writing that presentence report?”

Oleson: “Yes.”