#24788-a-PER CURIAM 

2008 SD 118

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

BRIAN K. WRIGHT, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE A. P. FULLER 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

BRYAN T. ANDERSEN 

Office of Public Defender Attorneys for defendant 

Rapid City, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON SEPTEMBER 29, 2008 

 OPINION FILED 12/10/08 
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PER CURIAM 

[¶1.] Brian Wright attacks the validity of his guilty plea following an 

arraignment in which he was not advised of the mandatory minimum sentence as 

required by SDCL 23A-7-4 (Rule 11).1 Because Wright is relegated to plain error 

review and has not established prejudice, we affirm. 

FACTS 

[¶2.] Wright, his wife and four step-children lived in Rapid City, South 

Dakota. On September 13, 2007, Wright's wife, B.W., found Wright naked in bed 

with her nine-year-old daughter, A.M., who was masturbating Wright. B.W. 

immediately reported the matter to law enforcement. Wright was arrested and 

later indicted for one count of sexual contact with a child under age sixteen. The 

State also filed a part two habitual offender information alleging that Wright had 

four prior felony convictions. 

[¶3.] Wright was arraigned on October 22, 2007. He was advised of the 

charge, his rights, and the available pleas and their consequences. He was also 

advised of the part two information and its impact on the maximum penalty he 

faced. However, Wright was not advised of any applicable mandatory minimum 

sentence. The trial court did advise Wright of the potential for payment of costs and 

restitution if he was found guilty. As to the advisements given by the trial court, 

Counsel for Wright indicated he had discussed the same matters with Wright and 

believed Wright understood them. Following the trial court’s advisements, Wright 

 

1. SDCL 23A-7-4 is patterned after Federal Rule of Criminal Procedure 11 and 

is itself captioned “(Rule 11(c)).” 
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entered a not guilty plea to the sexual contact charge and denied the allegations of 

the habitual offender information. 

[¶4.] A plea bargain was subsequently reached that involved Wright's guilty 

plea to the sexual contact charge and his admission to the part two information. In 

exchange, the State agreed not to file additional sexual contact and first degree rape 

charges for other incidents of abuse involving A.M. in both Pennington and Meade 

County. In addition, Wright agreed to admit a probation violation relating to a 

prior conviction for passing a check against insufficient funds. Finally, Wright 

agreed to obtain a sexual offender evaluation, follow its recommendations, and pay 

certain costs and restitution. Both the prosecution and defense remained free to 

comment at sentencing. 

[¶5.] Defense counsel advised the trial court of the contents of the plea 

bargain at a change-of-plea hearing on November 30, 2007. The court informed 

Wright of the consequences of a guilty plea and the maximum possible penalty he 

faced, but he was not advised of the mandatory minimum penalty. After confirming 

that his plea was a free and voluntary act, Wright pleaded guilty to the sexual 

contact charge and provided a factual basis for the plea. Wright also admitted the 

allegations of the part two habitual offender information. 

[¶6.] Wright was sentenced on January 23, 2008, to fifty years in the 

penitentiary plus costs and restitution. He appeals attacking the validity of his 

plea, arguing that failure to advise him of the applicable mandatory minimum 

penalty renders the plea invalid and requires reversal of his conviction and a 

remand so that he may withdraw his plea. 
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ISSUE 

[¶7.] Whether Wright should be allowed to withdraw his guilty plea.

[¶8.] Wright pleaded guilty to sexual contact with a child under sixteen in 

violation of SDCL 22-22-7. That statute provides in pertinent part: "Any person, 

sixteen years of age or older, who knowingly engages in sexual contact with another 

person . . . if the other person is under the age of sixteen years is guilty of a Class 3 

felony." Id. Because Wright's victim was only nine years old, SDCL 22-22-1.2(2) 

provided the following mandatory minimum penalty for the offense: “If any adult is 

convicted of any of the following violations, the court shall impose the following 

minimum sentences: . . . (2) For a violation of § 22-22-7 if the victim is less than 

thirteen years of age, ten years for a first offense.” Id.

[¶9.] SDCL 23A-7-4 (Rule 11) requires that, before accepting a guilty plea, a 

trial court must advise a defendant of any mandatory minimum penalty applicable 

to the offense. The statute provides in relevant part: 

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 provided by law[.] 

SDCL 23A-7-4(1) (emphasis added). Wright argues that the failure to advise him of 

the mandatory minimum penalty in accordance with this statute renders his plea 
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invalid and that his conviction must be reversed and the matter remanded for him 

to withdraw his plea. 

[¶10.] Wright never raised this issue before the trial court and never sought 

to withdraw his plea before that court. Thus, the error in failing to advise of the 

mandatory minimum penalty under SDCL 23A-7-4(1) was not preserved by timely 

objection. 2 Nevertheless, Wright points out that in State v. Richards, 2002 SD 18, 

640 NW2d 480, this Court held that, in the interests of justice, a similar failure to 

advise of a mandatory minimum penalty was plain error requiring reversal to allow 

that defendant to withdraw his guilty plea. The Richards Court concluded: 

Under SDCL 23A-7-4(1) the trial court has the duty to 

inform a defendant of the mandatory minimum penalty 

and the maximum possible penalty. The importance of 

advising a defendant of the minimum penalty cannot be 

denied since a mandatory minimum penalty is an 

absolute while a maximum penalty is only a possibility. 

Here the record is clear that the trial court did not advise 

Richards of the mandatory minimum sentence according 

to the dictates of SDCL 23A-7-4(1). Consequently, the 

record does not indicate that Richards understood the 

nature and consequences of his plea. The interests of 

justice require that Richards be allowed to withdraw his 

plea. 

Richards, 2002 SD 18, ¶15, 640 NW2d at 483 (citation omitted). Notably, two 

members of the Court dissented because Richards failed to establish prejudice. Id.

at ¶21, 640 NW2d at 484 (Gilbertson, C.J.and Konenkamp, J., dissenting). 

2. In our recent case State v. Apple, 2008 SD __, __ NW2d __ (Appeal #24672), 

the defendant moved to withdraw his guilty plea. Furthermore, both parties 

in that litigation treated the advisement failure as an issue that had been 

preserved for appellate review. Therefore, we did not review that case under 

the plain error doctrine.
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[¶11.] Furthermore, Richards was revisited in Brakeall v. Weber, 2003 SD 90, 

668 NW2d 79. In that case, a habeas corpus petitioner alleged his guilty pleas to 

multiple counts of rape and sexual contact with a minor were invalid because the 

trial court failed to advise him of the mandatory minimum penalties for his 

offenses. This Court held that failure to advise of the mandatory minimums was 

not a constitutional defect entitling the petitioner to habeas relief and was not 

within the scope of habeas review. The Court also offered the following additional 

analysis regarding a defendant's obligation to establish prejudice in a collateral 

attack on a guilty plea following a Rule 11 violation: 

Furthermore, even if habeas review were appropriate in 

order to collaterally attack his plea Brakeall is required to 

demonstrate prejudice resulting from the trial court's 

failure to comply with Rule 11. See United States v. 

Timmereck, 441 US 780, 99 SCt 2085, 60 LEd2d 634 

(1979) (holding collateral relief not available to defendant 

who shows only violation of formal requirements of Rule 

11 and no prejudice). Here, not one but two habeas courts 

have found that Brakeall did not suffer prejudice as a 

result of the trial court's failure to advise of the 

mandatory minimums. The findings demonstrate that 

Brakeall was aware he faced a sentence in the double 

digits; Brakeall intended to plead guilty from the 

beginning of the case; and, based upon Brakeall's 

statements at sentencing and counsel's comments, the 

trial court's advisement of the mandatory minimum 

would not have made a difference in the decision to plead 

guilty. Those findings are not clearly erroneous on this 

record. As a result, Brakeall has not met his burden and 

the writ of habeas corpus relating to this issue was 

properly denied. 

Brakeall, 2003 SD 90, ¶ 11, 668 NW2d at 83. 

[¶12.] The Brakeall requirement of prejudice was not a clear overruling of 

Richards because Brakeall was a habeas corpus case and Brakeall made clear that 
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notwithstanding Richards, relief could not be granted in a collateral attack on a 

guilty plea for failure to comply with Rule 11 absent a showing of prejudice by the 

petitioner. See Brakeall, 2003 SD 90, ¶10, 668 NW2d at 83 (quoting Richards, 2002 

SD 18, ¶11, 640 NW2d at 482, n1). Nevertheless, our Brakeall requirement of 

prejudice is consistent with the post-Richards decision of the United States 

Supreme Court in a direct appeal involving the failure to give Rule 11 warnings. 

See United States v. Dominguez Benitez, 542 US 74, 124 SCt 2333, 159 LEd2d 157 

(2004). 

[¶13.] In Dominguez Benitez, the district court accepted a guilty plea after 

advising the defendant of all required Rule 11 warnings except that the defendant 

could not withdraw his plea if the court did not accept the sentencing 

recommendation. The defendant argued for the first time on direct appeal that the 

failure to provide him with the omitted warning required reversal. The court of 

appeals agreed, holding, like this Court in Richards, that the failure to provide a 

Rule 11 warning was plain error affecting the defendant’s substantial rights that 

required reversal in the interests of justice. The United States Supreme Court then 

granted certiorari on the question of “‘[w]hether, in order to show that a violation of 

Federal Rule of Criminal Procedure 11 constitutes reversible plain error, a 

defendant must demonstrate that he would not have pleaded guilty if the violation 

had not occurred.’” Dominguez Benitez, 542 US at 80, 124 SCt at 2338. The Court 

held that such a showing of prejudice was required: 

[A] defendant who seeks reversal of his conviction after a 

guilty plea, on the ground that the district court 

committed plain error under Rule 11, must show a 

reasonable probability that, but for the error, he would 
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not have entered the plea. A defendant must thus satisfy 

the judgment of the reviewing court, informed by the 

entire record, that the probability of a different result is 

"sufficient to undermine confidence in the outcome" of the 

proceeding. 

Id., 542 US at 83, 124 SCt at 2340 (citations omitted). In analyzing the record in 

Dominguez Benitez, the Supreme Court made the following observations: 

[I]f it is reasonably probable [the defendant] would have 

gone to trial absent the error, it is no matter that the 

choice may have been foolish. The point, rather, is to 

enquire whether the omitted warning would have made 

the difference required by the standard of reasonable 

probability; it is hard to see here how the warning could 

have had an effect on Dominguez's assessment of his 

strategic position. . . . [T]he Rule 11 error made no 

difference to the outcome here. 

Dominguez Benitez, 542 US at 85, 124 SCt at 2341.3

[¶14.] Given this development of the law after Richards and, particularly, the 

decision in Dominguez Benitez, we overrule that portion of both Nikolaev and 

Richards implying or holding that any warning error under Rule 11 in accepting a 

guilty plea constitutes reversible plain error on appeal without a showing of 

3. The Dominguez Benitez analysis has recently been followed by the Eleventh 

Circuit Court of Appeals in determining whether other Rule 11 violations 

constitute plain error. See e.g. U.S. v. Brown, 526 F3d 691, 704 (11th Cir 

2008) (noting that to obtain reversal of a conviction after a guilty plea on 

grounds that the district court committed plain error under Rule 11, the 

appellant must demonstrate a reasonable probability that, but for the error, 

he would not have entered the plea). This decision is significant because this 

Court originally relied on the Eleventh Circuit in stating that violations of 

the state version of Rule 11 not previously presented to the trial court may be 

reviewed for plain error. See State v. Nikolaev, 2000 SD 142, ¶5, 619 NW2d 

244, 245 (citing United States v. Hernandez-Fraire, 208 F3d 945, 949 (11th 

Cir 2000)). Nikolaev was one of the primary authorities relied upon in 

Richards, 2002 SD 18, ¶6, 640 NW2d at 481. 
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prejudice. Rather, we adhere to the Supreme Court’s holding in Dominguez Benitez. 

Accordingly, a defendant seeking reversal of a conviction after a guilty plea on the 

grounds of plain error under Rule 11 must show prejudice, i.e., “a reasonable 

probability that, but for the error, he would not have entered the plea.” Dominguez 

Benitez, 542 US at 83, 124 SCt at 2340. This is consistent with the legislative 

direction and our jurisprudence requiring a showing of prejudice to establish plain 

error. See SDCL 23A-44-15 (“[p]lain errors or defects affecting substantial rights 

may be noticed although they were not brought to the attention of a court”) 

(emphasis added)). See also State v. Buchhold, 2007 SD 15, ¶56, 727 NW2d 816, 

829 (holding that appellant could not “show that there was any resultant prejudice 

and therefore [could not] establish there was plain error”); State v. Asmussen, 2006 

SD 37, ¶37, 713 NW2d 580, 591 (stating that to show plain error, “[t]he defendant 

bears the burden of showing the error was prejudicial”); State v. Talarico, 2003 SD 

41, ¶33, 661 NW2d 11, 23 (stating that in showing plain error, “[t]he defendant has 

the burden of establishing prejudice”); State v. Corey, 2001 SD 53, ¶19, 624 NW2d 

841, 845-46 (holding that an issue did not rise to the level of plain error where the 

error was harmless and the trial court took action to cure any prejudice). 

[¶15.] Applying the Dominguez Benitez standards here, Wright neither 

argues nor shows that, but for the error in failing to warn him of the mandatory 

minimum penalty, he would not have entered his guilty plea. On the contrary, a 

review of the entire record makes clear that omission of the warning could have had 

no effect on Wright’s assessment of his strategic position. This was not a case 

where Wright might reasonably have expected a suspension or sentence shorter 
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than the ten year mandatory minimum sentence. The entire focus of Wright’s plea 

bargaining was on the maximum, not the minimum, sentence. Based upon his prior 

felony record and the warnings given by the trial court, Wright knew that, if he was 

convicted as charged, he faced a maximum possible penalty of fifty years in the 

penitentiary and a fine of $50,000. Through plea bargaining, he also knew that the 

State was prepared to file a number of additional felony charges against him for 

sexual abuse of the victim that, with his record, could have led to significantly more 

prison time including multiple life terms. Thus, the choice before Wright was clear, 

acceptance of a sure fifty year maximum sentence by pleading guilty or risking even 

more penitentiary time, and even a life sentence, by going to trial on multiple felony 

charges. In this calculation, Wright has not shown that an additional warning 

about the mandatory minimum sentence of ten years in the penitentiary would 

have resulted in a decision to go to trial. 

[¶16.] Based upon the failure to argue or establish the prejudice necessary to 

show plain error, Wright was not entitled to withdraw his guilty plea for a Rule 11 

violation. 

[¶17.] Affirmed. 

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

and MEIERHENRY, Justices, participating.