free and intelligent waiver in South Dakota

2012The circuit court “must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before the guilty plea was accepted.” Id. (citing State v. Apple, 2008 S.D. 120 , ¶ 10, 759 N.W.2d 283, 287 ). [¶ 21.] At the plea hearing, the court read Rosen his rights in full.

2012The circuit court “must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before the guilty plea was accepted.” Id. (citing State v. Apple, 2008 S.D. 120 , ¶ 10, 759 N.W.2d 283, 287 ). [¶21.] At the plea hearing, the court read Rosen his rights in full.

2009Furthermore, “[t]he trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.” 1 State v. Apple, 2008 SD 120, ¶ 10 , 759 N.W.2d 283, 287 (citing State v. Sutton, 317 N.W.2d 414, 416 (S.D.1982)).

2009Thus, the question, as now framed, of whether Piper’s waiver was knowing and voluntary is squarely before us for the first time. [¶ 16.] We have said that “ ‘the trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.’ ” Apple, 2008 SD 120, ¶ 10 , 759 N.W.2d at 287 (quoting State v. Sutton, 317 N.W.2d 414, 416 (S.D.1982)).

2007We look at the totality of the circumstances when reviewing a guilty plea and must examine if the “plea was voluntary, knowing and intelligent.” Lien, 1998 SD 7, ¶ 31 , 574 N.W.2d at 612 . [¶ 25.] In determining whether the plea was voluntary, we examine whether the record “indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial— and an understanding of the nature and consequences of the plea.” Goodwin, 2004 SD 75, ¶ 6 , 681 N.W.2d at 850 (quoting Nachtigall v. Erickson, 85 S.D. 122, 128 , 178 N.W.2d 198,

2007We look at the totality of the circumstances when reviewing a guilty plea and must examine if the “plea was voluntary, knowing and intelligent.” Lien, 1998 SD 7, ¶ 31 , 574 N.W.2d at 612 . [¶ 25.] In determining whether the plea was voluntary, we examine whether the record “indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial— and an understanding of the nature and consequences of the plea.” Goodwin, 2004 SD 75, ¶ 6 , 681 N.W.2d at 850 (quoting Nachtigall v. Erickson, 85 S.D. 122, 128 , 178 N.W.2d 198,

1992This court nevertheless held the plea was valid based upon the rule of Sutton that, “ ‘[t]he trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.’ ” Stacey, 349 N.W.2d at 442 (quoting Sutton, 317 N.W.2d at 416 ).

1991Lack of Informed Consent Even assuming the court had an adequate factual basis for accepting Bailey’s pleas and for revoking his probation, Bailey argues that he did not make the pleas “knowingly, voluntarily and intelligently.” As a matter of federal constitutional law, “[a] plea of guilty cannot stand unless the record in some way indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination.” Stacey v. State, 349 N

2015We 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 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).

2015We 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 -23- #27037 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).

2007We look at the totality of the circumstances when reviewing a guilty plea and must examine if the “plea was voluntary, knowing and intelligent.” Lien, 1998 SD 7, ¶ 31 , 574 N.W.2d at 612 . [¶ 25.] In determining whether the plea was voluntary, we examine whether the record “indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial— and an understanding of the nature and consequences of the plea.” Goodwin, 2004 SD 75, ¶ 6 , 681 N.W.2d at 850 (quoting Nachtigall v. Erickson, 85 S.D. 122, 128 , 178 N.W.2d 198,

2007We look at the totality of the circumstances when reviewing a guilty plea and must examine if the “plea was voluntary, knowing and intelligent.” Lien, 1998 SD 7, ¶ 31 , 574 N.W.2d at 612 . [¶ 25.] In determining whether the plea was voluntary, we examine whether the record “indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial— and an understanding of the nature and consequences of the plea.” Goodwin, 2004 SD 75, ¶ 6 , 681 N.W.2d at 850 (quoting Nachtigall v. Erickson, 85 S.D. 122, 128 , 178 N.W.2d 198,

2004The rule is simply that "[t]he trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted." Id. at 267 (citations omitted). [¶ 37.] Judge Trimble made that determination from the record, and his specific finding was that Goodwin's plea was "given freely and voluntarily." Therefore, we should pay heed to our prior warning that "this Court, acting in our appellate function on the cold . . . record before us, cannot presume greater insight into the defendant's `understanding of his

2004The rule is simply that “[t]he trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.” Id. at 267 (citations omitted). [¶ 37.] Judge Trimble made that determination from the record, and his specific finding was that Goodwin’s plea was “given freely and voluntarily.” Therefore, we should pay heed to our prior warning that “this Court, acting in our appellate function on the cold ... record before us, cannot presume greater insight into the defendant’s ‘understanding of his r

1998State v. Randen, 497 N.W.2d 107, 108-109 (S.D.1993). [¶ 7.] In Croan v. State, 295 N.W.2d 728, 729 (S.D.1980), this Court held that for a record to indicate a free and intelligent waiver of the right to jury trial, it must be shown that before pleading guilty the accused was advised of the right to a “ ‘speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.’ ” Accord State v. Sutton, 317 N.W.2d 414 (S.D.1982).

1998State v. Randen, 497 N.W.2d 107, 108-109 (S.D.1993). [¶ 7.] In Croan v. State, 295 N.W.2d 728, 729 (S.D.1980), this Court held that for a record to indicate a free and intelligent waiver of the right to jury trial, it must be shown that before pleading guilty the accused was advised of the right to a "`speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.'" Accord State v. Sutton, 317 N.W.2d 414 (S.D.1982).

1991While there is no set formula for establishing on the record the voluntariness of a guilty plea, “[t]he trial court must normally inform the defendant of these rights personally to insure that the record indicates a free and intelligent waiver of these rights.” Logan v. Solem, 406 N.W.2d 714, 716-717 (S.D.1987) (emphasis original).

1991While there is no set formula for establishing on the record the voluntariness of a guilty plea, “[t]he trial court must normally inform the defendant of these rights personally to insure that the record indicates a free and intelligent waiver of these rights.” Logan v. Solem, 406 N.W.2d 714, 716-717 (S.D.1987) (emphasis original).

2012The circuit court “must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before the guilty plea was accepted.” Id. (citing State v. Apple, 2008 S.D. 120 , ¶ 10, 759 N.W.2d 283, 287 ). [¶ 21.] At the plea hearing, the court read Rosen his rights in full.

2012The circuit court “must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before the guilty plea was accepted.” Id. (citing State v. Apple, 2008 S.D. 120 , ¶ 10, 759 N.W.2d 283, 287 ). [¶21.] At the plea hearing, the court read Rosen his rights in full.

2015We 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 -23- #27037 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).

2015We 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 -23- #27037 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).

2007Furthermore, "a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin self-incrimination, confrontation and jury trial and an understanding of the nature and consequences of the plea.” Lodermeier, 273 N.W.2d at 165 .

2007NOTES [1] Furthermore, "a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin self-incrimination, confrontation and jury trial and an understanding of the nature and consequences of the plea." Lodermeier, 273 NW2d at 165 .

1998State v. Randen, 497 N.W.2d 107, 108-109 (S.D.1993). [¶ 7.] In Croan v. State, 295 N.W.2d 728, 729 (S.D.1980), this Court held that for a record to indicate a free and intelligent waiver of the right to jury trial, it must be shown that before pleading guilty the accused was advised of the right to a “ ‘speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.’ ” Accord State v. Sutton, 317 N.W.2d 414 (S.D.1982).

1998State v. Randen, 497 N.W.2d 107, 108-109 (S.D.1993). [¶ 7.] In Croan v. State, 295 N.W.2d 728, 729 (S.D.1980), this Court held that for a record to indicate a free and intelligent waiver of the right to jury trial, it must be shown that before pleading guilty the accused was advised of the right to a "`speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.'" Accord State v. Sutton, 317 N.W.2d 414 (S.D.1982).

2026A guilty plea is knowing and voluntary “when the accused has a full understanding of his constitutional rights and, having that understanding, waives these rights by a plea of guilty.” State v. Outka, 2014 S.D. 11 , ¶ 32, 844 N.W.2d 598, 607 (citation omitted). [¶23.] “When assessing voluntariness, we do not consider a defendant’s after- the-fact regret about his decision to plead guilty.

2009See also Piper v. Weber, 2009 SD 66, ¶ 16 , 771 N.W.2d 352 .

2009See also Piper v. Weber, 2009 SD 66, ¶ 16 , 771 N.W.2d 352 .

2004Furthermore, "[t]here is no indication in the record that he [was] anything other than a person of at least average intelligence and comprehension." Gregory v. State, 353 NW2d 777, 780 (SD 1984).

2004Furthermore, “[t]here is no indication in the record that he [was] anything other than a person of at least average intelligence and comprehension.” Gregory v. State, 353 N.W.2d 777, 780 (S.D.1984).

2004DECISION [¶ 5.] Goodwin claims the trial court should have allowed him to withdraw his guilty plea (1) because his plea was not voluntary and (2) because he entered his plea without knowing the consequences. [¶ 6.] In determining voluntariness of a guilty plea, we have repeatedly stated "that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin —self-incrimination, confrontation and jury trial—and an understanding of the nature and consequences of the plea." Nachtigall v. Erickson, 85 SD 12

2004DECISION [¶ 5.] Goodwin claims the trial court should have allowed him to withdraw his guilty plea (1) because his plea was not voluntary and (2) because he entered his plea without knowing the consequences. [¶ 6.] In determining voluntariness of a guilty plea, we have repeatedly stated “that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial — and an understanding of the nature and consequences of the plea.” Nachtigall v. Erickson, 85 S.

2004The Court first determines that Goodwin's lack of experience with the system and his age "mitigates against him having made a free and intelligent waiver of his rights." However, even though Goodwin was 19 at the time of the assault, this "cannot be said to adversely affect his plea since he was over the age of minority." State v. Bolger, 332 NW2d 718, 721 (SD 1983).

2004The Court first determines that Goodwin’s lack of experience with the system and his age “mitigates against him having made a free and intelligent waiver of his rights.” However, even though Goodwin was 19 at the time of the assault, “this cannot be said to adversely affect his plea since he was over the age of minority.” State v. Bolger, 332 N.W.2d 718, 721 (S.D.1983).

2004We must look to "the totality of the circumstances when ascertaining whether a plea was made knowingly and voluntarily." State v. Lashwood, 384 NW2d 319, 321 (SD 1986).

2004We must look to “the totality of the circumstances when ascertaining whether a plea was made knowingly and voluntarily.” State v. Lashwood, 384 N.W.2d 319, 321 (S.D.1986).

2004The rule is simply that “[t]he trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.” Id. at 267 (citations omitted). [¶ 37.] Judge Trimble made that determination from the record, and his specific finding was that Goodwin’s plea was “given freely and voluntarily.” Therefore, we should pay heed to our prior warning that “this Court, acting in our appellate function on the cold ... record before us, cannot presume greater insight into the defendant’s ‘understanding of his r

2004The rule is simply that “[t]he trial court must be able to determine from its own record that the accused has made a free and intelligent waiver of his constitutional rights before a guilty plea is accepted.” Id. at 267 (citations omitted). [¶ 37.] Judge Trimble made that determination from the record, and his specific finding was that Goodwin’s plea was “given freely and voluntarily.” Therefore, we should pay heed to our prior warning that “this Court, acting in our appellate function on the cold ... record before us, cannot presume greater insight into the defendant’s ‘understanding of his r

2001With regard to advice as to the consequences of a plea, this Court has held that, “a court must address a defendant personally in open court, inform him of and determine that he understands’ ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]’ ” State v. Timperley, 1999 SD 75, ¶ 12 , 599 N.W.2d 866, 868 (quoting SDCL 23A-7-4(l)).

2001With regard to advice as to the consequences of a plea, this Court has held that, “a court must address a defendant personally in open court, inform him of and determine that he understands’ ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]’ ” State v. Timperley, 1999 SD 75, ¶ 12 , 599 N.W.2d 866, 868 (quoting SDCL 23A-7-4(l)).

2001Voluntariness of Plea [¶ 15.] This Court recently reviewed the voluntariness of a guilty plea in State v. Nikolaev, 2000 SD 142, ¶ 9 , 619 N.W.2d 244, 246 , and summarized the applicable principles as follows: As a matter of federal constitutional law, ‘[a] plea of guilty cannot stand unless the record in some way indicates a free and intelligent waiver by the defendant of his constitutional right to confront and cross-examine witnesses against him, his constitutional right to trial by jury, and his constitutional privilege against self-incrimination.’ In addition to waivers of these three ‘Bo

1985This Court, however, has held that it is not necessary to readvise a defendant of his rights immediately prior to pleading guilty if the record shows the defendant had knowledge of his rights and the consequences of his plea when entered, Clark v. *578 State, 294 N.W.2d 916, 919 (S.D.1980), and we have upheld guilty pleas where the same judge informed and canvassed the defendant once, and then later accepted a guilty plea without readvising the defendant, where the time lapse was five hours, Singletary v. State, 88 S.D. 655 , 227 N.W.2d 424 (1975), where the time lapse was 26 days, Clark , and

1985This Court, however, has held that it is not necessary to readvise a defendant of his rights immediately prior to pleading guilty if the record shows the defendant had knowledge of his rights and the consequences of his plea when entered, Clark v. State, 294 N.W.2d 916, 919 (S.D.1980), and we have upheld guilty pleas where the same judge informed and canvassed the defendant once, and then later accepted a guilty plea without readvising the defendant, where the time lapse was five hours, Singletary v. State, 88 S.D. 655 , 227 N.W.2d 424 (1975), where the time lapse was 26 days, Clark , and wher