State v. Beckley

[¶ 1.] Joshua Beckley (Beckley) appeals his conviction of possession of a controlled substance. He contends that the trial court failed to properly advise him of his right to compel witnesses prior to receiving his guilty plea. He also contends that the trial court abused its discretion in refusing to continue the sentencing hearing to allow a psychological evaluation. We affirm on the advisement of rights issue, but reverse and remand for resen-tencing for the failure to grant the continuance.

[¶2.] After being previously told to leave, Beckley was observed videotaping a young woman at a retail store in Sioux Falls. He was again asked to leave and law enforcement responded. Earlier that day Beckley was involved in another incident where he stopped two young women in a car, approached them with a video camera, and asked them to get out of their vehicle. He claimed he was a city employee investigating littering. The women refused his request, left the scene, and reported the incident to law enforcement.

[¶ 3.] During a search incident to his subsequent arrest, methamphetamine was found in Berkley’s sock and a methamphetamine pipe with residue was found in his vehicle. While he was free on bond on these charges, Beckley was observed taking pictures of a young girl from behind. In yet another incident, Beckley was observed staring in windows and attempting to enter a university dormitory wearing only underwear and a tank top. In a final incident, Beckley was arrested for driving under the influence. As a result of the foregoing conduct, Beckley was charged with possession of methamphetamine, possession of drug paraphernalia, unlawful occupancy, window peeking and third offense driving under the influence.

[¶ 4.] On April 6, 2005, Beckley was arraigned before Magistrate Judge Julie Irvine. During the arraignment he was advised of his constitutional and statutory rights, including the right to compel witnesses. On May 16, 2005, Beckley appeared before Circuit Judge Peter H. Lieberman for a second arraignment. Beckley was again advised of his constitutional and statutory rights, including the right to compel witnesses. Thereafter, Beckley entered into a plea agreement under which he agreed to plead guilty to possession of methamphetamine in exchange for a dismissal of the remaining charges and reduction of the third offense DUI to a misdemeanor.

*843[¶ 5.] On January 13, 2006, Beckley appeared with counsel at his change of plea hearing. Judge Lieberman again informed Beckley of his constitutional and statutory rights, but this time did not inform him of his right to compel witnesses. The court did, however, canvass defense counsel concerning Beckley’s understanding of his rights. Counsel indicated Beck-ley understood the consequences of his plea after their “considerable discussion.” Beckley then entered a guilty plea to possession of methamphetamine. The DUI charge was the subject of a separate proceeding that is not at issue in this appeal.

[¶ 6.] On March 8, 2006, Beckley appeared for sentencing on the methamphetamine offense. Judge Lieberman asked Beckley’s separate counsel on the DUI charge if she and Beckley had also discussed his constitutional and statutory rights. She indicated they had. Defense counsel on the methamphetamine charge then attempted to call two sentencing mitigation witnesses and sought a continuance to obtain psychological testing at the defendant’s own expense to be utilized at sentencing. This motion for the continuance was accompanied by a subpoena for Jack Dodge, a former doctor and one of Beckley’s fellow inmates who was awaiting sentencing on federal drug charges. Counsel sought to call Dodge as a witness to Beckley’s mental state, which would have further supported the request for the psychological testing in mitigation of punishment. A handwritten note from Dodge explained the nature of his proposed testimony. The motion was finally supported by an affidavit of counsel indicating that the continuance was necessary because of a conflict in the scheduling of a professional examination. The circuit court denied the request to call the witness and denied the request for a continuance. Beckley was sentenced to eight years in the state penitentiary. He appeals raising two issues.

I.

[¶ 7.] Whether Beckley should be allowed to withdraw his guilty plea because the sentencing court did not advise him of his right to compel witnesses prior to receiving the guilty plea.

[¶ 8.] “[I]n order for a conviction based upon a guilty plea to stand the plea must be intelligent and voluntary. Such a plea is intelligent 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.” Lodermeier v. State, 273 N.W.2d 163, 164 (S.D.1978) (citations omitted).1 SDCL 23A-7-4 (Rule 11(c)) “establishes a procedure for the judge to follow to ensure that a guilty plea is knowing and voluntary.” State v. Goodwin, 2004 SD 75, ¶ 7, 681 N.W.2d 847, 850. That statute provides:

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;

*844(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;

(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;

(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and

(5) That if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.

[¶ 9.] Although SDCL 23A-7-4 does not specifically require an advisement of the right to compel witnesses, both the United States and South Dakota Constitutions guarantee that right. US Const amend VI; SD Const art VI, sec 7. This Court has reiterated the United States Supreme Court’s characterization of the right to compulsory process:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

State v. Wiegers, 373 N.W.2d 1, 8 (S.D.1985) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967)).2

[¶ 10.] Although compulsory process has been recognized as a fundamental element of due process, the failure to advise a defendant of all constitutional and statutory rights does not necessarily vitiate a guilty plea. For example, SDCL 23A-7-4 has been characterized as only a “procedural safeguard” for determining that a guilty plea is knowing and voluntarily entered. State v. Miller, 2006 SD 54, ¶ 18, 717 N.W.2d 614, 620. “There is no requirement that the record show an express enumeration by the court nor an express waiver by the defendant ... as a condition precedent to a voluntary and intelligent guilty plea.” State v. Moeller, 511 N.W.2d 803, 810 (S.D.1994) (citation omitted). Furthermore, even “[sjpecific articulation of the Boykin rights by the trial judge is not an indispensable requisite for the record to establish a valid plea.” Id. “It is sufficient when the record in some manner shows the defendant entered his plea understanding^ and voluntarily.” Id. “The record need only show that he knew of his rights and the consequences of his guilty plea.” Id.

[¶ 11.] Beckley, however, cites this Court’s decision in State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731 (1946), for the proposition that the failure to advise of the right to compel witnesses *845before receiving a guilty plea requires automatic reversal. In that case, this Court held that a failure to advise a pro se defendant of various rights, including the right to confront the witnesses against him, the right to compulsory process for the witnesses on his behalf, and the right to a speedy public trial by an impartial jury of the county was a jurisdictional defect entitling the defendant to habeas relief when the record indicated the defendant did not sufficiently understand these rights. Id. at 732-33. At the time Hen-ning was decided, this Court recognized a presumption that a defendant represented by counsel waived these rights by a guilty plea; however, a pro se defendant did not. Id. This dichotomy was abandoned following the United States Supreme Court decision in Boykin, which required the record to affirmatively establish the waiver of the three constitutional rights mentioned in Boykin self-incrimination, confrontation and jury trial. Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970).

[¶ 12.] Under the modern framework, the more analogous South Dakota cases are Lodermeier, 273 N.W.2d at 165, and State v. Gagne, 421 N.W.2d 502, 503 (S.D.1988). In Lodermeier, the defendant was not advised of his right to confront witnesses (a Boykin right) or his right to compel witnesses on his behalf (a non-Boykin right). 273 N.W.2d at 165. In Gagne, the defendant was not advised of his right to confront and cross-examine witnesses (a Boykin right) or his right to compulsory process to secure witnesses (a non -Boykin right). 421 N.W.2d at 503. In both cases, the Court reversed in accord with Boykin. However, in this case Beckley was advised of his Boykin rights,, and Boykin rights do not include compulsory process.

[¶ 13.] Additionally, in both Lo-dermeier and Gagne, the record did not indicate the defendants were otherwise aware of their rights. “The standard was- and remains whether the plea represents a voluntary and intelligent choice among- the alternative causes of action open to the defendant.” Moeller, 511 N.W.2d at 810. Therefore, although it is advisable to inform a defendant of his right to compulsory process, not doing so is not automatic reversible error. As the Colorado Supreme Court explained:

[W]e reject the defendant’s claim that the trial court’s advisement did not satisfy the requirements of due process because the trial court failed to advise the defendant that he could subpoena out-of-state witnesses at the state’s expense. Due process of law does not require that a court inform a defendant of every conceivable constitutional right that might be waived by a guilty or nolo contendere plea. Carried to its logical extreme, this argument would require a court before accepting a guilty or nolo contendere plea, to inform a defendant, among other things, of his right to be free from cruel and unusual punishment, his right to be free from unreasonable searches and seizures, his right to be protected against being placed twice in jeopardy for the same crime, and his right to reasonable bail.

People v. Drake, 785 P.2d 1257, 1272 (Colo.1990). See also State v. Moses, 280 Kan. 939, 127 P.3d 330, 335-40 (2006) (recognizing the failure to advise a defendant of compulsory process and other'rights does not automatically result in the withdrawal of a guilty plea and examining the circumstances surrounding that plea including a written waiver, representation by counsel, familiarity with the criminal justice system and defendants- familiarity with the case against him and the benefit of the plea agreement); State v. Salter, 515 So.2d 609, 610 (La.Ct.App.1987) (concluding “[t]he right to compulsory process is not one of the rights required by the trial judge in *846order to [e]nsure that a guilty plea is knowingly and intelligently made.”); State v. Rau, 367 N.W.2d 613, 616 (Minn.Ct.App.1985) (holding failure to advise of right to subpoena witnesses does not affect the validity of a guilty plea); State v. Miller, 110 Ariz. 304, 518 P.2d 127, 129 (1974) (holding failure to advise of right to compel witnesses and plead not guilty are not required by Boykin and there “is absolutely no requirement that [defendant] be advised of any other rights in order to be able to enter a valid guilty plea.”).

[¶ 14.] Rather than mechanically determining whether certain rights were given, we look to “the totality of the circumstances when ascertaining whether a plea was made knowingly and voluntarily.” Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852. “In examining the ‘totality of the circumstances’ we have taken into consideration the following factors: 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.” Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852 (internal citations omitted).

[¶ 15.] In this case, Beckley was thirty years old; he was represented by counsel; and although this was his first felony, he had a prior criminal history of driving under the influence, theft, reckless driving and driving without a license. In addition to the knowledge gained from the foregoing experiences, he was advised on three occasions, including the day he entered his guilty plea, of the required constitutional and statutory rights in accord with Boykin and SDCL 23A-7-4. Most significantly, he negotiated a plea agreement and was twice advised of his right to compel witnesses. Thereafter, Beckley actually subpoenaed a witness to testify at his sentencing hearing, demonstrating that he was aware of this right. On this record, we conclude that Beckley’s plea was not unknowingly or involuntarily entered simply because the trial court did not advise him of his right to compel witnesses a third time.

II.

[¶ 16.] Whether the trial court abused its discretion in refusing to continue the sentencing hearing to allow Beckley to obtain a psychological evaluation.

[¶ 17.] On March 2, 2006, six days before sentencing, Beckley moved to continue the sentencing hearing in order to obtain a psychological evaluation at his own expense. The motion was supported by an affidavit from defense counsel indicating that a professional evaluator (Michael McGrath) had been contacted but was unable to complete the evaluation in time for the sentencing hearing. Counsel indicated he only learned of this on March 1, 2006. The motion was also supported by the letter from Dodge, the fellow inmate and former doctor, recommending that Beckley receive a psychological examination.

[¶ 18.] At the sentencing hearing, defense counsel again sought permission to call Dodge as a witness to Beckley’s mental state. The trial court immediately asked to see both attorneys in chambers for an off-the-record discussion. Upon returning, the court indicated a record needed to be made to support the need for the psychological evaluation. After argument from counsel, the trial court denied the request to call Dodge, finding he lacked credibility and the presentence investigation was “extremely complete.” The trial court also denied permission to allow Beckley’s foster father to testify.

*847[¶ 19.] After the testimonial requests were denied, defense counsel proceeded to argue the request for continuance to obtain the psychological evaluation from the professional evaluator. The trial court denied that motion stating:

I have a report from the Human Services Center and I also have an extensive letter from your client. Okay, so [defense counsel] we are going to proceed with sentencing and if you would, please, proceed with your sentencing comments.

This possession of other psychological information is the only reasoning reflected in the record for denial of the motion for continuance. Although Beckley is not appealing the trial court’s denial of the witness’ testimony, he argues that the trial court erred in refusing to continue the hearing. Beckley contends that an evaluation would have allowed him to present psychological evidence in mitigation at the sentencing hearing, particularly concerning his sexual proclivities.

[¶ 20.] A trial court’s decision to grant or deny a continuance is reviewed under an abuse of discretion standard. State v. Letcher, 1996 SD 88, ¶ 29, 552 N.W.2d 402, 407. “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations omitted).

[¶ 21.] “In deciding whether to grant a continuance, a trial court must consider: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court’s refusal to grant the continuance; and, (4) whether there have been any prior continuances or delays.” In re J.G.R., 2004 SD 131, ¶ 15, 691 N.W.2d 586, 591. Furthermore, before imposing sentence, the trial court must acquire a thorough acquaintance with the character and history of the defendant:

[T]he circuit court must “acquire a thorough acquaintance with the character and history of the [person] before it.” The [State v. Hinger, 1999 SD 91, 600 N.W.2d 542 (1999)]/Bonner factors are the appropriate factors for the circuit court to consider when determining sentencing, which include the defendant’s “general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record.” In addition, the trial court considers the rehabilitation prospects of the particular defendant.

State v. Blair, 2006 SD 75, ¶27, 721 N.W.2d 55, 63-64 (internal citations omitted).

[¶ 22.] In this case, the trial court was presented with a presentence investigation detailing Beckley’s comments regarding the offense. It also included personal information such as Beckley’s family, marital, educational, military, religious, medical, employment and financial history. The presentence report finally included Beckley’s plea agreement, prior criminal record, and a discussion of his drug and alcohol problems. Although the professional evaluations contained in the presen-tence report mentioned past problems with depression, as well as sexual, emotional and physical abuse, they did not go into any detail about those issues. Those evaluations focused on Beckley’s drug and alcohol addiction, which was understandable considering the fact that Beckley was being sentenced for the possession of a controlled substance. The presentence report did, however, specifically recommend fur*848ther assessment in the areas of Beckley’s sexual abuse and depression. It was also recommended that Beckley “[b]e seen by a physician/psychiatrist through the Community Health Clinic for medical assistance and possible medication management for mental health issues.” There is no indication that such assessments were conducted, and the presentence report does not include any detail on these issues.3

[¶ 23.] Despite these omissions and the denial of Beckley’s request for his own psychological evaluation, the sentencing transcripts indicate that the court proceeded with sentencing focusing on Beckley’s sexual proclivities. In fact, that was the trial court’s main concern and motivating factor for the sentence it imposed. The trial court’s statement in sentencing speaks for itself:

I don’t even know where to start here. If this were just a methamphetamine case, I would .treat it as I do with other possession of methamphetamine cases where we have a jail sentence and a person goes into treatment and I try to keep them out of the penitentiary. I am sorry to say that this is more — more than a methamphetamine case. He is being sentenced on methamphetamine, but as we all know I am required to take into consideration all of the facts of someone’s life and it isn’t the possession of methamphetamine that is of greater concern to me, in this case, it is the sexual proclivity of Mr. Beckley. It appears to me that during the period of time that he was under the jurisdiction of this Court or immediately before that time he was involved in three separate sexual incidents and I share [victim’s father’s] concern about the defendant involving his daughter. When I hear that this man had weapons on him, that he was stopping young girls and video taping them and saying that he was a personal investigator for the City and I heard he had knives on his person, [victim’s father], you are not the only one who got the chills, I did also.

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We then have the incident at the [university] where Mr. Beckley is in underwear and he is peeking into the windows of young women, and then I also remember that the State brought Mr. Beckley before this Court to have his bond revoked based on the fact that he was out at the driver’s license bureau and, again, was taking photographs and it should be noted that he wasn’t taking pictures of any women’s behinds, but, again, my memory serves me that he was taking photographs of the behinds of very young women. This is a real problem here and the particular problem is that Mr. Beckley, under the jurisdiction of this Court, knew that he was facing penitentiary time and despite that was unable to control his sexual proclivities.

Frankly, in this case, I have reached the point where I am frightened. I am frightened for the young women of this community as to where this is going. Mr. Beckley has knives, he’s stopping women saying he is a private investigator, taping them, and all the while he was under the supervision of this Court. This situation has gotten too scary for me to take any chances.

*849You talk about throwing someone else away, I don’t throw people away, I work with people who have methamphetamine problems, but when someone keeps committing sexual crimes, the Court gets scared and I am scared. Now, at some point the balance has to shift. I have some concern for Mr. Beckley and I realize that he has serious problems, but at some point the balance of the scale has to shift towards the safety of girls in our community, and I am afraid that through his repeated actions over and over and over again that has caused that balance to shift traumatically. If he needs help, he’ll have to receive that help at the penitentiary. At this point he needs to get himself under control. He’s too scary at this point to be on the streets of this city and community. I am imposing a sentence of eight years in the South Dakota State Penitentiary.

These concerns continued after sentencing. The trial court’s judgment of conviction recommended that the Parole Board obtain a psychosexual evaluation and have Beckley placed in a sex offender group. This record demonstrates that Beckley’s psychosexual state was the major motivating factor and weighed heavily in the trial court’s formulation of its sentence.

[¶ 24.] Notwithstanding this focus, the court denied the continuance twice stating its belief that it had adequate information on this subject. The record does not support the trial court’s conclusion. The information in the presentence report (or otherwise before the Court) was wholly lacking concerning the psychological aspects of Beckley’s sexual proclivities, the area of main concern to the trial court in determining punishment. More importantly, the denial of Beckley’s requests for continuance to present highly relevant and potentially mitigating evidence violated SDCL 23A-27-1. That statute provides in relevant part:

At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.

[¶ 25.] Although we are not suggesting that the failure to include particular information in a presentence investigation is a matter that is generally appealable, in this case we consider that fact because it was the sole basis for the trial court’s denial of the continuance and Beckley had a right to present that information to the sentencing court. “Fundamental principles of procedural fairness apply with no less force at the penalty phase of a criminal trial than they do in the guilt-determining phase of a criminal trial.” State v. Phelps, 297 N.W.2d 769, 776 (N.D.1980) (citing Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978)).4

[¶ 26.] Unable to procure the mitigating psychological evaluation allowed under SDCL 23A-27-1, counsel proceeded to the request for a continuance. This was denied by the trial court without an analysis of the In re J.G.R. factors. See supra *850¶21. We have also been pointed to no evidence in the record that a continuance would have been prejudicial to the State or that it was motivated by bad faith or dilatory tactics.5 Yet, there is evidence that' such an evaluation would have provided the trial court with relevant psychological information concerning Beckley’s mental state and sexual proclivities.6 The trial court recognized that fact, recommending such an evaluation after Beckley was incarcerated.7

[¶ 27.] On this record, the trial court abused its discretion in denying the continuance to allow Beckley to obtain the psychological evaluation to mitigate the evidence relating to his sexual misconduct. The trial court failed to consider the relevant continuance factors, its sole reason for denying the continuance was not supported, and its denial of Beckley’s attempt to present this mitigation witness violated the statutory right to present mitigation evidence. Compare, State v. Milk, 2000 SD 28, ¶ 23, 607 N.W.2d 14, 21 (foreclosing the defendant from seeking to re-open the sentencing phase to allow psychological evidence because he did not attempt to call the witness or seek a continuance of the sentencing hearing). Therefore, we reverse and remand for resentencing after Beckley has been provided an opportunity to obtain a psychological evaluation.

[¶ 28.] Affirmed in part, reversed in part and remanded.