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State v. Arguello12/18/2002
The facts of this case are undisputed. Arguello pled guilty to driving or controlling a vehicle while having .10 percent or more of alcohol in his blood on August 16, 2001. However, Arguello pled not guilty to the part II information which alleged that this was his third offense DUI. Following a court trial, Arguello was found guilty of the part II information and sentenced for a third offense DUI.
[ .] Arguello does not dispute that he was previously convicted for DUI on April 26, 1993 and January 9, 1995. At the time of those convictions, SDCL 32-23-4.1 provided for sentence enhancement if prior DUI convictions occurred within the previous five years. SDCL 32-23-4.1 was subsequently amended on July 1, 2001 to extend the timeframe for enhancement purposes to the previous ten years. SDCL 32-23-4.1 (2002). Arguello concedes that he was advised of his Boykin rights prior to his entering guilty pleas for the two prior DUI offenses, as mandated by the decisions of the United States Supreme Court and the precedent of this Court. Despite this concession, Arguello claims that because he was not informed that those convictions could subsequently be used to enhance his sentence they are void for enhancement purposes. Additionally, Arguello claims that the trial court's application of amended SDCL 32-23-4.1 is void as an unconstitutional ex post facto application of that law.
ANALYSIS AND DECISION ISSUE ONE
[ .] Whether the two previous convictions are valid for enhancement purposes.
[ .] Arguello claims that the use of the two prior DUI convictions for enhancement purposes violates his right to due process and to know the nature and cause of the accusations against him. As previously mentioned, Arguello concedes he was properly advised of his Boykin rights prior to the guilty pleas which represent the previous convictions. Therefore, Arguello does not attempt to collaterally attack those convictions but, instead, asserts they should be ignored for enhancement purposes because he was not advised when he entered the prior guilty pleas that the conviction(s) could subsequently be used to enhance a sentence for a future conviction. This argument is without merit.
[ .] In a different context, this Court has held that "we follow those decisions which have held that it is not necessary for a court to inform a defendant of the collateral consequences of a guilty plea, such as eligibility for parole, in order for a plea to be intelligently and voluntarily entered." Gregory v. State, 353 NW2d 777, 781 (SD 1984). Additionally, in State v. Olesen, 331 NW2d 75, 77 (SD 1983), the Court determined that "a defendant need not be advised of any enhanced punishment that may result from the conviction should the defendant subsequently be convicted of a crime." The United States Supreme Court has also recognized "[t]he rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering his decision." Brady v. United States, 397 US 742, 757, 90 SCt 1463, 1473, 25 LEd2d 747, 761 (1970).
[ .] In rejecting a defendant's contention that a single conviction could not be used more than once for enhancement purposes unless defendant was so informed by the trial court, this Court stated: We are not convinced that Boykin requires the advice that defendant now claims he was entitled to. Rather, we agree with the Supreme Court of Iowa that a defendant need not be advised of any enhanced punishment that may result from the conviction should the defendant subsequently be convicted of a crime. Olesen, 331 NW2d at 77.
In addressing a similar issue another court has recognized
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