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State v. Richards2/6/2002
On May 26, 2000, Richards was sentenced to five years in the penitentiary for third offense DUI. On July 10, 2000 Richards, who was housed at the Community Alternatives of the Black Hills, did not return from work release.
[ .] Richards was apprehended on February 5, 2001 and charged with escape, as defined by SDCL 22-11A-1, from the custody of authorities of the South Dakota State Penitentiary, in violation of SDCL 22-11A-2. At his arraignment the trial court advised Richards:
THE COURT: At this time it's been alleged, Mr. Bevis [sic], you were in the custody of the State of South Dakota under the supervision of the South Dakota State Penitentiary and that you escaped from that custody on the 10th of July, 2000. If this is found to be the case, you're facing a maximum penalty of ten years, $10,000 fine or both.
You have a right to a Court or jury trial, a right to confront the witnesses against you, a right against self-incrimination, and right to subpoena witnesses to testify for you at any trials or hearings.
If you plead not guilty, you're presumed to be innocent and the State must prove beyond a reasonable doubt that you did what they say you did in the Information. The State must convince a unanimous jury of this county of your guilt beyond a reasonable doubt before you could be convicted.
You may if you wish plead guilty. But if you should plead guilty, you'd be waiving the rights I mentioned earlier. In other words, you would not have a right to a trial, not have a right against self-incrimination, and you'd be admitting doing what's alleged in the Information.
Do you understand these rights?
[ .] Richards informed the court that he understood his rights and was prepared to plead guilty. The court accepted the plea after finding a free and voluntary waiver of rights and a factual basis.
[ .] At sentencing, the State and Richards requested the mandatory minimum sentence:
MS. THOMAS: Your Honor, it's my understanding that there is a mandatory minimum under these circumstances of seven years in the state penitentiary. And that sentence may not - - no portion of that sentence may be suspended. So at this time the State would request that this Court impose at least the mandatory minimum of seven years. It's my understanding there is no restitution in this matter.
THE COURT: Thank you. Counsel?
MR. ANDERSEN: That's our request too, Your Honor, is that you not go past the mandatory minimum of seven years. He'll return to the penitentiary where he's got a good portion of his seven-year sentence from the DWI's left and it's doubtful that would he even get parole on those.
After Richards addressed the court and the court questioned him, the court concluded "[t]he legislature has seen fit to give me no choice as far as the seven years and that's all I'm going to give you."
DISCUSSION
[ .] Richards contends that he should be allowed to withdraw his guilty plea because the trial court, before accepting his plea, failed under SDCL 23A-7-4(1)(Rule 11(c)), to advise him of the mandatory minimum sentence. While he did not present his claim of a violation of SDCL 23A-7-4(1) to the trial court, this Court reviews the appeal for plain error. State v. Nikolaev, 2000 SD 142, 619 NW2d 244.
"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court." SDCL 23A-44-15; State v. Baker, 440 NW2d 284, 291 (SD 1989). See United States v. Hernandez-Fraire, 208 F3d 945, 949 (11thCir2000)(Rule 11 violations not previously presented to the trial court are reviewed for plain error). Id., 2000 SD 142 at , 619 NW2d
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