State v. Johnson

¶1(concurring in part, dissenting in part).

¶2I would hold that the trial court did not err in denying defendant a hearing on his belated motion to suppress evidence. Although during oral argument before this court defendant’s counsel asserted several additional reasons why the motion had not been filed earlier, the record does not reveal that these reasons were presented to the trial court. The sole excuse given to the trial court for the delayed filing of the motion was the fact of the change in counsel’s status from that of retained counsel to that of appointed counsel. Although it may be true that appointed counsel has a duty to assert all possible contentions on appeal, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the failure to file a pretrial motion promptly is not excused ipso facto by the change in counsel’s status from retained to appointed. Accordingly, the trial court did not err in denying counsel’s late request for a hearing on the motion to suppress. State v. Glick, 87 S.D. 1, 201 N.W.2d 867.

¶3I would also hold that the trial court did not err in permitting the state to ask defendant on cross-examination whether he had admitted to having amphetamines in his possession in February of 1974. In fact, defendant had entered a plea of guilty to such a charge in February of 1974 and had been placed on probation under the provisions of SDCL 39-17-113, which provides in part that:

“Whenever any person who has not previously been convicted of any offense under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to, or is found guilty under ... § 39-17-95 . . . the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation upon such reasonable terms and conditions as it may require. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.”

¶4We have recently held that a jury verdict of guilt stands as a conviction for purposes of impeachment. State v. Van Beek, 87 S.D. 517, 211 N.W.2d 355. See also, e. g., United States v. Rose, 8 Cir., 526 F.2d 745; People v. Johnson, Colo., 560 P.2d 465. Defendant contends that a guilty plea or jury verdict of guilt under SDCL 39-17-113 stands on a different plane, however, inasmuch as under that statute the court may *122place a defendant upon probation without entering a judgment of guilt. If the period of probation is completed successfully, the court shall discharge the defendant and dismiss the proceedings, all without adjudication of guilt, and “. . . [s]uch discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime . . . SDCL 39-17-114. Similar provisions now exist in the statute providing for suspension of imposition of sentence on other felonies. SDCL 23-57-4. The fact that a defendant may ultimately have the charges dismissed and not suffer any of the disabilities normally associated with a felony conviction, however, does not alter the fact that until such dismissal and discharge occurs, a defendant’s plea of guilty stands and may form the basis for an adjudication of guilt by the court upon the violation by the defendant of the conditions of probation. Although the purpose of statutes such as SDCL 23-57-4:, SDCL 39-17-113 and SDCL 39-17-114 may be to provide for the rehabilitation and full restoration of those whose violations of law are of a nature that calls for leniency and correction rather than retribution and confinement, the fact remains that a plea of guilty carries with it serious consequences, for as the United States Supreme Court has stated:

“A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279.

¶5This is in accord with what this court said in State ex rel. Sedam v. Circuit Court:

“A plea of guilty is the equivalent of a conviction the effect of which is to authorize the imposition of the sentence prescribed by law on a verdict of guilty of the crime sufficiently charged in the information.” 72 S.D. 494, 496, 36 N.W.2d 672, 674.

¶6I am not persuaded that we should adopt a different rule for guilty pleas than we adopted for jury verdicts in State v. Van Beek, supra. Granted that a defendant who has entered a guilty plea or who has been found guilty may ultimately be discharged under the provisions of SDCL 39-17-114 and SDCL 23-57-4 and thus exonerated from the consequences that might otherwise result from a conviction, once a defendant has admitted his guilt in a manner and under such circumstances that would entitle the trial court to enter judgment and impose sentence, his credibility is no less impaired and impeachable merely because the trial court did not do so.* It is the solemn admission of guilt by a defendant on the one hand, and the equally solemn finding of guilt by a jury on the other, both entered in accordance with constitutional and statutory procedures painstakingly followed by the trial judge, and not the adjudication of guilt by the trial judge, that serve as the basis for subsequent impeachment. A guilty plea operates just as much as a jury verdict to overcome the presumption of innocence, and it stands as a verity until set aside. If it were not so, it would hardly have been necessary to provide in SDCL 39-17-114 and SDCL 23-57-4 that dismissal and discharge under those statutes shall not be deemed a conviction for purposes of disqualifications or disabilities.

¶7I agree with the majority opinion’s disposition of the sequestration issue and interpretation of SDCL 39-17-62.