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2012 S.D. 55
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
ADAM OLSON, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
TRIPP COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN F. TRANDAHL
Judge
****
MARTY J. JACKLEY
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
SANDY J. STEFFEN
Gregory, South Dakota Attorney for defendant
and appellant.
****
CONSIDERED ON BRIEFS
ON MARCH 17, 2012
OPINION FILED 06/27/12
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SEVERSON, Justice
[¶1.] Adam Olson entered into a plea agreement with the State, under the
terms of which he pleaded guilty to one count of grand theft and one count of
aggravated eluding of a law enforcement officer. Olson also admitted to being a
habitual offender. In addition, Olson pleaded guilty to an additional count of grand
theft, which the State charged him with, in a separate Information. Olson later
filed a motion to withdraw his guilty pleas. The circuit court denied his motion and
sentenced Olson to fifteen years for the grand theft conviction and two years for the
aggravated eluding of a law enforcement officer conviction. Olson’s sentence for
aggravated eluding of a law enforcement officer was to run consecutive to his
sentence for grand theft. The court also sentenced Olson to serve ten years for the
grand theft conviction that was charged in the separate Information. This sentence
was to be served consecutive to Olson’s other sentences. Olson appeals, raising the
following issues: (1) whether the circuit court abused its discretion in denying
Olson’s motion to withdraw his guilty pleas; (2) whether Olson’s sentences
constituted cruel and unusual punishment under the Eighth Amendment. We
affirm.
BACKGROUND
[¶2.] In Tripp County File 10-156, the State filed an Information charging
Olson with one count of third-degree burglary, five counts of grand theft, and one
count of aggravated eluding of a law enforcement officer. The State asserted that
Olson committed these crimes on November 15, 2010. The State also filed a Part II
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Information, alleging Olson was a habitual offender. The charge of third-degree
burglary was later dismissed.
[¶3.] In Tripp County File 11-12, the State filed a separate Information
charging Olson with two counts of grand theft. These charges arose from an
incident that occurred on July 29, 2010.
[¶4.] Olson was arraigned on the charges for both files in January 2011.
During the arraignment hearing, the circuit court explained to Olson the elements
of the crimes he was charged with, as well as each of his constitutional rights. The
circuit court then advised Olson: “[I]f you plead guilty to these charges, you would
be found guilty, just as if you had a trial, and you would be giving up the rights I
have just gone over with you.” The circuit court asked Olson if he understood his
rights and the charges against him. He indicated that he did. Olson pleaded not
guilty to each of the charges.
[¶5.] Olson later entered into a written plea agreement with the State. The
terms of the plea agreement specified that, for the Information filed in Tripp County
File 10-156, Olson would plead guilty to one count of grand theft and one count of
aggravated eluding of a law enforcement officer. Olson also agreed to admit to a
Part II Information alleging that he had been previously convicted of grand theft on
August 24, 2005. In exchange, the State agreed to dismiss all remaining charges in
Tripp County File 10-156. For the Information filed in Tripp County File 11-12,
Olson agreed to plead guilty to one count of grand theft, and the State agreed to
dismiss the remaining count of grand theft.
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[¶6.] A change of plea hearing was held in February 2011. During this
hearing, the circuit court again explained to Olson the elements of the crimes he
was charged with and each of his constitutional rights. Olson indicated that he
understood the charges and his rights. The circuit court also advised Olson that if
he entered a plea of guilty to any of the charges, he would waive his constitutional
rights. Olson indicated that he understood.
[¶7.] The circuit court then inquired as to the events that took place
November 15, 2010. Olson admitted that he and other individuals entered the
parking lot of Grossenburg Implement in Tripp County and loaded a 2010 John
Deere Gater onto a trailer. The trailer was attached to a truck that Olson drove
away from the scene. Olson testified that a police officer began pursuing him after
he left Grossenburg Implement. Olson drove approximately two or three miles and
eluded the officer. He stated that he then “ditched the trailer” and “went home.”
The circuit court found that there was a sufficient factual basis to support Olson’s
guilty pleas for the charges of grand theft and aggravated eluding of a law
enforcement officer in Tripp County File 10-156. The court accepted Olson’s guilty
pleas for these charges.
[¶8.] The circuit court then addressed the factual basis for the Part II
Information, which alleged that Olson was a habitual offender. Olson admitted that
he was convicted of grand theft on August 24, 2005 in Aurora County, South
Dakota. The circuit court found that there was a sufficient factual basis for this
charge.
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[¶9.] Finally, the circuit court inquired as to the events that took place July
29, 2010. Olson admitted that he and other individuals broke into Grossenburg
Implement through the front gate and stole a Honda generator. After canvassing
Olson regarding the details of the incident, the circuit court found that there was a
sufficient factual basis to support Olson’s plea of guilty to the charge of grand theft
in Tripp County File 11-12. The court accepted Olson’s plea of guilty as to this
charge.
[¶10.] Olson later filed a motion to withdraw his guilty pleas. The circuit
court held a hearing on Olson’s motion in July 2011. During the hearing, Olson
testified that he suffered from Attention Deficit Disorder and was not taking
medication for this condition at the time he entered his pleas. Olson also testified
that he pleaded guilty to the charges because his father pressured him to do so.
According to Olson, at the time he entered his guilty pleas, his father was in very
poor health due to cancer and a back injury.
[¶11.] Olson initially testified that he did not remember the circuit court
reviewing his constitutional rights during the plea hearing. Later in his testimony,
however, Olson seemed to admit that he remembered the court reviewing his
constitutional rights. Nonetheless, Olson contended that he did not understand the
rights he gave up by pleading guilty:
Q: So, when the Judge asked you if you understood those rights,
and you said yes, were you telling the truth?
A: No.
Q: Why didn’t you just tell the court that you didn’t understand
those rights?
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A: Because I didn’t want everybody to think I’m an idiot.
Q: And why didn’t you tell me as your attorney that you didn’t
understand those rights?
A: I don’t know. It was just really fast pace, and everything just
moves really fast, and I have a tendency just to answer the
questions as short as possible.
[¶12.] Olson testified that he did not understand the charges against him
and, in particular, he did not understand the Part II Information. He further
testified that when he provided the factual basis to the circuit court, he merely
recited facts he read off of a police report prior to the hearing.
[¶13.] The circuit court found that Olson’s testimony was not credible. The
court also found that the advisement of rights was sufficient and that Olson’s plea
was entered knowingly and voluntarily. Olson’s motion to withdraw his guilty pleas
was denied.
[¶14.] Olson was sentenced in September 2011. For the charge of grand theft
in Tripp County File 10-156, Olson was sentenced to 15 years in prison. For the
charge of aggravated eluding of a law enforcement officer, Olson was sentenced to
two years in prison, which was to be served consecutive to the sentence for the
charge of grand theft in Tripp County File 10-156.
[¶15.] For the charge of grand theft in Tripp County File 11-12, Olson was
sentenced to ten years in prison. This sentence was to be served consecutive to
Olson’s other sentences.
DISCUSSION
[¶16.] 1. Whether the circuit court abused its discretion in
denying Olson’s motion to withdraw his guilty pleas
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[¶17.] Olson argues that the circuit court abused its discretion in denying his
request to withdraw his guilty pleas. SDCL 23A-27-11 provides:
A motion to withdraw a plea of guilty or nolo contendere may be
made only before sentence is imposed or imposition of sentence
is suspended; but to correct manifest injustice a court after
sentence may set aside a judgment of conviction and permit the
defendant to withdraw his plea.
[¶18.] “The withdrawal of a guilty plea before the imposition of sentence is
within the sound discretion of the [circuit] court.” State v. Wahle, 521 N.W.2d 134,
137 (S.D. 1994) (quoting State v. Grosh, 387 N.W.2d 503, 505 (S.D. 1986)). When a
defendant moves to withdraw a plea prior to sentencing, a court should exercise its
discretion liberally in favor of withdrawal. Id. (quoting Grosh, 387 N.W.2d at 505-
06). But “SDCL 23A-27-11 does not create an automatic right to withdraw a guilty
plea.” State v. Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433 (citing State v.
Engelmann, 541 N.W.2d 96, 100 (S.D. 1995)). “When deciding whether to allow a
criminal defendant to withdraw his plea, the [circuit] court must look at the reasons
why the plea is sought to be withdrawn and if the request to withdraw is obviously
frivolous, the circuit court need not grant it.” Wahle, 521 N.W.2d at 137 (quoting
Grosh, 387 N.W.2d at 506) (emphasis omitted).
[¶19.] Olson alleges that the circuit court should have allowed him to
withdraw his guilty plea because the plea was not entered knowingly and
voluntarily. “[A] plea is intelligent and voluntary when the accused has a full
understanding of his constitutional rights and, having that understanding, waives
[those] rights by a plea of guilty.” State v. Beckley, 2007 S.D. 122, ¶ 8, 742 N.W.2d
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841, 843 (quoting Lodermeier v. State, 273 N.W.2d 163, 164 (S.D. 1978)). We have
explained,
In Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 1712,
23 L. Ed. 2d 274 (1969), the United States Supreme Court
recognized that “a plea of guilty is more than an admission of
conduct; it is a conviction.” Therefore, it is critical not only that
a defendant be advised of his rights relating to self-
incrimination, trial by jury, and confrontation, but also that the
defendant intentionally relinquish or abandon known rights.
Monette v. Weber, 2009 S.D. 77, ¶ 10, 771 N.W.2d 920, 924 (citing Boykin, 395 U.S.
at 243 n.5, 89 S. Ct. at 1712 n.5).
[¶20.] “The record must show in some manner that the defendant understood
his rights in order for the defendant’s plea to be entered intelligently and
voluntarily.” State v. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d 283, 287 (citing
Beckley, 2007 S.D. 122, ¶ 10, 742 N.W.2d at 844)). “[W]e look to ‘the totality of the
circumstances when ascertaining whether a plea was made knowingly and
voluntarily.’” Beckley, 2007 S.D. 122, ¶ 14, 742 N.W.2d at 846 (quoting State v.
Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d 847, 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.” Id. (quoting Goodwin, 2004 S.D. 75, ¶ 11, 681 N.W.2d at
852).
[¶21.] Olson was twenty-four years old at the time he was sentenced. He had
previous experience with the criminal justice system as a juvenile and an adult.
Olson was represented by counsel at each stage of the proceedings. During the
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change of plea hearing, he indicated that he was content with his legal counsel. He
also indicated that he had sufficient time to discuss the charges he was facing with
his legal counsel.* During both the arraignment hearing and the change of plea
hearing, the circuit court explained to Olson each of his constitutional rights. In
fact, the court reviewed with Olson each of his constitutional rights immediately
prior to Olson’s entry of his guilty pleas. Olson repeatedly indicated that he
understood the rights he was giving up by pleading guilty. These facts support the
circuit court’s finding that Olson entered his guilty pleas knowingly and voluntarily.
Misapprehension of the facts
[¶22.] Olson entered into a written plea agreement with the State. Part of
the agreement specified that, for the Information in Tripp County File 10-156,
Olson would plead guilty to one count of grand theft and one count of aggravated
eluding of a law enforcement officer. Olson also agreed to admit to the Part II
Information, which alleged that he had been previously convicted of grand theft in
* Specifically, the following exchange took place between Olson and the circuit
court:
THE COURT: One right that you have is the right to an attorney and
you appear here today with Ms. Steffen. Does she represent you?
THE DEFENDANT: Yes.
THE COURT: Have you had enough time to talk to her about these
charges?
THE DEFENDANT: Yes.
THE COURT: Do you want her to continue to represent you?
THE DEFENDANT: Yes.
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Aurora County on August 24, 2005. In exchange, the State dismissed all remaining
charges in Tripp County File 10-156. The plea agreement specified that the charges
Olson was facing included “[f]ive counts of Grand Theft . . . a Class Four (4) Felony,
each count punishable by a maximum of ten (10) years in the penitentiary and a
fine of $20,000.00.” Although Olson signed the plea agreement, he argues that he
did not understand he had been charged with five separate counts of grand theft.
Olson argues that he thought he could only be charged with one count of grand theft
for the November incident.
[¶23.] We have previously stated, “In plea hearings, the record must
demonstrate that defendants not only understand the constitutional and statutory
rights they are waiving by pleading guilty, but also fully understand the charges for
which they are admitting guilt.” State v. Nachtigall, 2007 S.D. 109, ¶ 9, 741 N.W.2d
216, 220. In this case, after reviewing the record in its entirety, we hold that the
circuit court did not abuse its discretion in finding that Olson understood he was
charged with five separate counts of grand theft.
[¶24.] The transcript of the arraignment hearing reveals that the circuit
court specifically asked, “Mr. Olson, do you understand what you are charged with?”
Olson responded, “Yes.” The court then went through each count of grand theft
Olson was charged with in Tripp County File 10-156 and explained the maximum
penalty for each charge. Olson indicated that he understood the maximum penalty
for each charge.
[¶25.] Moreover, the plea agreement Olson signed clearly stated that he had
been charged with five counts of grand theft and one count of aggravated eluding of
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a law enforcement officer. During the change of plea hearing, the circuit court went
to great lengths to ensure that Olson understood the plea agreement:
THE COURT: So, my understanding of the plea agreement, Mr.
Olson, is this — and please correct me if I’m wrong — in File 10-
156, which is the November 15th incident, you will be pleading
to Count 4 Grand Theft, and Count 7 Eluding.
THE DEFENDANT: Yes.
THE COURT: The State will dismiss the remaining charges in
that file. And in File 11-12, which is the July 29th incident,
you’ll be pleading to one count of Grand Theft. Which count will
he be pleading to?
MS. STEFFEN: We can do Count 1.
THE COURT: All right. Thank you. And then Count 2 will be
dismissed. Is that your understanding of the plea agreement?
THE DEFENDANT: Yes.
THE COURT: All right. Now, this plea agreement has been
reduced to writing, and you did sign that agreement today; is
that correct?
THE DEFENDANT: Yes.
THE COURT: And this is your signature?
THE DEFENDANT: Yes, it is.
THE COURT: And prior to entering in to [sic] this plea
agreement, did you have enough time to talk to your attorney
about this agreement?
THE DEFENDANT: Yes.
THE COURT: And does it completely resolve the charges from
July 29th and November 15th?
THE DEFENDANT: Yes.
THE COURT: All right. And this plea agreement is acceptable to
you?
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THE DEFENDANT: Yes.
[¶26.] At the hearing on Olson’s motion to withdraw his guilty plea, the
circuit court found Olson’s testimony that he did not understand he had been
charged with five separate counts of grand theft in Tripp County File 10-156 was
not credible. Based on our review of the record, we hold that the circuit court did
not abuse its discretion in making this finding.
[¶27.] Olson next argues that he did not understand what was being referred
to as the “Part II Information” in the written plea agreement. He contends he was
not aware that, by admitting to the Part II Information, he could be subjected to an
enhanced sentence. During the change of plea hearing, the following exchange took
place between Olson and the circuit court:
THE COURT: Mr. Olson, we will then look at the Part II,
habitual-offender information. Do you understand that all
rights that I went over with you also apply to this Part II
information?
THE DEFENDANT: Yes, I do.
THE COURT: And do you understand that you do have a right
to a jury trial on this information, and at that jury trial all 12
jurors would have to unanimously agree that you are the same
person who has this prior conviction in Aurora County, South
Dakota?
THE DEFENDANT: Yes.
THE COURT: And do you have a copy of that in front of you as
well?
THE DEFENDANT: Yes, I do.
THE COURT: And that says that you were convicted of Grand
Theft on August 24th, 2005 in Aurora County, South Dakota.
Do you understand what you are charged with?
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THE DEFENDANT: Yes.
THE COURT: And you understand that, if you plead guilty to
this charge, that the maximum penalties are enhanced by one
level; so the Grand Theft goes from ten years in prison and a
$20,000 fine to 15 years and a $30,000 fine; and the Eluding
goes from two years in prison and a $2,000 fine up to five years
in prison and a $10,000 fine. Do you understand that that’s the
consequences of this Part II information?
THE DEFENDANT: Yes, ma’am.
[¶28.] A review of the transcript of the change of plea hearing reveals that
the circuit court carefully explained the Part II Information to Olson. The court
specifically explained to Olson that, if he admitted to being a habitual offender, his
sentences for grand theft and aggravated eluding of a law enforcement officer would
be enhanced. Olson unequivocally stated that he understood. The record thus
supports the circuit court’s finding that Olson knowingly and voluntarily admitted
to being a habitual offender.
Coercion and mental defect
[¶29.] Olson notes that the day after the January 2011 arraignment, he made
a request to see a mental health professional at the jail so that he could “be put
back on” medication he stopped taking without a doctor’s approval. This request
was denied. On January 20, 2011, Olson made a second request to see a mental
health professional. In this request, Olson alleged, “I hear voices that tell me to do
stuff.” This request was also denied. Olson argues his requests to see a mental
health professional support his argument that he was unable to understand his
constitutional rights or the nature of the crimes with which he was charged. As
further support for his argument, Olson notes that he attempted to commit suicide
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while he was detained. Olson also alleges that he pleaded guilty to the charges
because his father pressured him to do so.
[¶30.] The circuit court rejected Olson’s arguments and found: “There is no
evidence that he had any diminished mental capacity.” The court noted that Olson
had been advised of his rights on four separate occasions. She accused him of
having a selective memory only for issues that supported his arguments. The court
also pointed out that Olson was not honest about his education. During the hearing
on Olson’s motion to withdraw his plea, Olson testified that he never obtained a
General Educational Development (GED) diploma and that his highest level of
education was the seventh grade. In fact, Olson had obtained a GED.
[¶31.] At the change of plea hearing, the circuit court ordered that Olson
undergo a psychological evaluation to assist in determining his competency to
proceed to trial, as well as to determine his state of mind at the time of his alleged
crimes. The psychological evaluation was performed by Dr. Michael A. Stone. As
part of the evaluation, Dr. Stone performed various tests to evaluate Olson’s
intelligence. The results of these tests indicated that Olson was mildly to
moderately mentally retarded. Dr. Stone also observed that Olson’s demeanor
during the evaluation indicated he had some significant cognitive defects. But Dr.
Stone went on to state in his report,
Upon further inquiry and review of the records, however, some
indications began to emerge that Mr. Olson was attempting to
portray himself as having some significant cognitive deficits, as
well as experiencing psychotic episodes wherein he was hearing
voices. It appeared his portrayal of himself in this fashion was
likely motivated by his desire to be found incompetent to
proceed to trial, and as such, would avoid, at least temporarily,
being convicted and sent to prison.
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[¶32.] Ultimately, Dr. Stone concluded,
Mr. Olson made a very deliberate attempt to deceive this
examiner in order to ultimately be declared incompetent to
proceed to trial. . . . Mr. Olson . . . was dishonest and/or evasive
in his responses to many of the inquires put to him by the
investigators. All of these observations would suggest Mr. Olson
is (1) not mentally retarded, (2) not experiencing auditory
hallucinations, and (3) by his behaviors confirms the fact that he
does, in fact, have a reasonable understanding of the operations
of the legal system, the seriousness of the charges against him,
and the ability to properly assist his counsel in putting on a
defense.
[¶33.] The circuit court considered Dr. Stone’s report during the hearing on
Olson’s motion to withdraw his guilty pleas. The court found that “just as [Olson]
‘made a deliberate attempt to deceive Dr. Stone to be found incompetent’ —in this
courtroom today, the court finds that Mr. Olson has made a deliberate attempt to
deceive this court in order to get the court to allow him to withdraw his plea.”
[¶34.] We believe the record supports the circuit court’s finding. Olson failed
to present any evidence to support his claim that his alleged mental condition
rendered him incapable of knowingly and intelligently entering a plea of guilty.
See Thielsen, 2004 S.D. 17, ¶¶ 31-32, 675 N.W.2d at 437 (holding that the circuit
court did not abuse its discretion in denying a defendant’s pre-sentence motion to
withdraw his guilty plea because the defendant “relie[d] solely on his own
assertions” and “presented no evidence that his mental capacity was diminished”).
Moreover, we find no error in the circuit court’s rejection of Olson’s assertion that
pressure from his father to accept the plea bargain rendered his guilty plea
involuntary. “Standing alone, an assertion that a plea was made as a result of
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pressures exerted by family members is not a sufficient cause to grant a motion to
withdraw a plea.” Id. ¶ 29.
Knowing and voluntary waiver of constitutional rights
[¶35.] Olson testified that he did not understand the constitutional rights he
surrendered by pleading guilty. We have recognized that, in order for a plea to be
deemed knowing and voluntary, “[t]he record must affirmatively show . . . that the
defendant understood the consequences of pleading guilty, and that the defendant
explicitly waived the constitutional right against compulsory self[-]incrimination,
the right to trial by jury, and the right to confront one’s accusers.” Monette, 2009
S.D. 77, ¶ 10, 771 N.W.2d at 925 (quoting Goodwin, 2004 S.D. 75, ¶ 23, 681 N.W.2d
at 855).
[¶36.] During Olson’s arraignment hearing, the following exchange took place
between the circuit court and Olson:
THE COURT: Mr. Olson, at this time I’m going to advise you of
your constitutional and statutory rights. If you have any
questions about these rights, I‘ll answer them if I can.
If you want additional time to visit with your attorney at any
stage in these proceedings, you just need to let me know that
and I’ll give you that opportunity.
[¶37.] The court went on to explain each of Olson’s constitutional rights,
including his right against compulsory self-incrimination, his right to trial by jury,
and his right to confront his accusers. The circuit court advised him that “if you
plead guilty to these charges, you would be found guilty, just as if you had a trial,
and you would be giving up the rights I have just gone over with you.” The
following colloquy then took place between the court and Olson:
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THE COURT: Mr. Olson, do you understand these rights?
THE DEFENDANT: Yes.
THE COURT: Is there a problem?
MS. STEFFEN: I was just checking to make sure.
THE COURT: All right.
MS. STEFFEN: He says he’s okay.
THE COURT: All right. Do you understand the rights that I
went over with you?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions?
THE DEFENDANT: No.
[¶38.] Olson argues that the court’s question, “Is there a problem?” indicates
that Olson did not understand what was happening and that “his statement that he
understood cannot be accepted at face value.” This argument is without merit.
After the court asked Olson if there was a problem, Olson’s attorney indicated that
she was checking to make sure Olson understood his rights. She then stated, “He
says he’s ok.” Nonetheless, the court asked a second time if Olson understood his
rights. He stated that he did.
[¶39.] During the change of plea hearing, the circuit court again reviewed
with Olson each of the charges he was facing, as well as his constitutional rights.
The court explained to Olson: “[I]f you pleaded guilty to these charges, you would be
found guilty, just as if you had a trial, and you would be giving up the rights I have
just gone over with you.” The court asked Olson, “Mr. Olson, do you understand
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these rights?” He responded, “Yes.” The court asked if he had any questions. Olson
stated, “No.”
[¶40.] A review of the record clearly reflects that the circuit court repeatedly
advised Olson of his right to a jury trial, his right to confront his accusers, and his
right against compulsory self-incrimination. The court also repeatedly explained to
Olson that he would waive each of these rights by pleading guilty. Olson indicated
that he understood.
[¶41.] At the time he entered his guilty pleas, Olson was a twenty-four-year-
old man who had previous experience with the criminal justice system as a juvenile
and an adult. Olson also had the benefit of legal counsel at each stage of the
proceedings. Olson’s age, criminal record, and the presence of legal counsel, when
considered in conjunction with the circuit court’s repeated explanation of his
constitutional rights, clearly supports the circuit court’s finding that Olson’s guilty
pleas were entered knowingly and voluntarily. We thus cannot conclude that the
circuit court abused its discretion in denying Olson’s motion to withdraw his guilty
pleas. See Wahle, 521 N.W.2d at 138 (holding that the circuit court did not abuse
its discretion denying a defendant’s motion to withdraw his guilty plea because
“[t]he record of entry of [the defendant’s] guilty plea fail[ed] to contain any objective
facts whatsoever that can be viewed as reasonably justifying a mistaken impression
[of the plea bargain and its effects]”).
Factual Basis for Plea
[¶42.] Olson also argues that there was an insufficient factual basis for the
charge of grand theft in Tripp County File 11-12. We have recognized that
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“[d]eveloping a factual basis on the record is essential to the plea process.”
Nachtigall, 2007 S.D. 109, ¶ 8, 741 N.W.2d at 219. Indeed, “[w]ithout an adequate
factual basis, the [circuit] court cannot assure itself and this Court the guilty plea
was voluntarily and intelligently entered.” Id. (citing State v. Schultz, 409 N.W.2d
655, 658 (S.D. 1987)). A court “must find a factual basis for each element of the
offense.” Id. ¶ 5 (quoting Schultz, 409 N.W.2d at 658). “The factual basis may come
from ‘anything that appears on the record.’” Id. (quoting Schultz, 409 N.W.2d at
658). Accordingly,
reading the indictment to the defendant coupled with his
admission of the acts described in it is a sufficient factual basis
for a guilty plea, as long as the charge is uncomplicated, the
indictment detailed and specific, and the admissions
unequivocal.
Id. (quoting Schultz, 409 N.W.2d at 658).
[¶43.] During the change of plea hearing, the prosecutor read the Information
aloud. The Information alleged that Olson broke into Grossenburg Implement on or
about July 29, 2010 and stole a Honda generator, which had an MSRP value of
$1,680 and invoice value of $1,145.34. When the circuit court asked Olson if that
was what happened, he responded, “Yes, ma’am.” The circuit court then engaged in
the following colloquy with Olson:
THE COURT: Were you in Tripp [C]ounty, South Dakota on
July 29th of 2010?
THE DEFENDANT: Yes.
THE COURT: Did you take the Honda generator from
Grossenburg Implement on that day?
THE DEFENDANT: Yes, I did.
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THE COURT: And they were not open for business at that time?
THE DEFENDANT: No.
THE COURT: And do you agree that the generator had a value
of $1,000 or more?
THE DEFENDANT: Yes.
THE COURT: All right. Did anybody from Grossenburg
Implement give you permission to take that generator?
THE DEFENDANT: No.
THE COURT: Where was that generator located on the
property?
THE DEFENDANT: I can’t — maybe in a trailer in the back of
a truck or something?
THE COURT: All right. Were you there by yourself or with
others?
THE DEFENDANT: With others.
THE COURT: All right. What did you do to take the generator?
THE DEFENDANT: Like — I was driving the truck.
THE COURT: Did you go in the back way?
THE DEFENDANT: No, I believe the front gate.
THE COURT: You went through the front gate?
THE DEFENDANT: Yes.
THE COURT: All right. And what were your plans for the
generator?
THE DEFENDANT: I have no idea, really.
THE COURT: Were you going to sell it?
THE DEFENDANT: Yes, if we could sell it.
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[¶44.] The record demonstrates that there was a sufficient factual basis for
each element of the offense. This factual basis is derived not only from the
Information, but from Olson’s own testimony. Based upon our review of the entire
record, we hold that the circuit court did not abuse its discretion in determining
that there was a sufficient factual basis to accept Olson’s guilty plea as to the
charge of grand theft in Tripp County File 11-12.
[¶45.] 2. Whether Olson’s sentence constituted cruel and unusual
punishment under the Eighth Amendment.
[¶46.] Olson argues that the sentences he received for each of the crimes he
pleaded guilty to constituted cruel and unusual punishment under the Eighth
Amendment. Olson emphasizes that his co-defendants received lesser sentences
than he did. In evaluating Olson’s claim, “[w]e first determine whether the
sentence appears grossly disproportionate.” See State v. Jones, 2012 S.D. 7, ¶ 19,
810 N.W.2d 202, 207. “To accomplish this, we consider the conduct involved, and
any relevant past conduct, with utmost deference to the Legislature and the
sentencing court.” Id. (quoting State v. Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d 575,
580). “We also consider ‘the gravity of the offense and the harshness of the penalty;’
and other relevant factors, such as the effect this type of offense has on society.”
Steichen v. Weber, 2009 S.D. 4, ¶ 30, 760 N.W.2d 381, 394 (State v. Dubois, 2008
S.D. 15, ¶ 41, 746 N.W.2d 197, 210). “If the sentence does not appear grossly
disproportionate, no further review is necessary.” Id. (quoting Dubois, 2008 S.D. 15,
¶ 41, 746 N.W.2d at 210) (emphasis omitted). “If the sentence does appear grossly
disproportionate, an intra- and inter-jurisdictional analysis shall be conducted.” Id.
(quoting Dubois, 2008 S.D. 15, ¶ 41, 746 N.W.2d at 210).
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[¶47.] In this case, although Olson’s sentences are significant, we cannot
conclude they are grossly disproportionate. All of Olson’s sentences were within the
statutory limitations and are thus afforded “substantial deference.” See State v.
Brim, 2010 S.D. 74, ¶ 22, 789 N.W.2d 80, 87 (citation omitted). At the sentencing
hearing, the circuit court emphasized that Olson recruited others to help him
commit the thefts, and that he was the “one in charge.” The court noted that Olson
“took control of the merchandise after it had been stolen.” Olson was also in charge
of paying his co-defendants for their involvement in the crimes.
[¶48.] In addition, the circuit court observed that Olson had a prior criminal
history, which included juvenile convictions for grand theft and third-degree
burglary. While under the supervision of the Department of Corrections, he
“absconded twice from . . . the transitional learning program. . . .” Two weeks after
discharge from the Department of Corrections, he was arrested for grand theft. The
circuit court noted that Olson had a “[d]ocumented history of failing to appear for
court and failure to comply with court orders.” Based upon Olson’s “documented
history,” the court found there was a low probability that Olson would be
rehabilitated.
[¶49.] The circuit court properly considered the gravity of Olson’s offenses,
the effect those offenses have on society, Olson’s criminal record, and the likelihood
of recidivism. See Steichen, 2009 S.D. 4, ¶ 31, 760 N.W.2d at 394. We do not find
that Olson’s sentences are grossly disproportionate to his crimes. As such, no
further review is necessary.
[¶50.] Affirmed.
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[¶51.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and
WILBUR, Justices, concur.
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