(dissenting).
[¶ 19.] I respectfully dissent.
[¶ 20.] It is undisputed that the trial court failed to advise Richards of the mandatory minimum sentence for escape, as required by SDCL 23A-7-4, up until the time of the sentencing hearing. Richards was, however, informed of the minimum penalty before sentence was pronounced. This procedural flaw is not sufficient to withdraw a guilty plea once sentencing has occurred. See United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (holding collateral relief not available to defendant who shows only violation of formal requirements of Rule 11 and no prejudice).
[¶ 21.] Under this Court’s precedent, Richards is required to show prejudice before relief can be granted. See Moeller, 511 N.W.2d at 809-10; King, 400 N.W.2d at 880.
Regardless of what principal [sic] of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.
King, 400 N.W.2d at 880 (quoting Keel, 585 F.2d at 113) (emphasis added). Richards has neglected to show sufficient evidence that he would have changed his plea had he been notified of the consecutive seven-year minimum sentence required for the offense of escape.
[¶ 22.] Furthermore, Richards failed to preserve his claim for appeal when he did not move to withdraw his plea upon hearing the minimum penalty at sentencing. A defendant is entitled to move to withdraw his plea up until such time as the sentence is imposed. SDCL 23A-27-11. At a bare minimum, Richards could have moved to withdraw his guilty plea when the State’s Attorney stated “it’s my understanding that there is a mandatory minimum under these circumstances of seven years in the state penitentiary.” He had a second opportunity when the judge stated “the [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.” Instead, defense counsel simply agreed with the State’s Attorney and requested the seven-year minimum be imposed.
[¶ 23.] The majority attempts to make an artificial distinction between failing to advise a defendant of the mandatory maximum penalty, as decided by this Court in King and Moeller, and failing to advise the defendant of the mandatory minimum penalty, as alleged herein. I do not find the North Dakota rationale persuasive. See, e.g., Holmes v. United States, 876 F.2d 1545, 1550 (11thCir.1989) (holding failure to inform defendant of ten-year minimum sentence not “so fundamentally defective as to result in a complete miscarriage of justice, or inconsistent with rudimentary demands of fair procedure.” (quoting Keel, 585 F.2d at 114)); State v. Rouse, 206 Neb. 371, 293 N.W.2d 83, 88 (1980) (holding failure to advise defendant of maximum or minimum penalty “did not prejudice the rights of the defendant or result in manifest injustice.”). Therefore, I would affirm the judgment of the trial court in this case.
[¶ 24.] KONENKAMP, Justice, joins this dissent.