State v. Wika

HENDERSON, Justice

(dissenting).

Nolo contendere is a latin phrase which means “I will not contest it.” A plea of this nature leaves the defendant in a position wherein he neither admits nor denies the charges.

Wika asked his first lawyer, not the lawyer representing him in this appeal, what he, the lawyer would do, if he was in Wika’s shoes. His lawyer told him that he would enter a plea of nolo contendere. Few lawyers know the ramifications of a nolo contendere plea. It is a quaint animal in the criminal law. Surely, a 72-year-old man, unlearned in the law, would not know the ramifications of a nolo contendere plea and would have to rely upon his lawyer’s advice.

Picture, in your mind’s eye, a 72-year-old grandfather being accused of sexually contacting and raping his granddaughters. Consider the enormity of his fear of entering a plea of guilty, particularly when he, the grandfather, has steadfastly maintained that he did not molest his granddaughters.

Though there appears to be a strong case against Wika for his misdeeds, throughout the first lawyer’s representation of Wika, Wika insisted that he was innocent and never once acknowledged guilt of the charges proffered against him. His first lawyer, under oath, testified that Wika had a difficult time understanding the proceedings. Upon the date set for his nolo con-tendere plea, while on the courthouse steps, Wika maintained his innocence.

Most specifically, the first lawyer testified at a motions hearing, that Wika and he discussed, on several occasions, plea agreement proposals, but Wika refused any type of plea which would result in admission that he had molested his granddaughters. Further, the first lawyer testified, concerning the nolo contendere plea, that he explained the difference between a “guilty” plea and a “nolo contendere” plea. Following that discussion, Wika was still reluctant to enter a nolo contendere plea. In fairness to the first lawyer, he explained the sentencing aspects of the agreement including the fact that Wika would serve no jail time and that there would be a probation requirement that Wika obtain counseling. Apparently, the first lawyer explained that Wika “might” be required to attend such sessions. Unfortunately, and it is totally undisputed, the first lawyer never explained that the “counseling” requirement would include that Wika would have to admit his guilt by admitting that he sexually violated the bodies of his granddaughters. Further, the first lawyer never discovered the specific ramifications of the counseling by questioning the court services officer or the Southeastern Mental Health Center’s Sexual Offender group which is located at Sioux Falls, South Da*636kota. I certainly appreciate that no defendant is entitled to a perfect lawyer nor to a perfect defense. However, in this case, in order to satisfy a knowing and voluntary plea, Wika should have known, when he entered the plea, that down the road he would have to admit his guilt.

It appears to me, from reviewing this case, that the sole motivating factor to entering the nolo contendere plea was that Wika would never have to admit guilt. In carefully reviewing these briefs, my conclusion is that the State of South Dakota has never disputed or challenged, by its brief, the sole motivating factor on entering and receiving a nolo contendere plea. According to the motion hearings transcript, at pages 27-29, it was precisely because the first lawyer knew that Wika refused to acknowledge guilt, that the nolo contendere was tendered as a part of the plea offer by the State of South Dakota. Little did Wika know that later, he would have to acknowledge his guilt in open meetings, before convicted sex offenders, and that, if he refused to do so, he would be terminated from the counseling sessions and would face a revocation of his probation.

So adamant was he concerning his innocence, and so stricken by conclusion that his lawyer and the judicial system had done him in on a plea bargain, he refused to be “cooperative” at the counseling sessions, i.e., he would refuse to admit his guilt and refuse to participate in discussions which would require him to admit to molesting his granddaughters. This record shows that his first lawyer, the trial-level lawyer, absolutely knew that, just minutes before the entry of the nolo contendere plea, defendant was maintaining, with gusto, his innocence and was questioning whether he should enter a nolo contendere plea.

I certainly agree that this case must be decided upon the phraseology of SDCL 23A-27-11. In State v. Bolger, 332 N.W.2d 718, 720 (S.D.1983), this Court indicated the scope of review concerning the very type of case before us; we stated we would “look at the totality of the circumstances to determine whether a [no contest] plea was made knowingly and voluntarily.” If we deduce that Wika’s plea was involuntary, then we must, perforce, conclude that there is a “manifest injustice” under SDCL 23A-27-11. In my opinion, Wika’s nolo contendere plea was neither knowing nor voluntary simply because it was a completely mistaken understanding of the plea agreement. Surely, if his plea of nolo con-tendere was made with the understanding that he would not have to admit guilt, the probation terms requiring him to admit his guilt are 100% in conflict. A fundamental promise of the plea bargain was broken without his knowledge because his first lawyer did not explain that he would have to admit these deeds in counseling sessions. This case falls squarely within the four corners of the plea agreement which was stricken by this Court in State v. Lohnes, 344 N.W.2d 686 (S.D.1984). In Lohnes, the trial court refused to permit Lohnes to withdraw his plea, even though he made this request based upon a sentence of 347 years when he had received a promise that he would not be sentenced to life in prison. In reversing, we held that Lohnes “could reasonably have understood” that the plea agreement foreclosed a 347 year sentence. Using the rationale of Lohnes, my leap of legal logic is that Wika was entitled to a reasonable understanding that he would never have to admit to the acts of which he was accused.

In closing, I am not disparaging the entire legal defense strategy of the first lawyer. I am expressing that under the totality of the circumstances, the plea of nolo contendere herein by Wika was not knowingly and voluntarily entered. Wika should have been permitted to withdraw his plea and, therefore, I respectfully dissent. This would afford him the right to a jury trial.