
    2014 S.D. 5
    Carlos GARCIA, Plaintiff and Appellant, v. STATE of South Dakota, Defendant and Appellee.
    No. 26745.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 14, 2014.
    Decided Feb. 5, 2014.
    
      Paul Eisenbraun of Grey Law, Prof. LLC, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Marty J. Jackley, Attorney General, Matt Naasz, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] In 2018, Carlos Garcia petitioned for a writ of error coram nobis, seeking to vacate a 2001 criminal conviction. He argued that the conviction was invalid because he pleaded guilty without being given Padilla and Boykin advisements. The circuit court granted summary judgment in favor of the State. Garcia appeals. We affirm.

Facts and Procedural History

[¶ 2.] Carlos Garcia is a Honduran national. He has lived in the United States since 1987. In 2001, Garcia pleaded guilty to a felony in South Dakota. He received a four-year suspended sentence. Currently, Garcia is involved in removal and deportation proceedings that are based on his 2001 conviction.

[¶ 3.] During his arraignment in 2001, Garcia was fully advised by the circuit court of his rights, including his right to a jury trial, his right to confront and cross-examine the witnesses against him, and his right against self-incrimination. He was asked if he understood those rights — he responded that he did. Garcia was then advised of his charges and the different pleas available to him. As part of the advisement, the court explained that a guilty plea would waive the rights that Garcia had just been advised of. Garcia pleaded not guilty.

[¶ 4.] Twenty-one days later, at a change-of-plea hearing, Garcia pleaded guilty. During this hearing, the circuit court did not repeat the advisement given at the arraignment. The court did, however, ask Garcia whether “anybody threatened or promised [him] anything to get [him] to enter the plea of guilty[.]” He responded no. The court accepted Garcia’s guilty plea, found him guilty, and entered its sentence. Prior to his 2001 plea, Garcia’s counsel had not advised Garcia of the possible deportation consequences of a guilty plea.

[¶ 5.] In 2013, Garcia filed a petition for a writ of error coram nobis, seeking to vacate his 2001 conviction. He argued that the conviction was invalid because he pleaded guilty without being given Padilla and Boykin advisements. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The State moved for summary judgment, which the circuit court granted. Garcia appeals.

Decision

[¶ 6.] Garcia argues that the circuit court erred in denying coram nobis relief. We have strictly limited the nature of the claims that are reviewable under coram nobis. Coram nobis is not “merely another avenue of appeal[.]” In re Brockmueller, 374 N.W.2d 135, 139 (S.D.1985).

[It] is limited to reviewing a criminal conviction respecting some error in fact (or fundamental jurisdictional error), as opposed to an ordinary error in law, that without the fault of the petitioner was unknown at the time of the questioned proceedings, or unrevealed because of fraud or coercion, without which the judgment would not have been entered, and for which there is no other available remedy.

Gregory v. Class, 1998 S.D. 106, ¶ 18, 584 N.W.2d 873, 878 (citations omitted). It is only “the rare case ... in which coram nobis will be recognized as the appropriate remedy.” In re Brockmueller, 374 N.W.2d at 139; see also Gregory, 1998 S.D. 106, ¶ 19, 584 N.W.2d at 879 (“[T]he scope of coram nobis has receded with the advent of statutory remedies such as habeas corpus.”).

Padilla

[¶ 7.] Garcia first asserts an ineffective-assistance-of-counsel claim. He argues that his 2001 conviction was invalid because he was not advised by his attorney of the risk of deportation arising from a guilty plea. See Padilla, 559 U.S. at 374, 130 S.Ct. at 1486 (holding that the Sixth Amendment of the United States Constitution requires a criminal defense attorney to “inform her client whether his plea carries a risk of deportation”). However, even if Garcia received ineffective assistance of counsel, his request for coram nobis relief fails for two reasons.

[¶ 8.] First, ineffective-assistance claims are not cognizable under coram no-bis because the ultimate issue is a legal question. See Gregory, 1998 S.D. 106, ¶¶ 18, 25, 584 N.W.2d at 878, 880 (limiting coram nobis relief, in part, “to reviewing a criminal conviction respecting some error in fact (or fundamental jurisdictional error), as opposed to an ordinary error in law[;]” and noting that “ineffective assistance claims are not usually cognizable in coram nobis proceedings”); see also State v. Tejeda-Acosta, — S.W.3d - (Ark.2013) (holding that a claim of ineffective assistance of counsel, based on Padilla, was “outside the purview of a coram-nobis proceeding”); People v. Kim, 45 Cal.4th 1078, 90 Cal.Rptr.3d 355, 202 P.3d 436, 454 (2009) (explaining “[t]hat a claim of ineffective assistance of counsel, which relates more to a mistake of law than of fact, is an inappropriate ground for relief on coram nobis ”); State v. Diaz, 283 Neb. 414, 808 N.W.2d 891, 896 (2012) (holding that the defendant’s ineffective-assistance claim, based on Padilla, was a question of law, “not cognizable under a writ of error co-ram nobis ”); Trujillo v. State, 310 P.3d 594, 602 (Nev.2013) (holding that an ineffective-assistance claim, based on Padilla, was not within the limited scope of the common-law writ of comm nobis because the ultimate issue is a legal question); cf. In re Brockmueller, 374 N.W.2d at 141 (“Since the issue raised here is lack of knowledge of the legal effect of [a case decided after conviction], and not lack of knowledge of any fact or facts, ... [c]oram [n]obis will not lie”) (Wuest, Acting J., dissenting) (Fosheim, C.J., joining in dissent).

[¶ 9.] Second, even if coram nobis relief were available to remedy ineffective-assistance claims, Garcia has no ineffective-assistance claim based on Padilla. It is now settled that we do “not apply the United States Supreme Court’s decision in Padilla retroactively to cases that were decided prior to Padilla.” State v. Garcia, 2013 S.D. 46, ¶ 27, 834 N.W.2d 821, 826. Because Garcia’s conviction became final prior to Padilla, Garcia cannot benefit from its holding in this proceeding.

Boykin

[¶ 10.] Garcia also seeks coram nobis relief on the theory that, at his change-of-plea hearing, the circuit court failed to advise him of his Boykin rights — i.e., his right to a jury trial, his right to confront his accusers, and his privilege against compulsory self-incrimination — and of the resulting waiver of those rights if he pleaded guilty. In effect, Garcia claims that because the circuit court did not repeat its Boykin canvassing at the change-of-plea hearing, Boykin was violated. Garcia’s co-ram nobis claim fails for three reasons.

[¶ 11.] First, coram nobis is not available to remedy a Boykin violation. Garcia’s claimed error, if true, is neither an “error in fact” nor a “fundamental jurisdictional error.” See Gregory, 1998 S.D. 106, ¶ 18, 584 N.W.2d at 878. Instead, as Garcia acknowledges, a Boykin violation involves a legal error. Therefore, coram nobis is unavailable. State v. Wilson, 194 Neb. 587, 234 N.W.2d 208, 210 (1975) (“[S]ince any alleged failure of the District Court to properly inform the [defendant] of his constitutional rights would clearly be an error of law, a writ of error coram nobis is not the appropriate remedy.”).

[¶ 12.] Second, Boykin was decided before Garcia pleaded guilty. Therefore, any claimed Boykin violation could have been raised by Garcia while he was subjected to the restraints of his sentence (or before it was imposed). See SDCL 23A-27-11 (“Time for withdrawal of plea of guilty or nolo contendere”); see also State v. Olson, 2012 S.D. 55, 816 N.W.2d 880; State v. Goodwin, 2004 S.D. 75, 681 N.W.2d 847. And “issues ... that could have been previously asserted cannot serve as a basis for coram nobis relief.” Gregory, 1998 S.D. 106, ¶ 1, 584 N.W.2d at 875; see also id. ¶ 21 (“Petitioners for coram nobis relief must show that the matters on which they rely were not known to them and could not in the exercise of diligence have been discovered at an earlier time.”); Kim, 90 Cal.Rptr.3d 355, 202 P.3d at 447 (“A writ of [error] coram nobis is not available where the defendant had a remedy by (a) appeal or (b) motion for new trial and failed to avail himself of such remedies.” (alteration in original) (citations omitted)); Trujillo, 310 P.3d at 601-02 (holding “that any error that was reasonably available to be raised while the petitioner was in custody is waived, and it is the petitioner’s burden on the face of his petition to demonstrate that he could not have reasonably raised his claims during the time he was in custody”).

[¶ 13.] Finally, Garcia’s Boykin claim fails even if we were to expand the scope of coram nobis to include Boykin violations and ignore Garcia’s failure to raise the issue in an earlier proceeding. Garcia’s claim fails because the record indicates that he knowingly and voluntarily relinquished his Boykin rights.

[¶ 14.] Boykin requires that before a defendant pleads guilty, he “be advised of his rights relating to self-incrimination, trial by jury, and confrontation,” and “that [he] intentionally relinquish or abandon known rights.” State v. Smith, 2013 S.D. 79, ¶ 8, 840 N.W.2d 117, 120 (quoting Monette, 2009 S.D. 77, ¶ 10, 771 N.W.2d at 924 (citing Boykin, 395 U.S. at 243 n. 5, 89 S.Ct. at 1712 n. 5)). Garcia claims that the twenty-one-day gap between his Boykin advisement and his guilty plea rendered his plea constitutionally flawed. Our cases do not support his claim.

[¶ 15.] “Under our precedent, this time span alone does not constitute a deprivation of constitutional rights.” Monette, 2009 S.D. 77, ¶ 14, 771 N.W.2d at 926 (citations omitted). We have approved intervals between a Boykin canvassing and a subsequent guilty plea that exceeded twenty-one days. See Stacey v. State, 349 N.W.2d 439, 441-42 (S.D.1984) (thirty days); Clark v. State, 294 N.W.2d 916, 919-20 (S.D.1980) (twenty-six days). Instead of focusing solely on time intervals, when there has been some Boykin canvassing, “[w]e look to the totality of the circumstances [to ascertain] whether a plea was made knowingly and voluntarily.” Olson, 2012 S.D. 55, ¶ 20, 816 N.W.2d at 836 (quoting State v. Beckley, 2007 S.D. 122, ¶ 14, 742 N.W.2d 841, 846) (internal quotation marks omitted). In examining the totality of the circumstances, while we do consider the time between a Boykin advisement and a guilty plea, we also consider “the defendant’s age; his prior criminal record; [and] whether he is represented by counself.]” Id. (quoting Beckley, 2007 S.D. 122, ¶ 14, 742 N.W.2d at 846). Tellingly, Garcia does not address these relevant considerations.

[¶ 16.] Considering the relevant facts, Garcia’s Boykin claim fails because the record indicates that he knowingly and voluntarily relinquished his constitutional rights. At his arraignment, Garcia was fully advised of, and acknowledged that he understood, his Boykin rights. The court also explained that a guilty plea would waive those rights. Twenty-one days later, at his change-of-plea hearing, Garcia intentionally relinquished those rights when he pleaded guilty. After inquiry from the court, Garcia confirmed that his guilty plea was being entered free of threats or promises. Moreover, throughout both hearings, he was represented by counsel, and nothing in the record suggests that Garcia’s age or criminal record adversely affected a knowing and voluntary guilty plea. Consequently, even if coram nobis relief were available to remedy a Boykin violation, Garcia has no right to relief because the record indicates that he knowingly and voluntarily relinquished his Boykin rights.

[¶ 17.] Because coram nobis is unavailable to remedy Garcia’s claimed Padilla and Boykin violations, the circuit court did not err in granting the State’s motion for summary judgment.

[IT 18.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur. 
      
      . This is Garcia's first postconviction challenge to his 2001 conviction.
     
      
      . On appeal from a grant of summary judgment, we “determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.” Hass v. Wentzlaff, 2012 S.D. 50, ¶ 11, 816 N.W.2d 96, 101 (quoting Saathoff v. Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804). Garcia did not object to the State's Statement of Undisputed Material Facts. Therefore, we determine whether, under those facts, the State was entitled to summary judgment as a matter of law.
     
      
      . In some habeas corpus proceedings, we have stated that violations of a defendant’s constitutional rights may be considered a jurisdictional error. See, e.g., Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923. This language is inapplicable in a coram nobis proceeding. The "jurisdictional” errors cognizable in coram nobis are limited to errors such as lack of subject matter jurisdiction. See In re Brockmueller, 374 N.W.2d at 136-37, 139 (vacating a felony DUI conviction because the underlying DUI convictions had been vacated for lack of subject matter jurisdiction). Thus, although coram nobis was available as a limited remedy in In re Brock-mueller, we specifically cautioned "that our holding should not be construed as equating the writ of error coram nobis with the broader remedies formerly encompassed within the Uniform Post Conviction Procedure Act and now encompassed within our habeas corpus statutes.” Id. at 139.
      In this case, we need not delineate the jurisdictional errors that could be cognizable in coram nobis, though we note that "any number of constitutional claims cannot be vindicated on coram nobis." See Kim, 90 Cal.Rptr.3d 355, 202 P.3d at 448 (noting that the following constitutional claims are not cognizable in coram nobis: unconstitutional sentences, double jeopardy, ineffective assistance of counsel, and improper admission of evidence); see also Gregory, 1998 S.D. 106, ¶¶ 21, 25-26, 584 N.W.2d at 879-80 (rejecting availability of coram nobis to remedy claims involving defective informations, ineffective assistance of counsel, and cruel and unusual punishment).
     
      
      . Like a claimed Padilla violation, a claimed Boykin violation ultimately relates more to a mistake of law than fact. See Stuck v. Leapley, 473 N.W.2d 476, 479 n. 4 (S.D.1991) ("[Tjhe legal validity of a prior conviction under Boykin is a question of law or at least a mixed question of fact and law to be resolved by the trial court.” (citation omitted)); see also United States v. Hernandez, 234 F.3d 252, 254 (5th Cir.2000) ("The validity of a guilty plea is a question of law we review de novo.” (citation omitted)); Cunningham v. Diesslin, 92 F.3d 1054, 1060 (10th Cir.1996) ("Whether a defendant entered a knowing and voluntary guilty plea presents a question of law which this court reviews de novo.” (citations omitted)).
     
      
      . Garcia only addresses the time-interval factor. He implicitly claims that a per se Boykin violation occurs if a court fails to give a Boykin advisement at the same hearing where the guilty plea is entered.
     
      
      . Because Garcia’s claimed Padilla and Boy-kin violations do not warrant coram nobis relief, we do not address the circuit court’s ruling on laches.
     