
    2007 SD 29
    STATE of South Dakota, Plaintiff and Appellee, v. Raymond A. ANDREWS, Defendant and Appellant.
    No. 24100.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2006.
    Decided March 14, 2007.
    
      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for plaintiff and appellee.
    Robin M. Eich, Eich Law Office, Parker, for defendant and appellant.
   PER CURIAM.

[¶ 1.] Raymond Andrews appeals his conviction for operating a boat with 0.08% or more by weight of alcohol in his blood. He challenges the constitutionality of the statute making this conduct a criminal offense. We affirm because he has failed to preserve this issue for appellate review.

FACTS

[¶2.] In September 2005 Andrews was charged with alternative counts of operating a boat while under the influence of alcohol or with 0.08% or more by weight of alcohol in his blood. Andrews initially pled not guilty and requested a jury trial. Jury selection began on January 18, 2006. During voir dire, a question apparently arose over how the trial court intended to instruct the jury on the issue of the “operation” of a boat. After an in-chambers discussion of the issue between the court and counsel, Andrews elected to enter a guilty plea to the charge of operating a boat with 0.08% or more by weight of alcohol in his blood. He was sentenced to 90 days in the county jail and a $500 fine. Both the fine and jail time were suspended on various terms and conditions including payment of costs and court appointed attorney’s fees.

[¶ 3.] Andrews was convicted under SDCL 42-8-45(1), which provides:

No person may operate a boat while underway on the public waters of the state while:
(1) There is 0.08 percent or more by weight of alcohol in that person’s blood as shown by chemical analysis of that person’s breath, blood, or other bodily substance;
Any violation of this section is a Class 1 misdemeanor.

(Emphasis added.) The operation of a boat under this statute is defined as “to navigate or otherwise use a boat[.]” SDCL 42-8-2(4)(emphasis added). Andrews argues that these statutes are unconstitutionally overbroad and vague because the emphasized language could be construed to apply to a passenger’s use of, a boat, and no reasonable person would expect such conduct to constitute a crime.

[¶4.] Before we may address Andrews’ argument, we must first determine the effect of his plea of guilty. It is “ ‘the general rule that a voluntary and intelligent plea of guilty waives a defendant’s right to appeal all nonjurisdictional defects in the prior proceedings.’ ” State v. Hoeft, 1999 SD 24, ¶ 12, 594 N.W.2d 323, 326 (quoting State v. Cowley, 408 N.W.2d 758, 759 (S.D.1987)). In State v. Grosh, 387 N.W.2d 503, 507 (S.D.1986), this Court, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973), explained:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea ...

[¶ 5.] There is, however, an exception to this general rule of waiver. As explained in Weisberg v. State of Minnesota, 29 F.3d 1271, 1279-1280 (8th Cir.1994):

[a]s a general rule, “[a] defendant’s knowing and intelligent guilty plea forecloses ‘independent claims relating to the deprivation of constitutional rights that occurred before the entry of the guilty plea.’ ” United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir.[1994]) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973)), cert. denied, Vaughan v. U.S., 511 U.S. 1094, 114 S.Ct. 1858, 128 L.Ed.2d 481 (U.S. 1994). There are exceptions to this rule, however; a person may, despite a valid guilty plea, pursue a certain type of claim that has been variously defined as a claim that attacks “the State’s power to bring any indictment at all,” United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989), that protects a defendant’s “right not to be haled into court,” Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2104, 40 L.Ed.2d 628 (1974), and that “the charge is one which the State may not constitutionally prosecute,” Menna v. New York, 423 U.S. 61, 62-63 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975) (per curiam).

This exception was further explained in U.S. v. Morgan, 230 F.3d 1067, 1071 (8th Cir.2000):

A claim that a statute is facially unconstitutional falls within the exception. See Sodders v. Parratt, 693 F.2d 811, 812 (8th Cir.1982) (holding guilty plea does not foreclose attack on constitutionality of criminal statute under which defendant was charged-defendant claimed statute was vague on its face); United States v. Johnston, 199 F.3d 1015, 1019 n. 3 (9th Cir.1999). [However, n]o court has applied the exception to a claim, like [appellant’s], that a statute is unconstitutional as applied. See Johnston, 199 F.3d at 1019 n. 3.

Therefore, under this exception, while a guilty plea waives a claim that a statute is unconstitutional as applied, it does not waive a claim that a statute is facially unconstitutional.

[¶ 6.] “A ‘facial’ challenge, in this context, means a claim that the law is ‘invalid in toto — and therefore incapable of any valid application.’ ” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982)(quoting Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974)).

In examining a facial challenge, [a] court must first “determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” Hoffman Estates, 455 U.S. at 494, 102 S.Ct. 1186, 71 L.Ed.2d 362. Where the enactment does not reach constitutionally protected conduct, “the overbreadth challenge must fail[,]” id., and the complainant may succeed in a vagueness challenge “only if the enactment is im-permissibly vague in all of its applications.” Id. at 495, 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362. Pursuing this line of analysis, the Supreme Court cautioned courts to “examine the complainant’s conduct before analyzing other hypothetical applications of the law[,]” id, because “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to ... others.” Id. Therefore, “vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.” United States v. Nadi 996 F.2d 548, 550 (2d Cir.1993) (citing Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991)).

Woodis v. Westark Community College, 160 F.3d 435, 438-39 (8th Cir.1998).

[¶ 7.] SDCL 42-8-45(1) does not reach constitutionally protected activities such as speech. Moreover, because the statute not only prohibits the use, but also the navigation of a boat, it cannot be said that it is impermissibly vague in all applications. After all, no citation of authority is necessary to sustain the proposition that the State may validly prohibit the navigation or operation of boats and motor vehicles in public places while impaired. Therefore, Andrews has no viable claim of facial unconstitutionality. This leaves him with the sole claim that the statutes are unconstitutional as applied. However, as noted above, “as applied” claims are waived by the entry of a guilty plea.

[¶ 8.] We also observe that even if Andrews’ “as applied” challenge had not been waived by his plea, he waived it by failing to present an adequate factual record of the conduct at issue. In analyzing as applied challenges, a court must examine the complainant’s conduct and the specific facts of the case at hand. See Woodis, supra. That is not possible here. Because Andrews entered a guilty plea, the record of his conduct and the specific facts of the case would generally be confined to the factual basis entered for his plea. See McCarthy v. U.S., 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969)(cited in State v. Lashwood, 384 N.W.2d 319, 322 (S.D.1986))(factual basis rule requires judge to determine that conduct which defendant admits constitutes the offense charged). However, the factual basis for Andrews’ plea has not been included as a part of the settled record, for appeal. Other than Andrews’ counsel’s statements in voir dire, the only thing the record indicates is that Andrews was initially arrested as the “driver” of the boat.

[¶ 9.] This Court has repeatedly instructed that the party claiming error carries the responsibility of ensuring an adequate record for review. State v. Cates, 2001 SD 99, ¶ 18, 632 N.W.2d 28, 36. When confronted with an incomplete record, this Court presumes that the trial court acted properly. Id. “Without an adequate record, any claim of alleged error fails.” MBNA America Bank, N.A. v. Credit, 281 Kan. 655, 132 P.3d 898, 900 (2006).

[¶ 10.] Based upon the foregoing, Andrews’ “as applied” challenge was waived by his guilty plea, and even if it was not, his challenge fails for lack of an adequate record for review.

[¶ 11.] Affirmed.

[¶ 12.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating. 
      
      . The trial court offered Andrews the following alternatives to preserve his legal argument: "I would reject [Andrews' proposed] instruction and you could protect the record on a plea so that would be appealable. Or we could do a trial before the Court, if you want to do it that way, and stipulated facts.” Andrews apparently declined these opportunities and simply pleaded guilty.
     
      
      . See also Balk v. Martin, 136 Idaho 652, 39 P.3d 592, 600 (2001)(absent adequate record on appeal to support appellant's claims, court will not presume error); Foutch v. O'Bryant, 99 Ill.2d 389, 76 Ill.Dec. 823, 459 N.E.2d 958, 959 (1984)(absent complete record to support claim of error it will be presumed that order entered by trial court was in conformity with the law and had a sufficient factual basis); Stallings v. State, 508 N.E.2d 550, 552 (Ind. 1987)(it is appellant's duty to present adequate record showing alleged error and, where he fails to do so, the issue is deemed waived); Your Home, Inc. v. City of Portland, 432 A.2d 1250, 1254 (Me.1981)(appeal must be denied if appellant has not presented an adequate record for review); Barak v. Quisenberry Law Firm, 135 Cal.App.4th 654, 37 Cal. Rptr.3d 688, 692 (2006)(failure to provide adequate record on issue requires that issue be resolved against appellant); Nelson v. Schubert, 98 Wash.App. 754, 994 P.2d 225, 231 (2000)(appellant has burden of presenting adequate record, and bears consequence of court's inability to conduct full review, which is rejection of his challenge).
     