SPENCER LACROIX v. BRENT FLUKE, Warden, Mike Durfee State Prison

<center><font color="red"><h2><fontcolor="red> Pierre, SD - Criminal Defense lawyer represented defendant with a first-degree rape of a child under thirteen years of age charge. </h2></font></b></i></font></center></center><br>
<center><font color="red"><h1>Child Sexual Predator </h1></font></center><br>
<br>
In 2002, LaCroix lived near Watertown, South Dakota, with his wife <br>
and, at that time, only daughter, C.L., born January 21, 1992.1 C.L. turned ten<br>
years of age on January 21, 2002. When C.L. was age 26, she reported to law <br>
enforcement that LaCroix had raped her orally and vaginally from the time she was <br>
four years of age into her adulthood. In describing the abuse that occurred, C.L. <br>
recounted to law enforcement the details of incidents in 2000 through 2018. During <br>
law enforcement's interview with LaCroix about the allegations, LaCroix made <br>
some limited admissions regarding the offenses.2<br>
[¶3.] In 2018, a Codington County grand jury indicted LaCroix for five <br>
counts of sexual abuse, three involving C.L.3 On April 5, 2019, LaCroix filed a <br>
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(. . . continued)<br>
sexual evaluation which is the source used by the State to outline many of <br>
the facts of the case.<br>
2. Because the police reports are not in the record, some of the background <br>
information recounted in this opinion comes from the psycho-sexual report. <br>
The evaluator asked LaCroix about text messages referenced in the police <br>
reports that LaCroix told law enforcement were from a person using his <br>
phone to solicit sexual favors from his daughter. He denied knowledge of the <br>
texts claiming his phone had been "hacked.” During the evaluation, LaCroix <br>
also denied sexually abusing his minor daughters but did admit having been <br>
"an unwilling participant” in sexual acts with C.L., claiming she sexually <br>
abused him on one occasion when he was intoxicated.<br>
LaCroix also maintained his innocence in a statement submitted for the PSI, <br>
asserting that he had no memory of the incident in 2002 because he was <br>
intoxicated when it happened. Additionally, he asserted the incident could <br>
not have happened in 2002 because he was living in Sioux Falls under strict <br>
parole supervision after receiving a penitentiary sentence in 2000 for <br>
committing child abuse against C.L. It appears from the record that LaCroix <br>
had been released from the penitentiary and placed on parole in 2001.<br>
3. The indictment charged offenses against C.L. in Counts 1–3 to wit: count 1—<br>
first-degree rape stemming from an incident "on or about April 13, 2000” in <br>
violation of SDCL 22-22-1(1) (Class C felony); count 2—first-degree rape <br>
stemming from an incident "on or about January through December 2002” in <br>
violation of SDCL 22-22-1(1) (Class C felony); and count 3—sexual contact <br>
without consent due to acts committed "on or about May–June, 2018” in <br>
(continued . . .)<br>
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motion to dismiss the first-degree rape charges in counts 1 and 2. LaCroix made <br>
two challenges to count 2, which alleged an act of first-degree rape of C.L. occurring <br>
between January and December of 2002. First, he claimed that the indictment did <br>
not "describe a public offense” because the provisions of the specific statute in place <br>
in 2002 criminalized sexual penetration of a child under ten years of age and C.L. <br>
was ten years of age when LaCroix committed the alleged acts. Additionally, <br>
LaCroix argued that the charges were barred by the statute of limitations because <br>
the controlling statute required the charges to be filed before the victim was 25 <br>
years old or within seven years of the commission of the crime, whichever is longer, <br>
and C.L. was 26 at the time the charges were filed.<br>
[¶4.] LaCroix's motion to dismiss contained a notice of hearing, indicating <br>
that the matter would be heard by the court on April 17. However, there is no <br>
indication in the record that the April 17 hearing occurred or that LaCroix's <br>
challenges were resolved. Instead, on April 23, 2019, LaCroix signed a written plea <br>
agreement and waiver of rights wherein he agreed to plead nolo contendere to <br>
counts 2 and 3 of the indictment. In return, the State agreed to dismiss the <br>
remaining counts and refrain from bringing new charges in connection with its <br>
ongoing investigation. The State agreed to cap its sentencing recommendation at <br>
25 years, and the agreement stated that the court had agreed to impose a sentence <br>
within this cap. As part of the agreement, LaCroix agreed to waive a non-<br>
________________________<br>
(. . . continued)<br>
violation of SDCL 22-22-7.4 (Class 1 misdemeanor). Counts 4 and 5 involved <br>
crimes against C.L.'s sister, S.L., and are not at issue here.<br>
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exhaustive list of constitutional and statutory rights. The factual basis for the plea <br>
was not referenced or set forth in the agreement.<br>
[¶5.] The day after LaCroix signed the agreement, the circuit court <br>
rearraigned LaCroix, and he pled nolo contendere to counts 2 and 3 pursuant to the <br>
terms of the agreement. The record does not contain a transcript of this hearing. <br>
The judgment of conviction reflects that the court found that LaCroix was regularly <br>
held to answer and represented by counsel, that his pleas were knowing, voluntary, <br>
and intelligent, and that a factual basis existed to support the pleas. The court <br>
ordered a PSI report and psycho-sexual evaluation prior to sentencing.<br>
[¶6.] LaCroix appeared before the court for sentencing on July 31, 2019. <br>
The court sentenced LaCroix on count 2 (first-degree rape) to serve 25 years in the <br>
state penitentiary with five years suspended and payment of fines, fees, and costs. <br>
On count 3 (misdemeanor sexual contact without consent), the court imposed a oneyear suspended jail sentence in the Codington County Detention Center.4 LaCroix <br>
did not file a direct appeal.<br>
[¶7.] However, shortly thereafter, LaCroix filed a request for court <br>
appointed counsel and a pro se application for a writ of habeas corpus, asserting <br>
that he was denied effective assistance of counsel. The circuit court granted <br>
LaCroix's request and appointed habeas counsel who assisted LaCroix in filing an <br>
amended application.5 In the amended application, LaCroix claimed that his <br>
4. LaCroix does not challenge the validity of his conviction for count 3.<br>
5. Appellate counsel herein did not represent LaCroix in the underlying <br>
criminal case.<br>
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conduct alleged in count 2 of the indictment could not have violated the version of <br>
SDCL 22-22-1(1) in effect during the timeframe of his alleged acts because the <br>
statute required the victim to be under ten years of age and C.L. was ten years or <br>
older when the alleged sexual penetration occurred.6 In LaCroix's view, he "was <br>
charged and pled guilty to a crime that wasn't a crime at the time it was committed <br>
and was sentenced for the same.” He further asserted that the charges were barred <br>
by the statute of limitations because the charges were filed when C.L. was 26 years <br>
old and SDCL 22-22-1 required that the charges be filed within seven years of the <br>
offense date or prior to the time the victim turns 25 years of age. In support of his <br>
argument that his conviction should be vacated, LaCroix's amended application <br>
cited the grounds for dismissal of an indictment set forth in SDCL 23A-8-2(5) and <br>
(6)7 and the law governing unconstitutional ex post facto violations.<br>
[¶8.] After ordering the parties to brief the legal issues, the court issued a <br>
memorandum opinion on November 9, 2020, denying LaCroix's habeas application. <br>
The court characterized LaCroix's habeas argument as asserting only "that his <br>
constitutional rights were violated by the ex post facto application of SDCL § 22-22-<br>
1.” The court determined that LaCroix was not challenging the circuit court's <br>
6. Compare SDCL 22-22-1(1) (2000) ("Rape is an act of sexual penetration <br>
accomplished with any person . . . [i]f the victim is less than ten years of <br>
age[.]” (emphasis added)), with SDCL 22-22-1 (2012) ("Rape is an act of <br>
sexual penetration accomplished with any person . . . [i]f the victim is less <br>
than thirteen years of age[.]” (emphasis added)).<br>
7. SDCL 23A-8-2 provides that on a defendant's motion, "the court must dismiss <br>
an indictment” upon certain enumerated grounds, including: "(5) [w]hen it <br>
does not describe a public offense”; and "(6) [w]hen it contains matter which, <br>
if true, would constitute a legal justification or excuse of the offense charged, <br>
or other bar to the prosecution[.]”<br>
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jurisdiction and was not claiming that the court's sentence was unauthorized by <br>
law. Rather, in the habeas court's view, LaCroix's claim was non-jurisdictional and <br>
was thus waived "when he voluntarily and knowingly pled” nolo contendere <br>
pursuant to "a negotiated plea agreement with the State.” The court quoted the <br>
following language in the plea agreement setting forth LaCroix's acknowledgements <br>
and waiver of rights:<br>
(1) That [LaCroix] had an opportunity to review the entire <br>
file herein, including the police reports, the Child's Voice <br>
records, the Grand Jury Transcript, the text messages, <br>
and all evidence the State has in its possession as given to <br>
him by his attorney;<br>
(2) That [LaCroix] had sufficient time to visit about his case <br>
with his attorney and is satisfied with the ability and <br>
efforts of his attorney;<br>
(3) That "[b]eing fully aware of his constitutional and <br>
statutory rights, [LaCroix] hereby waives those rights and <br>
enters into this Plea Agreement voluntarily, fully <br>
understanding the nature and consequences of his plea.”<br>
The court held that this waiver precluded habeas relief.<br>
[¶9.] After the court filed its memorandum decision, but before the court <br>
issued its findings of fact and conclusions of law and order, LaCroix petitioned the <br>
habeas court on December 7, 2020, for a certificate of probable cause that an <br>
appealable issue exists.8 The court summarily granted the motion and provided in <br>
an order on December 13, 2020 that LaCroix "may appeal” the issue whether the <br>
"change in SDCL 22-22-1 was an application of an ex post facto law upon” LaCroix. <br>
LaCroix filed a notice of appeal and amended notice of appeal on December 17 and <br>
8. LaCroix's motion for a certificate of probable cause did not identify the <br>
statute of limitations issue as one for which the habeas court should grant <br>
the certificate.<br>
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21, 2020, respectively. The court issued its final order denying LaCroix's amended <br>
application for a writ of habeas corpus and written findings of facts and conclusions <br>
of law on January 4, 2021, incorporating its memorandum decision therein.<br>
[¶10.] LaCroix appeals, asserting that the habeas court erred in dismissing <br>
his amended application for a writ of habeas corpus.<br>
Standard of Review<br>
[¶11.] "The remedy of a writ of habeas corpus is in the nature of a collateral <br>
attack on a final judgment, therefore, our scope of review is limited.” Rhines v. <br>
Weber, 2000 S.D. 19, ¶ 8, 608 N.W.2d 303, 306 (cleaned up). "Habeas corpus is not a <br>
substitute for direct review . . . . The habeas petitioner has the initial burden to <br>
prove by a preponderance of the evidence that he is entitled to relief.” Id. ¶ 9, 608 <br>
N.W.2d at 306 (citation omitted). "We review only (1) whether the court had <br>
jurisdiction of the crime and the person of the defendant; (2) whether the sentence <br>
was authorized by law; and (3) in certain cases whether an incarcerated defendant <br>
has been deprived of basic constitutional rights.” Iannarelli v. Young, 2017 S.D. 71, <br>
¶ 18, 904 N.W.2d 82, 87 (cleaned up). "[T]his Court reviews a habeas court's factual <br>
findings under the clearly erroneous standard and legal conclusions under the de <br>
novo standard.” Madetzke v. Dooley, 2018 S.D. 38, ¶ 8, 912 N.W.2d 350, 353 <br>
(cleaned up).<br>
Analysis and Decision<br>
Appellate Jurisdiction<br>
[¶12.] The State raises a twofold argument that this Court has no jurisdiction <br>
to hear LaCroix's habeas appeal. First, the State argues that because LaCroix did <br>
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not timely file a motion for a certificate of probable cause (CPC) from a final order <br>
under SDCL 21-27-18.1, this Court has no jurisdiction.9 Second, the State alleges <br>
that because LaCroix did not appeal from a final order, but rather from the habeas <br>
court's memorandum decision, this Court lacks jurisdiction. Because these <br>
arguments are potentially dispositive, we examine them in turn.<br>
Timeliness of Certificate of Probable Cause<br>
[¶13.] The State first argues that because the CPC was filed early, it was <br>
incorrectly filed and does not meet the requirements for a proper CPC under SDCL <br>
21-27-18.1. A motion seeking issuance of a CPC must be filed within thirty days <br>
from the date that a final judgment or order is rendered under SDCL 21-27-18.1. If <br>
9. We have long required the issuance of a CPC in order "to decrease the volume <br>
of frivolous appeals from post-conviction proceedings.” Iannarelli, 2017 S.D. <br>
71, ¶ 19, 904 N.W.2d at 87. Thus, "[r]equiring a certificate of probable cause <br>
creates discretionary appellate review of habeas petitions.” Id. (cleaned up). <br>
"This Court has previously interpreted this statute as jurisdictional.” <br>
Christensen v. Weber, 2007 S.D. 102, ¶ 4, 740 N.W.2d 622, 623.<br>
The requirements for a proper CPC are set forth in SDCL 21-27-18.1, which <br>
include that it be issued by the circuit court judge who rendered the <br>
judgment and that it affirmatively state that an appealable issue exists.<br>
Additionally, the circuit court is required to specifically articulate the <br>
probable cause supporting the certificate "in order to confer jurisdiction upon <br>
this Court to review the denial of a habeas corpus petition.” Iannarelli, 2017 <br>
S.D. 71, ¶ 19, 904 N.W.2d at 87 (quoting Lange v. Weber, 1999 S.D. 138, ¶ 12, <br>
602 N.W.2d 273, 276). This means that the CPC must set forth "a <br>
substantial showing of the denial of a constitutional right” and "must indicate <br>
which specific issue or issues satisfy the showing of the denial of a <br>
constitutional right.” Id. (quoting Lange, 1999 S.D. 138, ¶ 12, 602 N.W.2d at <br>
276). "A 'substantial showing' is a showing that reasonable jurists could <br>
debate whether (or, for that matter, agree that) the petition should have been <br>
resolved in a different manner or that the issues presented were adequate to <br>
deserve encouragement to proceed further.” Ashley v. Young, 2014 S.D. 66, ¶ <br>
10, 854 N.W.2d 347, 350 (cleaned up).<br>
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the motion is filed beyond thirty days from the date of entry of a final judgment or <br>
order, this Court does not have jurisdiction over the appeal. Christensen v. Weber, <br>
2007 S.D. 102, ¶ 8, 740 N.W.2d 622, 624.<br>
[¶14.] Here, LaCroix filed his motion seeking the CPC on December 7, 2020, <br>
following the issuance of the habeas court's memorandum decision, which was filed <br>
on November 9, 2020. The State did not object to LaCroix's motion for the CPC on <br>
the ground that it was prematurely filed. The habeas court issued the CPC on <br>
December 13, 2020, allowing LaCroix to appeal the sole issue of whether the change <br>
in SDCL 22-22-1 in 2012 created a situation in which he was subjected to an ex post <br>
facto law. LaCroix then filed his notice of appeal on December 17, 2020. <br>
Subsequently, on January 4, 2021, the habeas court entered its findings of fact, <br>
conclusions of law, final judgment, and order denying habeas relief. Notably, this <br>
occurred after LaCroix's motion seeking the CPC and the filing of LaCroix's notice <br>
of appeal.<br>
[¶15.] This fact pattern falls within the parameters of SDCL 21-27-18.1 for <br>
purposes of providing this Court with jurisdiction. The habeas court did issue a <br>
CPC stating that an appealable issue existed. The requirement that the motion <br>
seeking issuance of the CPC be made within thirty days from the date of the final <br>
judgment or order is a deadline, meaning that it is "a cutoff date for some action.” <br>
Deadline, Black's Law Dictionary (11th ed.); see Flowers v. Weber, 2014 S.D. 12, ¶ 3, <br>
844 N.W.2d 363, 363. The thirty-day deadline begins ticking when the final <br>
judgment or order is entered and ends after thirty days have passed from the entry <br>
of the final judgment or order. Failure to move for a CPC within thirty days from <br>
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the entry of the final judgment or order deprives this Court of jurisdiction. Flowers, <br>
2014 S.D. 12, ¶ 5, 844 N.W.2d at 364; Christensen, 2007 S.D. 102, ¶ 8, 740 N.W.2d <br>
at 624. Here, LaCroix moved for the CPC prior to the expiration of the thirty-day <br>
deadline, the State did not object to the early filing at the time, and the habeas <br>
court granted the CPC. Although LaCroix's filing was premature, he sufficiently <br>
complied with SDCL 21-27-18.1 to provide this Court with jurisdiction.<br>
Notice of Appeal<br>
[¶16.] Because SDCL 21-27-18.1 is satisfied and this Court has jurisdiction to <br>
hear this appeal in that regard, we next consider the State's argument regarding <br>
LaCroix's notice of appeal. In order to seek review of a final order or decision, an <br>
appellant must file a notice of appeal. SDCL 15-26A-4. Because "the right to an <br>
appeal is purely statutory and no appeal may be taken absent statutory <br>
authorization[,]” compliance with the required notice of appeal is mandatory. See <br>
Burlington N. R. Co. v. Circuit Court, Seventh Judicial Circuit, Fall River Cnty., <br>
497 N.W.2d 440, 442 (S.D. 1993). The Legislature has provided that appeals to this <br>
Court must generally be taken from final judgments. SDCL 15-26A-3. When <br>
pursuing a statutory appeal as a matter of right, "[b]efore the expiration of the time <br>
to appeal, appellant shall file the notice of appeal.” SDCL 15-26A-4.<br>
[¶17.] The State argues that because LaCroix's notice of appeal was filed <br>
before the court entered its final order, he is attempting to appeal an unappealable <br>
memorandum decision. See Jones v. Jones, 334 N.W.2d 492, 494 (S.D. 1983) <br>
(holding that "[the circuit] court's memorandum decision is not reviewable by this <br>
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court”). Therefore, the State argues LaCroix's "appeal results in a nullity and <br>
confers no jurisdiction on this Court[.]”<br>
[¶18.] Despite this contention, SDCL 15-26A-6 specifically provides for the <br>
situation in which a notice of appeal is filed before the entrance of a final order. <br>
SDCL 15-26A-6 provides in relevant part that a "written notice of appeal filed <br>
before the attestation and filing of such signed judgment or order shall be deemed <br>
as filed on the date of the attestation and filing of the judgment or order.” Here, <br>
even though LaCroix incorrectly labeled the court's memorandum decision as a final <br>
order in his notice of appeal, the court later entered a final judgment in the case. <br>
Thus, under the plain language of SDCL 15-26A-6, LaCroix's notice of appeal <br>
carries the same filing date as the court's final judgment. Accordingly, the State's <br>
arguments regarding the notice of appeal are without merit and LaCroix's notice of <br>
appeal is sufficient to invoke this Court's appellate jurisdiction.<br>
Waiver of Rights Through Entry of Plea<br>
[¶19.] LaCroix contends that the habeas court erred in concluding that he <br>
waived his right to challenge his conviction of first-degree rape as alleged in count 2 <br>
of the indictment. In particular, he asserts that because he is challenging "the very <br>
power of the State to bring [him] into court to answer the charge brought against <br>
him[,]” see United States v. Barboa, 777 F.2d 1420, 1423 n.3 (10th Cir. 1985), he did <br>
not, by pleading nolo contendere, waive the right to assert the jurisdictional defect <br>
that the indictment failed to charge a public offense. He further claims that he did <br>
not waive the right to assert that he was "subject to an unconstitutional ex post <br>
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facto law.” In his view, he "was charged and pled guilty to a crime that wasn't a <br>
crime at the time it was committed[.]”<br>
[¶20.] We first address LaCroix's claim that the indictment failed to charge a <br>
public offense because the failure to charge a public offense would have deprived the <br>
circuit court of jurisdiction to act on the charge and accept LaCroix's guilty plea. <br>
See State v. Outka, 2014 S.D. 11, ¶¶ 9–12, 844 N.W.2d 598, 603–04 (concluding that <br>
because the information charged a public offense, the magistrate court had <br>
jurisdiction). As this Court long ago explained, before a court can "act on a criminal <br>
charge[,]” the "court must have personal and subject matter jurisdiction[.]” <br>
Honomichl v. State, 333 N.W.2d 797, 798 (S.D. 1983). We have further concluded <br>
that a defendant can challenge, in a request for post-conviction relief, the circuit <br>
court's jurisdiction to act on a criminal charge. Id. at 798–99. This is because <br>
"[s]ubject matter jurisdiction cannot be conferred by agreement, consent, or waiver” <br>
or be "acquired by estoppel.” Id. Also, "[a] judgment rendered by a court without <br>
jurisdiction to pronounce it is wholly void and without any force or effect whatever.” <br>
State v. Haas, 446 N.W.2d 62, 64 (S.D. 1989); see also State v. Neitge, 2000 S.D. 37, <br>
¶ 9, 607 N.W.2d 258, 260; State v. Smith, 2014 S.D. 15, ¶ 9, 844 N.W.2d 626, 628. <br>
"Whether the circuit court had jurisdiction in this case is a question of law, <br>
reviewable de novo by this Court.” Neitge, 2000 S.D. 37, ¶ 10, 607 N.W.2d at 260.<br>
[¶21.] Count 2 in the indictment alleged that "on or about January through <br>
December 2002,” LaCroix committed "the public offense” of first-degree rape, a Class <br>
C felony, in violation of SDCL 22-22-1(1), "in that said individual did commit an act <br>
of sexual penetration with C.L. who was less than thirteen (13) years of age[.]” <br>
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(Emphasis added.) In 2002, first-degree rape was a crime for which a person could <br>
be prosecuted pursuant to SDCL 22-22-1(1). However, in 2002, the crime defined in <br>
SDCL 22-22-1(1) was classified as a Class 1 felony, not a Class C felony; and the <br>
statute required that the victim be under ten years of age, not less than 13 years of <br>
age.<br>
[¶22.] Nevertheless, the record establishes that C.L. was born on January 21, <br>
1992, which means she was under ten years of age prior to January 21, 2002, a date <br>
within the range of dates alleged in the indictment. Further, a Class C felony <br>
carries the same maximum penitentiary sentence of life in prison as that available <br>
for a Class 1 felony in 2002.10 Because count 2 of the indictment cites the relevant <br>
statute and provides a factual allegation regarding conduct, which if proven, would <br>
establish a first-degree rape under the version of SDCL 22-22-1(1) in effect in 2002, <br>
it alleges a public offense for which LaCroix could be prosecuted. See Outka, 2014 <br>
S.D. 11, ¶ 11, 844 N.W.2d at 603 (determining from the face of the indictment that <br>
it was sufficient to charge a public offense).<br>
[¶23.] The defects in the indictment upon which LaCroix was convicted did <br>
not deprive the circuit court of jurisdiction to enter a judgment against LaCroix for <br>
first-degree rape. As the Court in Outka concluded, neither an error in the citation <br>
of the statute nor a failure to include an element of the offense are jurisdictional <br>
defects. 2014 S.D. 11, ¶¶ 16, 19, 844 N.W.2d at 605. Rather, they are defects that <br>
10. A Class C felony also provides that a fine up to $50,000 can be imposed. In <br>
2002, a person convicted of a Class 1 felony could only be fined up to $25,000. <br>
Here, the circuit court imposed a $250 fine as part of LaCroix's sentence, well <br>
under the maximum allowed for a Class 1 felony in 2002.<br>
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must be raised and resolved prior to trial. Under SDCL 23A-8-3(3), "[d]efenses and <br>
objections based on defects in the indictment” other than a defect that "fails to show <br>
jurisdiction in the court or to charge an offense” "must be raised prior to trial[.]” <br>
Here, while LaCroix filed a motion to dismiss the indictment prior to trial based on <br>
the same errors in the indictment he now asserts on habeas review, he did not <br>
request a ruling from the circuit court in the underlying criminal case on his motion <br>
and instead pled nolo contendere. Thus, he waived the right to assert an objection <br>
to these defects on habeas. See generally Outka, 2014 S.D. 11, 844 N.W.2d 598 <br>
(noting that non-jurisdictional errors are waived by pleading guilty).11<br>
[¶24.] Having concluded that the indictment charged a public offense, we <br>
next examine LaCroix's further claim that he was subject to an ex post facto <br>
application of the amended version of SDCL 22-22-1(1) because, in his view, C.L. <br>
was "ten (10) years old, or older, at the time the crimes were allegedly committed[,]” <br>
rather than under ten years old as required by the version of the statute in effect in <br>
2002. LaCroix's characterization of his issue as an ex post facto violation is <br>
misplaced. An ex post facto violation occurs when a law "imposes a punishment for <br>
an act which was not punishable at the time it was committed; or imposes <br>
additional punishment to that then prescribed[.]” Stumes v. Delano, 508 N.W.2d <br>
366, 371 (S.D. 1993) (citation omitted). An ex post facto violation also occurs when <br>
a law, although not retroactive on its face, is applied to events that occurred prior to <br>
its effective date. See, e.g., State v. Blakey, 399 N.W.2d 317, 318 (S.D. 1987) <br>
11. We are unable to reach the merits of LaCroix's non-jurisdictional argument <br>
for the additional reason that he failed to challenge the indictment in a direct <br>
appeal and has not offered any justification to excuse his procedural default.<br>
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(examining whether a statute, not enacted to apply retroactively, was applied in an <br>
ex post facto manner). Here, however, LaCroix's indictment alleged a timeframe of <br>
conduct during which LaCroix's act could have constituted first-degree rape under <br>
the then-existing version of SDCL 22-22-1. Therefore, he was not subjected to <br>
punishment for an act not punishable at the time it was committed, nor was he <br>
subjected to an additional punishment because the sentence he received was within <br>
the confines of the maximum possible punishment for sexual penetration with a <br>
person under ten years of age under the applicable statute.<br>
[¶25.] LaCroix's claim instead presents a challenge to the factual basis <br>
underlying his conviction. In this regard, the State asserts that LaCroix waived the <br>
right to challenge the factual basis, and further asserts that such issue is nonjurisdictional and outside the scope of habeas review.12 Whether C.L. was under <br>
ten years old at the time of the alleged rape, such that LaCroix could be found <br>
guilty under the 2002 version of the statute, was a fact LaCroix could have <br>
submitted to the trier of fact, if disputed, but instead he waived his right to do so by <br>
pleading nolo contendere to the charged offense. Moreover, by pleading nolo <br>
contendere, LaCroix waived the right to challenge on appeal or in a habeas action <br>
the factual basis supporting his conviction. As the Sixth Circuit Court of Appeals <br>
explained, "[l]ike a plea of guilty, a plea of nolo contendere constitutes a waiver of <br>
all so-called 'non-jurisdictional defects[,]'” including "the right to contest the factual <br>
merits of the charges against him.” United States v. Freed, 688 F.2d 24, 25 (6th Cir. <br>
1982) (citations omitted) (emphasis added); see also United States v. Bessemer and <br>
12. LaCroix did not file a reply brief in this appeal.<br>
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Lake Erie R.R. Co., 717 F.2d 593, 597–98 (D.C. Cir. 1983) ("Convictions pursuant to <br>
a nolo [contendere] plea cannot be attacked on the merits, and can only be <br>
challenged by showing defects that affect the court's subject matter jurisdiction, or <br>
by showing that the indictment 'fails to charge an offense.'” (citation omitted)).<br>
[¶26.] This Court has similarly stated that "[a] plea of nolo contendere has <br>
the same effect as a guilty plea in waiving nonjurisdictional defects.” State v. Hoeft, <br>
1999 S.D. 24, ¶ 12, 594 N.W.2d 323, 326. We have also said, in the context of guilty <br>
pleas, that "[t]he failure of a trial court to establish a factual basis does not reach <br>
the constitutional or jurisdictional proportions necessary to bring the question <br>
within the scope of habeas corpus.” McDonough v. Weber, 2015 S.D. 1, ¶ 18, 859 <br>
N.W.2d 26, 35. Therefore, while a court may not be required to establish a factual <br>
basis before accepting a plea of nolo contendere, see SDCL 23A-7-2 and SDCL 23A7-14, LaCroix waived, similar to a defendant who pleads guilty, the right to <br>
challenge, via a habeas petition, whether sufficient facts existed to support his <br>
conviction. See McDonough, 2015 S.D. 1, ¶ 20, 859 N.W.2d at 36 (precluding <br>
collateral attack asserting that the record fails to present a clear factual basis to <br>
support court's acceptance of guilty plea).<br>
Statute of Limitations<br>
[¶27.] Finally, in his brief, LaCroix argues that the State was required to file <br>
the charges at issue against him "within seven (7) years [of the alleged act], or by <br>
the time 'C.L.' had turned twenty-five (25) years old” in accordance with SDCL 22-<br>
22-1 (2000). The State contends that LaCroix's claim that these charges violated <br>
the statute of limitations is a non-jurisdictional defect waived by LaCroix foregoing <br>
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his hearing on his motion raising the statute of limitations issue and instead <br>
entering pleas of nolo contendere to counts 2 and 3 of the indictment. Regardless of <br>
whether LaCroix waived the statute of limitation issue, we are precluded from <br>
addressing this claim in this appeal because it was not certified by the habeas court <br>
in its CPC. Our review is limited to consideration of only those issues certified for <br>
probable cause by the habeas court under SDCL 21-27-18.1

Because LaCroix has failed to assert a claim upon which his judgment <br>
could be void, we affirm the habeas court’s denial of LaCroix’s application for <br>
habeas corpus relief.