State v. Shepley: South Dakota Endorses Tovar’s Plea-Stage Waiver Standard and Reaffirms Court’s Nondelegable Duty to Warn

Introduction

In State v. Shepley, 2025 S.D. 28, the Supreme Court of South Dakota affirmed a conviction arising from a plea entered by a pro se defendant who waived his right to counsel. The decision clarifies South Dakota’s approach to assessing the validity of a defendant’s waiver of counsel at the plea stage. Specifically, the Court embraced the United States Supreme Court’s stage-sensitive standard from Iowa v. Tovar, holding that a formal, scripted Faretta colloquy is not constitutionally required when a defendant waives counsel and pleads guilty (or no contest), provided the record shows he understood the nature of the charge, the right to counsel in connection with the plea, and the range of punishment—and that he was aware of the dangers of self-representation.

The case also addressed whether the circuit court abused its discretion by failing to appoint substitute counsel after breakdowns with two appointed attorneys. The Court concluded there was no abuse because the defendant unequivocally chose to represent himself and did not properly request new counsel or show good cause for substitution.

Parties and posture:

Appellant: Sammy Bryant Shepley, a registered sex offender charged with failing to provide a new address (SDCL 22-24B-12) and with living in a community safety zone (SDCL 22-24B-23), with a Part II habitual offender allegation.
Appellee: State of South Dakota.
Proceedings: After disagreements with two appointed lawyers, Shepley elected to proceed pro se, accepted standby counsel briefly, negotiated directly with the State, and entered a no-contest plea to failing to provide a new address with an admission to habitual offender allegations. The circuit court imposed a suspended five-year sentence with two years of probation. He appealed, arguing inadequate warnings about self-representation and error in not appointing substitute counsel. The Supreme Court affirmed.

Summary of the Opinion

The Supreme Court (Kern, J.) held:

Shepley’s waiver of counsel at the time of his no-contest plea was knowing, voluntary, and intelligent, even though the circuit court did not recite the five-factor Faretta/Van Sickle advisement verbatim. Relying on Iowa v. Tovar, the Court explained that the constitutional minimum at the plea stage is less formal than at trial and focuses on the nature of the charge, the right to counsel regarding the plea, and the range of punishment, supplemented by circumstances indicating awareness of the dangers of self-representation.
Shepley’s choice to represent himself was unequivocal. He repeatedly confirmed his desire to proceed pro se, including at the plea and sentencing hearings; his earlier letter did not amount to a motion for substitution or contradict his clear statements on the record.
The circuit court did not abuse its discretion by declining to appoint substitute counsel, because Shepley did not properly request substitution or establish good cause, and he insisted on representing himself.

Importantly, the Court reiterated that while formal Faretta warnings are not always constitutionally required, the better practice is for judges to give stage-appropriate warnings on the record and make explicit findings that the defendant knowingly and intelligently waived counsel. The Court also stressed that a trial court cannot delegate the warning duty to counsel; it is the court’s nondelegable responsibility.

Analysis

Precedents Cited and Their Influence

Faretta v. California, 422 U.S. 806 (1975): Establishes the constitutional right to self-representation and the requirement that a waiver of counsel be knowing and intelligent, with the defendant aware of the dangers and disadvantages of proceeding pro se. Shepley applies Faretta’s core principle—that defendants must be warned of hazards—but adapts its application to the plea context through Tovar.
Iowa v. Tovar, 541 U.S. 77 (2004): Central to the decision. Tovar holds that the admonitions necessary to support a valid waiver vary by stage, and at the plea stage, a less searching or formal colloquy may suffice. The constitutional minimum is satisfied when the court informs the defendant of the nature of the charges, the right to counsel regarding the plea, and the range of punishment. Shepley explicitly embraces this stage-sensitive standard.
Johnson v. Zerbst, 304 U.S. 458 (1938) and Patterson v. Illinois, 487 U.S. 285 (1988): Support the flexible, case-specific inquiry into whether the defendant’s waiver was intelligent, considering education, complexity of charges, and stage of proceedings.
State v. Van Sickle, 411 N.W.2d 665 (S.D. 1987) and State v. Hirning, 2011 S.D. 59, 804 N.W.2d 422: South Dakota precedents articulating the five Faretta-derived factors appropriate for trial. Shepley distinguishes the plea stage from trial, reaffirming the advisability of such warnings while declining to mandate their verbatim recitation at pleas.
State v. Asmussen, 2006 S.D. 37, 713 N.W.2d 580: Provides de novo review for constitutional claims concerning the waiver of counsel; applied here.
State v. Patten, 2005 S.D. 32, 694 N.W.2d 270: Emphasizes that a request to proceed pro se must be unequivocal. In Shepley, unlike Patten, the defendant repeatedly and clearly chose self-representation.
State v. Cashman, 491 N.W.2d 462 (S.D. 1992): Recognizes stage-of-proceeding sensitivity in warnings; foreshadows the Tovar approach embraced in Shepley.
State v. Irvine, 1996 S.D. 43, 547 N.W.2d 177: Reiterates the strong presumption against waiver of counsel and the requirement that courts ensure a knowing, intelligent, voluntary, and unequivocal waiver. Shepley cites Irvine to stress the court’s responsibility to conduct the inquiry; it cannot be outsourced to counsel.
Berry v. Lockhart, 873 F.2d 1168 (8th Cir. 1989): Distinguished. There, the defendant repeatedly requested counsel and stated he could not represent himself; therefore, no knowing waiver. Shepley’s record contained the opposite—clear, repeated pro se elections coupled with warnings.
State v. Abraham-Medved, 2024 S.D. 14, 4 N.W.3d 436; State v. Martinez, 2016 S.D. 49, 882 N.W.2d 731; State v. Talarico, 2003 S.D. 41, 661 N.W.2d 11: Define the standard for substitute counsel (good cause without unreasonable disruption; abuse-of-discretion review). Applied to reject the claim where no motion or good cause was presented and the defendant chose self-representation.

Legal Reasoning

The Court’s analysis proceeded in three related steps:

Validity of the waiver of counsel at a plea hearing (Tovar standard): The Court restated the issue as whether the circuit court erred in accepting an uncounseled plea. Citing Tovar, it held that the Constitution does not require a verbatim recital of the five Faretta/Van Sickle factors at the plea stage. Instead, the court must ensure the defendant understands:
- the nature of the charge,
- the right to be counseled in connection with the plea, and
- the range of punishments.
The circuit court covered these elements and supplemented them by warning of practical disadvantages (e.g., the prosecutor’s training, the judge’s inability to act as counsel, and that Shepley could not later complain about lack of counsel). The record further showed Shepley’s familiarity with criminal proceedings, including multiple prior felonies and specific experience with the same registration offense. The Court concluded that, considered as a whole, the warnings and circumstances satisfied the constitutional minimum and demonstrated awareness of the risks.
Unequivocal request for self-representation: A valid waiver requires not only knowledge and voluntariness but also an unequivocal election to proceed pro se. The Court found that Shepley’s statements—“I will wing it,” and his clear “Yes, ma’am” responses when asked if he wished to continue pro se at both the plea and sentencing—met this standard. His interim letter suggesting he thought counsel would move for appointment did not amount to a motion for substitute counsel and was contradicted by his later, on-record confirmations of pro se status.
No abuse of discretion in declining to appoint substitute counsel: Appointment of substitute counsel requires a showing of good cause and consideration of disruption. The defendant bears the burden and must be given a chance to present it. Here, Shepley had that opportunity; his counsel’s motion to withdraw was granted; but Shepley did not move for new counsel afterward, did not reapply for appointment, and consistently chose to proceed pro se. Under these circumstances, there was no abuse of discretion.

The Court emphasized a critical procedural point: the trial court cannot rely on counsel—even standby counsel—to deliver the Faretta warnings. Ensuring a valid waiver is the court’s direct, nondelegable duty. While the circuit court suggested providing a copy of State v. Van Sickle to Shepley, the Supreme Court underscored that the court itself must conduct the advisement and ensure the waiver is knowing and voluntary.

Finally, the Court recommended best practices: even though formal, scripted warnings are unnecessary under Tovar at the plea stage, judges should give tailored, stage-appropriate warnings on the record and make explicit findings (on the record or in writing) that the defendant knowingly and intelligently waived counsel.

Impact and Practical Implications

State v. Shepley carries several notable implications for South Dakota criminal practice:

Stage-sensitive waiver standard adopted: The Court aligns South Dakota practice with Tovar for plea-stage waivers. Judges are not required to deliver the full, five-factor Faretta/Van Sickle colloquy when a defendant waives counsel to enter a plea. Instead, they must ensure the Tovar minimum is met and that the record reflects awareness of the risks of self-representation.
Record-based validation of waiver: Courts may draw on the totality of circumstances—such as the defendant’s prior criminal justice experience—to confirm an intelligent and voluntary waiver, especially at the plea stage. However, this should supplement, not replace, direct judicial warnings.
Nondelegable warning duty: Trial courts cannot outsource Faretta/Tovar warnings to counsel. Providing a case citation or having standby counsel explain risks is insufficient on its own; the court must conduct an on-the-record colloquy.
Unequivocal pro se election matters: Defendants who clearly and repeatedly assert their desire to represent themselves, particularly at critical junctures like plea and sentencing, will face an uphill battle challenging the waiver on appeal.
Substitute counsel practice: Defendants must affirmatively move for substitution and show good cause; courts assess disruption and necessity. Vague references to wanting counsel or letters not followed by a motion are unlikely to preserve or secure the claim, especially where the defendant continues to elect self-representation.
Best practices reinforced: Although not mandated, judges should:
- deliver tailored, stage-appropriate warnings (e.g., trial-level Faretta factors at trial; Tovar minimum at plea),
- confirm on the record that defendants understand the hazards of proceeding pro se, and
- enter explicit findings that the waiver is knowing, intelligent, voluntary, and unequivocal.

Complex Concepts Simplified

Waiver of counsel: A defendant’s choice to give up the right to a lawyer. It must be knowing (the defendant understands what is being given up), voluntary (not coerced), intelligent (based on sufficient information), and unequivocal (clearly stated).
Faretta warnings: Judicial advisements about the risks of self-representation typically given before trial. They commonly include warnings that criminal procedure is complex, lawyers are trained, mistakes can have serious consequences, appellate challenges to the quality of representation are limited if you represent yourself, and that combining the roles of defendant and advocate can impair the defense.
Tovar (plea-stage standard): A U.S. Supreme Court case holding that at the plea stage, a less formal colloquy is constitutionally sufficient if the defendant is told (1) the nature of the charges, (2) the right to counsel regarding the plea, and (3) the range of punishment, with awareness of the general risks of proceeding without a lawyer.
Standby counsel: A lawyer appointed to assist a pro se defendant if requested, but the defendant remains in control of the defense.
Part II habitual offender information: An enhancement alleging prior felonies that can increase the maximum penalty upon conviction.
Community safety zone: In South Dakota, an area within 500 feet of specified facilities (e.g., schools, parks) where sex offenders may be restricted from living (SDCL 22-24B-22(1)).
Abuse of discretion (substitute counsel): A deferential appellate standard. The trial court’s decision stands unless it was based on an error of law or a clearly unreasonable judgment, considering the need for good cause and the impact on judicial administration.

Conclusion

State v. Shepley affirms that in South Dakota, a defendant’s waiver of counsel at the plea stage does not require a verbatim recitation of the five Faretta/Van Sickle warnings that are typically contemplated for trial. Instead, the constitutional floor articulated in Iowa v. Tovar governs: the court must inform the defendant of the nature of the charge, the right to counsel regarding the plea, and the range of punishment, and ensure that the defendant appreciates the hazards of proceeding pro se, evaluated in light of case-specific circumstances.

The Court underscored two complementary points: first, the trial court bears the nondelegable duty to conduct the warnings and ensure a valid waiver; second, although formal scripts are not mandated, the better practice remains to deliver clear, stage-appropriate warnings on the record and to make explicit findings. On the substitute counsel issue, the decision reiterates that defendants must timely move for substitution and demonstrate good cause; courts do not abuse their discretion by declining to appoint new counsel where the defendant unequivocally chooses self-representation and fails to seek or justify substitution.

In effect, Shepley harmonizes South Dakota law with Tovar for plea-stage waivers while reinforcing robust judicial practices to safeguard defendants’ rights and the integrity of the record. It provides clear guidance for trial judges, counsel, and defendants about how to navigate waivers of counsel and requests for substitution without compromising constitutional protections or judicial efficiency.