author: SABERS, Justice.

text:
    2007 SD 2
    Brenda M. KING, as Personal Representative of the Estate of Ashley Marie King, A Deceased Minor Child, for the Benefit of the Surviving Parents, Brenda King and Roger King, and Barbara V. King, Plaintiffs and Appellants, v. Dennis LANDGUTH, Secretary of the South Dakota Department of Transportation, in his individual and official capacities, Tom Week, Mitchell Region Engineer for the South Dakota Department of Transportation, in his individual and official capacities, Ron S. Peterson, Area Engineer for the South Dakota Department of Transportation, in his individual and official capacities; and Joel Gengler, Chief Road Design Engineer with the Division of Planning and Engineering for the South Dakota Department of Transportation, Defendants, Third Party Plaintiffs and Appellees, v. Joshua Engel, Third Party Defendant.
    Nos. 24110, 24129.
    Supreme Court of South Dakota.
    Argued Nov. 30, 2006.
    Decided Jan. 3, 2007.

      Douglas E. Hoffman of Myers & Billion, L.L.P. Sioux Falls, South Dakota and Kenneth W. Cotton of Wipf & Cotton, L.L.C., Wagner, South Dakota, Attorneys for appellants.
    Gary P. Thimsen, Melanie L. Carpenter of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for appellees.
   SABERS, Justice.

[¶ 1.] This action arose from a one car accident in rural Turner County, where Ashley Marie King suffered fatal injuries and Barbara V. King (Barbara) suffered serious but non-fatal injuries, after the driver hit a box culvert in the ditch. Brenda M. King (Brenda), on behalf of Ashley, and Barbara sued the State of South Dakota, the South Dakota Department of Transportation (DOT), and DOT employees. The circuit court dismissed two of King’s claims. A jury trial was held regarding the third claim of DOT employees’ negligence in failing to maintain the signs. The jury returned a verdict in favor of the DOT employees and King appealed. The DOT employees also submitted two issues for review. We affirm.

FACTS

[¶ 2.] On October 19, 2002, Joshua En-gel (Josh), his mother, Debra Engel (Debra), his cousin Ashley, and his grandmother, Barbara, were traveling west from Sioux Falls to Platte on Highway 44. At approximately 6:00 p.m., the car left the west bound lane, crossed the center line, entered the east bound lane and proceeded into the southern ditch. The car was traveling between 65 and 70 mph before leaving the road. According to Josh, he awoke when the car was three-fourths of the way into the oncoming traffic lane, when his mother yelled at him to wake up. He then swerved into the southern ditch (the ditch adjacent to the oncoming traffic lane), to avoid an oncoming vehicle approximately 800 feet ahead.

[¶ 3.] Josh stated he tried, but was unable, to maneuver the car back onto the road. He then tried to bring the vehicle to a stop in the ditch. Before coming to a stop, the car hit a cement box culvert, approximately 320 feet from where the car entered the ditch. He said he did not see the culvert prior to the accident. According to Josh, had he seen the culvert, he felt he could have avoided it. Barbara suffered severe injuries and was flown to a Sioux Falls hospital. Ashley’s injuries were fatal.

[¶ 4.] King sued the State of South Dakota, the DOT and several DOT individuals. The DOT employees sued the driver of the car, Josh, as a Third Party Defendant. King alleged the DOT employees were negligent in marking the culvert and maintaining the signs.

[¶ 5.] The court dismissed the claims against the State of South Dakota and the DOT due to sovereign immunity. Likewise, the claims that the DOT employees were negligent in marking the box culvert were dismissed based on sovereign immunity. The DOT’s motion to dismiss the claim of negligence in maintaining the markers was denied and a jury trial was held. The jury found for the DOT employees.

[¶ 6.] King appeals and raises one issue:

1.Whether the circuit court erred in deciding sovereign immunity bars King’s claim of negligence in marking the box culvert on the basis that these actions are discretionary functions.
The DOT employees filed a notice of review raising two issues:
2. Whether, as a matter of law, the proximate cause of the accident was the negligence of Josh Engel.
3. Whether the jury should have been advised that the Kings settled their claims against the driver of the vehicle.

STANDARD OF REVIEW

[¶ 7.] The issue presented arises from summary judgment. “Summary judgment is authorized ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is- entitled to judgment as a matter of law.’ ” Krier v. Dell Rapids Township, 2006 SD 10, ¶ 12, 709 N.W.2d 841, 844-45 (citing SDCL 15-6-56(c)). We view the evidence “in the light most favorable to the non-moving party.” Heib v. Lehrkamp, 2005 SD 98, ¶ 45, 704 N.W.2d 875, 890 (Sabers, J., dissenting) (citing Colonial Ins. Co. of California v. Lundquist, 539 N.W.2d 871, 873). The moving party has the burden of showing there are no genuine issues of material fact. Casillas v. Schubauer, 2006 SD 42, ¶ 12, 714 N.W.2d 84, 88 (citing In re Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586).

[¶ 8.] “[S]ummary judgment will only be affirmed if there are no genuine issues of material fact and the legal questions have been decided correctly.” Wulf v. Senst, 2003 SD 105, ¶ 19, 669 N.W.2d 135, 142 (citing Bego v. Gordon, 407 N.W.2d 801 (S.D.1987)). Whether sovereign immunity precludes a plaintiff from pursuing a claim is question of law which is reviewed de novo. Id. No deference is afforded the circuit court’s conclusions of law. Id. (citing Hansen v. South Dakota Dept. of Transp., 1998 SD 109, ¶ 7, 584 N.W.2d 881).

[¶ 9.] Whether the circuit court erred in deciding sovereign immunity bars King’s claim of negligence in marking the box culvert on the basis that these actions are discretionary functions.

[¶ 10.] “The doctrine of sovereign immunity ... prevents the governing acts of the state, its agencies, other public entities, and their employees from attack in court without the state’s consent.” Id. ¶ 20 (citing Casazza v. State, 2000 SD 120, ¶ 11, 616 N.W.2d 872, 875). State employees are not always protected by sovereign immunity, but it does apply when state employees perform discretionary functions. Id. (citing Kruger v. Wilson, 325 N.W.2d 851, 854 (S.D.1982)). It is inapplicable when state employees perform ministerial functions. Id.

[¶ 11.] “State employees are cloaked in sovereign immunity when performing discretionary acts because ‘such discretionary acts participate in the state’s sovereign policy-making power.’ ” Kyllo v. Panzer, 535 N.W.2d 896, 902 (S.D.1995) (quoting Ritter v. Johnson, 465 N.W.2d 196, 198 (S.D.1991)). In contrast, “a ministerial act is the simple carrying out of a policy already established ... so that permitting state employees to be held liable for negligence in the performance of merely ministerial duties within the scope of their authority does not compromise the sovereignty of the state.” Wulf, 2003 SD 105, ¶ 20, 669 N.W.2d at 143 (citing Ritter, 465 N.W.2d at 198). This Court uses several factors when determining if a state employee’s actions are a discretionary rather than ministerial function. They are:

(1) The nature and importance of the function the officer is performing;
(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government;
(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer;
(4) The extent to which the ultimate financial responsibility will fall on the officer;
(5) The likelihood that harm will result to members of the public if the action is taken;
(6) The nature and seriousness of the type of harm that may be produced;
(7) The availability to the injured party of other remedies and other forms of relief.

Id., ¶ 20, 669 N.W.2d at 142-13 (citing National Bank of South Dakota v. Leir, 325 N.W.2d 845, 848 (S.D.1982)).

[¶ 12.] In essence, in order for an action to be ministerial the act must be “absolute, certain, and imperative^]” Casazza, 2000 SD 120, ¶ 13, 616 N.W.2d at 875 (quoting Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886). An employee must be “direct[ly] adher[ing] to a governing rule or standard with a compulsory result.” Id. ¶ 13, 616 N.W.2d at 876. “If there is a readily ascertainable standard by which the action ... may be measured ... it is not within the discretionary function exception” and therefore, is a ministerial act. Id.

[¶ 13.] The determination of what acts constitute discretionary or ministerial functions requires an individualized inquiry. Wulf, 2003 SD 105, ¶21, 669 N.W.2d at 143. There is no fixed rule to determine whether the employee’s action fits into the discretionary rather than ministerial category. Id. Instead, we must weigh the consequence immunity has on effective government with the potential harm to individuals. Id. To aid in this inquiry, we look at different aspects such as, “the nature of the official’s duties, the extent to which the acts involve policy making or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity.” Id. (citing Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886) (additional citations omitted)).

[¶ 14.] Whether sovereign immunity applies to the DOT employees’ actions (or inaction) depends on whether the placement of more than two markers at the culvert was a discretionary or ministerial function. King alleges the failure to place four markers on the culvert was negligence and sovereign immunity should not bar their claim because the action was a ministerial function. DOT employees claim the decision whether to put more than two markers at the culvert openings is a discretionary function, thus sovereign immunity would bar King’s negligence action.

[¶ 15.] In. support of their claim, King hired expert traffic engineer Dr. William Berg to testify. Dr. Berg testified that the DOT had adopted the Manual on Uniform Traffic Control Devices (MUTCD) and the American Association of State Highway Traffic Organizations (AASH-TO) Roadside Design Guide, and, in his opinion, these standards required four markers, one on each corner, in a culvert of this type. Dr. Berg stated this was a clear policy that did not require any discretion. According to Dr. Berg, once the policies were adopted by South Dakota, then the DOT was required to place the Type 2 markers where the policies indicated.

[¶ 16.] In support of their assertion that their actions were discretionary, the DOT employees cited the same policies as King. Unlike Dr. Berg’s opinion, the DOT employees claim that the South Dakota DOT Policy Letter OT-1999-02, effective March 9, 1999, requires only two Type 2 markers at this culvert. The policy provides, in part:

The policy standard on roadside markers for box culverts, pipe culverts and cattle passes shall be as follows:
If box culvert, pipe culvert or cattle pass ends are outside the shoulder area, but within the “clear zone” recovery area specified in the AASHTO Roadside Design Guide, install a Type 2 object marker at the opening on the side nearest to approaching traffic.

OT-1999-02 (emphasis added). Dr. Berg claims this policy requires four Type 2 markers to be installed because traffic can approach the culvert from either side. However, the policy clearly states “install a Type 2 object marker at the opening on the side nearest to approaching traffic.” It does not state install Type 2 markers at the openings. The plain language of the policy cannot be interpreted to require a marker on both sides. The DOT employees placed a Type 2 marker on “the side nearest to approaching traffic,” and the markers were in compliance with Policy OT-1999-02 at the time of the accident.

[¶ 17.] King also alleges that the South Dakota DOT Standard1 Procedures for Resurfacing, Restoration and Rehabilitation of Streets and Highways Other than Freeways (3R Standards), adopted in 1990, and Chapter 3C of the MUTCD require four markers at this culvert. However, the MUTCD only provides that, “Type 2 or Type 3 markers may be used at this type of location.” See Chapter 3C Object Markers Section 3C.03. Moreover, King claims AASHTO Roadside Design Guide requires four Type 2 markers for objects in the “clear zone” for either adjacent or opposing traffic. Accordingly, King’s argument is an object in the ditch must be marked for traffic entering the ditch even from the opposite lane. This argument fails to consider the plain language of Policy OT-1999-02, which only requires a marker on “the side nearest to approaching traffic.” It also discounts the fact AASHTO never specifically provides for the use of four Type 2 markers.

[¶ 18.] King urges this Court to find this case is similar to the decision in Wulf, 2003 SD 105, ¶ 32, 669 N.W.2d at 146-47. In Wulf, the DOT had a clear policy in effect that required sanding and scraping of icy roads between 5:00 a.m. and 7:00 p.m. unless the conditions were too hazardous. Id. ¶ 12 n. 2. The snow removal stopped at 8:00 p.m. and did not resume until 8:00 a.-m. the next day. Id. ¶ 7. At 7:30 a.m., Wulf was involved in an accident on a road where the snow/ice removal policy was not followed. Id. ¶ 2. We reversed summary judgment noting the ice/snow removal policy was a clear policy that the employees did not have discretion to ignore. Id. ¶ 32. In doing so we noted, “once it is determined that the act should be performed, subsequent duties may be considered ministerial.” Id. (quoting Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886) (additional citations omitted).

[¶ 19.] The facts in Wulf are materially distinguishable from this case. In Wulf there was a clear policy requiring snow/ice removal at certain hours that the employees failed to follow. In this case the markers were in compliance with Policy OT-1999-02, as the culvert was marked with “a Type 2 object marker at the opening on the side nearest to approaching traffic.” The AASHTO does not specifically require four Type 2 markers. The new MUTCD’ and 3R Standards do not require the use of Type'2 markers as it states the object “may” be marked with Type 2 markers. No policy requires more markers at this culvert. Unlike Wulf, it cannot be said that this case involves a clear, “readily ascertainable standard by which the government servant may be measured.... ” 2003 SD 105, ¶ 26, 669 N.W.2d at 145. The decision to install additional markers beyond what Policy OT-1999-02 provides is discretionary.

[¶ 20.] Instead, this case is similar to Hansen, 1998 SD 109, ¶ 33, 584 N.W.2d at 889. In Hansen, the plaintiff argued that Howard, the Director of Highways, breached his duty to warn of dangerous road conditions when she was injured after her car entered a large hole in the road due to construction. Id. ¶ 2. The statute required 'a guard over road damage or defects caused “by flood, fire or other cause....” Id. ¶ 26. Hansen argued the hole in the road due to road construction qualified as “other cause” and required a guard to warn of the danger. Id. However, this Court affirmed the circuit court’s dismissal of the case because “other cause” language in the statute did not provide a “readily ascertainable standard.” Id. ¶¶ 29, 35.

[¶ 21.] In the same vein, the DOT employees’ actions were not ministerial because at the time of the accident there was not a “readily ascertainable standard.” Any decision regarding the installation of additional markers at this culvert was a discretionary function. The circuit court’s grant of summary judgment has not been shown to be improper as sovereign immunity bars King’s negligence claim against the DOT employees.

[¶ 22.] We affirm.

[¶ 23.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      ., The plaintiffs will be referred to collectively as "King” unless further identification is necessary.

      . The plaintiff sued several DOT employees in their individual and official capacities. They include: Dennis Landguth, Secretary of the DOT; Tom Week, Mitchell Region Engineer for the DOT; Jeff Gustafson, Mitchell Region Operations Engineer for the DOT; Ron S. Peterson, Area Engineer for the DOT; John Cole, Chief Bridge Engineer for the DOT; Tom Gilsrud, Bridge Maintenance Engineer for the DOT; Joel Gengler, Chief Road Design Engineer with the Division of Planning and Engineering for the DOT; and John Does 1-10, being all culpable employees or former employees, officials or former officials, and agents of the DOT individually and in their official capacities. During trial the plaintiffs voluntarily dismissed claims against Jeff Gus-tafson, John Cole, Tom Gilsrud, and John Does 1-10.

      . King did not appeal the jury verdict or the grant of summary judgment against the State or the DOT.

      . “The MUTCD approved by the Federal Highway Administration's Department of Transportation is the national standard for all traffic control devices installed on any street, highway or bicycle trail open to public travel.” 23 C.F.R. 655.603(a).

      . AASHTO standards are the engineering and design standards used by the Federal Highway Administration for highways and bridges. See 23 C.F.R. 625.4, 650.211, 650.305, 650.313, 650.317, 650.409.

      . The DOT website defines the "clear zone” as:
      The total roadside border area, starting at the edge of the traveled way available for the safe use by errant vehicles. The clear zone area may consist of an auxiliary lane (low speed), a shoulder, a recoverable slope, a nonrecoverable slope and/or clear run-out area.
      Road Design Manual, Chapter 10, located at www.sddot.com (last viewed on December 28, 2006). The width is determined by traffic volumes and speeds and the roadside geometry. See id.

      . Hansen was a 4-1 decision where I dissented on the basis that 1) SDCL 31-5-1 created a clear statutory duty to inspect, maintain and repair the interstate bridges, 1998 SD 109, ¶¶ 41-43, 584 N.W.2d 881; 2) the defendant did "not challenge settled South Dakota law that the obligation to erect a sign and guard over a defect in the road constitutes a ministerial duty....” Id. ¶ 43; and 3)'whether the hole in the interstate bridge which was created by the construction crew constituted a defect which caused the road to become "out of repair” was a fact question for a jury. Id. ¶ 43 n. 14. The present case does not involve the "duty to repair” road statute. Instead, BCing bases her claim solely on her interpretation of the DOT’s object marking policies.

      . Due to our decision in Issue 1, we need not reach Issues 2 and 3.


source: Caselaw Access Project

license: Public Domain

text:
    2007 SD 3
    Jessi OWENS, Petitioner and Appellant, v. Duane RUSSELL, Warden, Respondent and Appellee.
    No. 24061.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 27, 2006.
    Decided Jan. 3, 2007.

      Emily M. Sovell, Onida, South Dakota, Attorney for petitioner and appellant.
    Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   SABERS, Justice.

[¶ 1.] Jessi Owens pleaded guilty to second degree murder for a beating death that occurred during a robbery. Under the sentencing scheme, she received a mandatory life sentence. On appeal, Owens raises five issues. We affirm.

FACTS

[¶ 2.] On January 28, 1998, seventeen-year-old Owens and nineteen-year-old Renee Eckes went to the home of David Paul Bauman to steal $9,000. During their search for the money, Bauman returned home and Owens hid in the bathroom and Eckes hid in a different room. At some point, Owens heard Eckes scream for help. Owens left her hiding place and saw Eckes and Bauman struggling. Owens used a hammer that Eckes threw to her to hit Bauman in the head several times. Eckes took the hammer from Owens and began hitting Bauman. According to Owens, it was Eckes who gave Bauman the majority of the blows. Bauman was found dead the next day.

[¶ 3.] The investigation of Bauman’s death led police to suspect Owens and the others. Two days after the robbery/murder, the police arrested Owens. When the police found her, she was wearing boots with blood on them and blood was found in her car. Owens was questioned by two police officers from 12:20 a.m. to approximately 7:00 or 8:00 a.m. At Owens’ request, the interview was not recorded; therefore, there is no recording or transcript of the interview in the record. The officers did not attempt to contact a parent or attorney at any point during or before the questioning. Owens was emancipated at the time and had been for almost two years.

[¶ 4.] During the questioning, Owens admitted involvement in the murder. She also told police they had disposed of the hammer and clothes worn during the crime in rural Codington County. The defendants tried to conceal the evidence by burning it. The police found the charred remnants of the hammer and clothes worn during the crime.

[¶ 5.] Owens was charged with first degree murder, first degree burglary and second degree burglary. She attempted to transfer the case to juvenile court. After the transfer hearing the motion was denied. Owens agreed to plead guilty to second degree murder. In exchange, the remaining charges, including first degree murder, would be dismissed. The plea agreement specifically provided that the mandatory minimum for second degree murder was a life sentence. She pleaded guilty to the second degree murder and received a sentence of life-in-prison. Owens appeals and raises the following issues:

1. Whether Owens received ineffective assistance of counsel.
2. Whether Owens’ statements to authorities were voluntary.
3. Whether Owens’ plea of guilty was made knowingly and voluntarily.
4. Whether the mandatory life sentence is disproportionate.
5. Whether the habeas court’s denial of comparative analysis through review of presentence reports in cases where the juvenile was charged, but not convicted, was erroneous.

STANDARD OF REVIEW

[¶ 6.] As we recently noted, “our standard of review for habeas review is well established.” Vanden Hoek v. Weber, 2006 SD 102, ¶ 8, 724 N.W.2d 858 (quoting Crutchfield v. Weber, 2005 SD 62, ¶ 8, 697 N.W.2d 756 (quoting Jackson v. Weber, 2001 SD 136 ¶ 9, 637 N.W.2d 19, 22)) (additional citations omitted).

Our review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. The review is limited to jurisdictional errors. In criminal cases, a violation of the defendant’s constitutional rights constitutes a jurisdictional error. The defendant has the burden of proving he is entitled to relief by a preponderance of the evidence.
The findings of facts shall not be disturbed unless they are clearly erroneous. A claim of ineffective assistance of counsel presents a mixed question of law and fact. The habeas court’s conclusions of law are reviewed.de novo.

Id. ¶¶ 8-9 (internal citations omitted). “The petitioner must overcome the ‘strong presumption that counsel’s performance falls within the wide range of professional assistance.’ ” Nikolaev v. Weber, 2005 SD 100, ¶ 8, 705 N.W.2d 72, 74-75 (quoting Siers v. Class, 1998 SD 77, ¶ 12, 581 N.W.2d 491, 494 (citing Lykken v. Class, 1997 SD 29, 561 N.W.2d 302)). “Unless clear error is present, we defer to the habeas court’s findings of fact regarding counsel’s performance but, we may substitute our own judgment ‘as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.’” Id. We “will not compare counsel’s performance to that of some idealized ‘super-lawyer’ and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession.” Sprik v. Class, 1997 SD 134, ¶ 24, 572 N.W.2d 824, 829 (citing Roden v. Solem, 431 N.W.2d 665, 667 n. 1 (S.D.1988)).

Ineffective assistance of counsel

[¶ 7.] The well-settled test for determining whether the defendant received effective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). We adopted the Strickland test in Luna v. Solem. 411 N.W.2d 656, 658 (S.D.1987).

[¶ 8.] The Strickland test is a two-part inquiry. The first part requires that

the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Hofer v. Class, 1998 SD 58, ¶ 10, 578 N.W.2d 583, 585-86 (additional citations omitted).

[¶ 9.] The second part of Strickland requires a showing of prejudice from counsel’s deficient performance. 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice requires “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. With regard to plea cases, the prejudice part of the Strickland test,

will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged failure of counsel, is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in .turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Id.

[¶ 10.] Our 'prior cases indicate that a defendant has an “increased burden to show ineffective assistance of counsel” when the case does not proceed to trial. Coon v. Weber, 2002 SD 48, ¶ 12, 644 N.W.2d 638, 643; Hofer, 1998 SD 58, ¶ 11, 578 N.W.2d at 586; Williams v. State, 349 N.W.2d 58, 62 (S.D.1984). This increased burden means the petitioner must demonstrate “gross error on the part of counsel in recommending that he plead guilty.” Coon, 2002 SD 48, ¶ 12, 644 N.W.2d at 643; Hofer, 1998 SD 58, ¶ 11, 578 N.W.2d at 586; Williams, 349 N.W.2d at 62.

[¶ 11.] The United States Supreme Court has held that the Strickland test also applies to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985) (holding “the two-part [Strickland ] test applies to challenges to guilty pleas based on ineffective assistance of counsel”). The Hill Court also noted that the second part of Strickland test, the prejudice part, is slightly modified when the defendant pleads guilty. Id. (noting “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”). This Hill modification is the same as our prejudice inquiry when a guilty plea, rather than a trial, is involved. Compare Hill, 474 U.S. at 59, 106 S.Ct. at 370-71 with Coon, 2002 SD 48, ¶ 13, 644 N.W.2d at 643, Lien v. Class, 1998 SD 7, ¶ 15, 574 N.W.2d 601, 607-08. Whether the prior cases that require a showing of gross error are sound in light of the United State Supreme Court’s decision in Hill is immaterial here as Owens did not show either gross error or deficient performance.

Claimed deficient performance

[¶ 12.] Owens claims trial counsel was ineffective in several different ways. Trial counsel did not interview any of the potential witnesses to the crime, nor hire a private investigator. There were no forensic experts hired or consulted. Trial counsel did draft a motion for a pathology expert, but never filed the motion. Owens also argues counsel should have tried to suppress her confession, appeal from the transfer hearing or at least discuss the possibility of appeal with her. Owens faults counsel for not researching the likelihood she would get the death penalty and claims he should have told her no female juvenile has ever received the death penalty in South Dakota.

[¶ 13.] While the list of alleged deficiencies in counsel’s performance is serious, our review of counsel’s performance is highly deferential. We start with the strong presumption that counsel’s conduct falls within the range of reasonable professional assistance. Siers, 1998 SD 77, ¶ 12, 581 N.W.2d at 495. We view the actions in light of the past circumstances and information, not with the benefit of hind-sight. Coon, 2002 SD 48, ¶ 11, 644 N.W.2d at 642. Owens has the heavy burden of showing counsel’s actions amounted to deficient performance and were not strategy. Sprik, 1997 SD 134, ¶¶ 23-24, 572 N.W.2d at 829.

[¶ 14.] Counsel testified at the habeas hearing that he was seriously concerned about the possibility of the death penalty. In fact, it was the main benefit of the plea bargain. The State presented Owens with a plea bargain, which required her to plead guilty to second degree murder. In exchange for her guilty plea, the State would drop all remaining adult and juvenile charges and eliminate the possibility of the death penalty. While the State had not yet indicated it was going to seek the death penalty, counsel testified that from his conversations with the State’s Attorney he believed the death penalty was a “very, very real possibility.”

[¶ 15.] Owens now claims it was ineffective to encourage her to accept the plea when no female juvenile had ever been given the death penalty in South Dakota. Viewing the decision deferentially in light of the circumstances, this advice could be considered sound strategy. Counsel heard a lot of evidence and testimony against Owens during the transfer hearing so he knew the strength of the State’s case against his client. He heard the police testify that Owens’ codefendants said Owens planned to kill Bauman if he came home while they were robbing him. He saw the autopsy photographs depicting a violent murder. He heard DCI Agent Mike Braley testify to Owens’ confession. Despite Owens’ argument that she should have been informed that “statistically” she would not have received the death penalty, counsel testified he knew the law was on the books, and there is a first time for everything, so he thought the death penalty was a real issue in this case. The State had a court imposed deadline to announce whether it was going to seek the death penalty and counsel believed that they were going to “have a problem” if they “let that deadline go by and ... knew [they] were facing the death penalty-” Encouraging Owens to take a plea that removes all other charges including the death penalty can be viewed as sound strategy.

[¶ 16.] Owens also finds fault with trial counsel’s decision not to attempt to suppress her confession during the transfer hearing. However, counsel testified he thought the confession could help during the transfer hearing because he thought it demonstrated Owens was taking responsibility for her actions. Given the fact that one of the factors for determining if a case should be transferred to juvenile court is the prospect for rehabilitation, allowing a confession in for the purpose of showing responsibility and rehabilitation potential may be sound strategy. In addition, counsel testified that he discussed her rights with her several times and discussed the possibility of suppressing her statement if it went to trial. Owens still chose to accept the State’s plea agreement.

[¶ 17.] The next claim is counsel’s failure to attempt to suppress Owens’ confession before trial. Specifically, Owens alleges her statement should have been suppressed because even though she was emancipated, she was a juvenile, who was interrogated by two male police officers for a substantial length of time and no parent, guardian or attorney was contacted. Nor was there a tape recording made of the interrogation. First, Owens objected to having the questioning tape recorded so the police did not record it. Moreover, at the time of the ease, we had not issued our decision that heightened the scrutiny of juvenile confessions without parental presence. See State v. Horse, 2002 SD 47, ¶ 26, 644 N.W.2d 211, 224. We do not expect counsel to know of a change in the law before it is issued. Ultimately, it is irrelevant whether the confession was or was not suppressed as there was ample evidence without the confession and Owens expressed a desire to plead guilty the entire time. See swpra ¶ 15; infra ¶ 20.

[¶ 18.] Counsel need not be trial ready before a trial has started. While counsel should be conducting a reasonable investigation into the circumstances before encouraging a client to plead guilty, counsel need not be absolutely trial ready before he allows his client to plead guilty. See Lien, 1998 SD 7, ¶ 41, 574 N.W.2d at 614 (Sabers, J., dissenting). However, counsel conducted some investigation. He read the police reports, read the police conducted interviews of the codefendants, attempted to close the transfer hearing to the public, made objections at the hearing that excluded the codefendants’ statements against Owens from being considered in the transfer decision. He informed Owens of her rights and options, yet she continuously expressed a strong desire to plead guilty, even prior to the transfer hearing.

[¶ 19.] Counsel’s actions can be viewed as strategy. He did not suppress the confession before the transfer hearing because he thought it would demonstrate Owens’ rehabilitation potential. Moreover, even had counsel moved to suppress the statement later and succeeded, there was still plenty of evidence that would lead reasonable counsel to conclude a plea bargain that removes the death penalty is a good strategy. Owens has not met her burden of proving her counsel’s performance fell below the standard.

Prejudice

[¶ 20.] Even if counsel’s performance “fell below an objective standard of reasonableness,” Owens must demonstrate prejudice. See Hofer, 1998 SD 58, ¶¶ 9-10, 578 N.W.2d at 585-86. Trial counsel testified at the habeas hearing that Owens wanted to plead guilty almost from the beginning. She did not want to pursue the option of transfer to juvenile court and wanted to plead before the hearing. After the transfer motion was denied, she did not want to pursue, any appeals from the transfer denial and again stated she wanted to plead guilty.

[¶ 21.] Owens has to demonstrate “that there is a reasonable probability that, but for counsel’s errors, [she] would not have pleaded guilty and would have insisted on going to trial.” See Hill, 474 U.S. at 59, 106. S.Ct. at 370. Yet, Owens has not pointed to any evidence on the record that she would have insisted on going to trial, had trial counsel pursued a suppression hearing or informed her that female juveniles have never received the death penalty in South Dakota.

[¶. 22.] The record shows the State had ample evidence to proceed to trial on the first degree murder charge, even assuming Owens’ confession was suppressed. . The investigation led to Owens and the other defendants. When the police arrested Owens she had human blood on her boots and in her car. Finally, the other codefen-dants pleaded guilty and made very damaging statements regarding Owens’ culpability in the murder. These statements were brought out during the transfer hearing, so trial counsel knew there was a distinct possibility the State could have the codefendants testify against Owens if they pleaded guilty first. Finally, there was evidence Owens was the one that brought the murder weapon.

[IT 23.] This independent evidence coupled with the fact Owens continually expressed her desire to plead guilty supports the habeas court’s decision that Owens was not denied effective assistance of counsel or prejudice thereby. She has not met her burden of proving she would have rejected the guilty plea and went to trial had counsel performed differently. Even if trial counsel performed deficiently, Owens has not shown prejudice from the deficient performance. Therefore, we affirm.

Plea bargain

[¶24.] “[A] direct appeal is afforded more intense scrutiny than if the challenge is by a collateral habeas corpus action.” State v. Goodwin, 2004 SD 75, ¶ 4, 681 N.W.2d 847, 849. We look at the totality of the circumstances when reviewing a guilty plea and must examine if the “plea was voluntary, knowing and intelligent.” Lien, 1998 SD 7, ¶ 31, 574 N.W.2d at 612.

[¶ 25.] In determining whether the plea was voluntary, we examine whether the record “indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial— and an understanding of the nature and consequences of the plea.” Goodwin, 2004 SD 75, ¶ 6, 681 N.W.2d at 850 (quoting Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970)); Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969). “[T]he defendant must know and understand that entering a plea of guilty constitutes a waiver of these rights.” Goodwin, 2004 SD 75, ¶ 6, 681 N.W.2d at 850 (citing Boykin, 395 U.S. at 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274). In addition to the waiver of the constitutional rights, we look at the following factors: “the defendant’s age; his pri- or criminal record; whether he is represented by counsel; the existence of a plea agreement; and the time between advisement of rights and entering a plea of guilty.” Id. ¶ 11 (internal citations omitted).

[¶ 26.] SDCL 23A-7-4 provides the procedure to establish whether a guilty plea is intelligent, knowing and voluntary:

Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in 23A-7-5, and inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to. be compelled to incriminate himself; and
(5) That if he pleads guilty or nolo con-tendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.

[¶ 27.] During a motion hearing on February 11, 1998, the circuit court discussed the defendant’s rights in open court on the record. The circuit court again discussed the defendant’s rights before she pleaded guilty at the plea hearing on May 28, 1998. Finally, trial counsel discussed Owens’ rights with her prior to the entry of the guilty plea, as evidenced by the Statement of Rights and Facts and Circumstances, which counsel entered into evidence during the guilty plea/sentencing hearing. Owens was aware of her constitutional rights and indicated she understood she was waiving these rights, both on the record, and in the statement of rights prepared by her attorney.

[¶ 28.] Under the totality of the circumstances analysis, Owens’ guilty plea was not shown to be involuntary, unknowing or unintelligent. Owens was. only seventeen years old and had a ninth grade education, but one of the experts testified she was of average or above average intelligence. She had á criminal record of multiple alcohol violations and two shoplifting charges, which indicates she had experience with the legal system. Her counsel discussed her rights and there was a plea bargain. The plea bargain clearly stated she was to plead guilty to second degree murder and the statute mandated a life sentence. Reviewing the totality of the circumstances, there is no showing that the habeas court erred in determining that this issue was without merit and we affirm.

Cruel and unusual

[¶ 29.] Owens argues that a mandatory life sentence violates the Eighth Amendment and the sentencing judge should have discretion to consider Owens’ youth and childhood as mitigating factors to allow a sentence less than life. There is no constitutional basis for this argument as Owens received a mandatory life sentence for murder and a life sentence for murder is not cruel and unusual or grossly disproportionate. See State v. Frazier, 2002 SD 66, ¶ 24, 646 N.W.2d 744, 752-53 (mandatory life sentence for felony murder); State v. Milk, 2000 SD 28, ¶ 20, 607 N.W.2d 14, 21 (life sentence for first degree manslaughter was not grossly disproportionate); State v. Jensen, 1998 SD 52, ¶ 64, 579 N.W.2d 613, 624-25 (life sentence for first degree murder). Owens’ argument should be addressed to the legislature.

[¶ 30.] Since Owens’ cruel and unusual claim fails, the only way Owens could challenge her sentence is to show that she did not enter her guilty plea voluntarily, knowingly and intelligently or through an ineffective assistance claim. However, Owens’ sentence was not unknown. When Owens pleaded guilty, she knew that she could not receive any sentence other than life-in-prison. As discussed above, Owens has not met her burden to show her guilty plea was involuntary or that she received ineffective assistance. In light of our decision on this issue, we need not discuss Issue 5.

[¶ 31.] We affirm the habeas court.

[¶ 32.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Eckes pleaded guilty to second degree murder. Like Owens, she received a mandatory life sentence. State v. Eckes, No. 98-0076 (Codington County, SD 1998).

      . Two other individuals were involved in the robbery/murder. A juvenile defendant pleaded nolo contendré to accessory to murder and received a five year sentence, two years suspended. State v. J.C., No. 98-0364 (Coding-ton County, SD 1998). Nineteen-year-old Stacy Hanson pleaded guilty to aiding and abetting first degree burglary, second degree burglary and accessory to murder. Hanson received twenty-five years for the first degree burglary, five years for the second degree burglary and five years on the accessory to second degree murder, all to be served consecutively. State v. Stacy Hanson, No. 98-0080 (Codington County, SD 1998).

      . The lime on the statement indicates it was written at 4:40 a.m.

      . Matter of Jessi R. Owens, Civ No. 96-1080 (Hamlin County, SD 1996).

      . This case occurred before the United States Supreme Court decision that declared juveniles cannot constitutionally receive the death penalty. See Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 1200, 161 L.Ed.2d 1 (2005).

      . Q: Did you have an idea or an inclination or an indication that [the State was] looking at [the death penalty]?
      A: Well, I can’t point to a specific date and time, but from my conversations with the State's Attorney and the evidence in the case I felt that it was a very, very real possibility.
      Q: Your conversations with the State’s Attorney, that would be Mr. Ellyson?
      A: Yes.
      Q: And what was the tenor of those conversations as it related to the death penalty?
      A: Well, some of the — I guess how Mr. Ellyson viewed the [sum] of the evidence, the pictures of Mr. Bauman, and the manner in which Mr. Bauman was killed with the brutality.
      Q: Would it be fair to say that the crime scene photographs and evidence were rather gory?
      A: Yes.
      Q: Did that concern you as a factor that might play a role in a death penalty determination by a jury?
      A: Yes.

      . At the transfer hearing, Jacob Bolton, a friend of Owens, testified that when the murder occurred Owens was watching his house while he was out-of-town and he was missing a hammer.

      . This is important because we also look at "the time between advisement of rights and entering a plea of guilty." Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852.

      . As one expert noted, her shoplifting charges also indicate an awareness of her rights and an awareness of her ability to exercise her rights. Owens indicated that she would not plead guilty to the shoplifting charge and was going to fight it because she did not do it. The expert also thought Owens exhibited an awareness of her ability to exercise her rights and that she was not intimidated by the police, when she told the police she did not want to have her interview recorded.


author: MEIERHENRY, Justice.'

text:
    2007 SD 1
    The PEOPLE of the State of South Dakota, In the Interest of J.M.J., Minor Child and Concerning, J.J. and D.J., Parents and Respondents.
    No. 23753.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 2, 2006.
    Decided Jan. 3, 2007.

      Patrick M. Ginsbach, Heather M. Sud-beck of Farrell, Farrell & Ginsbach, Hot Springs, South Dakota, Attorneys for appellant child.
    Lawrence E. Long, Attorney General, Steven R. Blair, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee state.
   MEIERHENRY, Justice.'

[¶ 1.] In a juvenile proceeding, the trial court adjudicated sixteen-year-old J.M.J. (J.J.) a delinquent child based upon a charge of rape in the first degree. J.J. claims that the adjudication should be reversed because his statements to law enforcement should have been suppressed and because there was insufficient evidence to support a finding of rape in the first degree. Specifically, J.J. claims that the deputy who questioned him about the alleged rape failed to inform him that he could be tried as an adult. -Without this warning, he claims that he could not have made a knowing and voluntary waiver of his right against self-incrimination.

[¶ 2.] The circumstances leading up to J.J.’s interrogation began when Deputy Steve McMillin (McMillin) of the Pall River County Sheriffs Office was called to Rapid City Regional Hospital to investigate allegations that sixteen-year-old J.J. had raped his three-year-old niece. McMillin took a statement from the niece’s mother and then retrieved the niece’s clothing for purposes of investigation. McMillin drove to J.J.’s residence, arriving between 2 a.m. and 3 a.m. In J.J.’s Mother’s presence, he questioned J.J. after advising him of his constitutional rights under Miranda. McMillin read the rights from a pre-printed card, which included an instruction for additional advisement when questioning a juvenile. The card instructed officers to “inform the juvenile that there is the possibility that he/she may be tried as an adult and that any statements made during questioning can be used against him/her in an adult proceeding.” For reasons unknown, McMillin did not follow the card’s direction to provide the additional advisement. Subsequently, J.J. waived his rights and answered questions for approximately twenty-five minutes, during which he denied the allegations. McMillin then took J.J. into custody and escorted J.J. to the patrol car. Alone with McMillin on the way to the patrol car, J.J. asked McMillin, “if I did tell what I did, do I have to still go in?” McMillin told J.J. that if he had done something, McMillin needed to know. J.J. then told McMillin that he did it and, thereafter, repeated his confession in the presence of his Mother.

[¶ 3.] Subsequently, the State filed a petition alleging that J.J. was a juvenile delinquent because he had committed the crime of first degree rape, or in the alternative, sexual contact with a child under sixteen years of áge. Initially, the State gave notice of its intention to transfer the matter to adult court but decided not to because J.J.’s psychological evaluation indicated that he could potentially be rehabilitated in the juvenile justice system.

[¶ 4.] Prior to adjudication, J.J. filed a motion to suppress any statements made to law enforcement at the time of his arrest because McMillin had failed to advise him that he could be tried as an adult. The court denied the motion. The juvenile court ultimately adjudicated J.J. a delinquent child and remanded him to the custody of the Department of Corrections. J.J. appeals, claiming the trial court erred by failing to suppress his statements to law enforcement. He also claims that the evidence was insufficient to adjudicate him as a delinquent.

STANDARD OF REVIEW

[¶ 5.] Whether a statement is voluntarily given is a question of law which we review de novo. State v. Holman, 2006 SD 82, ¶ 13, 721 N.W.2d 452, 456. Our standard of review is set forth as follows:

“Although there are often subsidiary factual questions deserving deference, the voluntariness of a confession is ultimately a legal question.” State v. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d 20, 30 (citing Miller v. Fenton, 474 U.S. 104, 116, 106 S.Ct. 445, 452-53, 88 L.Ed.2d 405, 414-15 (1985) (additional citations omitted)). This Court reviews the entire record and makes an independent determination of voluntariness. Id. (citing Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1, 8 (1976) (additional citations omitted)). The State must establish the voluntariness of a confession by a preponderance of the evidence. Id. ¶ 21 (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377, n. 5 (1984)).

Holman, 2006 SD 82, ¶ 13, 721 N.W.2d at 456. Even if the juvenile’s confession is involuntary, it may “not constitute reversible error if the State can prove the error was harmless beyond a reasonable doubt.” Id. ¶ 25 (citing Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991)).

[¶ 6.] Our review of the sufficiency of the evidence is de novo. State v. Tofani, 2006 SD 63, ¶ 35, 719 N.W.2d 391, 400. “We will not reverse the trial court’s denial of a motion for judgment of acquittal or reverse the guilt determination of the trier of fact if we conclude that ‘the State presented sufficient evidence on which the [court] could reasonably find the defendant guilty of the crime charged.’” Id. (quoting State v. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d 401, 420).

DECISION

1. Whether the trial court erred in finding that JJ.’s admissions were voluntary even though he was not advised of the possibility that his statements could be used against him in adult court.

Per se Rule vs. Totality of Circumstances Analysis

[¶ 7.] J.J. claims that McMillin’s failure to advise him of the possibility that he could be tried as an adult when advising him of his right to remain silent violated his constitutional rights. He claims that without this advisement, the State could not establish that he made a clear and intelligent waiver of his right to counsel and right against self-incrimination. He relies on State v. Lohnes, 324 N.W.2d 409 (S.D.1982). J.J. claims that Lohnes established a per se rule that a juvenile’s confession cannot be found to be voluntary without the juvenile first being advised that he could be tried as an adult. The State argues that the absence of this warning should only be a factor considered in the totality of circumstances analysis when evaluating the voluntariness of a child’s confession.

[¶ 8.] We take this opportunity to reexamine our holding in Lohnes. Id. In Lohnes, this Court said:

We now hold that a juvenile is afforded additional, not less, protection of his constitutional rights and before a trial court can conclude that a juvenile has made a clear and intelligent waiver of his rights to counsel and against self-incrimination, the state shall have to establish that he was advised that there was a possibility that he may be tried as an adult.

Id. at 414-15.

[¶ 9.] Lohnes involved a sixteen-year-old juvenile who was tried as an adult for third degree burglary, grand theft and first degree murder. Id. at 411. The police initially took Lohnes into custody for questioning about a stolen pickup. Id. at 410. Soon after beginning to question Lohnes, the police realized he was a juvenile. Id. Nevertheless, the police continued questioning him for several hours without contacting a parent or guardian. Id. Miranda warnings were given; however, the juvenile was not asked if he wished to waive the rights when he admitted to committing burglary and theft and that he was an escapee from the state training school. Id. The next day, after learning that the driver of the pickup was murdered, the police again questioned Lohnes. Id. at 411. Lohnes’s court services officer became aware that the juvenile was a murder suspect and attempted to schedule a court hearing for that same day. Id. The police manipulated a delay in the hearing so that they could continue to question the juvenile without an attorney or parent, arranging instead to have another police officer serve as the child’s guardian during the questioning. Id. The interrogating officer again read the Miranda rights to the juvenile. Id. Without asking if he wished to waive the rights, the officer continued to question the juvenile until he confessed. Id.

[¶ 10.] The juvenile moved to suppress his confession based on grounds that the deliberate delay in bringing him to court deprived him of an attorney and on the grounds that his confession was not voluntary based upon the totality of the circumstances. Id. Although the deliberate delay issue had not been preserved for appeal, the Loknes Court, nevertheless, considered it under the plain error rule since evidence of the deliberate delay was presented at the suppression hearing. Id. at 413. Based on the deliberate delay and the failure to inform the juvenile that he could be tried as an adult, the Court determined that the confession should have been suppressed. Id. at 414.

[¶ 11.] The Lohnes pronouncement that a juvenile must be told of the possibility of being tried as an adult before a confession can be considered voluntary cited to the following three cases from other jurisdictions: State v. Cano, 103 Ariz. 37, 436 P.2d 586 (1968); State v. Loyd, 297 Minn. 442, 212 N.W.2d 671 (1973); and Theriault v. State, 66 Wis.2d 33, 223 N.W.2d 850 (1974). An analysis of the three cases, however, reveals that they do not support the per se rule and all three jurisdictions embrace the totality of the circumstances analysis. See In re Andre M., 207 Ariz. 482, 88 P.3d 552 (2004); State v. Ouk, 516 N.W.2d 180 (Minn.1994); In re Jerrell C.J., 283 Wis.2d 145, 699 N.W.2d 110 (2005). We aré aware of only two other jurisdictions that have adopted the per se rule: Missouri and New Hampshire. State v. Simon, 680 S.W.2d 346 (Mo.App.1984); State v. Benoit, 126 N.H. 6, 490 A.2d 295 (N.H.1985). The majority of jurisdictions apply the totality of circumstances analysis approved by the United States Supreme Court in Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). The juvenile in Fare argued that his request to speak with his probation officer during police interrogation constituted a per se request to remain silent. Id. at 723, 99 S.Ct. at 2571. The Court rejected the per se rule, explaining the adequacy of the totality of the circumstances approach as follows:

This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits-indeed, it mandates-inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

Id. at 725, 99 S.Ct. at 2572. Except for the per se requirement of Lohnes, generally, we have analyzed the voluntariness of a juvenile’s confession based upon the totality of the circumstances. See State v. Horse, 2002 SD 47, ¶ 13, 644 N.W.2d 211, 218; State v. Caffrey, 332 N.W.2d 269, 272 (S.D.1983).

[¶-12.] Of course, any analysis presupposes that Miranda warnings have been given. The United States Supreme Court explained the necessity of the warnings and noted,

[f|or those unaware of the privilege, the warning is needed simply to make them aware of it — the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.... Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.

Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 1624-25, 16 L.Ed.2d 694, 707 (1966). The required warnings serve as a safeguard against an atmosphere dominated by custodial police-interrogation, which “creates compelling pressures undermining the will to resist, compelling suspects to speak where they would not otherwise do so voluntarily.” Horse, 2002 SD 47, ¶ 12, 644 N.W.2d at 218 (citing Miranda, 384 U.S. at 467, 86 S.Ct. at 1624).

[¶ 13.] Juveniles are also afforded these safeguards. In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527, 538 (1967). As the Court stated, “[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Id. In providing this protection for juveniles, the Court recognized that juvenile court proceedings often “deal with many cases involving conduct that can lead to incarceration or close supervision for long periods, and therefore juveniles often need the same safeguards that are granted to adults.” Id. at 1450, n. 65 (quoting Nat’l Crime Comm’n Report, pp. 86-87).

[¶ 14.] We have acknowledged that because of the immaturity and vulnerability of children, their right against self-incrimination is of utmost importance. We said in Horse:

The youth of an accused is a significant factor in determining the voluntariness of a confession. A juvenile’s constitutional right against self-incrimination should be afforded additional protection. If counsel is not present when an admission is obtained, a court must take great care to assure that the juvenile’s confession was voluntary, “in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair.”

2002 SD 47, ¶ 12, 644 N.W.2d at 218 (quoting Caffrey, 332 N.W.2d at 272 (emphasis added)). The young mind may lack the sophistication, knowledge or maturity to understand the ramifications of an admission. Thus, we require law enforcement to explain the child’s rights prior to interrogation and to determine if those rights have been waived before proceeding. “Miranda warnings safeguard the privilege against self-incrimination during ‘incommunicado interrogation of individuals in a police-dominated atmosphere.’ ” Horse, 2002 SD 47, ¶ 12, 644 N.W.2d at 218. The atmosphere of interrogation “creates compelling pressures undermining the will to resist, compelling suspects to speak where they would not otherwise do so voluntarily.” Id. “Children can be ‘easy victim[s] of the law,’ so [a court must] take special care to scrutinize the record when juveniles are involved.” Id. ¶ 12 (citing Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303-04, 92 L.Ed. 224, 228 (1948)).

[¶ 15.] What we have said in these prior cases concerning the scrutiny to be applied in determining whether a juvenile’s statements are voluntary still holds. However, we are prepared today to retreat from the per se rule espoused in Lohnes. We, therefore, join the majority of jurisdictions that apply the totality of circumstances analysis. The United States Supreme Court noted that a totality of the circumstances analysis “refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.” Fare, 442 U.S. at 725-26, 99 S.Ct. at 2572. Although we still adhere to our statement in Lohnes “that a juvenile is afforded additional, not less, protection of his constitutional rights,” we no longer approve of the per se rule. 320 N.W.2d at 414. Instead, the voluntariness of a confession should be determined based on an analysis of the totality of the circumstances. Advisement that the juvenile could be tried in adult court is a significant factor in that analysis. As Justice Konenkamp wrote in reference to the importance of the presence of a parent or guardian during questioning,

[W]hile we do not hold that a juvenile has a per se right to consult with a parent, guardian, or custodian before questioning or to have such persons present during questioning, we do hold that notice to a parent, guardian, or custodian and a child’s opportunity to confer with such persons are significant factors in evaluating the voluntariness of a statement or confession under the totality of the circumstances.

Horse, 2002 SD 47, ¶ 26, 644 N.W.2d at 224.

[¶ 16.] Thus, we hold that advisement of the possibility of being tried as an adult, although not a per se rule, is “a significant factor in evaluating the volun-tariness of a statement or confession under the totality of the circumstances.” Id. However, where a juvenile is not advised that he could be tried as an adult, courts should proceed with caution and consider the juvenile’s confession under the backdrop that “a juvenile’s constitutional right against self-incrimination should be afforded additional protection.” Horse, 2002 SD 47, ¶ 12, 644 N.W.2d at 218.

[¶ 17.] The advisement is especially warranted where the juvenile is charged with a crime that falls under SDCL 26 — 11— 3.1. Since 1997, South Dakota law has mandated that delinquents who commit certain crimes shall be tried as adults. SDCL 26-11-3.1. The relevant portion of the statute provides: “Any delinquent child sixteen years of age or older against whom Class A, Class B, Class C, Class 1, or Class 2 felony charges have been filed shall be tried in circuit court as . an adult.” Id. Furthermore, when a delinquent requests a transfer hearing, the statute establishes a “rebuttable presumption that it is in the best interest of the public that any child, sixteen years of age or older, who is charged with a Class A, Class B, Class C, Class 1, or Class 2 felony, shall be tried as an adult.” Id.

[¶ 18.]Under the mandates of SDCL 26-11-3.1, the possibility of a juvenile being tried in adult court is presumed. As the possibility that the juvenile may be tried as an adult becomes more probable, the juvenile should understand that one of the consequences of waiving his rights is that his statements could be used against him in adult court. As the officer’s pre-printed Miranda card directed, law enforcement officers should take this precautionary step, especially where the juvenile has committed a crime enumerated in SDCL 26-11-3.1.

[¶ 19.]The State argues that the absence of such a warning should only be considered when the juvenile is actually tried as an adult. The State, however, cites no authority for its argument. An inquiry of voluntariness requires a determination that the child’s statement “was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair.” Caffrey, 332 N.W.2d at 272 (internal quotations and citations omitted). An invalid waiver of.Miranda rights is not cured simply because the proceedings are juvenile in nature. See In re Gault, 387 U.S. at 47-48, 87 S.Ct. at 1454-55 (stating that delinquency proceedings are criminal for purposes of the Fifth Amendment). The purpose of the right against self-incrimination “is to prevent the state, whether by force or by psychological domination, from overcoming the mind and will of the person under investigation and depriving him of the freedom to decide whether to assist the state in securing his conviction.” Id. at 47, 87 S.Ct. 1428. Thus, we turn to our review of the lower court’s decision.

Voluntariness under Totality of Circumstances Analysis

[¶ 20.]In this case, the trial judge declined to follow the per se rule of Lohnes and considered whether J.J.’s confession was voluntary based on a totality of the circumstances analysis. However, in applying the totality of the circumstances analysis, it is unclear whether the judge considered failure to warn of the possibility of adult prosecution as a factor. Another problem in this case is that information concerning J.J.’s learning disabilities and -the effect of not being told he could be tried as an adult did not surface until the adjudication and disposition hearings. For example, during the adjudication hearing, Mother first testified about J.J.’s delayed development and that she would not have agreed to the interview had she known that J.J. could have been tried as an adult. Similarly, information that J.J. had an IQ of 79, was diagnosed with Attention Deficit Hyperactivity Disorder and was on an Individual Education Plan came through testimony in the adjudication and disposition hearings. The only witness at the suppression hearing was Deputy McMillin. He testified that he went to J.J.’s residence at about 2:30 or 3:00 a.m. He knocked on the door and J.J.’s mother answered. He then explained “what was going on and that [he] needed to speak to J.J. about the incident.” He asked her permission to speak with J.J. She agreed and awoke J.J. During the questioning, McMillin stood in the entry while J.J. and Mother sat at a table in front of him. McMillin explained to them “that no matter what come [sic] about, that [his] mind had already been made up and there was nothing that was going to change the outcome of the interview.” McMillin then read J.J. his Miranda rights from a pre-printed card. He read from the card as follows:

You have the continuing right to remain silent and to stop questioning at any time. Anything you say can be used as evidence against you. You have the continuing right to consult with and have the presence of an attorney. If you cannot afford an attorney, an attorney will be appointed for you. Do you understand your rights? Do you wish to waive your rights and talk to me at this time?

J.J. answered the two questions, “yes.” Although the pre-printed card indicated that when questioning a juvenile, the officer should also explain that the child could be tried as an adult, the deputy admitted he did not read that portion of the card. Thus, J.J. was not informed that there was the possibility of being tried as an adult.

[¶ 21.]During the short interview in the residence, J.J. made no admissions. The deputy then put J.J. under arrest and collected the clothing J.J. had been wearing that day. The deputy then explained to J.J. and Mother that he was taking J.J. to the sheriffs office and would be contacting a judge to decide if- J.J. would be placed in the juvenile detention facility. The deputy then walked J.J. towards the patrol car, which was parked on the street. On the way to the car, J.J. asked McMillin, “if I did tell what I did, do I have to still go in?” McMillin responded, “if you did something, I need to know. I understand it is tough to say certain things in front of your parents.” J.J. then confessed. McMillin testified as follows:

From there he said, “I did do it. She told me to do it.” I said, “a three-year-old girl told you to do it?” He said, “yes,” and I inquired where it was at. He said, “in the Explorer.” I asked, “if I bring your mom out here, will you explain everything to her?” He said he would. So I placed him in the patrol car and went in and got his mom.

Mother then came to the patrol car and J.J. told her what had happened. This taped conversation was introduced into evidence. J.J. asked again if he could stay with his mother. '

[¶ 22.]Based on this evidence and briefs submitted by counsel, the judge decided that the statements were voluntary. In a letter decision, she indicated that the factors she considered were as follows: “1) the defendant’s youth; 2) the defendant’s lack of education or low intelligence; 3) the absence of any advice to the defendant of his constitutional rights; 4) the length of detention; 5) the repeated and prolonged nature of questioning; 6) the use of physical punishment such as the deprivation of food or sleep; 7) the defendant’s prior experience with law enforcement and court system; and 8). whether the interrogating officers used deception or misrepresentation.” The judge’s written decision does not indicate that she took into consideration the factors involving the absence of the warning that he could be tried as an adult and the presence or absence of J.J.’s mother when he made the statements. See Horse, 2002 SD 47, ¶ 26, 644 N.W.2d at 224. She did, however, mention them in her decision as follows:

Having considered the totality of the circumstances, the Court determines that J.J.’s consent to interrogation was freely and voluntarily given. J.J. was fifteen years old at the time of his arrest. He was advised of his Miranda rights prior to the interrogation, but not of the fact that there was a possibility he could be tried as an adult. He indicated he understood his rights, wished to waive them and speak to Deputy McMillan [McMillin]. No evidence that J.J. is of low intelligence has been presented to the Court. J.J. was questioned for a very short period of time in his own home with his mother present. J.J. was not punished in any way during the interrogation. Also, the Court has been presented with no evidence that Deputy McMillan [McMillin] used deception or misrepresentation to obtain the confession. After J.J. initially refused to speak he then reinitiated the conversation outside his mother’s presence and then made incriminating statements. J.J. will be tried in juvenile rather than adult court.

The State had the burden of proving by a preponderance of the evidence that J.J.’s statements were voluntary. Holman, 2006 SD 82, ¶ 13, 721 N.W.2d at 456. Based on the testimony and evidence presented at the suppression hearing, we cannot say that the trial court erred in finding volun-tariness. Evidence of J.J.’s learning disabilities and low IQ and Mother’s claim that she would have stopped the interrogation had she been told that J.J. could be tried as an adult may have tipped the scales against voluntariness. However, that evidence was not presented as part of the motion to suppress. It was not until the adjudicatory hearing that Mother attempted'to testify that she did not know or understand during the questioning at the residence that J.J. could have been tried as an adult and that had she known she would not have allowed McMillin to continue questioning her son. The State objected to her testimony and the judge sustained the State’s objection because it should have been presented at the suppression hearing. The judge then asked as follows:

Well, we’re in the unique situation where a trial is occurring before the Court. We had a full blown suppression on this. You briefed it as did [the State’s Attorney] and there was a significant amount of information that you didn’t apparently bring to the Court. Now, you want to revisit this during the middle of an adjudicatory hearing, is that what you’re asking the Court to do?
The Court’s point is that should have been done at- the suppression hearing. Are you asking the Court to reconsider the ruling made at the suppression hearing by evidence now you’re garnering at the adjudicatory proceeding?

J.J.’s counsel answered that he did not want the judge to reconsider the suppression ruling and that he only offered the information for the purpose of determining the weight and credibility to give to J.J.’s confession. Counsel’s answer was as follows:

I’m asking you, as trier of fact, to make a determination, when you render your decision, not to give any credibility to those admissions that were made under the circumstances in which they were procured and that’s what the jury instruction says, when you look at admissions or confessions, you’re supposed to look at them as suspect, as a jury. That’s the jury, what they are suppose to do. The reason you look at all circumstances under which they were obtained. So all I’m doing is fleshing out how those are to be determined and what weight you are going to give to those admissions.

[¶ 23.] A review of the judge’s findings reveals that almost all of her findings in determining guilt were based on evidence and testimony other than J.J.’s confession. Of the judge’s nineteen findings of fact, only two mention J.J.’s admissions. Her findings in regard to the admissions were as follows:

16. That J.J. admitted, in a conversation with Fall River County Deputy Sheriff Steve McMillin and his mother, that [the niece] wanted to know what it felt like if he put “his winker in her dink,” and that she wanted him to and that he did do it.
17. That the Court reduces the weight given to the admission of J.J. because of the testimony that J.J. is enrolled in an Individual Education Program at the Edgemont School and that he is two years behind as he was not allowed to matriculate immediately from Kindergarten and the fifth grade; however, these grade retentions were a result of J.J.’s maturity levels and not a result of his inability to read, write or communicate.

None of the other findings of fact upon which the judge based her adjudication depended on or were a result of J.J.’s statements. The findings were based On the testimony of the doctor that examined the niece, statements made by the niece to her mother and others, and photographs of the child’s injuries. Even if we were to assume that J.J.’s statements were involuntary, the error was harmless beyond a reasonable doubt because the judge gave reduced weight to the admission and because the evidence supported the adjudication without the admission. See Holman, 2006 SD 82, ¶ 25, 721 N.W.2d at 459.

2. Whether the trial court erred when it found sufficient evidence to adjudicate J J. a delinquent child.

[¶ 24.] J.J. also claims that the evidence was insufficient to adjudicate him as a delinquent. We find no merit to his claim. Although he claims there was no corroborating evidence to establish the corpus delecti of the crime, a review of the evidence shows otherwise. Both the statements of the niece and the medical observation of the doctor establish that a rape occurred and that the perpetrator was J.J. Four pictures of the niece’s vaginal area were introduced into evidence which depicted the injuries explained by the doctor. The doctor’s observations were that a “rubbing” trauma from the skin being pulled back and forth caused tears along the niece’s labia approximately 7-10 mm in length. The doctor testified, based upon the child’s demeanor, the spontaneous allegations made by the niece and the results of the exam that a sexual assault had “probably occurred.” Additionally, the niece told her mother that J.J. had put his “winker” in her “dink.” She complained of burning when she urinated and the photographs showed the redness and trauma to the child’s vaginal area.

[¶ 25.] J.J. also claims that the hearsay statements of the child should not have been considered by the court. The child’s statements came in without objection, consequently, this issue was not preserved for appeal. Rogen v. Monson, 2000 SD 51, ¶ 15, 609 N.W.2d 456, 460 n. 2 (stating that the failure to make a timely objection does not preserve the issue for appeal).

[¶26.] Based on our standard of review, we cannot say that the trial judge erred in adjudicating J.J. a delinquent child. We affirm on all issues.

[¶ 27.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . States that have expressly rejected a per se rule requiring that a juvenile be warned of the possibility of adult prosecution include: Alaska, Watkinson v. State, 980 P.2d 469, 472-73 (Alaska Ct.App.1999) (identifying New Hampshire and South Dakota as the only two states to impose this requirement); Connecticut, State v. Perez, 218 Conn. 714, 591 A.2d 119, 123-24 (1991); Delaware, Marine v. State, 607 A.2d 1185, 1197; North Carolina, State v. Taylor, 128 N.C.App. 394, 496 S.E.2d 811, 816 (N.C.Ct.App.1998); Oklahoma, J.D.L., Jr. v. State, 782 P.2d 1387, 1390 (Okla.Crim.App.1989); Rhode Island, State v. Campbell, 691 A.2d 564, 567 (R.I.1997); and Tennessee, State v. Callahan, 979 S.W.2d 577, 582 (Tenn.1998).
      Some states that have declined to adopt a per se rule have found that the nature of the offense and the custodial nature of the interrogation may allow the juvenile to infer that he may be tried as an adult. See Quiriconi v. State, 96 Nev. 766, 616 P.2d 1111, 1114 (1980); State v. Gullings, 244 Or. 173, 416 P.2d 311, 313-14 (1966); State v. Luoma, 88 Wash.2d 28, 558 P.2d 756, 761-62 (1977).

      . A recent law review article by Kenneth J. King, entitled, “Waving Childhood Goodbye: How Juvenile Courts Fail to Protect Children From Unknowing, Unintelligent, and Involuntary Waivers of Miranda Rights," cited several studies which analyzed whether juveniles understood the meaning of Miranda warnings. 2006 Wis.L.Rev. 431, 433. According to one such study, only 21% of children, compared to 42.3% of adults, were able to comprehend the meaning and significance of Miranda warnings. Id. Of these children, 55% could not understand at least one component of the Miranda warnings compared to 23% of adults. Id. Compounding this problem, King also noted that the children that make up the juvenile justice system are much more likely as a whole to have mental illnesses, substance abuse problems, or learning disabilities. Id. at 443-44, 86 S.Ct. 1602. These studies suggest that, "a juvenile's vulnerability and immaturity place him at a greater disadvantage than an adult when dealing with police,” demonstrating the need for greater protection for a juvenile's Fifth Amendment rights. Id. at 455, 86 S.Ct. 1602.

      . The legislature recently added Class C-felonies to the list of felonies that automatically require delinquents to be tried as adults. 2006 SD Laws ch. 117 section 5.