Alexander v. Solem

• Decision Date: 16 January 1986
• Docket Number: No. 15037,15037
• Citation: 383 N.W.2d 486
• Parties: Everett ALEXANDER, Petitioner and Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary, Respondent and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 486

383 N.W.2d 486

Everett ALEXANDER, Petitioner and Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary Respondent and Appellee.

No. 15037.

Supreme Court of South Dakota.

Considered on Briefs Jan. 16, 1986.

Decided March 12, 1986.

Richard Braithwaite, Braithwaite Law Offices, Sioux Falls, for petitioner and appellant.

Clair B. Ledbetter, Asst. Atty. Gen., Pierre, for respondent and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

HERTZ, Acting Justice.

This criminal appeal arises from an order dissolving the appellant/petitioner's writ of habeas corpus. We affirm.

STATEMENT OF FACTS

On July 28, 1981, an information was filed charging the petitioner herein, Everett Alexander, ("Alexander"), with six counts of Third Degree Forgery. At the same time a Part II Information was filed charging Alexander with being an habitual offender under SDCL 22-7-7, and which set forth five prior felony convictions.

Thereafter, Alexander entered into a written plea agreement on August 27, 1981, whereby he agreed to plead guilty to both parts of the Information and the State of South Dakota, ("State"), agreed to recommend a 35 year prison sentence. On this same date, both Alexander and the State carried out the terms of the plea agreement and the trial judge sentenced him to serve 35 years in the South Dakota State Penitentiary. A Judgment of Conviction was filed on August 28, 1981.

On April 6, 1983, Alexander filed a petition for post-conviction relief in circuit court. In the petition, Alexander alleged ineffective assistance of counsel relative to the plea agreement which he voluntarily executed with the State. Following a hearing on the petition on August 8, 1983, and after briefs were filed by the respective parties, the court entered Findings of Fact and Conclusions of Law and an Order denying Alexander's petition on November 15, 1983. The trial court denied Alexander's Application for a Certificate of Probable Cause on January 24, 1984.

The habeas corpus proceeding from which this appeal arises was commenced by petition on January 25, 1985. A hearing was held on the writ on March 8, 1985. Findings of Fact, Conclusions of Law, and an Order dissolving the Writ of Habeas Corpus were entered on June 17, 1985. Certificate of Probable Cause was entered June 21, 1985. Appeal from the order dissolving the writ was filed on July 1, 1985.

Presently, Alexander attacks the validity of the trial court's determination that he was an habitual offender. Specifically, he argues that at the habeas corpus hearing, the State improperly supplemented the record to show that Alexander was represented by counsel, or waived it, pursuant to the five prior felony convictions upon which the Part II Habitual Information was based. As such, Alexander contends that the prior convictions could not properly be used for enhancement purposes, and thus, his 35 year sentence must be vacated because it was based, in part, upon impermissible considerations.

At the underlying criminal trial, Alexander was charged by a Part II Information with being an habitual offender in accordance with SDCL 22-7-7. The prosecutor therein attached certified copies of judgments of conviction to the Part II Information which showed that Alexander had been convicted of five prior felonies. Pursuant to three of the convictions, the documents indicated that Alexander had been represented by court appointed counsel, all of whom were denoted by name. A fourth conviction which occurred in Sweetwater County, Wyoming, showed that Alexander was appraised of his rights and was offered counsel, but thereafter waived his right to counsel in open court. The fifth conviction was silent as to whether or not Alexander was represented by counsel or waived such right.

A review of the Part II Information indicates that it comports with SDCL 22-7-11. As mentioned previously, Alexander plead guilty to the Part II Information as part of the plea agreement entered into on August 27, 1981.

At the habeas corpus proceeding on March 8, 1985, the court took judicial notice of the entire underlying criminal file. Alexander offered no other evidence and he did not testify. The court also took judicial notice of the initial post-conviction file which was heard in Lawrence County, South Dakota upon which Alexander was denied relief on November 15, 1983.

At the March 8, 1985 habeas corpus hearing, the State submitted evidence that the Part II Information had attached to it certified copies of five Judgments of Conviction which were contained in the original criminal file of which the habeas court took judicial notice. Moreover, Alexander's trial counsel testified at this hearing in regard to the fact thatAlexander was represented by counsel, or waived this right, pursuant to four out of the five prior felony convictions. Furthermore, he stated that this information was presented to Alexander, as well as himself, at the time of Alexander's arraignment upon the six count forgery charge, and at the time of the plea bargain in this matter.

Pertinent to our discussion is the premier habeas case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in which the United States Supreme Court stated that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. The opinion further states that the judgment of a court carries with it a presumption of regularity. The Court thereafter stated:

Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel.

Id., 304 U.S. at 468-469, 58 S.Ct. 1025.

Similarly, in State ex rel. Parker v. Jameson, 75 S.D. 196, 197, 61 N.W.2d 832, 833 (1953), we wrote that one deprived of his liberty through violation of the right to have aid of counsel may collaterally attack, by writ of habeas corpus, a judgment imposing a prison sentence. However, we further stated that a return made on behalf of the warden showed the warden's right to custody over the prisoner by virtue of the judgment, and it made out a prima facie case in the warden's favor. We held, therefore, that the burden was on the petitioner to prove the illegality of his restraint; which "is the burden of proving his allegations that he had been denied substantial aid of counsel and due process of law." Id., 75 S.D. at 200, 61 N.W.2d at 834.

In the case at bar, Alexander presented no evidence or testimony at the habeas corpus hearing to rebut the presumption of regularity which attached to the trial court's judgment of conviction. By contrast, the State offered persuasive evidence in regard to Alexander's five prior convictions by moving the habeas court to take judicial notice of his underlying criminal file. Thus, in Reeves v. Mabry, 480 F.Supp. 529, 536 (W.D.Ark.1979), wherein the petitioner sought habeas corpus relief, the court stated:

A previous conviction of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted. The following are sufficient to support a finding of a prior conviction: (1) a duly certifiedcopy of the...