Anderson v. State, 14613

• Citation: 373 N.W.2d 438
• Decision Date: 07 January 1985
• Docket Number: No. 14613,14613
• Parties: Donald L. ANDERSON, Applicant and Appellant, v. STATE of South Dakota, Respondent and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 438

373 N.W.2d 438

Donald L. ANDERSON, Applicant and Appellant, v. STATE of South Dakota, Respondent and Appellee.

No. 14613.

Supreme Court of South Dakota.

Considered on Briefs Jan. 7, 1985.

Decided Aug. 21, 1985.

Robert W. Swank of Hanson, Stiles, Anderson & Swank, Mitchell, for applicant and appellant.

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

MORGAN, Justice.

Appellant Donald L. Anderson (Anderson) was convicted of forgery under SDCL 22-39-36. His attorney failed to perfect a timely appeal. Anderson then applied for a writ of habeas corpus and a peremptory writ was issued. After a hearing on the matter, the trial court quashed the writ of habeas corpus and dismissed an amended application for writ of habeas corpus. The trial court issued a certificate of probable cause and Anderson served and filed his notice of appeal. We affirm.

A jury convicted Anderson of forgery for cashing a check issued to his estranged wife, Jean Anderson, by endorsing the check in her name. After Anderson was sentenced, he informed the trial court that he would appeal the conviction and requested that a Sioux Falls attorney with whom he had discussed the potential appeal be appointed as appellate counsel. The trial court granted that request. Sixteen days after the judgment of conviction was entered, appellate counsel mailed a notice of appeal to the South Dakota Attorney General's Office and to the Lake County Deputy State's Attorney and thereby fulfilled two of the three filing requirements set out in SDCL 23A-32-16. Appellate counsel failed, however, to perfect the appeal by timely filing the notice of appeal with the clerk of courts. Appellate counsel apparently mailed the notice of appeal, along with his order for a transcript, to the trial judge's court reporter under the assumption that the court reporter would file the notice of appeal with the clerk of courts. The court reporter did not file the notice of appeal and apparently discarded both documents after preparation of the trial transcript.

On August 19, 1983, more than two months after time for appeal elapsed, appellate counsel discovered that the notice of appeal had not been filed with the Clerk of the Supreme Court. On August 26, 1983, appellate counsel served a second notice of appeal on the state's attorney and the attorney general's office and requested this court to permit him to file a late notice of appeal. Because the statutory time limit set out in SDCL 23A-32-15 is jurisdictional, the request was denied and Anderson's appeal was dismissed.

In his application for habeas corpus below, Anderson contended that dismissal of his appeal foreclosed review of numerous procedural defects in his trial. He raises two issues on this appeal from the trial court's order quashing the writ of habeas corpus: (1) whether he was denied his constitutional right to due process through ineffective assistance of counsel when appellate counsel failed to perfect an appeal of the conviction, and (2) whether he was denied his constitutional right of due process through ineffective assistance of trial counsel at trial. Because Anderson is presently being represented by the third in a series of court-appointed counsel, we will refer to his various counsel in the following manner. The counsel who represented him at the criminal trial will be referred to as "trial counsel"; the counsel who represented him on the aborted appeal will be referred to as "appellate counsel"; and the counsel who represented him in the habeas corpus proceedings and represents him on this appeal will merely be referred to as "counsel."

There are three important rules on the right of effective assistance of counsel. First, Anderson had a right to representation by counsel in the criminal prosecution against him. United States Constitution, Amendment VI; South Dakota Constitution, Article VI, Section 7. Second, representation is guaranteed at every critical stage of a criminal proceeding, including appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) (cited in Hinkle v. State, 290 N.W.2d 28 (Iowa 1980)); State v. Moore, 203 Neb. 94, 277 N.W.2d 554 (1979). Third, the constitutionally guaranteed representation must be adequate and effective; a mere perfunctory and casual representation does not satisfy the guarantee. State v. Pieschke, 262 N.W.2d 40 (S.D.1978).

"A vital corollary of this guarantee is the requirement of effective assistance of counsel, that is, counsel reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances." Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir.1982) (emphasis in original), aff'd on this issue in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The same standards that are applied to trial counsel's competence should apply in measuring appellate counsel's competence. Hinkle, supra. In reviewing the adequacy and effectiveness of representation, we must determine whether counsel exercised the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances. High Elk v. State, 344 N.W.2d 497, 500 (S.D.1984).

We will first review the issue of ineffective assistance of appellate counsel. Counsel cites us to our holding in Grooms v. State, 320 N.W.2d 149 (S.D.1982), for the propositions that: (1) defense counsel's failure to perfect an appeal was a deprivation of his client's constitutional right to effective assistance of counsel; and (2) such deprivation warranted a new trial for defendant upon his application for post-conviction relief.

Anderson contends that failure to perfect an appeal amounts to per se ineffective assistance of counsel and warrants reversal of the conviction and remand for a new trial. We disagree.

Not every instance of ineffective assistance requires the reversal of a conviction, however, for a defendant must demonstrate that he has suffered prejudice as a result of the ineffective representation. (citations omitted) Moreover, the prejudice must be material to warrant relief by way of reversal.

High Elk, 344 N.W.2d at 501; Miller v. State, 338 N.W.2d 673 (S.D.1983).

"[A] rule of per se prejudice would be contrary to the teachings of United States v. Morrison, 449 U.S. 361, 364-65, 101 S.Ct. 665,668, 66 L.Ed.2d 564 (1981), that the remedy for a violation of defendant's right to adequate assistance of counsel should be tailored to the harm caused by that violation." Strickland, 693 F.2d at 1259 (emphasis in original).

Additionally, a rule of per se prejudice is especially inappropriate in the case of ineffective assistance because the state is not responsible for the violation of the petitioner's rights. Since the rule would not serve to deter the state from any unconstitutional course of action, the sole effect of the rule would be to bestow an undeserved windfall upon criminal defendants who were not harmed by the errors of their attorneys.

693 F.2d at 1260. "Finally, the proposed rule would distort the function of the writ of habeas corpus.... The writ exists to redress fundamental unfairness in ... criminal proceedings." Id.

Counsel has grossly misstated our decision in Grooms, supra. The remand for new trial in Grooms was not predicated solely upon the failure of counsel to perfect an appeal. Rather, it was first predicated on trial counsel's failure to propose a jury instruction on the necessity for corroboration of accomplice testimony. The decision points out the importance of the instruction in order to negate the damning testimony of an accomplice. Noting that on post-conviction proceedings we were precluded from reviewing the alleged jury instruction errors, we stated: "[T]rial counsel's failure to request a precautionary jury instruction regarding the reliability of accomplice testimony and his failure to timely appeal from appellant's conviction are evidence of his failure to protect the interests of appellant." 320 N.W.2d at 152 (emphasis added). We further concluded: "In light of the circumstances before us, we find that appellant was denied adequate and effective assistance of counsel and we reverse and remand for a new trial." Id.

The trial court in the habeas corpus proceedings below concluded as a matter of law that:

Failure of Defendant's second attorney to properly bring an appeal on time is not in and of itself sufficient to entitle the Defendant to question the Judgment of Conviction by collateral attack. The Defendant must demonstrate prejudicial error at trial proceedings, which in this case has not been done.

We agree with that conclusion.

We then examine the second aspect, whether trial counsel was so ineffective as to deprive Anderson of his constitutional right of due process. In order to show the ineffectiveness of trial counsel's representation, Anderson must show that he failed to perform an essential duty and that prejudice resulted therefrom. Thomas v. Lockhart, 738 F.2d 304 (8th Cir.1984); United States v. Peeler, 738 F.2d 246 (8th Cir.1984). The prejudice shown must work to the defendant's actual and substantial disadvantage and infect the entire trial with error of constitutional dimensions. Miller, supra. Anderson has the burden of proof and must demonstrate that his constitutional rights have been violated. In Re Grand Jury Subpoena, 739 F.2d 1354 (8th Cir.1984).

The United States Supreme Court considered the issue of ineffective assistance of counsel in Strickland, --- U.S. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698, and set out the appropriate test for prejudice:

[T]he 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.

The Strickland Court...