Brakeall v. Weber

• Decision Date: 30 July 2003
• Docket Number: No. 22592.,22592.
• Parties: Winston G. BRAKEALL, Petitioner and Appellant, v. Douglas WEBER, Warden South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

668 N.W.2d 79

2003 SD 90

Winston G. BRAKEALL, Petitioner and Appellant, v. Douglas WEBER, Warden South Dakota State Penitentiary, Respondent and Appellee.

No. 22592.

Supreme Court of South Dakota.

Considered on Briefs April 28, 2003.

Decided July 30, 2003.

Timothy J. Wilka, Sioux Falls, South Dakota, Attorney for petitioner and appellant.

John M. Strohman, Assistant Attorney General, Lawrence E. Long, Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

GILBERTSON, Chief Justice

[¶ 1.] Winston Brakeall petitions this Court for a writ of habeas corpus alleging his guilty pleas for two counts of rape and two counts of sexual contact were not knowing and voluntary; his counsel was ineffective; and the preparation and introduction of the presentence investigation report violated his right to due process of law. The habeas court denied Brakeall's request for a writ of habeas corpus. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Brakeall pleaded guilty to one count of third degree rape, one count of first degree rape and two counts of sexual contact with a minor. Brakeall was sentenced to ten years for third degree rape, thirty years for first degree rape, and two ten year sentences for sexual contact with a minor. The sexual contact sentences were made to run consecutively. Brakeall did not exercise his right to direct appeal from these convictions.

[¶ 3.] Thereafter, attorney Carolyn Dick was appointed to represent Brakeall on habeas (habeas I). In that habeas proceeding, counsel raised the following issues:

Did an evaluation conducted as part of the presentence investigation report prepared by the victim's therapist violate Brakeall's right to due process?

Were Brakeall's due process rights violated when he was given no opportunity to review the pre-sentence investigation prior to sentencing?

Does the requirement that Brakeall participate in the STOP program violate his Fifth Amendment right against self incrimination?

Did Brakeall enter a knowing and intelligent plea when the trial court failed to advise him of the mandatory minimum sentences he was facing?

Was Brakeall's trial counsel ineffective when she failed to investigate and consider possible defenses and by failing to object to the presentence investigation?

[¶ 4.] The habeas court denied the application for a writ of habeas corpus and issued a certificate of probable cause. Attorney Dick was reappointed to represent Brakeall for the habeas appeal. She then filed a notice of appeal with this Court. That notice of appeal was one day late and pursuant to SDCL 21-27-18.1 this Court dismissed the appeal.

[¶ 5.] The State did not dispute that attorney Dick's failure to timely file this notice of appeal was ineffective assistance of counsel. A second habeas corpus proceeding was then brought. The second habeas court issued a writ of habeas corpus directing that a certificate of probable cause be re-entered in Brakeall's first habeas case as a result of habeas counsel's ineffectiveness in failing to perfect his appeal. Brakeall was then granted a certificate of probable cause by the second habeas court.

STANDARD OF REVIEW

[¶ 6.] The review of habeas decisions is "a collateral attack on a final judgment," and thus more restricted than ordinary appeals. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324 (citations omitted) overruled on other grounds by Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19. The recognized standard of review is to determine: "(1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights." Id. We will not reverse the habeas court's findings unless they are clearly erroneous. Id. Therefore, if the habeas court was "right for any reason," we may affirm its ruling. Id.

ANALYSIS

ISSUE ONE

[¶ 7.] Whether Brakeall entered a knowing and voluntary plea when the trial court failed to advise him of the mandatory minimum sentences.

[¶ 8.] It is undisputed that the trial court failed to advise Brakeall of the mandatory minimums for the crimes in which he pled guilty. Brakeall contends this failure renders his plea unconstitutional thus entitling him to habeas relief. Both parties assert this Court's recent decision in State v. Richards, 2002 SD 18, 640 N.W.2d 480, is the controlling authority.

[¶ 9.] In Richards, this Court determined that the defendant was entitled to withdraw his guilty plea after the trial court failed to advise him of the statutory mandatory minimum as required by SDCL 23A-7-4 (Rule 11). Id. ¶ 15. That failure was deemed to constitute plain error requiring a reversal. Id. ¶ 6. Brakeall asserts that the same result is mandated here.

[¶ 10.] SDCL 23A-7-4(1) provides:

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.

(emphasis added). "It is the trial court's responsibility to inform a defendant of the mandatory minimum penalty and the maximum penalty provided by law." Id. ¶ 7 (quoting State v. Wilson, 459 N.W.2d 457 (S.D.1990)). In reaching this result, the Richards court cited with approval North Dakota authority enunciating the following principles:

The failure to advise of the mandatory minimum sentence is more than a technical, harmless error and demonstrates a manifestation of injustice.

The trial court's express statement on the record of an applicable mandatory minimum sentence eliminates the inherent danger of misinterpreting whether the defendant's decision to plead guilty was made with full knowledge of the sentence which must be imposed as a result of that plea.

The interests of justice require that [the defendant] be allowed to withdraw his guilty plea.

Id. ¶¶ 13-14 (quoting State v. Schumacher, 452 N.W.2d 345 (N.D.1990)). Though the Richards decision involved a direct appeal case, Brakeall contends that the above cited authority indicates that the failure to advise of the mandatory minimum also constitutes constitutional error requiring a writ of habeas corpus to be issued. In response, the State cites footnote one of the Richards opinion to dispel this contention. That footnote states:

Regardless of what principal of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.

In State v. Moeller, 511 N.W.2d 803 (S.D.1994) the Court noted that failure to comply with SDCL ch 23A 7 does not rise to the level of a constitutional issue and is not proper for consideration of habeas corpus or similar collateral attack. The failure to advise a defendant of a maximum sentence under SDCL 23A-7-4 is not a constitutional defect, in and of itself does not smack of a miscarriage of justice, and does not give rise to an opportunity to launch a collateral attack on a predicate conviction.

Id. n. 1 (emphasis added). This reasoning dispels Brakeall's contention that a failure to advise of a mandatory minimum entitles him to habeas relief. The asserted grounds for relief are not within the scope of habeas review.

[¶ 11.] Furthermore, even if habeas review were appropriate in order to collaterally attack his plea Brakeall is required to demonstrate prejudice resulting from the trial court's failure to comply with Rule 11. See United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (holding collateral relief not available to defendant who shows only violation of formal requirements of Rule 11 and no prejudice). Here, not one but two habeas courts have found that Brakeall did not suffer prejudice as a result of the trial court's failure to advise of the mandatory minimums. The findings demonstrate that Brakeall was aware he faced a sentence in the double digits; Brakeall intended to plead guilty from the beginning of the case; and, based upon Brakeall's statements at sentencing and counsel's comments, the trial court's advisement of the mandatory minimum would not have made a difference in the decision to plead guilty. Those findings are not clearly erroneous on this record. As a result, Brakeall has not met his burden and the writ of habeas corpus relating to this issue was properly denied.

ISSUE TWO

[¶ 12.] Whether Brakeall's trial counsel was ineffective for failing to investigate.

[¶ 13.] Initially, Brakeall argues that his first habeas counsel was ineffective for failing to present evidence that his trial counsel was ineffective. In this regard, he requests a remand for a hearing to address the facts surrounding trial counsel's performance.

[¶ 14.] In Jackson, 2001 SD 30, ¶ 17, 637 N.W.2d at 23, this Court determined that:

We recognize that if habeas counsel must meet the same competency standards as trial counsel, then more than one claim of ineffective assistance of counsel may be brought on occasion. However, ineffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action. Any new effort must eventually be directed to error in the original trial or plea of guilty.

Brakeall directs his contentions against the effectiveness of trial counsel by arguing that his first habeas counsel failed to challenge trial counsel's...