Erickson v. Weber

Citation2008 SD 30,748 N.W.2d 739
Decision Date16 April 2008
Docket NumberNo. 24624.,24624.
PartiesJason D. ERICKSON, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
CourtSupreme Court of South Dakota

Mark McBride, Beverly Hills, California, and Julia M. Dvorak and Reed Rasmussen of Siegel, Barnett and Schutz Aberdeen, South Dakota, Attorneys for petitioner and appellant.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] On October 28, 2004, Jason Erickson (Erickson) filed a petition for writ of habeas corpus in the South Dakota Fifth Judicial Circuit alleging that the State failed to disclose evidence relevant to his sentencing. Erickson filed a supplemental petition on December 19, 2005. The habeas court heard the matter on May 26, 2006. Thereafter, the court denied Erickson's petition, filing its letter opinion on December 22, 2006, with findings of fact and conclusions of law entered on July 27, 2007. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Erickson's appeal from the habeas court arises from two aggravated assault convictions and his admission to a part 2 habitual offender information stemming from an armed standoff that started on the night of August 9, 2002. The incident began when law enforcement attempted to initiate a traffic stop after clocking Erickson traveling 95 mph in a 65 mph zone. Erickson, who later told a Department of Criminal Investigation agent that he did not stop because he was intoxicated and did not want a DUI, led law enforcement to his rural Spink County South Dakota home near Tulare.

[¶ 3.] When Erickson arrived at his property, a Spink County Sheriff's Deputy, who was on foot, attempted to stop his vehicle. However, Erickson continued on to his farmhouse, nearly running down the deputy in the process. Once inside, Erickson barricaded himself. Armed with numerous firearms and a large quantity of ammunition, he proceeded to hold officers from a number of northeastern South Dakota law enforcement agencies at bay for several hours. During the standoff, Erickson fired multiple rounds of shotgun and rifle ammunition at law enforcement and their vehicles.

[¶ 4.] Sometime after 4:00 a.m. on the morning of August 10, Detective Steve Pinok (Pinok) of the Aberdeen, South Dakota Police Department was contacted to assist in negotiations with Erickson. Unable to communicate with him by phone, Pinok was driven by armored personnel carrier to speak with Erickson through a farmhouse window. Pinok testified during his deposition that he asked Erickson, "what I could do or what I could provide to him to have him lay down his arms and come out peacefully."1 Erickson told Pinok that he wanted assurances that he would not go to the penitentiary and that he would receive assistance with chemical dependency and mental health issues.

[¶ 5.] Pinok relayed this information to Spink County State's Attorney, Victor Fischbach. At around 5:20 a.m., Fischbach, together with the Spink County Sheriff, Les Helm, left the scene of the standoff and drove to Redfield, South Dakota where Fischbach typed up a letter addressing Erickson's demands in exchange for his peaceable surrender to law enforcement. Fischbach and Sheriff Helm returned and gave the Letter to Pinok, who read it to Erickson from the armored personnel carrier. The Letter, on State's Attorney letterhead, dated August 10, 2002, referred to by the habeas court as the "Fischbach Letter," stated the following:

In consideration of Jason Erickson laying down his arms and surrendering to law enforcement, the state agrees to help him get the assistance he needs with a chemical dependency and psychological evaluations. In exchange for Jason Erickson agreeing to pay restitution on the aggravated assault upon an officer, the state further agrees to consider not seeking a penitentiary sentence.

The states [sic] position here is that Jason Erickson needs to get help and he realizes that. The states [sic] primary interest here is ensuring that nobody, including Jason Erickson, gets hurt or killed. The state will uphold this offer if Jason Erickson exits his house peacefully and immediately.

Fischbach then added the following hand-written note to the bottom of the Letter:

Additional: I Hereby agree to A $10,000 dollar PR Bond upon condition of his turn In an [sic] booking and agreement to turn himself In for NEMH [Northeastern Mental Health] in Aberdeen, Brown Co. SD on 8-11-02 at 8:00 AM. Should these conditions not be followed the PR Bond will be revoked.

VBF

During his deposition, Pinok testified that after reading the Fischbach Letter, he asked Erickson what he thought about the Letter. Pinok testified that Erickson replied, "It sounds good."

[¶ 6.] Erickson subsequently surrendered to the chief deputy of the Spink County Sheriff's Department. Erickson was handcuffed. Pinok testified that he handed the Fischbach Letter to the chief deputy and that he "saw the chief deputy fold it up and put it into his pocket and tell Jason [Erickson], `I've got it right here.'"

[¶ 7.] On August 13, 2002, Erickson was indicted by a Spink County Grand Jury. He was charged with two counts of attempted first degree murder, four counts of aggravated assault, one count of felony intentional damage to property, possession of a firearm by one with a prior violent crime conviction,2 eluding law enforcement, reckless driving, obstructing law enforcement and resisting arrest. On September 10, 2002, a part 2 habitual offender information was filed against Erickson.

[¶ 8.] Erickson retained defense counsel, Ron Volesky (Volesky), who arranged a plea agreement whereby Erickson agreed to plead guilty to two counts of aggravated assault and admit to the habitual offender information. In exchange, the State agreed to dismiss the remaining charges and file no further charges in connection with the standoff. Erickson appeared in circuit court on January 14, 2003 and pleaded guilty to the charges as set out in the plea agreement. The circuit court accepted the plea based on the factual basis in the record to support the charges and Erickson's acknowledgment of his agreement to the terms of the plea agreement. However, sentencing was stayed pending the completion of a presentencing investigation that had been requested by Erickson.

[¶ 9.] On March 25, 2003, a stipulation for substitution of counsel was filed whereby attorney Terry Sutton (Sutton) was substituted for Volesky. Sutton filed a request to withdraw Erickson's pleas.3 However, sentencing went ahead as scheduled. On August 19, 2003, Erickson was sentenced to 10 to 20 years indeterminate on each of the two aggravated assault counts, to be served consecutively. On June 25, 2004, the South Dakota Board of Pardons and Paroles set the term on each of the two counts at 20 years.

[¶ 10.] Erickson filed a pro se habeas petition on October 28, 2004. On November 15, 2004, attorney Kenneth Tschetter (Tschetter) filed a notice of appearance on behalf of Erickson in the habeas action. On January 25, 2005, a substitution of attorney was filed along with motion for pro hac vice requesting admission of attorney Mark McBride (McBride) from Hollywood, California to represent Erickson in the habeas action. McBride was admitted to represent Erickson on January 27, 2005.

[¶ 11.] On May 5, 2005, McBride wrote Fischbach a letter in which he indicated that he had reviewed the record, including "station logs" compiled by law enforcement during Erickson's standoff. McBride went on to state that from the station logs, "it appears that you went to the scene of the incident, left the scene to type up an agreement [the Fischbach Letter], and returned shortly thereafter with the agreement."4 He further stated, "It is my understanding that this agreement contained a plea bargain between you and my client, Mr. Erickson, and that this plea agreement contained statements made by my client."

[¶ 12.] On September 6, 2005, McBride filed a notice of hearing to compel discovery along with an affidavit in support of said discovery motion. On September 15, 2005, Fischbach sent a letter to McBride explaining that he had just received a correspondence from the Spink County Sheriff's Department indicating that the Fischbach Letter had been located in a "Do Not Destroy" evidence file at the Sheriff's office. Fischbach enclosed a copy of the Fischbach Letter with the letter to McBride.

[¶ 13.] Subsequently, attorneys Volesky, Sutton and Tschetter each filed affidavits in connection with Erickson's habeas action. All three attorneys denied having knowledge of the Fischbach Letter until it was shown to them by McBride in mid-October 2005.

[¶ 14.] At the hearing on May 26, 2006, Erickson alleged that the State failed to disclose evidence favorable to him, thereby violating his right to due process. Erickson argued that his guilty plea should be vacated or corrected to take account of the alleged plea agreement in the Fischbach Letter. Fischbach testified that there was only one copy of the Fischbach Letter and that following the standoff, he believed that Erickson had it in his possession.

[¶ 15.] The habeas court found that both Erickson and Fischbach knew of the Fischbach Letter and that neither told Volesky, Sutton or Tschetter about its existence; that there was no evidence that the Fischbach Letter was ever in Erickson's case file and that Fischbach neither knowingly or intentionally failed or refused to produce the Fischbach Letter for any of Erickson's attorneys; that Fischbach believed there to be one copy of the Fischbach Letter and that he believed it was in Erickson's possession; that Fischbach responded truthfully to McBride's May 5, 2005 request for the Fischbach Letter when he told him that he did not have it and that it was not until McBride filed his motion to...

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