Gregory v. Class

• Decision Date: 24 March 1998
• Docket Number: No. 20182,20182
• Parties: Garland Ray GREGORY, Jr., Applicant and Appellant, v. Joseph CLASS, Warden of the South Dakota State Penitentiary, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 873

584 N.W.2d 873

1998 SD 106

Garland Ray GREGORY, Jr., Applicant and Appellant, v. Joseph CLASS, Warden of the South Dakota State Penitentiary,

Defendant and Appellee.

No. 20182.

Supreme Court of South Dakota.

Considered on Briefs March 24, 1998.

Decided Sept. 9, 1998.

Lester Nies of Richards, Hood & Nies. P.C., Spearfish, for applicant and appellant.

Mark Barnett, Attorney General, Jeffrey P. Hallem, Assistant Attorney General, Pierre, for defendant and appellee.

KONENKAMP, Justice.

¶1 In this appeal, we must decide if the common law writ of coram nobis is available to review issues which were examined or could have been examined in a petitioner's earlier post-conviction proceedings. After state and federal habeas applications had been resolved against him, petitioner sought a writ of error coram nobis. Largely, he alleged the same arguments that had either been adjudicated or could have been adjudicated in earlier proceedings. Because this special writ may only be used to remedy a profound injustice when a petitioner has no other available remedy, issues already decided or that could have been previously asserted cannot serve as a basis for coram nobis relief. We affirm the circuit court's dismissal.

Facts

¶2 Garland Ray Gregory was charged with murder and conspiracy to commit murder in connection with the November 1, 1979, shotgun slaying of Michael Young. On November 6, 1979, Gregory, accompanied by counsel, appeared before a law-trained magistrate and was advised of the charges, the possible penalties, and the applicable constitutional and statutory rights. Gregory was bound over for trial on both charges after a preliminary hearing. He was later charged by information and appeared for an arraignment on December 12, 1979.

¶3 At the arraignment, the trial court gave Gregory a form outlining his statutory and constitutional rights. It informed him that (1) he was charged with the offense of conspiracy to commit murder and murder arising out of the death of Michael Young; (2) the maximum penalty for conspiracy to commit murder was life imprisonment; and (3) the penalty for murder was death or life imprisonment. Gregory told the court that he understood everything contained in the form. He pled not guilty.

¶4 After a codefendant decided to plead guilty, Gregory made a plea agreement with the State, and appeared before the circuit court for a change of plea hearing on March 13, 1980. The court canvassed Gregory regarding his understanding of his constitutional rights, the effect of a plea of guilty on those rights, whether his plea was voluntary, and whether he had been threatened, coerced, or otherwise improperly influenced. Gregory stated that his plea agreement was free and voluntary. The court, after a review of the entire file, including the codefendant's proceedings, concluded there was a sufficient factual basis to support Gregory's guilty plea to conspiracy to commit murder. He was sentenced to life imprisonment.

¶5 Gregory petitioned for post-conviction relief pursuant to SDCL ch 23A-34 on January 27, 1981. The circuit court denied the petition and Gregory appealed. We held that the trial court had a sufficient factual basis to accept Gregory's guilty plea, and that the court properly took judicial notice of the file for purposes of establishing a factual basis. Gregory v. State, 325 N.W.2d 297, 299 (S.D.1982)[Gregory I ]. Gregory's plea of guilty was knowing, intelligent, and voluntary, despite his expressed concern over an element of the crime to which he was pleading guilty. We nonetheless remanded for entry of specific findings of fact and conclusions of law on whether he was advised of the nature and elements of the crime charged.

¶6 On remand, the court, without taking additional testimony or argument, entered specific findings and conclusions, ruling that Gregory had been informed of and understood the nature of the charges against him, the consequences of his plea, and that his plea had been a voluntary and intelligent choice among the alternatives open to him. From this decision, Gregory again appealed. We affirmed, holding that the existing record, when viewed in the totality of the circumstances, fairly supported the court's findings and conclusions. Gregory v. State, 353 N.W.2d 777, 780 (S.D.1984)[Gregory II ]. We specifically rejected Gregory's argument that the trial court was required to advise him of the elements of the offense of conspiracy to commit murder for a valid plea to be entered as well as his contention that the guilty plea was invalid as he was not informed that the imposition of a life sentence precluded the possibility of parole.

¶7 Gregory then filed a habeas corpus petition in the United States District Court, alleging essentially the same issues he had raised in his state court post-conviction proceedings. The district court dismissed the petition, from which Gregory appealed to the Eighth Circuit Court of Appeals. In affirming, the Eighth Circuit, after setting forth a detailed summary of facts, rejected Gregory's assertion that his guilty plea was involuntary because he was not informed of the elements of the conspiracy to commit murder charge. Gregory v. Solem, 774 F.2d 309, 315 (8thCir.1985), cert. denied, 475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 730 (1986)[Gregory III ]. The Court specifically concluded the record established that Gregory understood the elements of conspiracy. Id. at 315-17. Likewise rejected was Gregory's argument that it was impermissible for the trial court to rely on the preliminary hearing transcript to support a finding of a factual basis for the plea.

¶8 Gregory brought another state habeas attack on his conviction on November 25, 1986. He alleged that (a) his plea was not knowing, voluntary, and intelligent as he was not aware of all the elements of the offense to which he pled guilty; (b) his plea was not knowing, voluntary, and intelligent because he believed he could obtain parole from a life sentence; and (c) his attorney's representation was ineffective for failing to explain to him the nature of the offense charged against him, and for fostering his belief that he could be paroled from a life sentence.

¶9 The circuit court dismissed the application pursuant to SDCL 21-27-16.1, and Gregory appealed. We reversed and remanded, holding that Gregory should have been allowed to introduce evidence bearing on the issues raised in the amended application. Gregory v. Solem, 420 N.W.2d 362, 363-64 (S.D.1988)[Gregory IV ]. On remand, the State again moved to dismiss, which was denied. Following an evidentiary hearing, the circuit court ruled against Gregory on the merits of his amended application. Both the State and Gregory appealed.

¶10 We held the circuit court erred in not granting the State's motion to dismiss because Gregory could not meet the cause and prejudice standard in failing to bring the issues in the current habeas action in the prior post-conviction proceedings. Gregory v. Solem, 449 N.W.2d 827, 832-33 (S.D.1989)[Gregory V ]. Further, we stated the record clearly established that it was Gregory's intentional tactic to not raise ineffective assistance of trial counsel at the initial post-conviction proceeding. Id. at 831-32.

¶11 On September 28, 1994, Gregory filed a pro se application for writ of error coram nobis. On appointment of counsel, an amended application was filed, which contained eight separate points to support issuance of the writ:

(1) That the information regarding the conspiracy to commit murder charge was insufficient since it did not define the elements of conspiracy and thereby deprived the criminal trial court of jurisdiction;

(2) That the criminal trial court erred in taking judicial notice of the records in the file for establishing a factual basis for Gregory's guilty plea;

(3) That state and federal reviewing courts erred in not reversing Gregory's conviction for the criminal trial court's failure to inform Gregory of the specific elements of the offense of conspiracy to commit murder and obtaining Gregory's specific understanding of that charge prior to accepting his guilty plea;

(4) That the reviewing courts unconstitutionally applied a different standard of compliance in reviewing Gregory's claimed violation of SDCL ch. 23A-7;

(5) That Gregory's post-conviction counsel rendered ineffective assistance of counsel for failing to previously raise the improper taking of judicial notice of the preliminary hearing transcript for finding a factual basis for the plea;

(6) That Gregory's criminal trial counsel rendered ineffective assistance of counsel for allegedly coercing Gregory to plead guilty, maneuvering Gregory from testifying at the change of plea hearing; and persuading Gregory to recite a version of occurrences given by a codefendant, but reversing the blame;

(7) That the South Dakota Supreme Court erred in applying SDCL 21-27-16.1 as a procedural bar to Gregory's prior habeas corpus proceedings; and

(8) That it was cruel and unusual punishment to sentence Gregory to life imprisonment without the possibility of parole.

¶12 Both Gregory and the State moved for summary judgment. However, the circuit court determined that before reaching the summary judgment motions, the threshold question of whether coram nobis relief was even available to Gregory must be decided. Gregory argued that coram nobis was his only recourse to remedy fundamental state and federal constitutional errors. On the other hand, the State maintained that the application belatedly sought another form of habeas relief. The circuit court entered its memorandum decision on June 4, 1997, dismissing Gregory's application. The court concluded that Gregory, as a matter of law, could not establish that other remedies had been unavailable or inadequate.

¶13 Gregory appeals on the following issues: (a) "Whether the trial court committed reversible error by dismissing his amended application for writ of...