Gross v. Solem, 16126

• Decision Date: 06 September 1989
• Docket Number: No. 16126,16126
• Citation: 446 N.W.2d 49
• Parties: Edward J. GROSS, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.
• Court: South Dakota Supreme Court

Page 49

446 N.W.2d 49

Edward J. GROSS, Petitioner and Appellant, v. Herman SOLEM, Respondent and Appellee.

No. 16126.

Supreme Court of South Dakota.

Argued Feb. 14, 1989.

Decided Sept. 6, 1989.

Thomas Harmon, Deputy Atty. Gen., Pierre, for respondent and appellee; Roger A. Tellinghuisen Atty. Gen., on the brief.

Richard Braithwaite, Sioux Falls, for petitioner and appellant.

MORGAN, Justice.

This is an appeal from the decision of the trial court (habeas court) denying habeas corpus relief to Edward Gross (Gross) who was convicted upon his plea of guilty but mentally ill to manslaughter in the first degree. We affirm.

On October 31, 1986, Gross shot and killed his estranged wife outside her home. He holed up in the home for several hours before surrendering to authorities. Gross was subsequently indicted on a charge of murder in the first degree to which he entered a plea of not guilty and not guilty by reason of insanity. The trial court ordered a psychiatric examination. After the examination, Gross indicated that he intended to plead guilty to a reduced charge of first-degree manslaughter, pursuant to an intended plea-bargain agreement.

During the plea change/sentencing hearing, Gross amended his guilty plea to guilty but mentally ill. Upon acceptance of his plea, the trial court entered judgment and sentenced Gross to seventy-five years in the South Dakota State Penitentiary. Gross did not file a direct appeal. In 1987, Gross petitioned for a writ of habeas corpus. The habeas court entered an order denying Gross' petition.

On appeal, Gross raises the following issues:

1. Whether he was denied effective assistance of counsel;

2. Whether any of the following alleged irregularities in sentencing provide grounds for habeas corpus relief:

a. the sentencing was venued in a different county from the one where the offense occurred,

b. the trial court failed to order a competency hearing prior to sentencing, and

c. no factual basis was established for the mentally ill portion of his plea, and

3. Whether Gross' plea was involuntary because:

a. he was unaware or did not fully understand the proceedings, and

b. he was influenced by the trial court informing him that the psychiatrists had found him to be sane at the time of the offense.

We first set forth our scope of review. Since habeas corpus is in the nature of a collateral attack upon a final judgment, the scope of review is limited. Satter v. Solem, 422 N.W.2d 425 (S.D.1988); Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987).

Habeas corpus can be used only to review (1) whether the court had 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.

Satter, 422 N.W.2d at 427; Goodroad, 406 N.W.2d at 144; State ex rel Burns v. Erickson, 80 S.D. 639, 645, 129 N.W.2d 712, 715 (1964). Further, the burden of proof is upon Gross. Goodroad at 145.

Gross first contends that he was denied his constitutional right to effective assistance of counsel. He argues that his trial counsel's performance was deficient in several areas and that these errors, individually and collectively, prejudiced his defense.

We start with the presumption that Gross' attorney is competent until Gross makes a showing to the contrary. It is his burden to establish ineffective assistance of counsel. Jibben v. State, 343 N.W.2d 788 (S.D.1984); Grooms v. State, 320 N.W.2d 149 (S.D.1982); State v. Pieschke, 262 N.W.2d 40 (S.D.1978); State v. Roth, 84 S.D. 44, 166 N.W.2d 564 (1969).

In Jones v. State, 353 N.W.2d 781 (S.D.1984), we adopted the standard for determining ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. To reverse a conviction on ineffective assistance grounds, a defendant must show: 1) that counsel's performance was deficient; and 2) that the deficient performance prejudiced the defense. The test for prejudice is whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Jones, 353 N.W.2d at 784.

Gross argues that his counsel was deficient insofar as he (1) failed to schedule his personal affairs to meet Gross' demands; (2) did not discuss an intoxication defense with Gross; (3) refused to follow Gross' trial strategies; (4) did not discuss the location of the sentencing hearing with Gross; (5) failed to provide individuals to assist the psychiatrist in preparing his report; and (6) pressured Gross to plead.

After examining the record, we hold that Gross has failed to demonstrate that his counsel's performance and advice was clearly deficient as required by Strickland and Jones, supra. Since Gross has failed to show clear deficiencies, we need not reach the second prong of our test.

Gross next contends that irregularities during sentencing procedures provide grounds for habeas corpus relief. Basically, his argument is threefold. First, he argues that the trial court did not have jurisdiction at the time it imposed sentence because the hearing was venued in a different county from the one where the offense occurred. Secondly, he argues that the trial court failed to find a factual basis for Gross' guilty but mentally ill plea as required by SDCL 23A-7-16. Lastly, he argues that the trial court erred in failing to order a competency hearing before accepting Gross' plea. We will address each of Gross' arguments in turn.

Clearly, a defendant has a constitutional and statutory right to a trial by a jury of the county in which the offense occurred. South Dakota Constitution art. VI, Sec. 7; SDCL 23A-16-5. However, there is no tantamount right to be sentenced in the county in which the offense occurred. Croan v. State, 295 N.W.2d 728 (S.D.1980); State v. Erickson, 83 S.D. 79, 155 N.W.2d 313 (1967). In Croan, 295 N.W.2d at 729, citing Erickson, supra, we said:

'Because the jurisdiction of the circuit court, ... is not limited to any particular county but extends throughout the state, there is no violation of [this constitutional] mandate if the accused is arraigned and sentenced upon a plea of guilty in another county.'

Based on this settled law, Gross' plea and imposition of sentence were within the trial court's jurisdiction. Therefore, this issue is without merit.

Gross also contends that there was an insufficient factual basis to find him mentally ill at the time of the offense, pursuant to SDCL 23A-7-16, 23A-7-14, and 22-1-2(24). Further, that the trial court did not rule on this issue. In Goodroad, 406 N.W.2d at 145, we held that the factual predicate of a guilty plea could not be raised in a habeas corpus review:

Since the factual basis requirement rests in statute and not the constitution, we would normally not review this claim in a habeas corpus action....

More recently, in Everitt v. Solem, 412 N.W.2d 119 (S.D.1987), we reaffirmed this position in a guilty but mentally ill case. Just as Gross does here, Everitt claimed there was insufficient evidence to support the mentally ill determination as required in SDCL 23A-7-16. In rejecting this attack, we stated:

Habeas corpus is not the proper remedy to correct irregular procedures, rather, in the context of post-conviction attacks on the conviction itself, habeas corpus reaches only jurisdictional error.... In this case, the trial court had jurisdiction of the person and of the subject matter before it. The sentence was authorized by law. Everitt has not been deprived of basic constitutional rights.

Everitt at 121.

Similarly, the trial court had jurisdiction of the person and subject matter. Croan, 295 N.W.2d at 729. We note as a relevant aside that lack of any jurisdictional defect precludes the expansive construction of what may be properly considered in habeas corpus that we allowed in Security Sav. Bank v. Mueller, 308 N.W.2d 761 (S.D.1981). Any procedural defects in Gross' conviction do not rise to constitutional dimensions.

Gross concedes that the trial court did not rule that a factual basis existed to find him mentally ill at the time of the offense. Without that ruling, the issue is not subject to habeas corpus review. Everitt, 412 N.W.2d at 121; Goodroad, 406 N.W.2d 141.

Gross also contends that the sentencing court should have ordered a competency hearing before accepting his plea. It is clear that the ordering of a competency hearing rests within the trial court's sound judicial discretion and its decision will not be disturbed in the absence of an abuse of that discretion. State v. Vassar, 279 N.W.2d 678 (S.D.1979); Magenton v. State, 76 S.D. 512, 81 N.W.2d 894, 897 (1957).

Sanity is presumed. Magenton 81 N.W.2d at 897. Sanity or competency, for purposes of triability or sentencing, is not the right and wrong rule, but is determined by appraising a defendant's present ability to understand the nature and purpose of the proceedings taken against him, and to assist counsel in his own defense. Magenton, supra; Vassar, supra. Only if facts and circumstances in the case raise a real doubt in the mind of the trial court is Gross entitled to a hearing of the issue of his present competency. Vassar, supra.

Based on the record in this case, we cannot say, as a matter of law, that the trial court should have had any real doubt concerning Gross' competency at the time of sentencing. Gross asked sophisticated questions about the proper procedures to conduct a psychiatric exam. He asserted himself and asked to examine a psychiatric report he had not seen. After he had read this document, he was able to capsulize the important findings it made. Finally, he gave a logical...