Hays v. Weber, 21973.

• Decision Date: 15 May 2002
• Docket Number: No. 21973.,21973.
• Citation: 2002 SD 59,645 N.W.2d 591
• Parties: Carl HAYS, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

645 N.W.2d 591

2002 SD 59

Carl HAYS, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

No. 21973.

Supreme Court of South Dakota.

Argued February 12, 2002.

Decided May 15, 2002.

Phillip O. Peterson, Clay County Public Defender, Beresford, South Dakota, Attorney for petitioner and appellant.

Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Carl Hays (Hays) appeals the denial of habeas corpus relief based on ineffective assistance of counsel. The habeas court held that counsel's performance was not so deficient as to constitute ineffective assistance of counsel. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On May 27, 1996, CJ's Corner Bar, owned by Hays and his father, was destroyed by fire.¹ Because there were indications that the fire was not accidental, law enforcement and fire investigators were called in. Eventually, Hays and his employee, Joseph Barr, were arrested for starting the fire. At trial, investigators testified that the fire had been deliberately started in a trashcan placed next to the coolers.

[¶ 3.] Hays had recruited Barr and Scott Sere,² the bar's manager, to help commit the arson. Barr testified that Hays wanted him to burn down the bar so that Hays could collect the $45,000 in insurance money. But, first, the three men removed forty cases of beer and replaced a large screen television with a smaller one. Hays also prepared an inventory in anticipation of submitting it to the insurance company for reimbursement after the fire. As a result of Barr's and Sere's testimony, as well as other evidence presented at trial, Hays was convicted on December 22, 1997, of Aiding, Abetting or Advising Third Degree Burglary; Aiding, Abetting or Advising Arson; and Conspiracy to Commit Arson.³

[¶ 4.] Defense counsel was initially Sid Strange, but he later filed a motion to withdraw as counsel because Hays refused to communicate with him. During Strange's representation, however, difficulties arose regarding Strange's trial calendar. At Hays' arraignment on December 27, 1996, Strange brought this problem to the court's attention stating:

I should advise the court, I will probably be in trial in one circuit or another until mid-May, starting January 6 until probably the middle of May, on other matters. I've spoken with Mr. Hays about that and he has indicated a willingness to waive a part or all of the 180 days if that ever becomes a problem. If you want to take his waiver today.

The court, however, did not formally address the offer of waiver and left the matter of scheduling up to the attorneys.

[¶ 5.] Richard Johnson appeared on behalf of Strange and his law firm to request that new counsel be appointed. The State agreed to the request on the condition that the 180-day period be tolled while Hays completed the application for new court-appointed counsel. On March 20, 1997, Hays filed that application and the court designated Gary Sokolow to represent him. The next day, Sokolow made a motion for continuance and the 180-day rule was again discussed. The court, as before, was concerned with the lapse of time in light of the 180-day rule. Sokolow informed the court that his client was prepared to stipulate, along with Barr and his attorney, that the 180-day rule was "not an issue."

[¶ 6.] On October 10, 1997, Sokolow filed ten motions on behalf of Hays. One motion requested a bill of particulars specifying the acts committed. Another moved for dismissal of Count I on the grounds that it was a legal and factual impossibility for a person to burglarize property in which he has a possessory interest. The former was withdrawn after fourteen days and the latter was denied after extensive argument.

[¶ 7.] Next, the State moved to join the trials of Hays and Barr. A hearing was conducted on November 16, 1997, and the motion was granted on November 24, 1997. The matter was, however, abandoned when Barr subsequently entered into a plea agreement to testify against Hays. Sokolow filed more pretrial motions, including a motion to interview State witnesses and a motion to allow impeachment with prior convictions as to Sere and Ronald Anderson. No motion was filed to allow impeachment of Barr. The hearing on these motions was held December 9, 1997.

[¶ 8.] Before jury selection, both parties accepted the court's preliminary jury instructions. Notably, the instructions did not include anything specifically dealing with accomplice testimony, even though the State had offered the standard instruction for that issue. The jury instructions did, however, include language regarding the jury's power to weigh the credibility of the witnesses in light of their demeanor, reasonableness, memory, interest, bias or prejudice.

[¶ 9.] At the conclusion of the trial, Hays was found guilty on all three counts. He later pleaded guilty to being a habitual offender. Hays was given three concurrent sentences of ten years each, to be served consecutively with the sentence he was serving on unrelated charges in a different county.

[¶ 10.] Hays, then represented by James McCulloch, filed a direct appeal to this Court. Hays' conviction was affirmed in Hays, 1999 SD 89, 598 N.W.2d 200. On July 25, 2000, Hays filed a petition for habeas corpus relief, alleging ineffective assistance of counsel. After an evidentiary hearing on January 18, 2001, the court filed a memorandum opinion denying habeas relief. Hays now appeals, raising the following issues:

1. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to move for dismissal on the basis that the 180-day rule was violated.

2. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel did not make motions regarding the State's alleged failure to plead or prove overt acts in furtherance of the conspiracy.

3. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to propose an accomplice jury instruction.

4. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to cross-examine a key State witness.

5. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to object to Hays' testimony, regarding a prior attorney's legal advice, elicited on cross-examination.

STANDARD OF REVIEW

[¶ 11.] Because a habeas claim is a collateral attack on a final judgment, our review is somewhat limited. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571 (citing Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606) (other citation omitted). Review of a habeas claim is not a substitute for direct review. Id. (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191) (other citation omitted). The standard in such cases is well settled:

Habeas corpus can be used only to review[:] (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. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court's findings unless they are clearly erroneous.

Bradley v. Weber, 1999 SD 68, ¶ 12, 595 N.W.2d 615, 619 (quoting Flute v. Class, 1997 SD 10, ¶ 8, 559 N.W.2d 554, 556 (other citations omitted)). The habeas applicant has the initial burden of proving entitlement to relief by a preponderance of the evidence. New, 1999 SD 125 at ¶ 5, 600 N.W.2d at 572 (citing Lien, 1998 SD 7 at ¶ 11, 574 N.W.2d at 607). We may affirm the ruling of the habeas court if it is "right for any reason." Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)) (additional citation omitted).

[¶ 12.] This Court's standard for reviewing claims of ineffective assistance of counsel is also well settled.

Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in his presentation of the defense at trial. This [C]ourt, however, may substitute its own judgment for that of the circuit court as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel.

Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142 (citations omitted).

ANALYSIS AND DECISION

[¶ 13.] In reviewing an ineffective assistance of counsel claim, this Court has stated:

The Sixth Amendment "right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (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 upon as having produced a just result." Id., 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93.

Rhines v. Weber, 2000 SD 19, ¶ 12, 608 N.W.2d 303, 307. Thus, this Court has adopted the two-part test set forth in Strickland. See Sund v. Weber, 1998 SD 123, ¶ 13, 588 N.W.2d 223, 225

; Jones v. State, 353 N.W.2d 781, 784 (S.D.1984).

[¶ 14.] In order to prevail on an ineffective assistance of counsel claim, Hays 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,...