Hopfinger v. Leapley, 18271

• Decision Date: 16 February 1994
• Docket Number: No. 18271,18271
• Citation: 511 N.W.2d 845
• Parties: Henry HOPFINGER, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 845

511 N.W.2d 845

Henry HOPFINGER, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.

No. 18271.

Supreme Court of South Dakota.

Submitted on Briefs Dec. 1, 1993.

Decided Feb. 16, 1994.

James A. Eirinberg, Sioux Falls, for petitioner and appellant.

Mark Barnett, Atty. Gen., Patricia J. Cronin, Asst. Atty. Gen., Pierre, for defendant and appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Pursuant to a plea agreement with the Brown County State's Attorney, Hopfinger pled guilty to one count of robbery in the first degree and one count of aggravated assault. On May 3, 1991, the trial court accepted both pleas and sentenced Hopfinger to 15 years in the state penitentiary for each crime, sentences to run concurrently. Following a January 6, 1993 hearing, Hopfinger was denied habeas corpus relief. He appeals, raising two issues:

I. Did Hopfinger receive ineffective assistance of counsel in violation of his constitutional rights?

II. Was Hopfinger capable of entering a voluntary, knowing, and intelligent plea?

We affirm.

FACTS

After an hour of talking and drinks at an Aberdeen bar on April 22, 1991, Hopfinger and Gordon Roettele left for Hopfinger's hotel room where they engaged in consensual homosexual sex. At some point, Roettele supposedly threw Hopfinger on the bed demanding more sex. Hopfinger, who was already "very upset" with Roettele, grabbed a pair of scissors lying nearby and stabbed his partner numerous times, causing multiple injuries.

Hopfinger purportedly panicked and grabbed the victim's jewelry, money and car keys and, because he did not have a vehicle, fled in the victim's car. He was later apprehended in Webster, South Dakota, still in possession of the car and personal effects, and was charged with robbery, aggravated assault and grand theft.

Ronald Wager thereafter was appointed as counsel for Hopfinger. After consulting with Hopfinger, Wager spoke to Roettele once and reviewed his statements to the police. Although Roettele's story concerning the events prior to the stabbing repeatedly changed, Hopfinger's version was very incriminating. Wager believed this, combined with Hopfinger's sexual orientation, could make it difficult to obtain an acquittal. Because he was also infected with the AIDS virus, Hopfinger believed any sentence beyond 5 to 6 years was essentially a life sentence.

Attempting to plea bargain, Wager asked State's Attorney Gary Gelhaus to send Hopfinger to Florida where he faced probation violation charges, thus relieving South Dakota from bearing the brunt of expensive AIDS medical care. Gelhaus refused and mentioned adding a habitual offender charge, enhancing the sentence to life imprisonment. However, if Hopfinger pled guilty to one count of robbery in the first degree and one count of aggravated assault, the State would drop the grand theft count and he would receive two 15-year sentences in the state penitentiary. Wager informed Hopfinger the sentences would run concurrently, making Hopfinger eligible for parole in 4 1/2 years, thus potentially avoiding the AIDS life sentence.

Hopfinger also claims that he lacked the mental capacity to make a plea bargain, that his counsel was ineffective and that he only agreed to the plea bargain because Wager advised that he would be released in 4 1/2 years.

DECISION

I. Hopfinger was not denied effective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must prove both that counsel's representation fell below an objective standard of reasonableness and that such deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Luna v. Solem, 411 N.W.2d 656 (S.D.1987). Following Strickland, this Court has found prejudice where there exists a reasonable probability that, but for the unprofessional errors of counsel, the result of the proceeding would have been different. Phyle v. Leapley, 491 N.W.2d 429 (S.D.1992).

Last year, however, the United States Supreme Court elucidated the Strickland analysis holding:

Thus, an analysis focussing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because the outcome would have been different but for the counsel's error may grant the defendant a windfall to which the law does not entitle him.

Lockhart v. Fretwell, 506 U.S. ----, ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (1993). Ergo, it is not enough for Hopfinger to show, as in Phyle, that the verdict would have been different, he must show "that the counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Although Roettele's version of the events prior to the stabbing changed "like a chameleon," his account of what happened at the hotel was consistent with Hopfinger's story. Thus, evidence of Roettele's character, reputation for truthfulness, and propensity for violence would not have been relevant to Hopfinger's defense.

At the habeas corpus hearing, Hopfinger testified after he and Roettele had engaged in consensual sex, Roettele pursued more sex by shoving him on the bed, but:

I didn't want to [have more sex] and I asked [Roettele] to leave because I was drinking and mixing my medication with it and I was really--I felt I was beginning to lose control of myself, I wasn't thinking right and when he got forceful with me I automatically had flashbacks to the time when I was molested as a younger child and I just reacted in a violent way and I attacked him.

In addition to mixing alcohol and medication that night, Hopfinger further admitted to smoking marijuana. Under SDCL 22-5-5, no act committed by a person while in a state of voluntary...