Lien v. Class

• Decision Date: 12 February 1998
• Docket Number: No. 19953,19953
• Citation: 574 N.W.2d 601,1998 SD 7
• Parties: Garrett Larry LIEN, Applicant and Appellant, v. Joseph CLASS, Warden of the South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 601

574 N.W.2d 601

1998 SD 7

Garrett Larry LIEN, Applicant and Appellant, v. Joseph CLASS, Warden of the South Dakota State Penitentiary, Appellee.

No. 19953.

Supreme Court of South Dakota.

Argued Oct. 21, 1997.

Decided Jan. 14, 1998.

Rehearing Denied Feb. 12, 1998.

Rita Allen of Hagen, Wilka & Archer, Sioux Falls, for applicant and appellant.

Mark Barnett, Attorney General, Timothy Bartlett, Assistant Attorney General, Pierre, for appellee.

GILBERTSON, Justice.

¶1 Applicant and appellant, Garrett Larry Lien (Lien), alleges his prior guilty plea was entered involuntarily as a result of his defense counsel's alleged ineffective assistance in failing to properly investigate a motor vehicle accident and in failing to retain an accident reconstruction expert. Lien also contends that the prosecution failed to disclose exculpatory evidence thus denying him due process of law. Lien appeals from an order entered in the Third Judicial Circuit denying his petition for writ of habeas corpus. We affirm.

FACTS AND PROCEDURE

¶2 On August 11, 1995, a "teen" dance was being held at a country club near Lake Kampeska in Watertown, South Dakota. Lien, age 21, was present and was the owner of a 1972 four-wheel drive Chevrolet Blazer that had its roof removed. At approximately 10:20 p.m., after exiting the country club parking lot, the Blazer careened off of a parked car, and then rolled over. Adam Dailey (Dailey), then age 15, a passenger in the rear seat was thrown clear of the vehicle. The first observers on the scene found Lien and Joshua West (West) pinned beneath the driver's side of the Blazer. Bystanders were able to lift the Blazer enough to pull Lien out from under the vehicle. However, West could not be removed and died as a result of his injuries. It was later determined that all three occupants had consumed alcohol before the accident. ¹ At the hospital a bag of marijuana fell out of Lien's shorts.

¶3 Lien claims, due to accident injuries, he does not remember whether he was driving. However, Dailey, who was interviewed by the police the night of the accident and the following day, stated that Lien was driving the Blazer at the time of the collision. Dailey also testified, under oath, before a Codington County Grand Jury that Lien was driving at the time of the accident.

¶4 Lien was indicted on August 30, 1995 on a charge of vehicular homicide, SDCL 22-16-41, and possession of more than one ounce but less than one-half pound of marijuana. SDCL 22-42-6. Lien independently retained the professional services of an attorney, Albert Holgerson (Holgerson), to represent him against these charges. The record indicates that Holgerson had experience in defending vehicular homicide cases and had successfully defended his most recent client in this kind of criminal proceeding. Holgerson's investigation of the accident consisted of reviewing accident scene photographs, witness statements, police reports, grand jury testimony, and a videotaped interview with Dailey. In addition, he interviewed certain witnesses and filed and argued numerous motions, including a suppression motion.

¶5 Holgerson did not interview all the prosecution witnesses, did not show some of the actual accident photos to Lien, and did not show the Dailey videotaped interview to Lien. ² However, the habeas court found Holgerson discussed the contents of these exhibits and materials "in depth" with Lien as well as the context of the grand jury transcript. Holgerson considered but decided against hiring an accident reconstruction expert because he felt the best case scenario would pit his expert against the State's expert and Dailey, the only accident eyewitness. Holgerson and Lien were aware of some discrepancies ³ with Dailey's account of the accident. However, Holgerson felt that Dailey was credible and would be a strong witness who could not be successfully impeached during a trial. ⁴

¶6 Holgerson testified he had three to four meetings with Lien discussing the State's evidence leading up to the plea. Lien's father was present 50 to 70 percent of the time. ⁵ After reviewing certain evidence with Lien and obtaining his consent, Holgerson entered into plea negotiations with the State. Holgerson's negotiations proved successful and the State agreed to recommend a suspended imposition of sentence for the vehicular homicide charge. The record is unclear as to the exact date when the agreement was finalized between the State and Lien.

¶7 Lien was sentenced on January 10, 1996. Holgerson presented mitigating testimony through Lien's Alcoholics Anonymous sponsor who stated that Lien's rehabilitation efforts were sincere and that he felt that Lien would "make it." The State informed the court that a suspended imposition of sentence for the vehicular homicide charge "continues to be our recommendation." The State explained it had made the agreement after consulting Joshua West's parents, who indicated some reluctance about having to endure a trial. The State then brought out several aggravating factors such as Lien's age in relation to the Blazer's occupants and the fact that he had been drinking and had marijuana in his possession. On the other hand, the State informed the court that Lien is "a young man, and I think that ... weighs to his benefit" and urged that Lien not be sent to prison. Mr. West had informed the State that Lien should not be sent to prison but should be punished in some other way such as jail time for the marijuana possession. The trial court found a factual basis for the guilty plea ⁶ but refused to follow the State's recommendation for suspended imposition of sentence. Rather, it sentenced Lien to 10 years in the South Dakota State Penitentiary, with four years suspended. ⁷ Additionally, upon release Lien was ordered to serve five years on probation and 180 days in the Codington County Detention Center for possession of the marijuana.

¶8 Lien petitioned for a writ of habeas corpus and a hearing was held on October 2, 1996. Lien claimed that Holgerson was ineffective for failing to properly investigate the accident which could have cast doubt on whether Lien was the driver of the Blazer. This ineffectiveness, Lien argued, resulted in an involuntary plea of guilty. Lien further claimed that the State failed to disclose exculpatory evidence. The habeas court denied Lien's petition for relief.

¶9 Lien's issues on appeal are:

1. Whether Holgerson's investigation constitutes ineffective assistance of counsel?

2. Whether Lien's guilty plea was voluntary?

3. Whether Lien has sustained his burden of proof in his claim that the prosecution failed to disclose exculpatory evidence in violation of due process?

SCOPE AND STANDARD OF REVIEW

¶10 We must first note the remedy in a habeas proceeding is in the nature of a collateral attack on a final judgment, therefore, our scope of review is limited. Black v. Class, 1997 SD 22, 560 N.W.2d 544. It is not a substitute for direct review. Loop v. Class, 1996 SD 107, p 11, 554 N.W.2d 189, 191.

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. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction

Black, 1997 SD 22 at p 4, 560 N.W.2d at 546 (quoting St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (St. Cloud III ) (internal citations omitted)).

¶11 The habeas petitioner has the initial burden to prove by a preponderance of the evidence that he is entitled to relief. Johnson v. Zerbst, 304 U.S. 458, 469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, 1469 (1938); Loop, 1996 SD 107 at p 14, 554 N.W.2d at 191; Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994). The habeas court's factual findings are given "considerable deference" and we will not reverse these findings unless they are clearly erroneous. St. Cloud III, 521 N.W.2d at 121; McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989) cert denied, McCafferty v. Leapley, 503 U.S. 911, 112 S.Ct. 1277, 117 L.Ed.2d 503 (1992); Satter v. Solem, 422 N.W.2d 425 (S.D.1988), cert. denied, Rist v. Satter, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989).

¶12 Whether a defendant has received ineffective assistance of counsel presents a mixed question of law and fact. Lykken v. Class, 1997 SD 29, 561 N.W.2d 302 (1997). In the absence of a clearly erroneous determination, we defer to the habeas court's findings of fact regarding what counsel did or did not do, but we may substitute our own judgment "as to whether defense counsel's actions or inaction's constituted ineffective assistance of counsel." Lykken 1997 SD 29 at p 6, 561 N.W.2d at 304-05 (quoting Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D.1988)).

ANALYSIS AND DECISION

¶13 1. Whether Holgerson's investigation constituted ineffective assistance of counsel?

¶14 This Court has adopted the Strickland test to determine whether a defendant received effective assistance of counsel as guaranteed by Article VI, § 7 of the South Dakota Constitution. Luna v. Solem, 411 N.W.2d 656, 658 (S.D.1987); Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987). "The standard that applies in evaluating claims of ineffective assistance of counsel challenges to guilty pleas is the same standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)." Cox v. Lockhart, 970 F.2d 448 (8thCir.1992). Under this standard, the burden is on the petitioner to show 1) that counsel's performance was deficient, and 2) that petitioner was prejudiced by the deficient performance. Addressing the first part of the Strickland test, deficient performance, we have stated that:

'When a convicted defendant...