Lodermeier v. Class

• Decision Date: 12 September 1996
• Docket Number: No. 19444,19444
• Citation: 555 N.W.2d 618,1996 SD 134
• Parties: Gene Vernal LODERMEIER, Petitioner and Appellant, v. Joe CLASS, Warden for the South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 618

555 N.W.2d 618

1996 SD 134

Gene Vernal LODERMEIER, Petitioner and Appellant, v. Joe CLASS, Warden for the South Dakota State Penitentiary, Appellee.

No. 19444.

Supreme Court of South Dakota.

Considered on Briefs Sept. 12, 1996.

Decided Nov. 13, 1996.

David M. Hosmer of Hosmer & Kettering, Yankton, for petitioner and appellant.

Mark Barnett, Attorney General, Todd A. Love, Assistant Attorney General, Pierre, for appellee.

KONENKAMP, Justice.

¶1 Gene Lodermeier appeals the denial of his application for writ of habeas corpus. We affirm.

BACKGROUND

¶2 Lodermeier was convicted by a jury on October 26, 1988, of three counts of possession of stolen property and three counts of possession of property with altered serial numbers. He was sentenced to forty-five years in the South Dakota State Penitentiary. We affirmed on direct appeal. State v. Lodermeier, 481 N.W.2d 614 (S.D.1992). The facts on the present matter will be discussed to the extent necessary to resolve the issues. Although Lodermeier raised one hundred seven issues before the habeas court and now maintains thirteen issues on appeal, we find only six have sufficient merit for discussion:

I. Whether the trial court had jurisdiction.

II. Whether Lodermeier's trial counsel was ineffective.

III. Whether SDCL 22-11-27 is unconstitutionally vague.

IV. Whether issues raised before the habeas court were improperly dismissed as res judicata.

V. Whether the trial judge's purported bias affected his rights.

VI. Whether charges against Lodermeier were improperly joined.

ANALYSIS

¶3 Our standard of review for a habeas corpus appeal is firmly established:

Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. On habeas review, the petitioner has the initial burden of proof. We review the habeas court's factual findings under the clearly erroneous standard.

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.

Loop v. Class, 1996 SD 107, p 11, 554 N.W.2d 189 (citing Two Eagle v. Leapley, 522 N.W.2d 765, 767 (S.D.1994) (citations omitted)).

¶4 I. Jurisdiction

¶5 Lodermeier informally requested Judge Gene Paul Kean to recuse himself. Judge Kean agreed and the late Judge R.D. Hurd eventually took the assignment. ¹ SDCL 15-12-21.1 provides in part:

Prior to filing an affidavit for change of judge, the party or his attorney shall informally request the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, to disqualify himself.... If the judge or magistrate grants the request, he shall forthwith notify the presiding judge, who shall assign the case to some other judge or magistrate....

No written order assigning Judge Hurd was ever filed with the clerk of courts. Without an order, Lodermeier asserts Judge Hurd never acquired jurisdiction and thus all subsequent proceedings are void. In State v. Baldwin, 299 N.W.2d 820 (S.D.1980), this Court interpreted SDCL 15-12-32, which provides in part:

The presiding judge ... of the circuit shall review the affidavit ... [and] shall assign some other circuit judge or magistrate of that circuit ... by filing an order of such appointment with the clerk of the court of the county wherein said action is pending. From the filing of such order the judge or magistrate therein designated shall have full power, authority and jurisdiction to proceed in the matter.

Id. at 821. A formal order under SDCL 15-12-32 is an obvious prerequisite to jurisdiction as it provides, "From the filing of such order the judge or magistrate therein designated shall have full power, authority and jurisdiction to proceed in the matter." Baldwin, 299 N.W.2d at 821; see also State v. Peterson, 531 N.W.2d 581 (S.D.1995)(conviction and judgment reversed and remanded for new trial where affidavit for removal denied on review by sitting judge, rather than presiding judge).

¶6 Here the affidavit procedure was inapplicable because the informal procedure of SDCL 15-12-21.1 was used. This method averts the technical niceties of removal by affidavit found in SDCL 15-12-32. Explicit language in SDCL 15-12-32 requires an order be filed before jurisdiction vests, whereas no such requirement is found in SDCL 15-12-21.1. Lodermeier asked and Judge Kean agreed to voluntarily disqualify himself. No formal order was required to assign a new judge.

¶7 II. Ineffective Assistance of Counsel

¶8 Our standard for evaluating claims of ineffective assistance of counsel derives from the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To reverse a conviction on ineffective assistance grounds, a [petitioner] 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 proceedings would have been different.

Boykin v. Leapley, 471 N.W.2d 165, 167 (S.D.1991).

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 court, 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.

Loop, 1996 SD 107, p 11, 554 N.W.2d 189 (quoting Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D.1988)).

¶9 A. Sentencing

¶10 Lodermeier claims his counsel was ineffective at sentencing because he failed to object to allegedly inaccurate facts the prosecutor advanced at sentencing. Specifically, he asserts that his trial counsel allowed the judge to erroneously rely on information regarding Lodermeier's alleged involvement in the disappearance of Lodermeier's wife and in the pipe-bombing of a Sioux Falls police officer's car. In his comments at sentencing, however, Lodermeier's trial counsel challenged the State's characterization of the defendant, specifically mentioning unindicted bad acts ascribed to Lodermeier. As such, we cannot say that this was ineffective assistance. Even if counsel had protested with a zest more to Lodermeier's liking, it would have been of little consequence, as Judge Hurd noted during sentencing that he gave no weight to the allegation regarding the death of Lodermeier's wife. As an indication of his dangerousness, he gave token consideration to the pipe-bombing incident, since Lodermeier was an official suspect. Nevertheless, Judge Hurd clearly based his sentence on other overarching factors. ²

¶11 B. Improper Defenses

¶12 Lodermeier asserts his trial counsel was ineffective by failing to advance available defenses under landlord-tenant statutes: as a "landlord" he was entitled to seize allegedly stolen property the tenant abandoned. Selection of a defense is a trial strategy this Court will seldom reevaluate. Fast Horse v. Leapley, 521 N.W.2d 102, 106 (S.D.1994). In any event, failure to assert a defense on the basis of the landlord-tenant statutes was not ineffective assistance in this case, as the statute in question, SDCL 43-32-26, relates to residential leases. ³ The property Lodermeier would have us apply this statute to was left on commercial premises formerly occupied by Lodermeier and his business partner.

¶13 Further, Lodermeier asserts his attorney was ineffective in failing to offer a claim of right defense; this would have possibly negated the state of mind element in the charges for possession of stolen property. A jury instruction on mistake of fact was given, which read, in part, "Where a person honestly and reasonably believes certain facts, and acts or fails to act based upon a belief in those facts, which, if true, would not result in the commission of a crime, the person is not guilty." This advised jurors of a legal option similar to what a claim of right defense would have allowed, permitting them to find for Lodermeier on the state of mind element, if the evidence justified it. Therefore, we find no ineffective assistance here.

¶14 C. Prosecutorial Misconduct

¶15 Lodermeier contends his trial counsel was ineffective for failing to object to behavior by the State which amounted to prosecutorial misconduct. First, Lodermeier argues the State violated the trial court's in limine order preventing the State from referring to Lodermeier's prior federal conviction. The trial court ruled:

I have performed the balancing test. I have concluded to allow the State to elicit that the defendant was convicted of a felony in [the] U.S. District Court for the District of South Dakota and when that conviction occurred is more probative than prejudicial on the issue of impeachment of credibility and should be allowed. The nature of the conviction, what the nature of the conviction was for, or any of the specifics surrounding the conviction are more prejudicial than probative and they may not go into those.

In response to the State's inquiry concerning the scope of this ruling, the trial court responded, "I don't want it brought out that the defendant's ever been in the penitentiary, convicted of anything, unless he testifies." Lodermeier argues the State's opening statement violated the in limine order. However, the State simply mentioned a date on which law enforcement found Lodermeier in possession of a stolen Case 580 backhoe (the subject of the federal conviction) and described the circumstances surrounding it, without...