Lykken v. Class

• Decision Date: 16 January 1997
• Docket Number: No. 19623,19623
• Parties: David Lee LYKKEN, Applicant and Appellant, v. Joseph P. CLASS, Warden South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 302

561 N.W.2d 302

1997 SD 29

David Lee LYKKEN, Applicant and Appellant, v. Joseph P. CLASS, Warden South Dakota State Penitentiary, Appellee.

No. 19623.

Supreme Court of South Dakota.

Considered on Briefs Jan. 16, 1997.

Decided March 19, 1997.

David M. Buechler Parker, for Applicant and Appellant.

Mark Barnett, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, for Appellee.

GILBERTSON, Justice.

¶1 David Lee Lykken (Lykken) appeals from the denial of his writ of habeas corpus. We affirm.

FACTS AND PROCEDURE

¶2 Lykken was convicted in November 1990 of first-degree rape, kidnapping, first-degree burglary, and simple assault following a two-day jury trial in Vermillion, South Dakota. He further admitted to a Part II information alleging a prior conviction of first-degree burglary. He was sentenced on February 7, 1991 to 225 years in the state penitentiary. His conviction and sentence were affirmed on direct appeal to this Court in State v. Lykken, 484 N.W.2d 869 (S.D.1992).

¶3 Lykken now brings a habeas corpus action to this Court for review. Lykken claims an illegal enlargement of his sentence by the trial court and ineffective assistance of both trial and appellate counsel in violation of the Sixth Amendment to the U.S. Constitution and Article VI, § 7 of the South Dakota Constitution. Both claims were heard by the habeas court pursuant to Lykken's petition for writ of habeas corpus. Following hearing and argument by counsel, the writ was denied.

STANDARD OF REVIEW

¶4 Habeas corpus is not a substitute for direct review. Loop v. Class, 1996 SD 107, p 11, 554 N.W.2d 189, 191. Because the remedy in a habeas proceeding is in the nature of a collateral attack on a final judgment, our scope of review is limited. Jenner v. Leapley, 521 N.W.2d 422, 425 (S.D.1994); Gregory v. Solem, 449 N.W.2d 827 (S.D.1989).

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.

St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (internal citations omitted).

¶5 On habeas review of the legality of a criminal sentence, where the state produces a document constituting a judgment of conviction, the petitioner has the burden to prove by a preponderance of the evidence that there exists credible evidence of invalidity in that judgment. State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994) (citing Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 524, 121 L.Ed.2d 391, 405 (1992); Stuck v. Leapley, 473 N.W.2d 476, 478 (S.D.1991)). See also Alexander v. Solem, 383 N.W.2d 486, 488 (S.D.1986). The habeas court's findings are given "considerable deference" and we will not reverse these findings unless they are clearly erroneous. St. Cloud, 521 N.W.2d at 121; McCafferty v. Solem, 449 N.W.2d 590, 592 (S.D.1989); Satter v. Solem, 422 N.W.2d 425, 427 (S.D.1988), cert. denied, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 989 (1989).

¶6 Whether a defendant has received ineffective assistance of counsel presents a mixed question of law and fact. St. Cloud, 521 N.W.2d at 121. 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 inactions constituted ineffective assistance of counsel.' " Id. at 122 (quoting Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D.1988)).

ANALYSIS AND DECISION

¶7 1. Whether the trial court unlawfully enlarged Lykken's sentence?

¶8 At the sentencing hearing, the trial court orally pronounced sentence upon Lykken on all four counts for which the jury had found him guilty. Lykken was sentenced to imprisonment in the state penitentiary for 100 years for first-degree rape, 100 years for first-degree kidnapping, 25 years for first-degree burglary and 2 years for simple assault. The trial court stated the 2-year sentence was to run concurrently with the other terms of years and the 25-year sentence was to run consecutively to the rape and kidnapping sentences. The trial court did not state whether the rape and kidnapping sentences themselves were to run concurrently or consecutively.

¶9 Within fifteen minutes of the court's oral pronouncement of this sentence and before any of the parties and their attorneys had left the courtroom, ¹ the trial court reconvened court and corrected the sentence, stating that the rape and kidnapping sentences were to run consecutively. The trial court stated this was the correct sentence as reflected in the court's written notes. ²

¶10 The trial court's comments indicate it was correcting an inadvertent omission from the court's intended sentence, as reflected in the court's written notes. We interpret this clarification of Lykken's sentence under SDCL 23A-31-2, which provides that "[c]lerical mistakes in judgments, orders or other parts of a record and errors in a record arising from oversight or omission may be corrected by a court at any time and after such notice, if any, as the court orders." Application of this statute is illustrated in State v. Whalen, 367 N.W.2d 186 (S.D.1985). In Whalen, we held that where a court's order had omitted a one-year requirement of probation and the defendant was told in open court that the order meant he was on probation for one year, the court's clarification order was a valid correction of an oversight or omission, authorized under SDCL 23A-31-2.

¶11 Our state rules of criminal procedure, SDCL Ch. 23A, were adopted from the Federal Rules of Criminal Procedure. State v. Ford, 328 N.W.2d 263, 267 (S.D.1982). SDCL 23A-31-2 is identical to Federal Rule of Criminal Procedure 36. In addressing the purpose of Rule 36, federal courts have noted "Rule 36 was intended to allow correction of clerical errors, not to allow reassessment of the merits of an earlier decision after the time for reconsideration or appeal ha[s] elapsed." United States v. Jones, 608 F.2d 386, 389 (9th Cir.1979). See also United States v. Werber, 51 F.3d 342, 343 (2d Cir.1995) (holding that "Rule 36 authorizes a court to correct only clerical errors in the transcription of judgments, not to effectuate its unexpressed intentions at the time of sentencing."); United States v. Guevremont, 829 F.2d 423, 426 (3d Cir.1987) (holding "a clerical error must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature").

¶12 Federal courts, applying this rule to situations factually similar to the one before us, have held:

The terms of an oral pronouncement that clearly provide for a consecutive or concurrent sentence control a contrary, silent or ambiguous written judgment. When the oral pronouncement of sentence does not resolve whether a sentence runs consecutively or concurrently, the clearly expressed intent of the sentencing judge discerned from the entire record controls. Finally, a presumption of concurrence operates to bar later imposition of a consecutive sentence when the oral pronouncement of sentence, the written judgment and the record do not clearly reveal the intent of the sentencing judge.

United States v. McAfee, 832 F.2d 944, 946 (5th Cir.1987) (internal citations omitted) (emphasis added); see also United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir.1994); Holloway v. United States, 960 F.2d 1348, 1359 (8th Cir.1992) (holding if the actual verbal judgment is ambiguous, the intent of the sentencing court may be construed from the entire sentencing pronouncement.); United States v. Raftis, 427 F.2d 1145, 1146 (8th Cir.1970) (stating mere "impreciseness of language will not negate the court's obvious intent.").

¶13 We have recently held that:

if the sentencing court was not patently clear at the oral sentencing as to its intent, there is guidance to interpret the intent. An orally pronounced sentence does control over the written judgment, however, if the verbal sentence is not clear, the intent of the sentencing court may be construed from the entire record.

State v. Sieler, 1996 SD 114, p 12, 554 N.W.2d 477, 481 (citing State v. Johnston, 478 N.W.2d 286, 288 (S.D.1991); 8A Moore's Federal Practice § 36.02 (2d ed 1995); Tramp, 30 F.3d at 1037). Here, the court's oral pronouncement, standing alone, was silent as to whether Lykken's sentences for kidnapping and rape were to run concurrently or consecutively. Examination of the entire record readily demonstrates the sentencing court intended these sentences to run consecutively. Any presumption of concurrence, as urged by Lykken, is barred by the clear intent of the sentencing court, as reflected in its written notes, its oral comments upon reconvening court, and the court's written judgment.

¶14 State v. Bucholz, 403 N.W.2d 400 (S.D.1987) and State v. Ford, 328 N.W.2d 263 (S.D.1982), cited by Lykken and addressing SDCL 23A-31-1, are inapposite. SDCL 23A-31-1 permits a sentencing judge to correct an illegal sentence or a sentence imposed in an illegal manner, but does not permit increasing a sentence once the convicted defendant has commenced serving the sentence. Ford, 328 N.W.2d at 267; State v. Tibbetts, 333 N.W.2d 440 (S.D.1983). See also Sieler, 1996 SD 114, p 10, 554 N.W.2d at 480.

¶15 In Bucholz, supra, the trial court resentenced the defendant in a hearing held approximately one week after the original sentencing had been pronounced. The need for rehearing was announced by the trial court one hour after the first sentencing hearing had concluded. The trial court determined resentencing was necessitated by defendant's and defendant's wife's false testimony at the original sentencing hearing...