Owens v. Russell, 24061.

Citation2007 SD 3,726 N.W.2d 610
Decision Date03 January 2007
Docket NumberNo. 24061.,24061.
PartiesJessi OWENS, Petitioner and Appellant, v. Duane RUSSELL, Warden, Respondent and Appellee.
CourtSupreme Court of South Dakota

Emily M. Sovell, Onida, South Dakota, Attorney for petitioner and appellant.

Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

SABERS, Justice.

[¶ 1.] Jessi Owens pleaded guilty to second degree murder for a beating death that occurred during a robbery. Under the sentencing scheme, she received a mandatory life sentence. On appeal, Owens raises five issues. We affirm.

FACTS

[¶ 2.] On January 28, 1998, seventeen-year-old Owens and nineteen-year-old Renee Eckes1 went to the home of David Paul Bauman to steal $9,000.2 During their search for the money, Bauman returned home and Owens hid in the bathroom and Eckes hid in a different room. At some point, Owens heard Eckes scream for help. Owens left her hiding place and saw Eckes and Bauman struggling. Owens used a hammer that Eckes threw to her to hit Bauman in the head several times. Eckes took the hammer from Owens and began hitting Bauman. According to Owens, it was Eckes who gave Bauman the majority of the blows. Bauman was found dead the next day.

[¶ 3.] The investigation of Bauman's death led police to suspect Owens and the others. Two days after the robbery/murder, the police arrested Owens. When the police found her, she was wearing boots with blood on them and blood was found in her car. Owens was questioned by two police officers from 12:20 a.m. to approximately 7:00 or 8:00 a.m.3 At Owens' request, the interview was not recorded; therefore, there is no recording or transcript of the interview in the record. The officers did not attempt to contact a parent or attorney at any point during or before the questioning. Owens was emancipated at the time and had been for almost two years.4

[¶ 4.] During the questioning, Owens admitted involvement in the murder. She also told police they had disposed of the hammer and clothes worn during the crime in rural Codington County. The defendants tried to conceal the evidence by burning it. The police found the charred remnants of the hammer and clothes worn during the crime.

[¶ 5.] Owens was charged with first degree murder, first degree burglary and second degree burglary. She attempted to transfer the case to juvenile court. After the transfer hearing the motion was denied. Owens agreed to plead guilty to second degree murder. In exchange, the remaining charges, including first degree murder, would be dismissed. The plea agreement specifically provided that the mandatory minimum for second degree murder was a life sentence. She pleaded guilty to the second degree murder and received a sentence of life-in-prison. Owens appeals and raises the following issues:

1. Whether Owens received ineffective assistance of counsel.

2. Whether Owens' statements to authorities were voluntary.

3. Whether Owens' plea of guilty was made knowingly and voluntarily.

4. Whether the mandatory life sentence is disproportionate.

5. Whether the habeas court's denial of comparative analysis through review of presentence reports in cases where the juvenile was charged, but not convicted, was erroneous.

STANDARD OF REVIEW

[¶ 6.] As we recently noted, "our standard of review for habeas review is well established." Vanden Hoek v. Weber, 2006 SD 102, ¶ 8, 724 N.W.2d 858 (quoting Crutchfield v. Weber, 2005 SD 62, ¶ 8, 697 N.W.2d 756 (quoting Jackson v. Weber, 2001 SD 136 ¶ 9, 637 N.W.2d 19, 22)) (additional citations omitted).

Our review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. The review is limited to jurisdictional errors. In criminal cases, a violation of the defendant's constitutional rights constitutes a jurisdictional error. The defendant has the burden of proving he is entitled to relief by a preponderance of the evidence.

The findings of facts shall not be disturbed unless they are clearly erroneous. A claim of ineffective assistance of counsel presents a mixed question of law and fact. The habeas court's conclusions of law are reviewed de novo.

Id. ¶¶ 8-9 (internal citations omitted). "The petitioner must overcome the `strong presumption that counsel's performance falls within the wide range of professional assistance.'" Nikolaev v. Weber, 2005 SD 100, ¶ 8, 705 N.W.2d 72, 74-75 (quoting Siers v. Class, 1998 SD 77, ¶ 12, 581 N.W.2d 491, 494 (citing Lykken v. Class, 1997 SD 29, 561 N.W.2d 302)). "Unless clear error is present, we defer to the habeas court's findings of fact regarding counsel's performance but, we may substitute our own judgment `as to whether defense counsel's actions or inactions constituted ineffective assistance of counsel.'" Id. We "will not compare counsel's performance to that of some idealized `super-lawyer' and will respect the integrity of counsel's decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel's performance was within the realm of competence required of members of the profession." Sprik v. Class, 1997 SD 134, ¶ 24, 572 N.W.2d 824, 829 (citing Roden v. Solem, 431 N.W.2d 665, 667 n. 1 (S.D. 1988)).

Ineffective assistance of counsel

[¶ 7.] The well-settled test for determining whether the defendant received effective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). We adopted the Strickland test in Luna v. Solem. 411 N.W.2d 656, 658 (S.D.1987).

[¶ 8.] The Strickland test is a two-part inquiry. The first part requires that

the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Hofer v. Class, 1998 SD 58, ¶ 10, 578 N.W.2d 583, 585-86 (additional citations omitted).

[¶ 9.] The second part of Strickland requires a showing of prejudice from counsel's deficient performance. 466 U.S. at 693, 104 S.Ct. at 2067. Prejudice requires "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068. With regard to plea cases, the prejudice part of the Strickland test,

will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged failure of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Id.

[¶ 10.] Our prior cases indicate that a defendant has an "increased burden to show ineffective assistance of counsel" when the case does not proceed to trial. Coon v. Weber, 2002 SD 48, ¶ 12, 644 N.W.2d 638, 643; Hofer, 1998 SD 58, ¶ 11, 578 N.W.2d at 586; Williams v. State, 349 N.W.2d 58, 62 (S.D.1984). This increased burden means the petitioner must demonstrate "gross error on the part of counsel in recommending that he plead guilty." Coon, 2002 SD 48, ¶ 12, 644 N.W.2d at 643; Hofer, 1998 SD 58, ¶ 11, 578 N.W.2d at 586; Williams, 349 N.W.2d at 62.

[¶ 11.] The United States Supreme Court has held that the Strickland test also applies to guilty pleas. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985) (holding "the two-part [Strickland] test applies to challenges to guilty pleas based on ineffective assistance of counsel"). The Hill Court also noted that the second part of Strickland test, the prejudice part, is slightly modified when the defendant pleads guilty. Id. (noting "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial"). This Hill modification is the same as our prejudice inquiry when a guilty plea, rather than a trial, is involved. Compare Hill, 474 U.S. at 59, 106 S.Ct. at 370-71 with Coon, 2002 SD 48, ¶ 13, 644 N.W.2d at 643, Lien v. Class, 1998 SD 7, ¶ 15, 574 N.W.2d 601, 607-08. Whether the prior cases that require a showing of gross error are sound in light of the United State Supreme Court's decision in Hill is immaterial here as Owens did not show either gross error or deficient performance.

Claimed deficient performance

[¶ 12.] Owens claims trial counsel was ineffective in several different ways. Trial counsel did not interview any of the potential witnesses to the crime, nor hire a private investigator. There were no forensic experts hired or consulted. Trial counsel did draft a motion for a pathology expert, but never filed the motion. Owens also argues counsel should have tried to suppress her confession,...

To continue reading

Request your trial
17 cases
  • Oleson v. Young, #27037
    • United States
    • South Dakota Supreme Court
    • August 26, 2015
    ...Habeas corpus "is a collateral attack on a final judgment." Monette v. Weber, 2009 S.D. 77, ¶ 6, 771 N.W.2d 920, 923 (quoting Owens v. Russell, 2008 S.D. 3, ¶ 6, 726 N.W.2d 610, 614-15). Accordingly, "habeas corpus can be used only to review (1) whether the court has jurisdiction of the cri......
  • Truman v. Griese
    • United States
    • South Dakota Supreme Court
    • February 11, 2009
    ... ... [762 N.W.2d 76] ...         Ronald A. Parsons, Jr., A. Russell Janklow, Tamara A. Wilka of Johnson, Heidepriem, ... [762 N.W.2d 77] ... Janklow, Abdallah & ... ...
  • Graham v. Young
    • United States
    • U.S. District Court — District of South Dakota
    • October 26, 2016
    ...to demonstrate that counsel's representation failed to satisfy an objective standard of reasonableness. Id. (citing Owens v. Russell, 2007 S.D. 3, 726 N.W.2d 610). "The second prong 'requires a showing of serious prejudice such that the errors deprived the defendant of a fair trial.'" Id. (......
  • State v. Chipps
    • United States
    • South Dakota Supreme Court
    • January 27, 2016
    ...the challenged action might be considered sound trial strategy." McDonough, 2015 S.D. 1, ¶ 22, 859 N.W.2d at 37 (quoting Owens v. Russell, 2007 S.D. 3, ¶ 8, 726 N.W.2d 610, 615 ). Reviewing an ineffective-assistance-of-counsel claim on direct appeal does not permit an "attorney [ ] charged ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT