Piper v. Weber

• Decision Date: 29 July 2009
• Docket Number: No. 24868.,24868.
• Citation: 771 N.W.2d 352,2009 SD 66
• Parties: Briley PIPER, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
• Court: South Dakota Supreme Court

771 N.W.2d 352

2009 SD 66

Briley PIPER, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.

No. 24868.

Supreme Court of South Dakota.

Argued April 28, 2009.

Decided July 29, 2009.

Steve Miller, Steven R. Binger of Binger Law Office, Sioux Falls, South Dakota, Attorneys for petitioner and appellant.

Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

MEIERHENRY, Justice.

[¶ 1.] Briley Piper appeals the circuit court's denial of his writ of habeas corpus. He contends that he did not validly waive his right to have a jury determine whether to impose the death penalty and that his appellate counsel provided ineffective assistance of counsel in his direct appeal.

BACKGROUND

[¶ 2.] The facts of this case are available in their entirety in this Court's opinion affirming Piper's conviction and death sentence on direct appeal. State v. Piper, 2006 SD 1, 709 N.W.2d 783. The following facts relate to the issues raised in Piper's request for habeas corpus relief. Piper, Elijah Page, and Darrell Hoadley kidnapped and murdered Chester Allen Poage on or about March 12 and 13, 2000, for the purpose of stealing from Poage's family home in Spearfish, South Dakota. Piper was charged with first degree premeditated murder, first degree felony murder, kidnapping, first degree robbery, first degree burglary and grand theft.

[¶ 3.] Piper first pleaded not guilty. He later appeared before the judge to change his plea to guilty to the charges of first degree felony murder, kidnapping, and the remainder of the charges. The State was not aware of Piper's intent to change his plea but contemporaneously informed the judge that it still intended to seek the death penalty. The judge then had a discussion on the record with counsel concerning the death penalty phase of the proceedings. The judge indicated that he was unsure whether the death penalty determination would be made by the court or by a jury when a defendant pleads guilty to first degree murder. Defense counsel for Piper offered their interpretation of the statutes. They believed the statutes required the judge rather than a jury to decide if death should be imposed.

[¶ 4.] Following the short discussion with counsel concerning the proper procedure, the judge advised Piper that he had the "right to a jury trial here in Lawrence County by a jury of 12 fair and impartial jurors." The judge further explained that the jury would have to determine whether the penalty should be a life or death sentence and that the verdict would have to be unanimous. Piper indicated that he did not understand the unanimity requirement. In response, the judge explained that by waiving jury sentencing, Piper traded "12 lay people for one judge to make that call." The judge emphasized that by pleading guilty, Piper was waiving his right to have a jury make the death penalty determination. The judge then accepted Piper's guilty plea and set a date for the sentencing hearing. After a three-day hearing, the judge sentenced Piper to death.

[¶ 5.] Piper's co-defendant, Page, was also sentenced to death by the same judge. The other co-defendant, Hoadley, maintained his not guilty plea and proceeded to jury trial. The jury returned a guilty verdict but did not impose the death penalty. Because of the discrepancy in sentences of the co-defendants, Piper challenged the proportionality of his death sentence to this Court. The case was remanded for the judge to conduct an intra-case proportionality review. The judge conducted the proportionality review and affirmed his earlier decision to impose the death penalty. Piper appealed his death sentence, and the majority of this Court affirmed.^* Subsequently, Piper filed an application for writ of habeas corpus in circuit court. The habeas court denied the application. Piper now appeals the denial of habeas relief and raises two issues: (1) whether his waiver of his right to have a jury determine the death penalty was constitutionally valid, and (2) whether his counsel rendered ineffective assistance in his direct appeal.

STANDARD OF REVIEW

[¶ 6.] The United States Supreme Court has said that: "[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two." Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). "[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983) (citations omitted); see also Piper, 2006 SD 1, ¶ 75, 709 N.W.2d at 811 (citations omitted); State v. Page, 2006 SD 2, ¶ 98, 709 N.W.2d 739, 771 (citations omitted). This Court has embraced the Supreme Court's recognition that "`death is a different kind of punishment from any other which may be imposed in this country' and that `[t]he penalty of death is qualitatively different from a sentence of imprisonment, however long.'" Page, 2006 SD 2, ¶ 98, 709 N.W.2d at 771 (quoting Lankford v. Idaho, 500 U.S. 110, 125, 125 n. 21, 111 S.Ct. 1723 n. 21, 114 L.Ed.2d 173 (1991)).

[¶ 7.] Habeas corpus proceedings are reviewed under a narrow standard of review. Steichen v. Weber, 2009 SD 4, ¶ 4, 760 N.W.2d 381, 386 (citing Erickson v. Weber, 2008 SD 30, ¶ 17, 748 N.W.2d 739, 744).

Habeas corpus can be used only to review (1) whether the court has 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. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court's findings unless they are clearly erroneous.

Id. (quoting Erickson, 2008 SD 30, ¶ 17, 748 N.W.2d at 744). "Habeas corpus review does not substitute for direct review." Id. The applicant for habeas corpus must satisfy the initial burden to prove the need for relief by a preponderance of the evidence. Id.

ANALYSIS

[¶ 8.] Piper's habeas argument is directed at invalid waiver of his right to a jury in the death penalty phase and ineffective assistance of counsel. Piper contends that he was misled by the judge's advice that a jury would have to choose a sentence unanimously. Since we decide this case on the issue of whether Piper validly waived his right to a jury on the death penalty phase, we do not reach his ineffective assistance of counsel claim.

[¶ 9.] SDCL 23A-27A governs the capital sentencing procedure in South Dakota. See SDCL 23A-27A-6; SDCL 23A-27A-2. The statutes provide that if a jury does not unanimously decide to sentence the defendant to death, a life sentence is automatically imposed. SDCL 23A-27A-4; SDCL 23A-27A-5. In pertinent part, SDCL 23A-27A-4 provides: "If an aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. If a sentence of death is not recommended by the jury, the court shall sentence the defendant to life imprisonment." SDCL 23A-27A-4 (emphasis added). Our reading of the statute is that the jury has to unanimously agree to impose the death penalty. If the jury cannot agree to a death sentence, an automatic life sentence is imposed. Consequently, if one juror votes against imposing death, the defendant will receive a life sentence.

[¶ 10.] South Dakota modeled its capital sentencing scheme after the Georgia death penalty statutes, which the United States Supreme Court determined to be constitutional in Gregg v. Georgia. See Rhines v. Weber, 2000 SD 19, ¶ 49, 608 N.W.2d 303, 314; see also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). The Georgia Supreme Court, applying similar statutes, said:

We interpret [the statutes] to mean ... in a murder case, after conviction, where only two sentences can be imposed, life imprisonment or death, if the convicting jury is unable to agree on which of those two sentences to impose, the trial judge must impose the lesser, life imprisonment."

Miller v. State, 237 Ga. 557, 229 S.E.2d 376, 377 (1976); see also Zant v. Stephens, 456 U.S. 410, 420, 102 S.Ct. 1856, 1860, 72 L.Ed.2d 222 (1982) (jury must unanimously recommend the death penalty).

[¶ 11.] Piper contends that he did not knowingly and voluntarily waive his right to have a jury make the death penalty determination. Piper specifically points to the judge's failure to clarify that a jury would have to unanimously sentence him to death, and that if one juror voted against the death penalty, he would receive a life sentence. The verbatim record of the judge's explanation supports Piper's claim.

[¶ 12.] The judge first advised:

Judge: With respect to Count IA, which is a Class A felony, you not only have a jury trial right as to the charge itself as to the issue of guilt or innocence, but you have the right to a jury to determine whether or not the State has proved one or more aggravating circumstances and then for that jury to decide whether the penalty should be life or death. The verdict of the jury would have to be unanimous. And even if the jury found that one or more aggravating circumstances existed, I think it is still within their province to sentence you to life imprisonment.

Is that your understanding, [Defense Counsel]?

Piper's counsel: Correct.

Judge: [Counsel for the State]?

State's counsel: Yes.

Judge: Do you understand that, Mr. Piper?

Piper: I didn't understand the last part.

(Emphasis added). After Piper expressed...