State v. Arabie
| Decision Date | 21 May 2003 |
| Docket Number | No. 22286.,22286. |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Shaun ARABIE, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
Michael Stonefield, Office of the Public Defender for Pennington County, Rapid City, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Shaun Arabie appeals his conviction and sentence for one count of first degree burglary and one count of second degree rape. We affirm.
[¶ 2.] The victim was a thirty-one-year-old single mother who lived with her six-year-old son in a trailer home in Rapid City. Early on the morning of June 26, 2001, the victim was awakened in her bed when she felt some pressure on her chest. Opening her eyes, the victim found a male assailant, later identified as Arabie, lying on top of her holding a knife to her chest. Arabie told the victim not to scream because he had a knife and then pressed the serrated edge of the steak knife he was holding to her throat. The victim screamed and tried to squirm away, but Arabie instructed her to do as he said and he would not hurt her. Arabie forced the victim to remain on her back, pulled off her underwear and tore off the top of her nightgown. He then bit her on one of her breasts hard enough to draw blood and leave teeth marks. The victim continued to struggle, but Arabie became angry, pushed her down onto her back and choked her until her vision became blurry.
[¶ 3.] The struggling and Arabie's threats went on for some time. Arabie eventually unfastened his jeans and pulled them down along with his underwear. He then forced the victim to perform oral sex on him until she told him that she was afraid she would vomit. Arabie instructed the victim to turn around and the victim, fearing what was to follow, begged Arabie to use some condoms that she had in her room. This angered Arabie who forced his penis into the victim's vagina from his position behind her and raped her.
[¶ 4.] When the victim felt Arabie pull away, she turned around and saw him fastening his pants with his back toward her. The victim rose from the bed, pushed Arabie forward and struggled with him, pulling him into a headlock and then onto the floor. The two continued to fight and struggle for a time until Arabie slammed the victim's head against a nightstand, stunning her. Arabie fled the room and the victim quickly shut her bedroom door, locked it and phoned for emergency assistance. Law enforcement officers later arrived on the scene and began their investigation.
[¶ 5.] The investigation of the above events led to identification of Arabie as the assailant. On July 19, 2001, Arabie was indicted for one count each of first degree burglary, second degree rape and aggravated assault. A part two information was also filed alleging Arabie to be a habitual offender based upon a 1997 burglary conviction in the State of Nebraska.
[¶ 6.] During the course of the ensuing proceedings, defense counsel filed a number of motions including a detailed discovery motion. Plea bargaining also took place. On December 5, 2001, Arabie pled guilty to first degree burglary and second degree rape in exchange for a dismissal of the aggravated assault charge and the part two habitual offender information. Sentencing was on January 16, 2002. The trial court sentenced Arabie to twenty-five years in the penitentiary, with five suspended, on the burglary conviction and to a consecutive twenty-five years in the penitentiary on the rape conviction.
[¶ 7.] Arabie appealed his conviction to this Court and filed his brief as a "Korth brief" pursuant to this Court's decision in State v. Korth, 2002 SD 101, 650 N.W.2d 528. In Korth, this Court held that in cases where court appointed counsel representing an indigent defendant on appeal determines that the case does not raise any arguably meritorious issues, counsel need not move to withdraw even if the appeal is entirely frivolous. See Korth, 2002 SD 101
at ¶ 16, 650 N.W.2d at 535. Rather, this Court adopted an alternative briefing procedure for such cases devised by the Oregon Supreme Court in State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). Several preliminary issues are presented by use of the Korth procedure in this case.
[¶ 8.] May counsel raise and argue legal issues in Section A of a brief submitted under Korth?
650 N.W.2d at 536 (emphasis added). At a later point this Court further instructed:
we find the appropriate and effective way to process this issue involving an absolute right to appeal and the right to appointed counsel for the indigent is for the filing of the "Section A" and "Section B" appellate brief. The former should be designated by the attorney as attorney issues, and the latter should be designated as issues that the client requested be submitted.
Id. (emphasis added).
[¶ 10.] As asserted by Arabie's counsel, the language emphasized in the above quotations from Korth is inconsistent with the rules that this Court adopted from Balfour. Balfour makes clear that counsel should not argue any issues in Section A of the brief. Rather, counsel simply provides a statement that he or she "has thoroughly reviewed the record and discussed the case with trial counsel and the client, and that counsel has not identified any arguably meritorious issue on appeal." Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535 (quoting Oregon Rule of Appellate Procedure 5.90(1)(a)(iii)). Thus, notwithstanding what this Court said in Korth, there should be no "issues the attorney believes are meritorious" or "attorney issues" in a proper Korth brief. This is only logical because, if there are issues in the case that counsel believes are meritorious, counsel should obviously abandon the Korth procedure and brief and argue those issues as in any other criminal appeal.
[¶ 11.] Based upon the foregoing, the only issues that should be presented and argued in a Korth brief are those issues presented at the client's request in Section B of the brief. This conclusion is reinforced by the following instructions set forth by the Oregon Supreme Court in Balfour:
(4) The appellant's brief shall be divided into two sections, Section A and Section B. Section A of the appellant's brief shall contain a statement of the case, including a statement of facts, sufficient to apprise the court of the jurisdictional basis for the appeal. Section A, under those circumstances, shall contain no assignments of error or argument.
* * *
Balfour, 814 P.2d at 1080 (citations omitted)(emphasis added).
[¶ 12.] Does Section A of Arabie's brief meet the requirements of Korth?
[¶ 13.] Korth requires Section A of a brief to include: a statement of the case and facts encompassing those facts sufficient to present any claim or claims of error asserted by the client in Section B of the brief; a description of any significant motions filed in the case and the trial court's disposition of the motions; a statement that the case is being submitted pursuant to Korth, that counsel has thoroughly reviewed the record and discussed the case with trial counsel and the client, and that counsel has not identified any arguably meritorious issue on appeal; and, counsel's signature. Korth, 2002 SD 101 at n. 6, 650 N.W.2d at 535-536.
[¶ 14.] Counsel has complied with all of these requirements here. Counsel has provided a statement of the case and facts sufficient to address the issues raised in Section B of the brief. Although counsel did not discuss in detail the motions filed in the case and the trial court's disposition of the motions, counsel did mention the motions and that they were not contested by the State. Counsel's brief explicitly indicates: that it is submitted pursuant to Korth, supra;
that counsel has thoroughly reviewed the record; that counsel was Arabie's trial counsel; that he has discussed the case and possible appellate issues with Arabie; and that he has not identified any arguably meritorious issues on appeal. Finally, counsel signed Section A of the brief. Thus, Section A meets all of the requirements for Section A of a Korth brief that are pertinent to this case.
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