Two Eagle v. Leapley

• Decision Date: 25 May 1994
• Docket Number: No. 18500,18500
• Citation: 522 N.W.2d 765
• Parties: Lynn Joseph TWO EAGLE, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 765

522 N.W.2d 765

Lynn Joseph TWO EAGLE, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota Penitentiary, Appellee.

No. 18500.

Supreme Court of South Dakota.

Considered on Briefs May 25, 1994.

Decided Oct. 5, 1994.

Mark Barnett, Atty. Gen., Gary Campbell, Asst. Atty. Gen., Pierre, for appellee.

Timothy J. Langley, Sioux Falls, for petitioner and appellant.

MILLER, Chief Justice.

Joseph Lynn Two Eagle appeals the circuit court's quashing of a writ of habeas corpus. He alleges he received ineffective assistance of counsel which rendered his 1989 guilty plea unknowing and involuntary. Specifically, Two Eagle alleges his attorney was ineffective by failing to discover that his 1987 aggravated assault guilty plea was neither knowing or voluntary due to alleged ineffective assistance of counsel in the 1987 action. We affirm.

FACTS

Two Eagle was arrested in Pennington County on February 18, 1987, and charged with aggravated assault and resisting arrest after threatening a police officer with a knife. His initial appearance was on February 19, 1987. On April 2, 1987, he filed a motion for a psychological exam which was performed on April 10, 1987.

At the time, the so-called 180-day rule provided by SDCL 23A-44-5.1 stated:

The prosecution shall dispose of all criminal cases by plea of guilty or nolo contendere, trial or dismissal within one hundred eighty days from the date the defendant has first appeared before a judicial officer on the complaint or indictment. Any period of delay shall be excluded if the trial court finds good cause for the delay. In the event of the prosecution's failure to dispose of the action within the time limit required by this section, the action shall be dismissed. (Emphasis added.) ¹

The 180-day interval expired on August 19, 1987. ² A status hearing was scheduled for August 24, 1987. When Two Eagle did not appear and his counsel was unable to explain his absence, a bench warrant was issued and he was subsequently arrested. ³ On October 5, 1987, Two Eagle pled guilty to aggravated assault and a DWI charge in exchange for the State dismissing or not filing charges of resisting arrest, failure to vacate property, two counts of intentional damage to property and a failure to appear charge. Two Eagle was sentenced to three years in the state penitentiary. He neither appealed nor filed a habeas petition concerning the conviction and served out his sentence.

On August 27, 1989, four days after his release, Two Eagle robbed a Sioux Falls 7-11 store by threatening the clerk with a knife. He was indicted on one count of robbery and three counts of burglary. State also filed a Part II Information alleging Two Eagle was a habitual offender based on the 1987 Pennington County conviction. With the advice of counsel, Two Eagle entered into a plea agreement in which State dismissed the three burglary charges and the Part II Information and he pled guilty to robbery and was sentenced to twelve years in prison.

On December 1, 1992, Two Eagle filed an application for a writ of habeas corpus, alleging his guilty plea in the 1989 conviction was not knowing and voluntary because it was based on his counsel's ineffective assistance in failing to discover the alleged invalidity of his 1987 conviction. A writ of habeas corpus was issued on April 19, 1993, a hearing was held on May 27, 1993, and the habeas court entered an order quashing the writ on September 13, 1993. Two Eagle appeals.

DECISION

Habeas corpus is not a substitute for direct review. O'Connor v. Leapley, 488 N.W.2d 421, 422-423 (S.D.1992). Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. ⁴ Petrilli v. Leapley, 491 N.W.2d 79, 81 (S.D.1992); Gross v. Solem, 446 N.W.2d 49, 50 (S.D.1989). On habeas review, the petitioner has the initial burden of proof. Alexander v. Solem, 383 N.W.2d 486, 489 (S.D.1986). We review the habeas court's factual findings under the clearly erroneous standard. Phyle v. Leapley, 491 N.W.2d 429, 433 (S.D.1992); Ashker v. Solem, 457 N.W.2d 473, 476 (S.D.1990).

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.

Gross, 446 N.W.2d at 50. Habeas corpus is available only where the defendant is imprisoned or restrained of his liberty. Flittie v. Solem, 867 F.2d 1053 (8th Cir.1989).

"The standard that applies in evaluating claims of ineffective assistance of counsel challenges to guilty pleas is the same standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)." Cox v. Lockhart, 970 F.2d 448 (8th Cir.1992). This Court has adopted the Strickland test to determine whether a defendant received effective assistance of counsel as guaranteed by article VI, Sec. 7 of the South Dakota Constitution. Luna v. Solem, 411 N.W.2d 656, 658 (S.D.1987); Woods v. Solem, 405 N.W.2d 59, 61 (S.D.1987). The burden is on the defendant to show: (1) that counsel's performance was deficient; and (2) that defendant was prejudiced by the deficient performance.

'When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.' Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. 'Judicial scrutiny of counsel's performance must be highly deferential.' Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2dat694. '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.' Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)).

Primeaux v. Leapley, 502 N.W.2d 265, 267 (S.D.1993).

A. The 1987 Action

This Court has consistently followed the general rule that a voluntary and intelligent plea of guilty waives a defendant's right to appeal all nonjurisdictional defects in the prior proceedings. State v. Grosh, 387 N.W.2d 503 (S.D.1986); State v. Janssen, 371 N.W.2d 353 (S.D.1985); State v. Morrison, 337 N.W.2d 825 (S.D.1983); State v. Culton, 273 N.W.2d 200 (S.D.1979); State v. Losieau, 266 N.W.2d 259 (S.D.1978); State v. Jordan, 261 N.W.2d 126 (S.D.1978). "A plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having the understanding, waives them." Petrilli, 491 N.W.2d at 82. We have previously determined that non-compliance with the 180-day rule does not give rise to a jurisdictional defect or a legal error of constitutional dimensions. State v. Anderson, 417 N.W.2d 403, 405 (S.D.1988). Additionally, a defendant's guilty plea normally waives the statutory right to dismissal for a violation of SDCL 23A-44-5.1. Id.

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.

State v. Crow, 504 N.W.2d 336, 339 (S.D.1993); Grosh, 387 N.W.2d at 507 (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235, 243 (1973)). Two Eagle alleges his 1989 guilty plea was neither voluntary nor knowing because his 1987 counsel was ineffective in failing to move to dismiss the charges for violation of the 180-day rule. He asserts dismissal of the 1987 aggravated assault charge was guaranteed as a matter of right due to the lapse of 180 days.

The 180-day period expired on August 19, 1987, only five days before the scheduled August 24, 1987, status hearing. Although this was a prima facie case for dismissal under SDCL 23A-44-5.1, at least eight days of delay, from April 2, 1987 to April 10, 1987, were attributable to delay at the request of and attributable to Two Eagle's request for a psychological examination. ⁵ Subtracting those eight days means the August 24 status hearing was held three days before the statutory limit expired.

Additional delay after the August 24 hearing is directly attributable to Two Eagle. He failed to appear for the scheduled hearing and the trial judge was obliged to issue a bench warrant for his arrest. See State v. Cross, 468 N.W.2d 419 (S.D.1991) (holding where defendant escaped, statute was properly tolled). When Two Eagle finally appeared, his counsel requested additional time to prepare as "I haven't had time to talk to Mr. Two Eagles (sic)." As an additional complication, there is evidence that Two Eagle had been engaging in additional criminal activity during the period. His attorney further stated "... they arrested Mr. Two Eagles (sic) on another felony warrant in connection with this. There are some other bench warrants involved."

Although State neglected to file a motion for delay, this sparse record does not indicate any delay that can be ascribed to the State. This case reveals none of the prosecutorial abuse or ineffective scheduling practices the 180-day rule was intended to cure. See State v. Bahm, 494 N.W.2d 177, 179 (S.D.1992); State v. Ven Osdel, 462 N.W.2d 890 (S.D.1990).

Counsel in the 1987 action should have filed a motion for dismissal alleging a 180-day violation or discussed the situation with his client. However, because the delay was attributable to the defendant, the 180-day limit was...