Wabasha v. Leapley, s. 17696

• Decision Date: 28 May 1992
• Docket Number: 17753,Nos. 17696,s. 17696
• Citation: 492 N.W.2d 610
• Parties: Elroy L. WABASHA, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 610

492 N.W.2d 610

Elroy L. WABASHA, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State

Penitentiary, Appellee.

Nos. 17696, 17753.

Supreme Court of South Dakota.

Considered on Briefs May 28, 1992.

Decided Nov. 10, 1992.

William Taylor and James Moore of Woods, Fuller, Shultz & Smith, Sioux Falls, for petitioner and appellant.

Mark Barnett, Atty. Gen., Frank E. Geaghan, Asst. Atty. Gen., Pierre, for appellee.

DOBBERPUHL, Circuit Judge.

In this consolidated appeal Elroy Wabasha (Wabasha) appeals from the July 24, 1991, order of the circuit court denying his application for a writ of habeas corpus and the September 19, 1991, order of the circuit court denying his motion to reconsider the previous order and to grant leave to file an amended application for a writ of habeas corpus. On September 30, 1991, the circuit court issued a certificate of probable cause, pursuant to SDCL 21-27-18.1, limited to the procedural question of whether the circuit court properly denied Wabasha's application for a writ of habeas corpus following court appointed counsel's motion to withdraw without granting Wabasha a hearing. Wabasha then applied to this court for a certificate of probable cause. It was granted November 22, 1991, at which time the procedural issue for which the circuit court granted the certificate of probable cause became moot.

Habeas corpus is in the nature of a collateral attack upon a final judgment. As such, the scope of review is limited to: "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 v. Solem, 446 N.W.2d 49, 50 (S.D.1989); Goodroad v. Solem, 406 N.W.2d 141 (S.D.1987).

On May 17, 1988, Wabasha pled guilty to a charge of first degree robbery in violation of SDCL 22-30-6. Wabasha was sentenced to fifteen years in the South Dakota State Penitentiary. Wabasha's claim is two-fold. First, he claims that the sentence imposed by the trial court violated his Sixth and Fourteenth Amendment rights as guaranteed by the United States Constitution because the trial court based Wabasha's sentence upon a misunderstanding of his prior convictions. Second, he argues that he was provided ineffective assistance of counsel when trial counsel failed to object to the comments concerning Wabasha's alleged involvement in another crime.

WAS WABASHA DENIED DUE PROCESS?

Questions of constitutional magnitude involving due process are reached when a defendant is sentenced on the basis of assumptions concerning his criminal record which are materially untrue. State v. Ellefson, 287 N.W.2d 493, 496 (S.D.1980). Sentences based upon material misinformation or erroneous assumptions violate due process. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592, 596 (1972); Townsend v. Burke, 334 U.S. 736, 740, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); United States v. Collins Spencer Catch The Bear, 727 F.2d 759, 761 (8th Cir.1984); State v. Ellefson, 287 N.W.2d at 496; Crowe v. State, 86 S.D. 264, 194 N.W.2d 234, 246 (S.D.1972).

At the sentencing hearing there was some discussion concerning Wabasha's two prior convictions which had been vacated. The record clearly indicates that the trial judge was aware of the vacated convictions and did not misunderstand or rely on any misinformation concerning Wabasha's prior criminal record. ¹

WAS WABASHA DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

Before a petitioner may succeed on an ineffective assistance of counsel claim he must fulfill the two-prong test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and prove that trial counsel's performance was deficient and that the deficient performance prejudiced petitioner's defense. Strickland v. Washington, supra; Boykin v. Leapley, 471 N.W.2d 165, 167 (S.D.1991); Gross v. Solem, supra; Roden v. Solem, 431 N.W.2d 665 (S.D.1988); Luna v. Solem, 411 N.W.2d 656 (S.D.1987); Jones v. State, 353 N.W.2d 781 (S.D.1984).

There is a presumption that counsel was competent until the petitioner proves otherwise. Gross v. Solem, supra. Further, "it is not our function to second guess the decisions of experienced trial attorneys regarding matters of trial tactics." Roden v. Solem, supra, 431 N.W.2d at 667, quoting, State v. Walker, 287 N.W.2d 705, 707 (S.D.1980).

Wabasha argues that trial counsel's representation was deficient when trial counsel failed to object to the comments of the state and the trial court regarding a crime for which he had neither been convicted nor arrested. Our scope of inquiry is stated in Roden v. Solem, 431 N.W.2d at 667:

Generally, the making or failure to make motions and objections are trial decisions within the discretion of trial counsel. State v. Anderson, 387 N.W.2d 544 (S.D.1986); State v. Tchida, 347 N.W.2d 338 (S.D.1984). This general rule will not apply, however, where trial counsel's actions cannot reasonably relate to any strategic decision and are clearly contrary to the actions of competent counsel in similar circumstances. (footnote omitted).

Due process requires a defendant who contests the accuracy of factual information relied upon by a sentencing court be given an opportunity to rebut or explain that information. United States v. Collins Spencer Catch The Bear, supra, 727 F.2d at 761; United States v. Papajohn, 701 F.2d 760 (8th Cir.1983). Disclosure during sentencing of information on which the sentencing court relies is generally sufficient to satisfy the notice requirement of due process. Orner v. United States, 578 F.2d 1276 (8th Cir.1978).

Trial counsel did not object to the state's comments during sentencing relating to the gun shop theft. ² Trial counsel also did not object when the trial court commented upon the same crime. ³ Wabasha had not been charged with the crime. However, given the facts that the trial court had presided over and heard the evidence of the jury trial in the gun shop case and drew its own conclusions to the sworn testimony of the witnesses there, was it unreasonable that counsel did not object to the state's and the court's comments? That objection would have caused the trial court to delve farther into the circumstances surrounding a robbery for which Wabasha may or may not have been involved. Wabasha was given an opportunity to speak and made a lengthy statement to the court. He chose not to comment on or contest the state's or the sentencing court's comments concerning the gun shop theft.

It is well settled that a sentencing court has wide discretion in what it may consider, "largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, supra, 404 U.S. at 446, 92 S.Ct. at 591, 30 L.Ed.2d at 596; accord, United States v. Papajohn, supra, 701 F.2d at 763 (information which a sentencing court may consider includes criminal activity for which the defendant has not been prosecuted); State v. Grosh, 387 N.W.2d 503, 509 (S.D.1986); State v. Ellefson, supra, 287 N.W.2d at 496; State v. Carsten, 264 N.W.2d 707, 711 (S.D.1978). Factual information relied upon by the sentencing court must have an indicium of reliability beyond mere allegation. United States v. Collins Spencer Catch The Bear, supra, 727 F.2d at 761; State v. Grosh, supra, 387 N.W.2d at 509 (out of court statements must be consistent with the truth). There are few sources more reliable than a jury trial.

Wabasha did not receive the maximum sentence of twenty-five years which the state recommended. Instead he was sentenced to fifteen years in the South Dakota State Penitentiary. When the sentencing court made reference to the gun shop theft, it did so only in passing. The record shows that the bulk of the reasoning for the sentence came from other factors which were considered by the court.

We hold that based on the record, counsel's failure to object to the comments of the trial court and the state was not unreasonable, and therefore do not reach the second prong of the test under Strickland v. Washington.

Affirmed.

MILLER, C.J., and WUEST and SABERS, JJ., concur.

HENDERSON, J., dissents.

DOBBERPUHL, Circuit Judge, for AMUNDSON, J., disqualified.

HENDERSON, Justice (dissenting).

Based upon an application of the facts in this case to the holding in United States v. Sands, 908 F.2d 304 (8th Cir.1990) I respectfully dissent. Essentially, at the sentencing hearing, the State made an allegation against Wabasha that Wabasha (State "feels") was one of two people who were never apprehended in a strong arm robbery at a gun shop in Sioux Falls. Wabasha had no notice that this "other crime" would be considered and was not afforded due process with respect thereto. Wabasha was not given an opportunity to respond nor an opportunity to rebut contested factual information relied upon by the sentencing court through a hearing. Attached hereto and by this reference made a part hereby is a copy of the ORDER DENYING PETITIONER'S REQUEST FOR HABEAS CORPUS. Note that the request "... is denied without hearing." This is a requirement under United States v. Catch The Bear, 727 F.2d 759, 761 (8th Cir.1984). The Catch The Bear case arose from this Court. In Catch The Bear at 761, the Eighth Circuit held "Factual matters considered [at sentencing] must have some minimal indicium of reliability beyond mere allegation."

As one can note in the first paragraph of the majority opinion, the circuit court issued a certificate of probable cause, by virtue of SDCL 21-27-18.1, on the 30th day of September, 1991, which was limited to a procedural question; this question was: Did the circuit court err, in denying Wabasha's application for a writ of habeas corpus after court appointed counsel's motion to withdraw, without granting Wabasha a hearing? I maintain that Wabasha was denied...