Wilcox v. Leapley

• Decision Date: 24 June 1992
• Docket Number: No. 17603,17603
• Parties: Daniel WILCOX, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.
• Court: South Dakota Supreme Court

Page 654

488 N.W.2d 654

Daniel WILCOX, Petitioner and Appellant, v. Walter LEAPLEY, Warden of the South Dakota State Penitentiary, Appellee.

No. 17603.

Supreme Court of South Dakota.

Argued March 16, 1992.

Decided June 24, 1992.

Rita Haverly Allen of Hagen, Wilka, Schreier & Archer, P.C., Sioux Falls, for petitioner and appellant.

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

MILLER, Chief Justice.

This is an appeal from the circuit court's order quashing Daniel Wilcox' writ of habeas corpus petition. We remand for resentencing.

FACTS

Wilcox was convicted of second-degree murder, first-degree manslaughter, and child abuse arising out of the death of 2 1/2 year old Sheena Johnson. Sheena died from septic shock as a result of a ruptured duodenum, an organ which connects the stomach to the bowels. This court affirmed those convictions on direct appeal. See State v. Wilcox, 441 N.W.2d 209 (S.D.1989) (Wilcox I ).

Thereafter, Wilcox filed this habeas corpus action, claiming his right against double jeopardy was violated, and that he received ineffective assistance of counsel at trial and on direct appeal. During the hearing on Wilcox' writ of habeas corpus, he was allowed to orally amend his application to include violations of his Sixth and Fourteenth Amendment rights because the trial judge did not ascertain whether he waived his right to testify at his trial.

This is an appeal from the circuit court's order quashing the writ of habeas corpus.

DECISION

I.

WHETHER WILCOX WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSELS' FAILURE TO RAISE THE DOUBLE JEOPARDY ISSUE BEFORE THE SENTENCING COURT AND ON DIRECT APPEAL TO THIS COURT.

After Wilcox was convicted of second-degree murder (SDCL 22-16-9) and manslaughter in the first degree (SDCL 22-16-15(2)), the trial court sentenced him to concurrent terms of life imprisonment. Wilcox was additionally sentenced to ten years for the child abuse conviction. Wilcox argues that his concurrent life sentences for one homicide violated the double jeopardy clause.

Wilcox claims that his attorneys were ineffective because they failed to raise the double jeopardy issues before the sentencing court and on appeal to this court.

A. Double Jeopardy

"The United States Supreme Court has held that the constitutional prohibition against double jeopardy consists of three separate guarantees. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, [664-65] (1969). The third guarantee 'protects against multiple punishments for the same offense.' "

State v. Baker, 440 N.W.2d 284, 293 (S.D.1989) (quoting State v. Adams, 418 N.W.2d 618, 625 (S.D.1988)). See also Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

The United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), established the rule "for determining whether two separate statutory offenses providing separate punishment are actually the 'same offense.' " Adams, 418 N.W.2d at 625. " '[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied ... is whether each provision requires proof of an additional fact which the other does not.' " Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309).

The United States Supreme Court further explained the Blockburger test in Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980): " 'Thus we stated that if "each statute requires proof of an additional fact which the other does not," [citation omitted],' the offenses are not the same under the Blockburger test. [Citations omitted.] (emphasis in original)." Adams, 418 N.W.2d at 625 (quoting Vitale, 447 U.S. at 416, 100 S.Ct. at 2265, 65 L.Ed.2d at 235).

Recently, the United States Supreme Court stated:

[T]he Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended [citations omitted] ... The Blockburger test is simply a 'rule of statutory construction,' a guide to determine whether the legislature intended multiple punishments.

Grady, 495 U.S. at 516-17, 110 S.Ct. at 2091, 109 L.Ed.2d at 561.

Therefore, we must examine the statutes which Wilcox violated. SDCL 22-16-9 provides:

Homicide is murder in the second degree when perpetrated without any design to effect death by a person engaged in the commission of any felony other than as provided in Sec. 22-16-4.

SDCL 22-16-15(2) provides:

Homicide is manslaughter in the first degree when perpetrated:

....

(2) Without a design to effect death, and in a heat of passion, but in a cruel and unusual manner[.]

The same facts and actions committed by Wilcox were used to convict him of both statutory offenses. Under SDCL 22-16-9 Wilcox had to commit a felony which resulted in death. Wilcox committed felony child abuse. SDCL 26-10-1 provides: "Any person who abuses, exposes, tortures, torments or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony." SDCL 22-16-15(2) provides that homicide must have been committed in a cruel and unusual manner. In Wilcox I, we stated: "Wilcox's beating upon this little girl was cruel and barbaric. It caused her death." 441 N.W.2d at 213.

It is also interesting to note that SDCL 22-16-1 defines homicide in the disjunctive.

Homicide is the killing of one human being by another. It is either:

(1) Murder;

(2) Manslaughter;

(3) Excusable homicide;

(4) Justifiable homicide; or

(5) Vehicular homicide. (Emphasis added.)

We have stated:

"The rule seems to be well settled that, when a penal statute mentions several acts disjunctively, and prescribes that each shall constitute the same offense and is subject to the same punishment, an information may charge any and all such acts conjunctively as constituting a single offense." (Emphasis in original.)

Baker, 440 N.W.2d at 293 (quoting State v. Likness, 386 N.W.2d 42, 43 (S.D.1986)). Furthermore, there is no expressed legislative intent to punish a single death under both SDCL 22-16-9 (second-degree murder) and SDCL 22-16-15 (first-degree manslaughter).

In this case, Wilcox was convicted of both murder and manslaughter for the death of Sheena Johnson. At this time, we hold that double homicide convictions for a single death are improper. In the future, we urge prosecutors to charge defendants in cases such as this in alternative counts.

We conclude, however, that it is not necessary to reverse Wilcox' convictions. As we stated in Wilcox I, they were supported by law and fact. Rather, we must reverse Wilcox' sentence.

We remand to the trial court with the direction that it vacate the sentence on the lesser offense of first-degree manslaughter and enter judgment on the greater offense of second-degree murder. People v. Zeitler, 183 Mich.App. 68, 454 N.W.2d 192 (1990); Com. v. Jones, 382 Mass. 387, 416 N.E.2d 502 (1981); Com. v. Grasso, 10 Mass.App. 915, 411 N.E.2d 191 (1978); Kuklis v. Commonwealth, 361 Mass. 302, 280 N.E.2d 155 (1972); Commonwealth v. White (No. 2), 365 Mass. 307, 311 N.E.2d 547 (1974); People v. Carl Johnson, 99 Mich.App. 547, 297 N.W.2d 713 (1980); People v. Densmore, 87 Mich.App. 434, 274 N.W.2d 811 (1978).

B. Ineffective Counsel

Wilcox argues that he was denied his right to effective counsel because his attorneys did not raise the double jeopardy issue at the sentencing hearing or on direct appeal to this court, nor did they file a petition for rehearing.

"[T]o succeed on an ineffective assistance of counsel claim, the defendant must show two requirements.

'First, ... that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, ... that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' "

Miller v. Leapley, 472 N.W.2d 517, 518 (S.D.1991) (quoting Luna v. Solem, 411 N.W.2d 656, 658 (S.D.1987)) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

We have also stated that:

"Because of the difficulty 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.' "

Miller, 472 N.W.2d at 518 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95).

We have concluded that Wilcox should be resentenced; however, we are not convinced that he was denied effective assistance of counsel. During the hearing on the writ of habeas corpus, one of Wilcox' trial attorneys testified as follows:

Q: [By Ms. Haverly (habeas counsel) ] Okay. And that was not raised--the double jeopardy issue was not raised either with regard to the felony, murder or underlying felony or with manslaughter and the murder two?

A: [By Mr. Larson] Right. It wasn't--it was overlooked as an issue at the time of sentencing. It was considered and rejected, I believe at the time of the appeal.

Q: Do you recall why you rejected it at the time of appeal?

A: I do. The feeling was at that time was the best that was going to happen is Dan was going to come out with one life sentence instead of two. And we didn't want to let the Supreme Court, when we thought there was a legitimate--some legitimate matters to consider a retrial on the entire matter, to feel that they were, I don't know, giving us a half a loaf by saying, you know, okay, he's only got one life sentence, because that wouldn't really accomplish much for Dan.

Q: Unless maybe cut by the board or...