Aliberti v. Solem
428 N.W.2d 638
S.D.
1988
Check Treatment

*1 ALIBERTI, Petitioner Steven V. Appellant, SOLEM, acting

Herman duly-appointed Warden of the Penitentiary, Re- Dakota State Appellee.

spondent and

No. 16017. Dakota.

Supreme Court of South May on Briefs 1988.

Considered Aug.

Decided peti- McGregor, Rapid City, D. for

Scott appellant. tioner and Ledbetter, Gen., Atty. Clair B. Asst. Pierre, respondent appellee; Roger Gen., Pierre, Tellinghuisen, Atty. A. brief.

639 WUEST, corpus appeal, petitioner On this Chief Justice. habeas claims he was denied effective assistance Aliberti, Petitioner, appeals the V. Steven Specifically, petitioner of counsel. con- denying corpus court’s order habeas trial attorney tends his should that not have relief. We affirm. right him advised to waive his to trial 15, 1985, petitioner was On November jury. Petitioner also claims that his intoxi- pursuant aggravated assault convicted of prevented cation and the blow to his head 22-18-1.1(3). subsequent- He was to SDCL him forming specific from the intent re- years imprison- sentenced to serve ten ly quired aggravated for the crime of assault. conditionally sus- years ment with three Although petition- defense counsel based petitioner’s convic- pended. We affirmed theory er’s defense on this of “diminished Aliberti, v. State appeal tion on direct capacity,” petitioner asserts that the dimin- (S.D.1987). 729 401 N.W.2d ished inadequately defense was aggravated for as- Petitioner’s conviction prepared presented. and quarrel involving peti- stems from a sault Adjudicating petitioner’s claims of inef- family members. tioner and several requires fective assistance of counsel that petitioner commenced when altercation we first address the of standard review for day chopping of wood came home after disposition petition cor- habeas incident, drinking. During peti- and pus expressly relief. This court has never who, his sister physically tioner attacked set forth the standard which we review self-defense, him acting in struck ruling corpus a lower court’s in a habeas length pipe. of Petitioner then head with a proceeding.1 building threatened to burn down explicitly we have not delineat family which the lived. Petitioner’s sister ed the standard of review for of police petitioner after cut summoned arising fact and conclusions of law out of power lights building. off the and corpus proceedings, habeas mindful Upon police, petitioner the arrival scope that we have set forth our of fact away An started to walk from the scene. regarding proceedings. of such review petitioner officer followed him and told This court has often stated that habeas that he wanted to talk with him. Petitioner corpus proceedings, scope of review is swung around and struck the officer remedy sought limited because the Aliberti, head with his fist. upon collateral attack a final nature of a Solem, 422 Satter v. judgment. N.W.2d Petitioner was advised his constitu- Solem, of v. 425, (S.D.1988); Everitt 412 427 right arraign- by jury tional to trial at his (S.D.1987); Podoll v. 119, 120-21 N.W.2d (S.D.1987); ment. Prior to the start of the scheduled Solem, 759, 760 408 N.W.2d trial, however, Solem, petitioner 141, waived 142 406 N.W.2d Goodroad by jury requested to trial Loop v. (S.D.1987); that the 398 N.W.2d (S.D.1986); Application case tried 140, be to the court. This court held 143 of 210, jury Williams, 208, “waived his 193 N.W.2d 86 S.D. Kiser, Application (1972); voluntarily, knowingly, intelligently, 83 794 of (1968); knowledge and with full of the relevant S.D. Erickson, ex rel Burns consequences.” S.D. State likely circumstances Aliberti, (1964); 639, 645, 129 N.W.2d 401 N.W.2d at 731. agen- recently we ascertain whether the administrative 1. We note that this court addressed the cy clearly erroneous. Matter S.D. Wa- standard of review for administrative of Bd., Mgmt. conclusions of law. ter 351 N.W.2d 119 Miller, State, Rights Human Div. law, question ... When the issue is a of of N.W.2d agency decisions of the and the administrative Div., Labor, Dept. Unemp. Ins. Permann v. fully circuit court are reviewable. Matter (S.D.1987) (citing S.D. Tieszen, N.W.2d Change Category Bed N.W. Wildlife Bd., Mgt. Federation v. Water 2d 97 v. South Nash Finch Co. J., (Wuest, Rev., (S.D.1986) dissenting); Johnson v. Dept. Dakota Co., (S.D.1984)). fact, 1981). Skelly Oil When the issue is a Jameson, claims based on ineffective assistance 51 S.D. Anderson ex rel re- has counsel. Whether defendant N.W. “[H]abeas (1) only review of counsel is used ceived assistance ineffective corpus can *3 jurisdiction essentially of the mixed of law and court had whether defendant; (2) person clearly In the of a erroneous fact. absence crime and by court, was authorized must sentence determination the circuit whether cases, an (3) whether law; findings primary in certain defer to its on such facts deprived has been regarding defendant or did incarcerated what defense counsel did Satter, rights.” 422 preparation of basic not do for trial and 427; Goodroad, at presentation N.W.2d at This of the defense at trial. Burns, 645, at ex rel 144; 80 S.D. court, however, may its substitute at 715. judgment for that of the circuit court to whether defense counsel’s actions or inac- determining the standard of review tions constituted ineffective assistance we look to corpus proceedings, for habeas counsel. guidance. Federal courts for the federal to review a asked that have been courts It is well settled that for a defend factual find- district court’s state or federal prevail ant on a claim of ineffective corpus proceeding afford ings in a habeas satisfy assistance of he must to the lower court’s deference considerable Strickland v. two-prong test set forth basic, primary facts. Such findings on 668, 2052, Washington, 466 U.S. 104 S.Ct. set aside unless findings of fact will not be denied, 467 (1984), reh’g 80 L.Ed.2d 674 Black- clearly erroneous. See they 1267, 3562, U.S. 104 S.Ct. 82 L.Ed.2d 864 1177, (6th Foltz, 1181 burn v. 828 F.2d Solem, 427 also v. See N.W. Waff Rafferty, 826 F.2d v. Cir.1987); Carter Solem, Conaty 422 2d 118 (3rd Cir.1987); Butcher v. Mar- 1299, 1304 Luna v. 102 Cir.1985); 373, (9th quez, F.2d 376 758 The defendant 322, (6th Bergen, 749 F.2d 327 Meeks v. of the Strickland requirements meets the Auerbach, Cir.1984); 745 United States perform by proving attorney’s that his test Cir.1984); Hayes (8th 1161 F.2d that, result, incompetent and as a ance was (5th Cir.1983). Maggio, 699 F.2d 201 prejudiced. Kimmel the defendant was Morrison, 365, 381, of man v. findings 106 court’s the lower 2574, 2583, (1986); correct, pre- 91 L.Ed.2d presumed to S.Ct. fact are Strickland, 688, 694, 466 U.S. at sumption of correctness does not extend 693-94, 697; at application at 80 L.Ed.2d the conclusions drawn from the findings. Waff, 427 N.W.2d at See also Cona 121. legal principles to those factual Luna, supra. ty, supra; legal principles Applying questions of fact. creates mixed law and respect performance compo With questions review mixed Federal courts will test, the defendant nent of the novo, giving and fact de deference of law must show more than that the trial strate reserving to factual but or that gy of the defense counsel backfired weight give legal to the facts. different attorney prepared and another would have 1181; Carter, Blackburn, 828 F.2d at See manner. The tried the case a different Kemp, 1304; Martin v. 826 F.2d at strong pre defendant must overcome the (11th Cir.1985); Butcher, F.2d competent. sumption that counsel was Maggio, Armstead 758 F.2d at Kimmelman, 381, 106 477 U.S. at S.Ct. (5th Cir.1983); Adams v. F.2d 323; Strickland, Cir.1983). (6th Jago, 703 F.2d 2065-66, 688-89, U.S. at Waff, L.Ed.2d at persuaded this same We are that inherent applied Because of the difficulties standard of review the federal [evaluating conduct from apply in this court’s counsel’s courts should also time], must ruling, perspective at the a court court’s review a circuit habeas coun- indulge strong presumption that particularly ruling when that involves range ing, stated falls the wide defense counsel his reasons for conduct within assistance; discussing professional with reasonable waiving jury is, must overcome the the defendant that, the circumstanc- under presumption through pros ... went and cons [W]e “might es, challenged be con- trial; action opposed trial as to a court strategy.” it, sound trial thinking sidered and as I recall I’d been about recommending possible waiver S.Ct. at U.S. at days, suppose trial for a matter of I omitted). (citation L.Ed.2d probably problem a week. The in this per reviewing counsel’s When whole deal was that Steve’s mother and formance, compe not make a this court will *4 going his to up sister were show to testi- of hind on the basis tency determination against fy appeared him it to me.... for a sight. tempting is all too defend “It all, But of Steve’s mother was a—first second-guess assistance af counsel’s ant to she to recover- identified herself me as a sentence, it is or adverse and ter conviction ing was frail alcoholic. She a rather examining court, easy for a coun all too type woman. was also of wom- She proved unsuccess sel’s defense after it has an who I felt would be to without able ful, particular act or conclude that a to making in- conscientious effort to do so counsel unreasonable.” omission of was part of sympathy voke for herself on the (quoting, at 103 Conaty, N.W.2d potential part jurors potentially on the — Strickland, 689, 104 at 466 U.S. at S.Ct. backlash, jurors; of and I could see a 694). at of 80 L.Ed.2d function possibility against Steve of backlash the role of a is not assume this court many putting for in his mother so words morning quarterback. We will not Monday that; through something like and it oc- of “second-guess the tactical decisions trial that I curred to me could—there our nor will we substitute even backlash judgment for that of trial theoretical sentencing judge. part at attorney.” Conaty, 422 N.W.2d Hearing Tr. at 29-30. 405 N.W.2d Woods de It clear that defense counsel is Dornbusch, 1987); N.W.2d State tactically peti it cided would be better Instead, (S.D.1986). this 686-87 court right jury trial. his tioner waive deciding an ineffectiveness counsel reject accept free to or de Petitioner was evaluate reasonableness of claim will He chose to waive fense counsel’s advice. representation “from counsel’s counsel’s by jury and did so volun his to trial alleged perspective at the error time of knowledge the rele tarily full and with light Waff, of all circumstances.” likely conse vant circumstances Kimmelman, 121 (quoting at 427 N.W.2d Therefore, this argument his on quences. 2586, 91 at at L.Ed. 477 U.S. S.Ct. rejected. is point Luna, 658 (quot 2d at at N.W.2d Kimmelman, supra). The ultimate ing trial, evi petitioner presented At was ineffec test of whether trial counsel capacity to commit diminished dence whether under the entire record tive is charged. he was the crime with which circumstances, per totality of the counsel’s generally defense of diminished range of normal formance was within the SDCL recognized in South Dakota. See Kimmelman, 477 U.S. at competency. See Huber, 22-5-5; State 2587, 2589, at 91 L.Ed.2d at Primeaux, N.W.2d State 689-90, 323; at 466 U.S. Small, 269 v. Kills 2065-66, 80 L.Ed.2d at S.Ct. at Waff support In N.W.2d 771 at defense, testimo upon relied general Yackley, a ny of James V. principles, Dr. light foregoing City, Dakota. Rapid practitioner in not defense counsel was deficient find that assistance ineffective Petitioner claims advising petitioner his to waive did not lawyer trial corpus counsel because At hear- by jury. the habeas 381, 387, man, psychological 477 U.S. at 106 S.Ct. at for a any motions present 323, 327; 91 L.Ed.2d at Strick the trial. The factual prior to evaluation land, 689-90, court, however, 466 U.S. at the circuit findings of 698; Waff, 427 N.W.2d at state: at 103. It is not Conaty, N.W.2d produced psychological trier case. There is no evidence [*] any useful [*] examination [*] VI. X. Applicant/Petitioner’s information for the [*] suggest would have [*] that a [*] reasonable L.Ed.2d land, effect on the outcome counsel’s sufficient for the defendant ally Conaty, appropriate test is whether “there is a unreasonable, performance, probability 696). To determine had 103-04 104 S.Ct. at that, even some (citing but for coun if to show that proceeding. conceivable profession prejudice, Strick conduct, unprofessional the result of challenge does not Mr. Aliberti That proceeding would have been different. conduct the actu- counsel’s any of trial probability probability A is a reasonable *5 other than of this case al trial to undermine confidence the sufficient defense of diminished presentation of a outcome.” capacity. Waff, 121; Conaty, 422 N.W.2d at XI. Woods, 104; Luna, general medical called a That Mr. Dean prob N.W.2d at 61. We see no reasonable in this matter to at the trial practitioner have been ability that the outcome would head testify Applicant/Petitioner’s about different. of mind at the time injury and his state AFFIRMED. JUDGMENT of the offense. MILLER, JJ., MORGAN concur. XII. HENDERSON, J., concurs in result. expert Applicant/Petitioner's That SABERS, J., dissents. witness, Bettmann, practicing a Frank HENDERSON, (concurring Justice in re- Dakota, Rapid City, attorney in sult). diminished that the defense of testified scope As I believe that the and standard prove to capacity extremely difficult to only of review is not difficult to understand of fact. a trier discourse, hazy but I concur in result. not these We do believe agree Certainly, clearly I with the errone may sub- clearly erroneous. we However, ous rule on of fact. judgment for that of the circuit stitute our opinion, law, regards conclusions of or coun- determining whether defense court questions law, groping mixed finds me ineffective, see representation was sel’s type If, certainty. for some of theoretical has to do so here. Petitioner no reason effect, adopting we are the Permann counsel's to show us that defense

failed (Permann rule Department Labor, therefore, and, conduct was unreasonable Unemp. Div., Ins. 411 N.W.2d 113 required proof. burden of has not met the (S.D.1987),we should so state. tactics Assuming defense counsel’s SABERS, (dissenting). Justice deficient, they can we do not believe were I dissent. prejudicial under the second be considered only that he had one preju Aliberti testified test. The prong of the Strickland possi- with his counsel about re discussion component of the test dice waiving jury a trial and that bility of his affirmatively prove quires the defendant to morning on the of trial. discussion occurred prejudiced of coun that he was as a result he first counsel testified that Aliberti’s trial incompetent performance. Kimmel- of the factual de waiving the Aliberti’s case because discussed capacity chosen Ali- trial. The of diminished day before the fense trial on the jury goal in a not until the dimin attorney was informed berti’s trial counsel. state’s The trial court was defense is to raise sufficient trial. ished before afternoon morning jury sched- as fact finder Aliberti’s the mind doubt advised Aliberti, trial, upon recom- prosecution’s proof of intent. jury when as to See uled Bittner, waived of his mendation Small, 269 jury State v. Kills right to knowingly, that Aliberti The State claims voluntarily gained by giving up waived his

intelligently, and What was Nothing! it be said jury jury trial. How can trial in this case? Ab- right to far, knowing, intelligent, and solutely nothing! It have been there was a would Aliber- voluntary any this when minor con- waiver of far wiser to obtain almost half provided bargain. him with indi- only plea cession in a record ti’s counsel necessary to such a make Aliberti’s trial counsel scared information cates that by his away was never advised from a trial. This was Aliberti Aliberti waiver? pros picture presence on attorney on the full done the basis that —the waiving sister testimony of Aliberti’s mother and cons product of loss of unduly His harm him before but right. consent would certainly was judge. pure counsel. It This is fiction and hope, created not before a foolish, stupid. intelligent. prejudice It was even Aliberti’s constitutes sufficient not (even recommending of ineffective assistance By encouraging, case a claim right to a coercing) to waive his Aliberti counsel. *6 ineffective. counsel’s assistance was

jury, addition, testimony expert there was Washington, 466 U.S. failed to con- trial counsel that Aliberti’s 2052, 80 L.Ed.2d 674 to the representation of Aliberti form his diligence meet failed to of skill customary trial counsel standards Aliberti’s meaningful lawyer reasonably competent defense consult responsibility important City de his recommenda- Rapid on this practicing with Aliberti manner reading by jury. supra. A fair that he waive tion Aliberti cision. repre going expert that counsel’s stated: there record reveals of this “[I]f case, ... respect any State’s with doubt sentation creating or establish- so ineffective and that doubt trial waiver was chances of body usurpa greater it with ing evidences manifest that doubt casual rights. people.” of Aliberti’s twelve tion Anderson, 387 for a new and remand I would reverse Phipps, N.W.2d 128 State v. begins prejudice by Aliberti suffered case to the court alone the trial of his with composed of twelve of than to a

rather peers. Factual determinations

Aliberti’s single rather than mind left

were damaging extremely This was

twelve.