Anderson v. State
373 N.W.2d 438
S.D.
1985
Check Treatment

*1 438 640, 648, present good-faith honest their page efforts Eddy, 41 S.D.

Austin v. etc., 517; Branch, independent judiciary An 172 N.W. clients’ cases. Southwest Co., Telephone independent v. bar vigorous, Dakota Central and are both 121, 220 N.W. 475. indispensable system jus- S.D. parts of our tice. Minnehaha v. Court Circuit 158, 509, 152, 235 N.W. 58 S.D. County, McConnell, 230, 236, re U.S. In (1931). 1288, 1292, 434, 8 L.Ed.2d S.Ct. 438-39 (1962). grand power A to remove a court the wit-

jury attorney order witness’ erred, my opinion, the trial court but when it finds ness obtain new counsel granted. not be certiorari should nec- replacement is that such removal and the activities of the essary ensure that unduly delayed or im-

grand jury are not

peded. SDCL 23A-5-14. was orch- trial court Ellison believed petitioner’s re-

estrating the fast to secure jail, thereby avoid the

lease from testify. order that she

court’s “in the judge may A interest ANDERSON, Applicant Donald L. justice” counsel for anoth substitute one Appellant, Supp., 11-2603. er. D.C.Code § v. physical incapaci incompetence or Gross Dakota, STATE of South counsel, ty contumacious conduct or Respondent Appellee. a citation for that cannot cured may justify the removal contempt court’s No. 14613. attorney, of an even over the defendant’s Dakota. Court South See, e.g. objection. United States 1214, Dinitz, Cir. [538 7, on Briefs Jan. 1985. Considered 1976).] Aug. Decided States, 387 A.2d Harling (D.C.1978); Slappy, see also Morris 75 L.Ed.2d S.Ct. (1983); A.L.R.4th 1218 attorney been

Once an chosen accused,

trial court or the and an attor-

ney/client relationship has estab- been

lished, may arbitrarily re- the court attorney objections over the

move Eng- his counsel.

both the defendant and State, Md.App. 259 A.2d 822

lish v. 526 P.2d McKinnon v. (Alaska 1974); Superior Smith 68 Cal.2d Angeles County,

Los (en banc).

Cal.Rptr. 440 P.2d 65 appreciate necessity

While him-

judge power protect to have the

self from actual in the court- obstruction

room, or even conduct so near from actually justice, to obstruct fair

it is also essential to a administration lawyers to make justice be able

cause and Anderson served filed his We affirm. jury forgery A convicted Anderson cashing estranged to his a check issued wife, Anderson, by endorsing the Jean After check her name. Anderson was *3 sentenced, the trial he informed court request- and appeal he would the conviction attorney that a Falls with whom ed Sioux potential had appeal discussed the appointed appellate counsel. The trial granted request. days Sixteen court judgment after the of conviction en- tered, appellate mailed a counsel notice of Attorney appeal to the Dakota Gen- South County Depu- and to the Lake eral’s Office Attorney thereby and ty State’s fulfilled requirements filing two of the three set out Appellate in SDCL 23A-32-16. counsel failed, however, perfect the appeal timely appeal filing the notice of with the Appellate appar- counsel clerk of courts. ently appeal, along mailed the notice of transcript, to with his for a the trial order reporter assump- under the judge’s court reporter tion that would file the appeal notice of the clerk of courts. file the reporter The court did not notice of appeal apparently discarded both doc- and preparation of the tran- uments after trial script. August more than two

On appeal elapsed, ap- months after time for Hanson, Stiles, An- W. Swank of Robert that the pellate counsel discovered Swank, Mitchell, applicant derson & appeal not been filed with Clerk of had appellant. and August 26, Court. On Ledbetter, Gen., Atty. Asst. B. Clair appellate served a second notice of counsel Pierre, respondent appellee; and Mark appeal attorney on and the at- the state’s Gen., Pierre, Atty. Meierhenry, V. on brief. torney general’s requested office and this permit him to file a late notice of court MORGAN, statutory limit appeal. Because the time Justice. jurisdiction- out in 23A-32-15 is set SDCL (Ander- L. Appellant Donald Anderson al, the request was denied Anderson’s forgery son) under SDCL was convicted appeal was dismissed. attorney perfect a His failed to 22-39-36. corpus In his for habeas applied application Anderson then for a be- timely appeal. low, contended that dismissal of corpus peremptory and a Anderson writ of habeas appeal review of numerous hearing on the foreclosed issued. After writ was trial. matter, quashed procedural defects He raises trial court the writ appeal two this from the trial corpus dismissed an amended issues on habeas the writ of quashing court’s order habeas application corpus. for writ of habeas (1) corpus: he was denied his con- probable whether issued a certificate of court Hinkle, process through to due supra. stitutional reviewing adequacy ap- counsel ineffective assistance of when of representation, effectiveness we pellate perfect counsel failed to must determine whether counsel exercised conviction, (2) whether he was customary diligence skills and that a pro- denied his constitutional of due reasonably competent attorney would exer through cess ineffective assistance of trial cise under similar circumstances. High pres- counsel trial. Anderson Because Elk (S.D. 344 N.W.2d ently represented by being the third 1984). counsel, court-appointed series of will willWe first review issue ineffec- following refer various in the to his tive appellate assistance of counsel. Coun- represented manner. The counsel who him sel cites us to holding our in Grooms v. at the criminal trial bewill referred to as State, (S.D.1982), 320 counsel”; represent- “trial the counsel who propositions that: defense counsel’s fail- ed him the re- aborted will be ure deprivation was a *4 “appellate counsel”; ferred to as and the of his client’s right constitutional to effec- represented counsel who him in the habeas counsel; (2) tive assistance of and such corpus proceedings represents him on deprivation warranted a for new trial de- merely this will be referred to as upon application post-con- fendant for “counsel.” relief. viction important There are three rules Anderson contends that failure to on right the assistance of coun effective perfect amounts per to se inef First, repre sel. a Anderson had to fective assistance of counsel and warrants prose sentation counsel in the criminal reversal of the conviction and remand for a against cution him. United States Consti disagree. new trial. We tution, VI; Amendment Con South Dakota every Not instance of ineffective as- stitution, VI, Second, Article Section requires sistance the a reversal of convic- representation guaranteed every is at crit however, tion, a must defendant dem- stage proceeding, ical of a criminal includ prejudice that onstrate suffered ing appeal. California, Anders v. U.S. 386 representa- as a result of the ineffective 18 L.Ed.2d 493 (citations omitted) Moreover, tion. the (cited State, in 290 Hinkle v. N.W.2d 28 prejudice must be material warrant to (Iowa 1980)); Moore, State v. 203 Neb. by way relief of reversal. (1979). Third, 277 554 N.W.2d the constitu tionally guaranteed representation must be Elk, 501; High 344 N.W.2d at Miller v. adequate effective; perfuncto mere a (S.D.1983). 338 N.W.2d 673 ry representation and casual does not satis per prejudice rule of se would be “[A] fy guarantee. Pieschke, the contrary teachings to the of United States (S.D.1978). Morrison, 361, 364-65, 101 S.Ct. 665,668, (1981), L.Ed.2d that the corollary guarantee

“A vital this remedy for a violation defendant’s requirement is the assistance effective adequate assistance of counsel should be is, counsel, reasonably likely counsel to the tailored harm caused that viola rendering reasonably render and effec Strickland, (em tion.” 693 F.2d given totality tive the the assistance phasis original). in Washington circumstances.” v. Strick land, (5th Cir.1982) Additionally, per prejudice 693 F.2d rule of se (emphasis original), especially in on this in inappropriate issue is in the case of affd — U.S. -, Washington, Strickland v. ineffective assistance state because responsible S.Ct. L.Ed.2d is not violation of the applied same petitioner’s rights. standards that are Since the rule would competence apply any counsel’s should in mea not serve to from deter state action, suring appellate competence. counsel’s unconstitutional course of tation, that he failed Anderson must show would be to bestow of the rule effect sole duty prej- upon criminal de- an essential perform windfall an undeserved by the not harmed were therefrom. Thomas fendants who udice resulted attorneys. Cir.1984); (8th of their Lockhart, errors 738 F.2d Peeler, F.2d 246 States “Finally, proposed at 1260. 693 F.2d Cir.1984). must work prejudice shown the writ function of distort the rule would exists to actual and substantial The writ to the defendant’s corpus.... of habeas in ... unfairness entire trial disadvantage fundamental and infect redress Id. proceedings.” criminal dimensions. error of constitutional Miller, has the burden supra. Anderson misstated our deci- grossly Counsel demonstrate that proof and must Grooms, The remand for supra. in sion predicated rights have been violated. constitutional new trial Grooms counsel to Jury Subpoena, failure of solely upon the Re Grand Rather, predicated it was first (8th Cir.1984). jury propose failure on trial counsel’s con The United States necessity for corrobora- instruction ineffective assistance the issue of sidered testimony. The decision accomplice tion of — at -, Strickland, instruction importance of the points out the L.Ed.2d at 104 S.Ct. at testimony damning negate in order prejudice: appropriate test for set out the Noting post-con- that on accomplice. anof there show that defendant [must] [T]he precluded proceedings we were viction that, probability but reasonable jury alleged instruction reviewing from *5 errors, the re- unprofessional counsel’s “[Tjrial failure errors, counsel’s we stated: have been proceeding would sult of jury instruction precautionary request probability is a A reasonable different. reliability accomplicetesti- regarding to undermine confi- probability sufficient timely appeal from mony his failure to dence the outcome. of his are evidence appellant’s conviction appel- interests of protect failure “If it further stated: The Strickland add- (emphasis at 152 320 N.W.2d lant.” ineffectiveness dispose of an is easier light “In ed). concluded: We further ground of lack of sufficient claim on the us, find that before we the circumstances so, expect will often prejudice, which adequate and effec- appellant was denied — U.S. should be followed.” that course and we reverse of counsel tive assistance 2070, at -, 80 L.Ed.2d at 104 S.Ct. at for a new trial.” Id. and remand corpus court in the habeas The trial demonstrate, attempted to Anderson concluded as a matter proceedings below first, trial counsel failed that because that: law identification, suppress the a motion to file attorney Defendant’s second Failure of improperly admitted identifi- trial court time is not bring properly testimony by supermarket check- cation entitle the sufficient to in and of itself forged accepted the check. clerk who out Judgment of question the Defendant to complains that the identification Anderson The De- attack. collateral Conviction photo lineup improper based on an was prejudicial er- fendant must demonstrate photographs, includ- of six which consisted in this proceedings, which at trial ror two of men the ing of Anderson and two done. case has not been tri- acquaintances. recognized as clerk conclusion. agree We with cor- presided over the habeas judge al who that, a matter of pus hearing concluded as aspect, the second then examine We law, lawful and suffi- the identification was so ineffective trial counsel was whether showing that a no cient and that there was his constitutional deprive Anderson of grant- would have been suppression motion In order to show process. of due ed the trial court. represen- trial counsel’s ineffectiveness of Thunder, v. 272 not State Iron constitute ineffective assistance of (S.D.1978), N.W.2d out we set a two- counsel when the State establishes that the prong (1) photographic lineups: test for in-court origin identification had an inde- suggestive, Was the lineup impermissibly pendent of lineup. defective See also .the so, subsequent if was the in-court Newman, (Iowa State v. 326 N.W.2d 788 Eighth identification tainted? The Circuit 1982); Coles, People 523, v. 417 Mich. Appeals Court of in United v. States (1983); N.W.2d People McCuaig, v. Mef (8th Cir.1981), ford, 658 cert. de 754, Mich.App. (1983); 338 N.W.2d 4 Peo- 1003, 1636, nied 455 U.S. 102 S.Ct. 71 ple Hunt, 120 Mich.App. (1982), adopted L.Ed.2d 870 the same test (1982); Turner, N.W.2d 547 People v. developed as was in Manson v. Brath Mich.App. 247, (1982); 320 N.W.2d 57 Peo- waite, Johnson, ple Mich.App. (1977). requisite L.Ed.2d 140 The first de (1982); N.W.2d 645 People Coyle, impermissibly termination is whether an Mich.App. (1981); 305 N.W.2d 275 suggestive procedure was used to obtain Hunt, State v. 212 Neb. 322 N.W.2d Mefford, supra; the identification. Man Hunt, State v. 212 Neb. son, supra. While judge the trial who 322 N.W.2d 621 question, heard the writ did not rule on this Second, Anderson contends that key he did inquiry, rule on the second trial counsel failed to raise request several prong. gave He found the clerk ed objections to jurisdic the trial court’s description accurate of Anderson and the tion. This contention is based on his asser details of her transaction him before tion that he was not aware that his name photo lineup she viewed that the had been deleted from the South Dakota identification was therefore reliable. See Housing Authority program that issued the Manson, Thunder, supra; supra; Iron passed.* check argument This is ludi Dace, (S.D.1983). crous. forged signa Anderson his wife’s judge correctly circuit determined that ture on the check because he was not listed the check-out clerk’s in-court identification as payee on that If instrument. his name reliable, Mefford, Manson, supra; su had been on the check he would have independent Dace, pra, origin. See *6 forged her endorsement. He should have supra. hearing preliminary The and trial at questioned right pro least to the transcripts support this conclusion. The judge presided ceeds. The trial who over “totality may of the circumstances” be con correctly the hearing on the writ concluded determining reliability sidered in the of the argument that this is merit. without though identification even the identification procedure suggestive. Neil v. Big was Third, complains Anderson 375, 34 gers, 409 U.S. L.Ed.2d S.Ct. the denial of his trial counsel’s motion to Anderson, United States v. 618 suppress testimony pre his ex-wife’s at the (8th Cir.1980); Reiman, F.2d 487 liminary hearing grounds and trial on that (S.D.1979). hold We protected by interspousal it was the com instance, although in this photo the identifi privilege. properly munication This not ideal, cation is not the in-court identifica assistance, an issue of ineffective inasmuch origin tion was and had sound reliable a suppression. as trial did move for independent photo lineup. the writ, hearing judge At the on this the testimony the concluded that ex-wife’s This court held in Mullins properly agree. admitted. We (S.D.1980), 287 N.W.2d 101 that failure to brief, suppression reply move for of an identification Anderson cites us to hearing States, on preliminary Rodriquez based which con object (1969), to lineup, stituted a one-man or to S.Ct. 23 L.Ed.2d 340 identification, proposition required foundation for in-court does that he should not be * theory extensively Defense at counsel covered this trial. ap- nonindigents do have. of success on cross over that not

to likelihood demonstrate peal. disagree interpretation procedure Rodriquez, supra, with his in We The 2255 § examining of that decision. The Court was purpose remanding was for the for rule, Ninth Circuit timely what it termed the sentencing so that a new applicants, under required which would-be In the then be filed. could § applying to who were U.S.C. § procedure, the Court did not examine the under 28 proceed pauperis in error, except to allegations of determine forma some likelihood of U.S.C. to show § procedure, good faith. In our Revisors’ application. in their success alleged errors below rules on proce- in 2255 as notes USCA describe § review in the same manner that we them application. Revisors’ notes in dure in they regular if were before us on a would procedure as a in describe USCA § appeal. nobis, error of a coram nature writ conclude that this case is dis We remedy cor- providing expeditious Grooms, tinguishable supra, from recting sentences without resort erroneous Rodriquez, supra, and affirm the dismis disapproved corpus. The Court habeas sal. First, it reasons. would of the rule two deprive indigents proceeding in forma prepare their own who had to

pauperis, FOSHEIM, C.J., WOLLMAN, J., appeal, petition, only of their chance of concur. they unable make out since would be HENDERSON, J., TAPKEN, Circuit to be summary points even a statement Judge, dissent. Second, permit the Dis- it raised. would ap- trict to screen out unmeritorious Court TAPKEN, Judge, sitting for Circuit procedure indigents, unfair to as peals by a WUEST, Judge, acting a Su- Circuit opposed nonindigents who would have Justice, preme disqualified. petitions professionally prepared requirements. presumably would meet TAPKEN, Judge (dissenting). Circuit opinion to lie crux seems respectfully holding I dissent from process indigent issue of due as between majority opinion. applicants pro-se applications and non- with representa- legal effective pre- applicants professionally indigent guaranteed every stage critical tion is pared following find applications. We including proceeding, a criminal language Rodriquez decision: California, Anders v. whose has been “Those Appel- 18 L.Ed.2d 493 S.Ct. exactly treated like frustrated should be his conviction of for- lant desired any appellants; they other should court-appointed appellate gery and his just given hurdle to clear an additional *7 counsel was aware of that decision. Coun- rights their were violated at some because appeal file the of sel failed to notice in stage proceedings.” earlier the 395 U.S. required clerk of courts as SDCL the 1717, at at 23 L.Ed.2d at 344. 89 S.Ct. 23A-32-16, rather he it to but stated sent view, lies In the hurdle referred to in our file reporter with instructions to petition pauperis the under in forma him. the notice for broadly Anderson To read it as as 1915. § runs to the later decision suggests contra State, 149,152 In N.W.2d Grooms v. 320 earlier, pointed v. Morri- out United States (S.D.1982),we stated: son, supra. Many and state courts have held federal timely of to file a that the failure indigent In view the fact that appeal when instructed one’s prep notice of applicants have appointed counsel deprivation a below, client do so constitutes their under our to pleadings aration of right to ef- re of the client’s constitutional present-day rules constitutional (Citations quirements, they any hurdle fective assistance of counsel. not have to do

445 omitted.) appeal Failure within the when requested by his client to do so. This prescribed time cannot be as is contrary States, viewed a to Rodriquez v. United strategic part move the of the on attor- 89 S.Ct. 23 L.Ed.2d 340 (Citation omitted.) ney. (1969), wherein the Court held that appeal federal statute made has the 781,785 (S.D. In Jones v. 353 N.W.2d from a judgment of conviction a criminal 1984), Grooms, supra, cited as authori case a right and nothing more than sim a ty proposition that of coun failure ple deprivation of statutory right that appeal strong sel to evidence of failure appeal be need shown before relief should protect the of a interests defendant. In granted. be In Rodriquez, the ex bar, appellate the case at counsel should plicitly rejected requirement imposed by personally ap have insured the United of Appeals, States Court Ninth peal properly filed. I hold was would Circuit, appellant that must show some to do failure so constitutes ineffective as likelihood of success on before relief sistance counsel. would granted be to properly failure file majority opinion appellant indicates The Rodriquez decision only must not show ineffective assistance been consistently interpreted to mean counsel, but, additionally, that he has prejudice or likelihood of success on prejudice agree suffered as a result. I this merits not need shown establish inef is the appellant correct “two-fold” test fective assistance of counsel for failure to proving. the burden of Strickland v. timely appeal. Hollis v. United — U.S. -, Washington, 104 S.Ct. States, (8th Cir.1982); 687 F.2d 257 Bar (1984); Jones, supra. 80 L.Ed.2d 674 I (5th States, rientos v. United 668 F.2d 838 disagree, however, application with the Cir.1982); Perez v. Wainwright, F.2d present preju the facts of the case (5th 1981); Cir. Cleaver v. Borden part dice of that “two-fold” test. kircher, (6th Cir.1980); F.2d analysis majority would re- (9th States, Brown v. United 623 F.2d 54 quire appellant show prejudice the Cir.1980); McCarthy, Miller v. F.2d through trial level the writ of habeas cor- (9th Cir.1979); v. Cantrell State of pus, Grooms, citing supra, authority. as Ala., (5th Cir.1977); 546 F.2d Riser case, however, In present appellant suf- Craven, (9th Cir.1974); 501 F.2d 381 Unit prejudice simple fered from the fact was LaVallee, ed rel. States ex Williams the statutory right appellate denied to an (2d Cir.1973), denied, F.2d 1006 cert. Jones, supra, In review. counsel’s trial L.Ed.2d were strongly incompe- tactics indicative of rel. United States ex Randazzo Further, tency. counsel talked his client Follette, (2d Cir.1971); 444 F.2d 625 Nance appealing out of case her because con- States, Cir. Jones, cern reputation. for his 353 1970); Maine, v. State 421 F.2d Wilbur N.W.2d at we stated as follows: (1st Cir.1970). Contrary analy to the result, preju- As a Jones suffered actual Rodriquez sis of majority opinion, trial; furthermore, dice at was Jones the above decisions have limited prejudiced when no taken ruling only applicable indigents or due to counsel’s concern his own applicants under 28 U.S.C. 1915 or § reputation. (Emphasis supplied.) § I interpret authority preju- Jones as stated, present As above South Dakota dice exists for failure to a client’s provides statutory law a defendant *8 so, requested irrespective case to do when right appeal judgment from a final any may errors that have existed A conviction. SDCL 23A-32-2. number trial level. applied Rodriquez courts have rule holding majority statutorily would cases where a state court estab require appellant prove appeal. an lished a Rob a successful defendant’s appeal granted Wyrick, before relief would be inson v. 635 F.2d 757 Cir. 1981); Miller, Cantrell, perfect supra; supra; failure of counsel to Follette, Riser, LaVallee, supra; supra; Wilbur, Galloway supra;

supra; Ste (M.D.N.C.1981); F.Supp. 840

phenson, 510 (S.D. Brewer, F.Supp.

Blanchard why 1969). find reason

Iowa I no sound applied to this

Rodriquez should not be

case. majority’s opinion, reliance my Strickland, supra,

upon Morrison,

States v. (1981), misplaced. L.Ed.2d 564 tactics and

Those cases dealt with therefrom, resulting not the fail-

prejudice timely perfect ap- properly

ure nor

peal. Neither Strickland Morrison limited, alone

expressly overruled or let

mention, Rodriquez, which dealt with person’s

clearly distinguishable issue judgment from a

statutory

of conviction. Appellant has been effective as- denied result, counsel. he has

sistance of As right to statutory

been denied as a I prejudice suffered result. the case to the trial court

would remand resentencing appellant the and allow

statutory opportunity any appellant issues has raised or

Whether

might day. should for another raise

I am authorized to state Justice joins in this dissent.

HENDERSON Dakota, Plaintiff

STATE of South Appellant, DUPRIS,

Victoria Eileen Appellee.

Defendant and

No. 14925.

Supreme Court of South Dakota. July on Briefs 1985.

Considered Aug.

Decided