Application of Deserly
507 N.W.2d 905
S.D.
1993
Check Treatment

*1 Application of In the Matter Vance DESERLY

Charles Corpus.

Writ of Habeas

No. 18091. Dakota.

Supreme Court May

Considered on Briefs Nov.

Decided

Wuest, J., specially and concurred

opinion. J.,

Henderson, part, concurred in dis- part, opinion.

sented in and filed Parliman, Falls, peti-

Thomas W. Deserly. appellant Charles Vance tioner and Barnett, Gen., Atty. and Joan Boos Mark Gen., Pierre, Schueller, appel- Atty. Asst. S.D. lee State of *2 906

MILLER, Deserly Ultimately, prosecutor Chief Justice. and the in plea bargain Deserly reached a which Deserly (Deserly) appeals Charles Vance plead guilty to agreed ap- to the failure to denying application his for habeas order charge pear and make restitution for the corpus relief. affirm. We return, property damage. prosecutor HISTORY FACTS/PROCEDURAL agreed drop property to to Deserly charged charge, agreed SDCL 22-34-1 file under to habitual offender felony to intentional charges, agreed and to a recommend sus- charges than more two hundred dollars. The pended preparing presen- a sentence. While Deserly from an stem incident which de- investigation, tence a court services officer stroyed parking gates Valley some at Sioux only fifty discovered that it cost dollars to 1, 1988, Hospital. Magistrate On December repair gates parking to the at Judge Joe Neiles entered an order authoriz- Valley Hospital. Deserly learned this ing Deserly’s pending trial release on condi- pled guilty after he had but before he was accept tion that he the terms of a “Personal sentenced, Deserly Before sentenced. Recognizance Appearance Bond and Bond.” Deserly Robert if Amundson asked he Deserly required The terms of the bond guilty plea. Deserly wanted to stand 12, appear magistrate on before a December yes. Deserly said was sentenced to five Deserly 1988. The further bond informed years in penitentiary suspended on condi- 12, that failure to at December (with jail serve tion he six months in hearing 1988 could result in a felo- class five release), fifty work make restitution of dol- ny conviction. read the terms of property, complete lars 2,1988. signed it on bond and December free, alcohol treatment and remain alcohol 1, Furthermore, 1988, on December LaDo- and, course, obey all laws. Vansco, Deputy na a Clerk Court “for, Deserly’s setting order the court” driving was arrested for under the 12, dispositional conference December just influence of alcohol two weeks after he is, dispositional conference es- jail was released from his six-month sen- sence, a at settlement conference which the pled guilty tence. He and violating admitted defendant and defense counsel meet with the suspended the terms of his sentence. He prosecuting attorney to Af- discuss case. was sentenced an additional six months they ter they appear have discussed the case county jail. magistrate pro- to schedule further jail, county While in charged ceedings. damage to property simple and assault 5, 1988, On December defense punched he after numerous holes walls obligation reminded of his hit another inmate. State also attend the December dispositional habitual offender All information. Nevertheless, Deserly conference. failed to charges were dismissed when admit- dispositional at the conference. On violating suspended ted the terms of his sen- 14, 1988, magistrate December issued five-year tence. He was ordered to serve the priority bench warrant and penitentiary original sentence from the con- charged under SDCL 23A-43-31 with failure hearing.* given at a viction for failure to scheduled and was January days already arrested credit for 266 served. * provides: pending appeal 23A-43-31 or or certiorari convic- after offense, any guilty tion of who, of Class 5 Any person having pur- been released felony; chapter, suant to this fails to (2) shall, If he was with a released connection court or officer as sub- misdemeanor, title, charge guilty ject of a of Class 1 provisions of this forfeit misdemeanor; security pledged which was and, (3) appearance release If he released for as a shall: (1)If witness, guilty he was released in with a material of a Class misde- connection felony, awaiting or while meanor. (S.D.1988). Solem, escaped N.W.2d August On Penitentiary fled would have been different Dakota State claims the results the South ar- Shortly thereafter Montana. he not have “entered the because would guilty two Montana and rested he been aware that *3 The Montana of criminal mischief. counts damage criminal to was years each him six sentenced to court groundless.” The record that demonstrates count, concurrently his to be served Deserly pled contention is false. After this 10, September On Dakota sentence. South guilty, the court services officer discovered 1990, Montana warrant Dakota sent South only fifty dollars. Des- detention, prison Deserly remained of but sentencing. erly prior At learned that fact to Through correspondence with in Montana. attorney point he his knew the that State Peniten- at the South Dakota officials gates to did not rise level he was tiary, Deserly learned that not Yet, Deserly felony. attempt not to for time he was Dakota credited South fact, plea. at guilty withdraw the In sentenc- 1991, 1, August serving in Montana. On specifically asked Des- ing, Amundson Dako- Deserly formally requested that South plead guilty. to Des- erly if he still intended escape disposition of make final his ta by guilty plea even when he erly stood his 15, 1992, Deserly was charge. January On gates only to aware the January and on arraigned in Dakota fifty The habeas court is affirmed. dollars. 1992, 29, to the South Dakota he returned escape FAILURE Penitentiary. to DESERLY’S WHETHER State thirty to months THE and was sentenced APPEAR AT DISPOSITIONAL his consecutive to penitentiary to be served HEARING A VIOLATION OF SDCL WAS original sentence. 23A-43-31. May appeal. no filed direct Deserly acknowledges that he did application for he habeas cor- 12,1988 disposi- appear at December evidentiary hearing, the full pus. After a However, he his conference. asserts tional application. habeas court denied his of to was not violation SDCL failure appeals. First, argues for he two reasons. 23A-43-31 DESERLY DENIED WAS

WHETHER appear before a he was-not ordered to that OF ASSISTANCE COUN- EFFECTIVE Second, he judicial con officer.” “court SEL. he receive notice that he did not tends effec Deserly contends he denied supposed appear. to attor assistance of counsel because his tive require an “or- does not SDCL 23A-43-31 investigate the amount of dam ney did not only failure der.” discusses Valley Hospi age gates at done to the re- officer “as cursory investiga court Deserly argues tal. Nevertheless, Deserly damage was was ordered quired.” tion would have revealed fifty the court the terms only and therefore could dollars personal for re- support magistrate’s conviction order and the Deserly correctly notes personal property. he read and appearance bond cognizance and make Moreover, must reasonable “[a]n also ordered signed. investigations reasonable decisions Setting or make appear in court the Order investigations.” forego particular Strick “for Dispositional Conference 668, Washington, 466 U.S. land deputy on December court” (1984). 2052, 80 L.Ed.2d met with counsel clerk of court. 1988 and reminded him on December prevail, must show In order to obligation appear on December of his is a and there was ineffective counsel Yet, Deserly failed to that, probability but counsel’s “reasonable failure 1988. His on December [ineffectiveness], proceed- results 23A-43-31. Strickland, violation constituted ing would have been different.” 694,104 is affirmed. v. The habeas court at 2068. Aliberti 466 U.S. at S.Ct. erly DESERLY SHOULD BE that he receive

WHETHER contends should credit application WITH TIME IN South Dakota the date CREDITED SERVED authority As cites MONTANA. transfer. he Chalifoux Correction, Commissioner Mass. Montana When the court sentenced Deser- (1978). 424, 377 N.E.2d 923 ly specified that it his Montana sentence was concurrently to be served escaped Chalifoux from a Massachusetts serving South Dakota. prison serving where he was time for assault spent approximately year one battery dangerous weapon. with a Montana before he thereafter, learned South Shortly he was arrested and con- crediting Dakota was not him for time he kidnapping. victed in California The Cal- *4 serving in discovery Montana. This twenty- ifornia court him one to sentenced prompted Deserly request to be returned years specified five in and that the sen- process to South Dakota. This transfer took concurrently tence should be served with Deserly argues six months. that South Da- request- sentence. Massachusetts Chalifoux credit him time he kota should for the served ed to be returned to Massachusetts and Montana, in both before and after he made asked him for Massachusetts credit the request the for transfer. already time he had served in the California prison. request Massachusetts denied the argument first is that when grounds prison for transfer on overcrowd- puts prisoner one state in “hold” on ing. Massachusetts also denied Chalifoux’s state, prisoner effectively another the is serv request serving for credit for the he was time ing e.g., each People time for state. See California, in but did not him itsof inform Ranson, Mich.App. 395 153 N.W.2d 271 decision. Chalifoux remained incarcerated (1986). persuaded by analy are not We the in being California and assumed he was cred- applied agree sis in Ranson because we with ited in Massachusetts. He did not learn Supreme the Iowa Court’s observation that it custody by otherwise he was taken into until “novel constitutes a rule which would allow a Massachusetts officials his release from criminal, by simple expedient sentenced prison. the California The Massachusetts escape, to select in the state which he Supreme Judicial Court held that fundamen- wishes to serve his incarceration.” Williams tal fairness Chalifoux (Iowa State, 1979). N.W.2d 280 408 credit for time he in served California. Second, Deserly notes that the Mon Because Massachusetts had not informed tana court ordered his sentences were to be credit, him they giving were him not concurrently. served Dakota South was not prison, Chalifoux remained in California as- party to that action and not assent to sumed he was in credited Massachu- any determination that the South Dakota setts, request possible and did other concurrently should served forms of relief from the Massachusetts Clearly, the Montana sentence. awas courts. proviso only to relevant the Montana courts. cannot claim denial funda- court did Montana could not approximately mental fairness. served give Deserly order Dakota South credit year prison one in Montana before he even time served Montana. See Nelson v. inquired giving South whether Dakota was George, U.S. him serving credit for the time he was (1970). also, L.Ed.2d 578 See Patino v. immediately Montana. in- South Dakota State, (S.D.1983). N.W.2d formed him he was not. asked to be spent year had Montana returned to South Dakota and transfer prison inquired process before he of officials at the took six months. There is no evi- Penitentiary. South Dakota State unnecessarily He for dence that the transfer was mally requested delayed. Deserly South unfairly transfer to Dakota was not treated when he learned that not being cred must Dakota officials and take re- serving ited for time he sponsibility Montana. his own on inaction this issue. process The transfer took six months. Des- The habeas court is affirmed. damage to

SABERS, J., Adding the fence the auto- bile. concurs. brings damage, mobile to a dol- WUEST, J., specially. concurs statutory lar in excess of the amount $200.00 figure. 22-34-1. J., HENDERSON, part concurs part. dissents original Conceding there ineffective- investigation, ness of counsel due weak J., AMUNDSON, disqualified. against Deserly ease State’s WUEST, specially). (concurring additionally Justice charge is saved because guilty plea. When Deser- retract point on agree -with Henderson’s Justice ly discovered the revelation $50.00 II, could not be convicted Issue Officer, the Court it was after he Services “disposi- failing at the informal But, pleaded guilty. importantly, it was However, examina- tional conference.” before he was sentenced. Circuit record shows that tion of the settled opportunity gave Amundson to re- charging him guilty to an information sentencing pro- tract his —before magistrate failing appear before a cess—but did not do so. plea was the officer. This who is corpus hearing, At habeas the habeas *5 plea bargain kept which result judge emphasized proposition the an criminal. charged as habitual ineffectiveness, trial counsel’s charge was the In respect property damage “irrele- was this Deserly benefitted from bar- dismissed. vant,” plea Deserly’s guilty was for because permitted to not now be gain and should appear” charge. Not so. The the “failure repudiate it. As Justice Henderson notes ap- plea bargain involved the failure to both writirig, damage in the amount there was property damage pear charge and the to the automobile which of $500.00 Perforce, charge. trial the effectiveness of driving permission. This would without investigation pertaining to either counsel’s provided of have evidence convict impactual upon Deserly’s deci- felonies, not a of felony or so this was case plea concerning bargain as a whole. sion plea person being into a innocent coerced by supported of is This standard review have bargain. Perhaps the case could been holding Loughery, 908 in State v. F.2d by prosecutor and defense handled better (10th Cir.1990). Therefore, the habeas court counsel, injustice but I not find com- do poses query: regard, erred this which mitted. Deserly prevails on logically Does it follow the trial I vote to affirm court. Why? No. Because this issue? (at plea even he knew that stood when HENDERSON, (concurring in Justice time) (supposedly) only dissenting part). part, knowledge, he Having persisted this $50.00. analysis, final guilty. In the in a I—INEFFECTIVE ASSISTANCE ISSUE establish, had to demonstrate OF COUNSEL not, prob- there a “reasonable could my opinion, Deserly’s counsel trial that, ability [ineffective- but counsel’s investigate counsel ineffective. His ness], would proceeding the results the amount of dam- the facts determine prong The second have been different.” wrought. It is axiomatic ages which Washington, the test in Strickland 2052, 2068, felony 668, 694, this criminal conviction U.S. (1984), support be set if the been met. would aside facts has not L.Ed.2d damage requisite satisfy amount of APPEAR AT ISSUE II —FAILURE investigation by An the Court Ser- statute. SETTLEMENT CON- CRIMINAL only revealed there was $50.00 vices Officer IN FERENCE JUDICIAL SECOND However, damage to the fence. record CIRCUIT driving his moth- discloses Circuit, permission Apparently, in the Judicial automobile without Second er-in-law’s cases, expedite criminal the flow of and caused to this automo- $500.00 “dispositional creature was created termed a negotiations place. aura of can take There- conference;” this by, “settlement confer- perhaps, the Court or officer is Thereat, representative ence.” prejudiced give stained or in the and take attorney’s state’s office and defense counsel process. judge No wants to sit and hear defendant) (plus the meet to have an infor- advocacy, possible plea bargaining, in an mal discussion. Nowhere our state code is wrangling. arena Involvement such a proceeding such a mentioned. This confer- hearing compromise judge’s objec- would simply ence is not a creature of statute. tivity. way, Said another it is not law. Deserly was released on a “Personal Bond Circuit, In the Second Judicial there exists Appearance Magis- Bond” virtue of Three,” a “Rule pecu- which are court rules trate Joe Neiles’ Order. I set it forth below: liar to that circuit. Under SDCL 23A-45-12 Defendant, Deserly, That the Charles is to code, may of our state local court rules Magistrate of the 2nd Judi- circuit, adopted. dispositional In said this Falls, Dakota, cial Circuit at Sioux guideline. conference is informal Howev- County at the Minnehaha Courthouse on er, adopted it was not aas court rule. Dec, 1988, day A.m., the 12 [sic] at 1030 (or un-adopted Can guide- court rules places and in such [sic] other as Defendant really—-just practice) a local be law? may lines— in accordance simply think not. has no force of law. and all orders or directions relat- legitimate law, To be a child of the it must ing to appearance the Defendant’s So, birthright. have a this takes us to the may above-entitled matter as question perpetrated, if a can be Magistrate issued or the Circuit law, based get violation of an informal Court of the 2nd Judicial Circuit or *6 (or together between a state’s any other Court to which the Defendant representative), defense counsel and defen- removed, may transferred; or the cause dant? I maintain that it cannot. added.) (Emphasis strongly State advocates that fel- The provided: bond further ony failing crime appear before a FAILURE TO APPEAR AT THE TIMES magistrate. advocacy Let us examine such REQUESTED MAY RESULT IN THE light of the A necessary record. element A CONVICTION OF FEL- CLASS FIVE appear, of failure to under SDCL 23A-43-31 (5 years imprisonment ONY in the State requirement defendant, is the who Penitentiary $5,000may a fine of and/or released, has any been “before court imposed) IF THE FAILURE AP- judicial officer,” or emphasized as below: PEAR A OCCURRED IN FELONY Any who, person having pur- been released CASE. FAILURE TO APPEAR IN A chapter, suant to this fails to before MISDEMEANOR CASE MAY RESULT any judicial court or as officer AIN PENALTY OF ONE YEAR IN shall, subject title, provisions of this $1,000 THE COUNTY JAIL OR FINE forfeit security which or OR BOTH. pledged and, for his release signed Who “disposi- the document for a shall: tional judge. conference?” Not a aNot (1) If he was released in connection with magistrate. order, “pre-signed” It was a felony, a or awaiting while courts, deputy ordering clerk of pending appeal sentence or or certiorari (ostensibly) Deserly disposi- at a offense, after conviction of tional conference on December at 10:30 felony; of a Class 5 ... A.M. Obviously, setting, an informal trying to work bargain, Remember, out a appear. is not a court nor Des- appearing judicial erly posted It personal recognizance is the bond. officer. thereof; antithesis it attempt is an to work State could have acted the bond something out on the case appearing to avoid securing his immediate arrest with a Bench judicial before a court setting or so the Warrant. But was his action —a failure to

9H No. violation of state statute? appear —a to ap- a failure

Though bond addresses statutory requirement. alter a

pear, it cannot by a no order issued

Simply put, we have Judge) or

judicial (Magistrate Circuit officer judicial officer, any court Further- 23A-43-31. as set forth SDCL order,

more, I note that a bailiff filled deputy clerk. pre-signed

an order

Magistrate Neiles testified dispositional confer-

appearance followed the

ence. question plain. re statute court or

quires before a arriving intention at the officer. Legislature, presumed it is

of the the statute have been used con

words of ordinary, meaning,

vey popular unless their apparent intention context departure

Legislature justifies any from the meaning. Conservancy Subd

ordinary Oahe (S.D. Janklow, 308 N.W.2d 559

istrict

1981); Waggoner, Wood 67 S.D. (1940); 2-14-1.

N.W. 188 TIME

ISSUE THREE —NON CREDITED MONTANA

SERVED IN holding acceding

Without opinion Appellant guilty of

majority *7 appear, generally of failure to crime III.

agree of Issue discourse OF the Matter of the DISCIPLINE HOPEWELL, as

Richard James Attorney at Law.

No. 18103. Court of South Dakota.

Supreme

Original Proceeding

Argued Sept. Nov.

Decided