Donna Oien JONES, Petitioner and Appellant, v. STATE of South Dakota, Respondent and Appellee.
No. 14478.
Supreme Court of South Dakota.
Decided Aug. 29, 1984.
354 N.W.2d 781
Considered on Briefs May 24, 1984.
Petitioner contends that he was not made fully aware of the consequences of his guilty plea inasmuch as he was not informed of the fact that the imposition of a life sentence upon him precluded the possibility of his being released on parole.
Finally, we agree fully with the trial court‘s finding and conclusion that petitioner‘s guilty plea was a voluntary and intelligent choice among alternative courses of action. Petitioner testified at the post-conviction hearing that he had been told by his counsel that there was a ninety-nine percent chance that he would be found guilty of murder with premeditated design and a very high chance that he would receive the death penalty. Petitioner testified that he did not think that his counsel had misled him in this regard. Given the stark realities of that which lay before him, petitioner‘s guilty plea, entered after thorough consultation with his counsel, can only be said to have represented a voluntary and intelligent choice among the alternative courses of action open to him at the time. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
The order denying post-conviction relief is affirmed.
All the Justices concur.
Mark Smith, Asst. Atty. Gen., Pierre, for respondent and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
DUNN, Justice.
This is an appeal from an order denying post-conviction relief. We reverse and remand.
Donna Oien Jones was tried before a jury and found guilty of aiding and abetting in the distribution of LSD. The trial court sentenced Jones to ten years in the state penitentiary and a $10,000 fine. Upon the advice of her attorney, Jones did not directly appeal the conviction to this court. She did, however, prior to the re-
The
A careful examination of the record reveals that there is no real evidence to indicate a knowing and intelligent waiver by Jones of this constitutional right. It is true, as the post-conviction court noted, that the trial judge warned defense counsel that his conduct was close to contempt of court, that his strategy was about to open the door to evidence which was irrelevant and prejudicial to his client, and that he was on “very dangerous grounds.” However, all of these warnings took place outside the presence of Jones; Jones was never made aware of the trial judge‘s serious misgivings about her attorney.* It is also true that during the trial a recess was called, at which time Jones was advised of her Fifth Amendment rights and warned of the dangers of taking the stand. But this discussion between Jones and the judge did not involve the issue of competency of counsel; it went solely to her rights concerning self-incrimination. Finally, it is also true that Jones’ counsel was retained rather than appointed. But in light of the recent decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), we conclude that this factor should have no bearing on the question of waiver. In Cuyler, the Supreme Court stated:
A proper respect for the Sixth Amendment disarms petitioner‘s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. We may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused. But experience
teaches that, in some cases, retained counsel will not provide adequate representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant‘s entitlement to constitutional protection.
446 U.S. at 344, 100 S.Ct. at 1716, 64 L.Ed.2d at 344.
It is significant that those courts which have dealt with this waiver issue have stressed the importance of the trial judge‘s active participation in the waiver decision. They state that the judge should inform the defendant of the problems with defense counsel and seek a response from the defendant that he understands his rights and the perils of continuing with the present counsel. See, e.g., United States v. Mahar, 550 F.2d 1005 (5th Cir.1977); United States v. Garcia, 517 F.2d 272 (5th Cir. 1975); People v. Johnson, supra. No such discussion took place here. Jones was never informed of the serious problems which the trial judge clearly observed in counsel‘s handling of the case.
In its decision, the post-conviction court makes much of the fact that Jones made no request for a continuance to get another lawyer and that she participated in the “high risk” defense strategy. But how can a defendant, a non-lawyer who has not been informed of the problems in the handling of the case, be expected to evaluate the available alternatives and make decisions regarding motions and trial tactics? Without being informed of the problems in the case, a defendant simply cannot become aware of the likely consequences of continuing with the present counsel, and therefore, cannot make an intelligent waiver of constitutional rights. It is abundantly clear from the record that Jones did not knowingly or intelligently waive her right to effective assistance of counsel in the trial below.
The next issue is whether Jones was in fact provided effective assistance of counsel. When reviewing such claims in the past, this court has used the following standard: 1) an attorney is presumed competent; and 2) the party alleging incompetence has a heavy burden in establishing ineffective assistance of counsel. Jibben v. State, 343 N.W.2d 788 (S.D.1984); Grooms v. State, 320 N.W.2d 149 (S.D.1982). This court‘s function is not to second-guess the tactical decisions of the trial attorney, nor will we substitute our own theoretical judgment for that of defense counsel; but this court should not hesitate to reverse a conviction if the record reveals that a defendant was not afforded effective assistance of counsel. Grooms v. State, supra.
While this has been our standard, we must also take note of the very recent case of Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in which the Supreme Court for the first time dealt with a general claim of ineffective assistance of counsel. In Strickland, the Court reiterated its position that the 6th Amendment right to counsel means the right to effective assistance of counsel. The Court also stated the following general principles to be applied in such cases. The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. To reverse a conviction on ineffective assistance grounds, a defendant must show: 1) that counsel‘s performance was deficient; and 2) that the deficient performance prejudiced the defense. The test for prejudice is whether there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. In making these evaluations, the proper standard for attorney performance is that of “reasonably effective assistance.” Counsel is strongly presumed to have rendered adequate assistance, and a court must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct.
This new Supreme Court ruling is in accord with numerous points in our long-held
In examining the competency question, the following circumstances are apparent in the record. First, prior to and during the trial, defense counsel was in much pain as a result of his involvement in several accidents. Two weeks prior to the trial he spent the entire week in bed because of his condition. The week before trial he was able to spend only half time at his office and was on medication for pain and sleeplessness. Counsel admitted at the post-conviction hearing that during trial he was in “extreme discomfort,” which affected both his concentration and stamina. Despite this problem, he did not ask for a continuance.
Second, counsel‘s physical problems contributed to a general lack of preparation for the trial. On several occasions during trial, the court rebuked counsel when it was apparent that he had not reviewed materials until the day of the trial. An example of this lack of preparation occurred when counsel, on the evening before the trial, submitted a motion to suppress the State‘s key evidence. This evidence was a tape recording of a telephone conversation in which Jones allegedly told a drug agent the telephone number of a drug dealer from whom LSD could be obtained. The suppression motion was properly denied as being untimely since the trial date had been set for a month.
Third, when this key evidence was introduced at trial by the State, defense counsel failed to object at all. This failure is inexplicable since the tape was the only evidence presented by the State connecting Jones to the crime, and since serious questions existed concerning the identity of the person to whom the agent was talking.
Fourth, defense counsel used a “high risk” strategy, even after the trial court warned him that doing so placed him “in very dangerous grounds.” This strategy supposedly was intended to show that Jones misunderstood the drug agent during the telephone call; however, the result of the strategy was to allow an incredible amount of prejudicial testimony to be offered. For example, the defense brought forth in its own case the fact that Jones had earlier been convicted of selling LSD and that Jones’ daughter had been involved in drug sales. The defense called to the stand an admitted drug dealer, the person convicted of the principal offense for which Jones was charged with aiding and abetting, to recite the facts of the crime and to state that he knows Jones. The defense also elicited testimony from the roommate of the drug dealer, who promptly identified the voice on the tape as belonging to Jones.
We reverse and remand for a new trial.
FOSHEIM, C.J., and WOLLMAN and MORGAN, JJ., concur.
HENDERSON, J., concurring in result.
HENDERSON, Justice (concurring in result).
Initially, I wish to express my disturbance at the decision‘s failure to set forth the most cardinal rule of all, that findings of fact and conclusions of law by the post-conviction court must be found to be “clearly erroneous.” Gregory v. State, 325 N.W.2d 297 (S.D.1982).
I believe that post-conviction relief was improperly denied below. The post-conviction court‘s conclusion that appellant did not knowingly, intelligently, and voluntarily waive the right to appeal her conviction was not clearly erroneous. She had a right to appeal her conviction under
However, I disapprove of the trial court permitting this young lawyer to go to trial. The trial court was well aware of his terrible health problems. Yet, the trial court set the case for trial. Improvidently, the young lawyer made no motion for a continuance.
Further, I am of the opinion that appellant waived her right to effective assistance of counsel. A defendant can waive the right to effective assistance of counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). I would affirm the post-conviction court‘s conclusion that “[appellant] knowingly, intelligently and voluntarily made the decision to proceed with the challenged counsel subsequent to the trial judge affirmatively informing her of the potential problems and ramifications.” I cannot hold that this was clearly erroneous.
As the post-conviction court found, appellant was advised of all her constitutional rights. She was advised of her right not to testify. She indicated to the trial judge that she understood her rights and the ramifications of what was about to occur and she was prepared to proceed with the trial.
Additionally, appellant knew of her young lawyer‘s vast medical problems. These included hospitalization before the trial, an accident on the way to a physical therapy session, a neck and back brace, and pain killers (medicants) right up to trial. Under oath, long after trial, she stated that the young lawyer actually was under heavy medication during the trial. Knowing this, why did she permit her young lawyer to proceed with a jury trial? As the post-conviction court found, she was concerned, yet did nothing to bring her concerns to anyone‘s attention. She made no request for a continuance or for time to employ a new lawyer. I also note that trial counsel not only represented the appellant in this trial, but he also represented her in a previous criminal case involving the distribution of controlled substances. See State v. Oien, 302 N.W.2d 807 (S.D.1981), wherein this appellant received a penitentiary sentence, affirmed on appeal—the penitentiary sentence in this case to be served concurrently therewith. The defense presented in this case was very similar to the defense presented in appellant‘s first criminal proceeding. The point is: appellant knew or should have known of the trial capabilities of defense counsel. This is exactly the finding the post-conviction court made per Finding of Fact III. Nevertheless, counsel was ill when he defended this case. There are two affidavits in the post-conviction relief proceedings reflecting appellant‘s concern about the ability of her attorney before the jury trial began. One can only speculate why she did not address these concerns to the trial court either prior to or during the jury trial. Although I join my brothers in reversing and awarding a new jury trial because of the advice against taking an appeal, I am convinced that appellant willingly participated in a “high risk defense” and did not complain about her representation until she was found guilty and sentenced to the state penitentiary.
It strikes me that some good judgment and common sense could have averted this expensive trial for the taxpayers, a retrial of this case, and all of the resultant misery and sorrow caused by proceeding with a jury trial, when some understanding would have demanded a continuance until the young lawyer was on his feet to such extent that he could be fully effective. Constitutionally, the system of criminal justice is based upon an accused securing a fair trial,
The State urges in its brief that inasmuch as the trial court concluded that appellant “did not knowingly and intelligently waive her right to appeal her conviction to the Supreme Court, that the matter be remanded to the circuit court for resentencing.”