Lykken v. Class
561 N.W.2d 302
S.D.
1997
Check Treatment

*1 Moreover, probation- his practicing if since readmission tempted he were to behave carefully ary, will law, we know his activities be properly declined. but believe, years. for two there- scrutinized original miscon- Unquestionably, the [¶ 16] case, fore, unique of this circumstances destructive, bringing upon discredit duct was petition prema- was not his reinstatement Handling client funds legal profession. n ture. es- requires trust and confidence—attributes harmful to attorney-client relationship. 18] While misconduct was to the sential bar, Lawyer public and the we now look to Imposing both the ABA Sanc- Standards justice mercy, believing tions, Commentary (citing “temper with that his 4.1 In re Rule Stanton, Wilson, professional A.2d 1154-55 life is redeemable.” 81 N.J. (Henderson, J., Tidball, dissenting). (1979)); at 43 503 446 N.W.2d see also Matter of reinstated, conditionally subject 'Pier is This trust was (1) requirements: pass the yet following it can he must betrayed, and we think be re- (2) exam, including portion; he payment of full restitution bar the ethics stored. Pier’s years by closely supervised for two just “Resti- will be more than settle accounts. does of the bar goal of rehabili- Gerald Reade another member tution is fundamental to the (3) Court; California, approved by this he must main- Hippard Bar tation.” v. State of insurance, malpractice liability P.2d tain with Cal.Rptr. 49 Cal.3d (1989). Board; took, repaid proof supplied to the he must Pier what he interest, pay expenses days he admitted all the reinstatement. within after (permitting 16-19-87 conditional rein- guilt. Repayment alone will not establish SDCL Voorhees, statement); rehabilitation, certainly Petition restitution ex- (affirming power presses form of atonement and N.W.2d at 739 the Court’s the sincerest accountability. require petitioner for take mark of readmission the surest exam); (vesting 16-16-17.1 the bar SDCL cf. We conclude the Board’s recommen- [¶ 17] lawyers prac- power in the Court to admit upon rests sound dation for reinstatement basis). tice on conditional grounds that Pier has and substantial SABERS, MILLER, C.J., proving [¶ 19] clear and con- met his burden GILBERTSON, JJ., regained con- vincing evidence he has fitness to AMUNDSON interest, practice. cur. public the adminis- justice, reputation of the

tration of and the

bar will not undermined if Pier is readmit- be however, remaining point, gives us

ted. One

pause. provides 16-19-83 a disbarred

attorney apply for reinstatement five years after disbarment becomes effective. 1997 SD Imposing Lawyer ABA Accord Standards for LYKKEN, Applicant David Lee (1986)(not- Sanctions, Commentary 2.2 Rule Appellant, lawyer ing “in no even be event should considered for readmission until at least five years date of disbar- after the effective Joseph CLASS, P. Dakota Warden South

ment”). petition little more Pier’s arrived Penitentiary, Appellee. July years after his 1991 disbar- five No. 19623. confident, ordi- ment. We would be more clearly narily, longer period with a estab- Supreme Court of South Dakota. lawyer lish before a disbarred rehabilitation Considered on Briefs Jan. generally petitions for readmission. See Pool, 460, 517 N.E.2d Matter 401 Mass. Decided March necessary). (1988)(five-year disbarment However, Pier’s sincere remorse for his

wrongful convincing conduct and his moral practice.

amends establish renewed fitness *2 counsel, argument by the writ was de-

nied. OF REVIEW

STANDARD corpus Habeas is not a substi *3 Class, Loop tute for direct review. v. 1996 107, 11, 189, 554 N.W.2d 191. Because SD remedy proceeding in a is in the habeas judg nature of a collateral attack on a final ment, scope our of review is limited. Jenner 422, (S.D.1994); Leapley, v. 521 N.W.2d 425 Solem, (S.D. Gregory v. 449 N.W.2d 827 1989). only corpus can be used to review

Habeas (1) jurisdiction whether the court had defendant; person the crime and the of the (2) whether the sentence was authorized law; cases, Parker, certain whether Applicant David M. Buechler an incarcerated defendant has been de- Appellant. prived rights. of basic constitutional For Barnett, General, Attorney Mark Sherri purposes corpus, of habeas constitutional Wald, General, Attorney Assistant Sundem deprive violations in a criminal case Pierre, Appellee. jurisdiction. trial court of Leapley, St. Cloud v. 521 N.W.2d 121 GILBERTSON, Justice. (S.D.1994) (internal omitted). citations Lykken (Lykken) appeals [¶ 1.] David Lee legal of the [¶ 5.] On habeas review corpus. from the denial of his writ of habeas sentence, ity aof criminal where the state affirm. produces constituting judgment a document a conviction, petitioner has the burden AND FACTS PROCEDURE prove by preponderance a of the evidence Lykken was convicted in November [¶ 2.] that there exists credible evidence of invalidi first-degree rape, kidnapping, 1990 of first- Moeller, ty judgment. in that v. 511 degree burglary, simple following assault (S.D.1994) (citing N.W.2d Parke v. Vermillion, two-day jury a trial in South Da 20, 31,113 517, 524,121 Raley, 506 U.S. S.Ct. II kota. He further admitted to Part (1992); Leapley, L.Ed.2d v. Stuck alleging prior information conviction of (S.D.1991)). N.W.2d See also first-degree burglary. He was sentenced on Solem, Alexander v. 383 N.W.2d February 7, years to 225 state findings The habeas court’s are penitentiary. His conviction and sentence given and we “considerable deference” will were direct to this affirmed on Court findings they not reverse these unless are (S.D. Lykken, in State v. Cloud, clearly erroneous. St. 521 N.W.2d 1992). Solem, McCafferty v. 449 N.W.2d Lykken brings corpus now a habeas [¶ 3.] (S.D.1989); Solem, Satter action to this Court for review. (S.D.1988), denied, 425, 427 cert. 490 U.S. illegal enlargement claims an of his sentence (1989). 109 S.Ct. 104 L.Ed.2d 989 by the trial court and ineffective assistance of appellate [¶ 6.] both trial and counsel violation of Whether a defendant has re pres the Sixth Amendment to the U.S. Constitu- ceived ineffective assistance of counsel VI, question § tion and Article 7 of the South Dakota ents a mixed of law and fact. St. Cloud, at 121. In Constitution. Both claims were heard the absence determination, clearly pursuant Lykken’s petition habeas court erroneous we defer corpus. Following hearing findings regard- for writ of court’s of fact habeas to the habeas do, ping or did not we sentences themselves were run con- ing what counsel did “ currently consecutively, judgment our own ‘as to substitute inac- defense counsel’s actions or j 9 Within fifteen minutes of the court’s ineffective tions constituted assistance pronouncement oral of this sentence and be- ” (quoting at 122 Aliberti eounsel.’ Id. any parties attorneys fore 0f and their (S.D.1988)). Solem, 638, 640 courtroom,1 had left the the trial court recon- sentence,

vened court corrected the stat- ing sentences AND ANALYSIS DECISION consecutively. The trial were run court unlaw- [¶ 7.] Whether stated this correct sentence as re- fully enlarged Lykken’s sentence? the court’s written notes.2 fleeted sentencing hearing, [¶ 10.] The trial court’s comments indicate At the *4 orally pronounced upon correcting trial it was an inadvertent omission court sentence sentence, jury Lykken four counts for which the from the court’s intended as re- on all Lykken in guilty. had him was sen flected court’s written notes. We in- found the terpret this imprisonment peniten in the clarification of sentence tenced to state 23A-31-2, 100 under SDCL tiary first-degree provides for years rape, for which that years first-degree years judgments, in kidnapping, “[c]lerical mistakes orders or for and burglary years parts other errors in a first-degree for for of a record and record arising simple oversight may trial court 2- from or omission be assault. The stated the any year concurrently to run with corrected a court at time and after sentence was notice, years 25-year any, court the of and the such if as the orders.” other terms consecutively Application rape run the of this statute is in sentence was to to illustrated (S.D.1985). Whalen, kidnapping and sentences. trial court Whalen, rape that did not whether the and In we held where court’s kidnap- state Lykken my hearing I recollect testified at the habeas that the the marks, offense. As re- Attorney his own trial went State's counsel Although I that. did not mention it is judge into chambers with the trial after court notes, my neglected in to mention I I that. p.m. prior adjourned was at 4:05 Just to enter- want the to that the record show defendant chambers, ing Lykken's judge's the counsel ob- time, Lykken present at this that Mr. Mr. is still judge's permission Lykken tained the to insit here; McCahren, attorney, is that Mr. the two officers courtroom with from the sheriff's Craig Attorney, Thompson, the State's is also speak counsel wished with office because Lykken immediately to present. judge after he met with the I want the record to further show that the Attorney in the State's chambers. Fifteen reopening of court is the sentence this defen- later, judge attorneys the minutes both the portion dant this time to correct of the whereby judge reentered the courtroom noti- sentence, it had in its *5 sentencing of the court be construed (9th Cir.1979). 386, 389 See also United from the entire record. (2d Werber, 342, States v. 51 F.3d Cir. 1995) (holding that “Rule 36 authorizes a ¶ Sieler, v. State 1996 SD only court to correct clerical errors in the Johnston, (citing State v. transcription judgments, of not to effectuate (S.D.1991); 8A Moore’s unexpressed its intentions at the time of (2d 1995); § Federal Practice 36.02 ed Guevremont, sentencing.”); United States v. 1037). Here, Tramp, 30 F.3d at the court’s (3d Cir.1987) (holding 829 F.2d “a alone, pronouncement, standing oral was si- judgment clerical error must not be one of or Lykken’s lent as to whether sentences for misidentification, merely even of but of reci were to run concurrent- tation, of the sort a clerk or amanuensis ly consecutively. or Examination of the en- commit, nature”). might mechanical readily tire record demonstrates the sentenc- courts, ing applying

[¶ Federal court intended these 12.] this rule to sentences to run consecutively. Any factually presumption situations similar to the one before of concur- us, rence, urged by Lykken, by have held: is barred the court, sentencing clear intent of the as re- pronouncement The terms of an oral notes, flected its written its oral comments clearly provide for a consecutive or concur- court, upon reconvening and the court’s writ- contrary,

rent sentence control a silent or judgment. ten ambiguous judgment. written the When pronouncement oral sentence does not Bucholz, v. [¶ 14.] State 403 N.W.2d 400 resolve sentence runs consecu- (S.D.1987) Ford, and State v. 328 N.W.2d 263 tively concurrently, clearly ex- (S.D.1982), by Lykken addressing cited pressed sentencing judge intent dis- 23A-31-1, inapposite. SDCL are SDCL cerned the entire record controls. from permits sentencing judge 23A-31-1 to cor- Finally, presumption op- of concurrence illegal an rect sentence or a im- sentence imposition erates to bar later of a consecu- manner, posed illegal in an but does not tive pronounce- sentence when the oral permit increasing a sentence once the con- sentence, judgment ment of the written victed serving defendant has commenced clearly and the record do not reveal the sentence. 328 N.W.2d at State v. sentencing judge. intent of the Tibbetts, See McAfee, Sieler, 114, 10, United States v. 832 F.2d 946 also 1996 SD 554 N.W.2d at (5th Cir.1987) (internal omitted) citations if, Bucholz, simply to the district to decide supra, the trial court allow court reflection, original on sentence hearing in a further held defendant

resentenced harsh.”). unduly now seems original one week after approximately need sentencing pronounced. had been surrounding Lykken’s [¶ 18.] The facts by rehearing was announced sentencing the trial was mere- indicate sentencing hour the first court one after ly correcting oversight a clerical and was not trial court de- hearing had concluded. The resentencing to increase sentence resentencing was necessitated termined in Bucholz or The trial as occurred Ford. wife’s false testi- defendant’s defendant’s clarify court can its it cannot sentence where original sentencing hearing re- mony at it. reconsider or amend hold the sen- consumption of garding alcoholic defendant’s tencing Lykk- illegally enlarge court did not noted had beverages. The trial court it sentence, properly en’s his sen- corrected entirely original sentencing on the based its tence as authorized 23A-31-2. had that Bucholz not been representation alcohol, going “I’m consuming stated: 19.] Ineffective Assistance this court which was vacate the sentence of Counsel just ago an hour handed down about begins of this [¶ 20.] Our review issue I the defendant. And intend to resentence attorney compe an presumption “the is you right will be can tell now made; showing contrary tent until a previously more severe the sentence thus, heavy petitioner carries a burden Bucholz, N.W.2d at 402. [imposed].” coun establishing ineffective assistance of and remanded for appeal, On we reversed Jenner, (citing sel.” 521 N.W.2d at 425 sentence, original hold- reinstatement Valenzuela, 521 F.2d United States provide did not ing that SDCL 23A-31-1 (8th Cir.1975), denied, 916, 96 cert. 424 U.S. authority increasing Bu- trial court’s (1976); S.Ct. 47 L.Ed.2d 321 cholz’sentence. Walker, (S.D.1980)). *6 guilt We do not debate the or innocence supra, the trial court sen- [¶ 16.] petitioner, the but examine his constitutional thirty-six in the defendant to months tenced right to counsel. Such effective effective penitentiary with credit for time the state counsel, however, always equated not with county in the detention center. served Jenner, at a successful result. 521 N.W.2d later, days had re- after Ford been Three McBride, 554 State v. 296 N.W.2d custody prior to manded to the sheriffs (S.D.1980). transportation penitentiary, the the his to and, into court ordered Ford back trial represented trial and Lykken was at [¶ 21.] sentence to ten sponte, sua increased Ford’s by In his appeal on direct the same counsel. years’ imprisonment. reversed and re- Lykken claimed ineffec- proceeding, habeas thirty-six the for reinstatement of manded and in tive of counsel both at trial assistance grounds on that SDCL month-sentence this will his direct to Court. We permit an in did not such increase 23A-31-1 in the alleged conduct address the ineffective sentencing. legal oc- proceedings order in which curred. courts, applying parallel Federal [¶ 17.]

rule, give every purpose is to have stated its Trial [¶ 22.] A. Assistance of Ineffective opportunity defendant be convicted a second Counsel sentencing provides judge fore trial, Lykken he judge claims that opportunity 23.] to “re by coun any assistance light in further received ineffective consider the sentence in li- proper motion or sel’s failure to file the about defendant the case information any making to the State from prevent to him in the mine presented which have been Colvin, including history, his criminal 644 F.2d reference to interim.” United States (8th Cir.1981). fur penitentiary. He spent also his time See United (9th that, Smith, although ob ther trial counsel Cir. claims States v. 650 F.2d 1981) jected was made when such reference (noting the function of rule “is

through prosecuto- witnesses statements [¶ 25.] We find no error in the closing argument, finding habeas rial reference in court’s coun the statements complained properly of were objection. admitted at tri grounds sel failed to state Al al, following Lykken’s attorney’s motion at though Lykken argues failure to file the tempting prevent their ap admission and motion, attorney proper he admits his did file propriate objections. Lykken presented a regarding subject motion limine defense of consent which these statements his claim of ineffective assistance. We note directly negated. As evidence admitted at at the outset the decision whether to trial, Lykken’s statements could be referred objections make at trial motions are within closing argument. its the trial counsel's discretion. Roden So Mitchell, (S.D. State v. 491 N.W.2d lem, (S.D.1988); 431 N.W.2d State v. 1992). Lykken’s claim of ineffective assis Anderson, (S.D.1986). 387 N.W.2d tance of trial counsel is without merit. general however, apply, “This rule will not where trial counsel’s actions cannot reason B. [¶ 26.] Appel- Assistance Ineffective ably any strategic relate to decision and are late Counsel clearly contrary competent to the actions of Lykken’s claim of ineffective Roden, counsel in similar circumstances.” appellate assistance of counsel is that 431 N.W.2d at 667. argument above was made on appeal3 direct but waived due his counsel’s failure to cite The habeas court [¶24.] found that supporting authority required by Lykken’s trial counsel made proper mo Knoche, 15-26A-60. See State v. tion, appropriate objections and made at tri (S.D.1994); Dixon, State v. al. The habeas court further found To establish mistrial, trial counsel moved for a which mo counsel, Lykken ineffective assistance of tion was denied the trial court. Our prove representation must deficient and that review of the findings record indicates these deficiency prejudicial such to him. are not erroneous. We note the comments 107, 14, Loop, 1996 SD jury which the heard at trial came from the To establish ineffective assistance of coun testimony victim’s of what said to sel, (1) prove defendant must that coun during her representation sel’s objective fell below an phone Lykken placed afterwards, calls to her standard of reasonableness and wit, “I go will die before I back to the deficiency prejudiced such him. Strick pen.” statements, There were similar made *7 Washington, land v. 466 U.S. 104 by witnesses, Lykken to other which were (1984); S.Ct. 80 Hop L.Ed.2d 674 jury heard when these witnesses testi finger (S.D. Leapley, v. regarding subsequent fied events to the 1994). Strickland, Relying on Woods v. Thus, and kidnapping. the statements to Solem, (S.D.1987), 405 N.W.2d 61 held Lykken objects which all were stated either that prejudice exists when there is a rea during commission of during the crime or that, probability sonable but for counsel’s events which in unfolded the hours after the errors, unprofessional proceeding up crime to the time his arrest. The would have been different. It is not habeas court found these statements admissi enough petitioner for the to show that the interest, ble against as admissions SDCL 19- different, verdict would have been he must 16-3, they and on the basis were not more show ‘that the counsel’s errors were so prejudicial probative, than they nor were cu deprive serious as to the defendant aof mulative, or misleading. trial, SDCL 19-12-3. fair a trial whose result is reliable.’ Lykken’s appellate closing habeas brief arguments refers tor’s reference in appeal only direct claiming prosecu- issue as one statements that peni- he would not return to the detailing torial misconduct without exact na- brief, tentiary. Lykken reply has not filed a see alleged ture of the misconduct. The State’s brief 23A-32-14, disputing 15-26A-62 and that prosecutorial advises this Court the misconduct this constituted the basis of his claim. argued on prosecu- direct involved the Strickland, custody at at two the sher- U.S. 104 S.Ct. from officers Ford, Here, simply it as in was Hopfinger, 511 N.W.2d at 847. iffs office. for the to alter sen- too late court the oral 102, 104 Leapley, 521 Fast Horse v. N.W.2d Bucholz, Similarly, tence. in this court held (S.D.1994). Leapley, also Freeman v. See brevity lapse of one-hour between 615, 616 Other illegal the initial and the resen- appellate have trial counsel and courts held tencing when was immaterial the defendant standard when determin counsel the same already custody of a sheriff. was claim. See ing an ineffectiveness counsel at 403. N.W.2d (Ind. State, Kirby N.E.2d v. App.1990). Although I am not adverse to over- [¶ 33.] (see at ruling my dissent 1996 SD Sieler statements [¶ As contested 28.] ¶¶ 483-85), 25-33, 554 N.W.2d at it at properly as ad were found to be admitted necessary be to do so because the issue not against 19- interest under SDCL missions case whether was not his sentence probative prejudicial 16-3 and more increased, illegally was rather 19-12-3, Lykken has failed to under SDCL in- parole illegally enhanced or grounds was seek under which he show ¶ 10, creased. Id. at 480. N.W.2d find, there ing relief have merit. We cannot fore, specially I also prejudiced by appellate 34.] write relation [¶ he was ¶ 4, authority point corpus habeas reaches supporting to cite out that counsel’s failure error, error, jurisdictional all argument appeal of this iss constitutional in its on direct 21-27-16(1) through “causes” listed in SDCL ue.4 detentions, illegal including other the writ of 29.] We affirm denial of [¶ resulting comply failure to those from corpus. habeas statutory procedure.” “substantive Black Class, 1997 SD MILLER, C.J., and AMUNDSON J., (Sabers, (collecting concurring specially) KONENKAMP, JJ., concur. cases). SABERS, J., 31.] dissents. SABERS, (dissenting). Justice I Issue 1 32.] dissent on as the

[f sentence. improperly enhanced the oral 1997 SD 34 orally The trial court sentenced the defen- BOEVER, John Plaintiff W. rape and to concurrent dant sentences Appellant, later, in viola- kidnapping. Fifteen minutes Bucholz, 402-03 and tion of 403 N.W.2d at OF BOARD ACCOUN- SOUTH DAKOTA 266-68, trial court Casey Peterson, Chairman TANCY sen- improperly enhanced concurrent Board Accoun- of the South Dakota making them tences consecutive. Appellees. tancy, Defendants and originally fact that trial court intended *8 sen- consecutive rather concurrent 19415. No. tences, sen- and made a mistake at the oral Supreme of South Dakota. Court tencing, immaterial 'under Bucholz late May 21, we held that it was too Ford. on Briefs 1996. Considered modify for the trial court to an oral sentence Dec. Reassignment 1996. On prisoner suffers confinement once some Decided March at custody sheriff. of a supra majority opinion, 267. As noted 1, immediately sentencing, note after permitted to wait for his counsel Lykken, 484 at 875- three oth- tion sentence.

4. We note the direct addressed length affirming Lykken's convic- er issues court's which notes fied to make a counsel he desired further record. neglected pronounce in the record. And kidnap- that is as follows: That correction note the State habeas court that informed offense, ping stays as it was entered. With trial, felony there were the time of two other rape respect sentence on the the first pending against Lykken, involving actions one years, degree, was 100 and I want the sentence present involving the victim in the case and one runs the record to show that sentence consecu- grand jury victim in which a had different court, tively. the intention of this That was Lykken prior trial. indicted to this court, therefore, State, simply custody, per and I in separate felony prosecutions. three that was the notes of this neglected to make that reference the record. why no the defendant I see reason has been sentencing of The full text court's com- prejudiced by judg- this late amendment of the reconvening upon court ments are as follows: proce- It ment this court. is a and sentence of seated, right, you will have to be there is a All I needed immediate dural matter which felt to make record. correction I want on the And that Mr. attention and correction. you stay. want [The Please sit down if course, two, Thompson, I I the other think was directed record reflects this at the victim consecutive, is did were the bur- indicate standing who were still at the back and others glary simple assault. courtroom.] of the The record should show fact, two-year sen- In the trial court ordered adjournment that after it was indicat- simple conviction run me, tence on the assault question ed to or the was made as to discrepancy concurrently. is not an issue This or not the sentence on the consecutively appeal. degree on habeas first offense is to run one-year requirement added); (emphasis order had omitted a see also United States v. (8th probation open Cir.1994); Tramp, and the defendant was told 30 F.3d proba- States, court that order meant he was on Holloway v. United 960 F.2d (8th year, Cir.1992) tion for one the court’s clarification (holding if the actual oversight order was a valid correction of an judgment ambiguous, verbal the intent of omission, authorized under SDCL 23A- sentencing be construed from 31-2. pronouncement.); sentencing entire Raftis, United States v. 427 F.2d proce state rules of criminal [¶ 11.] Our (8th Cir.1970) (stating “impreciseness mere dure, 23A, adopted were from the SDCL Ch. language negate will not the court’s obvi- Federal Rules of Criminal Procedure. State intent.”). ous SDCL 23A-31-2 is identical to Federal Rule recently [¶ 13.] We have held that: addressing Criminal Procedure 36. if sentencing patently court was not purpose of Rule federal courts have noted intent, clear at the oral as to its “Rule 36 was intended to allow correction of guidance interpret there is the intent. errors, clerical not to allow reassessment of orally An pronounced sentence does con- the merits of an earlier decision after the however, judgment, trol over the written if time for reconsideration or ha[s] clear, the verbal sentence is not intent Jones, elapsed.” United States v. 608 F.2d