State v. Engelmann

96 838, 842-43, Any 122 L.Ed.2d 180 113 S.Ct.

ing rapes are similar. (1993)). house or bar would not from witnesses at the proving likely have aided Garritsen grounds for Garritsen failed to establish theory consent. granting application for writ of habeas that failure to This court has held corpus, and the decision of the trial court is is not desired the defendant call witnesses affirmed on the merits. of counsel where other

ineffective assistance the same facts. State witnesses testified to AMUNDSON, MILLER, C.J., and (S.D.1980). Walker, 705, 287 N.W.2d 707 v. GILBERTSON, JJ., KONENKAMP strategy “Unproductive trial does not neces concur. incompetent sarily ineffective indicate Brown, Id., citing State v. counsel[.]” Watkins, (S.D.1979); State v.

N.W.2d 848 (1971). 573,

S.D. 187 N.W.2d argues also trial counsel

Garritsen examining have interviewed the doc

should ques trial. Trial counsel did not

tor before prior he was

tion the doctor to trial but to the State’s files. He exam allowed access Dakota, Plaintiff STATE South ined medical records of the doctor’s examina Appellee, Interviewing and knew the results. tions produced have doctor before same information. The medical records were Gary George ENGELMANN, Defendant testimony and the the basis for the doctor’s Appellant. attempted Trial cross-examination. counsel testimony by to dilute the doctor’s cross- No. 19020. strategy His trial included us examination. physical findings attempt the doctor’s Supreme Court of South Dakota. in to show one woman consented to sexual considering

tercourse with Garritsen. 16, Argued Oct. 1995. issue, Supreme the Nebraska Court similar 27, Decided Dec. stated, “[T]he record discloses counsel necessary through had the information either statements,

copies police reports, or testi

mony proceedings.” in other State v. Hav (1986).

lat, 144, 148 Neb.

Garritsen has not shown ineffective assis Strickland,

tance of counsel. See 466 U.S. 80 L.Ed.2d 674.

7. Cumulative Effect of Trial Errors.

Finally, argues Garritsen the “cumu-

lative of trial effect” counsel’s errors resulted prejudice requiring reversal. We dis- counsel,

agree. Trial counsel functioned as rights relatively

protecting Garritsen’s errors, clarity

few even when viewed with the hindsight. Looking totality cir- trial, “[t]he

cumstances verdict fundamentally

case is neither unfair nor is it (cit- Jenner,

unreliable.” 521 N.W.2d at 432 Fretwell, 364,-,

ing Lockhart v. 506 U.S. Barnett, Gen., agree plead The State Atty. D. nolo contendere. Ronald Mark W. Gen., Pierre, plain- alleged came Atty. refused. Then another victim Campbell, Asst. prosecutors duly Engel- appellee. forward and notified tiff and day grand attorney. mann’s A before the Farrell, Strange, Sidney Strange of B. convene, jury coun- was scheduled defense P.C., Falls, Casey, Sioux for de- & Johnson Engelmann sel advised the State would enter appellant. fendant i.e., guilty plea, plead an he would but his innocence. See North Carolina maintain KONENKAMP, Justice. 160, 25, Alford, 400 U.S. sentencing to moved before Defendant (1970).1 L.Ed.2d 162 degree guilty to second withdraw court’s denial of rape. Finding the circuit arraign- appearance At initial court discretion, we reverse the motion an abuse of Engelmann and ment on and remand. lawyer signed reviewed and Facts by agreement prepared The cir- State. thoroughly Engelmann of cuit court informed physician a Gary George statutory rights his constitutional and as re- Dakota, Miller, County in Hand Clinic South (Rule 11(c)). by En- quired 23A-7-4 SDCL gynecological examina- frequently performed gelmann’s attorney assured the court his 1,1994, exam, July during pelvic a tions. On understood both the nature of the client Engelmann’s examining patient a ran out statutory charges and his constitutional and help room to seek from other members of the rights. He added: raping accused him of her. clinic staff. She resulting investigation, In the the State note, Honor, I Your that we have discussed patients several more female with learned of great length. very It a this at is difficult charges against Engelmann. Prose- similar clearly Engelmann. for Mr. He decision Engelmann’s attorney of cutors informed option consider his of trial. And that did any that these additional accusations and totality of the he does believe under the plea bargaining should occur before the circumstances and for reasons that will be grand jury August convened on in that further elaborated August Defense counsel traveled to Pierre on is, fact, in his best And I this interests. 18,1994 to review the transcribed interviews. Engelmann think Mr. has been made By agreement photocopies no he made attempted aware that I have not to influ- statements, attorney these but the took notes another, him to make one choice or ence convey Engelmann. so he could the details attempted present op- fully The State informed defense counsel of op- and that he tions available chose all witnesses it intended to call. tion. Prosecutors offered Engelmann pleaded guilty degree to second exchange agreement: for a 22-22-1(2). rape. The court found SDCL degree rape one count of the second no Engelmann competent to enter the him, against other would be made will,” he did so “of his own free “without its to make but the State reserved duress,” knowledge rights full with whatever recommendation it penalties the maximum involved. SDCL thought appropriate. Defense counsel asked (Rule 11(d)). Finding 23A-7-5 delay convening grand jury to allow basis, adequately supported a factual Engel- to discuss the matter with more time accepted it: jury proceedings post- were mann. Grand Well, opportunity poned August August until 31. On 25 de- this court has had Engel- previously in to review Exhibits prosecutors counsel informed chambers fense through and cor- plead guilty, [Victim’s mann would not but would statement against may approved whelming Supreme a defendant 1. The United States Court plead jury by plead- option a decision that it be best to Defendant’s to waive a force guilty, maintained, ing guilty maintaining even if innocence is to avoid while innocence to obtain bargain. plea bargain. without the Over- more harsh result the benefit of favorable that, finding being you roborating reports]. It is a able to do I didn’t think represented would have choice but to send me to Mr. go prison I will by competent ample counsel. He’s had And something I I go over his alternatives and didn’t do. At that time judicial any, very those. I take notice didn’t have little information to consider man I got fact he is an educated make this decision on. When information, I degree; that he does desire further decided that there Doctor’s trial; gain feeling nothing he has was could sit still and let those by entering say things people to trial. And me note about without defending bargain myself. wrong his maximum make into this reduces years exposure years; decision. from 150 to $150,000 $25,000. fine of to only Engelmann it en- insisted was after express called to never tering lawyer his learned his he from he choosing in his words his reasons for to own “go by could not over these one one only plead guilty; “guilty” than the other pick apart” sentencing them and offer “no, spoke “yes, were either sir” or words he disputing all the victims’ evidence versions. response ques- sir” in the court’s various to confirmed, however, attorney tions. he had discussed with what the sentenc- ing proceeding entail. The trial would court later,

Three weeks before Engelmann’s claim of found misunderstand- date, Engelmann filed a to motion withdraw ing inadequate request and denied his hearing At plea. his on he October At plea. withdraw his the conclusion of the complained “misapprehension” about a suicidal, hearing, fearing he procedures. judge facts and When the in placed Engelmann custody. His mental him, questioned Engelmann admitted he un- condition was soon to become critical issue. arraignment, agree- derstood attorney, Engelmann Unknown to his had ment, rape charge rights and his as by therapists been mental treated two health explained during arraignment. to him his pleaded guilty. he before plea, Engelmann read for him- After his reports provided self the to the court to hearing expanded motion on an held reports substantiate a factual basis. Those 7, 1994, Engelmann, accompanied November just attorney were handed to before the his counsel, on men- new offered evidence Engelmann said had no but he time plea. Engel- tal entered status when he plea agreement, read them. Under the the mann testified he could “understand the alleged other could also consider the said, being [not] words were did aggravating victims’ statements as plea and all en- really understand the reports The its decision. on assertion, psy- ...” tailed. To confirm this given Engel- victims other were Majeres, chologist, Duane testified and attorney after the mann’s until Conse- Pesce, psychiatrist, Ulises Dr. submitted quently, Engelmann declared: Majeres Engel- treated letter. and Pesce thought I at the time that if I was able pleaded guilty. mann two weeks before he things you, my explain hope those They diagnosed “Major Depressive both go I would be that would not have to Psychotic without Fea- Episode, Severe way my family, prison. It would be a Majeres diagno- tures.” While conceded my my wife and kids and the rest of equivalent legal insanity, sis was family I saw what these statements Engelmann’s episode as a serious defined —when there, said on there was illness; suffering people from it sim- mental happen that that was unless was ply rational In his cannot make decisions. vigorous mount a more defense and able to elaborated, letter, patient “a suf- Dr. Pesce put witnesses and on cross-examine these episode expe- major depressive fering from a a trial. them, Among many symptoms. riences (cid:127) preva- you inability to think and concentrate is think —if seen these state- didn’t several they lent.” manifested and what had said and me not ments 30, 1994, disorder, twenty December accord- tenced on for this diagnostic criteria appeals following experts, including significant years He on the these loss, fatigue, diminished abili- weight chronic issue: indecisiveness, markedly di- ty to think or Did the trial court abuse its discretion activities, in all and exces- interest

minished refusing Engelmann to withdraw to allow sleep. sive guilty plea sentencing? Majeres made their res- or Pesce Neither decision-making impair- about his ervations Analysis family, or his known to ment arraignment, though attorney before the ‘abuse of discretion’ re “The term vacillating over what knew he was a discretion exercised to an end or fers to when he to enter. On justified by, clearly against, purpose not taking plea, Engelmann was two entered his Flying and evidence.” State v. reason Zoloft, milligrams of medications: Horse, (S.D.1990); 455 N.W.2d 607-08 Xanax, a minor anti-depressant drug, and Herndon, 917, 918 Herndon v. taking Engelmann began tranquilizer. (S.D.1981). guilty plea of a “The withdrawal Majeres August. testified medications imposition of sentence is within before the anti-depressant medicine would not be effec- the sound discretion of the trial court.”2 taking weeks after it. tive until three to six Grosh, (S.D. 505 State added, Engelmann’s medi- Dr. Pesce one of 1986). right No defendant has an “absolute your thinking “can cloud and slow cations guilty plea but the trial court’s to withdraw your thought process.” in the matter should be exercised ‘discretion countered with Dr. William withdrawal, The State liberally in favor of unless Grant, psychiatrist. Dr. a forensic Grant detrimentally appears that the State has re Zoloft takes three weeks to a confirmed plea prosecution of the lied and the ” help patient improve. He had month to thereby prejudiced.’ defendant has been from re- not interviewed (citations omitted). Id. at 505-06 “When de information, conclud- viewing the medical he ciding a criminal whether to allow defendant competent Engelmann was to enter his ed guilty] plea, the trial court [a to withdraw agreed perceived not have plea, but he would why plea look at the is must reasons clarity “with the mental situation sought request to be withdrawn and if the non-depressed person Engelmann’s would.” frivolous, obviously trial withdraw is “thought processes blunted would have been (citations grant court need not it.” Id. condition, removed, destroyed, by the omitted). explained, “usually but blunted.” Dr. Grant pretty person] “If depression [a obvious.” Here, prej the circuit court found no lot, it would have come out.” Yet talked disputed udice and the State has not acknowledged, Engelmann’s Dr. Grant finding.3 Thus our review is limited “yes” limited or “no” answers to the court on Engelmann’s request to withdraw whether “it isn’t to come out that only plea Engelmann need his was frivolous. some,

way. given But an to talk why state a tenable reason withdrawal should emerged.” I think it would have permitted, a on more than a be reason based facts, guilty plea a trial. Id. A Despite the trial court found mere wish to have cannot be founded on mere Engelmann’s request was based on whim or withdrawal Wahle, 521 again caprice.” him to “whim or State v. caprice and refused to allow (S.D.1994). plea. Engelmann was sen- N.W.2d withdraw his po- argument to with- 3. At oral the State mentioned 2. SDCL 23A-27-11 states: "A motion may draw a or nolo contendere be tential trauma to the victims should the only imposed imposi- withdrawn, before sentence is made certainly weighty concern. suspended; but to correct tion of sentence is appel- in the Yet this was not raised as issue injustice a court after sentence set manifest late briefs. judgment permit aside a of conviction plea.” defendant to withdraw his sup- advances four he potential punishment reasons reduced his from (1) port guilty plea: years years, $150,000 withdrawal his His to 25 the fine from $25,000, plea, which allowed him to maintain he immunity obtained (2) innocence, revocable; freely against his should be criminal acts known victims and specifics he misapprehended the the evi- unknown victims discovered before sen- Hence, against tencing dence and what he he date. we discard as meritless (3) dispute sentencing; could offer to it at argument he circuitous that be- family pressure innocence, was under financial and cause he continues to claim ability which his affected make decision should be to automatically allowed withdraw (4) interests; in his best his mental state on that basis. Such a rule would impaired ability to make rational deci- allow defendants enter a favorable bargain plea. sions when he entered his We review and then await the of a pre- results separately. report each assertion sentence before deciding whether to management

continue the Effective justice process our criminal such ma- bars 1. Alford Plea neuvering. always As he has maintained inno

cence, pled guilty, Engelmann even when he preserves Misapprehension reasons his claim innocence of Facts and Proce- jury to a if he chooses invoke it dure us, sentencing. Engelmann urges “Where record shows ‘cir therefore, to allow him to withdraw his Al cumstances as existed at the time right. reject as a matter of We ford standards, guilty plea, judged by objective approve view and the of rationale United reasonably justified [a mistaken defendant’s] (1st Kobrosky, v. States 711 F.2d 449 Cir. impression,’ a defendant must be held to 1983): any guilty plea, plea as with an Alford plea have entered full [the] without knowl cannot be withdrawn as a of matter course. edge consequences of involuntarily.” the and advantage “To bestow such unilateral Wahle, (quoting 521 at 137 N.W.2d United the legitimate goal accused would defeat a Crusco, (3rd 21, v. 536 F.2d States 24-25 justice system, our criminal which strives Cir.1976)(emphasis original). Engelmann prosecution hold the balance between the and misapprehended contends he specifics the prosecuted steady the and true.” Id. at 454. charges against the him and he was mistaken (1st also, Buckley, See v. U.S. 847 F.2d 991 in his belief about the evidence would be he Cir.1988)(cannot pleas willy-nilly), withdraw Alford present sentencing at hearing. allowed the denied, 1015, rt. 488 U.S. 109 S.Ct. ce misapprehension A of the facts be a (1989). 808, 102 798 L.Ed.2d permitting reason for of a withdrawal plea 322, An guilty plea, Walters, is no less S.D. State 48 325, 171, (1925). Walters, notwithstanding assertions of innocence. It 172 N.W. In allows a the defendant avoid the defendant claimed he induced was the plead guilty by risk of trial and obtain benefit of a promised the recom bargain favorable “even if he is unwill mendation. Id. Here no actions prosecutors participation Engelmann or unable to admit his in the or led into his al constituting Alford, leged misapprehension. acts the crime.” Engelmann dis Engelmann U.S. at attorney 167. cussed the with his assured and reaped agreement: the fully benefits the court he understood.4 Yes, is, September arraignment, 4. the the In COUNSEL: Your Honor. following exchange place: took you today COURT: Mr. are here Butler, you COURT: Mr. have been over the your to enter a own free will your nature of the with client and his accord? statutory rights constitutional and and the vari- Yes, sir. DEFENDANT: penalties ous involved? plea agreement, COURT: than have Other this Yes, have, COUNSEL: Your Honor. any get you promises threats or been made this COURT: And is the full extent of the one to enter a or another? agreement? whelming and would have convinced him to he did know Engelmann states not jury. Based told him chances with a on accusers about take his the details his all record, agree our we with the pled on review of when he given to the court establish reports The court that this evidence nei- district attorney given to his exculpatory had particularly factual basis been nor nor ther fresh arraignment, Engelmann but government. before previously withheld had to read The he no time them. claimed F.2d. Kobrosky, 711 at 456. The circuit required any witness is not to disclose State court could not articulate found be reports or defendant statements any facts which “misapprehended” material Jury. to the Grand See fore their submission plea.5 justify a would withdrawal attorney Engelmann admitted his 23A-13-6. orally the contents of these discussed had proof he could offer reports enter investigative hearing at the his innocence not plea, but he was told all ing his when it became clear to him the reports. agree in the specifics contained We permit would not kind of evidence dur- analysis Kobrosky, where with the outlined ing sentencing, felt no choice he he had made: similar contention was guilty plea to withdraw his and demand a subjective assumptions trial. argued compurgatorial [Defendant] State, court, attributed cannot be which, light, had some come evidence attorney. actuality, he began contended, even kept previously been to fear his sentence would be more severe wraps by government. He now under pled guilty, expected than he when he cer- would made claims that have tainly seem a deficient excuse for withdrawal.6 government’s case less over- No, and cross-examine these sir. ous defense witnesses DEFENDANT: any put a trial. You sentence on COURT: understand you by your attorney or the didn't think—if seen these statements recommended either being attorney binding prosecuting and what had said and me able on that, Court; any particular you have agreed to do I didn't think would I haven't sen- but to send me to And will choice tence? go prison something didn’t to for I do. Yes sir. not DEFENDANT: any, very At time I didn’t have little infor- the got I to make this decision on. When following exchange mation between the court and 5. The information, decided that this further I there place took at the October way people I could sit still and let those was hearing: things say defending these about me without What did he misunderstand is what COURT: wrong myself. I was to make decision. getting to. know I'm I want to what misun- derstanding misrepre- misapprehension or findings following 6. made the of fact The court sentation, whatever it was. on claims: good share these DEFENDANT: That (1) claiming prosecution, the penetration That neither the Defen- women were not sexual during pelvic got the [led] And the dant’s counsel nor the Court Defen- the exam. when I said, alleged misapprehension my his and to believe statements saw what had dant legal making was this ramifications of the reaction was when I about the initial stating guilty hearing. I was that I was is not (2) able to That the Defendant was not articu- them. entering misapprehensions gave why these plea for the late he had as to I was this benefits trial; me, having go having put legal not to the ramifications of the hear- not to to trial; put ing. my family through having to (3) through everybody else with it at the time of the the Defendant involved That acknowledged waiving that he he was knew trial. jury examine thought at that if I able to trial and the and the time was you, my hope explain things examine his accusers since he noth- those cross go gain that I not have to from trial. would be would (4) family, reality my did not way my be a That in Defendant “mis- It would wife family anything, things my apprehend” two and the I saw rather kids rest of —when there, happened: on what these statements said having hap- a. That the Defendant now seen the there was no that that print, vigor- allegations the Court pen to mount a in believed unless was able more Family 3. Pressures diced withdrawal of the En- plea, Financial gelmann should have been allowed to with- Engelmann claims he was under draw it. The court’s conclusion to the con- pressure family from and friends to resolve trary abuse was an of discretion. Moreover, short of trial. finan matter Reversed remanded. pressures family cial loomed because over clinic, wife, physician at same could legal problems. not work until he resolved MILLER, C.J., and SABERS and rejected The circuit court consider GILBERTSON, JJ., concur. ations, concluding greater he was under no AMUNDSON, J., specially. concurs

pressure persons charged than other itself, felony. committing By a serious we AMUNDSON, special- (concurring Justice finding. in see no error ly). Grosh, In State v. 505-06 Arraign- 4. Defendant’s Mental Status at (S.D.1986), this court held: ment The withdrawal of a holding Engelmann’s mental state imposition of sentence is within the insufficient withdraw sound discretion the trial court. SDCL Lashwood, cited State 384 N.W.2d 319 23A-27-11. There is no absolute (S.D.1986), post-conviction appeal, not a guilty plea, but withdraw a the trial court’s pre-sentence plea withdrawal Under case. ‘discretion the matter should be exer- Lashwood, plea involuntary to render a liberally withdrawal, cised favor un- debilitating mental condition must be so appears less it the State has detri- defendant “unable consult with counsel mentally pros- relied and the proceedings.” or to understand the Id. at thereby ecution of the defendant has been stringent 321. A applies less standard (Citations omitted.) prejudiced.’ (Empha- pre-sentence requests: the court’s discretion added.) sis liberally should exercised favor with case, question In this there is no that the drawal, prejudice especially when no to the motion to prior withdraw was submitted Wahle, State is shown. N.W.2d sentencing, regard- dispute nor is there ing prejudice. diagnosis Depressive A of “Severe disorder, Episode,” recognized mental re Further, Engelman always has asserted Engelmann’s decision-making ability. duced type his innocence as evidence psychiatrist, Even though the State’s he disa entered, to-wit: the which was Alford greed depth Engelmann’s impair with the of accepted by prosecu the trial court and the ment, dispute diagnosis, was unable to accept majority’s position tion. can but confirmed blunted not equate does to an clarity. processes and mental diminished We automatic to withdraw same. On the difficulty agreeing find with the circuit hand, entry type other that, alone, standing the other reasons important should be an factor exercis when Engelmann gave to withdraw ing were liberally. discretion United v. States inadequate. considering Boone, (8th totality Cir.1989); Yet 869 F.2d 1089 United circumstances, Barker, (D.C.Cir.1975), mental serious disorder States F.2d was not a frivolous excuse. As left the State cert. denied 421 U.S. (1975).

undisputed finding preju- it will not be L.Ed.2d 682 friends, argument family, hoped public believe an to look at his and the as he had rape something less than a and that situation just public legal it would in that be knows will, fact, he person treated as other it, thus fiction when see the Defendant rape. charged with change now mind wants as to the plea, guilty b. That the Defendant's Alford guilty, accepted but not been ease, type potential years of for 150 confinement particular In this $150,000 in fines. when condition mental certainly provide together a basis considered grant-

for an of liberal discretion exercise What does the withdrawal.

get opportunity, as from this? The a benefit minimum, all

at a to face conviction on

counts the State chooses to file which

Case Details

Case Name: State v. Engelmann

Court Name: South Dakota Supreme Court

Date Published: Dec 27, 1995

Citation: 541 N.W.2d 96

Docket Number: 19020

Court Abbreviation: S.D.