Wabasha v. Leapley

mаy succeed sen- on tion of 22-30-6. Wabasha was Before SDCL counsel claim years in Dakota assistance of tenced to fifteen the South an ineffective two-prong test stated in Penitentiary. claim is he must fulfill the Wabasha’s First, 466 U.S. Washington, he the sen- v. two-fold. claims Strickland (1984), by the trial violated his 104 S.Ct. 80 L.Ed.2d imposed performance was rights as counsel’s prove Fourteenth Amendment that trial Sixth and states, here—in part: he is convicted oth- offense of which 1. The trial court it, words, there was the circumstanсes of er Looking strictly background, at his in terms inflicted, used, convictions, injury weapon there was no prior of cases, and in terms of those no aside, trauma, ultimately which were set the amount the emotional obtained, other that added). right. Might givе as well him the (emphasis State is money looking nature of the maximum. But at the perfor Spencer supra, the deficient deficient and Catch The 727 F.2d 761; petitioner’s defense. prejudiced Papajohn, mance Washington, supra; Boykin (8th Cir.1983). during Strickland F.2d 760 Disclosure (S.D.1991); Leapley, 471 N.W.2d sentencing of information on which the sen Solem, supra; Roden v. Gross v. tencing generally court relies is sufficient (S.D.1988); v. 431 N.W.2d 665 Luna So satisfy requirement to the notice of due lem, (S.D.1987); 411 ‍‌​‌‌​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​​‌‌‌‌​‍v. N.W.2d 656 Jones States, v. 578 F.2d Orner United State, (S.D.1984). 353 N.W.2d 781 (8th Cir.1978). 1276 presumption There is a that counsel object Trial counsel did not to the competent petitioner proves was until during sentencing state’s comments relat Solem, supra. v. Fur otherwise. Gross ing gun shop to the theft.2 Trial counsel ther, guess “it is not our function to second object did also not when the trial court experienced attorneys the decisions of trial upon commented the same crime.3 Waba- regarding matters of trial tactics.” Roden charged sha had not been crime. Solem, 667, supra, quot at v. 431 N.W.2d However, given the facts that 705, Walker, ing, v. 287 N.W.2d 707 State presided court had over and heard the evi (S.D.1980). in jury gun shop dence of the argues rep- that trial counsel’s Wabasha and drew its own conclusions to the sworn resentation deficient trial coun- was whеn there, testimony of the witnesses was it object sel failed to to the comments of the object unreasonable counsel did not to regarding state and the trial court a crime the state’s and the court’s comments? for which he had neither сonvicted nor been objection That would have caused the trial scope inquiry in arrested. Our is stated court to delve farther into the circum Roden v. 431 N.W.2d at 667: surrounding stances a for which making Generally, the or failure to make may may or not have in been objections motions and are trial decisions ‍‌​‌‌​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​​‌‌‌‌​‍given opportuni volved. Wabasha was an within the discretion of trial counsel. ty speak lengthy to and made a statement Anderson, (S.D. State v. 387 N.W.2d 544 to the court. He chose not to commеnt on 1986); Tchida, State v. 347 N.W.2d 338 sentencing contest the state’s or the (S.D.1984). general This rule will not concerning gun shop court’s comments however, apply, where trial counsel’s ac theft. reasonably tions cannot relate to strategic clearly and are decision con sentencing It is well settled that ‍‌​‌‌​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​​‌‌‌‌​‍a trary competent to the actions of counsel may court has wide discretion what it circumstances, (footnote in similar omit consider, “largely unlimited either as to the ted). consider, may kind of information he or the may source from which it come.” process requires

Due United a defendant Tucker, 446, supra, accuracy who contests the of factual infor States v. 404 U.S. at 92 591, 596; accord, upon by sentencing mation relied сourt S.Ct. at 30 L.Ed.2d at be given opportunity explain supra, an to rebut or Papajohn, United States v. 701 (information that information. United States v. Collins F.2d at 763 which a sentenc- reads, sentencing transcript part, Gary’s Shop robbery. 2. The four hours after the Gun pеople apprehended. Two were never The just briefly MR. REEDSTROM: I want people State feels one of those was the defen- upon touch another case that the feels State dant, Elroy Wabasha. that this defendant was involved in. That is Gаry’s Shop Gun case with Donald Stack- states, part, 3. The trial court ‍‌​‌‌​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​​‌‌‌‌​‍days er. That offense was committed several I, however, after this offense. And the car that was in- am familiar with his record. And Gary’s Shop volved in that Gun case was also I am familiar with evidence involved in also Belong’s gun shop jury the car used in this case. to Donald theft. I sat on the trial on girl strong opinion Stacker's friend. The facts I km the show the that case. And defendant, least, Gary’s Shop Gun case that there were two that this to sоme extent at people probably other with Donald Stacker at the time was involved in that offense. And they probably greatly were arrested —and he was arrested involved in it.

613 given opportunity respond an includes criminal not nor an mаy consider has the defendant rebut contested factual in- activity which Grosh, v. State relied prosecuted); formation been v. (S.D.1986); through hearing. N.W.2d Attached hereto Ellef 496; son, supra, 287 N.W.2d part hereby this reference made is Carsten, (S.D.1978). copy ORDER DENYING PETI- upоn by sen relied Factual information REQUEST TIONER’S FOR HABEAS an indicium of tencing court must have request Note that CORPUS. “... allegation. reliability mere beyond hearing.” require- denied without This Bear, Spencer The Collins Catch The ment under Grosh, 761; State v. supra, 727 F.2d Cir.1984). F.2d (out supra, 387 N.W.2d at of court The Bear case arose from this Catch the be consistent with must statements The Bear In Court. the more reli truth). There are few sources Eighth held “Factual matters con- Circuit a jury than trial. able sentencing] must have some sidered [at reliability beyond minimal indicium of mere not receive the maximum Wabasha did years twenty-five allegation.” which the sentence of Instead he was sen- recommended. state paragraph As can note in the first one of in years to the South Dakota tencеd fifteen opinion, majority the circuit court is- the Penitentiary. the When State cause, probable by a certificate of sued theft, gun shop the court made reference to 21-27-18.1, day of on the 30th virtue SDCL only passing. in record shows it did so to was limited September, which of reasoning the for the sen- that the bulk of question(cid:127) question this was: came from other factors which were err, denying the circuit in Waba- Did by considered the court. of cor- application sha’s for writ habeas recоrd, on the coun- We hold that based pus appointed after court counsel’s motion object the failure to to comments sel’s withdraw, granting without Wabasha to not unrea- court and the state was I was hearing? maintain that Wabasha sonable, reach the and therefore do not entitled, is denied due Wabasha prong of the test under Strickland second my opinion, to raise his constitutional Washington. in a successive habeas application claims Affirmed. (1987). This 21-27-16.1 can under SDCL if the cоurt “... finds only be asserted MILLER, C.J., and WUEST and rea- for relief asserted which for grounds SABERS, JJ., concur. inadequately were omitted sonable cause application.” In addi- original in the J., raised HENDERSON, dissents. Gregory v. statute, see to this tion DOBBERPUHL, Judge, for (S.D.1989), support- as J., AMUNDSON, disqualified. Wa- authority. contends because HENDERSON, (dissenting). Justice an address had basha that, brief, nothing per its “... the facts trial court upon an Based remotely sup- would even holding in record ... this to the Sands, (8th Cir.1990) contention port ‍‌​‌‌​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌​‌​‌​‌​‌​‌‌‌‌​‌​‌​​‌‌‌‌​‍I re- Petitioner’s F.2d 304 [Wabasha’s] in this that, his involvemеnt had he denied spectfully Essentially, at the sen- dissent. matter, have af- not allega- the trial court would tencing hearing, the made an designed to elicit (State procedure forded him against that Wabasha tion Wabasha will read the you truth.” If “feels”) people who were was one two court, it obvious open is court’s remarks in apprehended strong in a arm never directly contradict Falls. had those remarks shop in Sioux gun my It is belief advocacy. appellate crime” wоuld be state’s no that this “other notice Sands, F.2d 304 that pro- not afforded due and was considered Cir.1990) position. supports Wabasha’s respect cess with thereto. Wabasha Sands, court, In open by the trial court prison (c) strated record and wants bringing him asked about cocaine into to turn his life around to constructive activ- Dakota, times, many expresses, South how etc. At ities. He as he stands before time, court, Kean, record, Judge this the district on the training he wants to take following рrevious colloquy and turn his I life around. which Can Wabasha be referred, rehabilitated? then stated that I don’t by pre- have know. But he has certainly positive taken steps vious sentence the district court knew that do so. His cocaine, imprisonmеnt ultimate amount of brought Sands had is the same Board procedure Charities and Corrections— a number of [into state] judiciary; but, Here, long before the times. the circuit court soli- followed the tary years of confinement set in—there proсedure Sands, as in same Sands. In legal concept one I escape: cannot Waba- the federal district court relied evi- sha, under the I above, law have written independent dence obtained an pro- from assuredly proсess entitled to a due hearing ceeding, giving without Sands notice. and I abide the dictates of Catch The Same here—no notice to In Wabasha. Sands, Gregory, brief, Townsend. state’s it condemns Wabasha for not responding allegation. to the circuit court’s Here, the circuit court relied on mere effect, In it denounces Wabasha for not allegation without offered indicia of objecting saying something. Not Thus, reliability. —for this case should be re- lawyer’s duty out, fair. It was his speak manded tо the circuit court for an eviden- object, client, represent and his Wabasha! tiary hearing. I join majority cannot Burke, 736, 741, Townsend v. 334 U.S. 68 opinion. Further, appears it to me that 1252, 1255, (1948). S.Ct. 92 L.Ed. 1690 His since pro Wabasha first filed his se habeas lawyer professional; was the Wabasha was in May South Dakota has an Indian male with little education. In yet pleading to file a in Wabasha’s case. lawyer’s plea both his plea, and Wabasha’s Rather than to see this case reversed I arguments noted of thе State that Waba- Eighth Appeals, sup- Court of I sha stereotyped as a drunk lazy, plicate my Brothers on this Court because (1) was later countered pointing out major deficiencies sub- Investigation Presentence revealed that the error, stantive to remand this case to the Penitentiary expressed good he was a circuit court so that Wabasha has an prisoner (2) that Wabasha embraced Jesus respond to the circuit Christ and wanted to amend his life. He court’s reliance on evidence taken at an- said: “In the name of Jesus my- throw [I] other sentencing hearing. self mercy Later, on the of the Court.” he expressed stopped he ATTACHMENT using drugs and alco- Again, hol. “My Jesus, he said: faith in STATE OF SOUTH DAKOTA know, you I didn’t instantly holy. come :SS know, You аdjusting takes a while to that COUNTY OF MINNEHAHA faith, you know. It’s a narrow road that you’ve got to walk. But this is what I have IN CIRCUIT COURT choose and this I is what have learned from SECOND JUDICIAL CIRCUIT being jail.” (Emphasis supplied mine). Elroy Wabasha, Petitioner, L. It is difficult for change man to his way entire of life and it is pаrticularly vs. change difficult for a man to religion. Leapley, Walter Warden of the South Native Spir- Americans believe in the Great Penitentiary, Respondent, Dakota it. Judge Kean, Wakan-Tonka. 90-1251 CIV. judge, expressed that he could not ORDER DENYING PETITIONER’S gauge dеgree sincerity of Wabasha. REQUEST FOR HABEAS Neither can I. But I express desire to CORPUS man, we have before us a who for all (a) purposes, intents and recognized has foregoing Findings Based (b) change changed need to has as demon- together Fact аnd Conclusions of Law previously by the mentioned Court herein. matter filed this of the documents all appointed counsel’s fur- 3.That that the Court the matters together with representation petitioner of the ther of, hereby it is judicial taken notice has terminated. this ordered Falls, Dakota this Dated Sioux South request petitioner’s 1. That day July, 1991. 24th denied Corpus hereby Habeas Writ of BY THE COURT: hearing.* without a Paul Kean /s/Gene Judge Circuit Court shall be detained 2. That the imprison- former custody to serve the and sen- the commitment ment under

* Emphasissupplied mine.

Case Details

Case Name: Wabasha v. Leapley

Court Name: South Dakota Supreme Court

Date Published: Nov 10, 1992

Citation: 492 N.W.2d 610

Docket Number: 17696, 17753

Court Abbreviation: S.D.