#27454-a-JMK

2016 S.D. 16

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA


                                   ****

HERMAN KLEINSASSER,                       Petitioner and Appellant,

      v.

DOUG WEBER, Warden,
South Dakota State Penitentiary,          Respondent and Appellee.


                                   ****

                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                      SULLY COUNTY, SOUTH DAKOTA

                                   ****

                THE HONORABLE KATHLEEN F. TRANDAHL
                               Judge

                                   ****

AL ARENDT
Pierre, South Dakota                      Attorney for petitioner
                                          and appellant.


MARTY J. JACKLEY
Attorney General

CRAIG M. EICHSTADT
Assistant Attorney General
Pierre, South Dakota                      Attorneys for respondent
                                          and appellee.

                                   ****

                                          CONSIDERED ON BRIEFS
                                          ON JANUARY 11, 2016
                                          OPINION FILED 03/02/16
#27454

KERN, Justice

[¶1.]        Herman Kleinsasser, Jr., (Kleinsasser) pleaded guilty to first-degree

manslaughter on May 27, 2009. He was sentenced on August 31, 2009, to 80 years

in the South Dakota State Penitentiary and ordered to reimburse Sully County for

costs of prosecution in the amount of $88,611.79. Kleinsasser filed a petition for a

writ of habeas corpus raising six issues for review. After a two-day evidentiary

trial, the circuit court denied his claims. Having received a certificate of probable

cause from the circuit court, Kleinsasser presents three issues on appeal. First,

Kleinsasser alleges that his trial counsel was ineffective. Second, he contends that

the State of South Dakota violated the terms of the plea-bargain agreement. Third,

Kleinsasser alleges certain errors occurred during his change-of-plea and

sentencing hearings. We affirm.

                                  BACKGROUND

[¶2.]        On the night of January 28, 2009, Sharon Kleinsasser was in the

kitchen of her home. Her husband, Herman Kleinsasser, Jr., entered the kitchen

and shot her twice with a 12-gauge, semi-automatic shotgun, once near her

shoulder and once in the head, killing her. Kleinsasser then shot himself once in

the head. This third shot hit the ceiling, causing the kitchen lights to go out. All

six of the Kleinsassers’ children, ranging in age from 1 to 15 years, were at home

during the shooting. Their 11-year-old daughter, S.K., testified before a grand jury

that she saw her mother lying in a pool of blood after the first shot was fired, while

the lights were still on. She also testified that she heard her father say, while

standing over her mother, “I’ll do to you what you’ve been doing to me.” S.K. heard


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a second shot as she ran out of the house. At least four of the children saw their

mother’s dead body lying in a pool of blood after the shooting. One of the older boys

took the gun away, threw it outside, and called 911 for help.

[¶3.]         Upon arrival, law enforcement arrested Kleinsasser and took him to

the hospital in Pierre to receive medical care for his gunshot wound. A sample of

Kleinsasser’s blood was taken at the hospital and revealed alcohol, Alprazolam, and

Codeine in his system at the time of the shooting. He was transported to Rapid City

Regional Hospital to receive additional care. In February 2009, Kleinsasser was

released from the hospital to the county jail. He was indicted for first-degree

murder, second-degree murder, and first-degree manslaughter. SDCL 22-16-4(1),

-7, -15(3).

[¶4.]         Attorney Wade Reimers was appointed to represent Kleinsasser and

filed motions in support of his defense. On February 11, 2009, Reimers filed a

motion for discovery and for appointment of an investigator. The court granted

both motions and appointed Charles Draper, a former FBI agent, to serve as

Reimers’s investigator. On February 24, 2009, Reimers filed a motion for

appointment of a psychiatric expert. Dr. Stephen P. Manlove was appointed to

assess Kleinsasser’s sanity at the time of the offense and his competency for trial.

Reimers filed other motions, including requests for a gag order, for pretrial

designation of evidence, and to extend deadlines.

[¶5.]         Reimers and Kleinsasser met and discussed potential defenses, the

discovery information provided by the State, the mechanics of a jury trial, and

potential plea-bargain agreements. The State extended a plea-bargain offer on


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March 5, 2009. In April 2009, Dr. Manlove issued his report. In formulating his

opinion, Dr. Manlove reviewed the investigative report, charging document, and

Kleinsasser’s medical records. He interviewed Kleinsasser on three occasions and

performed a mental-status examination and competency assessment. Based upon

this information, Dr. Manlove rendered three opinions. He determined Kleinsasser

was sane at the time of the shooting and that he was competent both to understand

the nature of the proceedings against him and to aid his attorney in his own

defense.

[¶6.]        Kleinsasser accepted the State’s offer and signed a written plea

agreement on May 8, 2009. In exchange for Kleinsasser’s plea of guilty to first-

degree manslaughter, the State agreed to dismiss the first- and second-degree

murder charges and to recommend a sentencing cap of 50 to 80 years. On May 27,

2009, an arraignment and change-of-plea hearing was held before the Honorable

John L. Brown. Both parties signed the original plea agreement and presented it to

the court. The court advised Kleinsasser of his constitutional and statutory rights.

Kleinsasser pleaded guilty to first-degree manslaughter. He signed a written

statement setting forth the factual basis for his plea. The court ordered a

presentence investigation and scheduled a sentencing hearing.

[¶7.]        After the entry of his plea, Kleinsasser’s family retained Dr. Renner to

evaluate Kleinsasser. Dr. Renner issued his report on August 25, 2009. Dr. Renner

concluded “within a reasonable degree of medical certainty, that Mr. Kleinsasser

had significantly impaired judgment from the ingestion of alcohol, Alprazolam, and

Tylenol #3 during the time prior to the event coupled with his increasingly


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heightened state of anxiety and worsening depression.” He went on to opine “that

Mr. Kleinsasser likely had a marked distortion in perceiving reality at the time of

the shooting.” The report was given to Reimers prior to sentencing.

[¶8.]         The sentencing hearing was held on August 31, 2009, in the Sully

County Courthouse before the Honorable Lori S. Wilbur. Immediately prior to the

hearing, Reimers made a motion in chambers for a continuance, which was denied.

The court advised Kleinsasser that the maximum sentence for first-degree

manslaughter “could be up to life in the South Dakota Penitentiary and a $50,000

fine, or both of those things, plus restitution.” Kleinsasser confirmed his

understanding of the potential maximum sentence and the terms of the plea-

bargain agreement. Kleinsasser did not move to withdraw his plea.

[¶9.]         Reimers urged the court to consider a sentence at the “lower end of the

recommendation” and discussed parole eligibility upon receipt of a 50-year sentence.

The State argued for a sentence “at the maximum end of our agreed-upon window

and that being the 80 years.” The State also presented a spreadsheet of expenses

and requested reimbursement for Sully County’s costs of prosecution by way of “a

lien against the defendant.” When asked by the court, Reimers stated his client had

no objection to the requested costs. The circuit court imposed an 80-year sentence

and ordered Kleinsasser to reimburse Sully County for costs of prosecution in the

amount of $88,611.79. In September 2009, an amended judgment of conviction was

filed. 1 The amended judgment provided that “the Defendant shall be liable to Sully



1.      Kleinsasser filed a direct appeal of his conviction. Upon review, we issued an
        order of summary affirmance.

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County for restitution in the amount of . . . ([$]88,611.79), and any subsequent court

appointed attorney fees incurred, as well as any additional medical or jail costs. A

statutory lien for said restitution exists against Defendant’s property.” (Emphasis

added.)

[¶10.]       In April 2012, Kleinsasser filed a petition for writ of habeas corpus

alleging ineffective assistance of counsel. In January 2013, he filed a supplemental

petition asserting the circuit court failed to canvass him regarding his rights under

Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), at

sentencing and failed to advise him that he could be required to pay restitution.

Kleinsasser also claimed that the State violated the plea agreement by requesting a

sentence of 80 years and “restitution over and above fines, court costs, and court

attorney fees.”

[¶11.]       A two-day court trial was held on October 21–22, 2013, on

Kleinsasser’s habeas claims. In addition to his own testimony, Kleinsasser

presented expert testimony from attorney Steven Haugaard. The State presented

expert testimony from attorney Max Gors and called Sheriff Bill Stahl, Reimers,

and Special Agent Guy Di Benedetto to testify. Upon consideration of the parties’

posthearing briefs, the circuit court issued a memorandum decision denying

Kleinsasser’s petition, followed by extensive findings of fact and conclusions of law.

[¶12.]       Kleinsasser raises three issues on appeal:

             1.     Whether Kleinsasser’s counsel was ineffective.
             2.     Whether the State violated the plea-bargain agreement.
             3.     Whether the sentencing court erred by failing to advise
                    Kleinsasser of his Boykin rights.


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                             STANDARD OF REVIEW

[¶13.]       “Our review of habeas corpus proceedings is limited because it ‘is a

collateral attack on a final judgment.’” Vanden Hoek v. Weber, 2006 S.D. 102, ¶ 8,

724 N.W.2d 858, 861 (quoting Crutchfield v. Weber, 2005 S.D. 62, ¶ 8, 697 N.W.2d

756, 759). “Accordingly, ‘habeas corpus can be used only to review (1) whether the

court has jurisdiction of the crime and the person of the defendant; (2) whether the

sentence was authorized by law; and (3) in certain cases whether an incarcerated

defendant has been deprived of basic constitutional rights.’” Oleson v. Young,

2015 S.D. 73, ¶ 5, 869 N.W.2d 452, 455 (quoting McDonough v. Weber, 2015 S.D. 1,

¶ 15, 859 N.W.2d 26, 33). “The petitioner must ‘prove he is entitled to relief by a

preponderance of the evidence.’” Id. (quoting McDonough, 2015 S.D. 1, ¶ 15,

859 N.W.2d at 34). “‘Preponderance of the evidence’ is defined as ‘the greater

weight of evidence.’” Id. (quoting Pieper v. Pieper, 2013 S.D. 98, ¶ 22, 841 N.W.2d

781, 787).

                                     ANALYSIS

             1.     Whether Kleinsasser’s counsel was ineffective.

[¶14.]       Kleinsasser alleges Reimers’s pretrial preparations were deficient in

several respects. He also asserts that Reimers struck a plea bargain too quickly

and while Kleinsasser was still under the influence of medications. Steven

Haugaard, Kleinsasser’s expert, testified that this was his “main complaint” about

Reimers’s performance. Kleinsasser contends that he wanted to withdraw his plea

and proceed to trial. He claims that he directed Reimers to request a continuance of

his sentencing hearing so that he could withdraw his plea. Kleinsasser also faults


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Reimers for failing to object to the State’s recommendations at the sentencing

hearing as he believed they violated the terms of the plea agreement.

[¶15.]       Kleinsasser further alleges that Reimers failed to file motions, properly

investigate his case, and develop reasonable defenses on his behalf. Specifically,

Kleinsasser claims Reimers ignored Dr. Renner’s report. He also contends that

Reimers failed to ask Dr. Manlove to evaluate the interaction of the prescription

drugs and alcohol in his system and their effect on his judgment at the time of the

shooting. According to Kleinsasser, Reimers failed to reconstruct the crime scene

and interview fact witnesses. The State argues Kleinsasser’s allegations are

meritless, do not show constitutionally deficient performance, and fail to establish

prejudice.

[¶16.]       “To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel provided ineffective assistance and that he was

prejudiced as a result.” State v. Craig, 2014 S.D. 43, ¶ 38, 850 N.W.2d 828, 838

(quoting Fast Horse v. Weber, 2013 S.D. 74, ¶ 14, 838 N.W.2d 831, 836).

             [W]hether a defendant has received ineffective assistance of
             counsel is essentially a mixed question of law and fact. In the
             absence of a clearly erroneous determination by the circuit
             court, we must defer to its findings on such primary facts
             regarding what defense counsel did or did not do in preparation
             for trial and in his presentation of the defense at trial. This
             [C]ourt, however, may substitute its own judgment for that of
             the circuit court as to whether defense counsel’s actions or
             inaction constituted ineffective assistance of counsel.

Hofman v. Weber, 2002 S.D. 11, ¶ 8, 639 N.W.2d 523, 526 (quoting Weddell v.

Weber, 2000 S.D. 3, ¶ 27, 604 N.W.2d 274, 281-82).




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[¶17.]       We apply the well-established, two-part test, set forth in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), to

determine whether a defendant received the effective assistance of counsel. The

first prong requires that the defendant establish that counsel’s representation fell

below an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2065.

“There is a strong presumption that counsel’s performance falls within the wide

range of professional assistance and the reasonableness of counsel’s performance is

to be evaluated from counsel’s perspective at the time of the alleged error and in

light of all circumstances.” State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706,

713 (quoting Steichen v. Weber, 2009 S.D. 4, ¶ 25, 760 N.W.2d 381, 392-93). The

second prong of the Strickland test requires a showing of prejudice as a result of

counsel’s deficient performance. 466 U.S. at 687, 104 S. Ct. at 2064. “[T]he

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Owens v. Russell, 2007 S.D. 3, ¶ 9, 726 N.W.2d 610, 615 (quoting

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). Additionally, Kleinsasser bears an

“increased burden to show ineffective assistance of counsel” as the case was resolved

by a plea-bargain agreement. Id. ¶ 10, 726 N.W.2d at 616 (quoting Coon v. Weber,

2002 S.D. 48, ¶ 12, 644 N.W.2d 638, 643). Kleinsasser must establish “gross error

on the part of counsel in recommending that he plead guilty.” Id. (quoting Coon,

2002 S.D. 48, ¶ 12, 644 N.W.2d at 643).




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[¶18.]       The circuit court first addressed Kleinsasser’s allegations surrounding

the plea-bargain agreement. Kleinsasser alleged that the agreement was struck on

March 5, 2009, when he was still impaired from his injuries and the medications he

was taking. In support of his argument, he relies upon a note in Reimers’s file

dated March 5, 2009, indicating “manslaughter 50-80” as evidence that a plea deal

was reached on that date. Upon consideration of both Reimers’s and Kleinsasser’s

testimony, the circuit court found the plea discussions commenced on March 5,

2009, and “there was no deal struck on this date.” (Emphasis added.) The court

found that Kleinsasser and Reimers signed the plea agreement on May 8, 2009,

after Dr. Manlove issued his report. The court also found that Kleinsasser was

vocal about his desire to avoid a trial, take advantage of the plea agreement, and

“save his children from going through trial.” He made similar statements to his

attorney and Sheriff Stahl.

[¶19.]       Kleinsasser must show that absent Reimers’s alleged errors, he would

have rejected the plea agreement and insisted on going to trial. Id. ¶ 21,

726 N.W.2d at 618. From our review of the record, other than his own testimony,

which the court discounted as self-serving and not credible, Kleinsasser has

produced no evidence that he desired to proceed to trial. Rather, all of the evidence

establishes that he intended to enter a plea and did so voluntarily and knowingly.

Kleinsasser signed not one, but two copies of the proposed plea agreement—on May

8, 2009, and another copy on May 27, 2009. Immediately prior to the arraignment,

Reimers deposed Kleinsasser in the presence of a court reporter to ensure that his




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decision was voluntary. Upon cross-examination at the habeas proceeding,

Kleinsasser admitted that the following colloquy occurred during the deposition:

             Mr. Reimers: Okay. Did we go over the signed plea agreement
             together?
             Defendant: Yes.
             Mr. Reimers: And did I explain what each part of it meant?
             Defendant: Yes.
             Mr. Reimers: Do you think you understand that?
             Defendant: Yes.
             Mr. Reimers: And did I make you sign the plea agreement?
             Defendant: No.
             Mr. Reimers: Did you want to sign the plea agreement?
             Defendant: Yes.
             Mr. Reimers: You did that voluntarily?
             Defendant: Yes.
             Mr. Reimers: Are you pleading guilty to manslaughter
             voluntarily?
             Defendant: Yes.
             Mr. Reimers: Did I force you to decide to plead guilty to that
             charge?
             Defendant: No.

At the May 27, 2009 arraignment and change-of-plea hearing, the court discussed

with Kleinsasser the terms of the plea agreement and ensured he understood the

agreement:

             The court: Now, pursuant to the plea agreement, it’s my
             understanding that the State is going to recommend a cap in
             this matter of from 50 to 80 years in the State Penitentiary. You
             understand, Mr. Kleinsasser, that the [c]ourt is not bound by the
             State’s recommendation in that regard; and the [c]ourt can
             sentence you up to life in prison. Do you understand that?
             Defendant: Yes, Your Honor.




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After advising Kleinsasser of his Boykin rights, the court accepted his plea, finding

it was knowingly and voluntarily made.

[¶20.]       Kleinsasser also contends that he wanted to continue his sentencing

hearing so that he could withdraw his plea. Immediately prior to the sentencing

hearing, Reimers, at Kleinsasser’s request, made a motion in chambers for a

continuance to “explore more of Dr. Renner’s findings . . . along the lines of

mitigation.” Kleinsasser explained to the court that he did not want a continuance

in order to pursue a defense to the charge of manslaughter; rather, he wanted the

court to consider Dr. Renner’s report in mitigation. After agreeing to admit and

consider Dr. Renner’s report, the circuit court denied the motion. At the sentencing

hearing, the court noted that it had considered the findings in Dr. Renner’s report.

[¶21.]       It is clear from a review of the record that Kleinsasser was given

multiple opportunities to withdraw his plea and never made a request to do so.

Kleinsasser’s habeas counsel acknowledged that “the issue of whether Kleinsasser

wanted to withdraw his plea at the time of sentencing” was one of credibility. The

circuit court found Kleinsasser’s testimony on this point “not credible.” Such

credibility determinations are properly left to the habeas court. We will not

substitute our judgment for that of the judge who saw the demeanor and heard the

testimony of the witnesses. Fast Horse, 2013 S.D. 74, ¶ 29, 838 N.W.2d at 840.

[¶22.]       We next address the allegations that Reimers failed to file motions,

properly investigate Kleinsasser’s case, and develop reasonable defenses. As an

initial matter, Kleinsasser’s allegation that “Reimers failed to file a single motion

for suppression, discovery, or any motions practice,” other than a motion for


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psychiatric opinion, is at best factually inaccurate. As previously discussed,

Reimers filed six motions between February and March 2009. Further, Kleinsasser

has failed to identify what additional motions Reimers should have filed and how

any evidence discovered would have led to a recommendation that Kleinsasser

reject the plea agreement and proceed to trial.

[¶23.]         Kleinsasser also alleges that Reimers failed to adequately investigate

his insanity defense. To succeed on this claim, Kleinsasser must establish that

Reimers’s alleged failure “caused him to plead guilty rather than go to trial and that

the discovery of [new] evidence would have led counsel to change the

recommendation as to the plea.” Brakeall v. Weber, 2003 S.D. 90, ¶ 17, 668 N.W.2d

79, 85. Although Dr. Manlove was in possession of the toxicology report and

Kleinsasser’s medical records, he did not discuss the interaction of the alcohol and

prescription drugs in Kleinsasser’s system at the time of the shooting. 2 Reimers

testified that at Kleinsasser’s direction, he contacted Dr. Manlove by email and

inquired, “[I]f [Kleinsasser] had taken [acetaminophen-Codeine #3] for pain on the

28th, in addition to the .28 bac . . . would that affect your opinions at all?” Dr.

Manlove indicated that this information would not change his report. Although

Reimers did not specifically ask about the effect of Alprazolam, Dr. Manlove had the

records showing the presence of the drug in Kleinsasser’s system. Kleinsasser has




2.       Dr. Manlove stated in his report that Kleinsasser “had struggled with
         depression and was intoxicated but [Dr. Manlove found] no evidence that he
         [sic] either of these issues rendered him unable to know right from wrong at
         the time of the alleged incident.”

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provided no evidence to support his argument that Dr. Manlove failed to consider

the issue or that if he did the information would have changed his opinion.

[¶24.]       Likewise, Kleinsasser has failed to produce any evidence that Reimers

erred in failing to fully utilize Dr. Renner’s report, which concluded that

Kleinsasser’s judgment was significantly impaired at the time of the killing. The

crimes of first- and second-degree murder are specific-intent offenses. The crime of

first-degree manslaughter is a general-intent crime. State v. Mulligan, 2007 S.D.

67, ¶ 9, 736 N.W.2d 808, 813. To prove the general intent necessary for the

manslaughter charge, the State would have been required to prove Kleinsasser had

the intent to do the physical act or recklessly committed “the physical act which the

crime requires[.]” Id. (quoting State v. Schouten, 2005 S.D. 122, ¶ 13, 707 N.W.2d

820, 824). The circuit court found that there was “sufficient evidence to find that

Kleinsasser intended to fire the shotgun that killed his wife.” Testimony of

impaired judgment from anxiety and depression would not have negated the

element of general intent for the manslaughter charge. It is well-established that

“[a] defense of diminished capacity is relevant to a specific intent crime, but not to a

general intent crime.” Schouten, 2005 S.D. 122, ¶ 18, 707 N.W.2d at 825. Likewise,

“voluntary intoxication is not a defense to [a] general intent crime[].” State v.

Primeaux, 328 N.W.2d 256, 259 (S.D. 1982). At Kleinsasser’s request, Reimers did

present Dr. Renner’s report at sentencing as mitigation evidence.

[¶25.]       While it is true that Reimers did not reconstruct the crime scene, the

circuit court found that the grand-jury testimony of one of the children was

“consistent with the physical evidence obtained from the crime scene.” Based upon


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such consistencies, the circuit court found “no evidence . . . that required trial

counsel to conduct further investigation.” Even with the benefit of hindsight,

Kleinsasser was unable to present any theory or evidence that someone else could

have committed the offense or that he acted in self-defense.

[¶26.]       Kleinsasser also contends Reimers’s representation was deficient as he

failed to have the children interviewed. But, the circuit court found that “Reimers

did attempt to have the [Kleinsasser] children interviewed, and they refused to talk

to him.” Kleinsasser was unable to suggest to the court anything Reimers could

have done to force the children to discuss the details of their mother’s death with

his investigator. Reimers’s assistance was not deficient for failing to obtain

interviews with the children. See Fast Horse v. Weber, 1999 S.D. 97, ¶ 15, 598

N.W.2d 539, 543.

[¶27.]       Kleinsasser bears a heavy burden to establish that Reimers made a

gross error in recommending the plea agreement and that but for these alleged

errors, he would have insisted on going to trial. The evidence against Kleinsasser

was overwhelming. He shot his wife twice at close range. S.K. reported seeing

Kleinsasser standing over her mother after the first shot was fired and hearing him

say, “I’ll do to you what you’ve been doing to me.” In light of the strength of the

State’s case, Kleinsasser ran a significant risk of being convicted of either first- or

second-degree murder, each of which carries a mandatory life sentence. Both

Reimers and Max Gors testified that the photos of the crime were “extremely

gruesome” and that it was unlikely that a “jury would acquit [Kleinsasser] after

seeing the photographs and hearing the evidence.” Kleinsasser also would have


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faced the likely admission of other-acts evidence pursuant to SDCL 19-19-404 as he

had previously been convicted of simple assault for breaking Sharon’s wrist.

[¶28.]       For Kleinsasser to show that he was prejudiced by Reimers’s failure to

investigate, he must establish that new evidence was available that if considered,

would likely have led to a different outcome, namely an acquittal or conviction of

something less than first-degree manslaughter. See Brakeall, 2003 S.D. 90, ¶ 17,

668 N.W.2d at 85. Kleinsasser has failed to produce any such evidence. The circuit

court found that Kleinsasser failed to prove Reimers’s performance was deficient or

that Kleinsasser was prejudiced. The findings of the habeas court are supported by

the record and are not clearly erroneous.

             2.     Whether the State violated the plea-bargain agreement.

[¶29.]       Kleinsasser contends that the State violated the plea-bargain

agreement in two ways. First, he alleges the State violated the agreement when it

requested a sentence of 80 years “and not 50 to 80 years.” Second, he alleges that

the State “presented $81,000 in restitution claims” even though “he was not asked

to make restitution in the plea bargain agreement.” In response, the State submits

it did not argue for a more severe sentence than agreed upon and that the sum

requested was “for the county’s prosecution costs” and not restitution.

[¶30.]       Paragraph eight of the plea-bargain agreement provided, “The [S]tate

will recommend a sentencing cap of fifty (50) to eighty (80) years. This will be a

non-binding recommendation pursuant to SDCL 23A-7-8(2). The court would be

free to accept or reject it.” Paragraph nine provided that “[b]oth the State and the

Defendant are free to call witnesses on their behalf and make arguments at the


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time of sentencing.” “Generally, plea agreements are contractual in nature and are

governed by ordinary contract principles.” State v. Waldner, 2005 S.D. 11, ¶ 8,

692 N.W.2d 187, 190 (quoting State v. Stevenson, 2002 S.D. 120, ¶ 9, 652 N.W.2d

735, 738). When examining a contract, we give words their “plain and ordinary

meaning.” Elrod v. Gen. Cas. Co. of Wis., 1997 S.D. 90, ¶ 15, 566 N.W.2d 482, 486.

[¶31.]       In support of his argument that the State violated the agreement,

Kleinsasser relies on Vanden Hoek, 2006 S.D. 102, 724 N.W.2d 858. In Vanden

Hoek, defendant, his counsel, and the State agreed that defendant “would plead

guilty to kidnapping and second degree rape” in exchange for the State’s

recommendation of “50 years for the kidnapping and 25 years for the rape, with the

sentences to run concurrently.” Id. ¶ 4, 724 N.W.2d at 860-61. During sentencing,

the State failed to recommend “the agreed upon term of years” and instead argued

by implication for a more severe sentence. Id. ¶ 6, 724 N.W.2d at 861. The circuit

court sentenced the defendant to 90 years for the kidnapping with 30 years

suspended and 25 years for the rape. Id. In reversing, we determined that this was

a material breach of the plea-bargain agreement. Id. ¶ 24, 724 N.W.2d at 865. We

noted that “[t]he recommendation of a specific term of years was an important

benefit Vanden Hoek relied upon when he entered into the plea agreement.” Id.; see

also Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427

(1971) (“[W]hen a plea rests in any significant degree on a promise or agreement of

the prosecutor, so that it can be said to be part of the inducement or consideration,

such promise must be fulfilled.”).




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[¶32.]       In contrast, the State herein did not argue for a more severe sentence

than the parties agreed to in the plea-bargain agreement. Kleinsasser’s argument

that the State was required to request a range of 50 to 80 years without specifying

an exact term of years is not a reasonable reading of the plain language of the

agreement. Reimers testified that he told Kleinsasser prior to his entry of the plea

that the State was likely going to ask for 80 years. The State’s recommendation

was within the agreed upon range and did not constitute a violation of the

agreement. Accordingly, Reimers’s failure to object to the State’s request for an 80-

year sentence did not constitute deficient performance.

[¶33.]       Kleinsasser’s second assertion is that the State presented claims for

restitution which were not addressed in the plea-bargain agreement and about

which he had no knowledge. Paragraph five of the plea agreement provided,

“Defendant agrees to pay all fines, court costs and court-appointed attorney’s fees.”

At sentencing, the State requested “costs of the prosecution” and provided the

circuit court and Kleinsasser’s counsel with a spreadsheet breaking down the costs.

Kleinsasser did not object to the State’s request. The circuit court waived the usual,

liquidated court costs but required Kleinsasser to “reimburse the State for the costs

of the defense in the amount of [$]88,611.79” and granted a lien against

Kleinsasser’s property to Sully County. The amount of $88,611.79 included in part:

costs of the Grand Jury proceedings; housing and medical expenses for Kleinsasser

in the county jail; autopsy expenses; attorney’s fees; and transportation costs for

taking Kleinsasser to Rapid City to meet with Dr. Manlove and to Pierre for court

proceedings. The circuit court found that none of the expenses contained


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“restitution costs to the victim’s family for their funeral expenses or other costs

incident to her death.” Both the original and amended judgment, however, referred

to these expenses as “restitution.”

[¶34.]       It is clear that the judgment incorrectly designated the award as

restitution to Sully County, rather than as costs of prosecution. There was no

request for restitution at the sentencing hearing—only costs—and Sully County is

not a “victim” in this case entitled to restitution. Restitution is defined in SDCL

23A-28-2(4) as “full or partial payment of pecuniary damages to a victim[.]”

(Emphasis added.) SDCL 22-1-2(53) defines victim as “any natural person against

whom the defendant in a criminal prosecution has committed or attempted to

commit a crime[.]” (Emphasis added.) Under the facts of this case, Sully County is

not a victim entitled to restitution based upon this definition. State v. Ryyth,

2001 S.D. 50, ¶ 10, 626 N.W.2d 290, 292 (holding county does not fit statutory

definition of victim under restitution statutes); see also State v. Sprecher, 2000 S.D.

17, ¶¶ 7-9, 606 N.W.2d 138, 139 (denying payment to county for costs of abating

public nuisance because county, under the facts of the case, was not a victim

entitled to restitution); State v. Garnett, 488 N.W.2d 695, 698 (S.D. 1992); State v.

No Neck, 458 N.W.2d 364, 365 (S.D. 1990).

[¶35.]       In State v. Olson-Lame, 2001 S.D. 51, 624 N.W.2d 833, we considered a

request for extradition costs as restitution to Pennington County. Although we

determined that Pennington County was not a victim as defined by state statute

entitled to restitution, we held that costs were properly assessed as “costs of the




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prosecution under SDCL 23A-27-26[.]” 3 Id. ¶ 8, 624 N.W.2d at 835. This statute

provides in pertinent part that “[i]n all criminal actions, upon conviction of the

defendant, the court may adjudge that the defendant pay the whole or any part of

the costs of that particular prosecution in addition to the liquidated costs provided

by [SDCL] 23-3-52.” SDCL 23A-27-26. Kleinsasser was properly required to pay

the costs of his prosecution upon conviction. He has presented no evidence that any

portion of the award was improperly chargeable as costs not permitted by statute.

[¶36.]        Importantly, Kleinsasser does not argue that he was induced to enter

into the plea agreement because the costs were not itemized in the agreement or

that he would not have pleaded guilty if he had known the total cost. Nor does he

point to any term of the agreement that the State failed to fulfill. Thus, Vanden

Hoek, upon which Kleinsasser relies in support of his argument, is distinguishable.

Kleinsasser has failed to prove that the circuit court’s finding that “[t]he State did

not violate the Plea Agreement at the sentencing hearing” was clearly erroneous.

              3.    Whether the sentencing court erred by failing to advise
                    Kleinsasser of his Boykin rights.

[¶37.]        Kleinsasser correctly argues that a defendant must be advised of his

Boykin rights as a mandatory part of any change of plea. However, relying on



3.       SDCL 23A-27-26 provides,
              In all criminal actions, upon conviction of the defendant, the
              court may adjudge that the defendant pay the whole or any part
              of the costs of that particular prosecution in addition to the
              liquidated costs provided by § 23-3-52. However, the costs shall
              not include items of governmental expense such as juror’s fees,
              bailiff’s fees, salaries and expenses of special agents, and
              reporter’s per diem. Payment of costs may be enforced as a civil
              judgment against the defendant.

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language in Monette v. Weber, 2009 S.D. 77, 771 N.W.2d 920, Kleinsasser contends

that the “sentencing” judge was obligated to inquire whether he had been previously

advised of his Boykin rights and understood them. Kleinsasser alleges that the

circuit court’s failure to do so at the time of sentencing renders his conviction

invalid. In response, the State argues that Boykin rights are only required at the

time a plea is entered and that the circuit court had no obligation to advise

Kleinsasser of his Boykin rights at the sentencing hearing.

[¶38.]        “A criminal defendant entering a guilty plea waives three fundamental

constitutional rights: the right against compulsory self-incrimination, the right to

confront one’s accusers, and the right to a trial by a jury.” Rosen v. Weber, 2012

S.D. 15, ¶ 8, 810 N.W.2d 763, 765 (citing Boykin, 395 U.S. at 243, 89 S. Ct. at 1712).

Further, “it is critical not only that a defendant be advised of his rights . . . but also

that the defendant intentionally relinquish or abandon” these rights and that the

record affirmatively establish the waiver. Id. (quoting Monette, 2009 S.D. 77, ¶ 10,

771 N.W.2d at 924).

[¶39.]        Kleinsasser’s reliance on Monette in support of his argument is

misplaced. Monette appealed the habeas-corpus court’s determination that his no-

contest plea was voluntary, knowing, and intelligent. Monette, 2009 S.D. 77, ¶ 1,

771 N.W.2d at 922. Monette had “entered a change of plea pursuant to a plea

agreement.” Id. ¶ 4, 771 N.W.2d at 922. During this change-of-plea hearing, the

circuit court, which we referred to as the “sentencing court,” failed to inquire if the

plea was being entered voluntarily and whether defendant wished to waive his

constitutional rights. Id. ¶ 9, 771 N.W.2d at 924. Based upon the court’s


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deficiencies in accepting the plea, we determined the defendant’s plea was

unconstitutional and reversed the habeas court’s determination. Id. Kleinsasser

bases his argument on this Court’s reference to the court which accepted the guilty

plea as the “sentencing court.” This Court’s reference to the “sentencing court” was

made solely to differentiate between the habeas court and the trial court—no other

meaning was implied. The court’s obligation to advise Monette of his rights arose

from its duty in accepting his plea. In two recent cases, State v. Bilben, 2014 S.D.

24, 846 N.W.2d 336, and Garcia v. State, 2014 S.D. 5, 843 N.W.2d 345, we evaluated

the adequacy of Boykin advisements and subsequent waivers at the time of the

entry of the plea. This determination is not required at the sentencing hearing.

[¶40.]          The circuit court’s duty to advise Kleinsasser of his Boykin rights

occurred when Kleinsasser chose to enter his guilty plea. Kleinsasser’s allegation

that the circuit court erred in failing to canvass him or confirm he was canvassed on

such rights during sentencing is meritless.

                                      CONCLUSION

[¶41.]          Kleinsasser has failed to prove the circuit court’s findings of fact are

clearly erroneous and further has failed to prove by a preponderance of the evidence

that he is entitled to relief. We affirm.

[¶42.]          GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and PFEIFLE, Jane, Circuit Court Judge, concur.

[¶43.]          PFEIFLE, Jane, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.




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