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2016 S.D. 38

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                       ****
JACOB J. STARK,                               Petitioner and Appellant,

      v.

DOUGLAS WEBER, Warden of
the South Dakota State Penitentiary,          Respondent and Appellee.

                                       ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                     DEUEL COUNTY, SOUTH DAKOTA

                                       ****

                    THE HONORABLE VINCENT A. FOLEY
                                Judge

                                       ****

CHERI SCHARFFENBERG of
Waltner, Kolbeck & Scharffenberg, LLP
Tea, South Dakota                             Attorneys for petitioner
                                              and appellant.


MARTY J. JACKLEY
Attorney General

KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota                          Attorneys for respondent
                                              and appellee.

                                       ****

                                              CONSIDERED ON BRIEFS
                                              ON MARCH 21, 2016

                                              OPINION FILED 04/27/16
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WILBUR, Justice

[¶1.]        Jacob Stark pleaded guilty to aggravated assault against a law

enforcement officer in August 2009 and was sentenced to 22 years in prison. He did

not appeal the sentence directly. In July 2012, Stark filed a petition for writ of

habeas corpus arguing he received ineffective assistance of counsel at trial and that

his sentence was unconstitutional. The circuit court denied his petition, and Stark

appeals. We affirm.

                                    Background

[¶2.]        In April 2009, Jacob Stark and his brothers began drinking beer after

they finished working on their grandmother’s farm in Deuel County, South Dakota.

Stark and his brother Joe continued drinking throughout the evening and at some

point began to argue. The argument escalated and became physical when they

returned to the lodge they were staying at for the night.

[¶3.]        After Stark drove away in his pickup, Joe called law enforcement. Joe

claimed that Stark was a “homicidal maniac.” When the Sheriff’s deputies arrived

at the lodge, Joe told them that Stark likely returned to their grandmother’s farm.

Joe also told the deputies that Stark had several guns. Joe suggested that the

deputies not pursue Stark because Stark would try to kill them. With this

knowledge, the deputies traveled to the farm.

[¶4.]        At the farm, the deputies saw Stark’s pickup and noticed movement

inside the pickup. The deputies moved behind a shed and closer to the pickup to get

a better view. One deputy yelled Stark’s name and announced that they were law

enforcement. Stark responded by threatening to kill the officers. He yelled that he


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would “mow” and “rake” them down. Stark told the deputies to “get ready for a

shootout ‘cause we are gonna have a war.” Stark began a countdown from ten and

fired a gun when he reached one. The deputies did not return any fire. Instead,

they advised dispatch that shots had been fired.

[¶5.]         The deputies again attempted to talk with Stark. At one point, Stark

said he knew backup was coming and stated that he would try to kill the backup

officers as well. Stark also continued to fire rounds from his rifle. Eventually, he

tried to escape in his pickup, but drove over spike strips that law enforcement had

previously laid out. Law enforcement subdued and arrested Stark.

[¶6.]         The State charged Stark with two counts of aggravated assault against

a law enforcement officer, and the State also filed a part II information alleging

Stark to be a habitual offender under SDCL 22-7-7. Stark agreed to plead guilty.

In exchange, the State agreed to dismiss one of the aggravated assault counts and

the part II information. The court stayed sentencing pending a presentence

investigation and report.

[¶7.]         During the presentence investigation, the court services officer

interviewed Stark and asked about the evening involving the officers. Stark’s

attorney had previously advised Stark not to fabricate anything that he did not

remember from the evening. Counsel advised Stark, “[I]f you don’t remember

exactly what happened, don’t try to fill in the blanks . . . . [I]t is okay to tell the

Court Services Officer that you don’t remember exactly what happened.” Stark told

the court services officer that he did not remember anything after leaving the

second bar with his brothers except for firing his rifle into the ground. Stark’s


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statements to court services were inconsistent with the statements Stark made in

interviews following his arrest. The circuit court sentenced Stark to 22 years in the

state penitentiary.

[¶8.]        Stark petitioned the circuit court for habeas corpus relief in 2012,

arguing that his counsel was ineffective at trial and that his subsequent sentence

was cruel and unusual under the 8th Amendment to the United States Constitution.

The circuit court held a hearing on the petition in October 2014. At the hearing,

Stark called defense counsel to testify about counsel’s representation of Stark at

trial and about discussions they had after the sentencing hearing. Counsel testified

that he told Stark’s family that an appeal would likely be a waste of time and

money because Stark pleaded guilty. Counsel explained that he told the family that

the only issue Stark could realistically appeal was that Stark’s sentence was cruel

and unusual. After the hearing, the circuit court issued a memorandum decision

denying habeas relief.

[¶9.]        Stark appeals, arguing two issues for our review:

             1.       Whether Stark received ineffective assistance of counsel
                      regarding his right to appeal and his right to remain
                      silent during the presentence investigation.

             2.       Whether Stark’s 22-year sentence was cruel and unusual.

                                 Standard of Review

[¶10.]       A claim for habeas corpus relief is “a collateral attack on a final

judgment and therefore our review is limited.” Legrand v. Weber, 2014 S.D. 71,

¶ 10, 855 N.W.2d 121, 126 (quoting Davis v. Weber, 2013 S.D. 88, ¶ 9, 841 N.W.2d

244, 246). “Habeas Corpus can only be used to review (1) whether the court had


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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.” Id. (quoting Davis, 2013 S.D. 88,

¶ 9, 841 N.W.2d at 246). “We review findings of fact under the clearly erroneous

standard, while we give no deference to conclusions of law and thereby apply the de

novo standard.” Id. (quoting Erickson v. Weber, 2008 S.D. 30, ¶ 17, 748 N.W.2d 739,

744). Our review for ineffective assistance of counsel is a mixed question of law and

fact. Fast Horse v. Weber, 2013 S.D. 74, ¶ 10, 838 N.W.2d 831, 836.

                                      Decision

             1.     Ineffective Assistance of Counsel

[¶11.]       Stark alleges two separate instances of ineffective assistance of

counsel. He asserts that counsel failed to adequately consult with Stark regarding

his right to appeal and that counsel failed to advise Stark not to speak to court

services during the presentence investigation. “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. Hannemann, 2012 S.D.

79, ¶ 11, 823 N.W.2d 357, 360 (quoting State v. Thomas, 2011 S.D. 15, ¶ 21,

796 N.W.2d 706, 713). The defendant must demonstrate that the representation

fell below an “objective standard of reasonableness.” Fast Horse, 2013 S.D. 74,

¶¶ 14-15, 838 N.W.2d at 836 (quoting Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d

at 360). “The question is whether counsel’s representation amounted to

incompetence under prevailing professional norms, not whether it deviated from

best practices or most common custom.” Id. (quoting Hannemann, 2012 S.D. 79,


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¶ 11, 823 N.W.2d at 360). We strongly presume 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 the circumstances and the standard of review is highly

deferential.” Boyles v. Weber, 2004 S.D. 31, ¶ 27, 677 N.W.2d 531, 540 (quoting

Siers v. Class, 1998 S.D. 77, ¶ 12, 581 N.W.2d 491, 495). “[T]he defendant must

rebut the strong presumption that the counsel’s performance was competent.”

Steichen v. Weber, 2009 S.D. 4, ¶ 25, 760 N.W.2d 381, 392.

                A. Ineffective assistance regarding right to appeal

[¶12.]       “[A] lawyer who disregards specific instructions from the defendant to

file a notice of appeal acts in a manner that is professionally unreasonable.”

McBride v. Weber, 2009 S.D. 14, ¶ 7, 763 N.W.2d 527, 529 (quoting Roe v. Flores-

Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed. 2d 985 (2000)). Counsel

must consult with counsel’s client about the defendant’s right to appeal if there is

reason to believe either that a “rational defendant would want to appeal . . . [or]

that this particular defendant reasonably demonstrated to counsel that he was

interested in appealing.” Flores-Ortega, 528 U.S. at 480, 120 S. Ct. at 1036.

[¶13.]       Stark compares his case to our decision in Mcbride, 2009 S.D. 14, ¶ 3,

763 N.W.2d at 529. In that case, defendant and defense counsel discussed reducing

defendant’s sentence through a subsequent motion. Id. But counsel did not discuss

defendant’s right to appeal the sentence at all, and the defendant did not tell

counsel that he wished to appeal. Id. ¶ 4. Here, however, Stark and his counsel

discussed Stark’s right to appeal. Stark’s family stated that they wanted to appeal.


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Counsel responded that an appeal would likely be unsuccessful. Counsel explained

that Stark’s guilty plea likely limited review on appeal to one issue—whether the

sentence was cruel and unusual.

[¶14.]       The circuit court found counsel credible when he testified that he

consulted with Stark about Stark’s right to appeal and the likelihood of success.

The court also found that Stark did not ask to appeal in light of this conversation.

From our review of the record, counsel fulfilled his obligation to consult with his

client about his client’s appeal options. Indeed, “a highly relevant factor in this

inquiry will be whether the conviction follows a trial or a guilty plea . . . because a

guilty plea reduces the scope of potentially appealable issues[.]” Flores-Ortega,

528 U.S. at 480, 120 S. Ct. at 1036. Counsel’s conduct did not fall below an objective

standard of reasonableness, and Stark did not receive ineffective assistance of

counsel as to this issue.

                 B. Ineffective Assistance during presentence investigation

[¶15.]       Stark next argues that counsel was ineffective because counsel did not

advise Stark to exercise his right against self-incrimination and to remain silent.

Stark argues that “there is absolutely zero tactical or strategic reason to allow Stark

to be interviewed at all about his version of the offense.” In Stark’s view, the fact

that he gave a different version of the events in his interview with court services as

compared to law enforcement led the circuit court to sentence him more harshly.

[¶16.]       From our review of the record, counsel advised Stark to cooperate fully

with court services and to be truthful if he did not remember details of the crime.

Counsel’s advice does not constitute unreasonable behavior for an attorney. This is


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especially true considering the strong presumption that counsel’s performance was

competent. Stark has not shown that he received ineffective assistance of counsel in

the presentence investigation.

               2.     Cruel and Unusual Punishment

[¶17.]         Stark asks this Court to reverse his conviction and remand for further

proceedings because his sentence of 22 years in prison is cruel and unusual in

violation of the Eighth Amendment. U.S. Const. amend. VIII.* When examining a

noncapital sentence for potential violations of the Eighth Amendment, we examine

whether the sentence is “grossly disproportionate to its corresponding offense.”

State v. Rice, 2016 S.D. 18, ¶ 13, ___ N.W.2d ___, ___. When examining for

proportionality, we compare the gravity of the offense on the spectrum of all

criminality to the harshness of the penalty on the spectrum of all permitted

punishments. State v. Chipps, 2016 S.D. 8, ¶¶ 35-37, 874 N.W.2d 475, 487-88.

[¶18.]         We thus first examine the gravity of Stark’s offense. Stark was

convicted of two counts of aggravated assault against law enforcement officers: a

violent crime that is exacerbated by being perpetrated against law enforcement

officers. While not the gravest of offenses, it is nonetheless very serious. The

punishment he received, on the other hand, is 22 years in prison. While a 22-year



*        Stark raised the Eighth Amendment issue for the first time in this habeas
         action, as he did not directly appeal his sentence. “[W]e have long held that
         ‘habeas corpus cannot be utilized as a substitute for an appeal . . . .’”
         McDonough v. Weber, 2015 S.D. 1, ¶ 18, 859 N.W.2d 26, 35 (quoting State ex
         rel. Smith v. Jameson, 70 S.D. 503, 507, 19 N.W.2d 505, 507 (1945)). Neither
         party briefed whether he may assert an Eighth Amendment violation
         untethered to an ineffective assistance of counsel argument for the first time
         in a habeas petition.

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sentence is not insubstantial, it is substantially less than the most severe

punishments permitted by law and is not unduly harsh in light of Stark’s offense.

                                     Conclusion

[¶19.]       The circuit court did not err when it denied Stark habeas corpus relief.

Stark’s counsel was not ineffective, and Stark’s sentence is not unconstitutionally

cruel and unusual.

[¶20.]       Affirmed.

[¶21.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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