#26907-a-LSW
2014 S.D. 71
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
JOHN LEGRAND, Petitioner and Appellant,
v.
DOUGLAS WEBER, Warden,
South Dakota State Penitentiary, Respondent and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT L. TIMM
Judge
****
JEFF LARSON
Sioux Falls, South Dakota Attorney for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
****
CONSIDERED ON BRIEFS
ON AUGUST 25, 2014
OPINION FILED 10/01/14
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WILBUR, Justice
[¶1.] John LeGrand, serving a 40-year sentence for a conviction of first-
degree manslaughter, appeals the habeas court’s judgment and order denying his
application for a writ of habeas corpus. LeGrand claims that (1) his guilty plea was
constitutionally deficient; (2) he was denied due process of law and his right to a
jury trial when the circuit court denied his motion to withdraw his guilty plea; and
(3) he was denied his right to effective assistance of counsel. We affirm the habeas
court.
Background
[¶2.] John LeGrand, an independent building contractor, lived in a trailer
park in Huron, South Dakota with his wife and three children. On the morning of
April 16, 2009, LeGrand’s employee R.J. Hein confronted LeGrand about unpaid
wages. A short time later, LeGrand was driving when a vehicle in the opposite lane
turned and purposefully blocked LeGrand’s path. Hein exited the other vehicle and
approached LeGrand’s vehicle. As LeGrand accelerated to avoid Hein, Hein slipped
on the road. LeGrand testified that he believed he ran over Hein’s leg. Later that
day, a mutual friend told LeGrand that Hein was upset and that “there was going to
be problems.”
[¶3.] Around 5:30 that evening, Hein arrived at LeGrand’s trailer while
LeGrand, his wife, and his two youngest children were at home. LeGrand testified
that he equipped himself with a loaded shotgun out of fear and confronted Hein at
the front of his home. As LeGrand approached Hein, Hein charged into his home
with a knife. LeGrand fired four shots at Hein fatally wounding him. LeGrand
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alleged that all of the shots occurred in the hallway of his home. Law enforcement
discovered Hein’s body on the driveway. 1 Two knives were found on Hein’s person
and a third knife was found near him on the entry to LeGrand’s home. Autopsy
reports indicate that, at the time of Hein’s death, Hein had a 0.30 blood alcohol
content level.
[¶4.] On July 29, 2009, a Beadle County Grand Jury indicted LeGrand for
murder in the second degree, manslaughter in the first degree, and possession of a
firearm by a felon. LeGrand received court-appointed counsel. A year later, on July
14, 2010, LeGrand was arrested in Meade County for nine new crimes, including
two counts of distribution of a controlled substance to a minor, distribution of
marijuana, and possession of a controlled drug or substance and marijuana. 2
[¶5.] On September 8, 2010, LeGrand signed a plea agreement covering the
charges in both Beadle and Meade Counties. The plea agreement provided that
LeGrand plead guilty to manslaughter in the first degree and that LeGrand waive
“any affirmative defense, including self-defense, and any claims of excusable or
justifiable homicide. . . .” The plea agreement further stipulated that the State
would recommend a sentence not in excess of 40 years and not fewer than 30 years. 3
1. LeGrand testified that after he shot Hein, Hein turned around and ran 10 to
15 feet from his location in the hallway to the place where he was found on
the driveway.
2. During LeGrand’s habeas corpus hearing on April 22, 2013, LeGrand’s
counsel in the Meade County case testified that the nine felony counts added
up to a potential maximum sentence of 175 years.
3. The plea agreement contained a “Certificate of Counsel,” which was signed by
LeGrand’s trial counsel. The certificate provided:
(continued . . .)
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That same day, LeGrand appeared before the Honorable Vincent A. Foley to plead
guilty to the counts agreed upon in the plea agreement. Judge Foley discussed with
LeGrand, in extensive detail, his statutory and constitutional rights, and then
explained to LeGrand that he would be waiving certain rights. 4 At one point, Judge
Foley asked LeGrand about his motivation for entering the plea agreement, and
LeGrand responded “[b]ecause of the other charges . . . [i]n Meade County.”
LeGrand stated that he thought the plea agreement was a fair compromise.
[¶6.] LeGrand acknowledged to the court that he understood the plea
agreement, he had the opportunity to review the document fully, he did in fact
review the document with his attorneys, his attorneys explained the relevant legal
terms to him, and he did not have any questions about the document. LeGrand
stated that he was 42 years of age, understood English, and held a high-school
diploma. Judge Foley asked LeGrand if he was presently on any medication.
LeGrand responded that he was on anxiety medication and that it helped him
understand the proceedings and function day-to-day. LeGrand signed the plea
________________________________________
(. . . continued)
We, Randolph F. Stiles and Donna L. Bucher, as attorneys for
the above-named Defendant, John Lee LeGrand, hereby state
that we have gone through this document with the Defendant
and that he knows and understands the contents thereof. We
further agree to the provisions contained within this document.
4. The transcript of the conversation between the trial judge and LeGrand
spanned over thirteen pages. The trial judge asked LeGrand a series of “yes
or no” questions , and then moved on to more specific questions, such as
“[w]hat level of proof does the State need to establish”; “what is the maximum
penalty that the charge to which you intend to plead to carries”; “how old are
you”; and “what’s the extent of your education.”
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agreement and pleaded guilty to manslaughter in the first degree. Judge Foley
determined that LeGrand’s guilty plea was voluntary, knowing, and intelligent.
[¶7.] On October 18, LeGrand filed a motion to withdraw his guilty plea and
submitted an affidavit to the court. The affidavit explained that LeGrand wanted to
withdraw his guilty plea because, after consideration, he believed that he had a
valid defense of self-defense. The circuit court acknowledged that defense was
indeed tenable, but ultimately, the court found that the motion to withdraw was
simply a “change in mind.” On December 20, 2010, the circuit court denied
LeGrand’s motion to withdraw his guilty plea. 5
[¶8.] On December 28, 2010, LeGrand appealed to this Court to determine
whether the circuit court erred in refusing to grant LeGrand’s motion to withdraw
his guilty plea. This Court affirmed the circuit court. State v. Legrand, 804 N.W.2d
78 (2011) (unpublished table decision). On April, 23, 2012, LeGrand filed a petition
for writ of habeas corpus. On November 6 and November 27, 2012, after retaining
new counsel, LeGrand filed an amended and second amended application for a writ
of habeas corpus claiming violations of his due process rights and a denial of the
right to effective assistance of counsel. On April 22, 2013, an evidentiary hearing
5. On October 29, 2010, LeGrand’s trial counsel submitted a motion for
continuance and a motion for an expert. LeGrand asserted that he was under
the influence of medication at the time of the plea hearing and therefore his
plea was not valid, knowing, and voluntary. Several physicians and a Beadle
County deputy testified about LeGrand’s mental state on the days leading up
to and the day of the plea hearing. The testimony was consistent from each
of the witnesses that LeGrand did not exhibit signs of impairment.
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was held before the Honorable Robert L. Timm. The habeas court denied LeGrand
relief and determined that LeGrand was provided competent counsel.
[¶9.] LeGrand raises the following issues for our review:
1. Whether LeGrand’s guilty plea was voluntary and
intelligent.
2. Whether the circuit court abused its discretion when it
denied LeGrand’s motion to withdraw his guilty plea.
3. Whether LeGrand was denied his constitutional right to
effective assistance of counsel.
Standard of Review
[¶10.] “A habeas corpus claim is a collateral attack on a final judgment and
therefore our review is limited.” Davis v. Weber, 2013 S.D. 88, ¶ 9, 841 N.W.2d 244,
246 (quoting Fast Horse v. Weber, 2013 S.D. 74, ¶ 9, 838 N.W.2d 831, 835-36).
“Habeas Corpus can only be used to review (1) whether the court had 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. “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.” Erickson v. Weber, 2008 S.D. 30, ¶ 17, 748
N.W.2d 739, 744. The standard of review for “ineffective assistance of counsel is
essentially a mixed question of law and fact.” Fast Horse, 2013 S.D. 74, ¶ 10, 838
N.W.2d at 836 (quoting Boyles v. Weber, 2004 S.D. 31, ¶ 6, 677 N.W.2d 531, 536).
This Court, however, “can substitute its own judgment as to whether counsel’s
representation was ineffective.” Davi v. Class, 2000 S.D. 30, ¶ 15, 609 N.W.2d 107,
112.
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Analysis
[¶11.] 1. Whether LeGrand’s guilty plea was voluntary and
intelligent.
[¶12.] LeGrand argues that his guilty plea violated his due process rights
because it was not voluntary and intelligent. As a basis, LeGrand alleges that
neither the circuit court nor his trial counsel adequately canvassed him on the
availability of the defenses of self-defense and justifiable homicide or the State’s
burden of proof for affirmative defenses. LeGrand claims that, absent adequate
canvassing, his guilty plea was not voluntary and intelligent. Furthermore,
LeGrand raises for the first time on appeal an argument that his sentence was not
authorized by law due to procedural violations of SDCL chapter 23A-7 (Rule 11),
and, but for these violations, he would not have entered a guilty plea.
[¶13.] Due process requires that certain constitutional and procedural rights
be followed when a defendant enters a guilty plea. State v. Apple, 2008 S.D. 120, ¶
10, 759 N.W.2d 283, 287. A plea of guilty waives the constitutionally guaranteed
rights against self-incrimination, the right to a trial by jury, and the right to
confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712,
23 L. Ed. 2d 274 (1969). Because the defendant is waiving constitutionally
guaranteed rights, an admission of guilt must be voluntary and intelligent. State v.
Outka, 2014 S.D. 11, ¶ 32, 844 N.W.2d 598, 607. A guilty plea is voluntary and
intelligent when the record affirmatively shows that “the accused has a full
understanding of his constitutional rights and, having that understanding, waives
these rights by a plea of guilty.” Id. (quoting State v. Beckley, 2007 S.D. 122, ¶ 8,
742 N.W.2d 841, 843).
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[¶14.] Certain criminal procedural rules act to ensure that guilty pleas are
voluntary and intelligent. Apple, 2008 S.D. 120, ¶ 10, 759 N.W.2d at 607; see Fed.
R. Crim. P. 11; SDCL chapter 23A-7. SDCL 23A-7-2 (Rule 11(a)) and SDCL 23A-7-
14 (Rule 11(f)) require the circuit court to assess whether a factual basis exists for a
plea of guilty. In addition, SDCL 23A-7-4 (Rule 11(c)) sets forth a list of guidelines
for a court to follow before accepting the plea to determine that a guilty plea is
voluntary and intelligent. Outka, 2014 S.D. 11, ¶ 33, 844 N.W.2d at 608. Absent
from these guidelines is an explicit requirement that a court canvass a defendant as
to any potential affirmative defenses. See SDCL 23A-7-2 (Rule 11(a)); SDCL 23A-7-
4 (Rule 11(c)); SDCL 23A-7-14 (Rule 11(f)); Lodermeier v. State, 273 N.W.2d 163,
166 (S.D. 1978) (holding that there is no requirement for a circuit court to advise a
defendant of any defense of which he had prior knowledge); see also United States v.
Broce, 488 U.S. 563, 573, 109 S. Ct. 757, 764, 102 L. Ed. 2d 927 (1989) (stating that
“no conscious waiver is necessary with respect to each potential defense
relinquished by a plea of guilty”); United States v. Smith, 160 F.3d 117, 123 (2nd
Cir. 1998) (declaring that “the court has no duty under Rule 11(f) to anticipate or
detect, and then rule out, defenses”). Furthermore, these guidelines are merely a
“procedural safeguard” and “failure to advise a defendant of all constitutional and
statutory rights does not necessarily vitiate a guilty plea.” Outka, 2014 S.D. 11, ¶
33, 844 N.W.2d at 608 (quoting Beckley, 2007 S.D. 122, ¶ 10, 742 N.W.2d at 844).
[¶15.] Ultimately, we must look at the totality of the circumstances to
determine whether a plea is voluntary and intelligent. State v. King, 2014 S.D. 19,
¶ 6, 845 N.W.2d 908, 910. Factors to consider include “the defendant’s age; his prior
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criminal record; whether he is represented by counsel; the existence of a plea
agreement; and the time between advisement of rights and entering a plea of
guilty.” Monette v. Weber, 2009 S.D. 77, ¶ 12, 771 N.W.2d 920 (quoting Apple, 2008
S.D. 120, ¶ 14, 759 N.W.2d at 288).
[¶16.] Here, the record reflects that LeGrand was motivated to enter into the
agreement to secure a maximum sentence of no more than 40 years in light of the
pending charges in Meade County. The circuit court asked LeGrand why he wanted
to plead guilty, and LeGrand responded “[b]ecause of the other charges . . . [i]n
Meade County.” LeGrand faced a maximum sentence of 175 consecutive years for
the nine felony charges in Meade County alone. These charges were clearly the
underlying and motivating basis for entering into the plea agreement. LeGrand
received the benefit of the bargain. Thus, we agree with the circuit court that the
plea was voluntary.
[¶17.] LeGrand further argues that the plea was not made intelligently
because neither the circuit court nor his trial counsel adequately canvassed him on
the availability of the defenses of self-defense and justifiable homicide or the State’s
burden of proof for affirmative defenses. LeGrand claims that the court’s colloquy
with LeGrand should have alerted it to the need for further inquiry concerning the
two affirmative defenses. LeGrand relies on two cases to support his position.
[¶18.] In State v. Lackershire, 734 N.W.2d 23 (Wis. 2007), the Wisconsin
Supreme Court considered a situation where a female defendant pleaded guilty to
statutory rape even though the facts suggested that she was the victim of rape. The
court held that the circuit court’s plea colloquy was inadequate. The court noted
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that there were substantial questions as to whether the defendant even committed
the charged offense and therefore the circuit court was obligated to make further
inquiries into the factual basis of the guilty plea. The court reversed and remanded
the case for a hearing on whether the defendant’s plea was knowing and intelligent.
[¶19.] The present case is distinguishable from Lackershire because, here, the
circuit court’s colloquy certainly established a factual basis for the guilty plea. The
court noted that LeGrand was facing multiple charges in both Beadle and Meade
Counties. LeGrand commented clearly that the nine felony charges in Meade
County were the motivating basis for his plea. Furthermore, he stated that he had
read and understood the plea agreement which explicitly waived the affirmative
defenses of self-defense and justifiable homicide. For these reasons, the circuit
court found that the plea was intelligently made.
[¶20.] In United States ex rel. Crosby v. Brierly, 404 F.2d 790 (3rd Cir. 1968),
the defendant pleaded guilty to two murder indictments and was sentenced to life
imprisonment. The Third Circuit Court of Appeals held that the plea did not
comport with due process and applied the totality of the circumstances. The court
noted that the defendant was only 22 years old at the time of the plea, he repeatedly
switched his plea from guilty to not guilty, the trial court did not inquire into his
understanding of the consequences of the plea, his trial counsel erroneously
misstated relevant law to the defendant, and the defendant presented testimony
that negated the plea of guilty.
[¶21.] Here, LeGrand was 42 years of age at the time of the plea agreement.
The circuit court conducted an extensive colloquy with LeGrand that covered over
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thirteen pages of transcript and consisted of many questions that required narrative
answers. LeGrand’s trial counsel did not misstate the law as did Brierly’s counsel.
Lastly, LeGrand’s testimony did not contradict his plea.
[¶22.] The United States Supreme Court decision North Carolina v. Alford is
applicable to the present issue. 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
In Alford, the defendant was charged with first-degree murder. The defendant
pleaded guilty to second-degree murder while simultaneously disclaiming guilt
because of the threat of the death penalty. The defendant argued that his plea was
constitutionally deficient because he did not admit to second-degree murder. The
Court noted that an individual “may voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence even if he is unwilling or unable to
admit his participation in the acts constituting the crime.” Id. 400 U.S. at 37, 91 S.
Ct. at 167. The Court concluded that the defendant intelligently determined that a
trial was not in his best interest and that his interests required an admission of
guilt considering the strong evidence of actual guilt.
[¶23.] Likewise, LeGrand determined that a trial was not in his best interest
in light of the nine felony charges against him in Meade County and the second-
degree murder charge in Beadle County. Despite LeGrand’s later protestation of
innocence, there were certainly weaknesses and inconsistencies in his case. For
example, Hein’s body was found in the driveway despite LeGrand’s testimony that
Hein charged into LeGrand’s home. LeGrand concluded that his interests were best
served by pleading guilty to voluntary manslaughter in the first degree and
securing a maximum sentence of 40 years.
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[¶24.] Furthermore, LeGrand’s assertion that he was not aware of the
defenses of self-defense or justifiable homicide is not supported by the record. Both
of these defenses were explicitly mentioned in the plea agreement and the
acknowledgement of rights and consent to the plea agreement. 6 LeGrand testified
during the plea hearing that he had read and reviewed both documents with his
attorneys and that he did not have any questions about them. His trial counsel also
testified during the habeas corpus proceeding that they had both communicated to
LeGrand that he would be waiving his defenses upon signing the plea agreement.
Despite the potential availability of these defenses, LeGrand concluded that the
plea agreement was a “fair compromise” in light of the nine pending felony charges
in Meade County.
[¶25.] The totality of the circumstances supports the conclusion that the plea
was voluntary and intelligent. At the time LeGrand pleaded guilty, he was 42 years
of age, he had two prior felonies and numerous misdemeanors on his record, he was
represented by counsel, and he had over two weeks to consider the plea agreement
before signing it. We agree with the habeas court that the plea was voluntary and
intelligent.
[¶26.] LeGrand also argues for the first time on appeal to this Court that, but
for the alleged SDCL chapter 23A-7 (Rule 11) violations, he would not have entered
6. The plea agreement states that LeGrand “[w]aives any affirmative defense,
including self-defense, and any claims of excusable or justifiable homicide.”
The consent to the plea bargain agreement states that LeGrand waives “any
affirmative defense including self-defense and any claims of excusable or
justifiable homicide.”
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into the plea agreement. This argument was not presented to the habeas court and
is therefore waived. This Court will not address arguments that are raised for the
first time on appeal. Kreisers Inc. v. First Dakota Title Ltd. P’ship, 2014 S.D. 56, ¶
46, 852 N.W.2d 413, 425. The habeas court and the appellee were not provided an
opportunity to consider this argument, thus we decline to reach it today. 7
[¶27.] 2. Whether the circuit court abused its discretion when it
denied LeGrand’s motion to withdraw his guilty plea.
[¶28.] The State asserts that the principle of res judicata applies to
LeGrand’s argument that the circuit court abused its discretion when it denied
LeGrand’s motion to withdraw his guilty plea. “It has long been settled law in
South Dakota that issues which were raised in a direct appeal are res judicata on a
writ of habeas corpus.” Sprik v. Class, 1997 S.D. 134, ¶ 20, 572 N.W.2d 824, 828.
Furthermore, “[r]es judicata bars the reexamination of those issues substantially
raised in the petitioner’s direct appeal.” Lodermeier, 555 N.W.2d at 626. “The
doctrine of res judicata disallows reconsidering an issue that was actually litigated
or that could have been raised and decided in a prior action.” Ramos v. Weber, 2000
S.D. 111, ¶ 8, 616 N.W.2d 88, 91.
7. Even if the argument were not waived, this argument may not be proper for
collateral attack. Lien v. Class, 1998 S.D. 7, ¶ 7 n.6, 574 N.W.2d 601, 606 n.6
(holding that “the failure of a trial court to establish a factual basis does not
reach the constitutional or jurisdictional proportions necessary to bring the
question within the scope of habeas corpus”); Petrilli v. Leapley, 491 N.W.2d
79, 82 (S.D. 1992) (stating that “a conviction based on a guilty plea is not
subject to collateral attack under the federal habeas corpus act solely on the
basis that a formal violation of Rule 11 occurred, such violation being neither
constitutional or jurisdictional” (citing United States v. Timmreck, 441 U.S.
780, 783-84, 99 S. Ct. 2085, 2087, 60 L. Ed. 2d 634 (1979))).
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[¶29.] On LeGrand’s direct appeal to this Court, LeGrand argued that the
circuit court abused its discretion in not allowing the withdrawal of his guilty plea. 8
LeGrand asked the Court to review his motion to withdraw his plea because: (1)
LeGrand felt coerced by the length of time he was given to consider the plea
bargain; (2) LeGrand was impaired by prescription medication during the plea
hearing; (3) the State would suffer no prejudice; and (4) LeGrand had a tenable
defense of self-defense or defense of his family to the charges in Beadle County.
[¶30.] Here, as he did in the direct appeal of his conviction, LeGrand raises
the issue that the circuit court abused its discretion when it denied the withdrawal
of his guilty plea. LeGrand asserts that this issue is not prohibited by res judicata
because he is advancing arguments not addressed on direct appeal. The basis for
LeGrand’s argument now is that LeGrand had a tenable affirmative defense and
therefore the circuit court should have allowed withdrawal due to “actual
innocence” and that the plea was “contrary to truth.” LeGrand alleges that the only
argument raised on direct appeal involved LeGrand’s mental state at the time of the
plea hearing; thus, the argument on direct appeal is different than the argument
8. In his reply brief in this appeal, LeGrand attached as an appendix the entire
brief he submitted to this Court in his direct appeal. The State objects and
asks us to strike the direct appeal brief from the appendix to LeGrand’s reply
brief. Except for three pages, the direct appeal brief was not made part of the
habeas court’s record nor did the habeas court take judicial notice of
LeGrand’s appellate criminal file. However, SDCL 19-10-3 (Rule 201(d))
provides that “[a] court may take judicial notice, whether requested or not.”
We find it instructive to consider and therefore take judicial notice of
LeGrand’s direct appeal brief.
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here. This misconstrues the record. LeGrand did indeed argue that he had a
tenable affirmative defense on direct appeal. 9
[¶31.] Accordingly, because the arguments before us on the denial of his
motion to withdraw are identical or substantially the same as the arguments raised
on direct appeal, res judicata precludes the reconsideration of this issue. See
Lodermeier, 555 N.W.2d at 626.
[¶32.] 3. Whether LeGrand was denied his constitutional right to
effective counsel.
[¶33.] LeGrand presents three instances of alleged ineffective assistance of
counsel. LeGrand claims that trial counsel (1) did not adequately advise him of the
defenses of self-defense and justifiable homicide and the accompanying burdens of
proof; (2) failed to timely file or zealously advocate for withdrawal of his guilty plea
before sentencing; and (3) failed to adequately argue the presumption in favor of
liberally allowing withdrawal of a plea or provide sufficient written argument to
prevent a summary affirmance on appeal.
[¶34.] We have consistently held that “[t]here 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
9. The Appellant’s Brief on direct appeal states in pertinent part: “Reviewing
LeGrand’s motion in light of the totality of the circumstances of the case: (1)
LeGrand felt coerced; (2) LeGrand was impaired by prescription medication;
(3) the State would suffer no prejudice; and (4) LeGrand had an arguable
defense to present to a jury, it is clear that the Trial Court abused its
discretion by not granting the motion.” (Emphasis added.)
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v. Craig, 2014 S.D. 43, ¶ 38, 850 N.W.2d 828, 838 (quoting State v. Thomas, 2011
S.D. 15, ¶ 21, 796 N.W.2d 706, 713). This Court analyzes claims of ineffective
assistance of counsel under the two-prong test announced in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Denoyer v.
Weber, 2005 S.D. 43, ¶ 19, 694 N.W.2d 848, 855. Under the first prong, a defendant
must show that “counsel’s performance was so deficient that he was not functioning
as ‘counsel’ guaranteed by the Sixth Amendment;” and under the second prong, a
defendant “must show that counsel’s deficient performance prejudiced” him. Steiner
v. Weber, 2011 S.D. 40, ¶ 6, 815 N.W.2d 549, 551-52. In order to establish prejudice,
a defendant must demonstrate that “there is a reasonable probability that, but for
counsel[’]s unprofessional errors, the result of the proceeding would have been
different.” Craig, 2014 S.D. 43 ¶ 38, 850 N.W.2d at 838 (quoting Thomas, 2011 S.D.
15, ¶ 21, 796 N.W.2d at 713).
Affirmative defenses and accompanying burdens of proof
[¶35.] At the habeas hearing, LeGrand testified that trial counsel did not
adequately canvass him regarding potential defenses of self-defense and justifiable
homicide and did not advise him that the State would have the burden to disprove
the affirmative defenses beyond a reasonable doubt. Both of LeGrand’s court-
appointed attorneys, Donna Bucher and Randolph Stiles, testified at the habeas
hearing that they discussed with LeGrand the facts that would support his
affirmative defenses and which facts might detract. The habeas court asked Bucher
whether they clarified the difference between self-defense and justifiable homicide.
Bucher responded that they explained the two affirmative defenses in laymen terms
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and indicated that both defenses had a common feature of “reasonableness.” Stiles
explained to LeGrand that it was their contention that justifiable homicide may
apply, but it would come down to whether it was reasonable under the totality of
the circumstances. Bucher further testified that “I’m sure we had discussions about
the burden of proof, I don’t remember them specifically.”
[¶36.] When there is a conflict in witness testimony, it is the function of the
trier of fact to “resolve the factual conflicts, weigh credibility, and sort out the
truth.” State v. Guthmiller, 2014 S.D. 7, ¶ 27, 843 N.W.2d 364, 372. The habeas
court weighed the credibility of LeGrand and his trial counsel and determined that
LeGrand had a sufficient awareness of the affirmative defenses of self-defense and
justifiable homicide at the time of the plea hearing. 10 A review of the record
supports the habeas court’s finding that LeGrand was fully informed of the
affirmative defenses and the accompanying burdens of proof and that trial counsel’s
performance fell within the “wide range of professional assistance.”
10. Both the plea agreement and the acknowledgement of rights and consent to
the plea agreement explicitly mention the waiver of self-defense and
justifiable homicide. The plea agreement states that LeGrand “[w]aives any
affirmative defense, including self-defense, and any claims of excusable or
justifiable homicide,” and the acknowledgement of rights and consent to the
plea agreement states that LeGrand waives “any affirmative defense
including self-defense and any claims of excusable or justifiable homicide.”
LeGrand testified during the plea hearing that he had read these documents
and understood them. Furthermore, during the hearing on the motion to
withdraw, LeGrand testified that he knew about the defense of self-defense
before he entered a plea of guilty.
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Timeliness and zealous advocacy
[¶37.] LeGrand alleges that he received ineffective assistance of counsel
because his trial counsel neither timely filed nor zealously advocated withdrawal of
LeGrand’s guilty plea before sentencing. The day after entering the guilty plea,
LeGrand attempted to contact his counsel and withdraw the plea. LeGrand called
his counsel three to five times the following week and received no response from
them. LeGrand then wrote a letter to his counsel asking to withdraw the guilty
plea. 11 Sixteen days later, LeGrand’s counsel filed the motion to withdraw the
guilty plea, which did not mention any specific grounds for withdrawal. 12 LeGrand
emphasized that his trial counsel failed to advocate the merits of the defenses of
self-defense or justifiable homicide or indicate that the circuit court found self-
defense to be a “tenable” and potentially meritorious defense.
[¶38.] The circuit court conducted an extensive hearing regarding the motion
to withdraw and heard evidence and testimony as to whether LeGrand was coerced,
whether he had adequate time to consider the plea, whether he was impaired by
11. The September 20, 2010 letter stated:
I have been trying to get a hold of you since last week, but have
been unable since day 1 of entering my guilty plea. I have
regretted it I completely don’t want to plea [sic] guilty to
something I did not do/commit. Please call! I need a change of
plea!
12. The motion to withdraw, in its entirety, stated:
COMES NOW the defendant, and moves to withdraw the guilty
plea in the above-entitled matter for the reason that the best
interests of justice would be served thereby.
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prescription medication, and whether the potential defenses justified withdrawal.
After full consideration of the evidence, the circuit court determined that the motion
to withdraw was based upon a mere change in mind.
[¶39.] Again, LeGrand has not met his heavy burden of establishing that his
counsel’s performance was so deficient that they were not functioning as “counsel,”
and that, but for their deficient performance, there is a reasonable probability that
the result of the proceeding would have been different. LeGrand’s trial counsel filed
the motion to withdraw before sentencing occurred and the circuit court conducted
an extensive hearing on the matter. LeGrand is unable to show that trial counsel’s
performance fell outside the “wide range of professional assistance” or that the
result of the motion to withdraw hearing would have been different had the motion
been submitted earlier.
Direct appeal
[¶40.] LeGrand alleges that trial counsel failed to provide effective assistance
of counsel on appeal. First, LeGrand relies on State v. Engelmann, 541 N.W.2d 96,
100 (S.D. 1995) to assert that his trial counsel did not adequately argue the
presumption in favor of liberally allowing withdrawal of a plea before sentencing.
However, LeGrand’s trial counsel did indeed advance this argument on appeal, and,
in fact, cited the exact same case, Engelmann, that LeGrand now claims trial
counsel should have cited.
[¶41.] Second, LeGrand alleges that his trial counsel failed to provide
sufficient written argument to prevent a summary affirmance. As a basis, LeGrand
argues that counsel did not form an adequate record, did not indicate the legitimacy
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of LeGrand’s affirmative defenses, and did not file a reply brief. After a review of
the briefs presented on direct appeal, we agree with the habeas court that the brief
was adequate. 13
[¶42.] With respect to all three of LeGrand’s arguments of ineffective
assistance of counsel, LeGrand has not shown deficient performance by counsel nor
has he shown that these alleged errors prejudiced him or that there is a reasonable
probability the result of the circuit court proceedings or direct appeal would have
been different. Accordingly, LeGrand was not denied effective assistance of counsel.
Conclusion
[¶43.] The habeas court correctly determined that LeGrand’s guilty plea was
voluntary and intelligent. The principles of res judicata preclude us from
considering whether the circuit court abused its discretion when it denied
LeGrand’s motion to withdraw. Lastly, LeGrand was not denied effective assistance
of counsel, either during the circuit court proceedings or on appeal. We affirm.
[¶44.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and
SEVERSON, Justices, concur.
13. We note that habeas counsel relies predominately on the same four cases that
trial counsel cited on direct appeal.
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