(concurring in part, dissenting in part).
ISSUE I — INEFFECTIVE ASSISTANCE OF COUNSEL
In my opinion, Deserly’s trial counsel was ineffective. His counsel did not investigate the facts to determine the amount of damages which Deserly wrought. It is axiomatic that this felony criminal damage conviction would be set aside if the facts did not support the amount of damage requisite to satisfy the statute. An investigation by the Court Services Officer revealed there was only $50.00 damage to the fence. However, the record discloses that Deserly was driving his mother-in-law’s automobile without permission and caused $500.00 damage to this automobile. Adding the fence damage to the automobile damage, brings the damage to a dollar amount in excess of the $200.00 statutory figure. SDCL 22-34-1.
Conceding there is the original ineffectiveness of counsel due to weak investigation, the State’s ease against Deserly on the felony charge is additionally saved because Deserly did not retract his guilty plea. When Deserly discovered the $50.00 damage revelation of the Court Services Officer, it was after he had pleaded guilty. But, importantly, it was before he was sentenced. Circuit Judge Amundson gave him an opportunity to retract his plea — before the sentencing process — but Deserly did not do so.
At the habeas corpus hearing, the habeas court judge emphasized the proposition that Deserly’s trial counsel’s ineffectiveness, with respect to the property damage was “irrelevant,” because Deserly’s guilty plea was for the “failure to appear” charge. Not so. The plea bargain involved both the failure to appear charge and the property damage charge. Perforce, the effectiveness of trial counsel’s investigation pertaining to either charge was impactual upon Deserly’s decision concerning the plea bargain as a whole. This standard of review is supported by the holding in State v. Loughery, 908 F.2d 1014 (10th Cir.1990). Therefore, the habeas court erred in this regard, which poses the query: Does it logically follow Deserly prevails on this issue? No. Why? Because Deserly stood by his plea even when he knew (at that time) that the damage was (supposedly) only $50.00. Having this knowledge, he persisted in a plea of guilty. In the final analysis, Deserly had to demonstrate or establish, and could not, that there was a “reasonable probability that, but for counsel’s [ineffectiveness], the results of the proceeding would have been different.” The second prong of the test in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), has not been met.
ISSUE II — FAILURE TO APPEAR AT CRIMINAL SETTLEMENT CONFERENCE IN SECOND JUDICIAL CIRCUIT
Apparently, in the Second Judicial Circuit, to expedite the flow of criminal cases, a *910creature was created termed a “dispositional conference;” this is a “settlement conference.” Thereat, a representative of the state’s attorney’s office and defense counsel (plus the defendant) meet to have an informal discussion. Nowhere in our state code is such a proceeding mentioned. This conference is simply not a creature of statute. Said another way, it is not law.
In the Second Judicial Circuit, there exists a “Rule Three,” which are court rules peculiar to that circuit. Under SDCL 23A-45-12 of our state code, local court rules may be adopted. In said circuit, this dispositional conference is an informal guideline. However, it was not adopted as a court rule.
Can un-adopted court rules (or guidelines — really—-just a local practice) be law? I think not. It simply has no force of law. To be a legitimate child of the law, it must have a birthright. So, this takes us to the question if a felony can be perpetrated, in law, based upon a violation of an informal get together between a state’s attorney (or his representative), defense counsel and defendant? I maintain that it cannot.
State strongly advocates that Deserly’s felony crime was failing to appear before a magistrate. Let us examine such advocacy in light of the record. A necessary element of failure to appear, under SDCL 23A-43-31 is the requirement that the defendant, who has been released, appear “before any court or judicial officer,” as emphasized below:
Any person who, having been released pursuant to this chapter, fails to appear before any court or judicial officer as required shall, subject to the provisions of this title, forfeit any security which was given or pledged for his release and, in addition, shall:
(1) If he was released in connection with a charge of a felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be guilty of a Class 5 felony; ...
Obviously, an informal setting, trying to work out a plea bargain, is not a court nor appearing before a judicial officer. It is the antithesis thereof; it is an attempt to work out something on the case to avoid appearing before a court or in a judicial setting so the aura of negotiations can take place. Thereby, perhaps, the Court or judicial officer is not stained or prejudiced in the give and take process. No judge wants to sit and hear advocacy, on possible plea bargaining, in an arena of wrangling. Involvement in such a hearing would compromise the judge’s objectivity.
Deserly was released on a “Personal Bond and Appearance Bond” by virtue of Magistrate Joe Neiles’ Order. I set it forth below:
That the Defendant, Charles Deserly, is to appear before Magistrate of the 2nd Judicial Circuit at Sioux Falls, South Dakota, at the Minnehaha County Courthouse on the 12 [sic] day of Dec, 1988, at 1030 A.m., [sic] and in such other places as Defendant may be required to appear in accordance with any and all orders or directions relating to the Defendant’s appearance in the above-entitled matter as may be given or issued by the Magistrate or the Circuit Court Judge of the 2nd Judicial Circuit or any other Court to which the Defendant may be removed, or the cause transferred; (Emphasis added.)
The bond further provided:
FAILURE TO APPEAR AT THE TIMES REQUESTED MAY RESULT IN THE CONVICTION OF A CLASS FIVE FELONY (5 years imprisonment in the State Penitentiary and/or a fine of $5,000 may be imposed) IF THE FAILURE TO APPEAR OCCURRED IN A FELONY CASE. FAILURE TO APPEAR IN A MISDEMEANOR CASE MAY RESULT IN A PENALTY OF ONE YEAR IN THE COUNTY JAIL OR $1,000 FINE OR BOTH.
Who signed the document for a “disposi-tional conference?” Not a judge. Not a magistrate. It was a “pre-signed” order, signed by a deputy clerk of courts, ordering (ostensibly) Deserly to appear at a disposi-tional conference on December 12, at 10:30 A.M.
Deserly did not appear. Remember, Des-erly posted a personal recognizance bond. State could have acted upon the bond by securing his immediate arrest with a Bench Warrant. But was his action — a failure to *911appear — a violation of a state statute? No. Though the bond addresses a failure to appear, it cannot alter a statutory requirement. Simply put, we have no order issued by a judicial officer (Magistrate or Circuit Judge) to appear before any court or judicial officer, as set forth in SDCL 23A-43-31. Furthermore, I note that a bailiff filled in the order, an order pre-signed by the deputy clerk.
Magistrate Neiles testified that a court appearance followed the dispositional conference.
The statute in question is plain. It requires Deserly to appear before a court or judicial officer. In arriving at the intention of the Legislature, it is presumed that the words of the statute have been used to convey their ordinary, popular meaning, unless the context or the apparent intention of the Legislature justifies any departure from the ordinary meaning. Oahe Conservancy Subdistrict v. Janklow, 308 N.W.2d 559 (S.D.1981); Wood v. Waggoner, 67 S.D. 365, 293 N.W. 188 (1940); SDCL 2-14-1.
ISSUE THREE — NON CREDITED TIME SERVED IN MONTANA
Without acceding to the holding of the majority opinion that Appellant was guilty of the crime of failure to appear, I generally agree to the discourse of Issue III.