McDonough v. Weber

#26914-a-DG
2015 S.D. 1
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
CHASKE MCDONOUGH, Petitioner and Appellant,
v.
DOUGLAS WEBER, Warden of the
South Dakota State Penitentiary, Respondent and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA
****
THE HONORABLE STEVEN R. JENSEN
Judge
****
MANUEL J. DE CASTRO, JR.
Sioux Falls, South Dakota Attorney for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.
****
ARGUED ON
OCTOBER 7, 2014
OPINION FILED 01/21/15
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GILBERTSON, Chief Justice
[¶1.] Petitioner, Chaske McDonough, appeals the First Judicial Circuit
Court’s denial of his amended petition for writ of habeas corpus. McDonough
argues the record did not present a clear factual basis upon which the sentencing
court could have accepted his plea of guilty to first-degree manslaughter.
McDonough also argues that he received ineffective assistance of counsel because
defense counsel did not move to suppress certain incriminating statements
McDonough made and because defense counsel failed to properly advise McDonough
on his right to appeal the sentencing court’s decision. McDonough asks this Court
to issue a writ of habeas corpus and to vacate his guilty plea, the sentencing court’s
subsequent judgment, and its sentence. We deny McDonough’s request and affirm.
Facts and Procedural History
[¶2.] On August 11, 2002, after consuming several beers with his friends in
Vermillion, South Dakota, Chaske McDonough threw a beer bottle that broke a
window in a mobile home belonging to the victim, Mark Paulson. Paulson’s body
was discovered in his home two days later, beaten and stabbed twice in the neck.
McDonough soon interacted with several law enforcement officers, including Special
Agent Todd Rodig of the South Dakota Division of Criminal Investigation. First,
Agent Rodig briefly interviewed McDonough near the crime scene on August 15,
2002. The next day, Agent Rodig interviewed McDonough a second time at the
Vermillion Public Safety Center 1 (the Center). On both occasions, McDonough
1. The Public Safety Center houses both the Vermillion Police Department and
the Clay County Sheriff’s Office.
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denied any involvement in Paulson’s death. Agent Rodig did not consider
McDonough to be in custody at any point during these interviews and did not read a
Miranda warning to McDonough.
[¶3.] Later in the day, on August 16, 2002, Detective Lowell Oswald of the
Vermillion Police Department located McDonough and requested that he return to
the Center for additional questioning. McDonough reluctantly agreed, and
Detective Oswald drove McDonough to the Center in an unmarked automobile. The
vehicle did not have a detention cage, Detective Oswald was dressed in plain
clothing, McDonough was not hand-cuffed, and he rode in the front seat with
Detective Oswald.
[¶4.] At the Center, Deputy Sheriff Andy Howe, who considered McDonough
to be a suspect, conducted the interview. The interview room door was closed and
unlocked, although McDonough was not aware that it was unlocked. Although
Deputy Howe did not initially read a Miranda warning to McDonough, he did tell
him that he appreciated him coming to the Center and that he was free to leave at
any time. Deputy Howe also assured McDonough that he could go home at the
conclusion of the interview, but did not promise that he would never be arrested in
connection with Paulson’s death. At one point, McDonough asked Deputy Howe,
“You think I should have, like, my attorney here?” Deputy Howe told McDonough
that he would have to make that choice for himself.
[¶5.] During the interview, McDonough told Deputy Howe two different
versions of what occurred on the night of August 11, 2002. At first, McDonough
said Paulson reacted by coming out of his house and asking who had thrown the
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bottle. McDonough initially denied any involvement, but soon confessed after one of
his associates indicated to Paulson that McDonough threw the bottle. According to
McDonough, Paulson asked why he threw the bottle and simply requested that
McDonough not make any further attempts at throwing bottles over the home.
Paulson appeared “nice” and “quiet” and acted “reasonable” by not swearing at
McDonough and his associates. Afterward, McDonough went home, shut his door,
and went to bed. McDonough claimed that he did not see who was last with
Paulson, implying that Paulson was still alive when McDonough left.
[¶6.] The second version that McDonough told Deputy Howe is not as
pleasant. In the second version, Paulson was “pissed” that McDonough hit his
trailer. He exited his home, shirtless, reeking of alcohol, and hurled profanities at
McDonough and his associates. McDonough told Paulson that he had not seen
anything break and then suggested they enter the home to search for damage.
After they discovered a broken window, McDonough offered to pay for the damage
and exited the home. Paulson asked McDonough to reenter his home and, after
McDonough did so, Paulson gave him a beer. After the two engaged in conversation
for a short time, Paulson abruptly became upset again and told McDonough to
leave. Paulson apparently attempted to shove McDonough out the door, but then
remembered the matter of his broken window and instead asked McDonough to
take a seat and have another beer. After another brief conversation, Paulson
suddenly grabbed McDonough by the shirt and held him down where he was sitting.
McDonough struck Paulson in the head, broke free, and then struck him four more
times in the temple. Paulson attempted to choke McDonough, who struck Paulson
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and knocked him down. Fearing for his life, McDonough grabbed a small knife from
a lamp stand and stabbed Paulson twice in the neck as the man attempted to stand
up. McDonough checked his pulse, paced throughout the trailer, threw away the
beer cans, threw the knife in some neighboring woods, and later threw away the
shoes he was wearing during the confrontation.
[¶7.] The interview lasted about one and one-half hours with several short
breaks. Although Deputy Howe employed some interrogation tactics, he never
raised his voice to McDonough or appeared physically threatening, and McDonough
appeared mostly relaxed throughout the interview. Deputy Howe did not give a
Miranda warning to McDonough until after he finished recounting the second
version of events. After informing McDonough of his rights, Deputy Howe asked
McDonough to write a statement detailing his involvement in the killing. Despite
acknowledging his rights outlined in the Miranda warning, McDonough proceeded
to write a statement detailing his earlier admissions and also verbally repeated
many of the same. When the interview concluded, Deputy Howe returned
McDonough to his home, but McDonough was taken into custody later that evening.
McDonough denied any knowledge of Paulson’s sexual preferences—or the
possibility of a sexual motive—during the interview.
[¶8.] The next day, Deputy Howe again interviewed McDonough, who
further varied the details of Paulson’s killing. This time, McDonough described
Paulson lying face down on the floor, head turned to the left. McDonough was on
top of Paulson, repeatedly punching him in the back of the head. McDonough then
turned around to grab the knife from a table with his right hand and, with the blade
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protruding outward from his thumb and index finger, reached across Paulson to
stab him in the neck, twice. This account is consistent with both the autopsy, which
revealed injuries to the back of Paulson’s head, and forensic evidence indicating
Paulson was on the floor, or very near it, when he was stabbed. McDonough
repeated his insistence, first expressed the previous day, that there was no sexual
element to this encounter.
[¶9.] McDonough told yet another version of this story at his change of plea
hearing. In this version, Paulson exited his home after McDonough struck it with a
beer bottle and an argument ensued. Paulson asked McDonough to enter the home
and investigate for damage. The two discovered that the bottle had broken a
window, and McDonough offered to pay for the damage. Paulson said he did not
want McDonough to pay for the window. The two conversed for a short time,
Paulson offered McDonough a beer, and then they continued to talk about sports.
The two exited the home, and Paulson asked, “[W]hat are we going to do about the
window?” Paulson then went back inside, and McDonough followed, hoping he
would not have to pay for the window. McDonough then asked to use Paulson’s
restroom, but, according to McDonough, Paulson refused and instead asked to
watch McDonough urinate outside. Despite claiming that he felt like Paulson was
propositioning him, McDonough stayed to finish his beer. Paulson again asked
about the window, McDonough repeated his offer to pay, and Paulson told him he
did not want money. Paulson put a hand on McDonough, who responded by hitting
Paulson. McDonough tried to leave, Paulson grabbed him, and then McDonough
knocked Paulson down and stabbed him. Evidence was introduced that McDonough
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was abused physically and sexually as a child. He was also diagnosed as having
posttraumatic stress disorder (PTSD) as a result of this abuse. McDonough now
claims that Paulson triggered his PTSD by propositioning and touching him.
[¶10.] On August 29, 2002, a Clay County Grand Jury indicted McDonough
for second-degree murder in violation of SDCL 22-16-7 and SDCL 22-16-9 (repealed
2006). McDonough pleaded not guilty on August 30, 2002. McDonough’s court-
appointed defense counsel, Phil Peterson, retained a private investigator to explore
the possibility of a self-defense claim. The investigator did not give Peterson a
written report, but concluded that self-defense was not likely. Peterson also
concluded that self-defense was not a viable claim because Paulson did not have a
weapon within reach, McDonough had given several differing accounts of what
occurred, McDonough had no defensive injuries to support his claim, McDonough
had “cleaned up” the crime scene, and McDonough disposed of evidence immediately
after stabbing Paulson. Nevertheless, Peterson testified that he intended to assert
a claim of self-defense if the case had gone to trial.
[¶11.] Due to his past experience, Peterson was convinced that the State was
not likely to offer a favorable plea agreement if he attempted a suppression motion.
The State did offer to dismiss the murder charge in exchange for McDonough
pleading guilty to first-degree manslaughter. Given the mandatory life sentence
that McDonough faced with a conviction of murder, and considering the weakness of
McDonough’s self-defense claim, Peterson recommended that McDonough accept
the offer and plead guilty to first-degree manslaughter. Although Peterson also told
McDonough about the possibility of getting a jury instruction on second-degree
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manslaughter as a lesser-included offense to second-degree murder, McDonough
appeared before the sentencing court on November 24, 2002, and pleaded guilty to
violating SDCL 22-16-15(3) by committing manslaughter in the first degree. On
April 14, 2003, the circuit court sentenced McDonough to imprisonment in the
South Dakota State Penitentiary for a term of 85 years, but suspended the
execution of 20 years according to certain terms and conditions.
[¶12.] McDonough did not directly appeal his sentence or the sentencing
court’s acceptance of his guilty plea. He now claims that he did not appeal because
Peterson did not meet with him until after the time for appeal lapsed. While it is
true that the log book Peterson kept for reimbursement purposes did not contain an
entry for meeting with McDonough immediately after his sentencing, Peterson
testified that he discussed the possibility of appealing the sentence with
McDonough. Peterson also testified that he advised McDonough that he would need
to request that the court appoint an attorney to represent him in his appeal. As
Peterson pointed out, he was only appointed to serve as McDonough’s defense
counsel on the underlying charge. McDonough also received instruction on how to
file an appeal at the sentencing hearing.
[¶13.] On August 30, 2013, the habeas court considered McDonough’s
amended application for writ of habeas corpus in a trial. The circuit court denied
the entirety of McDonough’s claims for habeas corpus relief and entered findings of
fact and conclusions of law on November 1, 2013.
[¶14.] McDonough raises two issues in this appeal:
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1. Whether the record clearly presented a factual basis
sufficient to support McDonough’s plea of guilty to the
charge of manslaughter in the first degree.
2. Whether defense counsel was ineffective by not
attempting to suppress statements McDonough made to
law enforcement officers or by failing to properly advise
McDonough of his appellate rights.
Standard of Review
[¶15.] As we have often said, we limit our review of a habeas appeal “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) (internal quotation marks omitted). As such, “[h]abeas 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.” Flute v. Class, 1997 S.D. 10, ¶ 8, 559 N.W.2d 554, 556
(quoting Weiker v. Solem, 515 N.W.2d 827, 830 (S.D. 1994)). The petitioner must
“prov[e] he is entitled to relief by a preponderance of the evidence.” Vanden Hoek,
2006 S.D. 102, ¶ 8, 724 N.W.2d at 861-62. “We review habeas factual findings
under the clearly erroneous standard and legal conclusions under the de novo
standard.” Meinders v. Weber, 2000 S.D. 2, ¶ 5, 604 N.W.2d 248, 252 (citing
Lodermeier v. Class, 1996 S.D. 134, ¶ 3, 555 N.W.2d 618, 621-22).
[¶16.] “A claim of ineffective assistance of counsel presents a mixed question
of law and fact.” Vanden Hoek, 2006 S.D. 102, ¶ 9, 724 N.W.2d at 862 (citing Boyles
v. Weber, 2004 S.D. 31, ¶ 7, 677 N.W.2d 531, 536). When raising an ineffective-
assistance-of-counsel claim in habeas proceedings, a petitioner has the increased
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burden of demonstrating “gross error by counsel in recommending that [he or she]
plead guilty.” Coon v. Weber, 2002 S.D. 48, ¶ 12, 644 N.W.2d 638, 643 (citing Hofer
v. Class, 1998 S.D. 58, ¶ 11, 578 N.W.2d 583, 586).
Analysis and Decision
1. Whether the record clearly presented a factual basis sufficient to
support McDonough’s plea of guilty to the charge of
manslaughter in the first degree.
[¶17.] McDonough argues that the record did not present a clear factual basis
sufficient to permit the sentencing court’s acceptance of his guilty plea. 2 He claims
2. One of the issues McDonough raised in his initial habeas action was a claim
that the circuit court did not advise him of his rights under Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and that he
did not knowingly, voluntarily, and intelligently enter his guilty plea. The
habeas court rejected these claims, finding that McDonough was fully advised
of all his statutory and constitutional rights at both his arraignment and
change of plea hearing. McDonough did not raise these issues on appeal to
this Court. Despite this waiver, McDonough repeatedly used the phrase
“knowing, voluntary, and intelligent” in his brief and at oral argument. This
use appears to derive from our decision in State v. Nachtigall, where we said
the purpose of requiring the circuit court to establish a factual basis on the
record is to “assure itself and this Court the guilty plea was voluntarily and
intelligently entered.” 2007 S.D. 109, ¶ 8, 741 N.W.2d 216, 220.
In essence, McDonough’s argument is as follows: establishing a factual basis
on the record is a necessary condition of a voluntary and intelligent plea; the
circuit court failed to establish a factual basis; therefore, McDonough did not
knowingly and intelligently enter a guilty plea. However, while “[t]he factual
basis requirements . . . were designed to . . . ensur[e] that a guilty plea is
entered voluntarily and intelligently[,]” id. (quoting State v. Shulz, 409
N.W.2d 655, 658 (S.D. 1987)) (internal quotation marks omitted),
establishing a factual basis is not necessarily synonymous with a knowingly
and intelligently entered plea. The former focuses on the court; the latter,
the defendant.
Thus, we view McDonough’s argument that he did not voluntarily and
intelligently enter his plea to mean simply that the circuit court failed to
establish a factual basis sufficient to support McDonough’s plea. We note,
(continued . . .)
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the record was deficient in two ways. First, McDonough argues the sentencing
court did not have a proper factual basis to accept his plea because he maintained
that he acted in self-defense. In essence, McDonough argues that admitting all
elements of a crime while contemporaneously asserting a possible defense is
functionally equivalent to pleading guilty while denying an essential element of the
crime. Second, McDonough simply argues nothing in the record of his arraignment
or change of plea hearing established that Paulson had actually died. Because a
death is a necessary element of the crime of manslaughter, McDonough concludes
the sentencing court did not have a proper factual basis to accept his plea.
[¶18.] In the initial habeas proceedings, McDonough first raised these
arguments as a part of his ineffective-assistance-of-counsel claim. Now, on appeal
from the habeas court’s decision, he asks us to consider them both as an
independent ground for relief and as a reason to conclude that he was deprived of
his right to counsel during his criminal prosecution. Although we may view the
denial of a petitioner’s basic constitutional rights in a criminal case to be a matter
of jurisdictional error, Flute, 1997 S.D. 10, ¶ 8, 559 N.W.2d at 556 (quoting Weiker,
515 N.W.2d at 830), we have long held that “[h]abeas corpus cannot be utilized as a
substitute for an appeal[,]” State ex rel. Smith v. Jameson, 70 S.D. 503, 507, 19
N.W.2d 505, 507 (1945) (citing Knewel v. Egan, 268 U.S. 442, 447, 45 S. Ct. 522,
525, 69 L. Ed. 1036 (1925)). However, even if we assume that this is not an attempt
________________________
(. . . continued)
however, that even if McDonough’s argument on appeal were interpreted to
mean that the circuit court was required to canvass him on potential
affirmative defenses, we recently rejected this notion in Legrand v. Weber,
2014 S.D. 71, ¶¶ 11-26, 855 N.W.2d 121, 126-29.
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to use habeas corpus in place of a proper appeal, we have previously said, “[T]he
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.” Lien v. Class, 1998 S.D. 7, ¶ 7 n.6, 574 N.W.2d 601, 606 n.6 (citing
Petrilli v. Leapley, 491 N.W.2d 79, 82 (S.D. 1992)). Whatever the term “certain
cases” might encompass, see Flute, 1997 S.D. 10, ¶ 8, 559 N.W.2d at 556 (quoting
Weiker, 515 N.W.2d at 830), a court’s failure to establish a clear factual basis on the
record does not constitute a violation of a petitioner’s basic constitutional rights.
[¶19.] In Petrilli, for example, the petitioner sought habeas relief to avoid a
habitual offender charge in South Dakota by collaterally attacking a prior
conviction from California. 491 N.W.2d at 81. Petrilli, who was represented by
counsel, pleaded guilty in California as part of a plea agreement. Id. In the habeas
proceeding, Petrilli did not argue there was no factual basis for his plea, but rather
that the California court did not comply with SDCL 23A-7-2 because it failed to
clearly identify the factual basis for accepting the plea on the record. Id. at 83 n.2.
Despite the fact that the California court did not inquire into the factual basis at
all, this Court denied the petitioner habeas relief. Id. at 86. We noted that the
United States Supreme Court previously held, “[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 nor jurisdictional.” Id. at 83 n.2 (citing United States v. Timmreck,
441 U.S. 780, 783-84, 99 S. Ct. 2085, 2087, 60 L. Ed. 2d 634 (1979)). Similarly, we
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concluded that Petrilli’s “only claim is a violation of SDCL 23A-7-2, which could
have been raised on direct appeal.” Id.
[¶20.] The case now before us is not materially distinguishable from Petrilli.
Although McDonough argues that his admission of the elements of first-degree
manslaughter was called into question by his contemporaneous assertion of self-
defense, and that the record did not contain evidence that Paulson had expired,
both arguments amount to no more than an assertion that the sentencing court
acted contrary to SDCL 23A-7-2 in accepting his guilty plea. 3 Even if we were
3. An argument could be made that, while Petrilli unequivocally pleaded guilty
in the California case, McDonough equivocated by pleading guilty while
raising a possible defense. It is true that we have previously held that
“[w]hen a homicide defendant raises self-defense or justification, the State
must prove beyond a reasonable doubt that the killing was without authority
of law.” State v. Pelligrino, 1998 S.D. 39, ¶ 19, 577 N.W.2d 590, 598 (citing
Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 1971, 85 L. Ed. 2d
344, 353 (1985)). In the context of SDCL 23A-7-2, the argument would urge
adding the absence of self-defense as an element to homicide. Thus, the
argument would go, a plea that includes an uncontroverted assertion of an
affirmative defense would not provide an adequate factual basis upon which
to accept a guilty plea.
However, the United States Supreme Court has held, “The Due Process
Clause does not mandate that when a State treats absence of an affirmative
defense as an ‘element’ of the crime for one purpose, it must do so for all
purposes.” Engle v. Isaac, 456 U.S. 107, 120, 102 S. Ct. 1558, 1568, 71 L. Ed.
2d 783 (1982). Even if the State has the burden of proving the absence of an
affirmative defense at trial, we see no reason to treat the absence of an
affirmative defense as an element of homicide for purposes of establishing a
factual basis for a guilty plea. The primary reason for this is that a court, in
accepting a plea under SDCL 23A-7-2, must only “be satisfied there is a
factual basis for the plea, and not necessarily that the defendant is guilty.”
State v. Shulz, 409 N.W.2d 655, 659 (S.D. 1987). The distinction between
equivocation by denial and equivocation by raising a possible defense is
crucial. While the former involves the denial of an element of the charged
crime, the latter involves an unequivocal admission of all elements of the
charged crime. The result, in this case, is that McDonough, like Petrilli,
(continued . . .)
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convinced that the sentencing court so erred, no claim could “reasonably be made
that the error here resulted in a ‘complete miscarriage of justice’ or in a proceeding
‘inconsistent with the rudimentary demands of fair procedure.’” Timmreck, 441
U.S. at 784, 99 S. Ct. at 2087 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.
Ct. 468, 471, 7 L. Ed. 2d 417 (1962)). McDonough should have challenged such a
formalistic statutory violation by direct appeal, rather than in a habeas appeal.
Because the “finality served by the limitation on collateral attack has special force
with respect to convictions based on guilty pleas[,]” id. (footnote omitted), we will
not now permit McDonough’s “collateral attack to do service for an appeal.” Petrilli,
491 N.W.2d at 83 n.2 (quoting Timmreck, 441 U.S. at 783-84, 99 S. Ct. at 2087)
(internal quotation marks omitted).
2. Whether defense counsel was ineffective by not attempting to
suppress statements McDonough made to law enforcement
officers or by failing to properly advise McDonough of his
appellate rights.
[¶21.] McDonough also argues that he received ineffective assistance of
counsel. He claims that Peterson’s representation was ineffective in two ways.
First, McDonough claims Peterson should have attempted to suppress statements
that McDonough made during his recorded interview with Deputy Howe on August
16, 2002. Second, McDonough claims Peterson did not properly advise him of his
appellate rights in regard to either the sentencing court’s acceptance of his guilty
plea or his subsequent sentence. The United States Supreme Court explained the
test for determining whether a defendant received ineffective assistance of counsel
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(. . . continued)
admitted the essential elements of the crime for which he was charged and
does not dispute that basis.
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in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Strickland requires the petitioner to prove that his or her attorney performed
deficiently and that he or she was prejudiced by the deficient performance. Id. at
687, 104 S. Ct. at 2064; State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706, 713
(citing Steichen v. Weber, 2009 S.D. 4, ¶ 24, 760 N.W.2d 381, 392). We employ the
same standard. Luna v. Solem, 411 N.W.2d 656, 658 (S.D. 1987).
[¶22.] In order to succeed on a claim of ineffective assistance of counsel, a
petitioner must first establish that “counsel’s performance was deficient.”
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The petitioner “must show that
counsel’s representation fell below an objective standard of reasonableness.” Id. at
688, 104 S. Ct. at 2064; accord Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d at 713
(citing Dillon v. Weber, 2007 S.D. 81, ¶ 7, 737 N.W.2d 420, 424). This standard
“remains simply reasonableness under prevailing professional norms.” Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. In determining whether counsel met this
standard, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Owens v. Russell, 2007 S.D. 3, ¶ 8,
726 N.W.2d 610, 615 (quoting Hofer, 1998 S.D. 58, ¶ 10, 578 N.W.2d at 585-86).
[¶23.] Even if counsel failed to perform within prevailing professional norms,
a petitioner must still show that he or she was prejudiced as a result of counsel’s
deficient performance. “An error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment of a criminal proceeding if the error
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had no effect on the judgment.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. In
the context of a plea, the prejudice requirement “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process. In
other words, in order to satisfy the ‘prejudice’ requirement, the defendant must
show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985) (footnote omitted).
a. Whether defense counsel was ineffective by not attempting to
suppress statements McDonough made to Deputy Howe.
[¶24.] Applying the foregoing, then, McDonough would normally have to
show that Peterson’s performance fell short of prevailing professional norms.
Because this case involves a plea agreement and, consequently, the case did not
proceed to trial, McDonough must instead show that Peterson committed gross
error—i.e., that Peterson’s performance fell exceedingly short of prevailing
professional norms. See Coon, 2002 S.D. 48, ¶ 12, 644 N.W.2d at 643. Additionally,
“our review of counsel’s performance is highly deferential. We start with the strong
presumption that counsel’s conduct falls within the range of reasonable professional
assistance. We view the actions in light of the past circumstances and information,
not with the benefit of hind-sight.” Owens, 2007 S.D. 3, ¶ 13, 726 N.W.2d at 616
(citations omitted).
i. Whether Peterson should have attempted suppression of
the statements because McDonough was in custody.
[¶25.] McDonough’s suppression argument faces a number of obstacles, not
the least of which is its dependency on convincing us that he was in custody when
he made the incriminating statements. As we previously explained, “Miranda
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warnings are required only when there is a custodial interrogation.” State v.
Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d 512, 520 (citing State v. Aesoph, 2002 S.D.
71, ¶ 17, 647 N.W.2d 743, 751).
Any interview of one suspected of a crime by a police officer will
have coercive aspects to it, simply by virtue of the fact that the
police officer is part of a law enforcement system which may
ultimately cause the suspect to be charged with a crime. Nor is
the requirement of warning to be imposed simply because the
questioning takes place in the station house, or because the
questioned person is one whom the police suspect. Miranda
warnings are required only where there has been such a
restriction on a person’s freedom as to render him ‘in custody.’
State v. Thompson, 1997 S.D. 15, ¶ 23, 560 N.W.2d 535, 540 (quoting Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977)). We
use a two-part test to determine whether an interview was custodial. “[F]irst, what
were the circumstances surrounding the interrogation; and second, given those
circumstances, would a reasonable person have felt he or she was not at liberty to
terminate the interrogation and leave.” Wright, 2009 S.D. 51, ¶ 19, 768 N.W.2d at
520 (alteration in original) (citing State v. Johnson, 2007 S.D. 86, ¶ 22, 739 N.W.2d
1, 9). The test we apply is an objective one. Id.
[¶26.] Detective Oswald requested that McDonough accompany him to the
Center. Reluctant as McDonough’s assent might have been, it was still freely given.
Detective Oswald wore plain clothes and drove an unmarked police car.
McDonough sat in the front seat, unrestrained. At the Center, Deputy Howe
immediately told McDonough—prior to questioning—that he was free to leave at
any time and thanked McDonough for coming to the Center. Deputy Howe also
repeatedly assured McDonough that he would be returned to his home at the
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conclusion of the interview. When McDonough asked Deputy Howe if he could leave
at one point during the interview, Deputy Howe told him that it would not be to his
benefit. As the habeas court noted, Deputy Howe did not tell him that he was no
longer free to leave. It seems clear that McDonough remained because he
understood that law enforcement might pursue a warrant against him at a later
date. This does not support the conclusion that McDonough was unable to leave.
Rather, it seems indicative of an individual making a calculated choice regarding
the costs and benefits of early cooperation with law enforcement and freely choosing
to submit to an interview. Given the circumstances, we conclude that a reasonable
person would have felt at liberty to terminate the interview and, consequently,
McDonough was not in custody.
[¶27.] McDonough faces other insurmountable obstacles to his habeas appeal
as well. Even if we were to conclude that he was in custody during the first
interview with Deputy Howe, there are several sets of statements at issue: the
statements made prior to receiving a Miranda warning, the written statement
immediately following the Miranda warning, statements made at the time of
McDonough’s arrest, and the post-arrest statements made the following day. In
claiming that Peterson’s assistance was ineffective, McDonough appears to rely on
the “fruit of the poisonous tree” doctrine to assume that all of his statements would
have been suppressed if Peterson had been successful in suppressing the pre-
Miranda-warning statements. However, McDonough does no more than suggest
that “[h]ad Peterson challenged the statements and been successful McDonough
would have had a very strong self-defense case.” Simply describing what would
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have happened if the doctrine had been applied ignores the antecedent question of
whether or not application of the doctrine was likely. The question is not what
result would occur if Peterson had been successful. The question, rather, is whether
the potential gain considered in conjunction with the potential for success
outweighs the likely detriment. If the doctrine would not apply in this case, then
Peterson can hardly be said to have committed gross error in not attempting
suppression.
[¶28.] Without application of the “fruit of the poisonous tree” doctrine,
McDonough offers little in the way of argument for suppressing his post-Miranda-
warning statements. It is true that the United States Supreme Court later held the
type of two-phase interview technique that Deputy Howe employed against
McDonough to be a violation of Miranda. See Missouri v. Seibert, 542 U.S. 600, 617,
124 S. Ct. 2601, 2613, 159 L. Ed. 2d 643 (2004) (holding that “the [technique of
interrogating in successive, unwarned and warned phases] effectively threatens to
thwart Miranda’s purpose of reducing the risk that a coerced confession would be
admitted[,]” and suppressing statements given after such questioning when the
facts did not “reasonably support a conclusion that the warnings given could have
served their purpose”). However, the Seibert holding cannot now be used to impugn
the quality of Peterson’s representation of McDonough, which occurred two years
prior to that decision. Even if it could, McDonough has not asserted that the
warning given by Deputy Howe failed to properly inform him of his rights and the
dangers of his continued cooperation with law enforcement. Without such an
assertion, McDonough cannot show that the pre-warning interview tainted the post-
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warning statements, especially those statements made later that day at the time of
arrest or during custodial interviews on the following day. In other words,
McDonough has not shown that duplicate confessions would have been excluded
along with the pre-Miranda-warning statements. Consequently, McDonough
cannot show that Peterson grossly erred in deciding not to place a potential plea
agreement in jeopardy by moving to suppress McDonough’s statements.
ii. Whether Peterson should have attempted suppression
because McDonough’s confession was involuntary.
[¶29.] McDonough additionally argues that, even if he was not in custody
when Deputy Howe initially interviewed him, his statements were coerced and,
therefore, not voluntary. McDonough claims—and the State does not contradict—
that the State must show by a preponderance that his confession was voluntary.
Therefore we assume, without deciding, this is the appropriate standard. In
determining whether a confession was voluntary, “[t]he factual inquiry centers on
(1) the conduct of law enforcement officials in creating pressure and (2) the suspect’s
capacity to resist that pressure.” Wright, 2004 S.D. 50, ¶ 6, 679 N.W.2d at 468
(alteration in original) (quoting State v. Tuttle, 2002 S.D. 94, ¶ 22, 650 N.W.2d 20,
31) (internal quotation marks omitted). We consider the totality of the
circumstances in gauging the suspect’s capacity to resist pressure created by law
enforcement. Id. This includes:
the defendant’s age; level of education and intelligence; the
presence or absence of any advice to the defendant on
constitutional rights; the length of detention; the repeated and
prolonged nature of the questioning; the use of psychological
pressure or physical punishment, such as deprivation of food or
sleep; and the defendant’s prior experience with law
enforcement officers and the courts. Further, while law
enforcement interrogation may utilize psychological tactics, the
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trial court may consider law enforcement’s deceptions and
misrepresentations in its determination of the voluntariness of
admissions.
Id. (citations omitted).
[¶30.] We first consider Deputy Howe’s conduct. McDonough claims that his
statements to Deputy Howe were involuntary because the Deputy told him that he
would only get a sentence of 10 to 20 years in prison if he confessed and that some
defendants get as little as two years for homicides. McDonough further claims that
Deputy Howe lied about the volume of evidence against him. However, we have
previously noted that “deception by the police is not sufficient to make an otherwise
valid confession inadmissible unless it appears that the deception produced a
coerced or involuntary confession.” State v. Owens, 2002 S.D. 42, ¶ 53, 643 N.W.2d
735, 750 (citing State v. Frazier, 2001 S.D. 19, ¶ 20, 622 N.W.2d 246, 255). While it
is true that Deputy Howe discussed several scenarios in which other defendants
received shorter sentences than McDonough received, Deputy Howe repeatedly
stressed that it was not his decision and that he could not make any promises
regarding the length of sentence that McDonough would actually receive. Deputy
Howe did not appear overly aggressive in the interview and generally asked open-
ended questions. Overall, the interview was relaxed.
[¶31.] Next, we consider McDonough’s capacity to resist pressure.
McDonough was 20 years of age when interviewed by Deputy Howe. He had a high
school diploma and otherwise appeared to be of ordinary intelligence. The habeas
court noted that there was no evidence that McDonough was under the influence of
any mind-altering substances or sleep deprivation at the time of the interview. The
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questioning lasted between one and one and one-half hours and occurred during the
middle of the day. Deputy Howe did not initially read a Miranda warning to
McDonough, but after he had done so, McDonough continued to cooperate. When
McDonough asked whether he should have an attorney, Deputy Howe told him that
it was his decision to make. Finally, we note that the sentencing court considered
several violent incidents in McDonough’s past for purposes of sentencing. One of
those incidents is particularly relevant for purposes of gauging McDonough’s
experience with law enforcement. In April 2001, barely more than a year before he
killed Paulson, law enforcement officers arrested McDonough in Redwing,
Minnesota, for beating his sister, who was nine-months pregnant and holding her
three-year-old child at the time of the assault. After a law enforcement officer read
McDonough a Miranda warning, McDonough refused to make a statement and only
wanted an explanation of the charges he faced.
[¶32.] Considering the totality of the circumstances, the facts of this case lead
us to conclude that any pressure Deputy Howe created toward McDonough fell well
within the limits of acceptable law enforcement interview tactics. Given the
circumstances of the interview and McDonough’s demonstrated ability to resist the
questioning of law enforcement officers during prior encounters, we also conclude
that McDonough was adequately equipped to resist whatever pressure that Deputy
Howe actually did create. It is clear that McDonough’s will was not overborne. We
conclude that McDonough’s statements were voluntary; consequently, Peterson was
not required to attempt suppression on this basis.
iii. Whether counsel was ineffective because McDonough had a
viable defense.
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[¶33.] McDonough also claims that Peterson failed to attempt to suppress
statements made to Deputy Howe because Peterson “focused on the State’s case
rather than [McDonough’s] case” and “decided not to develop any defense at all.”
Yet, the habeas court recognized a number of facts supporting a contrary
conclusion. Peterson retained a private investigator for the specific purpose of
developing a defense theory. The investigator, as well as Peterson, came to the
conclusion that a claim of self-defense was not likely to succeed at trial. Peterson
was mindful of the facts that Paulson had no weapon during his encounter with
McDonough and that McDonough made subsequent statements that were likely
admissible. Peterson was also aware that McDonough never alerted the authorities
after he stabbed Paulson, even though he took Paulson’s pulse and knew that he
was still alive immediately after the stabbing. Instead, McDonough attempted to
“clean up” the crime scene by throwing away beer cans and hiding the weapon. He
also attempted to thwart investigation by later disposing of the shoes he wore
during the stabbing. McDonough had no injuries or other evidence to corroborate
his claim that Paulson was the aggressor. And, perhaps most important of all,
Peterson was aware of the credibility issue McDonough faced as the result of telling
several different versions of the killing. While most of these factors are, of course,
components of the State’s case, many also militate against raising a claim of self-
defense when doing so might jeopardize the availability of a plea bargain. We see
no reason to conclude that any of these factual findings are clearly erroneous and,
based on the same, likewise conclude that Peterson did not commit gross error in
deciding that a claim of self-defense was not likely to succeed at trial.
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[¶34.] Peterson’s assessment of the relative strengths and weaknesses of the
State’s case and McDonough’s self-defense claim set the stage for Peterson’s
decision not to pursue the suppression of McDonough’s statements. The habeas
court found that Peterson believed that filing a suppression motion was not likely to
benefit McDonough because there were multiple statements that would survive
suppression and there was independent evidence linking McDonough to the killing.
Further, Peterson believed—based on past experience—the State would not likely
offer a favorable plea agreement if he filed a motion to suppress. Again, we see no
reason to conclude that any of these factual findings are clearly erroneous, or to
deviate from our presumption that Peterson rendered reasonable professional
assistance to McDonough, let alone that he committed gross error.
[¶35.] Because we conclude that Peterson’s assistance to McDonough did not
fall substantially short of the range of reasonable professional assistance expected
of an attorney, it is not necessary to consider whether McDonough, but for
Peterson’s actions, would have insisted on going to trial. Even if we were to
conclude otherwise, the preceding discussion demonstrates that McDonough would
not be able to meet his burden of proving prejudice. Because McDonough was not
likely to get all of his confessions suppressed, the State probably would have been
left with ample evidence for a viable prosecution. Given the relative weakness of
McDonough’s self-defense claim, it seems that McDonough would have found
himself in the same position, at best. At worst, he may have actually had to proceed
to trial for lack of a plea opportunity and face a mandatory sentence of life
imprisonment.
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b. Whether defense counsel was ineffective in not appealing
McDonough’s sentence.
[¶36.] As in the preceding section, we once again begin with a strong
presumption that counsel’s chosen course of action fell within the range of
reasonable professional assistance. Owens, 2007 S.D. 3, ¶ 8, 726 N.W.2d at 615
(quoting Hofer, 1998 S.D. 58, ¶ 10, 578 N.W.2d at 585-86). McDonough must
establish that Peterson prejudiced him by committing gross error. McDonough
argues that Peterson failed to properly inform him of his right to appeal or to
pursue an appeal on his behalf. He also argues that, had he timely exercised his
right to appeal, he was likely to succeed in challenging the factual basis for the
sentencing court’s acceptance of his guilty plea, as well as the voluntariness of his
statements. Because we conclude that McDonough was not prejudiced as a result of
his failure to timely appeal, we need not address whether Peterson substantially
deviated from professional norms.
i. Whether McDonough was likely to succeed in appealing
the factual basis of his guilty plea.
[¶37.] McDonough first argues that he was likely to succeed in appealing the
sentencing court’s acceptance of his guilty plea. Specifically, McDonough argues
that his assertion of a possible affirmative defense, contemporaneous with his plea,
deprived the sentencing court of a factual basis upon which to accept the plea. He
also argues the record did not clearly establish that a homicide had occurred. “Our
standard of review in a challenge to the adequacy of the factual basis for accepting a
guilty plea is well settled.” State v. Nachtigall, 2007 S.D. 109, ¶ 5, 741 N.W.2d 216,
219. “Before accepting a guilty plea, a court must be subjectively satisfied that a
factual basis exists for the plea. The court must find a factual basis for each
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element of the offense. The factual basis must appear clearly on the record.” State
v. Schulz, 409 N.W.2d 655, 658 (S.D. 1987) (citations omitted).
[¶38.] In this case, the record clearly exhibits an adequate factual basis to
support McDonough’s plea. The sentencing court clearly described the elements of
first-degree manslaughter to McDonough. The court asked McDonough if he
understood the charge and invited him to ask questions regarding that charge.
McDonough indicated that he understood, declined the opportunity to ask
questions, and pleaded guilty in order to receive the benefit of a plea agreement. As
we noted in footnote two, there is a material distinction between a defendant who
fails or refuses to admit an essential element of the charge and one who admits all
essential elements of the charge but contemporaneously claims a justification or
excuse for his or her act. A defendant who admits all essential elements of a charge
provides the necessary factual basis to accept a plea, even if his or her
contemporaneous assertion of a justification or excuse might actually result in a
trial verdict of not guilty.
[¶39.] The record also contained other evidence of a homicide. “It is not
necessary that a defendant state the factual basis in his own words.” Id. at 658
(citing United States v. Lovelace, 683 F.2d 248, 251 (7th Cir. 1982)). Instead, “the
court may find the factual basis in anything that appears on the record.” See id.
(noting that SDCL 23A-7-2 is closely patterned after Federal Rule of Criminal
Procedure 11(f), which does not require a colloquy between judge and defendant).
Thus, a “court may inquire of the prosecution or the law enforcement officer who
investigated the case. The court may look to a defendant’s own admissions, the
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government’s proffer of evidence or the pre-sentence report[.]” Id. (citation omitted).
A court may even find a factual basis when “the defendant cannot or will not admit
to the facts establishing the elements of the crime[.]” Nachtigall, 2007 S.D. 109, ¶
5, 741 N.W.2d at 219 (quoting Gregory v. State, 325 N.W.2d 297, 299 (S.D.1982)).
McDonough claims that there was no evidence of a homicide on the record, yet he
admitted to having committed one at his change of plea hearing. When the court
asked McDonough to describe what occurred, he said, in part, “Then the knife was
on the floor and I grabbed it and I stabbed [Paulson] with it.” McDonough clearly
established that he committed the act that set Paulson’s death in motion. Further,
the State introduced information gathered from Paulson’s autopsy. Because
autopsies typically are only performed on the deceased, we are eminently confident
that the sentencing court was subjectively satisfied that a factual basis existed for
the homicide element of first-degree manslaughter. Thus, McDonough has not
convinced us that he was likely to succeed in an appeal on the grounds that the
sentencing court did not have an adequate factual basis upon which to accept his
guilty plea.
ii. Whether McDonough was likely to succeed in appealing
the voluntariness of his confessions.
[¶40.] Because we hold that McDonough’s statements were made voluntarily,
we also hold that McDonough was not likely to succeed in appealing the
voluntariness of those statements. As a result, McDonough was not prejudiced.
Conclusion
[¶41.] We conclude that Peterson’s decision to forgo a motion to suppress
statements McDonough made to law enforcement officers was not gross error
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because Peterson had sound legal reasons for that choice. Because McDonough’s
appeal would have been almost entirely meritless, we also conclude that he was not
prejudiced by missing the opportunity to appeal his sentence or the circuit court’s
acceptance of his guilty plea. Accordingly, we affirm.
[¶42.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
[¶43.] KERN, Justice, not having been a member of the Court at the time this
action was assigned to the Court, did not participate.
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