Application of Deserly

507 N.W.2d 905, 1993 S.D. LEXIS 138, 1993 WL 449178

Opinions

MILLER, Chief Justice.

Charles Vance Deserly (Deserly) appeals an order denying his application for habeas corpus relief. We affirm.

FACTS/PROCEDURAL HISTORY

Deserly was charged under SDCL 22-34-1 with felony intentional damage to property of more than two hundred dollars. The charges stem from an incident in which Deserly destroyed some parking gates at Sioux Valley Hospital. On December 1, 1988, Magistrate Judge Joe Neiles entered an order authorizing Deserly’s release pending trial on condition that he accept the terms of a “Personal Recognizance Bond and Appearance Bond.” The terms of the bond required Deserly to appear before a magistrate on December 12, 1988. The bond further informed Deserly that failure to appear at the December 12, 1988 hearing could result in a class five felony conviction. Deserly read the terms of that bond and signed it on December 2,1988.

Furthermore, on December 1, 1988, LaDo-na Vansco, a Deputy Clerk of Court signed an order “for, the court” setting Deserly’s dispositional conference for December 12, 1988. The dispositional conference is, in essence, a settlement conference at which the defendant and defense counsel meet with the prosecuting attorney to discuss the case. After they have discussed the case they appear before a magistrate to schedule further proceedings.

On December 5, 1988, Deserly’s defense attorney reminded him of his obligation to attend the December 12, 1988 dispositional conference. Nevertheless, Deserly failed to appear at the dispositional conference. On December 14, 1988, a magistrate issued a priority bench warrant and Deserly was charged under SDCL 23A-43-31 with failure to appear at a scheduled hearing.

Footnotes

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* He was arrested on January 2, 1989.

Ultimately, Deserly and the prosecutor reached a plea bargain in which Deserly agreed to plead guilty to the failure to appear charge and make restitution for the property damage. In return, the prosecutor agreed to drop the damage to property charge, agreed not to file habitual offender charges, and agreed to recommend a suspended sentence. While preparing a presen-tence investigation, a court services officer discovered that it cost only fifty dollars to repair the damage to the parking gates at Sioux Valley Hospital. Deserly learned this after he had pled guilty but before he was sentenced. Before Deserly was sentenced, Judge Robert Amundson asked Deserly if he wanted to stand by his guilty plea. Deserly said yes. Deserly was sentenced to five years in the penitentiary suspended on condition that he serve six months in jail (with work release), make restitution of fifty dollars for the damage to property, complete alcohol treatment and remain alcohol free, and, of course, obey all laws.

Deserly was arrested for driving under the influence of alcohol just two weeks after he was released from his six-month jail sentence. He pled guilty and admitted violating the terms of his suspended sentence. He was sentenced to an additional six months in county jail.

While in county jail, Deserly was charged with damage to property and simple assault after he punched numerous holes in the walls of the jail and hit another inmate. State also filed a habitual offender information. All charges were dismissed when Deserly admitted violating the terms of his suspended sentence. He was ordered to serve the five-year penitentiary sentence from the original conviction for failure to appear and was given credit for 266 days already served.

On August 26, 1990, Deserly escaped from the South Dakota State Penitentiary and fled to Montana. Shortly thereafter he was arrested in Montana and pled guilty to two counts of criminal mischief. The Montana court sentenced him to six years on each count, to be served concurrently with his South Dakota sentence. On September 10, 1990, South Dakota sent Montana a warrant of detention, but Deserly remained in prison in Montana. Through correspondence with officials at the South Dakota State Penitentiary, Deserly learned that he was not being credited in South Dakota for time he was serving in Montana. On August 1, 1991, Deserly formally requested that South Dakota make final disposition of his escape charge. On January 15, 1992, Deserly was arraigned in South Dakota and on January 29, 1992, he returned to the South Dakota State Penitentiary. He pled guilty to escape and was sentenced to thirty months in the penitentiary to be served consecutive to his original sentence.

Deserly filed no direct appeal. In May 1992 he filed an application for habeas corpus. After a full evidentiary hearing, the habeas court denied his application. Deserly appeals.

WHETHER DESERLY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

Deserly contends he was denied effective assistance of counsel because his attorney did not investigate the amount of damage done to the gates at Sioux Valley Hospital. Deserly argues that a cursory investigation would have revealed the damage was only fifty dollars and therefore could not support a felony conviction for damage to personal property. Deserly correctly notes that “[a]n attorney must make reasonable investigations or make reasonable decisions to forego particular investigations.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to prevail, Deserly must show that his counsel was ineffective and there is a “reasonable probability that, but for counsel’s [ineffectiveness], the results of the proceeding would have been different.” Strickland, 466 U.S. at 694,104 S.Ct. at 2068. Aliberti v. Solem, 428 N.W.2d 638 (S.D.1988). Deserly claims the results would have been different because he would not have “entered the plea of guilty had he been aware that the felony criminal damage to property charge was groundless.” The record demonstrates that this contention is false. After Deserly pled guilty, the court services officer discovered that the damage was only fifty dollars. Des-erly learned that fact prior to sentencing. At that point he and his attorney knew the damage to the gates did not rise to the level of a felony. Yet, Deserly did not attempt to withdraw the guilty plea. In fact, at sentencing, Judge Amundson specifically asked Des-erly if he still intended to plead guilty. Des-erly stood by his guilty plea even when he was aware the damage to the gates was only fifty dollars. The habeas court is affirmed.

WHETHER DESERLY’S FAILURE TO APPEAR AT THE DISPOSITIONAL HEARING WAS A VIOLATION OF SDCL 23A-43-31.

Deserly acknowledges that he did not appear at the December 12,1988 disposi-tional conference. However, he asserts his failure to appear was not a violation of SDCL 23A-43-31 for two reasons. First, he argues that he was-not ordered to appear before a “court or judicial officer.” Second, he contends he did not receive notice that he was supposed to appear.

SDCL 23A-43-31 does not require an “order.” It only discusses failure to appear before any court or judicial officer “as required.” Nevertheless, Deserly was ordered to appear before the court by the terms of the magistrate’s order and the personal recognizance and appearance bond he read and signed. Moreover, Deserly was also ordered to appear in court by the Order Setting Dispositional Conference signed “for the court” on December 1, 1988 by the deputy clerk of court. Deserly’s counsel met with him on December 5, 1988 and reminded him of his obligation to appear on December 12, 1988. Yet, Deserly failed to appear in court on December 12, 1988. His failure to appear constituted a violation of SDCL 23A-43-31. The habeas court is affirmed.

WHETHER DESERLY SHOULD BE CREDITED WITH TIME SERVED IN MONTANA.

When the Montana court sentenced Deserly it specified that his Montana sentence was to be served concurrently with any sentence he was serving in South Dakota. Deserly had spent approximately one year in the Montana jail before he learned that South Dakota was not crediting him for time he was serving in Montana. This discovery prompted Deserly to request to be returned to South Dakota. This transfer process took six months. Deserly argues that South Dakota should credit him for the time he served in Montana, both before and after he made the request for transfer.

Deserly’s first argument is that when one state puts a “hold” on a prisoner in another state, the prisoner is effectively serving time for each state. See e.g., People v. Ranson, 153 Mich.App. 157, 395 N.W.2d 271 (1986). We are not persuaded by the analysis applied in Ranson because we agree with the Iowa Supreme Court’s observation that it constitutes a “novel rule which would allow a sentenced criminal, by the simple expedient of escape, to select the state in which he wishes to serve his incarceration.” Williams v. State, 280 N.W.2d 406, 408 (Iowa 1979).

Second, Deserly notes that the Montana court ordered his sentences were to be served concurrently. South Dakota was not a party to that action and did not assent to any determination that the South Dakota sentence should be served concurrently with the Montana sentence. Clearly, that was a proviso relevant only to the Montana courts. The Montana court did not and could not order South Dakota to give Deserly credit for time served in Montana. See Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578 (1970). See also, Patino v. State, 331 N.W.2d 837 (S.D.1983).

Deserly had spent a year in Montana prison before he inquired of officials at the South Dakota State Penitentiary. He formally requested a transfer to South Dakota when he learned that he was not being credited for the time he was serving in Montana. The transfer process took six months. Des-erly contends that he should receive credit in South Dakota from the date of his application for transfer. As authority he cites Chalifoux v. Commissioner of Correction, 375 Mass. 424, 377 N.E.2d 923 (1978).

Chalifoux escaped from a Massachusetts prison where he was serving time for assault and battery with a dangerous weapon. Shortly thereafter, he was arrested and convicted in California for kidnapping. The California court sentenced him to one to twenty-five years in jail and specified that the sentence should be served concurrently with his Massachusetts sentence. Chalifoux requested to be returned to Massachusetts and asked Massachusetts to credit him for the time he had already served in the California prison. Massachusetts denied the request for transfer on grounds of prison overcrowding. Massachusetts also denied Chalifoux’s request for credit for the time he was serving in California, but did not inform him of its decision. Chalifoux remained incarcerated in California and assumed he was being credited in Massachusetts. He did not learn otherwise until he was taken into custody by Massachusetts officials upon his release from the California prison. The Massachusetts Supreme Judicial Court held that fundamental fairness required that Chalifoux be given credit for the time he served in California. Because Massachusetts had not informed him that they were not giving him credit, Chalifoux remained in California prison, assumed he was being credited in Massachusetts, and did not request other possible forms of relief from the Massachusetts courts.

Deserly cannot claim any denial of fundamental fairness. He served approximately one year in Montana prison before he even inquired whether South Dakota was giving him credit for the time he was serving in Montana. South Dakota immediately informed him he was not. Deserly asked to be returned to South Dakota and the transfer process took six months. There is no evidence that the transfer was unnecessarily delayed. Deserly was not treated unfairly by South Dakota officials and must take responsibility for his own inaction on this issue. The habeas court is affirmed.

SABERS, J., concurs. WUEST, J., concurs specially. HENDERSON, J., concurs in part and dissents in part. AMUNDSON, J., disqualified.

SDCL 23A-43-31 provides:

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;

(2) If he was released in connection with a charge of a misdemeanor, be guilty of a Class 1 misdemeanor; or

(3) If he was released for appearance as a material witness, be guilty of a Class 1 misdemeanor.