State v. Hammond

357 N.W.2d 278, 1984 S.D. LEXIS 398

• Court: South Dakota Supreme Court
• Decided: November 7, 1984
• Docket: 14420
• Status: Published

Opinions

ANDERSON, Circuit Judge.

Appellant was convicted of grand theft (SDCL 22-30A-1 and SDCL 22-30A-17) by a Beadle County jury on October 5, 1983. On October 27, 1983, he was sentenced to a term in the South Dakota State Penitentiary. On appeal from the judgment of conviction, appellant alleges two errors by the trial judge and further contends that he was denied the effective assistance of counsel.

The two allegations of trial court error involve the trial judge’s refusal to suppress statements made by appellant both at the scene of his arrest and later during questioning. Generally, issues involving suppression of statements present novel circumstances and provide- a convenient forum for considering constitutional questions. In this case, however, the issues presented by appellant have been previously decided by this and many other appellate courts. Further discussion of these matters would be fruitless. We hold that appellant’s claims of error are without merit.

Appellant contends that his conviction should be reversed because he was not afforded effective assistance of counsel at trial. Much has been written by this court on that subject. A rule has evolved to the effect that the allegation of ineffective assistance of counsel will be considered by this court only upon an appeal from habeas corpus (formerly post-conviction) proceedings unless trial counsel’s actions amount to plain error. State v. Tchida, 347 N.W.2d 338 (S.D.1984); State v. Iron Shell, 336 N.W.2d 372 (S.D.1983); State v. Phipps, 318 N.W.2d 128 (S.D.1982); State v. Brammer, 304 N.W.2d 111 (S.D.1981); State v. McBride, 296 N.W.2d 551 (S.D.1980). From the record presented we find insufficient evidence of ineffective assistance of trial counsel to warrant considering the allegation on direct appeal.

The judgment of conviction is affirmed.

MORGAN and HENDERSON, JJ., concur. WUEST, Circuit Judge, Acting as Supreme Court Justice, concurs specially. WOLLMAN, J., concurs in part and dissents in part. ANDERSON, Circuit Judge, sitting for FOSEHIM, C.J., disqualified.