APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT LAKE COUNTY, SOUTH DAKOTA HONORABLE VINCENT A. FOLEY Judge.
The opinion of the court was delivered by: Severson, Justice.
CONSIDERED ON BRIEFS ON MAY 26, 2009
[¶1.] Mitchell Monette appeals the habeas court's rulings that his no contest plea was voluntary, intelligent and knowing; that he received effective assistance of counsel; and that denial of a firearms expert did not violate his constitutional rights.
[¶2.] On October 28, 2003, Monette's then wife Cindy returned home intoxicated. An altercation ensued, which ended with Cindy receiving disfiguring facial injuries from a gun shot. Monette was arrested on October 29, 2003, and counsel was appointed to represent him. Monette was indicted on November 5, 2003, with Count 1: Aggravated Assault (SDCL 22-18-1.1(2)) and Count 2: Attempted First Degree Murder (SDCL 22-16-4 and 22-4-1). He was arraigned on November 17, 2003, at which time he was fully advised of his statutory and constitutional rights. Monette pleaded not guilty to both counts.
[¶3.] On March 1, 2004, the State filed a new indictment charging Monette with Count 1: Aggravated Assault (SDCL 22-18-1.1(5)); Count 2: Aggravated Assault (SDCL 22-18-1.1(2)); and Count 3: Attempted First Degree Murder (SDCL 22-16-4 and 22-4-1). The State also filed a habitual offender information. On this date, Monette was arraigned on the new indictment and the habitual offender information. He was again informed of his rights and pleaded not guilty to all counts.
[¶4.] On March 8, 2004, Monette entered a change of plea pursuant to a plea agreement. The sentencing circuit court in Lake County, with Judge Tucker presiding, was informed that Monette would plead no contest to Count 1 of the indictment and admit to being a habitual offender. In exchange, the State agreed to dismiss all other charges. The sentencing court then set forth the elements the State would have to prove in Count 1 and the habitual offender information, which Monette acknowledged he understood. Then the court stated: "Now, I've gone through, I guess, multiple times with you and advised you of all the rights that you have, both your constitutional and statutory rights. Do you have any questions concerning any of these matters?" Monette responded that he had no questions.
The sentencing court advised Monette of the maximum possible sentence he could receive upon an admission of Count 1 and the habitual offender information, and that a plea of no contest still counted as a conviction and was subject to the maximum possible penalty. Monette indicated he understood and responded he had no questions before entering his plea. Monette pleaded no contest to Count I and admitted to the habitual offender information. The State provided a factual basis.
On March 22, 2004, Monette was sentenced to twenty-five years in the state penitentiary.
[¶5.] Monette filed a petition for writ of habeas corpus on August 27, 2004, and a hearing was held on March 31, 2006, before Judge Steele. A direct appeal was filed. Monette therefore requested that the writ be dismissed without prejudice until the direct appeal was over. An amended petition for writ of habeas corpus was filed on November 24, 2007, and a hearing occurred on December 31, 2007, before Judge Foley. Ultimately, the habeas court denied the writ on October 30, 2008.
Monette appeals, raising the following issues:
1. Whether the habeas court erred in finding Monette's plea constitutional.
2. Whether the habeas court erred in finding Monette was provided effective assistance of counsel.
3. Whether the habeas court erred in finding Monette's due process rights were not violated even though he was denied a court-appointed firearms expert.
[¶6.] Our standard of review for habeas decisions is well established:
Our review of habeas corpus proceedings is limited because it is a collateral attack on a final judgment. The review is limited to jurisdictional errors. In criminal cases, a violation of the defendant's constitutional rights constitutes a jurisdictional error. The [petitioner]has the burden of proving he is entitled to relief by a preponderance of the evidence.
The findings of facts shall not be disturbed unless they are clearly erroneous. A claim of ineffective assistance of counsel presents a mixed question of law and fact. The habeas ...