APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HUTCHINSON COUNTY, SOUTH DAKOTA HONORABLE BRUCE V. ANDERSON Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 16, 2011
[¶1.] James Lawrence appeals the circuit court's denial of his petition for habeas corpus, arguing that there was insufficient evidence to support his conviction for theft by deception.
[¶2.] In January 1996, Lawrence went to the home of Marcella Koster, knocked on her door, and convinced her to let him waterproof her basement walls. Lawrence told Koster that FEMA would reimburse her for the cost of the work. Over the next several months, Lawrence went to the home four times for periods ranging from two to four hours and each time asked Koster for payment before leaving. Koster wrote Lawrence four checks totaling $5,000.90.
[¶3.] Lawrence's work was utterly deficient. He applied a substance to the walls that was essentially a water sealant but was completely ineffective as a waterproofing material. He also drilled several holes in the walls and filled them with concrete, which several expert witnesses said did almost nothing to strengthen the walls. The work did not stop the seepage in Koster's walls.
[¶4.] Each time Lawrence came to her home, Koster would ask him about the FEMA reimbursement. Lawrence's responses varied wildly. On one occasion, he told Koster that he was going to take pictures of the basement walls and send them to FEMA. On another occasion, he said he was "taking care" of the reimbursement. On yet another occasion, he told Koster that FEMA would be contacting her. Finally, he gave Koster an invoice and told her she needed to turn it in to FEMA. The invoice was almost completely illegible, and the amount was more than Lawrence had charged Koster for his work.
[¶5.] A short time after Lawrence completed his work, Koster received a phone call from someone claiming to be a FEMA official. The caller informed Koster that he needed to take pictures of the basement. But no one came to take the pictures, and Koster concluded that the call was a fake. Eventually, Koster contacted the local FEMA office and was told that they once offered a reimbursement program similar to that described by Lawrence but that it ended in 1994. FEMA refused to reimburse Koster for any of the work.
[¶6.] On May 1, 2003, a jury found Lawrence guilty of theft by deception. He was sentenced to a term of twenty-five years in the South Dakota State Penitentiary. He then appealed to this Court, which affirmed his conviction. In June 2006, Lawrence filed a petition for writ of habeas corpus alleging, among other things, that his constitutional rights had been violated when he was convicted based on insufficient evidence. The circuit court denied the motion. Lawrence appeals.
[¶7.] "A habeas corpus applicant has the initial burden of proof to establish a colorable claim for relief." Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468 (citing Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1025, 82 L. Ed. 1461 (1938)). Additionally, Habeas 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. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction.
Piper v. Weber, 2009 S.D. 66, ¶ 7, 771 N.W.2d 352, 355 (quoting Steichen v. Weber, 2009 S.D. 4, ¶ 4, 760 N.W.2d 381, 386). "Habeas corpus review does not substitute for direct review." Id.
(quoting Steichen, 2009 S.D. 4, ¶ 4, 760 N.W.2d at 386). "The applicant for habeas corpus must satisfy the initial burden to prove the need for relief ...