Considered on Briefs August 14, 2014.
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE ROBERT A. MANDEL, Judge.
JOHN R. MURPHY, Murphy Law Office, PC, Rapid City, South Dakota Attorneys for petitioner.
MARTY J. JACKLEY, Attorney General, Pierre, South Dakota, Mark A. Vargo, Pennington County State's Attorney, Patrick M. Grode, Pennington County Deputy State's Attorney, Rapid City, South Dakota, Attorneys for respondent.
ZINTER, Justice. GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.
Frank Ashley moved this Court for a certificate of probable cause (CPC) to appeal the circuit court's denial of his petition for habeas corpus. In denying the motion, we clarify the standard of review and showing necessary for applicants to obtain CPCs from this Court.
Facts and Procedural History
In 2009, Frank Ashley was found guilty of three counts of third-degree rape of a victim less than sixteen years of age; one count of fourth-degree rape of a victim between thirteen and sixteen years of age; four counts of sexual contact with a child under sixteen years of age; and one count of aggravated incest. He was sentenced to fifteen years imprisonment on each conviction, to be served consecutively, for a total of 135 years. This Court summarily affirmed the conviction on direct appeal (#25346).
Ashley submitted his first application for writ of habeas corpus in 2011. The circuit court dismissed the application and denied the issuance of a CPC. Pursuant to SDCL 21-27-18.1, Ashley moved this Court for a CPC to permit an appeal of the denial of his application. In 2012, this Court reversed the habeas court's dismissal and remanded the matter for an
evidentiary hearing on Ashley's claims.
After a continuance requested by Ashley, the habeas court held an evidentiary hearing in November 2013. The court received evidence, including testimony from Ashley, Ashley's trial counsel Ellery Grey, and the State's expert witness, attorney Robert Van Norman. The court entered findings of fact, conclusions of law, and an ...