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Kleinsasser v. Weber

Supreme Court of South Dakota

March 2, 2016

HERMAN KLEINSASSER, Petitioner and Appellant,
DOUG WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee

         Considered on Briefs January 11, 2016

         As Amended April 18, 2016.

         As Corrected May 26, 2016.

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[Copyrighted Material Omitted]

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         AL ARENDT, Pierre, South Dakota, Attorney for petitioner and appellant.

         MARTY J. JACKLEY, Attorney General, CRAIG M. EICHSTADT, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.

         KERN, Justice. GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices, and PFEIFLE, Jane, Circuit Court Judge, concur. PFEIFLE, Jane, Circuit Court Judge, sitting for WILBUR, Justice, disqualified.


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          KERN, Justice

          [¶1] Herman Kleinsasser, Jr., (Kleinsasser) pleaded guilty to first-degree manslaughter on May 27, 2009. He was sentenced on August 31, 2009, to 80 years in the South Dakota State Penitentiary and ordered to reimburse Sully County for costs of prosecution in the amount of $88,611.79. Kleinsasser filed a petition for a writ of habeas corpus raising six issues for review. After a two-day evidentiary trial, the circuit court denied his claims. Having received a certificate of probable cause from the circuit court, Kleinsasser presents three issues on appeal. First, Kleinsasser alleges that his trial counsel was ineffective. Second, he contends that the State of South Dakota violated the terms of the plea-bargain agreement. Third, Kleinsasser alleges certain errors occurred during his change-of-plea and sentencing hearings. We affirm.


          [¶2] On the night of January 28, 2009, Sharon Kleinsasser was in the kitchen of her home. Her husband, Herman Kleinsasser, Jr., entered the kitchen and shot her twice with a 12-gauge, semi-automatic shotgun, once near her shoulder and once in the head, killing her. Kleinsasser then shot himself once in the head. This third shot hit the ceiling, causing the kitchen lights to go out. All six of the Kleinsassers' children, ranging in age from 1 to 15 years, were at home during the shooting. Their 11-year-old daughter, S.K., testified before a grand jury that she saw her mother lying in a pool of blood after the first shot was fired, while the lights were still on. She also testified that she heard her father say, while standing over her mother, " I'll do to you what you've been doing to me." S.K. heard a second shot as she ran out of the house. At least four of the children saw their mother's dead body lying in a pool of blood after the shooting. One of the older boys took the gun away, threw it outside, and called 911 for help.

          [¶3] Upon arrival, law enforcement arrested Kleinsasser and took him to the hospital in Pierre to receive medical care for his gunshot wound. A sample of Kleinsasser's blood was taken at the hospital and revealed alcohol, Alprazolam, and Codeine in his system at the time of the shooting. He was transported to Rapid City Regional Hospital to receive additional care. In February 2009, Kleinsasser was released from the hospital to the county jail. He was indicted for first-degree murder, second-degree murder, and first-degree manslaughter. SDCL 22-16-4(1), -7, -15(3).

          [¶4] Attorney Wade Reimers was appointed to represent Kleinsasser and filed motions in support of his defense. On February 11, 2009, Reimers filed a motion for discovery and for appointment of an investigator. The court granted both motions and appointed Charles Draper, a former FBI agent, to serve as Reimers's investigator. On February 24, 2009, Reimers filed a motion for appointment of a psychiatric expert. Dr. Stephen P. Manlove was appointed to assess Kleinsasser's sanity at the time of the offense and his competency for trial. Reimers filed other motions, including requests for a gag order, for pretrial designation of evidence, and to extend deadlines.

          [¶5] Reimers and Kleinsasser met and discussed potential defenses, the discovery

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information provided by the State, the mechanics of a jury trial, and potential plea-bargain agreements. The State extended a plea-bargain offer on March 5, 2009. In April 2009, Dr. Manlove issued his report. In formulating his opinion, Dr. Manlove reviewed the investigative report, charging document, and Kleinsasser's medical records. He interviewed Kleinsasser on three occasions and performed a mental-status examination and competency assessment. Based upon this information, Dr. Manlove rendered three opinions. He determined Kleinsasser was sane at the time of the shooting and that he was competent both to understand the nature of the proceedings against him and to aid his attorney in his own defense.

          [¶6] Kleinsasser accepted the State's offer and signed a written plea agreement on May 8, 2009. In exchange for Kleinsasser's plea of guilty to first-degree manslaughter, the State agreed to dismiss the first- and second-degree murder charges and to recommend a sentencing cap of 50 to 80 years. On May 27, 2009, an arraignment and change-of-plea hearing was held before the Honorable John L. Brown. Both parties signed the original plea agreement and presented it to the court. The court advised Kleinsasser of his constitutional and statutory rights. Kleinsasser pleaded guilty to first-degree manslaughter. He signed a written statement setting forth the factual basis for his plea. The court ordered a presentence investigation and scheduled a sentencing hearing.

          [¶7] After the entry of his plea, Kleinsasser's family retained Dr. Renner to evaluate Kleinsasser. Dr. Renner issued his report on August 25, 2009. Dr. Renner concluded " within a reasonable degree of medical certainty, that Mr. Kleinsasser had significantly impaired judgment from the ingestion of alcohol, Alprazolam, and Tylenol #3 during the time prior to the event coupled with his increasingly heightened state of anxiety and worsening depression." He went on to opine " that Mr. Kleinsasser likely had a marked distortion in perceiving reality at the time of the shooting." The report was given to Reimers prior to sentencing.

          [¶8] The sentencing hearing was held on August 31, 2009, in the Sully County Courthouse before the Honorable Lori S. Wilbur. Immediately prior to the hearing, Reimers made a motion in chambers for a continuance, which was denied. The court advised Kleinsasser that the maximum sentence for first-degree manslaughter " could be up to life in the South Dakota Penitentiary and a $50,000 fine, or both of those things, plus restitution." Kleinsasser confirmed his understanding of the potential maximum sentence and the terms of the plea-bargain agreement. Kleinsasser did not move to withdraw his plea.

          [¶9] Reimers urged the court to consider a sentence at the " lower end of the recommendation" and discussed parole eligibility upon receipt of a 50-year sentence. The State argued for a sentence " at the maximum end of our agreed-upon window and that being the 80 years." The State also presented a spreadsheet of expenses and requested reimbursement for Sully County's costs of prosecution by way of " a lien against the defendant." When asked by the court, Reimers stated his client had no objection to the requested costs. The circuit court imposed an 80-year sentence and ordered Kleinsasser to reimburse Sully County for costs of prosecution in the amount of $88,611.79. In September 2009, an amended judgment of conviction was filed.[1] The amended judgment provided

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that " the Defendant shall be liable to Sully County for restitution in the amount of . . . ([$]88,611.79), and any subsequent court appointed attorney fees incurred, as well as any additional medical or jail costs. A statutory lien for said restitution exists against Defendant's property." (Emphasis added.)

          [¶10] In April 2012, Kleinsasser filed a petition for writ of habeas corpus alleging ineffective assistance of counsel. In January 2013, he filed a supplemental petition asserting the circuit court failed to canvass him regarding his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), at sentencing and failed to advise him that he could be required to pay restitution. Kleinsasser also claimed that the State violated the plea agreement by requesting a sentence of 80 years and " restitution over and above fines, court costs, and court attorney fees."

          [¶11] A two-day court trial was held on October 21-22, 2013, on Kleinsasser's habeas claims. In addition to his own testimony, Kleinsasser presented expert testimony from attorney Steven Haugaard. The State presented expert testimony from attorney Max Gors and called Sheriff Bill Stahl, Reimers, and Special Agent Guy Di Benedetto to testify. Upon consideration of the parties' posthearing briefs, the circuit court issued a memorandum decision denying Kleinsasser's petition, followed by extensive findings of fact and conclusions of law.

          [¶12] Kleinsasser raises three issues on appeal:

1. Whether Kleinsasser's counsel was ineffective.
2. Whether the State violated the plea-bargain agreement.
3. Whether the sentencing court erred by failing to advise Kleinsasser of his Boykin rights.


          [¶13] " Our review of habeas corpus proceedings is limited because it 'is a collateral attack on a final judgment.'" Vanden Hoek v. Weber, 2006 S.D. 102, ¶ 8, 724 N.W.2d 858, 861 (quoting Crutchfield v. Weber, 2005 S.D. 62, ¶ 8, 697 N.W.2d 756, 759). " Accordingly, '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.'" Oleson v. Young, 2015 S.D. 73, ¶ 5, 869 N.W.2d 452, 455 (quoting McDonough v. Weber, 2015 S.D. 1, ¶ 15, 859 N.W.2d 26, 33). " The petitioner must 'prove he is entitled to relief by a preponderance of the evidence.'" Id. (quoting McDonough, 2015 S.D. 1, ¶ 15, 859 ...

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