on Briefs January 11, 2016
Amended April 18, 2016.
Corrected May 26, 2016.
[Copyrighted Material Omitted]
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT SULLY
COUNTY, SOUTH DAKOTA. THE HONORABLE KATHLEEN F. TRANDAHL,
ARENDT, Pierre, South Dakota, Attorney for petitioner and
J. JACKLEY, Attorney General, CRAIG M. EICHSTADT, Assistant
Attorney General, Pierre, South Dakota, Attorneys for
respondent and appellee.
Justice. GILBERTSON, Chief Justice, and ZINTER and SEVERSON,
Justices, and PFEIFLE, Jane, Circuit Court Judge, concur.
PFEIFLE, Jane, Circuit Court Judge, sitting for WILBUR,
[¶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
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
[¶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 $88,611.79. In September 2009, an amended judgment of
conviction was filed. The amended judgment provided
that " the Defendant shall be liable to Sully County for
restitution in the amount of . . . ([$]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
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 ...