JACOB J. STARK, Petitioner and Appellant,
DOUGLAS WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
CONSIDERED ON BRIEFS ON MARCH 21, 2016
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT DEUEL COUNTY, SOUTH DAKOTA, THE HONORABLE VINCENT A. FOLEY Judge.
CHERI SCHARFFENBERG of Waltner, Kolbeck & Scharffenberg, LLP, Attorneys for petitioner and appellant.
MARTY J. JACKLEY, Attorney General, KELLY MARNETTE, Assistant Attorney General, Attorneys for respondent and appellee.
[¶1.] Jacob Stark pleaded guilty to aggravated assault against a law enforcement officer in August 2009 and was sentenced to 22 years in prison. He did not appeal the sentence directly. In July 2012, Stark filed a petition for writ of habeas corpus arguing he received ineffective assistance of counsel at trial and that his sentence was unconstitutional. The circuit court denied his petition, and Stark appeals. We affirm.
[¶2.] In April 2009, Jacob Stark and his brothers began drinking beer after they finished working on their grandmother's farm in Deuel County, South Dakota. Stark and his brother Joe continued drinking throughout the evening and at some point began to argue. The argument escalated and became physical when they returned to the lodge they were staying at for the night.
[¶3.] After Stark drove away in his pickup, Joe called law enforcement. Joe claimed that Stark was a "homicidal maniac." When the Sheriff's deputies arrived at the lodge, Joe told them that Stark likely returned to their grandmother's farm. Joe also told the deputies that Stark had several guns. Joe suggested that the deputies not pursue Stark because Stark would try to kill them. With this knowledge, the deputies traveled to the farm.
[¶4.] At the farm, the deputies saw Stark's pickup and noticed movement inside the pickup. The deputies moved behind a shed and closer to the pickup to get a better view. One deputy yelled Stark's name and announced that they were law enforcement. Stark responded by threatening to kill the officers. He yelled that he would "mow" and "rake" them down. Stark told the deputies to "get ready for a shootout 'cause we are gonna have a war." Stark began a countdown from ten and fired a gun when he reached one. The deputies did not return any fire. Instead, they advised dispatch that shots had been fired.
[¶5.] The deputies again attempted to talk with Stark. At one point, Stark said he knew backup was coming and stated that he would try to kill the backup officers as well. Stark also continued to fire rounds from his rifle. Eventually, he tried to escape in his pickup, but drove over spike strips that law enforcement had previously laid out. Law enforcement subdued and arrested Stark.
[¶6.] The State charged Stark with two counts of aggravated assault against a law enforcement officer, and the State also filed a part II information alleging Stark to be a habitual offender under SDCL 22-7-7. Stark agreed to plead guilty. In exchange, the State agreed to dismiss one of the aggravated assault counts and the part II information. The court stayed sentencing pending a presentence investigation and report.
[¶7.] During the presentence investigation, the court services officer interviewed Stark and asked about the evening involving the officers. Stark's attorney had previously advised Stark not to fabricate anything that he did not remember from the evening. Counsel advised Stark, "[I]f you don't remember exactly what happened, don't try to fill in the blanks . . . . [I]t is okay to tell the Court Services Officer that you don't remember exactly what happened." Stark told the court services officer that he did not remember anything after leaving the second bar with his brothers except for firing his rifle into the ground. Stark's statements to court services were inconsistent with the statements Stark made in interviews following his arrest. The circuit court sentenced Stark to 22 years in the state penitentiary.
[¶8.] Stark petitioned the circuit court for habeas corpus relief in 2012, arguing that his counsel was ineffective at trial and that his subsequent sentence was cruel and unusual under the 8th Amendment to the United States Constitution. The circuit court held a hearing on the petition in October 2014. At the hearing, Stark called defense counsel to testify about counsel's representation of Stark at trial and about discussions they had after the sentencing hearing. Counsel testified that he told Stark's family that an appeal would likely be a waste of time and money because Stark pleaded guilty. Counsel explained that he told the family that the only issue ...