CONSIDERED ON BRIEFS ON APRIL 25, 2016.
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT BUTTE
COUNTY, SOUTH DAKOTA, THE HONORABLE MICHAEL W. DAY Judge.
JACKLEY Attorney General.
M. STROHMAN Assistant Attorney General Pierre, South Dakota
Attorneys for plaintiff and appellee.
M. HILPERT of Hilpert & Hale, Prof., LLC Sturgis, South
Dakota Attorneys for defendant and appellant.
In this appeal, defendant alleges that he received
ineffective assistance of counsel, that the circuit court
erred when it did not grant his request for new counsel, and
that the court's sentence constitutes cruel and unusual
punishment.We reverse and remand.
A Butte County grand jury indicted Raymond M. Martinez on
July 8, 2014, on five felony charges. The charges included:
one count of second-degree rape, one count of first-degree
burglary, two counts of second-degree kidnapping, and one
count of aggravated assault, domestic violence. Martinez
allegedly broke into his estranged girlfriend's home,
forced himself upon her, and held her against her will. A
part II information alleged Martinez to be a habitual
offender. Martinez received court-appointed counsel at his
initial appearance and pleaded not guilty to all charges and
to the part II information.
Martinez spent approximately 390 days in jail from arrest to
sentencing. In this appeal, Martinez claims that his
court-appointed counsel "was woefully non-communicative
with and unresponsive to him" throughout his case. He
alleges that counsel met with him only four times
"despite his round-the clock, incarceration-based
availability[.]" He insists she only returned two of his
many phone calls and "habitually failed to come and meet
him despite his repeated voicemails requesting that she do
so[.]" More specifically, he avers that counsel
"even failed to return calls placed to her office by at
least one potential witness for the defense[.]"
Related to his defense, Martinez claims that counsel did not
file substantive motions on his behalf or resist the
State's pleadings and motions. In Martinez's view,
his counsel was not prepared for hearings, which caused
multiple delays. Martinez asserts that counsel did not keep
him apprised of discovery materials she had received and did
not make the video recordings available for his review until
several months after she received them. Martinez argues that
he told counsel from the outset that the facts alleged did
not reflect what actually happened. He requested a private
investigator in July 2014, and it was not until January 2015
that counsel made a request to the circuit court. And,
according to Martinez, it was not until a month later that
counsel filed the order allowing the private investigator.
Martinez also sought a mental health evaluation, but counsel
did not make a request to the court until just prior to
Martinez further alleges that he told counsel multiple times
that he wanted to recuse the circuit court judge assigned to
his case. But, according to Martinez, counsel never requested
recusal. Martinez also claims that counsel refused to move
the court to reduce his bond. He contends that counsel's
refusal foreclosed "any opportunity he might have had to
secure his release and better his circumstances."
Five days prior to his scheduled jury trial, Martinez decided
to change his plea. He now claims that he changed his plea
only because counsel persuaded him to do so. According to
Martinez, counsel told him that she had secured a deal with
the state's attorney "by 'leveraging' dozens
of her other cases." He also claims that counsel
erroneously told him that first-degree burglary is not
considered a violent crime and he would not have to register
as a sex offender as a benefit of the plea agreement.
It is undisputed that the State agreed to dismiss all
remaining charges and the part II information if Martinez
agreed to plead guilty to first-degree burglary. At the
change of plea hearing, the court inquired whether Martinez
understood the charges against him and his rights. At no time
did Martinez indicate to the court that he was unhappy with