CONSIDERED ON BRIEFS ON MARCH 19, 2018
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOSEPH NEILES
KADI LYNDSAY DEMATTEO of Minnehaha County Office of the
Public Advocate Sioux Falls, South Dakota Attorneys for
petitioner and appellant.
J. JACKLEY Attorney General, CRAIG M. EICHSTADT Assistant
Attorney General Pierre, South Dakota, Attorneys for
respondent and appellee.
GILBERTSON, CHIEF JUSTICE.
Paul Madetzke pleaded guilty to second-degree robbery, for
which he was sentenced as a habitual offender to imprisonment
for 25 years. Madetzke did not appeal his conviction or
sentence; instead, he later petitioned for a writ of habeas
corpus. The habeas court denied relief, and Madetzke now
appeals that decision. He contends that the assistance he
received from his trial attorney was ineffective in regard to
his decision to plead guilty and in regard to sentencing. We
and Procedural History
Madetzke was arrested on suspicion of robbing a casino in
Sioux Falls on September 24, 2011. The State filed a criminal
complaint against Madetzke that alleged one count of
second-degree robbery in violation of SDCL 22-30-1 and -6,
and one count of grand theft of more than $1, 000 in
violation of SDCL 22-30A-1 and -17(1). A grand jury indicted
Madetzke on the same two charges. The State then filed a
habitual-criminal information alleging that Madetzke had been
previously convicted of four felonies: one conviction for
intentionally damaging property, two convictions for
fourth-degree burglary, and one conviction for driving under
the influence as a third offense. Although the information
did not specifically allege that any of Madetzke's prior
convictions were for violent offenses, the information cited
SDCL 22-7-8, which applies when "one or more of the
prior felony convictions was for a crime of violence[.]"
During this time, Madetzke was also facing charges for
robbing another casino in Lincoln County.
On November 17, 2011, the Honorable Peter Lieberman arraigned
Madetzke. In hand-written notes on the habitual-criminal
information, Judge Lieberman indicated that Madetzke's
previous conviction for intentionally damaging property was a
violent offense. At the hearing, Judge Lieberman explained
that if convicted, Madetzke's offense of second-degree
robbery would be sentenced as a Class C felony, which carries
a maximum penalty of imprisonment for life and a fine of $50,
000. SDCL 22-6-1(3). Madetzke pleaded not guilty.
Madetzke and the State subsequently commenced plea
bargaining. Madetzke agreed to plead guilty to one count of
second-degree robbery, which is a Class 4 felony. SDCL
22-30-7. He also agreed to admit to having been convicted
previously of four felonies, but he disputed that any of
those felonies were violent offenses. Madetzke's attorney
secured the State's promise to amend its
habitual-criminal information to seek sentence enhancement
under SDCL 22-7-8.1 (for nonviolent habitual criminals)
instead of SDCL 22-7-8 (for violent habitual criminals).
Thus, the parties agreed that Madetzke's offense would be
sentenced as a Class 2 felony (which carries a maximum
penalty of imprisonment for 25 years and a fine of $50, 000
under SDCL 22-6-1(5)) instead of as a Class C felony. The
State further agreed to drop the grand-theft charge and to
recommend imposing a maximum sentence of 20 years.
Madetzke's attorney also asked the State to recommend
concurrent sentences for the Minnehaha and Lincoln County
robbery charges, but the State declined.
On May 8, 2012, Madetzke appeared before the Honorable
Bradley Zell to plead guilty to second-degree robbery.
Pursuant to the plea agreement, Judge Zell sentenced Madetzke
to imprisonment for 25 years with 5 years suspended. In
discussing the possibility of parole with Madetzke, Judge
Zell calculated that under SDCL 24-15A-32, Madetzke could be
eligible for parole after 8 years. However, Judge Zell's
calculation was based on the mistaken belief that
second-degree robbery is considered a nonviolent offense for
purposes of establishing an initial parole date. Because
second-degree robbery is considered a violent offense under
SDCL 24-15A-32, Madetzke will not be eligible for parole
until he serves 13 years of his 20-year
sentence. Neither Madetzke's attorney nor the
State brought the error to Judge Zell's attention.
Madetzke did not file an appeal, nor did he file a motion to
modify his sentence within the two-year period permitted by
SDCL 23A-31-1. Instead, on April 18, 2014, he filed a
petition for writ of habeas corpus asking the circuit court
to vacate his sentence. The Honorable Joseph Neiles issued
the writ on April 28, 2016. Robert Dooley, Warden of the Mike
Durfee State Prison, returned the writ on May 9. On February
21, 2017, following a hearing, Judge Neiles denied
Madetzke's request to vacate his sentence. Judge Neiles
issued a certificate of probable cause on May 24, and
Madetzke filed a notice of appeal with this Court on June 21.
On appeal, Madetzke raises the following issue: Whether the
legal assistance Madetzke received from his trial attorney
was so ineffective as to warrant vacating his sentence.