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Piper v. Young

Supreme Court of South Dakota

December 11, 2019

BRILEY W. PIPER, Petitioner and Appellant,
DARRIN YOUNG, Warden of the South Dakota State Penitentiary, Respondent and Appellee.

          ARGUED OCTOBER 1, 2018


          RYAN KOLBECK Sioux Falls, South Dakota Attorney for petitioner and appellant.

          MARTY J. JACKLEY Attorney General PAUL S. SWEDLUND MATTHEW W. TEMPLAR Assistant Attorneys General Pierre, South Dakota Attorneys for respondent and appellee.



         [¶1.] Briley Piper pled guilty to five separate crimes, including first-degree felony murder, and was originally sentenced to death following a court sentencing. We affirmed his sentence on direct review, but later granted habeas relief, vacated the death sentence, and remanded the case for resentencing by a jury. The jury also sentenced Piper to death, which we affirmed in his second direct appeal. Piper now appeals the circuit court's denial of his second application for writ of habeas corpus, claiming his original guilty pleas were not made voluntarily and intelligently. Piper also claims that the resentencing court abused its discretion when it denied his motion to introduce evidence of what he alleged were the State's inconsistent previous arguments. Finally, Piper argues he received ineffective assistance of counsel at his initial change of plea hearing and at his jury resentencing. We affirm.


         [¶2.] In March of 2000, Chester Allan Poage was brutally beaten and killed at a remote location in Lawrence County. His body was found approximately one month later, and law enforcement officers quickly identified Briley Piper, Elijah Page, and Darrell Hoadley as suspects in the murder and a related burglary and theft at Poage's home. The State charged the three with first-degree murder, kidnapping, first-degree robbery, first-degree burglary, and grand theft. The State also filed a notice of its intent to seek the death penalty for each of the three co-defendants. A more complete factual summation is set forth in State v. Piper (Piper I), 2006 S.D. 1, 709 N.W.2d 783, but here we confine ourselves to the procedural progression of this case through its successive stages of litigation.

         The Guilty Pleas and Court Sentencing

         [¶3.] On January 3, 2001, Piper pled guilty to all five principal charges.[1] His guilty pleas came shortly before his capital murder trial was scheduled to begin and after the circuit court[2] denied, in part, his motions to suppress statements to law enforcement officers and to a former jail cellmate. The pleas were not prompted by a plea agreement and were unanticipated by the prosecutor and the circuit court, who were expecting to discuss additional pretrial motions at the hearing.

         [¶4.] During what became his change of plea hearing, Piper's attorneys opined that the text of SDCL 23A-27A-2 and SDCL 23A-27A-6 seemed to contemplate that the court would sentence the defendant in a capital case following a guilty plea. The issue was a novel one, though, and the court called a recess to consider it further. At the heart of the inquiry, and a recurring theme in all of Piper's post-plea litigation, was whether the same forum (court or jury) had to decide both the guilt and sentencing phases, or whether a defendant in a capital case could have alternate forums at each phase.[3] When the January 3 hearing resumed, the parties and the court did not discuss the topic further, but the record supports the inference that the court, counsel, and Piper all understood that Piper would continue with his stated intention of pleading guilty and asking the court to conduct his sentencing.

         [¶5.] The court advised Piper of his constitutional rights, including the separate right to have his sentence determined by a jury. The court explained the effect of Piper's waiver of a jury trial and the statutory maximum penalty for each offense, telling Piper specifically that the punishment for the murder conviction could include death by lethal injection. Piper acknowledged the risks of his pleas and waived his rights to a jury trial, [4] telling the court that he was pleading guilty to take responsibility for his conduct. After canvassing Piper further, the court determined that the pleas were voluntary and intelligent and accepted them.

         [¶6.] After three days of evidence, the court imposed a sentence of death for the first-degree murder conviction, life imprisonment for the kidnapping conviction, and consecutive maximum sentences for the robbery, burglary, and grand theft convictions. As to the murder sentence, the court found the existence of three statutory aggravating factors, which authorized the capital sentence. See SDCL 23A-27A-6. In this regard, the court specifically found that Piper had killed Poage "for the purpose of receiving money or any other thing of monetary value[, ]" that the killing "was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim[, ]" and that the killing "was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of the defendant or another[.]"[5] See SDCL 23A-27A-1(3), (6), (9).

         Piper I

         [¶7.] In the decision now known as Piper I, we affirmed Piper's death sentence. 2006 S.D. 1, 709 N.W.2d 783. Among the arguments we considered was Piper's claim that SDCL 23A-27A-2[6] and SDCL 23A-27A-6[7] were unconstitutional because they deprived him of his right to have a jury determine his sentence in contravention of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Ring, the United States Supreme Court held that Arizona's death penalty statutes violated a defendant's Sixth Amendment right to a jury trial because they required a judge, instead of a jury, to determine the existence of statutory aggravating factors following a guilty plea in a capital case. 536 U.S. at 589, 122 S.Ct. at 2432.

         [¶8.] Despite this argument on appeal, Piper expressed no more than a theoretical interest in having a jury determine his sentence. Piper I, 2006 S.D. 1, ¶ 66, 709 N.W.2d at 808-09. He had not made a Ring argument to the circuit court and was advised of his right to a jury for sentencing at his change of plea hearing. We affirmed Piper's sentence, holding Piper had, in fact, requested sentencing by the court and waived his right to jury sentencing:

We will not, without any supporting authority, sanction the remarkable proposition that a defendant may waive the right to a jury at sentencing, allow the trial court to impose a sentence in accordance with the defendant's wishes, and then, to avoid an unfavorable sentence, invalidate the waiver on appeal by arguing a deprivation of the constitutional right that the defendant did not want to exercise.

Id. ¶68, 709 N.W.2d at 810.

         [¶9.] Nevertheless, we also analyzed the merits of Piper's Ring claim. Construing the text of SDCL 23A-27A-2 and SDCL 23A-27A-6, we held that our capital punishment statutes only regulate the sentencing procedure and, unlike the statutes at issue in Ring, "do not purport to regulate the right to jury sentencing in capital cases." Id. ¶ 51, 709 N.W.2d at 804. The right to have a jury determine whether aggravating factors exist during the sentencing phase remains available to all defendants in capital cases by virtue of separate constitutional and statutory guarantees. Id. ¶¶ 52-56, 709 N.W.2d at 804-06.

         [¶10.] Although Piper had argued that our statutes required a court to conduct the sentencing in a capital case involving a guilty plea, he did not make the alternative argument-that in the absence of a Ring deficiency, our statutes unconstitutionally required a capital defendant to plead guilty in order to be sentenced by a judge.

         Piper II

         [¶11.] Piper's first petition seeking a writ of habeas corpus was solely directed at his death sentence. In an entirely new claim, Piper alleged the plea-taking court misstated the unanimity requirement related to a jury's sentencing determination in a capital case. The plea-taking court had, in fact, incorrectly advised Piper that the jury must unanimously agree on any sentence. Piper claimed the court's advisement suggested that the jury must unanimously agree to recommend life in prison, overlooking the fact that one juror's decision to not impose the death penalty would result in a life sentence. Piper claimed the court's misstatement prevented a voluntary and intelligent waiver of his right to have a jury sentencing, but he made no argument about any potential impact on the guilty pleas, themselves.

         [¶12.] Piper was unsuccessful before the initial habeas court.[8] We reviewed the merits of the claim in Piper v. Weber (Piper II), identified the erroneous unanimity advisement, and granted relief, but not the relief Piper had sought. 2009 S.D. 66, ¶¶ 20-21, 771 N.W.2d 352, 360. Piper argued that we should correct the plea-taking court's error by converting his sentence to life in prison without the possibility of parole. Id. We declined, however, and remanded the case for resentencing by a jury. Id.

         Piper's First Motion to Withdraw his Pleas and Piper III

         [¶13.] Following our remittal in Piper II, Piper moved for the first time to withdraw his guilty pleas pursuant to SDCL 23A-27-11, arguing among other things that the plea-taking court failed to ensure that Piper understood he did not have to plead guilty to obtain a court sentencing. The circuit court[9] denied the motion on its merits, finding no manifest injustice. See SDCL 23A-27-11 (stating that a motion to withdraw a guilty plea can be made after sentencing "to correct manifest injustice").

         [¶14.] The case proceeded to a jury resentencing and concluded with the jury's unanimous recommendation to impose a sentence of death. The jury found the existence of the same three aggravating factors the plea-taking court had previously found. SDCL 23A-27A-1(3), (6), (9).

         [¶15.] Piper appealed the jury's sentence, and in State v. Piper (Piper III), we held that Piper's 2011 death sentence was lawfully imposed by the jury. 2014 S.D. 2, ¶ 44, 842 N.W.2d 338, 351. We also affirmed the denial of Piper's motion to withdraw his guilty pleas made after Piper II, but not on the merits. Id. ¶ 13, 842 N.W.2d at 344. Instead, we held that the circuit court lacked jurisdiction to consider Piper's motion to withdraw his guilty pleas because the Piper II limited remand only authorized the circuit court to conduct a jury resentencing. Id.

         Piper's Second Motion to Withdraw and the Current Habeas Action

         [¶16.] In 2015, Piper filed a second habeas petition that is now at issue in this appeal. Navigating the holdings of Piper I and Piper II, the current petition alleges his 2001 guilty pleas were not voluntary and intelligent. Drawing on the plea-taking court's misstatement of the unanimity requirement identified in Piper II, Piper now argues that the error was more serious than he previously claimed because he waived his right to a jury trial, believing it was the only way to obtain sentencing by the court. The argument identifies what Piper believes is a lingering technical deficiency in the plea advisory, but he does not allege he wants a jury to determine the issue of guilt. Nor does he claim he is actually innocent.

         [¶17.] Also contained in Piper's second petition is the related claim that his original trial attorneys were ineffective when they advised him of his rights related to a jury trial. The petition alleges other ineffective assistance of counsel claims regarding his resentencing counsels' performance, including arguments that counsel: (1) failed to effectively conduct voir dire; (2) did not thoroughly investigate the State's witnesses; (3) failed to appeal the court's denial of a mistrial after it allowed testimony regarding penitentiary privileges; and (4) failed to either object or appeal issues regarding the cross-examination of a defense witness.

         [¶18.] During the pendency of this second habeas action in the circuit court, [10] Piper again moved to withdraw his guilty plea, seeking a merits determination of whether his guilty pleas were valid. The circuit court denied his motion, stating it lacked jurisdiction to consider the motion because the request remained outside of the limited remand from Piper II. Piper appealed the court's denial immediately, but we dismissed the appeal in an unpublished order, concluding that we lacked appellate jurisdiction. See State v. Kaufman, 2016 S.D. 24, ¶ 12, 877 N.W.2d 590, 592 (holding that the Legislature has not provided a means to review the denial of motions to withdraw guilty pleas made 30 days after entry of judgment).

         [¶19.] The litigation involving the second habeas petition remained pending before the circuit court, [11] which ultimately denied relief. The court reviewed the merits of the second motion to withdraw the pleas and determined that Piper's guilty pleas were voluntary and intelligent. The court noted that the claim could be barred under principles of claim preclusion because Piper had not challenged his guilty pleas until the remand proceedings following Piper II. The circuit court also determined that Piper's ineffective assistance of counsel claims were not sustainable because he had not demonstrated that his counsels' representation fell below an objective standard of reasonableness or that any error subjected him to prejudice.

         [¶20.] Piper appeals the circuit court's denial of his second writ of habeas corpus raising several issues, which we restate as follows:

1. Whether Piper's challenge to his guilty pleas presents a reviewable and meritorious habeas claim.
2. Whether Piper's claim that the resentencing court abused its discretion when it denied his motion to introduce evidence of the State's inconsistent arguments presents a reviewable and meritorious habeas claim.
3. Whether Piper's resentencing counsel provided ineffective assistance in violation of his Sixth and Fourteenth Amendment rights.


         The Review ability of Piper's Challenge to his Guilty Pleas

         [¶21.] "Our review of [a] habeas corpus proceeding[ ] is limited because it 'is a collateral attack on a final judgment.'" Miller v. Young, 2018 S.D. 33, ¶ 12, 911 N.W.2d 644, 648 (quoting Vanden Hoek v. Weber, 2006 S.D. 102, ¶ 8, 724 N.W.2d 858, 861). It is not, as we have time and again held, a substitute for appeal.[12] See, e.g., Wright v. Young, 2019 S.D. 22, ¶ 10, 927 N.W.2d 116, 119 (explaining that review of a habeas action is more limited than for a direct appeal because it is a "collateral attack upon a final judgment"). Courts may use the habeas corpus procedure in the narrow realm of post-conviction litigation to determine: "(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." Piper II, 2009 S.D. 66, ¶ 7, 771 N.W.2d at 355.

         [¶22.] However, even for claims alleging the deprivation of constitutional rights, we have traditionally applied the doctrine of res judicata to determine whether a post-conviction claim is cognizable in a habeas corpus action or whether it has been defaulted because it was not made in an earlier proceeding. See, e.g., Ramos v. Weber, 2000 S.D. 111, ¶ 8, 616 N.W.2d 88, 91. Res judicata involves two distinct concepts-issue preclusion and claim preclusion:

Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided .... Claim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit[.]

Am. Family Ins. Grp. v. Robnik, 2010 S.D. 69, ¶ 15, 787 N.W.2d 768, 774 (quoting Migra v. Warren City Sch. Dist. Bal. of Ealuc, 465 U.S. 75, 77 n.1, 104 S.Ct. 892, 894 n.1, 79 L.Ed.2d 56 (1984)).

         [¶23.] In Ramos, for example, we applied res judicata principles to hold that a petitioner's due process challenge to his sentence was not cognizable in a habeas proceeding. 2000 S.D. 111, ¶ 8, 616 N.W.2d at 91. In his direct appeal, the petitioner had unsuccessfully argued that his sentence violated the Eighth Amendment's prohibition on cruel and unusual sentences. Id. ¶ 2, 616 N.W.2d at 90. In an ensuing habeas action, the petitioner again challenged his sentence, but this time claimed it violated the due process provisions of the Fourteenth Amendment. Id. ¶ 3, 616 N.W.2d at 90. Citing the petitioner's plain opportunity to litigate the due process claim earlier and the need for finality, we declined to review the new claim:

The doctrine of res judicata disallows reconsidering an issue that was actually litigated or that could have been raised and decided in a prior action. The purpose behind the doctrine is to protect parties from being subjected twice to the same cause of action, since public policy is best served when litigation has a finality .... This due process challenge could have been raised in the direct appeal along with the Eighth Amendment challenge. Under the doctrine of res judicata, we will not ...

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