author: VANDE WALLE, Chief Justice.

text:
    2000 ND 64
    Ismail Mohamed ABDI, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee,
    No. 990239.
    Supreme Court of North Dakota.
    March 30, 2000.

      Shane C. Perry (argued), Perry, Perry & Perry, Minneapolis, MN, and Bruce D. Quick and Monte L. Rogneby (appearance), Vogel, Weir, Bye, Hunke & McCormick, Ltd., Fargo, ND , for petitioner and appellant.
    Birch P. Burdick, State’s Attorney, Fargo, ND, for respondent and appellee. Argued by John Gross, third year law student.
   VANDE WALLE, Chief Justice.

[¶ 1] Ismail M. Abdi appealed from a judgment denying his application for post-conviction relief from a conviction entered upon his guilty plea to an assault charge. We hold the post-conviction court did not abuse its discretion in denying Abdi’s request to withdraw his guilty plea and, on this record, Abdi has not shown he received ineffective assistance of counsel. We affirm.

I

[¶2] In August 1998, Abdi, a Somalian native who had been admitted into the United States in 1993, was charged with two counts of aggravated assault under N.D.C.C. § 12.1-17-02 for allegedly stabbing two victims.

[¶ 3] At Abdi’s initial appearance on August 7, 1998, the trial court advised a group of defendants:

First of all, you have the right to be present at each and every stage of the proceedings.
You have the right to have an attorney present to represent you at each and every stage of the proceedings. If you cannot afford one and the Court decides that you qualify, then an attorney can be appointed to represent you at public expense.
You have the right to remain silent, except to enter a plea of guilty or not guilty. If you do remain silent, I will enter a not guilty plea for you.
You have the right to a jury trial upon the entry of a not guilty plea. And you may, if the State’s Attorney’s office agrees and the judge agrees, waive your right to a jury trial and have it tried before the judge without a jury. If you are tried before a jury, though, a unanimous verdict of guilt is required before the jury can convict you if they do convict you.
You have the right to confrontation with the witnesses who would take the stand and testify against you. And by that I mean you have the right to cross-examine the witnesses who take the stand and testify against you.
You also have the right to subpoena power of the State of North Dakota to compel witnesses to come forward and testify in your own defense.
You have the right to reasonable delay within which to prepare a defense.
You have the right not to testify at your own trial. And by that I mean you can have a trial without ever taking that witness stand. And no one is to comment upon that to anyone at the trial.
You have the right to presumption of innocence, and you are presumed innocent unless and until the State can prove you guilty beyond a reasonable doubt as to each and every material allegation alleged against you.
You have the right to have a public trial, and you have the right to have a speedy trial.
And you have the right to be admitted to reasonable bail.
If you’re not a citizen of the United States and you are convicted of a crime, you may be deported to another country.

After the group explanation, Abdi was individually informed the aggravated assault charges against him were class C felonies, each carrying a maximum possible penalty of five years in jail, a $5,000 fine, or both, and a minimum mandatory penalty of two years imprisonment without parole. Abdi informed the court he understood the charges, and requested court-appointed counsel and an interpreter.

[¶ 4] On August 27, 1998, the date set for his preliminary hearing, Abdi appeared with court-appointed counsel and an interpreter and waived a preliminary hearing. Abdi was read the Information charging him with two counts of aggravated assault and was advised of the maximum and mandatory minimum penalties for both charges. Abdi informed the court he understood the charges and penalties, and pled not guilty.

[¶ 5] On October 7, 1998, Abdi appeared at a hearing with counsel and an interpreter. Counsel informed the court he had been “talking” with the prosecution and anticipated an amendment to the information. Counsel requested the matter be set for a change of plea. On October 9, the State filed an amended information, reducing the charges against Abdi from two counts of aggravated assault to one count of class-A-misdemeanor assault under N.D.C.C. § 12.1-17-01.1.

[¶ 6] On November 9, 1998, Abdi appeared with an interpreter and counsel at a change-of-plea hearing. The following colloquy occurred:

THE COURT: Okay. Then I’m going to ask you some questions and have you answer them out loud.
Can you understand what your interpreter is saying to you?
THE INTERPRETER: Yes.
THE COURT: Then do you understand, sir, that you have the right to plead guilty or not guilty to Count 1, assault, as you wish?
THE INTERPRETER: Yes.
THE COURT: Okay. Tell him to answer out loud, please. And did you hear and understand the constitutional rights that the Court gave you on an earlier date?
THE INTERPRETER: Yes.
THE COURT: Tell him to speak so the microphone can pick it up, please. Tell him to speak up or we’ll stop and he can go back to the jail. Okay. Thank you.
And do you understand the nature of this charge, Count 1, assault?
THE INTERPRETER: Yes.
THE COURT: And do you understand that if you plead guilty, the maximum penalty you could receive is 12 months’ imprisonment and/or a $1,000 fine?
THE INTERPRETER: Yes.
THE COURT: Do you understand, sir, that if you plead guilty, you will be waiving your right to any trial proceedings?
THE INTERPRETER: Yes.
THE COURT: And your right to cross-examine those witnesses who would have testified against you if you had gone to trial?
THE INTERPRETER: Yes.
THE COURT: Has anyone promised you anything in an attempt to get you to enter a guilty plea here today?
THE INTERPRETER: No.
THE COURT: Has anyone threatened you in any way in an attempt to get you to enter a guilty plea here today?
THE INTERPRETER: No.
THE COURT: Has anyone attempted to use force against you to get you to enter a guilty plea here today?
THE INTERPRETER:. No.
THE COURT: And are you satisfied with your attorney’s representation to this point?
THE INTERPRETER: Yes.
THE COURT: And do you understand the proceedings thus far?
THE INTERPRETER: Yes.
THE COURT: Are you under the influence of any drugs, including alcohol, at this time?
THE INTERPRETER: No.
THE COURT: All right. How say you, Ismail Mohamed Abdi, to Count 1,
THE INTERPRETER: Guilty.
THE COURT: All right. Your guilty plea is on the record, and the Court finds it to be voluntary.
Thank you. You may be seated.

The court accepted Abdi’s guilty plea, and sentenced him to one year in jail with credit for 95 days served and the balance suspended for one year.

[¶ 7] Abdfis conviction subjected him to adverse immigration consequences under federal law and, with new counsel, he applied for post-conviction relief under N.D.C.C. ch. 29-32.1. Asserting deportation proceedings against him were imminent under federal immigration law, Abdi asked the post-conviction court to consider the application “as submitted on the records before the Court in a motion for summary disposition under [N.D.C.C. § 29-32.1-09] relying on the certified records.” The State also sought summary disposition. At the end of an expedited July 16, 1999 post-conviction hearing, Abdi’s counsel said “[t]he next hearing in immigration and the final hearing is July 27th. If the Court’s capable or willing to give an order before then, it would be greatly appreciated.” The post-conviction court then denied Abdi’s application and granted the State summary disposition, ruling the trial court’s acceptance of Abdi’s guilty plea substantially complied with N.D.R.Crim.P. 11 and Abdi’s trial counsel did not provide him ineffective assistance of counsel.

II

[¶ 8] The burden of establishing a basis for post-conviction relief rests on the applicant. Frey v. State, 509 N.W.2d 261, 263 (N.D.1993). Post-conviction proceedings under N.D.C.C. ch. 29-32.1 are civil in nature, Owens v. State, 1998 ND 106, ¶ 24, 578 N.W.2d 542, and summary disposition is available under N.D.C.C. § 29-32.1-09(1), if “the application, pleadings, any previous proceeding, discovery, or other matters of record show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” We have held a post-conviction court does not err in failing to hold an evidentiary hearing when the parties agree to summary disposition. See Owens, at ¶ 17. We review an appeal from a summary denial of post-conviction relief as we review an appeal from a summary judgment. Wilson v. State, 1999 ND 222, ¶ 13, 603 N.W.2d 47. If there is a contradiction between the record and an applicant’s unsupported assertions, a post-conviction court may accept the record. State v. Parisien, 469 N.W.2d 563, 566 (N.D.1991); State v. Gilley, 289 N.W.2d 238, 241 (N.D.1980).

III

[¶ 9] Abdi argues withdrawal of his guilty plea is necessary to correct a manifest injustice because he did not knowingly and intelligently waive his constitutional rights before pleading guilty.

[¶ 10] An applicant’s attempt to withdraw a guilty plea under the post-conviction procedure act generally is treated as a motion to withdraw a plea under N.D.R.Crim.P. 32(d). State v. Hendrick, 543 N.W.2d 217, 218 (N.D.1996). After a court has accepted a guilty plea and imposed sentence, a defendant cannot withdraw the plea under N.D.R.Crim.P. 32(d) unless withdrawal is necessary to correct a manifest injustice. State v. Farrell, 2000 ND 26, ¶ 8, 606 N.W.2d 524. A manifest injustice may result from procedural errors by the sentencing court. Id. The determination whether a manifest injustice exists for the withdrawal of a guilty plea lies within the court’s discretion and will not be reversed on appeal except for an abuse of discretion. Hendrick, at 219. An abuse of discretion under N.D.R.Crim.P. 32(d) occurs when the court’s legal discretion is not exercised in the interests of justice. State v. Dalman, 520 N.W.2d 860, 862 (N.D.1994).

[¶ 11] Before accepting a guilty plea, a trial court must advise the defendant of certain rights under N.D.R.Crim.P. 11, which provides in part:

(b) Advice to Defendant. The court may not accept a plea of guilty without first, by addressing defendant personally [except as provided in Rule 43(c) ] in open court, informing the defendant of and determining that the defendant understands the following:
(1) The nature of the charge to which the plea is offered;
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered;
(3) That the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty;
(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial by jury or otherwise and the right to be confronted with adverse witnesses; and
(5)If the defendant is not represented by an attorney, that the defendant has the right to be represented by an attorney at every stage of the proceeding against the defendant and, if necessary, one will be appointed the defendant, as provided in Rule 44, North Dakota Rules of Criminal Procedure.

[¶ 12] The advice required by N.D.R.Crim.P. 11(b) is mandatory. See State v. Abdullahi, 2000 ND 39, ¶ 9, 607 N.W.2d 561. Although N.D.R.Crim.P. 11 does not require the trial court’s advice to follow a ritualistic, predetermined formality, the court must substantially comply with the procedural requirements of the rule to insure the defendant is entering a voluntary guilty plea. Abdullahi, at ¶ 9.

A

[¶ 13] Abdi argues the trial court failed to inform him of his right against compulsory self-incrimination as required by Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which held a guilty plea waives the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront accusers, and a waiver , of those rights cannot be presumed from a silent record. See also N.D.R.Crim.P. 11(b) Explanatory Note (explaining rule codifies requirements of Boykin).

[¶ 14] At Abdi’s initial appearance on August 7, 1998, the trial court informed a group of defendants, including Abdi, that he had “the right not to testify at [his] own trial. And by that I mean you can have a trial without ever taking that witness stand. And no one is to comment upon that to anyone at the trial.” See N.D.R.Crim.P. 5(b)(1)(ii). When the court accepted Abdi’s guilty plea on November 9, 1998, the court asked him if he “hear[d] and [understood] the constitutional rights that the Court gave [him] on an earlier date,” and he responded “yes.”

[¶ 15] A group explanation of the rights outlined in N.D.R.Crim.P. 11(b) complies with the requirement the court address the defendant personally. Parisien, 469 N.W.2d at 566. At a change of plea hearing, a trial court is not required to readvise a defendant of each of his rights under N.D.R.Crim.P. 11(b), if the court determines the defendant previously was properly advised of those rights and recalls the advice. State v. Gunwall, 522 N.W.2d 183, 185 (N.D.1994).

[¶ 16] Abdi argues there was no interpreter at his August 7 initial appearance, both the trial court and the post-conviction court concluded an interpreter was necessary, and his affidavit establishes he did not understand the rights given at his August 7 appearance. He argues his affidavit “comports with common sense,” and the post-conviction court abused its discretion in refusing to allow him to withdraw his guilty plea because he was not informed of his right against compulsory self-incrimination.

[¶ 17] At the August 7 hearing, Abdi said he understood the proceedings, and he requested an interpreter. Although both the trial court and the post-conviction court concluded an interpreter was necessary, that conclusion does not necessarily mean Abdi did not understand the rights that had been given him without an interpreter. At the November 9 hearing, Abdi appeared with an interpreter and the trial court informed him under N.D.R.Crim.P. 11(b)(4) a guilty plea would waive his rights to any trial proceedings and to cross-examine witnesses who would have testified against him. Although the court did not specifically identify Abdi’s right against self-incrimination at the November 9 hearing, at that hearing Abdi said he heard and understood the constitutional rights, which included the privilege against compulsory self-incrimination, the court had given him on August 7. The trial court was not required to readvise Abdi of that right at the November 9 hearing. See Gunwall, 522 N.W.2d at 185. The record supports a conclusion Abdi understood his right against compulsory self-incrimination. If there is a contradiction between the record and an applicant’s unsupported assertion, a post-conviction court may accept the record. See Parisien, 469 N.W.2d at 566.

[¶ 18] We agree with the post-conviction court that the trial court’s advice substantially complied with the requirements of N.D.R.Crim.P. 11(b) for accepting a guilty plea. This record is not silent about Abdi’s waiver of the privilege against self-incrimination, and we conclude the post-conviction court did not abuse its discretion in denying Abdi’s request to withdraw his guilty plea on this basis.

B

[¶ 19] Abdi argues the trial court failed to inquire about plea discussions under N.D.R.Crim.P. 11(c), which provides:

(c) Insuring That the Plea Is Voluntary. The court shall not accept a plea of guilty without first, by addressing the defendant personally [except as provided in Rule 43(c) ] in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to whether the defendant’s willingness to plead guilty results from previous discussion between the prosecuting attorney and the defendant or the defendant’s attorney.

Abdi argues the trial court failed to comply with the second sentence of N.D.R.Crim.P. 11(c), and if the court would have inquired, it would have learned he pled guilty for an improper reason — to get out of jail quickly. Abdi argues the trial court’s lack of inquiry violated the letter and spirit of N.D.R.Crim.P. 11(c).

[¶ 20] In Farrell, 2000 ND 26, 606 N.W.2d 524, we recently dealt with a plea challenge based on the second sentence of N.D.R.Crim.P. 11(c) and a nonbinding recommendation for sentencing. In Farrell, at ¶ 18, plea discussions resulted in the defendant pleading guilty to one charge in exchange for dismissal of another charge and the State’s nonbinding sentencing recommendation. We said it was apparent an understanding resulted from discussions between the prosecution and defense counsel in that case. Id. We concluded, before accepting the plea and imposing a harsher sentence than the State’s nonbinding recommendation, the trial court should have inquired further under N.D.R.Crim.P. 11(c) about the defendant’s understanding of the informal plea agreement and the voluntariness of the resulting guilty plea. Farrell, at ¶ 18.

[¶ 21] The purpose for the inquiry in N.D.R.Crim.P. 11(c) is for the trial court to ascertain whether a guilty plea is the result of negotiations so the court can inquire further about the negotiation process to assess the defendant’s understanding of the terms of any resulting agreements. Farrell, 2000 ND 26, ¶¶ 15-17, 606 N.W.2d 524; see also State v. Beckman, 1999 ND 54, ¶10, 591 N.W.2d 120; State v. Hoffarth, 456 N.W.2d 111, 114 (N.D.1990). In Farrell, at ¶ 17, we described the reason for the second sentence of N.D.R.Crim.P. 11(c):

The provisions of N.D.R.Crim.P. 11(c) are virtually identical to F.R.Crim.P. 11(d), and the reason for the second sentence of the rule is explained in the Notes to Advisory Committee on Rules, F.R.Crim.P. 11, by a one-sentence quotation from Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971): “The plea must, of course, be voluntary and knowing and if. it was induced by promises, the essence of those promises must in some way be made known.” The information sought to be elicited by the rule is intended to alert the trial court about plea negotiations so the court can further inquire about the negotiation process to assess the defendant’s understanding of the terms of any resulting agreements. See 1A Wright, Federal Practice and Procedure: Criminal 3d § 175.1, at pp. 255-56 (1999).

In Farrell, at ¶ 22, we concluded the record established the defendant’s guilty plea was not voluntary because he did not understand the nature of his agreement for a nonbinding sentence recommendation. We held the trial court did not substantially comply with N.D.R.Crim.P. 11(c) and withdrawal of the guilty plea was necessary to correct a manifest injustice. Farrell, at ¶ 21.

[¶ 22] Here, at an October 7, 1998 hearing, Abdi’s counsel informed the trial court he had been “talking” with the prosecution and anticipated an amendment to the information. Counsel asked to schedule the matter for a change of plea. The State filed an amended information on October 9, reducing the charge from two counts of aggravated assault to one count of assault. On November 9, 1998, Abdi pled guilty to the amended information. The court sentenced Abdi to one year in jail with credit for 95 days served and the balance suspended for one year. The sentence followed the State’s recommendation, but the court reduced from two to one year the State’s recommendation for suspension of the balance of Abdi’s jail sentence. During sentencing, Abdi’s counsel again mentioned conversations with the prosecution about the amendment to the original two count information.

[¶ 23] Counsel’s statements about talking with the prosecution and the filing of an amended information suggest Abdi’s guilty plea resulted from previous discussions between the prosecution and defense counsel within the meaning of N.D.R.Crim.P. 11(c), and the trial court should have made further inquiry for the record under the second sentence of N.D.R.Crim.P. 11(c) to ascertain Abdi’s understanding' of the terms of any agreement. Unlike Farrell, this record is void of any evidence that Abdi misunderstood the nature of any agreement vis-a-vis this charge. Furthermore, in Abdullahi, 2000 ND 39, ¶ 19, 607 N.W.2d 561, we recently held deportation and mandatory, indefinite detention under federal immigration law are collateral consequences of a guilty plea, and a trial court need not advise a defendant of those collateral consequences before accepting a guilty plea. Abdi cannot rely on collateral consequences to claim he did not understand the nature of the discussions or any agreement regarding this charge. Moreover, in contrast to Farrell, here the trial court’s sentence was less than the State’s recommendation for this charge. Without evidence that suggests Abdi did not understand the nature of any agreement or sentencing recommendation vis-a-vis this charge, we will not order the guilty plea withdrawn to correct a manifest injustice. See N.D.R.Crim.P. 52(a). We hold the post-conviction court did not abuse its discretion in refusing to allow Abdi to withdraw his guilty plea on this basis. See United States v. Timmreck, 441 U.S. 780, 784-84, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (holding conviction based on guilty plea not subject to collateral attack for violation of F.R.Crim.P. 11 which is technical and not of constitutional magnitude).

C

[¶ 24] Abdi argues he did not knowingly and intelligently waive his constitutional rights because he did not understand the interpreter.

[¶ 25] At an August 27,1998 hearing, the following colloquy occurred:

INTERPRETER: (Inaudible) language today. And he [Abdi] said he can’t speak Swahili, he speak Somali.
THE COURT: He said what?
INTERPRETER: He speak Somali.
THE COURT: He speaks a different language than what you can interpret?
INTERPRETER: Yeah. I can speak Somali and Swahili both and he said he can speak Somali and I was speaking Swahili because I was requested on Swahili today.
THE COURT: So he wants a different interpreter?
[COUNSEL]: Well, I think she can do it, Your Honor.
INTERPRETER: No, I can speak both.
[COUNSEL]: But she tried it in Swahili, now she wants to do it in Somalian.
THE COURT: Oh, sure. Go ahead.
Are we communicating now?
INTERPRETER: Yup.

[¶ 26] At the November 9 change-of-plea hearing, Abdi stated on the record he understood his interpreter. Abdi’s interpreter filed an affidavit stating she had translated everything correctly and Abdi understood the proceedings. Abdi nevertheless claims he did not understand the interpreter. In post-conviction proceedings, if there is a contradiction between the record and the applicant’s unsupported assertion, the court may accept the record. See Parisien, 469 N.W.2d at 566. Here, because of pending immigration proceedings Abdi sought summary disposition to expedite his post-conviction application, and he cannot now claim error because an evidentiary hearing was not held. See Owens, 1998 ND 106, ¶ 17, 578 N.W.2d 542. Under these circumstances, we reject Abdi’s after-the-fact assertion that he did not understand the interpreter.

[¶ 27] We conclude the post-conviction court did not abuse its discretion in deciding withdrawal of Abdi’s guilty plea was not necessary to correct a manifest injustice.

IV

[¶ 28] Abdi argues his trial counsel’s representation deprived him of effective assistance of counsel. Abdi argues his counsel (1) advised him to plead guilty simply to get out of jail quickly, despite a meritorious self-defense claim; (2) failed to retain a competent interpreter; (3) failed to inform him of his constitutional rights; (4) failed to perform basic investigation; and (5) did not inform him of the “certain” immigration consequences of his guilty plea.

[¶ 29] A criminal defendant is entitled to effective assistance of counsel. E.g. DeCoteau v. State, 1998 ND 199, ¶ 6, 586 N.W.2d 156. We summarized our standard for reviewing a claim of ineffective assistance of counsel in Stoppleworth v. State, 501 N.W.2d 325, 327 (N.D.1993):

When a defendant raises an ineffective-assistance-of-eounsel argument, it is the defendant’s burden to prove that counsel’s assistance was ineffective at trial. State v. Skaro, 474 N.W.2d 711, 714 (N.D.1991). In carrying that burden, the defendant must establish two elements. “First, the defendant must prove that the counsel’s performance was deficient. Second, the defendant must prove that the deficient performance prejudiced the defendant.” State v. Wilson, 488 N.W.2d 618, 622 (N.D.1992) [citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. In attempting to prove the first element, “the defendant must overcome the ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” State v. Skaro, 474 N.W.2d at 715 (quoting Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065). The second element requires the defendant to prove that, .“but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068). See also State v. Bowers, 426 N.W.2d 293, 295 (N.D.1988); State v. Thompson, 359 N.W.2d 374, 377 (N.D.1985).

In the context of a guilty plea, the United States Supreme Court has held the second element of a claim of ineffective assistance of counsel, the “prejudice” prong, requires the defendant to show there is a reasonable probability that, but for counsel’s errors, the defendant would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[¶ 30] Here, Abdi asserted deportation proceedings against him were imminent under federal immigration law, and he asked the post-conviction court for summary disposition of his application. Abdi submitted affidavits claiming his trial counsel advised him to plead guilty despite a meritorious self defense claim; failed to retain an interpreter Abdi could understand; failed to inform Abdi of his constitutional rights; failed to contact the “victims” of the assault; and failed to advise Abdi of the “certain” immigration consequences of a guilty plea. Abdi did not submit an affidavit of his trial counsel, however, and during oral argument to this Court, Abdi’s post-conviction counsel claimed he was unable to locate Abdi’s trial counsel. On appeal, Abdi essentially asks us to accept his factual assertions and conclude his trial counsel’s representation was ineffective.

[¶ 31] Ineffective assistance of counsel claims generally are unsuited for summary disposition because they ordinarily require development of the record in an evidentiary hearing. Wilson, 1999 ND 222, ¶ 16, 603 N.W.2d 47; DeCoteau, 1998 ND 199, ¶ 7, 586 N.W.2d 156; Owens, 1998 ND 106, ¶ 41, 578 N.W.2d 542. The parties, however, may agree to proceed without an evidentiary hearing. See Owens, at ¶ 17. Abdi bears a heavy burden of proving trial counsel’s assistance was ineffective, and there is a strong presumption counsel’s conduct falls within the wide range of reasonableness. DeCoteau, 1998 ND 199, ¶ 6, 586 N.W.2d 156; Stoppleworth, 501 N.W.2d at 327.

[¶ 32] Here, Abdi sought summary disposition of his claim of ineffective assistance, and he cannot now claim error because an evidentiary hearing was not held. See Owens, 1998 ND 106, ¶ 17, 578 N.W.2d 542. Abdi did not procure an affidavit from his trial counsel, and on this record, we cannot say he overcame the strong presumption his trial counsel provided effective assistance of counsel. We conclude the post-conviction court did not err in deciding the record failed to establish Abdi’s trial counsel provided ineffective assistance of counsel.

V „

[¶ 38] Abdi argues detention without possibility of bail and deportation under federal immigration law constitute cruel and unusual punishment. In Abdullahi 2000 ND 39, ¶ 22, 607 N.W.2d 561, we rejected a similar argument and held collateral immigration proceedings by federal authorities did not subject a defendant to cruel and unusual punishment in a state criminal proceeding. Abdullahi is disposi-tive of Abdi’s argument.

VI

[¶ 34] We affirm the judgment denying Abdi’s application for post-conviction relief.

[¶ 35] WILLIAM A. NEUMANN, DALE V. SANDSTROM, MARY MUEHLEN MARING, JJ., WILLIAM F. HODNY, S.J., concur.

[¶ 36] WILLIAM F. HODNY, S.J., sitting in place of KAPSNER, J., disqualified.

      . The explanatory note to N.D.R.Crim.P. 11(c) explains the purpose of subdivision (c) is to require the court to determine whether a guilty plea is voluntary and to inquire whether the plea was the result of discussions be.tween the defense attorney and the prosecuting attorney. The explanatory note indicates an implicit assumption that any promise made in reaching a proper plea agreement does not render the plea involuntary. Nothing in ibis record indicates any improper plea agreement, and the record is void of any evidence Abdi misunderstood the nature of any agreement vis-a-vis this charge.
      Unlike F.R.Crim.P. 11, our rule does not include a subdivision for harmless error, however, the explanatory note to N.D.R.Crim.P. 11 says the harmless error provisions of N.D.R.Crim.P. 52(a) apply to all the criminal rules.

      . We have often said in direct appeals where the record is inadequate to review a claim of ineffective assistance of counsel, the defendant may raise the issue in a post-conviction proceeding. See, e.g., State v. Frey, 441 N.W.2d 668, 673 (N.D.1989). Here, Abdi claimed deportation proceedings were imminent and sought summary disposition of his application. Although this is not a direct appeal, under these circumstances, Abdi may raise this issue in a subsequent post-conviction proceeding.


source: Caselaw Access Project

author: JAMES W. ANDERSON, Circuit Judge.

license: Public Domain

text:
    2000 SD 19
    Charles Russell RHINES, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Appellee.
    No. 20816.
    Supreme Court of South Dakota.
    Argued Sept. 16, 1999.
    Decided Feb. 9, 2000.

      Michael W. Hanson, Sioux Falls, for petitioner and appellant.
    Mark Barnett, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Grant Gormley, Gary Campbell and Sherri Sundem Wald, Assistant Attorneys General, Pierre, for appellee.
   JAMES W. ANDERSON, Circuit Judge.

[¶ 1.] Charles Russell Rhines (Rhines) appeals from a circuit court judgment denying his application for a writ of habeas corpus. We affirm.

FACTS AND PROCEDURE

[¶ 2.] A full review of the facts can be found in this Court’s previous opinion affirming Rhines’ conviction and sentence. State v. Rhines, 1996 SD 55, 548 N.W.2d 415, cert. denied, Rhines v. South Dakota, 519 U.S. 1013, 117 S.Ct. 522, 136 L.Ed.2d 410 (1996). Only those facts relevant to Rhines’ present appeal of the denial of habeas corpus will be reiterated in this opinion.

[¶ 3.] From late 1991 until he was terminated in February 1992, Rhines worked at the Dig ‘Em Donut Shop on West Main Street in Rapid City, South Dakota. On March 8, 1992, the body of Donnivan Schaeffer, an employee of Dig ‘Em Donuts, was found in the back storeroom of the donut shop. Schaeffer’s hands had been bound, and he had been stabbed in the abdomen, upper back, and the back of the neck. Approximately $3,300 in cash, coins, and checks was missing from the store.

[¶ 4.] On July 27, 1992, Rhines was indicted by a Pennington County grand jury in connection with the burglary at Dig Em’ Donuts and the murder of Schaeffer. Trial commenced on January 4, 1993, 'with Rhines being represented by Wayne Gilbert, Joseph Butler, and Michael Stone-field. On January 22, 1993, the jury found Rhines guilty of premeditated first-degree murder and third-degree burglary.

[¶ 5.] On January 26, 1993, the same jury sentenced Rhines to death by lethal injection for the first-degree murder conviction, having found four aggravating circumstances in connection with Schaeffer’s death: (1) the offense was committed for the purpose of avoiding,' interfering with, or preventing a lawful arrest under SDCL 23A-27A-1(9); (2) the offense was committed for the purpose of receiving money under SDCL 23A-27A-K3); (3) the offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture under SDCL 23A-27A-1(6); and (4) the offense was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of the mind under SDCL 23A-27A-K6).

[¶ 6.] Thereafter, Rhines’ trial counsel were appointed to represent him on appeal of his conviction and sentence to this Court. In that appeal, we ruled that the sentencing jury’s discretion was not adequately channeled by the “depravity of the mind” aggravating circumstance, as limited by the trial court’s instruction. Rhines, 1996 SD 55, ¶ 148, 548 N.W.2d at 449. However, we held that “the invalidity of the ‘depravity of the mind’ circumstance d[id] not so taint the penalty proceedings as to mandate reversal of Rhines’ death sentence.” Id. at ¶ 169, 548 N.W.2d at 453. Accordingly, this Court affirmed Rhines’ conviction and death sentence.

[¶ 7.] Subsequently, Rhines filed an application for writ of habeas corpus. The Honorable Merton Tice Jr. denied the application and quashed the writ in a written opinion dated October 8, 1998. Additional facts will be recited herein as they relate to specific issues.

STANDARD OF REVIEW

[¶ 8.] The remedy of a writ of habeas corpus “is in the nature of a collateral attack on a final judgment, therefore, our scope of review is limited.” Black v. Class, 1997 SD 22, ¶4, 560 N.W.2d 544, 546.

Habeas corpus can be used only to review (1) whether the court had 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. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction.

Siers v. Class, 1998 SD 77, ¶ 9, 581 N.W.2d 491, 494 (quoting Black, 1997 SD 22, ¶ 4, 560 N.W.2d at 546). Moreover, “[hjabeas corpus is available only where the defendant is imprisoned or restrained of his liberty.” Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191 (quoting Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994)).

[¶ 9.] We have also stated:

Habeas corpus is not a substitute for direct review ... The habeas petitioner has the initial burden to prove by a preponderance of the evidence that he is entitled to relief. The habeas court’s factual findings are given ‘considerable deference’ and we will not reverse these findings unless they are clearly erroneous.

Siers, 1998 SD 77, ¶¶ 9-10, 581 N.W.2d at 494 (citations omitted).

[¶ 10.] In regard to ineffective assistance of counsel claims, the following standard applies:

Whether a defendant has received ineffective assistance of counsel is essentially a mixed question of law and fact. In the absence of a clearly erroneous determination by the circuit court, we must defer to its findings on such primary facts regarding what defense counsel did or did not do in preparation for trial and in ... presentation of the defense at trial. This court, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.

Loop, 1996 SD 107, ¶ 11, 554 N.W.2d at 191 (quoting Aliberti v. Solem, 428 N.W.2d 638, 640 (S.D.1988)).

ANALYSIS AND DECISION ISSUE ONE

[¶ 11.] Whether the circuit court erred in denying Rhines’ application for writ of habeas corpus based on claims of ineffective assistance of counsel.

[¶ 12.] The Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984) (emphasis added). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Id., 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93.

[¶ 13.] This Court applies a two-prong test to ineffective assistance of counsel claims. In order to meet the burden of proof for a claim of ineffective assistance of counsel, a defendant must prove (1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant. Siers, 1998 SD 77, ¶ 12, 581 N.W.2d at 495; Sprik v. Class, 1997 SD 134, ¶ 22, 572 N.W.2d 824, 829; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

[¶ 14.] In regard to the first prong of this test, an objective standard of reasonableness, counsel’s errors must be “so serious that [he or she] was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Garritsen v. Leapley, 541 N.W.2d 89, 93 (S.D.1995) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693))). As a result, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. A defendant asking this Court to invoke such scrutiny carries a heavy burden:

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Loop, 1996 SD 107, ¶14, 554 N.W.2d at 192 (emphasis added) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95). Moreover, “every effort [must] be made to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. “The reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances.” Phyle v. Leapley, 491 N.W.2d 429, 433 (S.D.1992) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305, 323 (1986)), overruled on other grounds by Hopfinger v. Leapley, 511 N.W.2d 845, 847 (S.D.1994).

[¶ 15.] In regard to the second prong of the test, prejudice to the defendant, this Court must focus on whether the result of the proceeding was fundamentally unfair or unreliable, not merely on whether the outcome would have been different. Siers, 1998 SD 77, ¶ 12, 581 N.W.2d at 495; Sprik, 1997 SD 134, ¶22, 572 N.W.2d at 829; Loop, 1996 SD 107, ¶ 15, 554 N.W.2d at 192; Hopfinger, 511 N.W.2d at 847. The law does not entitle the defendant to have his conviction set aside “solely because the outcome would have been different but for the counsel’s error.” Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180, 189 (1993). Rather, “counsel’s errors [must be] so serious as to deprive the defendant of a fair trial, a trial whose result is rehable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

[¶ 16.] With these principles in mind, we now examine Rhines’ claims of ineffective assistance of counsel during his trial and original appeal.

A. Whether counsel were ineffective because they did not attempt to suppress Rhines’ confession on grounds that it was induced by a false promise and thereby coerced and involuntary.

[¶ 17.] Rhines was arrested in King County, Washington, at approximately 12:45 p.m. on June 19, 1992, for a burglary that occurred in that state. After being read a Miranda warning, Rhines asked something to the effect of, “[t]hose two detectives from South Dakota are here, aren’t they?” Rhines was asked no further questions by the King County authorities.

[¶ 18.] Detective Steve Allender of the Rapid City Police Department and Pennington County Deputy Sheriff Don Bahr arrived at 6:56 p.m. the same day to interrogate Rhines about the burglary and murder at Dig ‘Em Donuts. Detective Allender testified that he advised Rhines of his Miranda rights before questioning began. During this questioning, Rhines confessed to burglarizing Dig ‘Em Donuts and murdering Schaeffer. At some point in the interrogation Rhines also stated, “I don’t deserve anything but a kick in the teeth and the electric chair.” In response, Detective Allender observed that South Dakota had not executed anyone in fifty years.

[¶ 19.] In Rhines’ trial and original appeal, his appointed counsel unsuccessfully argued for suppression of Rhines’ confession based on an inadequate Miranda warning and insufficient waiver of Miranda rights. At the habeas corpus hearing, Michael Stonefield, one of Rhines’ appointed counsel, testified that Rhines’ confession was very damaging in both the guilt and penalty phases of the trial, and the attorneys never discussed ways to suppress the confession beyond the Miranda challenge. Stonefield also testified that he now believes the confession could have been challenged on grounds that Detective Allender made some type of implied promise to Rhines that he would not get the death penalty. Additionally, Wayne Gilbert, another of Rhines’ appointed counsel, testified that he had some concern about Detective Allender’s- statements in that they may have suggested to Rhines that the chance of the death penalty was remote.

[¶ 20.] On this habeas appeal, Rhines argues that his statement could have been attacked as involuntary, having been coerced by a false promise by Allender that Rhines would not receive the death penalty. He claims that had counsel made this argument at the suppression hearing, his confession could have been thrown out. See State v. Smith, 1998 SD 6, ¶ 7, 573 N.W.2d 515, 517 (involuntary confessions inherently unreliable).

[¶ 21.] However, in applying the two-prong analysis above, it becomes clear that counsels’ failure to make this “coercion” argument was not ineffective assistance. First, there is no indication that counsel’s representation fell below an objective standard of reasonableness as required by the first prong of the test. Siera, 1998 SD 77, ¶ 12, 581 N.W.2d at 495. The test for ineffective assistance is not whether counsel could dream up new trial strategies with the benefit of hindsight. It is whether counsel pursued a sound strategy at the time of the alleged error. Sprik, 1997 SD 134, ¶ 23, 572 N.W.2d at 829. At the time counsel were developing strategy for suppressing the statement, it was entirely reasonable for them not to pursue a coercion argument based on an alleged false promise by Allender.

[¶ 22.] The reasons for this conclusion are threefold. One, Allender’s comment that South Dakota had not executed anyone in fifty years was a true statement and could not be construed as a false promise that Rhines would not get the death penalty. Two, there is nothing in the record from Rhines himself indicating that Allen-der’s statement alone induced him to confess. In fact, the only real evidence of this supposed coercion is counsels’ supposition at the habeas hearing.

[¶ 23.] Three, a number of factors indicate Rhines’ confession was voluntary. Although Allender’s statement might have induced Rhines to cooperate, “[t]he question is not whether the ... statements were the cause of the confession but whether those statements were so manipulative or coercive that they deprived [the defendant] of his ability to make an unrestrained, autonomous decision to confess.” Smith, 1998 SD 6, ¶ 8, 573 N.W.2d at 517. Rhines made incriminating statements pri- or to Allender ever mentioning South Dakota’s recent history with the death penalty-

Additionally, in response to Allender’s comment on the lack of recent executions, Rhines predicted, “There is a first time for everything.” Moreover, as we recognized in Rhines’ previous appeal, his statements throughout the interview reflected “an individual who [was] aware of the potentially grave legal consequences of his confession.” Rhines, 1996 SD 55, ¶37, 548 N.W.2d at 429. Therefore, Rhines’ contention that counsel should have pursued a coercion argument at the suppression hearing is not supported by the evidence, and he has failed to prove that counsel did not pursue a sound trial strategy under the first prong of the ineffective assistance test.

[¶ 24.] Second, in addition to not meeting the first prong of the ineffective assistance test discussed above, Rhines has not shown, under the second prong of the test, that he was prejudiced by the decision to attack the confession solely on Miranda grounds. Siers, 1998 SD 77, ¶ 12, 581 N.W.2d at 495. Rhines’ brief and oral argument are replete with indications that his trial counsel would have pursued the coercion theory if they could do everything over again. What is utterly lacking, however, is any evidence that their decision to solely pursue a Miranda argument prejudiced Rhines, that is, deprived him a fair trial. As a result, Rhines has failed to satisfy either prong of the test for ineffective assistance of counsel in regard to his confession, and hence, we affirm the circuit court’s decision on this issue.

B. Whether counsel were ineffective because they did not appeal the trial court’s refusal to answer the jury’s questions on prison life under Simmons v. South Carolina.

[¶ 25.] After finding Rhines guilty of first-degree murder, the jury had to choose between the death penalty and life imprisonment without parole. During deliberations, the jury sent the court a note with specific questions about life imprisonment without parole, including:

Will Mr. Rhines be allowed to mix with the general inmate population?
Will Mr. Rhines be allowed to discuss, describe or brag about his crime to other inmates, especially new and/or young men jailed for lesser crimes? (ex: drugs,’ DWI, assault, etc.)
Will Mr. Rhines be allowed to marry or have conjugal visits?
Will Mr. Rhines be allowed to have or attain any of the common joys of life (ex. TV, radio, music, telephone, or hobbies and other activities to distract him from his punishment)?
Will Mr. Rhines be jailed alone or will he have a cell mate?
What sort of free time will Mr. Rhines have (what would his daily routine be)?

[¶ 26.] The court responded, “All the information I can give you is set forth in the jury instructions.” The court denied defense counsels’ request that the court add, “[Y]ou may not base your decision on speculation or guess work.”

[¶ 27.] After the jury returned a sentence of death for first-degree murder, Rhines’ trial counsel filed an appeal with this Court. In that appeal, counsel did not raise the trial judge’s refusal to answer the jury’s specific questions about prison life. Additionally, at oral argument, counsel did not cite Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

[¶ 28.] In Simmons, the sentencing jury was given a choice between imposing the death penalty or “life in prison,” and the trial court refused to instruct the jury that “life in prison” did not include the possibility of parole. Additionally, the prosecution argued that the defendant’s future dangerousness could be considered by the jury in fixing a suitable punishment and that a death sentence would “be an act of self-defense.” Id. at 157, 114 S.Ct. at 2191, 129 L.Ed.2d at 139. In addition, when the jury sent the court a note asking whether a life sentence carried a possibility of parole, the trial judge instructed them that they were not to consider parole eligibility and that life imprisonment was to be understood in its “plain and ordinary” meaning. Id. at 160, 114 S.Ct. at 2192, 129 L.Ed.2d at 140.

[¶ 29.] On appeal, the Supreme Court overturned the conviction on due process grounds. The Court held that “where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible.” Id. at 156, 114 S.Ct. at 2190, 129 L.Ed.2d at 138.

[¶ 30.] Having put in place this background of the Simmons case and the jury’s questions regarding prison life at Rhines’ sentencing, we now turn to Rhines’ ineffective assistance of counsel claim. Rhines argues the trial court should have specifically answered the jury’s questions about the “reality of life without parole,” and that its refusal to do so was a violation of due process under Simmons. Accordingly, he asserts that counsels’ failure to make this argument at oral argument on his original appeal was ineffective assistance.

[¶ 31.] However, a closer analysis reveals that counsels’ failure to cite Simmons at oral argument in the original appeal did not violate an objective standard of reasonableness or prejudice Rhines, as is required by the test for ineffective assistance. Simmons is clearly distinguishable from the case at hand.

[¶ 32.] The Court in Simmons made it clear that its decision was based on (1) the state putting the defendant’s future dangerousness at issue, and (2) the failure of the trial court to tell the jury that “life in prison” meant life without parole. Id. at 161-62, 114 S.Ct. at 2193, 129 L.Ed.2d at 141. Neither of these factors were present at Rhines’ sentencing.

[¶ 33.] First, the State never told the jury that future dangerousness was a factor for them to consider in sentencing. Rhines indicates that the prosecutor made such argument indirectly. For example, the prosecutor told the jury to consider such things as “the death of an innocent witness,” and “the greedy killing of ... [Schaeffer]” when evaluating aggravating circumstances. In addition, he suggested that Rhines knew how to kill with a knife, and that many people in the jury did not know how to kill with a knife. Finally, Rhines contends that the “depravity of the mind” circumstance itself suggested that Rhines would be dangerous in the future.

[¶ 34.] However, the prosecutor’s comments in this case do not rise to the level of argument in Simmons, in which the prosecutor expressly told the jury that imposing the death penalty would “be an act of self-defense.” Id. at 157, 114 S.Ct. at 2191, 129 L.Ed.2d at 139. In addition, the facts of Simmons do not support the idea that the “depravity of the mind” circumstance, in and of itself, translates into a statement that Rhines’ future dangerousness makes him deserving of the death penalty.

[¶ 35.] Second, even if future dangerousness was somehow made an issue, the jury in Rhines’ case was repeatedly told that life imprisonment meant life without parole, which is exactly what is required by Simmons. That case did not require the trial court to speculate as to every possible situation which Rhines could encounter while spending the rest of his life in jail. Not only would this require a grotesque extension of Simmons, it would force a trial judge to speculate on day-to-day correctional decisions which are entirely within the discretion of the Department of Corrections. Indeed, had the trial judge attempted to answer the jury’s questions in this case, he could have said little more than, “It depends,” which would have generated even more unanswerable questions from the jury. It is impossible to believe that such a situation was envisioned by the Supreme Court in Simmons.

[¶ 36.] Because the State did not put future dangerousness at issue at Rhines’ sentencing, and even if it did, the jury was clearly told that life imprisonment did not include a possibility of parole, Simmons is clearly distinguishable. As a result, Rhines cannot prove that his counsel violated an objective standard of reasonableness by failing to cite Simmons in his original appeal or that this tactical decision prejudiced Rhines with a fundamentally unfair result in that appeal. The circuit court was correct in rejecting this issue.

C. Whether counsel were ineffective because they failed to ask for specific instructions that aggravating circumstances must be considered individually.

[¶ 37.] During the sentencing phase of the trial, the prosecutor began his argument by asking the jury to go to the death penalty verdict form when they began deliberations and to determine whether or not one of the aggravating circumstances had been proven to exist beyond a reasonable doubt. He then proceeded to discuss individual aggravating circumstances. In part of this discussion, he stated:

Consider this aggravating circumstance, the death of an innocent witness. And when you consider that circumstance, and you consider it just in and of itself; because only one must be proven, based on that circumstance and that circumstance alone, I ask you to return a verdict imposing the sentence of death ... But there is more ... there is not just one aggravating circumstance in this case, not just one upon which the law justifies the death sentence, (emphasis added).
[¶ 38.] He later pointed out:
And on that circumstance alone, that greedy killing of this young man, I would ask you to impose the death penalty ... without even considering his relationship to the first one. But literally whát I have talked to you about right now is why, why was Donnivan Schaef-fer killed and sometimes in our daily lives we talk about the how and why, and I am going into the how now. For there is another aggravating circumstance for you to consider, and that’s the first one on the sheet, (emphasis added).

[¶ 39.] Rhines claims that the prosecutor’s argument violated South Dakota’s capital sentencing scheme. In this state, the jury must find one aggravating circumstance beyond a reasonable doubt to impose the death penalty, but they are always free to choose life imprisonment. SDCL 23A-27A-4 and 23A-27A-5. Because of the prosecutor’s statements, argues Rhines, the jury chose death solely because of the sheer number of aggravating circumstances. He attaches special importance to this argument because the jury was not instructed on how to decide between life imprisonment and death once they found one aggravating circumstance existed beyond a reasonable doubt. Rhines argues that counsel should have objected to the prosecutor’s argument and proposed instructions that the number of aggravating circumstances had no impact on what sentence the jury should impose.

[¶ 40.] Once again, these arguments fail to meet the test for ineffective assistance of counsel. First, if indeed the jury was given no guidance on how to make a decision between life imprisonment and death after they found at least one aggravating circumstance, this is clearly permissible under the precedents of this Court and the United States Supreme Court. Rhines, 1996 SD 55, ¶¶ 79-82, 548 N.W.2d at 437-38; Tuilaepa v. California, 512 U.S. 967, 978-79, 114 S.Ct. 2630, 2638-39, 129 L.Ed.2d 750, 764 (1994); Zant v. Stephens, 462 U.S. 862, 875, 103 S.Ct. 2733, 2741-42, 77 L.Ed.2d 235, 248-49 (1983). Therefore, this supposed lack of guidance lends no support to Rhines’ ineffective assistance argument.

[¶ 41.] Second, the prosecutor did not encourage the jury to give the number of aggravating circumstances special weight in arriving at a death sentence. The prosecutor began his argument by telling the jury that each individual aggravating circumstance was “so serious and so offensive by just one of those, the law tells you, you are justified in imposing the death penalty, just one.” Moreover, it is clear that he argued each aggravating factor separately. The portions of his argument which mention more than one aggravating circumstance are clearly just matters of transition between the different aggravating circumstances. Indeed, the jury would have had difficulty following the argument if he had not used such segues.

[¶ 42.] Third, even if one could interpret the prosecutor’s argument as inviting the jury to stack aggravating circumstances, the trial court’s instructions adequately guided their deliberations. For example, the jury was instructed that they were not required to impose a death sentence, and they could impose a life sentence for any reason satisfactory to them, or for no reason. In addition, they were informed that “[e]ach alleged aggravating circumstance, and the evidence applicable thereto, should be considered separately ... the existence of any one aggravating circumstance should not control or influence your decision with respect to another alleged aggravating circumstance.” (emphasis added). Finally, they were told, “If you find one or more aggravating circumstances to exist, then you may return one of two verdicts as to the penalty in this case,” and they were given a choice between life imprisonment without parole or a death sentence, (emphasis added).

[¶ 43.] Therefore, even if the prosecutor’s argument could be interpreted as encouraging the jury to give special weight to the sheer number of aggravating factors, the court’s instructions adequately guided their deliberations. The fact that the jury found more than one aggravating circumstance did not undermine their verdict.

[¶ 44.] Thus, there is no support for Rhines’ argument that the jury imposed a death sentence because of the sheer number of aggravating circumstances. Likewise, he has failed to prove that counsels’ failure to object to the prosecutor’s argument during sentencing or propose specific instructions either violated an objective standard of reasonableness or prejudiced him with a trial that was fundamentally unfair. The circuit court was correct in denying his ineffective assistance claim on this issue.

Remaining ineffective assistance claims

[¶ 45.] Rhines raises several other issues relating to ineffective assistance of counsel in his brief. However, these remaining instances are either conclusions, which are wholly unsupported by the record, or sound trial strategy when judged by the circumstances facing trial counsel at the time of their decisions. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. Therefore, this Court will address the remaining ineffective assistance claims no further than to point out that Rhines has not proven either prong of the ineffective assistance test in regard to these claims. The circuit court’s denial of these ineffective assistance issues is affirmed.

ISSUES TWO AND THREE

[¶ 46.] Whether this Court was required to conduct detailed harmless error analysis under the Eighth Amendment to the United States Constitution regarding the trial court’s instructional error defining depravity of the mind, and whether this error was not harmless if the jury found Rhines more worthy of the death penalty because of the number of aggravating circumstances based on the State’s argument at the penalty phase.

[¶ 47.] In support of its death penalty verdict, the jury cited four separate aggravating circumstances in connection with Schaeffer’s death. Rhines, 1996 SD 55, ¶ 166, 548 N.W.2d at 452. One of these four circumstances was that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of the mind. Id.

[¶ 48.] In Rhines’ original appeal of his conviction and sentence, this Court ruled that the jury’s discretion was not adequately channeled by the depravity of the mind aggravating circumstance, as limited by the trial court’s instruction. Id. at ¶¶ 137-148, 548 N.W.2d at 447-49. As a result, we held that the depravity of the mind circumstance, as defined by the trial court, was overbroad and vague and hence constitutionally invalid under the Eighth and Fourteenth Amendments. Id. at ¶ 166, 548 N.W.2d at 452.

[¶ 49.] However, because the jury found four aggravating circumstances, only one of which was invalid, we analyzed what effect, if any, the invalid “depravity of the mind” circumstance had on Rhines’ death sentence. Most of this analysis involved a thorough examination of Zant, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235. In that case, the Supreme Court held that the invalidity of one aggravating circumstance did not require reversal of a death sentence if certain procedural safeguards were present in a state’s capital punishment law. We determined that South Dakota’s capital sentencing scheme, which is modeled after the Georgia death penalty statutes at issue in Zant, included all the procedural safeguards emphasized in that case. Rhines, 1996 SD 55, ¶ 169, 548 N.W.2d at 453. As a result, we ultimately ruled that “the invalidity of the ‘depravity of the mind’ circumstance d[id] not so taint the penalty proceedings as to mandate reversal of Rhines’ death sentence.” Id.

[¶ 50.] With that background in mind, we turn to two interrelated issues raised by Rhines. First, he claims that this Court erred in not conducting a detailed harmless error analysis in his original appeal after we determined that the “depravity of the mind” circumstance, as limited by the trial court’s instruction, was unconstitutional. Second, he claims that the instructional error was not harmless because after the prosecutor’s argument in the penalty phase of the trial, the jury imposed the death penalty based on the sheer number of aggravating circumstances. To state this argument another way, Rhines claims that if the jury imposed the death sentence solely because there were four aggravating circumstances, and one of the four aggravating circumstances was unconstitutional, then his sentence must be reversed.

[¶ 51.] We first address Rhines’ argument that this Court was required to, and did not, undertake a specific harmless error analysis in his original appeal. He contends that this Court was required to give a detailed explanation of what the sentencing jury would have done absent the invalid “depravity of the mind” circumstance.

[¶ 52.] Rhines proceeds down two different avenues to arrive at this contention. First, he argues that South Dakota should be considered one of the “weighing” jurisdictions whose capital sentencing schemes require the sentencer to weigh aggravating and mitigating circumstances before arriving at a death sentence. In those weighing capital punishment jurisdictions, before it can uphold a death sentence imposed by a sentencer who considered an invalid aggravating circumstance, the appellate court must undertake either a reweighing of aggravation and mitigation evidence, or a detailed explanation, based on the record, of why the invalid circumstance did not contribute to the sentence obtained. Sochor v. Florida, 504 U.S. 527, 532, 112 S.Ct. 2114, 2118, 119 L.Ed.2d 326, 336-37 (1992); Clemons v. Mississippi, 494 U.S. 738, 741, 110 S.Ct. 1441, 1444, 108 L.Ed.2d 725, 733 (1990).

[¶ 53.] However, this argument is without merit. This Court has clearly held that South Dakota law does not require the weighing of aggravating circumstances against mitigating factors. Although the jury is free to consider all mitigating circumstances, they need only find one statutory aggravating factor beyond a reasonable doubt to impose the death penalty. Rhines, 1996 SD 55, ¶¶ 78-82, 169, 548 N.W.2d at 437-38, 453. As pointed out above, our analysis in Rhines’ original appeal satisfied the requirements of Zant, which is all that is required in a non-weighing capital punishment state such as South Dakota. Id. at ¶¶ 168-69, 548 N.W.2d at 453.

[¶ 54.] Second, Rhines opines that a detailed harmless error analysis is required even if South Dakota is a non-weighing state. In support of this proposition, he cites Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). In that opinion the Supreme Court stated:

With respect to the function of a state reviewing court in determining whether the sentence can be upheld despite the use of an improper aggravating factor, the difference between a weighing State and a nonweighing State is not one of ‘semantics,’ ... but of critical importance. In a nonweighing State, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty. Assuming a determination by the state appellate court that the invalid factor would not have made a difference to the jury’s determination, there is no constitutional violation resulting from the introduction of the invalid factor in an earlier stage of the proceedings. But when the sentencing body is told to iveigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale. When the weighing process itself has been skewed, only constitutional harmless-error analysis or reweighing at the trial or appellate level suffices to guarantee that the defendant received an individualized sentence.

503 U.S. at 231-32, 112 S.Ct. at 1137, 117 L.Ed.2d at 379 (emphasis added) (citation omitted).

[¶ 55.] Contrary to Rhines’ interpretation, a review of the above-quoted language reveals that a detailed harmless error analysis is not required in a non-weighing state such as South Dakota. After a thorough analysis of South Dakota’s capital sentencing scheme according to the factors in Zant, we concluded that the “invalidity of the ‘depravity of the mind’ circumstance d[id] not so taint the penalty proceedings as to mandate reversal of Rhines’ death sentence.” Rhines, 1996 SD 55, ¶ 169, 548 N.W.2d at 453. After the detailed analysis of Zant, it was inherent in our conclusion that the “invalid factor would not have made a difference to the jury’s determination.” Stringer, 503 U.S. at 232, 112 S.Ct. at 1137, 117 L.Ed.2d at 379. Therefore, this Court committed no error in its analysis of the effect of the jury’s consideration of the invalid “depravity of the mind” aggravating circumstance in Rhines’ original appeal.

[¶ 56.] As for his next issue, Rhines argues that his conviction cannot survive harmless error analysis because the prosecutor at his trial suggested that the number of aggravating circumstance carried special weight in the jury’s sentencing deliberations. As a result, Rhines contends, the invalidity of one of these aggravating circumstances requires reversal of Rhines’ sentence.

[¶ 57.] Rhines’ argument here has the same basis as his ineffective assistance of counsel claim discussed above under Issue 1(C). He claims that the prosecutor’s argument to the jury in the sentencing phase of his trial urged them to stack aggravating circumstances to arrive at a death sentence. Essentially, Rhines contends that the prosecutor turned his jury into a “weighing” jury.

[¶ 58.] This Court has already rejected the merits of this argument under Issue 1(C). We find that the prosecutor’s mention of multiple aggravating factors was merely a matter of transition in his argument, and even if this were not the case, the court’s instructions sufficiently guided the jury’s sentencing deliberations. As a result, even if this Court were required to undertake a harmless error analysis as urged by Rhines, his argument on this issue would have no bearing on the Court’s decision.

ISSUES FOUR THROUGH SIXTEEN

[¶ 59.] All remaining issues in Rhines’ brief (Issues 4-16) were fully and fairly considered by this Court in his direct appeal. Rhines, 1996 SD 55, 548 N.W.2d 415. Therefore, we are bound by the “settled law in South Dakota that issues, which were raised in a direct appeal, are res judicata on a writ of habeas corpus.” Sprik, 1997 SD 134, ¶ 20, 572 N.W.2d at 828. See also Loop, 1996 SD 107, ¶ 24, 554 N.W.2d at 193; Lodermeier v. Class, 1996 SD 134, ¶ 24, 555 N.W.2d 618, 626; Scott v. Class, 532 N.W.2d 399, 402 (S.D.1995); St. Cloud v. Leapley, 521 N.W.2d 118, 129 (S.D.1994). Consequently, these issues are barred by the doctrine of res judicata and will not be considered by this Court in this habeas review.

CONCLUSION

[¶ 60.] Rhines has failed to meet his burden of proof under our two-prong test for ineffective assistance of counsel. Additionally, this Court did not err by not undertaking a reweighing of aggravating and mitigating factors or a detailed harmless error analysis in Rhines’ original appeal because such analysis is not required in a nonweighing jurisdiction such as South Dakota. We also reject Rhines’ contention that under such analysis, his conviction must be reversed because the prosecutor’s argument at the sentencing phase of his trial encouraged the jury to stack aggravating circumstances.

[¶ 61.] Affirmed.

[¶ 62.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 63.] JAMES W. ANDERSON, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . We have previously recognized that the same ineffective assistance rules apply to both trial counsel and appellate counsel. Lykken v. Class, 1997 SD 29, ¶27, 561 N.W.2d 302, 309.

      . See Rhines, 1996 SD 55, ¶¶ 5-37, 548 N.W.2d at 424-29.

      .Gilbert, unlike Stonefield, testified that trial counsel did talk about suppressing the confession on these grounds, but Gilbert did not know how fully the discussion was developed into a legal argument.

      . Rhines had indicated that he was standing in the donut shop with money in his hand when he heard the door to the shop open, and at that point had nowhere to run. He had also asked, "You can’t plead guilty to first-degree murder, can you?” to which Allender had responded, "I don’t know.”

      . Indeed, Rhines’ appellate counsel admitted in oral argument that no prejudice could be shown from trial counsels’ decision to pursue only the Miranda argument.

      . Even though Simmons was not decided until after briefs were submitted in Rhines’ original appeal, this Court's rules allow a party to present late authorities not available at the time of brief-writing, provided certain procedures are followed. SDCL 15-26A-73.

      . This aggravating circumstance provides that "[t]he offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of the mind, or an aggravated battery to the victim.” SDCL 23A-27A-1(6).

      . Rhines relies heavily on isolated language from Justice Souter’s concurrence in Simmons for the proposition that the trial court should have answered specific questions on prison life: "[Wjhenever there is a reasonable likelihood that a juror will misunderstand a sentencing term, a defendant may demand instruction on its meaning, and a death sentence following refusal of such a request should be vacated.” Id. at 172-73, 114 S.Ct. at 2198, 129 L.Ed.2d at 148 (Souter J, concurring). However, an entire reading of the concurrence indicates that Justice Souter is addressing the sentencing term "life imprisonment,” not suggesting that a trial court must specifically define "life without parole.”

      . South Dakota law permits the sentencer to consider all mitigating circumstances, but imposes no standard of proof on mitigation. SDCL 23A-27A-1 and 23A-27A-2.

      . The jury was told that they could consider all mitigating factors and impose a life sentence even without a reason, which implies that they were given some guidance. However, because the law is clear on this point, we need not dwell on this issue.

      . This harmless error issue was seemingly raised in Rhines' original appeal. Rhines, 1996 SD 55, ¶ 167, 548 N.W.2d at 453. However, this Court did not directly address the issue in its previous opinion, so we will dispose of the issue here. Id. at ¶¶ 168-169, 548 N.W.2d at 453.


author: MILLER, Chief Justice.

text:
    2000 SD 44
    In the Matter of ESTATE OF Agnes LYNG, Deceased.
    No. 21132.
    Supreme Court of South Dakota.
    Considered On Briefs On Feb. 14, 2000.
    Decided March 29, 2000.

      Galen G. Gillette of Gillette, Battey & Gillette, Redfield, for appellants Marlene Stacey and Joyce Hove.
    Danny R. Smeins, Britton, for appellees Estate and Edward Brandt, Executor.
   MILLER, Chief Justice.

[¶ 1.] Certain heirs appeal the circuit court’s approval of the final accounting and distribution of an estate and the denial of their motion to remove the executor. We affirm.

FACTS

[¶ 2.] Agnes Lyng, a widow with no children, died testate on September 1, 1994. Her nephew Edward Brandt was named executor of her estate. Lyng’s will, dated October 12, 1984, was admitted to probate without objection. It provided that each of her then-living nieces and nephews (including Brandt) would receive $1,000, with the residuary of the estate to be divided as follows:

1/5 - Minnie Wallace (Sister)

1/5 - Esther Roehr (Sister)

1/5 - Erna Harvey (Sister)

1/5 - Roy Roehr (Brother)

1/5 - First Lutheran Church

Apparently by oversight, Ella Brandt, Lyng’s deceased sister and the mother of Brandt, was not named as a beneficiary in the will. Siblings Minnie Wallace and Roy Roehr also predeceased Lyng. Therefore, Lyng’s nieces, Joyce Hove, Marlene Stacey, and Charlene Anderson were in line to take their parents’ share of her estate.

[¶ 3.] In addition to serving as the executor of Lyng’s estate, Brandt was also the attorney-in-fact for his aunt, Esther Roehr, pursuant to a durable power of attorney. In this capacity, he executed a disclaimer of any of Roehr’s interest in Lyng’s estate. The disclaimer was signed on November 8, 1994, and was filed on April 19, 1995. It provided in relevant part:

The undersigned hereby renounces and disclaims all of her right, title and interest in and to [all jointly owned property ■ and any residuary interest passing to Roehr under the will].
This disclaimer is in favor of the Esther Roehr Irrevocable Trust dated November 8,1994.
This disclaimer is made pursuant to SDCL § 43-4-30 and SDCL § 43-4-30.1 and shall be irrevocable.

Brandt later stated that he executed and filed the disclaimer in order to create an estate plan for Roehr, to decrease her federal estate tax liability. His plan was to create the “Esther Roehr Irrevocable Trust,” (Trust) whereby Roehr would be the income beneficiary, and her nieces and nephews would be the remaindermen. The Trust was to be funded with the assets in Lyng’s estate disclaimed by Roehr.

[¶ 4.] In September 1995, under the assumption that Roehr’s disclaimer in favor of the Trust was controlling, Brandt filed a state inheritance tax return and made an estimated tax payment. Pending the creation of the Trust, Brandt did not file a federal estate tax return. Nor did he file an accounting of estate assets within one year as required by statute. This prompted a demand for accounting by Hove, Stacey and Anderson. In response, on March 28, 1996, Brandt filed an interim accounting, which showed that the only asset owned by Lyng’s estate was a one-half ownership interest in certain real estate.

[¶ 5.] Approximately one year later, Hove and Stacey filed a petition for removal of Brandt as executor, claiming his dual roles as executor of Lyng’s estate and attorney-in-fact for Roehr created a conflict of interest. They alleged further conflict of interest and self-dealing by Brandt, evidenced by the fact that he and his sister were not beneficiaries in Lyng’s estate, but were included in Roehr’s will and the proposed Trust agreement. However, the petition was never heard before the court and was presumably withdrawn.

[¶ 6.] After several years of negotiations, Brandt was ultimately unable to get the family to agree to the terms of the Trust, and it was never created. In May 1998 Brandt sold Lyng’s one-half interest in the real estate to Roehr, who owned the other half. Five months later he filed an amended state inheritance tax return, showing that Roehr now claimed the assets she had previously disclaimed. As a result, she owed additional state inheritance taxes and incurred over $7,000 in interest charges because the additional taxes were more than three years overdue.

[¶7.] In April 1999 Hove and Stacey-filed a second petition for removal of executor. Within a week, Brandt filed a final account and petition for final distribution. Hove and Stacey filed objections to the final account. All these matters were heard before the circuit court on June 2, 1999. In a memorandum decision two days later, the court approved the final account and petition for final distribution and denied Hove and Stacey’s petition. A corresponding order was entered on June 21,1999.

[¶8.] Hove and Stacey appeal, raising the following issues:

1. Whether the circuit court erred in approving the final account and distribution?
2. Whether the circuit court erred in refusing to remove Brandt as executor of the estate?

DECISION

[¶ 9.] 1. The circuit court did not err in approving the final account and distribution of the estate.

[¶ 10.] In this appeal we are asked to decide whether the trial court erred in determining that Lyng’s estate was ready for settlement. This is a factual determination subject to a clearly erroneous standard of review. “In applying the clearly erroneous standard we must bear in mind that our function is not to decide factual issues de novo.” Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970) (citations omitted). “The question for the appellate court is not whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed.” Id.

[¶ 11.] The circuit court found that all necessary tasks of administering Lyng’s estate were successfully completed, therefore it approved the final account and issued a final decree of distribution. Hove and Stacey contend, however, that the disclaimer filed by Brandt on behalf of Roehr precluded approval of the final account. Brandt maintains the disclaimer was a “conditional disclaimer,” and since its condition was not satisfied, i.e., the Trust was not created, the disclaimer was void and of no effect. In contrast, Hove and Stacey argue that notwithstanding the condition attached to the disclaimer, it was still valid and enforceable. They describe the disclaimer as a “straight disclaimer,” which operated to cede Roehr’s interest in the property to the estate as though she predeceased Lyng. We disagree.

[¶ 12.] There exists a generally recognized presumption of the acceptance of a beneficial testamentary gift. In re Mead’s Estate, 221 Wis. 311, 277 N.W. 694, 701 (1938), reh’g denied, 227 Wis. 311, 279 N.W. 18 (1938); Goodsman v. Jannsen, 234 Iowa 925, 14 N.W.2d 647, 648 (1944); see generally Annotation, What Constitutes or Establishes Beneficiary’s Acceptance or Renunciation of Devise or Bequest, 93 A.L.R.2d 8, § 4 (1964) (citing cases). Therefore, the renunciation of such a gift must be clear and unequivocal. Annotation, supra, § 25. In addition, the devisee may not assume dominion and control over the gift so as to dictate its direction in the event of his or her renunciation. McCormick v. Engstrom, 119 Kan. 698, 241 P. 685, 687 (1925). “Such an exercise of dominion and dictation would be virtually an acceptance rather than a renunciation.” M

[¶ 13.] SDCL 43-4-36 contemplates situations where a disclaimant has assumed control over property sufficiently to show acceptance rather than renouncement. Under that statute, if a disclaimant assigns, conveys, encumbers, pledges or transfers a property interest bequeathed to him or her under a will, the disclaimer is invalidated. Additionally, if the dis-claimant accepts the property or benefits therefrom, the disclaimer is invalidated.

[¶ 14.] Given the provisions of SDCL 43-4-36 and the idea that a renunciation must be unconditional in order to be effective, the disclaimer filed on behalf of Roehr must be deemed invalid. It is undisputed that the condition of the disclaimer was not satisfied, i.e., the Trust that was to receive the disclaimed assets was not created. However, even if the condition had been met, the disclaimer still would have been null and void. By directing the destination of the disclaimed assets, Roehr essentially retained control over the property sufficiently to invalidate the purported disclaimer. Her actions demonstrate acceptance of the property rather than rejection.

[¶ 15.] In addition, the record shows that at least a portion of the purportedly disclaimed assets had been accepted by Roehr before the disclaimer was filed. Certain life insurance and annuity contracts naming Roehr, Harvey and Hove as beneficiaries were paid on September 28, 1994. This was approximately six weeks before the disclaimer was signed and almost seven months before it was filed. Thus, the benefits of those assets were accepted, and any attempt to later disclaim them was invalid pursuant to SDCL 43^1-36(3).

[¶ 16.] SDCL 43-4-35 provides that any disclaimer such as the one at issue here “shall be exercised in the best interests of the estate and the ultimate beneficiaries thereof. Any such disclaimer shall not unreasonably alter an existing testamentary plan [.] ” In naming Roehr as joint owner or beneficiary on nearly all her assets, it is manifest that Lyng intended her property go to her sister after she died. In addition, Lyng intended that Roehr share in a portion of her residuary estate, as set forth in her will. The facts show that Lyng wanted Roehr to inherit the majority of her estate, and Roehr wanted to disclaim such property only if it could be diverted into the Trust. Having been unsuccessful at creating the Trust, the alternative was to revert back to Lyng’s will as if no disclaimer had ever been filed. This is exactly what Brandt did. We affirm the circuit court’s decision, as a review of the record shows it was not clearly erroneous.

[¶ 17.] 2. The circuit court did not err in refusing to remove Brandt as executor of the estate.

[¶ 18.] The decision of whether to remove a personal representative is usually reviewed under an abuse of discretion standard. Estate of Unke, 1998 SD 94, ¶ 29, 583 N.W.2d 145, 150 (citing 31 Am. Jur.2d Executors and Administrators § 277 (1989)). ‘Abuse of discretion’ is discretion not justified by, and clearly against, reason and evidence.” Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994) (citing Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991)). “The test is whether a judicial mind, in view of the law and circumstances, could reasonably have reached the [same] conclusion.” Id.

[¶ 19.] In denying Hove and Stacey’s petition for removal of Brandt as executor, the court wrote:

The Court having heard evidence and argument has determined that this estate has been in effect for several years and that the Executor has acted in a dual capacity as Executor and also as Power of Attorney for Esther Roehr and that in hindsight, considering everything, a lot of the actions probably should have been done differently but that the Executor has not in any substantive fashion violated any of the oaths of his office and that the motions made by the Objectors be denied.
SDCL 30-14-4, in effect at the time of Lyng’s death, states:
Whenever the judge of the circuit court has reason to believe, from his own knowledge or from credible information, that any executor or administrator has wasted, stolen or mismanaged, or is about to waste or steal the property of the estate committed to his charge, or has committed or is about to commit a fraud upon the estate, or is incompetent to act, or has permanently removed from the state, or has wrongfully neglected the estate, or has long neglected to perform any act as such executor or administrator, he must, by an order entered upon the records of the court, suspend the powers of such executor or administrator until the matter is investigated.

[¶ 20.] Among the alleged violations of this statute are that Brandt failed to timely file an inventory of estate assets or an initial accounting, that he commingled Roehr’s funds with the funds of the estate for over four years, that he did not timely file state inheritance tax or federal estate and income tax returns, and that he included an individual who was not an heir in the estate distribution. Hove and Stacey further assert his actions in filing, then withdrawing, the disclaimer caused Roehr to incur substantial interest charges. Also, they claim Brandt had a conflict of interest between his role as executor of Lyng’s estate and attorney-in-fact for Roehr, because he was an heir under Roehr’s will but not under Lyng’s will. We disagree with these contentions.

[¶ 21.] The delays in filing the various state and federal returns, as well as the belated filing of the estate inventory and accountings, were all attributable to the prolonged negotiations between family members in the unsuccessful attempt to create the Trust and avoid federal estate taxes for Roehr. Wfiien it became clear the family was not going to agree upon the terms of the Trust, Brandt filed the necessary returns and paid the inheritance taxes due from Roehr. The additional interest paid by Roehr may have been unnecessary, but it was caused by the actions of all parties involved.

[¶ 22.] Brandt admitted commingling the estate’s and Roehr’s funds, but there was no evidence of resulting harm or defalcation. In fact, Hove and Stacey’s attorney stated at the hearing that “he had no particular objection” with regard to the expenses of the estate. Further, although Brandt initially paid a $1,000 gift to Lyng’s step-niece, he did so only because he thought Lyng considered her a niece. After the court determined such distribution was improper, Brandt agreed to reimburse the estate. Finally, Brandt charged the estate only $1,000 for five years’ work as executor of the estate. These actions are not indicative of an executor who has wasted, stolen or mismanaged an estate. The record does not show the circuit court abused its discretion in failing to remove Brandt as executor.

[¶ 23.] Affirmed.

[¶ 24.] SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . The total value of Lyng's estate was over $500,000. Roehr was either a joint owner or a beneficiary of the bulk of the assets (approximately $400,000).

      . Total state inheritance taxes levied were approximately $58,000, $57,000 of which was due from Roehr. $36,000 of the total amount was paid in September 1995. The unpaid balance of $22,000 accrued interest at 10% for 3 ½ years until Roehr paid it in March 1999. By that time accrued interest totaled over $7,000.

      . The IRS also recognizes that any reservation of control would be an acceptance rather than a renouncement. Treas.Reg. § 25.2518-2(e)(1) provides:
      A disclaimer is not a qualified disclaimer unless the disclaimed interest passes without any direction on the part of the dis-claimant to a person other than the dis-claimant.... If there is an express or implied agreement that the disclaimed interest in property is to be given or bequeathed to a person specified by the dis-claimant, the disclaimant shall be treated as directing the transfer of the property interest.
      This has been interpreted to mean that in order to receive favorable tax treatment, a beneficiary may not disclaim property on the condition that it pass to a trust in which the disclaimant holds an interest. In addition to disclaiming the testamentary gift, the dis-claimant must also disclaim the interest in the trust. Lynn P. Hart, Advanced Issues in Disclaimer Planning: Sharpening an Old Tool, C966 ALI-ABA 309, 349-51 (1994). This is exactly the situation Brandt was attempting to create with the disclaimer. Under this analysis, even if the assets had been successfully disclaimed in favor of the Trust, Roehr still would not have accomplished her goal of receiving favorable federal estate tax treatment.

      . SDCL 43-4-36 was in effect when Lyng died in 1994, but was repealed by the legisla- ' ture in 1995 when it enacted the South Dakota Uniform Probate Code. 1995 S.D.Laws ch. 167, § 184.

      . Hove and Stacey argue that our decision in Estate of Berg, 355 N.W.2d 13 (S.D.1984), where we held that a surviving spouse must obtain court approval before revoking a previously filed disclaimer, must be followed. However, in Berg the disclaimer at issue was deemed valid. Here, the disclaimer is void and of no effect, therefore it need not be revoked, let alone receive court approval pri- or to revocation.

      . This statute was also repealed by the legislature in 1995 when it enacted the South Dakota Uniform Probate Code. 1995 S.D.Laws ch. 167, § 158. See footnote 4, supra.