author:
GORS, Acting Justice.
      GILBERTSON, Chief Justice

text:
    2002 SD 18
    STATE of South Dakota, Plaintiff and Appellee, v. Bevis R. RICHARDS, Defendant and Appellant.
    No. 21935.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided Feb. 6, 2002.
    Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Bryan T. Andersen, Office of Public Defender, Rapid City, South Dakota, Attorney for defendant and appellant.
   GORS, Acting Justice.

[¶ 1.] Bevis R. Richards pled guilty to escape and was sentenced to serve seven years in the penitentiary consecutively to the sentence he was already serving. On appeal he contends that he did not understand the nature and consequences of his guilty plea because the trial court did not, as required by SDCL 23A-7-4, inform him of the mandatory minimum penitentiary sentence. We reverse and remand.

FACTS

[¶ 2.] On May 26, 2000, Richards was sentenced to five years in the penitentiary for third offense DUI. On July 10, 2000 Richards, who was housed at the Community Alternatives of the Black Hills, did not return from work release.

[¶ 3.] Richards was apprehended on February 5, 2001 and charged with escape, as defined by SDCL 22-11A-1, from the custody of authorities of the South Dakota State Penitentiary, in violation of SDCL 22-11A-2. At his arraignment the trial court advised Richards:

THE COURT: At this time it’s been alleged, Mr. Bevis [sic], you were in the custody of the State of South Dakota under the supervision of the South Dakota State Penitentiary and that you escaped from that custody on the 10th of July, 2000. If this is found to be the case, you’re facing a maximum penalty of ten years, $10,000 fine or both.
You have a right to a Court or jury trial, a right to confront the witnesses against you, a right against self-incrimination, and right to subpoena witnesses to testify for you at any trials or hearings. If you plead not guilty, you’re presumed to be innocent and the State must prove beyond a reasonable doubt that you did what they say you did in the Information. The State must convince a unanimous jury of this county of your guilt beyond a reasonable doubt before you could be convicted.
You may if you wish plead guilty. But if you should plead guilty, you’d be waiving the rights I mentioned earlier. In other words, you would not have a right to a trial, not have a right against self-incrimination, and you’d be admitting doing what’s alleged in the Information. Do you understand these rights?

[¶ 4.] Richards informed the court that he understood his rights and was prepared to plead guilty. The court accepted the plea after finding a free and voluntary waiver of rights and a factual basis.

[¶ 5.] At sentencing, the State and Richards requested the mandatory minimum sentence:

MS. THOMAS: Your Honor, it’s my understanding that there is a mandatory minimum under these circumstances of seven years in the state penitentiary. And that sentence may not — no portion of that sentence may be suspended. So at this time the State would request that this Court impose at least the mandatory minimum of seven years. It’s my understanding there is no restitution in this matter.
THE COURT: Thank you. Counsel?
MR. ANDERSEN: That’s our request too, Your Honor, is that you not go past the mandatory minimum of seven years. He’ll return to the penitentiary where he’s got a good portion of his seven-year sentence from the DWI’s left and it’s doubtful that would he even get parole on those.

After Richards addressed the court and the court questioned him, the court concluded “[t]he legislature has seen fit to give me no choice as far as the seven years and that’s all I’m going to give you.”

DISCUSSION

[¶ 6.] Richards contends that he should be allowed to withdraw his guilty plea because the trial court, before accepting his plea, failed under SDCL 23A-7-4(1)(Rule 11(c)), to advise him of the mandatory minimum sentence. While he did not present his claim of a violation of SDCL 23A-7-4(l) to the trial court, this Court reviews the appeal for plain error. State v. Nikolaev, 2000 SD 142, 619 N.W.2d 244.

“Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” SDCL 23A-44-15; State v. Baker, 440 N.W.2d 284, 291 (S.D.1989). See United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.2000)(Rule 11 violations not previously presented to the trial court are reviewed for plain error).

Id., 2000 SD 142 at ¶ 5, 619 N.W.2d at 245.

[¶ 7.] SDCL 23A-7-4(1) provides:

Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in § 23A-7-5, and inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;

It is the trial court’s responsibility to inform a defendant of the mandatory minimum penalty and the maximum possible penalty provided by law. State v. Wilson, 459 N.W.2d 457 (S.D.1990).

[¶ 8.] Under Rule 11, there must be substantial compliance. State v. Nikolaev, 2000 SD 142 at ¶ 10, 619 N.W.2d at 246. In State v. Sutton, 317 N.W.2d 414, 415 (S.D.1982), this Court reversed a guilty plea because the trial court had not informed the defendant of his right to a jury trial in Tripp County. This Court added that informing the defendant that he had a right to a jury trial in Tripp County at the preliminary hearing would not be substantial compliance. Due process required that the defendant be informed at the arraignment before he pled guilty. See Croan v. State, 295 N.W.2d 728 (S.D.1980)(guilty plea invalid where defendant was never advised that he had a constitutional and statutory right to a speedy public trial in Yankton County.) Accord, Violett v. State, 295 N.W.2d 730 (S.D.1980); Blindert v. State, 295 N.W.2d 731 (S.D.1980).

[¶ 9.] Escape is a Class 4 felony, SDCL 22-11A-2, with a maximum penalty of ten years imprisonment in the penitentiary and a $10,000 fine. SDCL 22-6-1(6). A conviction as a result of escape is punished by a mandatory minimum sentence:

A conviction under § 22-11A-2 as a result of an escape from Department of Corrections custody shall be punished by a mandatory sentence in the state penitentiary of not less than seven years, which may not be suspended. Probation or suspended execution of sentence may not form the basis for reducing the mandatory time of incarceration required by this section.

SDCL 22-11A-8.

[¶ 10.] SDCL 23A-7-4(l) obligated the trial court to inform Richards of the mandatory minimum sentence prescribed by SDCL 22-11A-8. It did not do so.

[¶ 11.] While this Court has discussed the consequences of a failure to advise of a maximum penalty in the context of collateral attacks to guilty pleas, it has not discussed the implications of the failure to advise of a mandatory minimum sentence in the context of a direct appeal. The North Dakota Supreme Court has, however.

[¶ 12.] In State v. Schumacher, 452 N.W.2d 345 (N.D.1990) the court did not, pursuant to the North Dakota equivalent of SDCL 23A-7-4(1), advise Schumacher of the mandatory minimum sentence prior to accepting the guilty plea. As in Richards, the State argued that there was substantial compliance with Rule 11 because Schumacher’s counsel at the sentencing hearing requested imposition of the mandatory minimum sentence. The court said:

The fact that the mandatory minimum sentencing procedure was discussed and argued by counsel at the sentencing hearing, after the plea had been accepted does not cure the failure to comply with the requirements of Rule 11. The purpose of the procedure outlined in Rule 11(b) is to ensure that the defendant is fully aware of the consequences of a guilty plea before he enters his plea. That purpose is not satisfied by evidence showing that counsel raised the issue during sentencing proceedings, after the plea had been made and accepted.

Schumacher, 452 N.W.2d at 346-347.

[¶ 13.] The Schumacher court held that the failure to advise of the mandatory minimum sentence:

is more than a technical, harmless error and demonstrates a manifestation of injustice. See State v. Gustafson, 278 N.W.2d 358 (N.D.1979). We conclude that when the trial court does not advise the defendant of the mandatory minimum sentence in accordance with Rule 11(b)(2), the interests of justice require that the defendant be allowed to withdraw his plea of guilty.

Schumacher, 452 N.W.2d at 348.

[¶ 14.] The North Dakota Supreme Court further elaborated in State v. Schweitzer, 510 N.W.2d 612, 616 (N.D.1994):

The trial court’s express statement on the record of an applicable mandatory minimum sentence eliminates the inherent danger of misinterpreting whether the defendant’s decision to plead guilty was made with full knowledge of the sentence which must be imposed as a result of that plea. Schumacher. That advice does not appear on the record before us. When the trial court does not advise the defendant of the mandatory minimum sentence in accordance with Rule 11(b)(2), the interests of justice require that the defendant be allowed to withdraw his plea of guilty. Schumacher.

See, generally, 5 Wayne R. LaFave et al, Criminal Procedure § 21.5(d) (1999). We find the North Dakota rationale persuasive.

[¶ 15.] Under SDCL 23A-7-4(1) the trial court has the duty to inform a defendant of the mandatory minimum penalty and the maximum possible penalty. The importance of advising a defendant of the minimum penalty cannot be denied since a mandatory minimum penalty is an absolute while a maximum penalty is only a possibility. Here the record is clear that the trial court did not advise Richards of the mandatory minimum sentence according to the dictates of SDCL 23A-7-4(1). Consequently, the record does not indicate that Richards understood the nature and consequences of his plea. See, State v. Wika, 464 N.W.2d 630 (S.D.1991). The interests of justice require that Richards be allowed to withdraw his plea.

[¶ 16.] Accordingly, the judgment is reversed and the case remanded to allow Richards to withdraw his guilty plea.

[¶ 17.] SABERS and AMUNDSON, Justices, concur.

[¶ 18.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, dissent.

GILBERTSON, Chief Justice

(dissenting).

[¶ 19.] I respectfully dissent.

[¶ 20.] It is undisputed that the trial court failed to advise Richards of the mandatory minimum sentence for escape, as required by SDCL 23A-7-4, up until the time of the sentencing hearing. Richards was, however, informed of the minimum penalty before sentence was pronounced. This procedural flaw is not sufficient to withdraw a guilty plea once sentencing has occurred. See United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (holding collateral relief not available to defendant who shows only violation of formal requirements of Rule 11 and no prejudice).

[¶ 21.] Under this Court’s precedent, Richards is required to show prejudice before relief can be granted. See Moeller, 511 N.W.2d at 809-10; King, 400 N.W.2d at 880.

Regardless of what principal [sic] of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.

King, 400 N.W.2d at 880 (quoting Keel, 585 F.2d at 113) (emphasis added). Richards has neglected to show sufficient evidence that he would have changed his plea had he been notified of the consecutive seven-year minimum sentence required for the offense of escape.

[¶ 22.] Furthermore, Richards failed to preserve his claim for appeal when he did not move to withdraw his plea upon hearing the minimum penalty at sentencing. A defendant is entitled to move to withdraw his plea up until such time as the sentence is imposed. SDCL 23A-27-11. At a bare minimum, Richards could have moved to withdraw his guilty plea when the State’s Attorney stated “it’s my understanding that there is a mandatory minimum under these circumstances of seven years in the state penitentiary.” He had a second opportunity when the judge stated “the [Legislature has seen fit to give me no choice as far as the seven years and that’s all I’m going to give you.” Instead, defense counsel simply agreed with the State’s Attorney and requested the seven-year minimum be imposed.

[¶ 23.] The majority attempts to make an artificial distinction between failing to advise a defendant of the mandatory maximum penalty, as decided by this Court in King and Moeller, and failing to advise the defendant of the mandatory minimum penalty, as alleged herein. I do not find the North Dakota rationale persuasive. See, e.g., Holmes v. United States, 876 F.2d 1545, 1550 (11thCir.1989) (holding failure to inform defendant of ten-year minimum sentence not “so fundamentally defective as to result in a complete miscarriage of justice, or inconsistent with rudimentary demands of fair procedure.” (quoting Keel, 585 F.2d at 114)); State v. Rouse, 206 Neb. 371, 293 N.W.2d 83, 88 (1980) (holding failure to advise defendant of maximum or minimum penalty “did not prejudice the rights of the defendant or result in manifest injustice.”). Therefore, I would affirm the judgment of the trial court in this case.

[¶ 24.] KONENKAMP, Justice, joins this dissent.

      . In State v. King, 400 N.W.2d 878 (S.D.1987), King was collaterally attacking two prior convictions contributing to his DWI third. The trial court did not advise him of the maximum sentence pursuant to SDCL 23A-7-4. The Court embraced Keel v. United States, 585 F.2d 110, 113 (5thCir.1978) which held:
      Regardless of what principal of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.
      In State v. Moeller, 511 N.W.2d 803 (S.D.1994) the Court noted that failure to comply with SDCL 23A-7 does not rise to the level of a constitutional issue and is not proper for consideration of habeas corpus or similar collateral attack. The failure to advise a defendant of a maximum sentence under SDCL 23A-7-4 is not a constitutional defect, in and of itself does not smack of a miscarriage of justice, and does not give rise to an opportunity to launch a collateral attack on a predicate conviction.


source: Caselaw Access Project

author: SABERS, Justice (on reassignment). AMUNDSON, Justice GILBERTSON, Chief Justice KONENKAMP, Justice

license: Public Domain

text:
    2002 SD 20
    David JORGENSON and Laura Jorgenson, Plaintiffs and Appellants, v. Michael J. VENER, M.D., Defendant and Appellee.
    No. 21896.
    Supreme Court of South Dakota.
    Argued Nov. 16, 2001.
    Reassigned Dec. 21, 2001.
    Decided Feb. 6, 2002.
    Daniel R. Fritz, Aberdeen, South Dakota, and James R. Welsh, Bradford, Coenen & Welsh, Omaha, Nebraska, Attorneys for plaintiffs and appellants.
    Reed Rasmussen, Julia M. Dvorak of Siegel, Barnett and Schütz, L.L.P., Aberdeen, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice (on reassignment).

[¶ 1.] David Jorgenson (Jorgenson) developed an infection in his lower right leg as a result of surgery to repair a shattered tibia and ankle. Jorgenson’s attending physician, Dr. Michael Vener (Vener), did not discover the infection for approximately three months. Jorgenson sued Vener for medical malpractice under the loss of chance doctrine. The trial court granted summary judgment for Vener, Jorgenson appealed, and we reversed. Jorgenson v. Vener, 2000 SD 87, ¶ 24, 616 N.W.2d 366, 373 (Jorgenson I). Now, Jorgenson pursues damages for the loss of a ten-fifteen percent chance that he could have saved his leg from amputation. The trial court granted summary judgment for Vener again, Jorgenson appeals again, and we reverse and remand for trial.

FACTS

[¶ 2.] On August 16, 1997, while visiting relatives in Wisconsin, Jorgenson jumped from a 7 foot high ledge, landing on a cement sidewalk. The impact shattered his right tibia and ankle. Jorgenson was taken to a nearby hospital where a doctor surgically inserted pins into the fractured bone and stabilized the injury with external fixators. After five days, Jorgenson was released from the hospital and returned home to Waubay, South Dakota.

[¶ 3.] Jorgenson continued treatment with Vener, a Watertown physician specializing in orthopedic surgery. On August 26, about one month after the surgery, Vener noticed some drainage around the pins in Jorgenson’s leg and placed him on a week-long course of antibiotics. An open sore of about one and a half inches had developed on Jorgenson’s lower right shin.

[¶ 4.] In late October, Jorgenson began feeling feverish. He also noticed drainage and a foul odor coming from the sore on his leg. Vener prescribed another course of antibiotics.

[¶ 5.] On November 10, 1997, Vener removed the external fixator. Approximately two weeks later, Jorgenson again noticed the drainage and foul odor coming from his open sore. This time, however, he could also see a portion of bone at the surface of the wound. Jorgenson immediately. contacted Vener, who again prescribed a course of oral and topical antibiotics. Vener also recommended scheduling an appointment with a doctor in Fargo to determine whether a “free flap” procedure should be done “in order to salvage the limb.”

[¶ 6.] Jorgenson opted, instead, to make an appointment at the Mayo Clinic in Rochester, Minnesota. On December 4, he was told that he had two alternatives concerning the treatment of his leg: (1) an attempted bone and skin graft, which would require two years of treatment with a sixty percent chance of success; or (2) an immediate amputation of the lower portion of Jorgenson’s right leg. On December 9, 1997, Jorgenson underwent a below-the-knee amputation of his right leg.

[¶ 7.] Jorgenson and his wife subsequently filed a medical malpractice action against Vener for negligently failing to diagnose a chronic infection in the bone and negligently failing to refer Jorgenson to an infectious disease specialist. Jorgen-son alleged that Vener’s negligence caused the loss of a ten-fifteen percent chance that Jorgenson could have saved his leg.

[¶ 8.] On June 28, 1999, the trial court granted Vener’s summary judgment motion on grounds that “the loss of chance doctrine is not compatible with South Dakota Law.” As indicated, this Court reversed and remanded the case, for the first time recognizing a cause of action for loss of chance in South Dakota. Jorgenson I, 2000 SD 87 at ¶ 17, 616 N.W.2d at 371. On remand, the trial court again granted Vener’s summary judgment motion, this time in response to Jorgenson’s testimony that, given a ten-fifteen percent increase in his chance to save his leg, Jorgenson stated he would choose amputation. The trial court determined that Jorgenson had “abandoned any chance of saving his leg” by choosing amputation and was not enti-tied to collect on a loss of chance claim. Jorgenson appeals again and we reverse again.

STANDARD OF REVIEW

[¶ 9.] Our standard of review for summary judgment is well established:

Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Holzer v. Dakota Speedway, 2000 SD 65, ¶ 8, 610 N.W.2d 787, 792(quoting SDCL 15—6—56(c)) (citations omitted). Thus, we independently review the record without being bound by the trial judge’s factual assessments. Carpenter v. City of Belle Fourche, 2000 SD 55, ¶ 6, 609 N.W.2d 751, 756; Fritzel v. Roy Johnson Constr., 1999 SD 59, ¶ 7, 594 N.W.2d 336, 338; Spenner v. City of Sioux Falls, 1998 SD 56, ¶ 7, 580 N.W.2d 606, 609.

[¶10.] WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT JORGENSON’S DEPOSITION TESTIMONY PRECLUDED A CAUSE OF ACTION FOR LOSS OF CHANCE.

[¶ 11.] This Court recognized a cause of action for loss of chance in Jor-genson I and reversed the trial court’s grant of summary judgment. 2000 SD 87 at ¶ 17, 616 N.W.2d at 371. Vener now argues that Jorgenson is precluded from asserting a cause of action for loss of chance because he testified that, under the circumstances, he would have chosen amputation. Even if that statement were relevant and admissible to determine damages for loss of chance, it would not be sufficient to eliminate genuine issues of material fact.

[¶ 12.] The issue in this case is not whether Jorgenson’s deposition testimony negates the possibility of a different outcome precluding his recovery on a loss of chance claim. Rather, the issue is whether Jorgenson should be given the opportunity to prove to a jury the amount of damages he suffered as a result of the doctor’s negligence. To uphold the trial court’s grant of summary judgment would effectively reverse our first Jorgenson decision because it defeats the purpose of adopting the loss of chance doctrine.

[¶ 13.] In Jorgenson I, this Court stated that “[t]he loss of chance doctrine involves the idea that a doctor, by doing something wrong, has decreased the patient’s chance of recovery or survival.” Id. at ¶ 12 (citing Margaret T. Mangan, Comment, The Loss of Chance Doctrine: A Small Price to Pay for Human Life, 42 SDLRev 279, 283 (1997)). A plaintiff may then be entitled to recover damages for this lost chance. Jorgenson has the right to prove the existence and value of his damages to a jury. Article VI § 6 of the South Dakota Constitution guarantees the right to trial by jury.' Article VI § 6 provides: “[t]he right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy!.]” (emphasis added). “A jury determination of the amount of damages is the essence of the right to trial by jury[.]” In re Certif. of Questions of Law: Knowles v. United States, 1996 SD 10, ¶ 10, 544 N.W.2d 183, 187 (quoting Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 161 (Ala.1991)). Jorgenson should not be deprived of the opportunity to prove the value of such damages simply because of an after-the-fact statement. Accordingly, we reverse and remand for jury trial.

[¶ 14.] GORS, Acting Justice, concurs.

[¶ 15.] AMUNDSON, Justice, concurs specially.

[¶ 16.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, dissent.

AMUNDSON, Justice

(concurring specially).

[¶ 17.] The issue in this case is whether Jorgenson had an opportunity for a better result during the time of his treatment by Vener. The New Mexico Supreme Court discussed the lost chance doctrine in Alberts v. Schultz and held as follows:

The injury is the lost opportunity of a better result, not the harm caused by the presenting problem. It is not the physical harm itself, but rather the lost chance of avoiding the physical harm .... [t]he causal connection between the negligence and the resultant injury must be medically provable.
The chance of a better result may be conceptualized as a window of time that existed before the malpractice took place; in that window of time the healthcare provider had an opportunity to timely implement proper medical treatments that would avoid or minimize the occurrence of the injury. Through negligent misdiagnosis, inappropriate therapy, or unnecessary delay, the window of time was closed. The act of malpractice may have immediately shut the window of time, or it may have caused a delay during which the window of time expired. The claim is not for the subsequent injury, but for the fact that it is now too late to do anything to avoid the injury. Correcting the problem is no longer possible....
Rather, the patient must present evidence that the harm for which he or she originally sought treatment — the presenting medical problem — was in fact made worse by the lost chance.

126 N.M. 807, 975 P.2d 1279, 1284-85 (N.M.1999).

[¶ 18.] In this case the plaintiff should be allowed to prove that his window of opportunity for a better result was closed due to negligent treatment, which in fact is shown to have made the condition worse. And, therefore, I concur in the majority writing.

GILBERTSON, Chief Justice

(dissenting).

[¶ 19.] I respectfully dissent. I would affirm the trial court’s summary judgment based on the evidentiary admissions of Jorgenson.

[¶ 20.] Jorgenson has failed to establish proximate cause. In recognizing a cause of action for a loss of chance in Jorgensen I, this Court stated “[p]roperly applied, the loss of chance doctrine does not alter or eliminate the requirement of proximate causation. Rather, a plaintiff must still prove by a preponderance of evidence, or more likely than not, that the defendant’s actions reduced [his] chance of a better outcome.” Jorgenson I, 2000 SD 87 at ¶ 17, 616 N.W.2d at 371 (emphasis added). See also Alberts v. Schultz, 126 N.M. 807, 975 P.2d 1279, 1287 (N.M.1999) (recognizing loss of chance doctrine but denying claim as plaintiff failed to establish doctor’s negligence proximately caused loss of leg). Thus, when a plaintiff affirmatively asserts that he would not have done anything differently had he been given that chance, there is a fatal “gap in the proof as to proximate cause.” McDaniel v. Ong, 311 Ill.App.3d 203, 243 Ill.Dec. 729, 724 N.E.2d 38, 44 (1999).

[¶ 21.] For example, in McDaniel, the guardians of a developmentally disabled nursing home patient argued that the doctor’s negligent failure to timely diagnose the patient’s pregnancy resulted in the loss of a chance to obtain an abortion. Id. at 42. The court held that, while the doctor’s conduct may have been negligent, there was no indication that the plaintiffs would have taken advantage of the medical intervention, namely, an abortion. Id. In fact, one guardian testified that an abortion had not even been considered. Id. The court stated the facts merely “show that the doctor’s actions caused a loss of the chance to consider an abortion, not the chance to obtain an abortion.” Id. (emphasis added). Similarly, in Aguilera v. Mount Sinai Hospital Medical Center, the plaintiff argued that the doctor’s negligent delay in administering a CT scan resulted in the failure to perform surgical intervention. 293 Ill.App.3d 967, 229 Ill.Dec. 65, 691 N.E.2d 1, 6 (1997). The court, however, held the absence of evidence showing the CT scan would have led to the performance of neurosurgery failed to satisfy proximate cause. Id. at 6-7. In essence, a plaintiff cannot recover on a cause of action for lost chance when the plaintiff concedes the doctor’s negligence never prevented him from actually avafiing himself of the opportunity to achieve a better outcome.

[¶ 22.] The majority of courts considering loss of chance claims have held that not only does the plaintiff have to prove that thé defendant’s neghgence increased the risk of harm, the plaintiff must also prove that the defendant’s negligence was a “substantial factor” in bringing about the ultimate injury. This “substantial factor” test is nothing more than a test for proximate cause. Jorgenson, by his own admission, has shown that the lost chance was not a substantial factor in his undergoing an amputation.

[¶ 23.] Furthermore, Jorgenson did not beheve that the possibihty of saving his leg, given the length and rigor of the treatment necessary in such an attempt, would have achieved a better result. When asked if he would have changed his mind had he been given a seventy-five percent success rate as opposed to a sixty-percent success rate, Jorgenson testified “Probably not.... I don’t have 2½ years to be there and I don’t want bone grafts, operations, and still probably lose my leg. Plus, it would have been a fused ankle with a rocker bottom shoe, so I would still have been crippled.” See Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 36, 606 N.W.2d 919, 926 (holding plaintiff may not “assert a better version of the facts” than testified to below) (citation omitted). Jor-genson’s informed choice interceded to preclude the increase of chance from saving his leg, in effect reducing the chance of a better outcome to zero. See Alberts, 975 P.2d at 1285 (holding loss of chance claim exists only where injury could have been avoided, but “[(Correcting the problem is no longer possible.”); Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990) (holding plaintiff claiming lost chance must prove defendant reduced opportunity of avoiding harm) rev’d in part on other grounds, 467 N.W.2d 25 (Mich.1991). The amputation would have occurred, even in the absence of any negligence by Vener, because Jorgenson believed that he had already achieved the better outcome.

[¶24.] No matter the approach used for determining proximate cause, one common thread remains: a plaintiff must demonstrate harm by showing the doctor’s negligence deprived him of a chance at a better result. Jorgenson’s lost chance cannot be valued because of his own testimony that the ultimate injury was not a lost chance of a better outcome, but a lost chance of a different outcome. Jorgenson cites no case law supporting Ms assertion that a loss of chance claim is compensable without any proof of harm. See State v. Pellegrino, 1998 SD 39, ¶ 22, 577 N.W.2d 590, 599 (stating failure to cite supporting authority is a violation of SDCL 15-26A-60(6) and issue is deemed waived) (citation omitted). Accordingly, where the element of proximate cause has not been satisfied, the element of damages cannot be reached.

[¶ 25.] Because Jorgenson testified that the earlier discovery of his infection would not have changed his course of action, I would hold that there can be no recovery for the lost chance in this case. As in McDaniel, Jorgenson has merely shown that the doctor’s alleged negligence caused the loss of a chance to consider the two-year treatment to try and save his leg at a possible success rate of seventy-five percent as opposed to sixty percent. He has not shown the loss of a chance to actually obtain the treatment. Indeed, he testified that obtaining the treatment was not the better result for him. I would not hold that a plaintiff be required to undergo the treatment in order to recover on a loss of chance claim, only that he deem it a possibility at a better outcome and consider it accordingly.

[¶ 26.] It is indisputable that our Constitution provides a litigant the right to have factual issues tried by a jury. But where there is no issue of fact, there is no right to a jury trial. Here, there was no question of fact left for a jury to consider, as Jorgenson’s own testimony has already given the answer. Jorgenson’s deposition testimony, that he would still choose amputation given an increased fifteen percent chance of success, factually negates the possibility of a better outcome and thereby precludes his recovery on a loss of chance claim. Simply put, Jorgenson testified his way out of court. Therefore, I would affirm the trial court’s decision.

KONENKAMP, Justice

(dissenting).

[¶ 27.] With today’s ruling, medical patients can refuse remedial treatment and still maintain a viable malpractice suit against their doctors for failing to provide that treatment. If that seems absurd, then read the majority opinion again, for that is exactly what it holds. The plaintiff here can both disclaim a medical remedy and sue for having been denied it. Thus, a patient’s own decisions about courses of treatment become wholly irrelevant. The doctor must pay for not giving a patient a choice the patient would never have chosen. The expansion of liability here is breathtaMng. Medical malpractice law now becomes a PickwicMan parlor game. There will be compensation for loss, even if only illusory, a product of statistics, conjured up and displayed in so many pixels. All a jury needs to do is count them, and, of course, add dollar signs.

      . Jorgenson's expert, Dr. Mark Rupp, testified that a diagnosis of the infection in October, when Jorgenson presented with a fever, would have increased Jorgenson's chances of saving his leg by ten-fifteen percent.

        . See McBride v. United States, 462 F.2d 72 (9thCir.1972) (applying Hawaii law); Jeanes v. Milner, 428 F.2d 598 (8thCir.1970) (applying Arkansas law); Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994); Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (N.J.1990); Aasheim v. Humberger, 215 Mont. 127, 695 P.2d 824 (1985); Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Thornton v. CAMC, 172 W.Va. 360, 305 S.E.2d 316 (W.Va.1983); Jones v. Montefiore Hosp., 494 Pa. 410, 431 A.2d 920 (1981); Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (N.Y.App.Div.1974).

      . The majority suggests that Jorgenson should not be held accountable for his testimony because it was "an after-the-fact statement.” The nature of the adversary process, however, relegates all deposition and trial testimony to the category of after-the-fact statements. This testimony is of no less value or weight simply because it is elicited in a deposition. At a minimum, this testimony would be relevant in determining whether Jorgen-son breached a duty to mitigate damages. See, e.g., Kingv. Clark, 709 N.E.2d 1043, 1048 (Ind.Ct.App.1999) (holding patient’s choice of lumpectomy over mastectomy and refusal to complete all six chemotherapy sessions "contributed as a legal cause to the harm she suffered.”); Borkowski v. Sacheti, 43 Conn.App. 294, 682 A.2d 1095, 1111 (1996) (recognizing that patient's conduct did not rise to level of contributory negligence but was relevant in determining defendant's level of liability); Chudson v. Ratra, 76 Md.App. 753, 548 A.2d 172, 181 (1988) (holding that while patient's failure to follow through with treatment did not rise to level of contributory negligence, it was relevant in determining amount of damages).

      . The determination of causation and damages in a loss of chance case may be done by three different basic methods. The two methods representing the extremes of the spectrum, are the "all or nothing” method and the Restatement (Second) of Torts method. The "all or nothing” method allows recovery only in those cases where the plaintiff proves a better than fifty percent chance of recovery. If the plaintiff is successful, the defendant is liable for one hundred percent of the loss; recovery “is not discounted by the chance that the loss might have occurred even absent the tort.” Wendland v. Sparks, 574 N.W.2d 327, 331 (Iowa 1998) (quoting Joseph H. King, Jr., Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale LJ 1353, 1365-66 (1981)). If, however, the plaintiff cannot prove a greater than fifty percent lost chance, recovery is precluded entirely-
      The majority herein uses the Restatement method, or "any loss” approach to causation, which holds a medical professional "subject to liability to the [plaintiff] for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases such harm....” Restatement (Second) of Torts § 323(a). Under this method, the increased risk need not be significant, so long as some harm was caused. This standard of proof is relaxed to the point of being nonexistent.
      I would choose to adopt the more moderate and practical "substantial factor” test in reviewing Jorgenson’s loss of chance claim. See Jeanes, 428 F.2d at 605; Delaney, 873 P.2d at 182. This method relaxes the standard of proof without eliminating it. A plaintiff meets the initial threshold by showing that a significant chance of survival or a better recovery was lost. Id. at 184. This approach is used not only to determine whether a plaintiff should recover, but also the amount of recovery "based upon what [he] lost by being deprived of the opportunity to receive early treatment and the chance of realizing gain in avoiding physical harm or loss of life.” Jorgenson I, 2000 SD 87 at ¶ 31, 616 N.W.2d at 374 (Amundson, J., concurring). Liability exposure is apportioned to fault. See McKellips v. St. Francis Hosp., Inc., 741 P.2d 467 (Okla.1987). Thus, Jorgenson could recover for Vener’s delayed diagnosis only if: (1) Vener's conduct was determined by the court to have been negligent; (2) that negligent conduct was a substantial factor in bringing about the ultimate injury; and (3) a fifteen percent lost chance is determined by the court to be significant.


author: AMUNDSON, Justice. SABERS, Justice

text:
    2002 SD 21
    Gary KNECHT, Applicant and Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee.
    No. 21846.
    Supreme Court of South Dakota.
    Argued Oct. 2, 2001.
    Decided Feb. 13, 2002.

      Michael J. Butler, Sioux Falls, SD, Attorney for applicant and appellant.

      Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, Attorneys for respondent and appellee.
   AMUNDSON, Justice.

[¶ 1.] Gary Knecht (Knecht) appeals an order dismissing his petition for Writ of Habeas Corpus, raising three separate claims of ineffective assistance of trial counsel. We affirm.

Pacts

[¶ 2.] Knecht was convicted of first degree manslaughter committed “without a design to effect death, and in a heat of passion, but in a cruel and unusual nature” under SDCL 22-16-15(2) as a result of a deadly altercation at the Legion Club in Martin, South Dakota. A more detailed version of the facts surrounding the shooting is set forth in Knecht’s direct appeal to this Court, in which we affirmed the conviction. See State v. Knecht, 1997 SD 53, 563 N.W.2d 413.

[¶ 3.] Knecht filed an application for writ of habeas corpus on October 14, 1999, alleging that his conviction was unconstitutional based on ineffective assistance of counsel. The habeas court held an eviden-tiary hearing on June 29-30, 2000. At the hearing, Knecht called Dr. Donald M. Habbe, the pathologist who performed Marshall’s autopsy, Dr. Thomas L. Bennett, another pathologist, and Gary Col-bath, Jr., Knecht’s defense lawyer at trial. The habeas court dismissed Knecht’s petition for habeas relief. Knecht now appeals the habeas court’s decision, raising the following issues:

1)Whether counsels’ failure to challenge the sufficiency of the evidence to support the jury’s finding that the death was effected in a cruel and unusual manner on direct appeal deprived Knecht of effective assistance of counsel.
2) Whether counsels’ failure to object when-the prosecutor used the defense expert’s report to impeach Knecht’s trial testimony deprived Knecht of effective assistance of counsel.
3) Whether counsels’ failure to obtain an expert forensic witness deprived Knecht of effective assistance of counsel.

STANDARD OF REVIEW

[¶ 4.] A review of a habeas case is not. an ordinary appeal; thus we have previously recognized that the standard of review is quite limited. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324, overruled, on different grounds by Jackson v. Weber, 2001 SD 30, 637 N.W.2d 19. A habeas review is more restricted, as it is “a collateral attack on a final judgment.” See id. (citations omitted). The recognized standard of review is 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.” Id. Moreover, the habeas court’s decision will not be overturned unless it is clearly erroneous. Id. Thus, if the court below was “right for any reason,” we may affirm its ruling. Id. (citation omitted).

[¶ 5.] In order for Knecht to obtain habeas relief on the grounds of ineffective assistance of counsel, he must pass the two-part test for such a claim. See Davi v. Class, 2000 SD 30, ¶ 16, 609 N.W.2d 107, 112 (recognizing the test for ineffective assistance of counsel as presented in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under this test, Knecht must first show that trial counsel erred so seriously that “counsel was not functioning as counsel guaranteed by the Constitution.” Id. Second, he must prove that counsel’s error prejudiced him so that he was deprived of a fair trial. Id. Prejudice, under the Strickland test, requires us to ask: “[B]ut for counsel’s unprofessional errors” would the result at trial have been different? Weddell v. Weber, 2000 SD 3, ¶ 25, 604 N.W.2d 274, 281 (citation omitted). To find prejudice, the answer must be that there is a reasonable probability of a different outcome. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” See id. (quoting Loop v. Class, 1996 SD 107, ¶ 14, 554 N.W.2d 189, 192). Additionally, this Court has stated:

In reviewing a habeas court’s determination of ineffective assistance of counsel we have stated: 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 his 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 inaction constituted ineffective assistance of counsel.

Id. at ¶ 27 (citations omitted). When analyzing the ineffective assistance of counsel claims, counsel is presumed competent, and this strong presumption must be overcome by Knecht. See Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

Decision

1. Whether counsels’ failure to challenge the sufficiency of the evidence to support the jury’s finding that the death was effected in a cruel and unusual manner on direct appeal deprived Knecht of effective assistance of counsel.

[¶ 6.] Knecht contends, “as a matter of law, the death of Marshall was not effected in a cruel and unusual manner, even when the evidence adduced at trial is viewed in a light most favorable to the [jury] verdict.” In cases reviewing convictions under this statute, we previously have stated that for the defendant to be convicted of manslaughter under subsection two, the evidence must show that the killing was “shocking or barbaric” and in a manner “sufficiently unique in ferocity, duration and manner of accomplishment.” See Graham v. State, 328 N.W.2d 254, 255 (S.D.1982) (citing State v. Lange, 82 S.D. 666, 672, 152 N.W.2d 635, 638 (1967)); State v. Stumes, 90 S.D. 382, 385, 241 N.W.2d 587, 589 (1976). Knecht alleges that multiple gunshots fired rapidly after an altercation between two men who had been drinking is not so “out of the ordinary” as to establish the “cruel and unusual” element of this crime. See Lange, 82 S.D. at 672, 152 N.W.2d at 688 (citations omitted).

[¶ 7.] The habeas court below acknowledged that this was not merely a case of “fisticuffs.” It noted that Knecht used a rifle against an unarmed man who arguably had retreated from the altercation. Additionally, Knecht did not shoot just once, but the evidence presented at trial showed ten shots, with six hitting Marshall. Marshall sustained massive internal and external bleeding from the bullet wounds. In fact, when the deputy who first approached Marshall viewed him, the deputy testified that Marshall was so bloody that he was not recognizable. The deputy asked Marshall, who was still conscious for a period after the shooting, who had shot him, and Marshall responded “in a choking voice, ‘G-G-Gary’ ” as he pointed towards the Legion. Marshall could say no more because he began vomiting large amounts of blood.

[¶ 8.] A review of the evidence in this case, as done by the habeas court, would obviously allow a jury to find the crime charged was committed in a cruel and unusual manner beyond a reasonable doubt. See Graham v. State, 346 N.W.2d 433, 435 (S.D.1984) ((Lraham IF) (finding that bludgeoning a man to death with the repeated blows of a crow bar was a sufficient factual basis to accept a guilty plea for a homicide committed in a cruel and unusual way). See also, State v. Jaques, 428 N.W.2d 260, 267 (S.D.1988) (finding that repeated kicks to the head and strikes during a fight was sufficient to support a conviction for manslaughter committed in a cruel and unusual manner). The Jaques court stated: “While death from a single shove in a drunken street brawl is not cruel and unusual, a prolonged beating of a woman by a drunken defendant outweighing her by 100 pounds is sufficient to reach the jury on the point.” 428 N.W.2d at 267. Similarly, a single gunshot in self-defense would likely not rise to the level of cruel and unusual. Repeated shots in various parts of the body, unnecessary to effectuate self-defense, do rise to that level.

[¶ 9.] The habeas court determined that trial counsels’ failure to raise this issue at trial or on appeal did not constitute ineffective assistance and we agree.

2. Whether counsel’s failure to object when the prosecutor used the defense expert’s report to impeach Knecht’s trial testimony deprived Knecht of effective assistance of counsel.

[¶ 10.] The defense attorneys hired Dr. Stephen Manlove to evaluate Knecht in preparation for trial. They did so in order to have the effect of Knecht’s prior military service in Vietnam and his alcohol abuse analyzed as it related to his thought process at the time of this incident. At a pre-trial hearing, defense counsel informed the prosecution and the trial court that Knecht would not be presenting any mental illness defense. The Manlove report was turned over to the State pursuant to the discovery order entered in the case.

[¶ 11.] The State alleges Knecht never indicated that Manlove would not be used to testify on the issue of diminished capacity, which the defense had planned to raise at trial. Also, the defense listed Manlove as a potential witness. Manlove, however, was never called by the defense at trial, nor was Knecht questioned about his own mental condition during direct examination (other than with regard to his drinking on the night of the murder). On cross-examination, however, the prosecutors made use of Manlove’s report to impeach Knecht’s testimony and defense counsel never objected.

[¶ 12.] Now, Knecht alleges that defense counsel’s failure to object to the cross-examination that utilized Manlove’s report resulted in ineffective representation because the report was confidential. Knecht argues that SDCL 19-13-2(5), which provides that “[a] communication is ‘confidential’ if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication,” controls this issue. Knecht submits that it is unfair to use a defendant’s inconsistent statements given to a psychiatric professional during an evaluation against him at trial. See State v. Devine, 372 N.W.2d 132, 134 (S.D.1985) (stating “[i]t is fundamentally unfair to use defendant’s incriminating admission to a psychiatrist during a psychiatric examination as part of the prosecution’s case to establish his guilt” (citation omitted)); United States v. Alvarez, 519 F.2d 1036, 1045-46 (3rd Cir.1975) (holding communications in confidence for purpose of obtaining legal advice are confidential).

[¶ 13.] Ordinarily, private communications and the work product of an attorney are confidential communications, incapable of discovery by the opposition. See SDCL 19-13-2(5) (defining confidential communications); SDCL 19-13-3 (describing a client’s ability to prohibit disclosure of confidential information). Additionally, it has been said “[t]he Fifth Amendment privilege bars the use of an incriminating statement made to a psychiatrist for the purpose of proving a defendant’s guilt.” See Devine, 372 N.W.2d at 134 (citations omitted). There are, however, discovery statutes in this state that require the disclosure of information in order to provide to both the State and Defense information discoverable in preparation of the case. See, e.g., SDCL 23A-13-12 (permitting the prosecution to obtain documentary and tangible evidence of the defendant’s that the defendant intends to introduce at trial); SDCL 23A-13-13 (permitting the prosecution access to scientific tests the defense has and will use at trial).

[¶ 14.] Importantly, when Knecht chose to testify, his prior inconsistent statements could be used as a “basic impeachment tool.” See Lien v. Class, 1998 SD 7, ¶ 47, 574 N.W.2d 601, 615. Thus, even if Knecht had established that Manlove’s report was confidential, he could not hide behind it. See State v. DeNoyer, 541 N.W.2d 725, 731-32 (S.D.1995) (holding statements obtained in violation of Miranda may be used to impeach a defendant); Lanari v. People, 827 P.2d 495, 501 (Colo.1992) (holding prosecution properly cross-examined a defendant with prior inconsistent statements made to his psychiatrist when the psychiatrist had not been called at trial, but was listed as a potential witness by defense); People v. Adamski, 198 Mich.App. 133, 497 N.W.2d 546, 548 (1993) (holding “complainant’s prior inconsistent statements to her counselor were admissible for impeachment despite the bar of the statutory privilege”). When Knecht took the stand, he “in essence forfeited his right to object to the use of voluntary statements previously made by him that conflicted with his sworn testimony.” See Lanari, 827 P.2d at 501.

Underlying this rule of limited admissibility is the recognition that the search for truth is a fundamental characteristic of criminal proceedings which, absent rules mandated directly by federal or state constitutional provisions, should be encouraged rather than impeded; the acknowledgment that false or perju-rious testimony by a defendant would subvert that essential function; and the conclusion that if the prosecution were prohibited from utilizing for impeachment purposes voluntary statements that contradict a defendant’s testimony at trial, no effective means would have been available to prevent the defendant from testifying falsely.

Id. (citations omitted).

[¶ 15.] Again, Knecht has failed to establish ineffective assistance of counsel.

3. Whether counsels’ failure to obtain an expert forensic witness deprived Knecht of effective assistance of counsel.

[¶ 16.] Finally, Knecht argues that his trial counsel was ineffective by failing to retain a forensic expert. Knecht and the State disagree as to what occurred just prior to and during the shooting on December 15, 1995. Knecht argues that he shot Marshall during the course of the struggle as Marshall was trying to pull him to the ground. The State alleges that Marshall retreated from the fight before any shots were fired, and in fact, Marshall was a safe distance away from Knecht when the rifle sounded the ten shots.

[¶ 17.] At trial, Habbe, the pathologist who performed Marshall’s autopsy, testified for the State. The autopsy report created by Habbe stated the gunshot wound on the outside of Marshall’s right calf was an entry point and the wound on the inside of the calf was the exit point of the bullet. Thus, Habbe opined that the bullet entered from the right and exited on the left. After the autopsy, Habbe discussed the wound with a person at the State Crime Lab, and later determined the bullet entered from the wound on the inside of the right calf, exiting on the outside. He testified regarding this change of opinion at trial. During defense counsel’s cross-examination of Habbe, the doctor also testified consistently with the defense theory, stating that one could conclude that the victim was on the ground when shot, and that it was possible for Marshall to have walked a short distance after being shot.

[¶ 18.] Knecht alleges that the direction and type of wound on Marshall’s calf, in addition to a flattened bullet found in Marshall’s right pant leg, are consistent with Marshall lying on his right side at the time of the shooting. This, he argues, is consistent with his allegation that Marshall was shot on the ground during the struggle, rather than after Marshall had retreated and walked away. At the habeas hearing, Knecht called Pathologist Bennett to verify these theories. In addition to the leg wound, Knecht contends Bennett demonstrated how other gunshot wounds were contrary to the State’s version of the facts. Based on this conflicting evidence, Knecht alleges that his trial counsel erred by failing to obtain an expert to explain the evidence surrounding the gunshot wounds and the implications that the direction and location of the wounds would have on the defense. He argues that if the defense had utilized an expert, the defense theories could have been corroborated and scientific evidence could have raised serious doubt as to the State’s theory of the case.

[¶ 19.] The defense attorney, Gary Col-bath, Jr., testified regarding his and his father’s reasoning for not electing to hire an expert. It was Gary Colbath, Sr.’s, practice to informally consult with experts before hiring them. In accordance with their normal practice, defense counsel consulted with Dr. Thomas Henry, a forensic pathologist from Denver, Colorado, and friend of Gary Colbath, Sr. Additionally, the Colbaths consulted with Habbe before trial and determined his opinions were not inconsistent with their defense theories. At trial, Habbe also acknowledged that the type of wounds on the victim could have been caused while the victim was walking away from Knecht, or while lying on the ground. Furthermore, the defense elicited adequate medical testimony from Dr. John F. Knecht, Jr. on cross-examination showing that Marshall could have been able to walk away after the wound on his leg was inflicted, supporting the proposition that Knecht shot Marshall during the argument, not after retreat. Additionally, at trial the defense attorneys presented other evidence discrediting the State’s eyewitnesses and the angles of the bullets. They established, through their cross-examination of Habbe and Dr. Knecht, that their theory was consistent with the wounds inflicted. Importantly, Bennett’s theories do not resolve all of the inconsistencies in the defense theory, such as why no blood was found between the spot where Knecht alleges the shooting occurred and the pools of blood where Marshall allegedly fell.

[¶ 20.] Failure to hire an expert is not, per se, error. As the Eighth Circuit has acknowledged with regard to failure to call an expert, if the omitted evidence “could not have exonerated” the defendant or “rebutted the state’s case,” the verdict rendered was not unreliable, nor the proceeding “fundamentally unfair.” See Conley v. Groose, 26 F.3d 126, 1994 WL 203379 (8th Cir. (Mo) 1994). In order for Knecht’s claim to succeed, he has to show this Court that the lack of expert testimony undermined confidence in the outcome of this case, and he has not carried this burden. See Kluck v. State, 30 S.W.3d 872, 877 (Mo.App.S.D.2000). “The fact that an error by counsel might have had some conceivable effect on the outcome is not sufficient.” Id. (citation omitted). There is no compelling proof that calling an expert in Knecht’s case would have done more than strengthen the self-defense theory of counsel. “Conjecture or speculation is not sufficient to establish the required prejudice flowing from the failure to call a witness to testify.” Id. at 876. We have previously agreed with this proposition. As stated in Siers v. Class, “there is no prejudice if, factoring in the uncalled witnesses, the government’s case remains overwhelming.” 1998 SD 77, ¶ 27, 581 N.W.2d 491, 497 (citation omitted). The fact that an expert could have strengthened the self-defense theory does not equate to ineffective assistance. In this case, trial counsels’ tactic was to have the jury consider the self-defense theory, and they succeeded in having the trial court instruct the jury on the theory of their defense.

[¶ 21.] This Court has previously analyzed whether failing to obtain an expert constitutes ineffective assistance of counsel in Davi, 2000 SD 30, 609 N.W.2d 107. In that case, the defendant’s trial counsel made a “sound strategic decision to not call a serological expert” because an expert would merely have increased the percentage of men who could potentially have deposited a semen stain on the rape victim. See id. at ¶ 32. We held in Davi that the increased number did not change the alibi defense, and other evidence still would have indicated guilt. The same principle for not reversing on ineffective assistance of counsel grounds holds true in Knecht. There is no question of who did the shooting in this case. Defense counsel analyzed whether an expert was needed, but as a matter of strategy, determined that an expert was not necessary. Counsel instead chose to cross-examine the State’s witnesses (Habbe and Knecht) to demonstrate how the doctors’ theories were not inconsistent with the defense. Importantly, we have acknowledged that “[t]he decision to call (or not to call) an expert is a matter of trial strategy.” Davi, 2000 SD 30 at ¶ 31, 609 N.W.2d at 114-115 (citing Garritsen v. Leapley, 541 N.W.2d 89 (S.D.1995)). “The defendant must show more than that the trial strategy of the defense counsel backfired or that another attorney would have prepared and tried the case in a different manner.” Weddell, 2000 SD 3 at ¶32, 604 N.W.2d at 283 (internal citations omitted). “This Court will not second guess the strategic decisions of trial attorneys.” Id. (citation omitted). In the words of the habeas judge: “A difference [in] trial strategy is not ineffective assistance of counsel, and this Court will not second guess experienced counsel, which Gary Colbath, Sr., most definitely was, regarding trial tactics or strategy.” In this case, defense counsels’ cross-examination of Habbe, along with the medical testimony of Kneeht, succeeded in getting the self-defense theory to the jury. Appellate courts are not to sit as Monday morning quarterbacks and second-guess counsels’ decisions that were made in the heat of battle. See id. at ¶ 32. To find ineffective assistance in this case would amount to doing just that.

[¶22.] There is a presumption that counsel acted competently. Ramos, 2000 SD 111 at ¶ 12, 616 N.W.2d at 92. Kneeht has not overcome that presumption of competent representation. Therefore, we affirm the habeas court’s decision in all regards.

[¶ 23.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and GORS, Acting Justice, concur.

[¶ 24.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 25.] Kneeht claimed he shot Marshall in self-defense and there was physical evidence to support it but his counsel failed to properly present it through an expert witness. This was error constituting ineffective assistance of counsel under Strickland because it resulted in prejudice to his defense.

[¶ 26.] Kneeht argues that he shot Marshall while Marshall was attacking him and trying to pull him to the ground. There was evidence, based on the bullet entry and exit wounds that supported Knecht’s argument. This evidence, had it been fully understood by Knecht’s counsel and presented to the jury through an expert, would have challenged the State’s theory of events. This evidence, however, was neither fully developed nor explained during trial.

[¶ 27.] The majority opinion states that failure to obtain an expert is not deficient per se. Even the most experienced trial counsel, however, may lack expertise in some areas and need the help of an expert. See Driscoll v. Delo, 71 F.3d 701 (8th Cir.1995); Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.1993); Starr v. Lockhart, 23 F.3d 1280, 1284 (8th Cir.1994). “When the appellant shows that defense counsel ‘failed to exercise the customary skills and diligence that a reasonably competent attorney would exhibit under similar circumstances,’ that presumption must fail.” Driscoll, 71 F.3d at 709 (quoting Starr, 23 F.3d at 1284).

[¶ 28.] Whether the gunshot wounds were consistent with Knecht’s or the State’s theory was an issue of great significance. Even Knecht’s counsel admitted that the gunshot wound evidence was significant and would have aided in the defense theory. Accordingly, because of the complexity of the evidence and the conflicting theories as to the manner of the shooting, the need for an expert was readily apparent. Under these circumstances, a reasonable defense lawyer should have taken the time and effort to thoroughly understand all of the evidence. It was deficient performance for Knecht’s counsel not to retain a forensic expert.

[¶ 29.] Knecht was prejudiced because he was unable to put on a complete defense. At the habeas hearing, pathologist Dr. Habbe testified that the bullet wound on Marshall’s right calf and the bullet discovered in his pant leg were consistent with Knecht’s testimony that Marshall had been on the ground when he shot him. Had his counsel obtained a forensic expert to study the pathology of the bullet wounds, they would have better been able to corroborate Knecht’s testimony and theory of self-defense.

[¶ 30.] Furthermore, Knecht’s counsel wholly failed to raise the argument that the killing was not effected in a cruel and unusual manner, either during trial or on direct appeal. The failure to do so constituted deficient perfonnance and resulted in prejudice to Knecht.

[¶ 31.] To sustain a conviction for first degree manslaughter committed without a design to effect death but inflicted in a cruel and unusual nature under SDCL 22-16-15(2), the evidence must show that the killing was “shocking or barbaric” and done in a manner “sufficiently unique in ferocity, duration and manner of accomplishment.” State v. Lange, 82 S.D. 666, 671, 152 N.W.2d 635, 638 (1967). In Lange, this Court examined the phrase “in a cruel and unusual manner.” Id. One of the cases cited in Lange explained that in order to sustain a conviction for a killing done in a cruel and unusual manner:

there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the manner displayed must stand out as sufficiently peculiar and unique to create surprise and astonishment and to be capable of discrimination as rare and strange.

Lange, 82 S.D. at 671, 152 N.W.2d at 638 (citing State v. Knoll, 72 Kan. 237, 83 P. 622 (1905)). This Court recognized that:

[t]hough the savageness of the assault, the deceased’s pain and injuries coupled with the disparity between defendant’s physical appearance and decedent’s presented a spectacle of brutality, still [the Kansas Supreme Court] said the manner of death was very ordinary in a fight of this type and lacked the unusual quality contemplated by the legislature.

Lange, 82 S.D. at 671-72, 152 N.W.2d at 638. This Court also cited to People v. Vollmer, which explained that “[t]o be ‘cruel and unusual’ the manner of commission of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric.” 299 N.Y. 347, 87 N.E.2d 291, 293 (1949).

[¶ 32.] The killing of Marshall does not rise to the level of cruel and unusual. It simply does not approach the barbarity contemplated by this Court and others in their analyses of the definition of cruel and unusual. Both Knecht and Marshall were intoxicated. They were involved in an altercation while in the bar. After Knecht left the bar, he was attacked from behind by Marshall, and he claims he shot rapidly and sporadically to repel him. There was little “refinement or excess of cruelty sufficiently marked to approach barbarity.” Had Knecht shot Marshall so as to immobilize him and then continued to shoot him with the intent to inflict pain or torture, such facts could show a barbaric killing and one that is “sufficiently unique in fe-. rocity, duration and manner of accomplishment.” But such facts are not present here as he simply shot until Marshall fell.

[¶ 33.] Knecht’s counsel never argued to the jury that this death was not cruel and unusual; nor objected that the evidence was insufficient to sustain a finding that death was effected in a cruel and unusual manner. His counsel admitted at the habeas hearing that he never considered researching this issue and acknowledged that an argument may have existed on those grounds. Clearly, the failure to argue to the jury or object to the sufficiency of the evidence, cannot be classified as trial strategy. He had nothing to lose and everything to gain. Counsels’ performance was deficient.

[¶34.] Knecht was clearly prejudiced by his counsels’ failure. If Knecht had been able to substantiate his claim of -self-defense with expert testimony, there was nothing cruel or unusual about his conduct. A shooting done or started in self-defense is inconsistent with the definition of cruel and unusual.

[¶ 35.] While each count of ineffective assistance of counsel meets the Strickland standard, cumulatively, they present an even more compelling case. Had Knecht’s counsel obtained a forensic expert, they would have been able to bolster the theory of self-defense. Accordingly, they would have better been able to argue that this was a bar fight and not a cruel and unusual killing. Absent the errors by Knecht’s trial counsel, there is a reasonable probability that the jury would not have found him guilty under SDCL 22-16-15(2) because it was not cruel and unusual. It was simply the death of one of two intoxicated individuals from another bar fight.

      . Gary Colbath, Jr. was co-counsel with his father, Gary Colbath, Sr., who is now deceased.

      . On direct appeal, counsel argued that the evidence was insufficient to support the conviction because the evidence was circumstantial. Here, however, habeas counsel contends that counsel should have argued, more specifically, that the evidence was insufficient to prove the "cruel and unusual” element of the crime.

      . The jury was properly instructed on what constitutes "cruel and unusual” as follows: The phrase “in a cruel and unusual manner” as used in these instructions means the killing was done with some excess of cruelty or refinement or unusual cruelty under the circumstances sufficiently marked to approach barbarity and to make it especially shocking, and the unusual character of the manner displayed in the killing must stand out as sufficiently unusual and unique or peculiar as to astonish and shock persons of normal sensibilities. Trial Court Instruction. Number 16 (derived from South Dakota Pattern Jury Instruction (Criminal 3-24-27)). This instruction has been found adequate by this Court on more than one prior occasion. See State v. Disbrow, 266 N.W.2d 246, 254 (S.D.1978); Stumes, 241 N.W.2d at 589. It requires the jury to find excessive cruelty was involved in the killing and that the means of accomplishing the act was unusual, unique or peculiar.

      . The cases upon which Knecht relies are not analogous to the facts of this case. The method of killing is distinguishable. See Lange, 152 N.W.2d at 637-38 (stating a "single momentary blow, or thrust to the pavement, applied to a willing combatant even when applied with considerable force is not sufficiently unique in ferocity, duration and manner of accomplishment” to create a jury question on the "cruel and unusual” nature of the crime); State v. Knoll, 72 Kan. 237, 83 P. 622, 623 (1905) (stating a death resulting from beating of small man by large man, involving only "unaided bodily strength and energy” did not constitute "cruel and unusual”); State v. Diggs, 194 Kan. 812, 402 P.2d 300, 305 (1965) (holding a killing of man found with defendant’s wife by beating with fists was not "cruel and unusual”); People v. Vollmer, 299 N.Y. 347, 87 N.E.2d 291, 293 (1949) (finding a killing by "a series of blows” did not equal “cruel and unusual”). None of these cases involve the use of a firearm by the perpetrator against an unarmed victim. Knecht does cite to the case of Tanks v. State, 71 Ark. 459, 75 S.W. 851 (1903), which involves the use of a dangerous weapon. Tanks is also distinguishable, however, as it involved a woman good-naturedly attempting to take a gun from a man when the gun fired accidentally and killed the woman. There is no evidence of an accidental firing of the gun in this case.

      . Habbe explained at the habeas hearing that a "shored exit wound” has a ring around it giving- it the appearance of an entrance wound.

      . There are also conflicting theories on whether the fracture caused by the right leg would have prevented Marshall from walking away from the place near the pickup (where Knecht alleges the struggle ensued) to the pools of blood several feet away (where Marshall's body was discovered). Bennett opined that Marshall could have walked away, which is contrary to the State's theory.

      . In addition to the conflicting theories on the calf wound, at the Habeas hearing, Bennett stated that the bullet causing the non-life-threatening thigh wound passed through Marshall's left-front thigh and re-entered Marshall's right calf. He determined that there were 7 wounds caused by 5 bullets and that some of the wounds were inconsistent with Marshall standing when he was shot. He stated that “all wounds are consistent with recently having been shot while he was lying on his right side on the ground.”

      . Gary Colbath, Jr., testified at the habeas hearing that it was common for his father to informally consult with Henry on forensic issues. Although Gary Colbath, Jr., was not directly involved in the forensic consult with Henry, he did note that his father had spoken with Henry in preparation for trial. He said it was likely that his father sent Habbe's report to Henry for analysis prior to defense counsels’ meeting with Habbe and discussed it with him.

      . Dr. Knecht, the petitioner’s brother, was on duty at the hospital and attempted to save Marshall's life after the shooting.

      . Rnecht failed to support his position that counsel’s failure to obtain an expert deprived him of his Sixth Amendment right to counsel because none of the cases he cited are factually analogous to Knecht's case. See Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir.1995) (holding a defense lawyer's failure to take "some measures” to understand whether the blood on the murder weapon matched that of the victim constituted ineffective assistance of counsel); Starr v. Lockhart, 23 F.3d 1280, 1290 (8th Cir.1994) (holding expert was necessary to explain extent of defendant's retardation); Proffitt v. United States, 582 F.2d 854, 859-60 (4th Cir.1978) (holding a psychiatric evaluation was necessary to determine if defendant had a defense based on the fact that he was an alleged sociopath or psychopath).


author: SABERS, Justice.

text:
    2002 SD 22
    BISON TOWNSHIP, Lincoln Township, Lone Tree Township, Scotch Cap Township, Rainbow Township, Wilson Township, Vickers Township, and Strool Township, Petitioners and Appellants, v. PERKINS COUNTY, South Dakota, Appellees.
    Nos. 22036, 22037, 22038.
    Supreme Court of South Dakota.
    Argued Jan. 8, 2002.
    Decided Feb. 13, 2002.
    Rehearing Denied March 22, 2002.

      Patricia deHueck, Pierre, Attorney for petitioners and appellants.
    Elton R. Anson, Perkins County State’s Attorney, Lemmon, Attorney for appellees.
   FACTS

SABERS, Justice.

[¶ 1.] In 1993 Perkins County (County) created different zones of property assessment within the county. This newly created system produced disparate results for the 1998 property assessment- year. Twelve Townships (Township) sought review of the 1998 real estate assessments from the Office of Hearing Examiners (OHE) challenging both the accuracy and methods employed in the assessments. OHE reversed the assessments and County appealed to the Eighth Circuit Court which reversed OHE’s decision. Township appealed to this Court. On March 15, 2000, this Court reversed the order and remanded the matter to require Perkins County to perform the assessments in an appropriate matter.

[¶ 2.] On March 24, 2000, the circuit court ordered County to reassess the subject property in eight townships. On April 19, 2000, County held an executive session and reviewed approximately 200 property assessments and made determinations regarding whether certain property should be included or excluded for purposes of valuation. Township appealed this decision and a hearing was held before the Fourth Circuit Court on November 8, 2000. On November 29, 2000, the circuit court issued an order declaring the actions of County illegal and rendering all decisions made during the executive session void. The circuit court ordered County to hold a public meeting to discuss the decisions made during its executive session because the public was entitled to review and discuss these decisions.

[¶ 3.] On December 15, 2000, County held a meeting to discuss the property assessments. Rather than reviewing only those property assessments made at the April 19, 2000 executive session, County reassessed the entire county in attempts to comply with the circuit court order dated March 24, 2000. The minutes from this meeting were published on December 21, 2000.

[¶4.] On January 10, 2001, Township appealed County’s actions of December 15, 2000, with a $250 bond. This is appeal # 22036. Specifically, Township appealed: 1) County’s reassessment of the entire county as opposed to the originally assessed property; 2) County’s actions regarding the inclusion and exclusion of transfers of real estate in County in 1997 and 1998; and 3) County’s failure to include certain 1997 arms length transfers in direct violation of the court’s March 24, 2000 judgment. The notice of appeal and bond were received by the county auditor on January 11, 2001.

[¶ 5.] On January 18, 2001, Township filed a motion for contempt of court and petition for writ of mandamus to compel County to show why it should not be held in contempt for failing to comply with this Court’s decision in Bison Township and the March 24, 2000 judgment. County filed a motion to dismiss on January 30, 2001, alleging that Township’s appeal was not properly perfected within the statutory 20-day time limit of SDCL 7-8-29.

[¶ 6.] A hearing was held on April 25, 2001, at which time the circuit court dismissed Township’s appeal on the ground that it had failed to timely file its appeal thereby depriving the court of jurisdiction. The circuit court found that Township filed its appeal one-day late and its bond twelve-days late and did not reach the substantive issues on any of the three cases. Township appeals to this Court arguing that it complied with the time requirements of SDCL 7-8-29. We reverse on the procedural issue and remand for a determination of the substantive issues raised by Township.

STANDARD OF REVIEW

[¶ 7.] “Our standard of review of a trial court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment — is the pleader entitled to judgment as a matter of law?” Weekley v. Weekley, 1999 SD 162, ¶ 12, 604 N.W.2d 19, 22-23 (citing Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631 (quoting Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592)).

[¶ 8.] WHETHER THE CIRCUIT COURT ERRED IN DETERMINING THAT TOWNSHIP DID NOT FILE ITS APPEALS WITHIN THE 20-DAY PERIOD OF SDCL 7-8-29 AND IN DISMISSING THE APPEALS.

[¶ 9.] An aggrieved party may appeal the county commission’s decision to the circuit court under SDCL 7-8-27. SDCL 7-8-29 provides the time requirement within which these appeals must be made. SDCL 7-8-29 provides:

Such appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board, when the appeal is taken by any person aggrieved by the decision of the board, and upon the person or persons affected by the decision of the board when the appeal is taken by the state’s attorney; and the county auditor shall upon the filing of the required bond and the payment of his fees, which shall be the same as allowed registers of deeds for like services, make out a complete transcript of the proceedings of the board relating to the matter of its deeision and deliver the same to the clerk of courts.

(emphasis added).

[¶ 10.] The circuit court concluded that Township failed to comply with the statute’s time requirement because the clerk received the notice of appeal on January 21, 2001, one day after the 20-day period expired. Township argues that the circuit court interpreted SDCL 7-8-29 as requiring that the service of notice of appeal must be received by the circuit court clerk within the statute’s 20-day time requirement. Township argues that this interpretation is incorrect and asserts that SDCL 15 — 6—6(b) applies to this appeal. SDCL 15-6-5(b) provides, in pertinent part: “Service by mail shall be by first class mail and is complete upon mailing.” Therefore, Township asserts that because it mailed its notice of appeal and bond on January 20, 2001, it complied with the 20 day time requirement of SDCL 7-8-29.

[¶ 11.] County argues that Township’s reliance on SDCL 15 — 6—5(b) is misplaced. Rather, County asserts that SDCL 15-6^4(d)(4)(i) is controlling. This statute provides, in pertinent part: “If the action be against a public corporation within this state, service may be made as follows: (i) Upon a county, by serving upon any county commissioner!).]” County argues that personal service was required and because such personal service was absent, the circuit court was without jurisdiction to hear the matter and, therefore, correct in its dismissal.

[¶ 12.] County’s contention, however, is incorrect. SDCL 15 — 6—4(d)(4)(i) is not controlling under these circumstances. This statute applies to the personal service of summons upon a party and not to the service of a notice of appeal. SDCL chapter 15-6 governs the rules of procedure in circuit courts. Specifically, SDCL 15-6-5 governs the service and filing of pleadings and other papers. SDCL 15-6-5(a) provides, in pertinent part, that:

Except as otherwise provided in this chapter, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer or judgment, and similar paper shall be served upon each of the parties.

Service of a notice of appeal falls within this chapter and therefore can be deemed complete upon mailing.

[¶ 13.] County also argues that the mailing of the statutorily required bond does not meet the filing requirements. County asserts that, without a bond in place, the circuit court lacks jurisdiction. This assertion is also incorrect. This Court has stated that: “When the notice of appeal is duly served, and an undertaking executed, this Court has jurisdiction of the appeal, although the appeal may not be perfected by the performance of all the acts specified in the statute.” Fullerton Lumber Co. v. Tinker, 21 S.D. 647, 648, 115 N.W. 91, 92 (1908) (citation omitted). See also Gesinger v. Gesinger, 531 N.W.2d 17, 22 (S.D.1995) (holding that failure to post bond does not divest a court of jurisdiction). The act of failing to file the bond within the statutory period does not deprive the court of jurisdiction.

[¶ 14.] Township also argues that County should not be able to take advantage of a procedural ambiguity to avoid the potential ramifications of failing to comply with two court orders. However, the circuit court erred in finding that Township failed to comply with the statutory time requirement and we reverse and remand for a determination of the substantive issues raised by Township on the merits. In this respect, we remind the circuit court that these actions do not constitute “adequate remedies at law” for the purpose of denying a writ of mandamus in these cases. See Hein v. Marts, 295 N.W.2d 167, 171 (S.D.1980) (holding that a procedural appeal from a commission’s final decision does not constitute an adequate remedy at law).

[¶ 15.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

      . Bison Township v. Perkins County, 2000 SD 38, ¶ 32, 607 N.W.2d 589, 596.

      . In the first appeal before this Court, twelve townships were involved: Bison Township, Plateau Township, Lone Tree Township, Scotch Cap Township, Wilson Township, Vickers Township, Strool Township, Maltby Township, Viking Township, and Horsecreek Township. Of the original twelve townships, eight remain: Bison Township, Lincoln Township, Lone Tree Township, Scotch Cap Township, Rainbow Township, Wilson Township, and Strool Township.

      .Effective July 1, 2000, the Unified Judicial System changed the circuit boundaries. The Eighth Judicial Circuit was renumbered as the Fourth Judicial Circuit.

      . County also appealed the property assessments for the tax years of 1998 and 1999. These are appeals # 22038 and # 22037, respectively.