author: SABERS, Justice.

text:
    2002 SD 51
    Lori A. FAULK, Plaintiff and Appellant, v. Scott FAULK, Defendant and Appellee.
    No. 21927.
    Supreme Court of South Dakota.
    Considered on Briefs on March 25, 2002.
    Decided May 1, 2002.
    Scott Armstrong, Rapid City, South Dakota, Attorney for plaintiff and appellant.

      Robert M. Nash of Wilson, Olson, Nash & Becker, Rapid City, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Lori Faulk appeals from a judgment precluding her from seeking any child support arrearages from her ex-husband, Scott Faulk, for the years of 1982-1994. Lori appeals, arguing that she is not barred from seeking child support ar-rearages, especially for the years of 1990— 1994. We reverse and remand for a determination of child support arrearages with interest, less payments and credits.

FACTS

[¶ 2.] Lori and Scott Faulk were divorced on August 17, 1982. Lori was given custody of the parties’ two minor children, Milissa and Michael. Child support was set at $100 per month, per child. The order provided that all child support payments were to be paid to the Pennington County Clerk of Court’s Office in Rapid City, South Dakota. This order was never changed, but the amount was modified to $150 per month, per child. Following the divorce, Scott moved to Wyoming and, in 1984, to Alaska. Shortly after the divorce, Scott became delinquent in his child support payments. As of 1986, child support records indicated that Scott was delinquent in his support obligation in the principal amount of $6,925.

- [¶ 3.] In 1982, Lori applied for and- received Aid to Dependent Children (ADC) from the state of South Dakota. She received ADC for a period of time in 1982 and then again from February 23, 1984 through August 28, 1990. Under SDCL 28-7-6.3, Lori assigned all of her support rights to the state for the periods during which she received ADC.

[¶ 4.] On November 10, 1994, Scott moved to modify custody and visitation with respect to the two minor children. Lori agreed to the change in custody and on January 13, 1995, the trial court entered an order changing custody. Lori further agreed to pay support in the amount of $386 per month for both children, but she later became delinquent in her support obligation.

[¶ 5.] Lori obtained an administrative judgment on November 21, 1994, for child support arrearages in the amount of $15,966; $6,925 as principal and $9,041 as interest from January 1984 to December 1988. Scott contested the validity of this judgment and filed an appeal with this Court. This Court dismissed the appeal because it was an appeal from an administrative judgment that had not been signed by a circuit judge. The case was remanded to the circuit court. The amount of this obligation should have been determined and reduced to judgment.

[¶ 6.] On April 16,1996, Scott moved to set aside the November 21, 1994 award. An evidentiary hearing concerning Scott’s child support payment history, specifically for the period from January 1984 to December 1988, was held on June 10, 1996. On September 17,- 1996, the trial court entered an order setting aside the administrative judgment. In its findings of fact and conclusions of law, the trial court defined the ultimate issue as whether Lori had a “right to seek a judgment [for] any alleged arrearages in child support during the time that she was on Aid to Dependent Children and received that funding from the State of South Dakota.” The court determined that Lori had “waived all right, title and interest that she might have in pursuing [Scott] for any of those alleged arrearages.”

[¶ 7.] On December 7, 2000, Lori filed a motion for order to show cause, alleging that Scott owed $39,300 in delinquent child support for the years of October 1983 to October 1994. This amount excluded the time during which Lori was receiving ADC payments from the state. An order to show cause was filed and Scott opposed the motion. He admitted that he had paid Lori child support for only one child from 1990-1994, but did so because one or more of the children were living with him during this time.

[¶ 8.] On January 16, 2001, a hearing was held and the trial court judge denied Lori’s claim for support arrearages prior to 1995 based on the doctrines of laches and res judicata. The trial court determined that “the matter of [Scott’s] arrear-ages to [Lori] was previously considered by this court and resolved on September 17, 1996 by the [c]ourt’s Findings of Fact, Conclusions of Law and Order Setting Aside Judgment.” The trial court concluded that no child support arrearages were due from Scott to Lori. On March 1, 2001, the trial court entered an order dissolving the order to show cause and reinstated garnishment proceedings to satisfy Lori’s delinquent support obligation. Lori appeals, seeking delinquent support from Scott for the period of August 28, 1990, when she stopped receiving ADC, to November 10, 1994, when the agreed change of custody was filed.

STANDARD OF REVIEW

[¶ 9.] All of the evidence presented in this case was received through documentary evidence and deposition testimony. This Court formerly reviewed depositions and documentary evidence under the de novo standard. However,

SDCL 15-6-52(a), recently amended, provides that “[findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous[.]” Under this standard, “[c]lear error exists only when, upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made.”

Estate of Catron, 2001 SD 57, ¶ 11, 627 N.W.2d 175, 177 (citing Even v. City of Parker, 1999 SD 72, ¶ 9, 597 N.W.2d 670, 674).

[¶10.] 1. WHETHER THE TRIAL COURT ERRED IN RETROACTIVELY MODIFYING SCOTT’S SUPPORT OBLIGATION FOR THE PERIOD OF AUGUST 1990 TO NOVEMBER 1994.

[¶ 11.] In its September 17, 1996 and March 1, 2001 rulings, the trial court retroactively modified child support ar-rearages owed by Scott to Lori. Both judgments determined that “no money was due and owing from [Scott] to [Lori].” Scott argues that the trial court was correct in this determination. He claims he was not obligated to pay full child support during the years of 1990-1994 because one or more of the children were living with him. Both children spent extended periods of time with Scott beginning in 1990. Milissa began living full-time with Scott in June 1992 and Michael began living with him in June 1994. During these times, Scott did not pay child support in full.

[¶ 12.] It is well established that: “Any unpaid support bec[omes] an unpaid judgment against [the payor spouse] as a matter of law, not subject to retroactive modification.” Agee v. Agee, 1996 SD 85, ¶ 20, 551 N.W.2d 804, 806 (citing Houser v. Houser, 535 N.W.2d 882, 885 (S.D.1995) (citing SDCL 25-7-7.3; SDCL 25-7-7.4)). Only those past-due child support payments which accrue during the time of a pending modification petition may be modified. See SDCL 25-7-7.3. See also O’Grady v. O’Grady, 1998 SD 89, ¶ 11, 582 N.W.2d 707, 709 (stating SDCL 25-7-7.3 prohibits retroactive modification of child support); Kiev v. Kiev, 454 N.W.2d 544, 546 (S.D.1990) (holding that the only payments subject to modification are those that accrue during the time a petition for modification is pending); Olson v. Olson, 438 N.W.2d 544, 548 (S.D.1989) (holding trial court erred in sua sponte retroactively modifying support obligation where no petition for modification had been filed by the parties).

[¶ 13.] Scott had past-due child support obligations. He had a duty to pay child support monthly. The fact that one or more of his children were living with him during the years of 1990-1994 does not excuse his obligation to pay support. Scott should have moved the trial court for modification or abatement of his child support obligation. However, at no time prior to November 10, 1994, did he move to modify his obligation. Accordingly, the trial court cannot retroactively modify Scott’s obligation and it erred in its determination that Scott did not owe any child support to Lori for the years prior to 1995.

[¶ 14.] 2. WHETHER LORI’S CLAIM FOR CHILD SUPPORT ARREARAGES IS BARRED BY THE DOCTRINE OF RES JUDI-CATA.

[¶ 15.] Scott argues that Lori’s claim for child support arrearages for the years of 1990-1994 is barred by the doctrine of res judicata. Scott asserts that Lori had the opportunity to litigate any and all claims for delinquent support against him during the June 1996 eviden-tiary hearing regarding his child support payment history. He claims that Lori cannot now attempt to relitigate the 1996 decision which he considers to be a final decision on the merits.

[¶ 16.] “Res judicata embodies a concept of merger and bar and is therefore broader than issue preclusion or collateral estoppel.” Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (citing Black Hills Jewelry Mfg. Co. v. Felco Jewel Ind., Inc., 336 N.W.2d 153 (S.D.1983)). The doctrine of res judicata protects “parties from being subjected twice to the same cause of action, since public policy is best served when litigation has a finality.” Id. If rendered by a court of competent jurisdiction, a final prior judgment “is conclusive as to all rights, questions, or facts directly involved and actually, or by necessary implication, determined therein[.]” Moe, 496 N.W.2d at 595 (citing Raschke v. DeGraff, 81 S.D. 291, 295-96, 134 N.W.2d 294, 297 (1965)).

[¶ 17.] This Court applies four factors to determine whether the doctrine of res judicata bars a cause of action: “(1) whether the issue decided in the former adjudication is identical with the present issue; (2) whether there was a final judgment on the merits; (3) whether the parties are identical; and (4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication.” Id. at 595 (citing Raschke, 81 S.D. 291 at 295, 134 N.W.2d at 296).

[¶ 18.] Lori’s claim for child support arrearages for the years of 1990-1994 was not an issue during the June 1996 hearing. Additionally, there was no final decision rendered on the merits of her current claim. In its findings of fact and conclusions of law, the trial court stated that the time period at issue during the June 1996 evidentiary hearing was June 1984 to December 1988. While it set aside the 1994 administrative judgment awarding Lori ar-rearages for the period of 1982-1994, the ruling did not specifically address whether any arrearages were owing for the years after 1988. Furthermore, because the years of 1990-1994 were not at issue during the June 1996 hearing, Lori was not afforded a full and fair opportunity to litigate her claim for that period.

[¶ 19.] Lori instituted this action to collect child support arrearages. She is not attempting to relitigate the issue. There simply is no final judgment on the merits with respect to the years of 1990-1994. Scott failed to fulfill his support obligation during these years and Lori is only attempting to enforce the obligation already in place. Because Scott has failed to prove all the necessary elements, the doctrine of res judicata does not apply.

[¶ 20.] 3. WHETHER LORI’S CLAIM FOR CHILD SUPPORT ARREARAGES IS BARRED BY THE DOCTRINE OF LACHES.

[¶ 21.] Scott argues that the trial court was correct in stating that Lori’s claim was barred by the doctrine of laches. He asserts that Lori displayed a want of due diligence in failing to bring all of her claims for arrearages at the June 1996 hearing and then waiting four years before making a claim for arrearages for the years of 1990-1994. Scott contends Lori’s unreasonable delay resulted in prejudice to him.

[¶ 22.] To prove laches, Scott must show that: “(1) [Lori] had full knowledge of the facts upon which the action is based, (2) regardless of this knowledge, she engaged in an unreasonable delay before commencing the suit, and (3) that allowing her to maintain the action would prejudice [Scott].” Conway v. Conway, 487 N.W.2d 21, 24 (S.D.1992) (emphasis omitted). This is an action on a divorce judgment which may be commenced “within twenty years after the cause of action shall have aecrued[.]” SDCL 16-2-6(1). Furthermore, SDCL 25-7-7.4 provides:

Any payment or installment of support under an order for support, as defined by § 25-7A-1, whether entered by a court or an administrative entity of this state or of any other state or jurisdiction, which is unpaid after the date it is due, is a judgment by operation of law, with the full force, effect and attributes of a judgment of this state, including enforceability, and is entitled, as a judgment, to full faith and credit in this state.

“Logically, enforcing a valid judgment would rarely invoke the application of lach-es, especially in a case where the judgment requires periodic payments.” Culhane v. Michels, 2000 SD 101, ¶ 15, 615 N.W.2d 580, 586.

[¶ 23.] Scott failed to show that Lori unreasonably delayed bringing her action for child support arrearages. See Bonde v. Boland, 2001 SD 98, ¶ 19, 631 N.W.2d 924, 927 (holding that five-year delay in seeking child support arrearages was not unreasonable). But cf. In re Loomis, 1998 SD 113, ¶ 15, 587 N.W.2d 427, 430 (holding that a fourteen-year delay in seeking support payments was unreasonable under the circumstances).

[¶ 24.] Furthermore, allowing Lori to maintain her claim against Scott for child support arrearages would not prejudice him. Scott claims that he satisfied his support obligation and as proof of this, provided the trial court with check carbons made out to Lori. Lori stated she never received any of these payments. Scott contends that if Lori had brought this action earlier, he would have been able to conclusively establish his payment record by obtaining actual cancelled checks from his bank.

[¶ 25.] Scott, however, did not make his child support payments through the Pennington County Clerk of Courts as required by the divorce decree. Rather, he made sporadic payments directly to Lori. As a result, there is no exact record of the amount of support he paid. Scott did not seek to have his informal modification of the divorce decree approved by the court. See Houser v. Houser, 535 N.W.2d 882, 884-85 (S.D.1995) (holding father failed to make his payments to the Brookings County Clerk of Courts and his act of paying the mother directly could not modify or forgive his child support arrearages without court approval). He did not have the authority to modify the divorce decree without court approval and cannot now claim his failure to follow the proper payment procedure prejudiced him.

[¶ 26.] Because Scott failed to establish two of the three factors required, Lori’s claim for child support arrearages from 1990-1994 is not barred by the doctrine of laches.

[¶ 27.] 4. WHETHER SCOTT OWES SUPPORT, AND IF SO, THE AMOUNT THEREOF, AND WHETHER INTEREST SHOULD BE ASSESSED.

[¶ 28.] We first remind the trial court and parties that all payments should have been made to the Pennington County Clerk of Courts as provided by the divorce decree. SDCL 25-4-43 provides,' in part:

When a divorce is granted or a decree for separate maintenance entered or thereafter, and when the court has provided for the maintenance of the children of the marriage, all payments so required by the order of the court may by order of the court be paid to the clerk of courts in the amount and at the time specified in said order[.]

(emphasis added). Scott did not comply with this directive. As a result, there is no reliable record of child support. “These divorced parents are not empowered to change a judge’s order.” Taylor v. Ellenbecker, 471 N.W.2d 587, 590 (S.D.1991) (Henderson, J., concurring) (stating father should have made support payments to clerk of courts as authorized under the divorce decree) (citing State, Fall River County v. Dryden, 409 N.W.2d 648 (S.D. 1987)). As reflected by the facts, Scott did not regularly pay child support nor did he pay it to the Pennington County Clerk of Courts when he did pay.

[¶29.] As already established in the analysis contained in Issues 1 through 3, Scott owes Lori delinquent support. Therefore, we remand to the trial court for a determination of child support arrearag-es. With respect to Scott’s child support obligation, we instruct the trial court to determine: (1) the appropriate time period for which Lori should receive child support arrearages; (2) the amount owed during that period; (3) what payments and credits should be subtracted from the amount owed; and (4) what monthly interest should be assessed. We further instruct the trial court to determine the' amount of Lori’s support obligation, less payments and credits, plus monthly interest, and subtract that amount from amounts owed by Scott.

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

[¶ 31.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

       SDCL Chapter 28-7, Aid to Dependent Children, was repealed in 1997. It was replaced by Chapter 28-7A and titled Temporary Assistance for Needy Families. SDCL 28-7-6.3, which governed the assignment of support rights at the time of this action, was replaced by SDCL 28-7A-7.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2002 SD 48
    Eric J. COON, Petitioner and Appellant, v. Douglas WEBER, Warden, South Dakota State Penitentiary, Respondent and Appellee. Robert D. Poppen, Petitioner and Appellant, v. Douglas Weber, Warden, South Dakota State Penitentiary, Respondent and Appellee.
    Nos. 22060, 22061.
    Supreme Court of South Dakota.
    Considered on Briefs March 25, 2002.
    Decided May 1, 2002.

      Michael B. Thompson, Sioux Falls, South Dakota, Attorney for petitioners and appellees Coon and Poppen.
    Mark Barnett, Attorney General, Frank Geaghan, Sherri Sundem Wald, Assistant Attorneys General, Pierre, South Dakota, Attorneys for respondent and appellee.
   PER CURIAM.

[¶ 1.] Eric J. Coon and Robert D. Pop-pen filed separate appeals from a joined habeas corpus action. Each is serving a life sentence in the state penitentiary for his involvement in the murder of Mary K. Ross. Because their appeals are nearly identical and involve the same legal issue, they are combined here. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Ross was murdered in her Sioux Falls apartment around 4:00 a.m. on July 9, 1995 by Coon and co-defendant, Poppen. Coon and Poppen were hired by Michael Smith and Robert Power to kill Ross, a friend of Power’s wife. Power believed Ross was interfering with his marriage and was upset that Ross had smoked marijuana in front of his child. Coon and Poppen were provided with Power’s automobile, money to purchase supplies to commit the crime, and a map of Ross’ apartment and parking area and a key to her apartment.

[¶ 3.] Coon and Poppen found Ross sleeping in her bedroom and delivered a total of 16 stab and sharp force wounds to her head and upper body. The crime scene was particularly gruesome because Ross had managed, during the attack, to escape to the kitchen and attempt telephone contact with a 911 operator. Coon and Poppen, whose knives broke with the force of their stabbings, rifled through kitchen drawers for knives to complete their mission. They left Ross on her living room couch, with her throat cut, believing she was dead.

[¶ 4.] Coon and Poppen were to receive $10,000 each for killing Ross. They believed their acts would make people fear them and provide a boost to their egos. Poppen claimed that for he and Coon, it was all about “power and money.” In the end, they received no more than the $50 given them to purchase the knives and gloves, though they were convinced Power would pay them as he “seemed like a nice enough person” when they contracted with him to kill Ross.

[¶ 5.] Investigators arrived at the crime scene almost within the hour of the murder and quickly put together a list of suspects from information gleaned from Ross’ address book and informants. On August 1, 1995, police detectives began to gather those suspects for interrogation. As authorities located these individuals, they began to appear at the police station around the same time although it had not been the intent of law enforcement to have them all present at the same time. They were placed in various interview rooms, some equipped with taping equipment and some not. Detectives moved between the rooms as information unfolded about the events surrounding this crime. That day, after waiving their Miranda rights, both Coon and Poppen separately confessed to her murder. That same evening, co-defendant Smith admitted that Power had hired Coon and Poppen to murder Ross.

[¶ 6.] Although their attorneys filed motions to suppress their confessions, Pop-pen pled guilty on December 15, 1995, and Coon pled guilty on December 18. Each was sentenced to life in prison. By pleading guilty, conspiracy to commit murder charges were dropped and they avoided the death penalty, an option open to the State’s Attorney. Poppen was also able to have a Part II habitual offender information dropped.

[¶ 7.] Both filed pro se habeas corpus actions that were later amended by court-appointed counsel. Both claimed the same issue and requested joinder of their actions before the habeas court. They were denied relief by the habeas court, were granted certificates of probable cause and appealed to this Court. Both identify the same issue on appeal.

ISSUE

[¶ 8.] Whether ineffective assistance of counsel rendered Coon’s and Pop-pen’s guilty pleas involuntary.

STANDARD OF REVIEW

[¶ 9.] The scope of review is limited in this collateral attack on the final judgment. Hofer v. Class, 1998 SD 58, ¶ 6, 578 N.W.2d 588, 585. Habeas can only be used to review whether the trial court had personal and subject matter jurisdiction, whether the sentence was illegal, and whether the defendant was deprived of basic constitutional rights. Id.

[¶ 10.] A claim of ineffective assistance of counsel presents a mixed question of law and fact. Factual findings are reviewed under the clearly erroneous standard. “In the absence of a clearly erroneous determination, we defer to the habeas court’s findings of fact regarding what counsel did or did not do, but we may substitute our own judgment ‘as to whether defense counsel’s actions or inaction[s] constituted ineffective assistance of counsel.’ ” Id. at ¶ 7, 578 N.W.2d at 585 (quoting Lien v. Class, 1998 SD 7, ¶ 12, 574 N.W.2d 601, 607; Lykken v. Class, 1997 SD 29, ¶ 6, 561 N.W.2d 302, 804-05).

ANALYSIS AND DECISION

[¶ 11.] Coon and Poppen shoulder a heavy burden of proof in their ineffective assistance of counsel claims. They must prove “(1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that such deficiency prejudiced the defendant.” Rhines v. Weber, 2000 SD 19, ¶ 13, 608 N.W.2d 303, 307; Siers v. Class, 1998 SD 77, ¶ 12, 581 N.W.2d 491, 495; Sprik v. Class, 1997 SD 134, ¶ 22, 572 N.W.2d 824, 829; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). “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. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. Attorneys are presumed to be competent unless otherwise shown and the reasonableness of counsel’s performance is evaluated from counsel’s perspective at the time in light of all of the circumstances. Davi v. Class, 2000 SD 30, ¶ 17, 609 N.W.2d 107, 112.

[¶ 12.] In examining the first prong of an ineffective assistance claim under Strickland, we have held:

When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential. 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.

Lien, 1998 SD 7 at ¶ 14, 574 N.W.2d at 607 (citations omitted). However, where there is no trial, as is the case here, the burden on the defendants to show ineffective assistance of counsel is increased. They must show not just deficient performance, but gross error by counsel in recommending that they plead guilty. Hofer, 1998 SD 58 at ¶ 11, 578 N.W.2d at 586 (quoting Williams v. State, 349 N.W.2d 58, 62 (S.D. 1984)); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

[¶ 13.] In examining the second prong under Strickland, where there is no trial, we have held:

In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

Lien, 1998 SD 7 at ¶ 15, 574 N.W.2d at 607-08 (citations omitted)(emphasis in original).

[¶ 14.] Both Coon and Poppen now claim their drug use just prior to their August 1, 1995 confessions at the police station caused their confessions to be involuntary. They claim their motions to suppress their confessions would have been successful, but for their guilty pleas which effectively precluded consideration of these motions. They claim their attorneys were ineffective in allowing them to plead under these circumstances, rather than proceeding to trial, and therefore, their guilty pleas are invalid. Attorneys John Schlimgen and Scott Heidepriem represented Coon; attorneys Steve Binger and Michael Hanson represented Poppen. Both Coon’s and Poppen’s videotaped interviews with law enforcement on August 1, 1995 were reviewed by Dr. Mathias Stricherz, a psychologist and chemical dependency counselor, in preparation for their habeas hearing.

1. Voluntariness of the confessions

[¶ 15.] The question of volun-tariness of a confession is a factual matter for the trial court. State v. Phipps, 318 N.W.2d 128, 131 (S.D.1982); State v. DuBois, 286 N.W.2d 801 (S.D.1979); State v. Lyons, 269 N.W.2d 124 (S.D.1978). “The test for determining voluntariness of incriminating statements or confessions requires the trial court to consider the effect the totality of the circumstances had upon the will of the defendant and whether that will was overborne.” State v. Gesinger, 1997 SD 6, ¶ 12, 559 N.W.2d 549', 550; State v. Oltmanns, 519 N.W.2d 602, 605 (S.D.1994) (citing State v. Dickey, 459 N.W.2d 445, 447 (S.D.1990); State v. Jennet, 451 N.W.2d 710, 716 (S.D.1990); State v. Hartley, 326 N.W.2d 226 (S.D.1982); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The factors the trial court must consider in determining whether the defendant’s will was overborne include: 1) the defendant’s youth; 2) the defendant’s lack of education or low intelligence; 3) the absence of any advice to the defendant of his constitutional rights; 4) the length of detention; 5) the repeated and prolonged nature of the questioning; and 6) the use of physical punishment such as the deprivation of food or sleep. State v. Darby, 1996 SD 127, ¶ 28, 556 N.W.2d 311, 319 (citing Dickey, 459 N.W.2d at 447). “A defendant’s prior experience with law enforcement officers and the courts may also be a factor for the court’s consideration.” Id. at ¶ 30, 556 N.W.2d at 320 (citing State v. Caffrey, 332 N.W.2d 269, 272 (S.D.1983)).

[¶ 16.] We have previously held that the influence of alcohol is a factor in the totality of circumstances to be reviewed in determining whether a confession is voluntary. Smith, 1998 SD 6 at ¶ 12, 573 N.W.2d at 518; State v. Gregg, 405 N.W.2d 49, 53 (S.D.1987) (custodial statements made by an intoxicated defendant are not per se involuntary); State v. Hintz, 318 N.W.2d 915 (S.D.1982). Today we review a determination of voluntariness upon a totality of circumstances that includes the recent ingestion of illegal drugs. The habeas court found that the confessions of Poppen and Coon were voluntary. We are bound by this finding unless it is clearly erroneous. State v. DeNoyer, 541 N.W.2d 725, 731 (S.D.1995) (citing State v. Tapio, 459 N.W.2d 406, 411 (S.D.1990)). “In reviewing the trial court’s findings, we consider the evidence in the light most favorable to the finding.” Id.

[¶ 17.] Dr. Stricherz provided his opinion that both defendants were under the influence of drug intoxication and/or withdrawal of methamphetamine and marijuana during the police interrogations. As his report indicates, some of his information was self-reported by the petitioners. Testifying before the habeas court, Dr. Stricherz admitted their behavior during the interviews could also have been the result of their “just be[ing] nervous and scared.” Police detective Lt. Folkerts testified at the habeas hearing that both petitioners responded well to questions asked of them and he did not believe them to be unduly affected by drugs or alcohol during the interviews. However, even accepting as true Coon’s and Poppen’s claims on appeal that they were intoxicated or in withdrawal when they confessed does not determine the question whether by reason of their drug ingestion or other factors, their will was overborne and their statements were not knowing and voluntary. In other words, Coon and Poppen cannot just present expert testimony that they were under the influence and win their appeal.

[¶ 18.] According to most courts having recently addressed this question involving the use of drugs prior to rendering a confession, the test for undue influence is whether the defendant can still relate the events of the time in question and his role in them. State v. Troglin, 2002 WL 385800, *14 (Tenn.Crim.App.2002); State v. Spyke, 68 Conn.App. 97, 792 A.2d 93,101 (2002); State v. Cribbs, 34 P.3d 76, 82 (Kan.Ct.App.2001); State v. Craft, 796 So.2d 907, 912 (La.Ct.App.2001); Bey v. State, 140 Md.App. 607, 781 A.2d 952, 958 (2001); Card v. United States, 776 A.2d 581, 603 (D.C.Ct.App.2001); Davila v. State, 2001 WL 580340, *1 (TexCtApp 2001); Jones v. State, 344 Ark. 682, 42 S.W.3d 536, 541 (2001).

When an appellant claims that his confession was rendered involuntary because of his drug or alcohol consumption, the level of his comprehension is a factual matter to be resolved by the trial court. While this court will make a closer examination of the appellant’s mental state, we still leave the factual question to the trial court on whether the accused had sufficient capacity to waive his rights. The test of voluntariness of one who claims intoxication at the time of waiving his rights and making a statement, is whether the individual was of sufficient mental capacity to know what he was saying — capable of realizing the meaning of his statement— and that he was not suffering from any hallucinations or delusions. We have also stated that it is significant in making a finding of voluntariness that the accused answered questions without indications of physical or mental disabilities, that the accused remembered a number of other details about the interrogation even though he could not remember waiving his rights, and that a statement was given in a short period of time after his rights had been read to him.

Id. (internal citations omitted).

[¶ 19.] In the present case, the habeas court reviewed the videotaped interviews and found Coon “to provide detailed answers to questions, to be aware of the situation as a suspect in a murder investigation, and to deny his involvement in that murder during the first portion of his interview with police.” The court declared it was “clear that Petitioner was coherent and able to respond to the questions put to him.” Regarding Poppen, the habeas court likewise found that during the interview, he was coherent, able to respond to questions, and was not intimidated by police questioning. Our review of these interviews confirms the habeas court’s findings; both petitioners provided very detailed descriptions of the events surrounding the crime and described his own role in these events. Reviewing the same evidence that was before the habeas court, and considering it in the light most favorable to that court’s findings, we hold that the findings are not clearly erroneous. See State v. West, 344 N.W.2d 502, 505 (S.D.1984) (trial court was not clearly erroneous in finding that defendant, who claimed to have consumed alcohol and drugs prior to his confession, voluntarily waived his rights where defendant appeared coherent and did not slur his speech).

2. Ineffective Assistance

[¶ 20.] The record reflects that counsel considered the merits of the volun-tariness claims that petitioners now raise. They testified at the habeas hearing that they reviewed the videotaped interviews prior to making the tactical decision to advise their clients to plead guilty. They testified that they concluded the confessions were voluntary, that law enforcement had not appeared to violate any of the petitioners’ rights in taking these statements, and that they did not believe them to be under the influence to the point of having their free will overborne. The ha-beas court arrived at this same conclusion. It is noteworthy that although Coon and Poppen now freely admit to their ingestion of drugs prior to confessing their crimes, neither petitioner provided this information to their attorneys before entering guilty pleas, though they did inform their attorneys they used drugs on a regular basis. An ineffective assistance claim is always viewed given the facts known at the time ineffectiveness is alleged, not with the 20-20 vision provided by hindsight. Rhines, 2000 SD 19 at ¶ 21, 608 N.W.2d at 309 (“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.” citing Sprik, 1997 SD 134 at ¶ 23, 572 N.W.2d at 829); Aliberti v. Solem, 428 N.W.2d 638, 641 (S.D.1988) (“When reviewing counsel’s performance, this Court will not make a competency determination on the basis of hindsight.”). Petitioners must “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Weddell v. Weber, 2000 SD 3, ¶ 32, 604 N.W.2d 274, 283 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Both Coon and Poppen expressed satisfaction with their attorneys’ representation to the trial court at their plea hearings.

[¶ 21.] As previously stated, the trial court did not rule on the motions to suppress due to the defendants entering guilty pleas. Assuming, however, for the sake of argument, that their confessions would have been suppressed, what other evidence did the State have to present at trial to prove their guilt beyond a reasonable doubt? What were their chances for acquittal? And, if a guilty verdict was inevitable under the evidence, what would they gain by their attorneys advising them to plead guilty? These questions directly impact on the petitioners’ claims of ineffective assistance of counsel for these are the questions considered by attorneys when advising clients whether to accept a plea bargain.

[¶ 22.] Although Coon and Poppen claim their statements were the only evidence against them, the record does not support this claim. They were two of five co-defendants in this case and were implicated in the murder scheme by the other three and others who were more peripherally involved. See Smith, 1998 SD 6 at ¶ 3, 573 N.W.2d at 516 (“On August 1, 1995, Smith provided two videotaped interviews to police which corroborated the version of the murder and the planning leading up to it given by his co-defendants and three other State witnesses.”). A letter between Coon’s co-counsel indicates his attorneys’ consideration of their client’s chances for acquittal:

I have only reviewed the reports themselves, and did those rather hurriedly. From the basis of those reports, from talking to the other attorneys, and from talking to our client, a major miracle would be necessary to get an acquittal. There are a couple areas of law that I need to research, but I think I know the answer already. The area that we hopefully will get our best results are in the death penalty area. That will also be a struggle.

This letter was an exhibit at the habeas hearing. As is indicated in this letter, the death penalty was a very real punishment facing Coon and Poppen. Poppen’s attorney testified at the habeas hearing that “this was a case in my mind that had the death penalty written all over it.” The record reveals that counsel tried to arrange a plea bargain with the State’s Attorney that would allow for a term of years. The State’s Attorney showed no interest and counsel was informed this was going to be a case for life or the death penalty and that would be the State’s offer. Poppen’s attorneys testified at habe-as that, with so many co-defendants confessing to their part in the murder, they believed that whoever made a deal with the State’s Attorney first would get the benefit that late-comers might not as co-defendants agreed to testify against the others. Under these facts, looking at the totality of the circumstances, it was entirely reasonable for defense counsel to advise their clients to plead guilty.

[¶ 23.] In another case involving ineffective assistance of counsel claims regarding a guilty plea, we stated:

In numerous meetings with appellant, defense counsel advised him to accept the plea bargain offer. They noted that if both rape charges went to trial he would expose himself to consecutive maximum sentences of fifty years. If he pleaded guilty to one charge, the maximum penalty could not exceed twenty-five years. Defense counsel maintained that appellant would likely receive less than the maximum sentence and possibly probation because of his clean record.
We cannot conclude this advice was against appellant’s best interest. Our usual test of competency is whether defense counsel exercised the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances. Where a matter does not go to trial there is an increased burden to show ineffective assistance of counsel. In order to invalidate a guilty plea, appellant must show gross error on the part of counsel in recommending that he plead guilty.
This standard is consonant with our law regarding withdrawal of guilty pleas. When a defendant moves to withdraw his guilty plea after sentence has been imposed, the trial judge will set aside the judgment of conviction and permit defendant to withdraw his plea only to correct manifest injustice. SDCL 23A-27-11. The purpose of this stringent standard is ‘to prevent a defendant from testing the weight of potential punishment, and then withdrawing the plea if he finds the sentence unexpectedly severe.’

Williams, 349 N.W.2d at 61-62 (internal citations omitted). That same year, we handed down our decision in Stacey v. State, 349 N.W.2d 439 (S.D.1984), also addressing an ineffective assistance of counsel claim involving advice to plead guilty. We held that such advice, which allowed the petitioner to avoid maximum punishment, in a case where it was likely the petitioner would be found guilty at trial, was in the petitioner’s best interests and did not constitute ineffective assistance. Id. at 444.

[¶ 24.] The record shows that both Coon and Poppen were not only advised by their attorneys regarding their plea, but also had several days to reflect on this advice and sought counsel of family and friends, including fellow jail inmates. The habeas court found, and the record supports these findings, that the petitioners themselves ultimately made the decision to plead guilty. On review of the totality of the circumstances, pleading guilty was in their best interests as it allowed them to avoid the death penalty. With three co-defendants’ statements and other State’s witnesses, there was substantial evidence to convict Coon and Poppen had they proceeded to trial. Even without their confessions, acquittal was highly unlikely. Had they not been so advised by their attorneys, we may well be reviewing a claim of ineffective assistance of counsel for failure to strongly urge a plea bargain and thereby avoid the death penalty. See Williams, 349 N.W.2d at 62.

[¶ 26.] Neither Coon nor Poppen has established his confession was involuntarily made, nor has he shown gross error on the part of counsel in recommending that he plead guilty, nor has he shown prejudice under Strickland. The orders denying habeas relief as to both petitioners are affirmed.

[¶ 26.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, and GORS, Acting Justice, participating.

[¶ 27.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court did not participate.

      . Both petitioners were represented in the habeas court and on appeal by the same attorney. As noted, the habeas actions were joined for hearing and adjudication. Their attorney filed nearly identical appellate briefs, incorporating by reference into one reply brief the rebuttal argument from the other.

      . The record indicates they went to a Hy-Vee grocery store and purchased two knives, two pairs of gloves, cigarettes, soda, and a frying pan to give to Poppen’s girlfriend as, Poppen reasoned, "it would look kind of fishy if we just went in and bought knives and gloves."

      . Power and another co-defendant, Walter Craft, also pled guilty to charges involving Ross’ murder on December 18, 1995. Only Smith elected to proceed to trial. His judgments of conviction for accessory to murder and conspiracy to commit murder were affirmed on appeal. State v. Smith, 1998 SD 6, 573 N.W.2d 515.

      . The habeas court made findings of fact that the attorneys who represented Coon and Pop-pen and who testified at their habeas hearing all had experience representing clients in homicide cases at the time they were appointed in this case.

      . We have reviewed petitioners' claims regarding these factors and find them to be without merit.

      . Support for this opinion by Dr. Stricherz comes from Coon himself. During his second interview with police, Coon told the detective, "I knew you could tell there was something I knew because I was sitting here fidgeting.”

      . Lt. Folkerts interviewed both petitioners. His testimony at the habeas hearing negates their claim on appeal that the State presented no evidence to dispute Dr. Stricherz’ opinion.

      .Notwithstanding the additional question of the effect any intoxication had on their ability to make a voluntary statement, petitioners seem convinced that an opinion by an expert witness settles the issue and that the habeas court erred in not rendering its opinion along those same lines. This Court has often stated, however, that " '[t]he trier of fact is free to accept all of, part of, or none of, an expert’s opinion.’ ” Belhassen v. John Morrell & Co., 2000 SD 82, ¶ 17, 613 N.W.2d 531, 536 (quoting Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 24, 571 N.W.2d 376, 380; Hanson
        v. Penrod Constr. Co., 425 N.W.2d 396, 398 (S.D. 1988)).

      . Challenging the denial of a motion to suppress evidence is generally an issue for direct appeal. However, because Coon and Poppen pled guilty, this issue would not have been available to them on appeal. State v. Cobb, 479 N.W.2d 879, 881 n.l (SD 1992) (“When a defendant pleads guilty or nolo contendere the defendant also waives the right to appeal any pretrial rulings.”). Neither defendant here appealed his judgment of conviction.

      . As the State notes in its brief: "Whether this Court might subsequently find that Petitioner’s confession was inadmissible in evidence does not justify a conclusion that defense counsel were incompetent or ineffective in believing the admissibility of the confession sufficiently probable to advise a plea. McMann, 397 U.S. at 770, 90 S.Ct. at 1448, 25 L.Ed.2d 763 (1970).” The United States Supreme Court observed in McMann:

      In our view a defendant's plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground that counsel may have misjudged the admissibility of the defendant's confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.

        Id., 397 U.S. at 770-71, 90 S.Ct. at 1448-49, 25 L.Ed.2d 763.

      . The record shows that as an express condition in their plea agreements, both Coon and Poppen agreed to assist law enforcement in their continuing investigation and testify in the prosecution of all co-defendants involved in the murder of Ross.

      . At his plea hearing, Poppen informed the trial court that one of the reasons he was pleading guilty was because he was afraid of the death penalty.

      . Besides this testimony, there was clothing recovered and evidence of the purchase of the knives and gloves at Hy-Vee by Coon and Poppen.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Charles H. JACOBS, Appellant.
    No. 00-1150.
    Supreme Court of Iowa.
    Dec. 19, 2001.
    Rehearing Denied Feb. 7, 2002.

      Jerald W. Kinnamon and Jon M. Kinna-mon of Kinnamon, Kinnamon, Russo & Meyer, Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine Corken, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Charles H. Jacobs, appeals from the sentence imposed following remand from this court’s determination on a prior appeal. On that appeal we vacated defendant’s sentence and remanded for re-sentencing. State v. Jacobs, 607 N.W.2d 679 (Iowa 2000). On remand the district court imposed the same sentence that it had handed down prior to the first appeal. Defendant contends that in resentencing him the court erred in (1) failing to apply the Americans with Disabilities Act; (2) faffing to combine certain counts so as to provide a single offense; (3) imposing consecutive sentences in the absence of sufficient enhancing factors and in the absence of findings of fact as to enhancing factors; (4) giying insufficient reasons for consecutive sentences; and (5) failing to recuse based on prior attitudes toward defendant’s culpability. We have considered each of these claims and affirm the judgment of the district court.

Defendant has been convicted of eight counts of first-degree theft, six counts of second-degree theft, one count of third-degree theft, six counts of money laundering, one count of perjury, four counts of first-degree fraudulent practice, one count of second-degree fraudulent practice, one count of falsifying a public document, and two counts of forgery. Under the applicable statutes, these offenses provided for prison sentences totaling 212 years. The district court originally imposed a combination of consecutive and concurrent sentences, which resulted in a total period of incarceration not to exceed thirty years. After that sentence was vacated on the prior appeal and the case remanded, the district court again imposed that sentence.

I. Scope of the Remand Mandate.

At the outset we consider the State’s argument that the only matter for the trial court to act upon under our remand order was to attempt to cure the deficiency that resulted in a vacation of the original sentence. That deficiency was a failure to state sufficient reasons on the record for imposing consecutive sentences. The remand order was not, the State contends, an invitation to the court to reconsider all aspects of defendant’s sentence. We agree with the State’s suggestion that a limited mandate would have been acceptable as a result of the narrow basis for vacating defendant’s sentence. However, we are unable to read that conclusion into our remand order from the first appeal.

Our remand order simply stated “sentences vacated, and the case remanded for resentencing.” The district court treated the remand order as calling for a reconsideration of all of the discretionary aspects for sentencing based on the offenses for which defendant was convicted. We believe the district court was empowered to proceed in that manner under the remand order and that, as a result, defendant may challenge all of the discretionary aspects of sentencing on this appeal. That does not hold true with respect to the legal restrictions on sentencing that were presented and decided on the first appeal.

II. Whether the Trial Court Erred in Failing to Consider the Americans With Disabilities Act in Determining Mitigation of Punishment or Appropriate Placement Among Sentencing Alternatives.

Defendant argues that because defendant has been diagnosed as suffering from a bipolar disorder the district court erred in failing to apply the Americans with Disabilities Act as a factor of mitigation in sentencing or in determining placement options. In support of this claim, defendant relies on Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998). Our review of that decision convinces us that it only mandates that specific services otherwise provided to prison inmates shall not be denied as the result of a disability. The defendant here has been denied no service because of his disability.

The court found placement in the community inappropriate because of the nature of his criminal conduct. The fact of defendant’s disability, if any, did not play any role in that decision. Defendant has failed to demonstrate that the sentence discriminated against him based on a real or supposed disability.

III.Whether the Court Was Required to Merge Multiple Offenses Into a Single Offense.

Defendant urges that the district court should have combined multiple counts of theft, fraudulent practices, and forgery into a single offense for purposes of imposing judgment and sentence. He bases his contention on Iowa Code sections 714.3, 714.14, and 715A.7 and on double-jeopardy and double-punishment theories.

Section 714.3 (1997) provides in part:

If money or property is stolen from the same person or location by two or more acts, or from different persons by two or more acts which occur in approximately the same location or time period so that the thefts are attributable to a single scheme, plan or conspiracy, these acts may be considered a single theft and the value may be the total value of all the property stolen.

A similar aggregation provision is contained in section 714.14 with respect to fraudulent-practice offenses. Section 715A.7 involving forgery convictions provides, in part, “[t]he court may consider separate verdicts of guilty returned at the same time as one offense for the purpose of sentencing.”

There are at least two reasons why these statutes do not support defendant’s claim that the sentencing judge was required to combine multiple convictions into a single offense. First, the type of statute that sections 714.3 and 714.14 represent involves prosecutorial charging discretion rather than the determination of guilt or sentencing on offenses that have been charged. See State v. Chrisman, 514 N.W.2d 57, 59 (Iowa 1994) (viewing section 714.3 as involving prosecutorial discretion and concluding that “the prosecution is not required to accumulate thefts no matter how closely they may be connected”). Section 715A.7, although purportedly granting the court authority to combine offenses, is written in a manner that must be interpreted as making that determination discretionary. In the present case, the sentencing judge recognized the existence of these statutes and stated on the record that, if he had authority to aggregate separate counts into single convictions, he declined to do so.

A more fundamental reason for rejecting defendant’s argument is that it attempts to alter the determination of substantive guilt that was established in the court’s findings and judgment following a bench trial. He is arguing that the court must now alter multiple convictions in a manner that the conviction of several offenses now constitutes the conviction of one offense. This argument does not go to sentencing discretion but rather involves the determination of guilt as to separately charged offenses. For that reason, these claims were required to be made in defendant’s original appeal and cannot be coupled with the sentencing considerations that the court was required to make on remand. Similarly, defendant may not now urge double-jeopardy and double-punishment arguments that were advanced and rejected at the original appeal.

IY. Whether the Imposition of Consecutive Sentences Violated Due Process Based on Improper Fact-Finding.

Defendant urges that Iowa Code section 901.8, authorizing consecutive sentences, violates the due process clause of the federal constitution because it authorizes consecutive sentences without requiring aggravating factors to be alleged in the indictment or information and without requiring proof of such factors beyond a reasonable doubt. This claim is based primarily on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The Court in Apprendi held that the Fifth Amendment due process clause and the Sixth Amendment notice and jury trial guarantees require that any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment or information, submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. This cannot be avoided by labeling a statutory condition for a particular sentence as a “sentencing consideration” rather than an element of the crime. Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457. This holding has application to those situations in which a court is not permitted to impose sentence beyond a statutorily imposed limit in the absence of a finding that a statutorily prescribed sentencing factor has been established.

As the Court further observed:

We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion— taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.

Id. at 481, 120 S.Ct. at 2358, 147 L.Ed.2d at 449. Apprendi has no application to the present case because all of the sentences imposed on defendant were within the limits of the basic sentencing statutes for those offenses of which he was found guilty. The imposition of consecutive sentences did not depend on the finding of a statutorily prescribed fact. See Stradt v. State, 608 N.W.2d 28, 30 (Iowa 2000) (each count is a separate offense and court may impose separate and distinct sentences, which are cumulative and are to run consecutively).

Courts have generally recognized that statutes which afford discretion to a sentencing court to impose consecutive sentences do not violate due process. E.g., Roy v. Watson, 669 F.2d 611, 612 (9th Cir.1982); People v. Toliver, 251 Ill.App.3d 1092, 1100, 191 Ill.Dec. 290, 623 N.E.2d 880, 886 (1993); State v. Adkins, 236 Kan. 259, 689 P.2d 880, 884 (1984). Defendant has failed to demonstrate the procedures under which his sentence was imposed violated due process.

Y. Whether the Judge Who Imposed the Original Sentence Should Have Recused Himself on Resen-tencing.

Defendant contends that the sentencing judge should have honored his request that the judge recuse himself because he had presided over the original trial and sentencing and had formed opinions concerning defendant’s culpability. Defendant contends that it was impossible for Judge Bower to approach resentencing with an open mind. Judge Bower denied defendant’s request and expressed confidence that he was not biased from any extrajudicial source.

Only personal bias or prejudice stemming from an extrajudicial source stands as a disqualifying factor per se. State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979); State v. Haskins, 573 N.W.2d 39, 45 (Iowa Ct.App.1997). Judges are routinely asked to review their own prior rulings. The Supreme Court has stated in this regard:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.

Liteky v. United States, 510 U.S. 540, 550-51, 114 S.Ct. 1147, 1155, 127 L.Ed.2d 474, 488 (1994). Defendant’s convictions in the present case did result from a bench trial. We find no basis for concluding that the sentencing judge abused his discretion in failing to recuse himself.

VI. Adequacy of Reasons For Consecutive Sentences.

In giving reasons for the consecutive sentences imposed on defendant, the sentencing judge declared that he believed these sentences were called for because of the enormity of the thirty criminal offenses for which defendant had been convicted. As we have mentioned, the statutes under which defendant’s sentence was imposed provided for sentences totaling 212 years. In sentencing defendant on twenty-seven of these thirty offenses, the district court imposed concurrent sentences. We conclude that the high degree of culpability, which these offenses demonstrated, was an adequate reason for imposing consecutive sentences for three of the thirty offenses.

The fact that the reason given by the judge for consecutive sentences was the same reason that was given for not granting defendant probation does not present a basis for rejecting that reason as the controlling consideration for the imposition of consecutive sentences. That reason adequately supports the district court’s decision as to both the denial of probation and the imposition of consecutive sentences.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

      . Our rules of criminal procedure extend this procedure to enhancements based on prior convictions. See State v. Talbert, 622 N.W.2d 297, 301 (Iowa 2001); Iowa R.Crim. P. 6(5), 18(9).

      . In State v. Rettinghaus, 591 N.W.2d 15 (Iowa 1999), decided prior to Apprendi, we observed that some federal courts had concluded that "a sentencing judge is not required to employ greater formality in gathering critical sentencing data simply because a fact has a measurable or quantifiable effect on a sentence as opposed to an immeasurable, but nonetheless material, effect.” Rettin-ghaus, 591 N.W.2d at 17. We then declared that “[o]utcome determinative sentencing data need only be found to exist by a preponderance of the evidence.” Id. Obviously, these conclusions must be modified to conform to the directives laid down in Apprendi.


author: HUITINK, P.J.

text:
    Jack PFAU, Applicant-Appellant, v. STATE of Iowa, Respondent-Appellee.
    No. 00-1968.
    Court of Appeals of Iowa.
    March 13, 2002.
    Philip B. Mears of Mears Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, Patrick Jackson, County Attorney, and Amy Snook, Assistant County Attorney, for appellee.
    Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
   HUITINK, P.J.

I.Background Facts and Proceedings.

Jack Pfau, Gabe Delgado, Steve Moore, and Chris Larkin were implicated in the armed robbery of a Burlington McDonald’s. Pfau and Larkin were jointly charged with the robbery. Moore was separately charged and tried for the same offense. Larkin’s case was severed, and he subsequently entered a guilty plea. Larkin was called as a State’s witness in both Moore’s and Pfau’s robbery trials.

At Pfau’s robbery trial, however, Larkin refused to testify and was cited for contempt. As a result, the State and Pfau’s attorney agreed to the admission of Lar-kin’s testimony as transcribed in Moore’s trial. Larkin’s testimony was highly incriminating because it directly linked Pfau to both the planning and commission of the robbery. In exchange for this concession, the State agreed to the admission of otherwise inadmissible hearsay testimony from three witnesses who claimed Larkin told them Pfau withdrew from the robbery before its commission. Over Pfau’s objection, the State was permitted to cross-examine Cary Rice, one of the three defense witnesses, concerning Pfau’s interest in joining a group known as the “Cycos” to establish that Rice’s testimony was biased.

The jury rejected Pfau’s alibi defense and returned a guilty verdict. A judgment of conviction was entered, and Pfau was sentenced in accordance with the jury’s verdict.

On direct appeal Pfau’s appellate counsel moved to withdraw, arguing Pfau’s appeal was frivolous, -In counsel’s brief supporting the motion, counsel addressed a number of potentially appealable issues. These included Pfau’s pretrial motions, Pfau’s objections at trial to Rice’s testimony, the court’s jury instructions, Pfau’s motions for judgment of acquittal, Pfau’s motion for new trial, and Pfau’s ineffective assistance of counsel claim. Counsel opined that none of these issues or claims constituted reversible error.

In his resistance to appellate counsel’s motion to withdraw, Pfau cited the following grounds:

1. Ineffective Counsel
A. Not informed of all rights pre-ceeding [sic] to trial
2. Violation of Rights
A. Was not giving [sic] a chance to depose state’s witness
B. Minutes of Test, say [sic] were depose [sic] but not to my knowledge
3. No weapon regarded as being in my possession during robbery which according to Law Books makes it a Robbery II
. 4. Judge gave order of information not to be used at trial but was used anyways [sic].
These are my reasons for pursuing my appeal case. I prayfully ask that you submitt [sic] this with my already submitted appeal and that another counselor be appointed to myself. Thank you for your time and attention to this matter.

In a subsequent communication, Pfau restated his grounds in the following terms:

I recently recieved [sic] a letter of withdrawl [sic] from my court-appointed appeals attorney. In the letter it stated I had 30 days to respond to his with-drawl [sic]. As I stated before I feel my grounds of appeal on evidence ruled out by the judgebut [sic] used by tthe [sic] trial court and a witness used in trial as evidence who was in furtherance of sev-erl [sic] conspiraciesto [sic] commit other crimes is grounds for a new trial under Walder v. United States and Reed v. People, 156 Colo. 450, 402 P.2d 68 (1965). I also have amendments to add for my appeal once I finish reading through my transcripts that I just recently recived [sic]. I will be waiting for my new appointment of a [sic] attorney in the near future.

The supreme court granted appellate counsel’s motion to withdraw, and Pfau’s appeal was dismissed as frivolous under what was then Iowa Rule of Appellate Procedure 104, now renumbered as 6.104.

These proceedings commenced with Pfau’s pro se petition for postconviction relief. Although Pfau’s original petition cited multiple grounds for relief, it was subsequently amended to include those claims of ineffective assistance of trial and appellate counsel advanced below and on appeal. Specifically, Pfau faulted trial counsel for agreeing to the introduction of the transcript of Larkin’s testimony from Moore’s trial. Appellate counsel was faulted for failing to adequately argue the inherently prejudicial effect of Rice’s testimony concerning Pfau’s interest in the “Cycos.”

Pfau’s complaint concerning counsel’s agreement to the admission of Larkin’s testimony was the only ground alleged in his original petition that was advanced at his postconviction trial.

The postconviction court rejected both of Pfau’s ineffective assistance of counsel theories. The court cited the supreme court’s independent review of and presumptive consideration of any prejudice attending Rice’s testimony in its ruling on appellate counsel’s motion. Moreover, with regard to the admission of Larkin’s testimony, the court acknowledged the requisite deference shown to trial counsel’s strategic considerations in making the challenged agreement with the State. In addition, the postconviction court noted the strength of the State’s case against Pfau and concluded there was no reasonable probability of a different result in the absence of counsel’s alleged breach of essential duties. As noted earlier, Pfau’s petition was dismissed, resulting in this appeal.

On appeal Pfau renews the arguments made below. He contends that he has met his burden of proof and is therefore entitled to the relief requested. The State argues Pfau waived the grounds for post-conviction relief upon which he relies because he failed to include them in his resistance to dismissal of his direct appeal. The State alternatively argues that Pfau has failed in his burden and the record supports the result reached below.

II. Scope of Review.

Ordinarily, our review of postconviction relief proceedings is for errors of law. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). However, when a postconviction petitioner asserts violation of constitutional safeguards, we make our own evaluation based on the totality of the circumstances. This is the equivalent of de novo review. Id.

III. The State’s Waiver Argument.

In the absence of an appropriate reason, a defendant’s failure to resist dismissal of a direct appeal under Iowa Rule of Appellate Procedure 6.104 can preclude subsequent postconviction relief. Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999). In Bugley the court also noted “[t]he failure to object to a motion under rule [6.104] could ... constitute waiver under section 822.8, particularly to those issues specifically reviewed in the motion.” Id. at 897 n. 3.

Our review of the brief in support of appellate counsel’s motion to withdraw discloses a comprehensive analysis of both grounds upon which Pfau’s ineffective assistance of counsel claims are based. In each instance counsel concluded Pfau could not establish the requisite prejudice necessary for reversal of his conviction. Reference to Pfau’s resistance to dismissal of his direct appeal indicates that his only claim of ineffective assistance of counsel concerned trial counsel’s pretrial performance. Because Pfau’s resistance fails to raise the grounds for postconviction relief upon which he now relies, we believe Bugley precludes their consideration in subsequent postconviction relief proceedings. Although the postconviction court declined to address this issue in its ruling, we are not precluded from affirming on that basis. See State v. Vincik, 436 N.W.2d 350, 354 (Iowa 1989) (noting district court ruling may be sustained on any grounds appearing in the record).

The judgment of the district court is affirmed.

AFFIRMED.

      . Iowa Code section 822.8 (1997) provides:
      All grounds for relief available to an applicant under this chapter must be raised in the applicant’s original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.


author: BLATZ, Chief Justice. PAGE, Justice

text:
    In the Matter of the WELFARE OF the Child of L.F.: L.W., Child.
    No. C8-01-52.
    Supreme Court of Minnesota.
    April 18, 2002.
    Rehearing Denied June 10, 2002.
   ORDER

BLATZ, Chief Justice.

The Hennepin County Children, Family and Adult Services Department petitions for review of the decision of the court of appeals reversing a district court order denying respondent L.F.’s motion to vacate a default judgment terminating her parental rights to her daughter, L.W. The court of appeals held that the summons notifying L.F. of a September 19, 2000, hearing on the petition for termination of parental rights did not comply with Minn. R. Juv. P. 54.01 because it failed to provide notice to L.F. that her parental rights could be terminated by default if she failed to appear at the hearing. The court of appeals also held that the district court’s entry of default judgment violated due process because it did not adequately protect L.F.’s rights and interests and thus was not “a real judicial proceeding.” In re Child of L.F., 638 N.W.2d 793, 797 (Minn.App.2002) (quoting In re Coats, 633 N.W.2d 505 (Minn.2001)).

This court has reviewed the notice provided in the summons served with the petition for termination of parental rights and concludes that it satisfied the requirements of Minn. R. Juv. P. 54.01. The summons stated that L.F. was required to appear at the hearing and specifically provided that if she failed to appear the court would conduct the hearing and “may order your parental rights * * * be terminated.”

We further conclude that, consistent with this court’s decision in Coats, the default judgment terminating L.F.’s parental rights did not violate due process. The district court conducted an evidentiary hearing on the petition to terminate parental rights and heard testimony from L.F.’s social worker, the guardian ad litem, and L.F.’s mother, all of whom testified in support of termination of L.F.’s parental rights. The district court’s decision to terminate parental rights was based on L.F.’s failure to correct the conditions leading to out-of-home placement and her neglect of L.W. while L.W. was in foster care, not on L.F.’s failure to appear. As in Coats, the circumstances of the default proceeding “did not constitute a sham or a hoax” and it was “a real judicial proceeding.” 633 N.W.2d at 512.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the petition for review is granted, the court of appeals’ decision is reversed, and the district court order denying the motion to vacate the judgment terminating L.F.’s parental rights is reinstated.

BY THE COURT:

/s/ Kathleen A. Blatz Kathleen A. Blatz Chief Justice

PAGE, Justice

(dissenting).

For the same reasons stated in my dissent in In re Coats, 633 N.W.2d 505 (Minn. 2001), I respectfully dissent.


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Eric A.L. De RYCKE, an Attorney at Law of the State of Minnesota.
    No. Cl-98-589.
    Supreme Court of Minnesota.
    May 23, 2002.

      Edward J. Cleary, Director, Craig D. Klausing, Senior Assistant Director, Saint Paul, for Petitioner.
    Eric A.L. De Rycke, Lake Benton, Attorney Pro Se.
   OPINION

PER CURIAM.

We consider the appropriate discipline for an attorney who has failed to cooperate with the terms of his court ordered disciplinary probation despite having been publicly reprimanded in the past for failing to comply with the terms of his probation and having had his probation extended as a result of his noncompliance. We conclude that indefinite suspension from the practice of law without the eligibility to apply for reinstatement for a minimum of 6 months is the appropriate discipline to be imposed.

Respondent Eric A.L. De Rycke was admitted to practice law in Minnesota in 1974. On January 28, 1981, De Rycke was issued a warning for representing a criminal defendant in Pipestone County while serving as a prosecutor in Murray County. On April 21, 1998, we suspended De Rycke from the practice of law for 90 days for failing to timely file state and federal individual income taxes and pay taxes, failing to timely file state and federal employer quarterly withholding returns, client neglect and noncommunication in four matters, and noncooperation with the Director of the Office of Lawyers Professional Responsibility (Director) in his investigation of those matters. In re De Rycke, 577 N.W.2d 922, 922-23 (Minn.1998). On August 26, 1998, we reinstated De Rycke, placing him on 2 years’ supervised probation and requiring him to cooperate fully with the Director in any efforts to monitor De Rycke’s compliance with probation and to respond promptly to the Director’s correspondence by the due date. In re De Rycke, 583 N.W.2d 281 (Minn.1998).

De Rycke did not comply with the terms of his probation. Specifically, he failed to provide an inventory of client files, a report concerning his progress in reaching an agreement with the IRS and Minnesota Department of Revenue, and requested trust account records. He also failed to cooperate with the disciplinary investigation of an overdraft of his trust account occurring after he was placed on probation. On July 10, 2000, the Director filed his first petition for revocation of De Rycke’s probation. On April 30, 2001, De Rycke unconditionally admitted the allegations of the petition and stipulated to an extension of his probation. On June 5, 2001, we publicly reprimanded De Rycke and extended his probation for an additional 2 years. In re De Rycke, 627 N.W.2d 331, 333 (Minn.2001).

On June 13, 2001, the Director wrote to De Rycke, informing him of the court order and requesting that he provide certain documentation, including an agreement for supervision and copies of his written office procedures. De Rycke failed to respond. De Rycke’s probation supervisor also wrote to De Rycke on three different occasions during June and July 2001. De Rycke did not reply to any of these letters. On July 13, 2001, the Director wrote a letter reminding De Rycke of his obligations under his probation and informing him that he had 7 days to provide the information requested in the June 13 letter. In a letter postmarked July 23, 2001, but dated June 18, 2001, De Rycke wrote to the Director’s office and requested a 7-day extension “to handle all the matters.” The Director wrote De Rycke on July 27, 2001, informing him that an extension could not be agreed to until there was “some minimal level of cooperation” with the terms of his probation. De Rycke never responded to this letter.

On August 14, 2001, the Director wrote a letter instructing De Rycke to appear at a meeting on August 27, 2001, to discuss his failure to comply with the terms of his probation. De Rycke did not respond and did not appear at the meeting. The Director again wrote De Rycke on August 28, 2001, this time by both certified and regular mail, instructing him to appear for a meeting on September 5, 2001. De Rycke again failed to respond or appear at the meeting.

On or about September 17, 2001, De Rycke telephoned the Director and spoke with a senior assistant director. The two agreed that De Rycke would provide the requested documentation by September 27, 2001, and would attend a meeting on October 3, 2001. De Rycke failed to provide the information and called on October 3, 2001, telling the assistant director that he could not make it to the meeting because of car problems. De Rycke also said that he would have the requested information to the Director’s office by October 4, 2001. De Rycke never provided this information.

On November 8, 2001, the Director served De Rycke with a notice and petition for revocation of probation and for further disciplinary action. De Rycke failed to file an answer to this petition. On January 9, 2002, the Director served and filed a motion for summary relief pursuant to Rule 13(a), Rules on Lawyers Professional Responsibility (RLPR). On January 17, 2002, we issued an order indicating that the allegations contained in the petition for revocation of probation and for further disciplinary action against De Rycke were deemed admitted and that either party could submit written proposals to the court regarding the appropriate discipline to be imposed. De Rycke did not respond to the order. Accordingly, the allegations in the petition shall be deemed admitted, and we need only decide the appropriate discipline for respondent’s misconduct. In re Danielson, 620 N.W.2d 718, 720 (Minn.2001); Rule 13(b), RLPR.

The purpose of attorney discipline is not to punish the attorney but to protect the courts, the public, and the legal profession, as well as to guard the administration of justice. In re Bishop, 582 N.W.2d 261, 263 (Minn.1998). “ ‘In determining the appropriate discipline, the court considers: (1) the nature of the misconduct; (2) the cumulative weight of the rule violations; (3) the harm to the public; and (4) the harm to the legal profession.’ ” Id. (quoting In re Madsen, 426 N.W.2d 434, 436 (Minn.1988)). In our efforts to impose appropriate and fair sanctions, we often consult cases involving similar misconduct. Bishop, 582 N.W.2d at 263. While prior decisions provide guidance, we examine each case individually and impose an appropriate discipline based on the facts of the case and any aggravating and mitigating circumstances that may exist. In re Hoedeman, 620 N.W.2d 714, 717 (Minn.2001).

Attorneys on probation should be especially careful to comply with the rules of professional conduct. Danielson, 620 N.W.2d at 721. Noncooperation with probation monitoring is, by itself, a violation of rules of professional conduct. Daniel-son, 620 N.W.2d at 721; Hoedeman, 620 N.W.2d at 717. Specifically, failure to respond to the Director’s demand for information in connection with a disciplinary matter violates Minn. R. Prof. Conduct 8.1(a)(3). Furthermore, it is the duty of any attorney who is the subject of a proceeding under the RLPR to comply with reasonable requests, including requests to furnish documents and to appear at conferences and hearings. Rule 25(a), RLPR.

When an attorney fails to comply with his court ordered probation, that attorney may be indefinitely suspended from the practice of law. Danielson, 620 N.W.2d at 721; Hoedeman, 620 N.W.2d at 718. In Hoedeman, an attorney, while on private probation for trust account violations, failed to (1) cooperate with his probation monitoring, (2) cooperate with a disciplinary investigation, (3) comply with trust account rules, and he also (4) repeated the trust account misconduct that led to his probation. 620 N.W.2d at 717. We held that this misconduct demonstrated “a continuous pattern of unwillingness to cooperate with the disciplinary process and to comply with the rules of professional conduct * * Id. at 718. Accordingly, we indefinitely suspended Hoedeman. Id.

In Danielson, we dealt with an attorney who had stipulated to being placed on private probation for client neglect and non-communication, failure to satisfy a judgment, and failure to timely file tax returns. 620 N.W.2d at 719-20. Danielson failed to comply with the terms of her probation and, as a result, we suspended her indefinitely. Id. at 720-21. Like De Rycke, the only new misconduct was Danielson’s failure to cooperate with the attorney discipline process. See id.

Here, De Rycke’s misconduct included his repeated failure to respond to the Director’s requests, supply the information requested, and attend meetings to discuss the terms of his probation. Each of these failures violated the terms and conditions of his probation. De Rycke’s failure to cooperate initially began in 1998, continued after he was suspended and placed on probation on April 21, 1998, and has persisted despite the fact that he was publicly reprimanded in June 2001 for, among other things, failing to cooperate with the Director. This evidence shows a pattern of De Rycke failing to cooperate with the terms of his probation. While the only new misconduct is De Rycke’s failure to communicate and cooperate with the Director, his original discipline was for client neglect and noncommunication, as well as for failing to timely file state and federal individual income taxes and pay taxes and failing to timely file state and federal employer quarterly withholding returns. Furthermore, De Rycke’s disciplinary history is more extensive than that present in either Danielson or Hoedeman. De Rycke has already been suspended for 90 days and been placed on public probation twice. Under these facts, we conclude that indefinite suspension from the practice of law without eligibility to apply for reinstatement for a minimum of 6 months is appropriate.

Accordingly, we order that:

1.Respondent Eric A.L. De Rycke is hereby indefinitely suspended from the practice of law pursuant to Rule 15(a)(2), RLPR and shall be ineligible to apply for reinstatement for a minimum of 6 months;

2. De Rycke shall pay $900 in costs and disbursements to the Director pursuant to Rule 24(a), RLPR; and

3. Before reinstatement to the practice of law, De Rycke shall provide proof of fitness to practice law by complying with the petition and hearing requirements of Rule 18(a)-(d), RLPR and the written examination and continuing legal education requirements of Rule 18(e), RLPR.

So ordered.