text:
    STATE of Minnesota, Respondent, v. Jwan Orlando JOHNSON, Appellant.
    No. C9-01-1193.
    Court of Appeals of Minnesota.
    June 11, 2002.

      Mike Hatch, Attorney General, and Amy Klobuehar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and SHUMAKER, Judge.
   OPINION

R.A. RANDALL, Judge.

After a jury trial, appellant was found guilty of being a felon in possession of a firearm in violation of Minn.Stat. § 624.713, subd. 1(b), and was sentenced to 60 months in prison. Appellant appeals his conviction arguing (a) that he was illegally seized when the officer retained his identification card and ran a routine warrants check and (b) the prosecutor committed misconduct when he referred to appellant’s felon status, which had been stipulated to-by the defense. Because police lacked reasonable articulable suspicion that appellant was engaged in criminal activity when they seized him, we reverse.

FACTS

In November 2000, Brooklyn Park Officer Clayton Connolly and his partner followed a vehicle with a broken left brake light for several blocks. Connolly pulled the vehicle over using his lights, parked behind the vehicle, and approached the vehicle on the driver’s side while his partner approached the vehicle on the passenger side. Both officers were armed and in uniform.

There were three occupants in the car; a male driver and female passenger the vehicle’s owner were seated in the front seat. Appellant was seated in the back seat. Connolly asked the driver, Tyreese Turner, for his driver’s license. Turner did not have a driver’s license, but instead produced an instruction permit, which requires that a licensed driver over 18 years old be in the vehicle. Turner told Connolly that the female passenger, who was sitting in the front seat of the vehicle, owned the vehicle. When asked by Connolly if she had a driver’s license or insurance, she said that she did not have a license and she could not produce proof of insurance. Connolly then asked appellant, who was seated in the backseat, if he “had ID or a driver’s license.” Appellant produced a Minnesota identification card. Connolly took the three identifications that the occupants produced, told the driver not to leave, went to the squad car, and ran a routine warrants check on each individual.

After approximately three to five minutes, Connolly discovered that appellant had a misdemeanor warrant for driving after revocation, removed appellant from the car, and handcuffed him. During a routine pat-down search, Connolly discovered a loaded .38 revolver in appellant’s waistband and two plastic bags later identified as “fake drugs.”

Appellant was then charged with being a felon in possession of a firearm. Appellant filed a pretrial motion to suppress evidence arguing: (a) the vehicle appellant was riding in was unreasonably stopped; (b) appellant was unreasonably seized when police requested appellant’s identification; and (c) the search of appellant was unreasonable because it was not authorized by a warrant. The district court denied the motion to suppress the evidence. This appeal followed.

ISSUES

I. Was appellant seized when the officer took appellant’s identification and ran a warrants check?
II. Was there prosecutorial misconduct by introducing evidence of appellant’s prior felony conviction?

ANALYSIS

‘When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn.1999) (citation omitted).

Appellant contends that he was illegally seized when the officer took his identification and ran the warrants check. He contends that under the totality of the circumstances any reasonable person would conclude that he had to provide identification when the officer requested it and that after providing his identification he was not free to leave the scene. Appellant asserts that he was illegally seized because Connolly lacked reasonable articulable suspicion to believe that appellant was engaged in criminal activity when the officer detained him and ran a warrants check.

We conclude that the officers validly stopped the vehicle that appellant was riding in because the officers saw a broken left brake light which is an equipment violation. For Fourth Amendment purposes, there is a seizure when an officer stops an automobile. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Limited investigatory stops are allowed if police have reasonable articulable suspicion of a motor vehicle violation or of criminal activity. State v. Duesterhoeft, 311 N.W.2d 866, 867 (Minn.1981); Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968).

After lawfully pulling the vehicle over, the police could then conduct a limited investigation. After stopping the vehicle, the officers discovered that the driver possessed only a learner’s permit, which requires that someone in the vehicle over the age of 18 possess a valid Minnesota license. Because the driver told the officers that the passenger in the front seat owned the vehicle, the officers had every right to question her and determine if she had a valid driver’s license. After questioning the vehicle’s owner, Connolly discovered that she did not possess a valid driver’s license. The police had a right to ask the driver and the owner of the vehicle for a driver’s license. The police had a right to ask appellant if he had a driver’s license. However, the officer had no articulable suspicion of criminal activity justifying a warrants check of appellant. Thus, he had no authority to seize appellant’s ID card and run a warrant check after appellant told him that he did not have a driver’s license. At no time did appellant tell the officers that he had a Minnesota driver’s license. Appellant claimed no responsibility for the vehicle and the police do not dispute that. The issue is whether appellant was seized for Fourth Amendment purposes when the officers took his identification card and ran the warrants check. We do not have the issue of whether the police could have legitimately run a warrants check on the driver.

When there is no factual dispute, a reviewing court determines if a police officer’s actions constitute a seizure and if the officer articulated an adequate basis for the seizure. See State v. Storvick, 428 N.W.2d 55, 58 n. 1 (Minn.1988). Not all encounters between the police and citizens are seizures. In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn.1993) (citation omitted). A seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” State v. Cripps, 533 N.W.2d 388, 391 (Minn.1995) (quotation omitted). Officers must not “convey a message that compliance with their request is required.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991).

The Minnesota Constitution provides that “a person has been seized if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.” Cripps, 533 N.W.2d at 391 (citation omitted). The Mendenhall-Royer standard is used for judging under the totality of the circumstances. E.D.J., 502 N.W.2d at 781-82. (citation omitted). Some circumstances, under the Mendenhill-Royer standard, that indicate if a seizure has occurred are:

[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

Id. at 781 (citation omitted).

The district court found that appellant had not been seized prior to the warrants check coming back. The district court reasoned that appellant was free to leave at any time and that the officer had no

reason or intention of taking [appellant] into custody or preventing him from leaving, and there wasn’t any evidence [appellant’s] done anything wrong, because it is true that it’s not an offense of the Minnesota Statutes to be in a car without a valid driver’s license.

We disagree with the district court’s conclusion that appellant was free to go at any time and, if he had left, he would not have been stopped by the police. First, because appellant never attempted to leave the vehicle, it is pure speculation that the policeman would have allowed appellant to walk away if, in response to the officer’s request for identification, appellant (without responding in any way) opened a car door and attempted to start walking away. Second, the test is not whether appellant would have been allowed to leave, but whether a reasonable person would believe they were free to leave. Third, given the need for identification to conduct everyday business, it is unrealistic in today’s society that a reasonable person would leave their identification behind. The United States Supreme Court has held:

[E]xcept in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment.

Delaware, 440 U.S. at 663, 99 S.Ct. at 1401. When an individual has only an identification card and does not possess a driver’s license, the identification card functions just like a driver’s license. It is needed to cash checks, for proof of identity when applying for jobs, and other occasions when a driver’s license is normally tendered. When an individual does not have a driver’s license, a Minnesota identification card is just as important to the individual as a driver’s license, thus making it difficult to impossible for a person simply to walk away and leave it with the police.

Not only would a reasonable person not feel free to leave his identification behind, but as a result of the show of force when stopping the vehicle, a reasonable person would feel that he was neither free to disregard the police questions nor free to terminate the encounter. The record shows that the officers pulled the vehicle over with flashing lights, parked the squad car behind the vehicle, and remained behind appellant’s vehicle during the entire encounter. Appellant was seated in the back seat of the car, two policemen approached the vehicle and positioned themselves on each side of the vehicle, and the driver of the vehicle was specifically told by the officer not to go anywhere. Since we conclude that appellant was seized when the officers seized his identification and ran a warrants check, the issue remains whether appellant’s seizure was supported by reasonable and articulable suspicion. See E.D.J., 502 N.W.2d at 783 (holding that to justify a seizure police must articulate reasonable suspicion).

We conclude the officers lacked reasonable articulable suspicion that appellant was engaged in criminal activity to seize appellant. That is not even in dispute. The state concedes the officers had no articulable suspicion to suspect that appellant may have been engaged in illegal activity. In fact, Connolly testified that it is not a crime to be a passenger in the rear seat of the car where a driver does not have a driver’s license. The officer did not testify, for instance, that because of everyone’s failure to produce a driver’s license, he suspected that the vehicle might have been stolen.

Connolly did testify that he requested appellant’s identification to determine if there was a licensed driver in the car and if the vehicle “would be able to be driven from the scene.” This argument lacks substance. He could have limited his request to asking appellant if he had a driver’s license. Once Connolly determined that appellant did not have a driver’s license and was not taking any responsibility for the vehicle, requesting appellant’s identification, with no suspicion of criminal activity, and then taking that identification to run a warrants check was a fishing expedition, thus, unreasonable.

The district court itself formed the conclusion that the officers lacked reasonable articulable suspicion that appellant was engaged in criminal wrongdoing. The court stated:

[T]here wasn’t any evidence [appellant did] anything wrong, because it is true that it’s not an offense of the Minnesota Statutes to be in a car without a valid driver’s license

We reject the district court’s determination that:

[I]t would have been perfectly valid for the police officer to ask the identification of the people so he’d know who the witnesses were in case there was ultimately a ticket issued for driving -without a valid license and there was a trial on it and he had to find the witnesses that saw all this happen. Connolly also could have taken any information he needed.

The officers could have taken the information they needed from appellant’s identification and returned it to him. They did not have to run a warrants check to get his name and address. Police seizing everyone, even briefly, in the general vicinity where a traffic offense has been committed, without reasonable articulable suspicion that the individual was engaged in criminal activity, is the equivalent of a sobriety checkpoint roadblock. See Ascher v. Commissioner of Public Safety, 519 N.W.2d 183 (Minn.1994) (concluding that sobriety checkpoint roadblocks are unconstitutional without individualized articula-ble suspicion of criminal wrongdoing); see also Gray v. Commissioner of Public Safety, 519 N.W.2d 187 (Minn.1994) (determining police must have objective, individualized articulable suspicion of criminal wrongdoing by driver before driver may be subjected to investigative stop). Here, appellant was detained simply because he was a passenger in the back seat of a vehicle. Although appellant was seized for only a few minutes while the warrants check was done and, thus, the seizure was not overtly intrusive, an “[u]ncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” Ascher, 519 N.W.2d at 186 (citation omitted). It is possible that some people in today’s society would allow the short-term intrusion of seizing an individual’s identification and running a routine warrants check to capture those with outstanding warrants. It is, however, true “that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.” Id. at 187-88.

Because appellant was illegally seized, the fruits of the poisonous tree, the information resulting from the warrants check and the gun should have been suppressed. Because we reverse on the issue whether police possessed reasonable articulable suspicion to seize appellant, we do not address the issue of prosecutorial misconduct.

DECISION

After seeing a broken taillight, police could stop a motor vehicle and conduct a limited investigation of the driver and the vehicle’s owner to determine if either possessed a valid driver’s license. The police could ask appellant, a passenger, if he had a driver’s license and was he the licensed driver responsible for the person driving the car who had only a beginner’s permit. But, the police could not then ask appellant for any type of identification, briefly detain him, and use that ID for a warrants check when, admittedly, they had no suspicion, nor claimed any, that appellant was engaged in criminal activity.

Appellant was seized for Fourth Amendment purposes when police took appellant’s identification and ran a warrants check.

Police lacked reasonable articulable suspicion that appellant was engaged in criminal activity to support appellant’s seizure, when appellant was merely a passenger in a vehicle that was stopped for an equipment violation and appellant had engaged in no suspicious behavior.

Reversed.

      . See Michigan v. Summers, 452 U.S. 692, 701, 101 S.Ct. 2587, 2593 n. 12, 69 L.Ed.2d 340 (1981) (stating that police may request identification and run warrants check on detained person displaying suspicious conduct).


source: Caselaw Access Project

author: ECKRICH, Circuit Judge.

license: Public Domain

text:
    2002 SD 49
    In the Matter of the CONDITIONAL USE PERMIT DENIED TO Mark MEIER for Construction of an Animal Confinement Operation on Property Located in the Southwest Quarter of Section 7 and the Southwest Quarter of Section 18, Township 104 North, Range 64 West, Aurora County, South Dakota.
    No. 21983.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 11, 2002.
    Decided May 1, 2002.

      Tim R. Shattuck, Elizabeth A. Lewis and Daniel J. Harmelink of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for appellant Mark Meier.
    Thomas H. Harmon of Tieszen Law Office, Pierre, South Dakota, Attorneys for appellee Aurora County.
   ECKRICH, Circuit Judge.

[¶ 1.] Mark Meier (Meier) appeals from a circuit court judgment which affirmed the Aurora County Board of Commissioners’ (Board) decision to deny Meier a conditional use permit (CUP) for two large hog confinement operations. This is the second appeal arising from the Board’s December 1997 denial of the CUP. The first appeal held, among other things, that the trial court improperly granted Board a directed verdict at the close of Meier’s case in chief. The trial court’s judgment was affirmed in part, reversed in part, and remanded to the trial court with instructions to “determine anew all matters of fact without ascribing any presumption of correctness to Board’s findings on the evidence. Once the trial court finds the facts, it is to determine if the actions of Board were arbitrary or capricious.” Meier I, 2000 SD 80 at ¶22, 613 N.W.2d at 530.

[¶ 2.] Upon remand the trial court held a hearing. Board did not submit evidence, but rested upon the original record. The trial court then entered a memorandum decision, findings of fact, conclusions of law and judgment which once again affirmed Board’s decision to deny a CUP to Meier. We affirm.

FACTS

[¶ 3.] While the facts are set forth fully in Meier I, a review is helpful. Aurora County adopted a zoning ordinance relating to “animal feeding (hog confinement) operations.” The ordinance enunciates the process, procedures and standards to be followed by an applicant seeking approval of a CUP for a hog confinement operation. Section 515 of the ordinance establishes specific standards that the applicant must satisfy “either before the issuance of a permit or after, but it does not preclude other considerations.” (emphasis added). Meier I, 2000 SD 80 at ¶ 12, 613 N.W.2d at 528.

[¶ 4.J Examples of valid standards, general and specific, which are properly-considered by Board before it makes a decision to grant or deny a CUP include:

1) A nutrient management plan “which will assure offensive odors and runoff will be kept to a minimum.” Aurora County Zoning Ordinance § 515(d);
2) Whether the use (hog confinement operation) “if controlled as to number, area, location or relation- to the neighborhood, would promote the public health, safety, welfare, morals, order, convenience, appearance, prosperity or general welfare.” Aurora County Zoning Ordinance Definitions;
3) Whether the granting of a CUP will adversely affect the public interest. § 1107B5;
4) General compatibility with adjacent properties in the (agricultural) district. § 1107B6.h;
5) Protection of agricultural lands from incompatible land uses in order to preserve land best suited to agricultural uses and land in which the natural environment should be continued and to limit residential, commercial and industrial development to those areas where they are best suited for reasons of practicality and service delivery. Aurora County Zoning Ordinance § 501;
6) The location of neighbors to the proposed facility, the effect of the operation on roads in comparison to what tax revenue the operation would generate, the potential devaluation of surrounding real estate, the presence of noxious odors and potential for water pollution. Meier I, 2000 SD 80 at 119, 613 N.W.2d at 527 (citing Coyote Flats v. Sanborn County Com’n, 1999 SD 87 at IT 9, 596 N.W.2d at 353).

[¶ 5.] Clearly Board’s decision was not limited to the specific factors found in § 515(d).

STANDARD OF REVIEW

[¶ 6.] The applicable standard of review is whether the trial court’s findings of fact were clearly erroneous. Tisdel v. Beadle County Bd. of Com’rs, 2001 SD 149, 638 N.W.2d 250; Coyote Flats, 1999 SD 87 at ¶ 7, 596 N.W.2d at 349. In other words we look at “ “whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed.’ ” Tisdel, 2001 SD 149 at ¶ 5, 638 N.W.2d at 252, 253 (citing Estate of Roehr, 2001 SD 85 ¶ 4, 631 N.W.2d 600, 601). “We however ‘accord no deference to the legal conclusion of the circuit court’ when the appeal involves a circuit court’s review of a county board’s decision.” Tisdel, 2001 SD 149 at f 5, 638 N.W.2d at 253 (quoting Coyote Flats, 1999 SD 87 at ¶ 7, 596 N.W.2d at 349).

DECISION

[¶ 7.] The appeal to circuit court is governed by SDCL 7-8-27 through 7-8-32. The circuit court conducts a review of the decision de novo; however, the review is limited to

“determine anew all matters of fact without ascribing any presumption of correctness to the Board’s finding on the evidence.... Once the [t]rial [c]ourt finds the facts, it is to determine if the actions of the [bjoard were arbitrary or capricious, i.e., whether the actions of the [bjoard were based on personal, selfish, or fraudulent motives, or on false information, [or] ... characterized by a lack or relevant and competent evidence to support the action taken.”
Tisdel, 2001 SD 149 at ¶ 6, 638 N.W.2d at 253; (quoting Meier I, 2000 SD 80 at ¶ 22, 613 N.W.2d at 529).

[¶ 8.] The issue is whether Board’s decision to deny the CUP was characterized by a lack of relevant and competent evidence to support the action taken. There is no evidence that Board’s actions were based on personal, selfish or fraudulent motive or on false information.

[¶ 9.] Board did not introduce evidence at any stage of the circuit court appeal; neither at the original hearing in 1998, nor at the hearing on remand following Meier I.

[¶ 10.] Meier’s argument follows a series of propositions, each of which must be resolved in Meier’s favor for him to prevail. If any fail, Meier’s argument unhinges.

[¶ 11.] Meier’s argument is:
1) Meier need only prove that he has satisfied the standards of § 515(d) to prevail;
2) Meier proved a prima facie case which satisfies § 515(d);
3) Meier is thus entitled to a presumption that Meier is entitled to a hog confinement permit because it is in the public good;
4) Board offered no evidence to rebut the public good presumption, thus Meier is entitled to a permit.

[¶ 12.] Meier’s propositions rely on a faulty interpretation of Meier I. This Court reversed the trial court because in the original circuit appeal the court limited its review to.the § 515(d) factors. The trial court, however, was not bound exclusively to the § 515(d) performance standards.

[¶ 13.] After Board rested the trial court was no longer mandated to apply the well recognized standard of review for a directed verdict, that is, to accept the evidence “which is most favorable to the non-moving party ... and indulge all legitimate inferences, therefrom in his favor.” Meier I, 2000 SD 80 at ¶ 19, 613 N.W.2d at 529 (citations omitted).

[¶ 14.] “It is well established on an appeal from the zoning commission, the party appealing has the burden of proof before the circuit court.” Coyote Flats, 1999 SD 87 ¶ 8, 596 N.W.2d at 349. Meier I did not change this well established rule.

[¶ 15.] The Meier I court did not find that Meier was entitled to any evidentiary presumption. Meier’s argument arises from dicta found in footnote 4 of the decision. This Court did not say that Meier had sustained its burden for a permit under § 515(d) or otherwise. This Court simply ruled that Meier had presented sufficient evidence to avoid a directed verdict.

[¶ 16.] The evidence concerning which individuals or entities are or will be responsible for proper disposal of the 2.8 million gallons of liquid hog manure generated annually by the nearly 16,000 head housed in the confinement building was unclear and contradictory.

[¶ 17.] According to Meier’s evidence each hog generates 1.2 gallons of manure per day. Each site mil house between 3,201 live head for a total of 6,402 head. Each day these live hogs will excrete 7,682 gallons of manure onto the floor, through a slatting area. Then the manure will be scraped two times per day and pumped into two 1.6 million gallon holding tanks referred to as slurry stores. At a given time between'the scraping operation each site will therefore have between 0 — 3,841 gallons of hog manure waiting to be scraped, pumped and stored. The trial court’s finding among others that the structures will be “the source of intense offensive odors coming from the barn and other operational facilities at the site” is supported by the evidence.

[¶ 18.] Though Meier presented a wealth of evidence that the proposed conditional use was compatible with the proposed site he failed to present any evidence that Board’s original decision to deny the CUP was based on a lack of relevant evidence.

[¶ 19.] Upon review of the record this Court does not find that the trial court’s findings of fact are clearly erroneous. The trial court’s findings support its judgment that Board’s decision was not arbitrary or capricious. The judgment is affirmed.

[IT 20.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 21.] ECKRICH, Circuit Judge for SABERS, Justice, disqualified.

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

      . In re Conditional Use Permit Denied to Meier, 2000 SD 80, 613 N.W.2d 523 (Meier I).

      . Upon remand, the trial court was instructed that its review of the Board's decision was not limited to consideration of the performance standards of § 515.

      . The specific factors cited in subparagraph (vi) can fairly be said to be subsumed in subparagraphs (i)-(v).

      . Footnote 4 said:
      We presume that since the county commission allowed for animal feeding operations in agricultural districts when it passed the ordinance, the commission considered such an enterprise to be in the public good when it is limited in number, area, place and by other appropriate limitations and conditions. See East Manchester Tp. v. Dallmeyer, 147 Pa.Cmwlth. 671, 609 A.2d 604 (1992); Schatz v. New Britain Tp., 141 Pa. Cmwlth. 525, 596 A.2d 294 (1991); Appeal of Baird, 113 Pa.Cmwlth. 637, 537 A.2d 976 (1988).

        Meier I, 2000 SD 80 at ¶ 16, 613 N.W.2d at 529.


author: GILBERTSON, Chief Justice. [¶ 23.] AMUNDSON, Justice, AMUNDSON, Justice

text:
    2002 SD 57
    Allan ARENDS, Claimant and Appellee, v. DACOTAH CEMENT, Employer/Self-Insurer, Appellant, and Berkley Administrators.
    Nos. 22081, 22084.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided May 15, 2002.

      Ronald L. Schulz of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Wa-tertown, South Dakota, Attorneys for claimant and appellee.
    Talbot J. Wieczorek of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorneys for employer/Self-Insurer/appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Allan Arends (Arends), employed by South Dakota State Cement Plant Commission d/b/a Dacotah Cement (Daco-tah) for over 30 years, fell through some ice and sustained an acute knee injury while he was out trapping muskrat. When surgery was performed, it was discovered that Arends had degenerative osteoarthritis. Both the Department of Labor (Department) and the circuit court determined that there was a work-related injury, which was a major contributing cause of the physical impairment. Arends was awarded benefits under South Dakota workers’ compensation law. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Arends began working for Daco-tah in 1974, after spending time in the military and working for other concrete, steel and construction companies. While working for Dacotah, one of Arends’ primary duties as manager at the Watertown terminal was to unload rail cars. This, in turn, required repetitive stooping and kneeling on concrete.

[¶ 3.] Additionally, Arends had several hobbies, including working on cars, hunting, fishing, and trapping. These hobbies also required a significant amount of stooping and kneeling. On November 17, 1996, while out trapping muskrat, Arends fell through the ice with his left leg. The fall brought Arends’ entire body weight down on his right knee. The pain was instant and Arends heard a “clicking” noise in his knee. He had difficulty walking and his knee became swollen.

[¶ 4.] On November 25, 1996, one week after the accident, Arends saw Dr. Terry L. Seeman. Due to Arends’ inability to flex his knee since the time of the accident, Dr. Seeman recommended crutches and an MRI. The MRI revealed thinning throughout the meniscal cartilage, as well as ero-sions or spurs on the back of the patella. Dr. Seeman advised Arends not to return to work until he was off the crutches. On January 9, 1997, Dr. Seeman performed arthroscopic surgery which basically revealed: (1) an acute injury amounting to torn medial meniscus cartilage; and (2) a cumulative or chronic injury amounting to global thinning or degeneration of the cartilage and patella. Dr. Seeman stated:

The type of surface damage that he had is not something you would normally see in a 48[-]year[-]old who has a white collar or sit-down type of job. I mean, it’s just not that badly damaged as his was.

When asked what would cause that type of injury, Dr. Seeman replied that “it would have to be some type of repetitive trauma to the kneecap.” Dr. Seeman concluded that the fall through the ice could have caused the tear, but that the degenerative osteoarthritis was largely a result of an accumulation of small injuries brought on by the repetitive strain or exertion of Ar-ends’ work activities. He stated that the evidence taken from the history of the patient, the MRI and the surgery all indicate that Arends’ work activity was “a major contributing cause ... or contributing insult to the knee.”

[¶ 5.] Dr. Peter A. Looby, an expert hired by Dacotah, also examined Arends and diagnosed degenerative osteoarthritis of mild to moderate degree in both knees. Dr. Looby indicated that the progressive illness was “multifactorial” caused by genetic predisposition, wear and tear, and possibly aggravation from an acute trauma.

I believe his work was a contributing cause. His work involved standing on concrete, a lot of stooping, bending, lifting, those kinds of activities. And just as his recreational activities probably contributed to the development of osteoarthritis, probably so did his work environment.

Dr. Looby then stated that the condition essentially amounts to “an accumulation of small traumas and wear and tear on the joints.”

[¶ 6.] Arends reached maximum medical improvement on March 6, 1998. Because he could no longer perform his job, Dacotah required Arends to draw sick leave from April 22, 1997, to December 2, 1997.

[¶ 7.] Department held a hearing on July 26, 2000, and determined that Arends had a 17 percent impairment in his lower right extremity, that Arends’ work activities were a major contributing cause of the impairment, and that Arends was entitled to workers’ compensation benefits. The Hearing Officer awarded Arends temporary total disability benefits for the period in which he was required to draw sick leave. The Hearing Officer also determined, under the odd-lot doctrine, that Arends was entitled to permanent total disability benefits because of his condition, level of education, training, and age. Finally, the Hearing Officer denied Arends’ claim for the penalty provided in SDCL 62-4-10.1 on the ground that a good-faith dispute between the parties did exist.

[¶ 8.] Dacotah appealed this decision to the circuit court. While the court affirmed the decision of Department on July 6, 2001, it did overrule the Hearing- Officer’s finding of fact that Arends’ condition had not been worsened by the fall through the ice. The court concluded that this finding was clearly erroneous. Notwithstanding this determination, the circuit court upheld Department’s ruling that a work-related injury -was a major contributing cause of Arends’ disability. The circuit court also concluded that the last injurious exposure rule under SDCL 62 — 1—l(7)(c) did not apply because “this is not a case where subsequent employers are arguing over which one should be on the risk.” Finally, the court affirmed the Hearing Officer’s determination that a good-faith dispute did exist and, therefore, Arends was not entitled to a penalty under SDCL 62-4-10.1.

[¶ 9.] Dacotah now appeals to this Court raising the following issues:

1. Whether Arends suffered a work-related injury, which was a major contributing cause of the condition complained of.
2. Whether the last injurious exposure rule applies where there is no “subsequent employment.”

By Notice of Review, Arends raises the following issue for appeal:

3. Whether there is an absence of a good-faith dispute, entitling Arends to the penalty provided in SDCL 62-4-10.1.

STANDARD OF REVIEW

[¶ 10.] We review administrative decisions, such as those of Department, pursuant to the standard set forth in SDCL 1-26-36. We must give great weight to the agency’s findings of fact and overturn such findings only where they are clearly erroneous. Gilchrist v. Trail King Indus., Inc., 2000 SD 68, ¶ 4, 612 N.W.2d 1, 3 (citations omitted). “Only if after a review of the entire record we are definitely and firmly convinced a mistake has been committed will we reverse.” Id. (citations omitted). Conversely, findings of fact based solely upon deposition testimony are reviewed de novo. Goebel v. Warner Transp., 2000 SD 79, ¶ 10, 612 N.W.2d 18, 21 (citations omitted). When the issue is a question of law, we review the decisions of both the administrative agency and the circuit court de novo. Butte County v. Vallery, 1999 SD 142, ¶ 8, 602 N.W.2d 284, 286-87.

[¶ 11.] This case also involves statutory interpretation which, as a question of law, is reviewed by this Court de novo. Steinberg v. S.D. Dep’t of Military and Veterans Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599. “Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.” Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (additional citations omitted).

ANALYSIS AND DECISION

[¶ 12.] 1. Whether Arends suffered a work-related injury, which was a major contributing cause of the condition complained of.

[¶ 13.] “In order to collect worker’s compensation benefits, [Arends] must establish a causal relationship between his injury and his employment.” Gilchrist, 2000 SD 68 at ¶ 7, 612 N.W.2d at 3-4 (citing Kester v. Colonial Manor of Custer, 1997 SD 127, ¶ 17, 571 N.W.2d 376, 380 (additional citation omitted)). SDCL 62-1-1 provides the definition of “injury” for the purposes of South Dakota workers’ compensation.

Terms used in this title, unless the context otherwise plainly requires, shall mean: * * *
7) “Injury” or “personal injury,” only injury arising out of and in the course of the employment, and does not include a disease in any form except as it results from the injury. An injury is compensa-ble only if it is established by medical evidence, subject to the following conditions:
(a) No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of or
(b) If the injury combines with a preexisting disease or condition to cause or prolong disability, impairment, or need for treatment, the condition complained of is compensable if the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment.
(c) If the injury combines with a preexisting work related compensable injury, disability, or impairment, the subsequent injury is compensable if the subsequent employment or subsequent employment related activities contributed independently to the disability, impairment, or need for treatment. * * *

SDCL 62-1-1(7) (emphasis added). Thus, Arends must prove: (1) that his injury was work-related; and (2) that the work-related injury was a major contributing cause of the condition complained of, which is the physical impairment. “This causation requirement does not mean that the employee must prove that [his] employment was the proximate, direct, or sole cause of [his] injury; rather the employee must show that [his] employment was a ‘contributing factor ’ to [his] injury.” Gilchrist, 2000 SD 68 at ¶ 7, 612 N.W.2d at 4 (quoting Kester, 1997 SD 127 at ¶ 17, 571 N.W.2d at 380 (additional citation omitted)) (alterations and emphasis in original).

[¶ 14.] As recognized by Department and the circuit court in this case, the medical evidence does establish that Ar-ends suffered work-related injuries. The injury is the act or omission that causes the loss. Grauel v. S.D. Sch. of Mines and Tech., 2000 SD 145, ¶ 9, 619 N.W.2d 260, 263 (citing Steinberg, 2000 SD 36 at ¶ 10, 607 N.W.2d at 600). In this case, one injury, the fall through the ice, did not occur during Arends’ performance of his job. But many others did. In fact, the medical evidence indicates that Arends suffered a series of injuries over the thirty-year period, which manifested in a degenerative disorder. The arthroscopic surgery, admittedly done in response to Arends’ fall through the ice, merely hastened discovery of the damage caused by these injuries.

[¶ 15.] In Grauel, we determined that the claimant had not established, by a preponderance of medical evidence, that his employment was a major contributing cause of the physical impairment. Id. at ¶¶ 19-21. There, the treating physician could offer no opinion as to whether he believed the degenerative condition in the claimant’s knee had happened over time or all at once. Id. at ¶ 20. He also assumed that because the injury happened at work, it was “ipso facto work-related.” Id. at ¶ 19. Moreover, the employer’s expert, after an independent medical examination, concluded that the degenerative osteoarthritis was a preexisting condition that caused the disability, unrelated to the claimant’s work activities. Id. at ¶ 21. In reviewing the deposition testimony and medical evidence, we concluded that the claimant had not carried his burden of showing that his employment was a major contributing cause of his disability

[¶ 16.] In this case, however, we agree with both Department and the circuit court that the repeated work-related trauma to Arends’ knee was a major contributing cause of the condition complained of. The condition, or loss produced by the injury, is the physical impairment caused by Arends’ degenerative osteoarthritis. See id. at ¶ 9. Findings taken from MRI, arthroscopic surgery, and the examinations of both doctors demonstrate to a reasonable medical probability that Ar-ends’ chronic condition was not caused by one acute injury; rather, it was caused by the cumulative trauma from years of bending, stooping and kneeling on concrete. See Truck Ins. Exch. v. CNA, 2001 SD 46, ¶ 19, 624 N.W.2d 705, 709. Therefore, unlike the claimant in Grauel, Arends has met his burden of demonstrating that the repetitive work at Dacotah caused him injuries which, in turn, were a major contributing cause of his disability. Given this evidence, we are not firmly convinced that a mistake has been made and we will not overturn the Department’s ruling.

[¶ 17.] 2. Whether the last injurious exposure rule applies where there is no “subsequent employment.”

[¶ 18.] While South Dakota has adopted the last injurious exposure rule, we agree with the circuit court’s conclusion that the rule does not apply in this case. See SDCL 62-l-l(7)(c). See also Enger v. EMC, 1997 SD 70, ¶ 12, 565 N.W.2d 79, 83 (stating “South Dakota has adopted the ‘last injurious exposure rule’ when considering successive injuries.”) (citations omitted). The statute provides:

If the injury combines with a preexisting work related compensable injury, disability, or impairment, the subsequent injury is compensable if the subsequent employment or subsequent employment related activities contributed independently to the disability, impairment, or need for treatment.

SDCL 62 — 1—1 (7)(c). Arends may have “a preexisting work related compensable injury, disability, or impairment” and a “subsequent injury,” but he does not have “subsequent employment.”

[¶ 19.] “[Workers’ compensation statutes should be applied without defeating the purpose of the overall statutory scheme.” Grauel, 2000 SD 145 at ¶ 14, 619 N.W.2d at 264 (citation omitted). The Legislature intended this section of the statute to settle disputes between two or more employers or insurers. Application of the doctrine to the facts of this case would not advance this purpose. Here, we have a dispute between the employer and employee to determine whether the employer-caused injuries or the employee-caused injury is responsible for the condition. But such disputes are already settled under the causation portion of the analysis. Therefore, there is no need to reach the last injurious exposure rule.

[¶20.] 3. Whether there is an absence of a good-faith dispute, entitling Arends to the penalty provided in SDCL 62-4-10.1.

[¶ 21.] Arends claims that because Da-cotah wrongfully failed to pay his claim for benefits within ten days, it should be subject to the penalty provision of SDCL 62-4-10.1. However, this Court has also held that the penalty is appropriate only in the absence of a good-faith dispute. See Tischler v. United Parcel Serv., 1996 SD 98, ¶ 77, 552 N.W.2d 597, 609. Herein, Dr. Seeman did not initially express the opinion that Arends’ work was a “major contributing cause” of the disability because he was not asked the question until his second deposition. Moreover, Dr. Looby continually maintained that, while he believed Arends’ work-related activities were a contributing cause, he was unable to say whether it was a “major” contributing cause. Liability depended upon the credibility of the testimony in light of the evidence. As the circuit court noted, there is no indication “of an abuse of discretion on the Hearing Examiner’s finding of a good-faith dispute.” Therefore, we affirm.

[¶ 22.] SABERS and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 23.] AMUNDSON, Justice,

concurs in part and dissents in part.

[¶ 24.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, and being the trial judge in this case, did not participate.

AMUNDSON, Justice

(concurring in part and dissenting in part).

[¶ 25.] Although I fully recognize that this Court is obligated to liberally construe coverage in workers’ compensation cases, the majority opinion simply goes too far. See Mattis v. Weaver Electric, Inc., 2000 SD 150, ¶ 8, 619 N.W.2d 526, 528; Fair-cloth v. Raven Indus., Inc., 2000 SD 158, ¶ 16, 620 N.W.2d 198, 203. During his first deposition, Dr. Seeman testified that Arends’ job was a contributing cause of his knee injury, not a major contributing cause. Next, on May 18, 2000, his second deposition took place where counsel for the claimant led the good doctor through these troubled waters to get to the right answer.

Q. Doctor, would you state your name, please?
A. Dr. Terry Lee Seeman.
Q. And, Doctor, for your information, this is a supplemental deposition to your deposition that was taken on August 12, 1999, regarding A1 Arends. Do you recall that deposition being taken at that time?
A. Yes.
Q. At that time, I asked you this question:
"If I hear you correctly based on the history you took and your findings on the surgery that you performed, and based on the information you obtained from the patient, it's your opinion based upon a reasonable degree of medical certainty that the arthritic conditions and this knee problem of Mr. Arends' is a result of his work with Dacotah Cement.''
Your answer was:
"It would be my opinion that without information to the contrary, that would be the likely cause of his degenerative changes noted at the time of the surgery.”
That was the end of your answer. And that gave me a little bit of concern, Doctor, so because of subsequent inquiries made by counsel representing Dacotah Cement, additional information has been obtained and I have the following question for you, Doctor.
Doctor, based upon the history you took during the time that you were providing medical services to Mr. Arends and your findings during the surgery that you performed, is it your opinion based upon a reasonable degree of medical certainty, that the work that Mr. Arends was performing with Dacotah Cement was a major contributing cause of Mr. Arends' arthritic conditions in his current knee problems?
And I want you to assume the following facts: That in the mid to late 1970's, and thereafter, Mr. Arends did body work on vehicles consisting of changing fenders, changing doors, and minor repairs in the shop in his home. And that he would probably work on or restore approximately eight vehicles a year, and the nature of that work was body work and painting where he would occasionally have to get on a creeper and get underneath the car. He would put the cars up on jack stands so that he could get underneath the cars on the creeper. And further assume, Doctor, that approximately 12 years ago, Mr. Arends helped change a clutch in a vehicle in his garage, where he had to possibly get down on his knees and also under the vehicle on a creeper to accomplish the job.
Further assume that during the period of 1990 through 1996, Mr. Arends worked on two cars and one pickup. One car was a 1988 Volv[o] on which he replaced fenders, radiator support, grill, repaired the right quarter panel and painted the car. The other vehicle was a 1991 Chevrolet in which he replaced a hood, two fenders, radiator support, bumper, and painted the front. The other vehicle that Mr. Arends worked on was a 1982 Ford pickup, on which he replaced rocker panels and repaired rust on the back of the cab.
Also assume that during the time that Mr. Arends was working on vehicles, he has not sustained any type of injury, never had a car fall on him, nor did he injure his knees or back.
And further assume that beginning in approximately 1973, Mr. Arends did some trapping of fur bearers, as sort of a hobby two to three weeks during the winter months at the most. And while he was trapping, he would generally bend over to place the traps. For the years 1990 to 1995, he did no trapping, nor has he been trapping since his surgery in January of 1997.
And further assume that Mr. Arends from time to time has done some fishing from a boat and some hunting of pheasant and deer but has never been injured while hunting or fishing.
End of question, Doctor.
A. The physical findings taken operatively demonstrated that he had evidence of chronic disease within his right knee. Chronic disease meaning that it’s — It wasn't one acute injury that caused the damage that we observed in surgery. Part of this, the chronic nature of his knee condition according to the patient, he had a lot of squatting and kneeling, kneeling on concrete at work. And, therefore, that would be a major contributing ... [clause of, or a contributing insult to his knee.

[¶ 26.] Additionally, Dr. Looby, who examined Arends, testified that Arends’ job and fall through the ice both contributed to the condition, but he could not opine that it was the major contributing factor. More importantly, Arends’ degenerative knee problems never kept him from working prior to his fall though the ice; he did not limp prior to the fall through the ice; and he did not seek medical attention for his knee problems prior to his fall through the ice. The equivocal medical testimony and lack of prior knee problems, in conjunction with Arends’ history of physically active pastimes, like car repair, hunting, fishing and trapping, make it, in my opinion, pure speculation to conclude that Arends’ job was a major contributing cause of injury after review of this record.

[¶ 27.] If we hold Arends’ job was the major contributing cause, we are, in my opinion, establishing a totally unacceptable liberal precedent. Any employee with a degenerative condition who has a history of manual labor, and who rock climbs, snow or water skis, or takes part in any other physically taxing activity will be able to fall back on alleged work-related physical wear and tear after a traumatic occurrence off the job. There is no doubt that doing repetitive manual labor will have some impact on one’s body as time passes, but as time passes, we all go through normal wear and tear degenerative processes. Just the fact that there is a degenerative condition does not justify imposing liability on workers’ compensation coverage. Therefore, I dissent on the coverage issue. It goes without saying that I concur with the majority that there was a good-faith dispute.

      . The following is a response by Dr. Seeman from his deposition on August 12, 1999:

        Q. Back to, when we were discussing the November of '96 injury, had he not fallen through the ice at that time ... it appears from all of his records he would have been working and never seen a doctor about the knee problems, or maybe mentioned it once or twice, but had not seen anybody for treatment. Had he not fallen through the ice in November of '96, you would agree that he probably could have kept working without restrictions at least for some time period?
      A. My opinion of Mr. Arends is that he was a good worker. He did whát he was told. He may have been having pain of a certain type, certain amount of stiffness when he worked. So it's hard — You know, I would say that if he hadn’t fallen through the ice and had that rather, you know, that rather kind of violent direct blow to his knee, he probably would have continued to do what he was doing. I think it would have eventually caught up with him with some type of injury, either at home or at work, but, you know, that’s hard to say. (emphasis added). [But later on it is not hard for him to say that work was a major contributing factor.]

      . Dr. Seeman’s second deposition stated the following:


author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2002 SD 59
    Carl HAYS, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 21973.
    Supreme Court of South Dakota.
    Argued Feb. 12, 2002.
    Decided May 15, 2002.

      Phillip 0. Peterson, Clay County Public Defender, Beresford, South Dakota, Attorney for petitioner and appellant.
    Mark Barnett, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] Carl Hays (Hays) appeals the denial of habeas corpus relief based on ineffective assistance of counsel. The habeas court held that counsel’s performance was not so deficient as to constitute ineffective assistance of counsel. We affirm.

FACTS AND PROCEDURE

[¶2.] On May 27, 1996, CJ’s Corner Bar, owned by Hays and his father, was destroyed by fire. Because there were indications that the fire was not accidental, law enforcement and fire investigators were called in. Eventually, Hays and his employee, Joseph Barr, were arrested for starting the fire. At trial, investigators testified that the fire had been deliberately started in a trashcan placed next to the coolers.

[¶ 3.] Hays had recruited Barr and Scott Sere, the bar’s manager, to help commit the arson. Barr testified that Hays wanted him to burn down the bar so that Hays could collect the $45,000 in insurance money. But, first, the three men removed forty cases of beer and replaced a large screen television with a smaller one. Hays also prepared an inventory in anticipation of submitting it to the insurance company for reimbursement after the fire. As a result of Barr’s and Sere’s testimony, as well as other evidence presented at trial, Hays was convicted on December 22, 1997, of Aiding, Abetting or Advising Third Degree Burglary; Aiding, Abetting or Advising Arson; and Conspiracy to Commit Arson.

[¶ 4.] Defense counsel was initially Sid Strange, but he later filed a motion to withdraw as counsel because Hays refused to communicate with him. During Strange’s representation, however, difficulties arose regarding Strange’s trial calendar. At Hays’ arraignment on December 27, 1996, Strange brought this problem to the court’s attention stating:

I should advise the court, I will probably be in trial in one circuit or another until mid-May, starting January 6 until probably the middle of May, on other matters. I’ve spoken with Mr. Hays about that and he has indicated a willingness to waive a part or all of the 180 days if that ever becomes a problem. If you want to take his waiver today.

The court, however, did not formally address the offer of waiver and left the matter of scheduling up to the attorneys.

[¶ 5.] Richard Johnson appeared on behalf of Strange and his law firm to request that new counsel be appointed. The State agreed to the request on the condition that the 180-day period be tolled while Hays completed the application for new court-appointed counsel. On March 20, 1997, Hays filed that application and the court designated Gary Sokolow to represent him. The next day, Sokolow made a motion for continuance and the 180-day rule was again discussed. The court, as before, was concerned with the lapse of time in light of the 180-day rule. Sokolow informed the court that his client was prepared to stipulate, along with Barr and his attorney, that the 180-day rule was “not an issue.”

[¶ 6.] On October 10, 1997, Sokolow filed ten motions on behalf of Hays. One motion requested a bill of particulars specifying the acts committed. Another moved for dismissal of Count I on the grounds that it was a legal and factual impossibility for a person to burglarize property in which he has a possessory interest. The former was withdrawn after fourteen days and the latter was denied after extensive argument.

[¶ 7.] Next, the State moved to join the trials of Hays and Barr. A hearing was conducted on November 16, 1997, and the motion was granted on November 24,1997. The matter was, however, abandoned when Barr subsequently entered into a plea agreement to testify against Hays. Soko-low filed more pretrial motions, including a motion to interview State witnesses and a motion to allow impeachment with prior convictions as to Sere and Ronald Anderson. No motion was filed to allow impeachment of Barr. The hearing on these motions was held December 9, 1997.

[¶ 8.] Before jury selection, both parties accepted the court’s preliminary jury instructions. Notably, the instructions did not include anything specifically dealing with accomplice testimony, even though the State had offered the standard instruction for that issue. The jury instructions did, however, include language regarding the jury’s power to weigh the credibility of the witnesses in light of their demeanor, reasonableness, memory, interest, bias or prejudice.

[¶ 9.] At the conclusion of the trial, Hays was found guilty on all three counts. He later pleaded guilty to being a habitual offender. Hays was given three concurrent sentences of ten years each, to be served consecutively with the sentence he was serving on unrelated charges in a different county.

[¶ 10.] Hays, then represented by James McCulloch, filed a direct appeal to this Court. Hays’ conviction was affirmed in Hays, 1999 SD 89, 598 N.W.2d 200. On July 25, 2000, Hays filed a petition for habeas corpus relief, alleging ineffective assistance of counsel. After an evidentia-ry hearing on January 18, 2001, the court filed a memorandum opinion denying habe-as relief. Hays now appeals, raising the following issues:

1. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to move for dismissal on the basis that the 180-day rule was violated.
2. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel did not make motions regarding the State’s alleged failure to plead or prove overt acts in furtherance of the conspiracy.
3. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to propose an accomplice jury instruction.
4. Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to cross-examine a key State witness.
5.Whether Hays is entitled to habeas relief for ineffective assistance of counsel because defense counsel failed to object to Hays’ testimony, regarding a prior attorney’s legal advice, elicited on cross-examination.

STANDARD OF REVIEW

[¶ 11.] Because a habeas claim is a collateral attack on a final judgment, our review is somewhat limited. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571 (citing Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606) (other citation omitted). Review of a habeas claim is not a substitute for direct review. Id. (citing Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191) (other citation omitted). The standard in such cases is well settled:

Habeas corpus can be used only to review[:] (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. Habeas corpus is not a remedy to correct irregular procedures, rather, habeas corpus reaches only jurisdictional error. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction. Further, we may not upset the habeas court’s findings unless they are clearly erroneous.

Bradley v. Weber, 1999 SD 68, ¶ 12, 595 N.W.2d 615, 619 (quoting Flute v. Class, 1997 SD 10, ¶ 8, 559 N.W.2d 554, 556 (other citations omitted)). The habeas applicant has the initial burden of proving entitlement to relief by a preponderance of the evidence. New, 1999 SD 125 at ¶ 5, 600 N.W.2d at 572 (citing Lien, 1998 SD 7 at ¶ 11, 574 N.W.2d at 607). We may affirm the ruling of the habeas court if it is “right for any reason.” Id. (citing Satter v. Solem, 458 N.W.2d 762, 768 (S.D.1990)) (additional citation omitted).

[¶ 12.] This Court’s standard for reviewing claims of ineffective assistance of counsel is also well settled.

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 [C]ourt, however, may substitute its own judgment for that of the circuit court as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.

Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142 (citations omitted).

ANALYSIS AND DECISION

[¶ 13.] In reviewing an ineffective assistance of counsel claim, this Court has stated:

The Sixth Amendment “right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). “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., 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93.

Rhines v. Weber, 2000 SD 19, ¶ 12, 608 N.W.2d 303, 307. Thus, this Court has adopted the two-part test set forth in Strickland. See Sund v. Weber, 1998 SD 123, ¶ 13, 588 N.W.2d 223, 225; Jones v. State, 353 N.W.2d 781, 784 (S.D.1984).

[¶ 14.] In order to prevail on an ineffective assistance of counsel claim, Hays must show: “1) that counsel’s performance was deficient; and 2) that the deficient performance prejudiced the defense. The test for prejudice is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Boykin v. Leapley, 471 N.W.2d 165, 167 (S.D.1991) (citation omitted). Furthermore, counsel is presumed competent, and that presumption must be overcome by applying the Strickland test. Ramos v. Weber, 2000 SD 111, ¶ 12, 616 N.W.2d 88, 92.

[¶ 15.] Whether Hays is entitled to habeas relief for ineffective assistance of counsel when defense counsel failed to move for dismissal on the basis that the 180-day rule was violated.

[¶ 16.] In order to determine whether counsel’s inaction was deficient and prejudicial, it is first necessary to determine the likelihood that such a motion would have been successful. If the motion could have been denied, then there is no showing of prejudice.

The “180-day rule”... is a rule of court, not a constitutional requirement, standing on separate legal footing than constitutional claims and requiring separate and distinct analysis. Violation of the “180-day rule” is not synonymous with violation of a constitutional right to a speedy trial.

State v. Erickson, 525 N.W.2d 703, 711 (S.D.1994) (internal citations omitted). While the statute provides that a violation of the rule “shall” result in a dismissal, so too, does it provide a multitude of exceptions and exclusions. For example, SDCL 23A-44-5.1 provides, in pertinent part:

(1) Every person indicted, informed or complained against for any offense shall be brought to trial within one hundred eighty days, and such time shall be computed as provided in this section. * * * (4) The following periods shall be excluded in computing the time for trial:
(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on competency and the period during which he is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions brought under § 28A-8-3; motions for a change of venue; and the time consumed in the trial of other charges against the defendant;
(b) The period of delay resulting from a continuance granted at the request or with the consent of the defendant or his counsel provided it is approved by the court and a written order filed. A defendant without counsel shall not be deemed to have consented to a continuance unless he has been advised by the court of his right to a speedy trial and the effect of his consent;
(c) The period of delay resulting from a continuance granted by the court at the request of the prosecuting attorney if the continuance is granted because of the unavailability of evidence material to the state’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date and provided a written order is filed;
(d) The period of delay resulting from the absence or unavailability of the defendant;
(e) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases the defendant shall be granted a severance so that he may be tried within the time limits applicable to him; and
(f) Other periods of delay not specifically enumerated herein, but only if the court finds that they are for good cause. A motion for good cause need not be made within the one hundred eighty-day period.
(5) If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the defendant shall be entitled to a dismissal with prejudice of the offense charged and any other offense required by law to be joined with the offense charged.

(emphasis added). Excluding those periods that could be tolled due to actions by the defense, we conclude that Hays was tried within the required 180-day period.

[¶ 17.] A brief chronology of events is outlined as follows:

• December 27, 1996 Arraignment; Strange offers to waive 180-day rule
• February 28,1997 Hearing on Strange’s motion to withdraw
• March 20,1997 Hays files application for new court-appointed counsel
March 21,1997 Sokolow moves for continuance and notifies court of stipulation to waive 180-day rule; State moves to join cases
March 28,1997 Joinder hearing
October 10,1997 Defense motions for bill of particulars, discovery and inspection, exclusion of character and reputation evidence, exclusion of testimony on pretrial matters, production of evidence favorable to Defendant, to dismiss Count I of the indictment, to strike prior convictions, and for Defendant to appear in street clothes
Hearing on defense motions • October 24,1997
State’s motion for testimony re: factual basis for expert opinion • November 21, 1997
State’s motion for other acts evidence, Admission of conviction of crime; order for joinder • November 24, 1997
Hearing on defense motions, continued • December 9,1997
Defense motion to interview witness, to use prior convictions of Anderson and Sere • December 5,1997
Jury Trial • December 22, 1997

Hays’ first appearance was December 27, 1996. He was tried on December 22, 1997. The habeas court properly excluded from calculation those periods attributable to motions and continuances requested by the defense and came to the conclusion that Hays was tried within 195 days. But it failed to exclude those periods of delay attributable to Hays by reason of his participation in other proceedings and to his unavailability, as is required by SDCL 23A-44-5.1(4)(a) and SDCL 23A-44-5.1(4)(d).

[¶ 18.] Hays’ first attorney moved to withdraw as counsel due to Hays’ refusal to communicate with him from December 27 to February 28. Thus, at a minimum, Hays was unavailable for a period of 63 days. While the record shows that the trial court attributed this lack of activity to Hays and properly tolled the period from February 28 to March 20 while Hays applied for new court-appointed counsel, the prior period of unavailability was not tolled. In State v. Webb, this Court stated “[w]here, as here, the delay in proceedings is attributable to the defendant’s unavailability, the 180-day limit is tolled.” 539 N.W.2d 92, 96 (S.D.1995) (citing 23A-44-5.1(4)(d)) (additional citation omitted). The period of unavailability here is directly attributable to Hays and the statute requires that it be properly tolled. This matter, alone, negates Hays’ claim that a motion for dismissal based upon SDCL 23A~44r-5.1 would have been granted.

[¶ 19.] Furthermore, Hays was simultaneously juggling three other proceedings while preparing for the trial at issue here. See SDCL 23A-44-5.1(4)(a). Hays insisted on testifying at trial, but stated that he did not want to say anything until his divorce became final, just two weeks before the trial started. Hays was also involved in a lawsuit over the video lottery machines that were destroyed in the fire. He was indicted on other criminal charges in Minnehaha County, for which he was later convicted in February of 1998. Thus, any delay between March 21, 1997, to December 8, 1997, resulting from these other proceedings should also have been properly tolled by the trial court. The delay resulting from Hays’ involvement in these proceedings easily put the trial date within the 180-day limit.

[¶ 20.] Hays argues, however, that no time could have been tolled by the trial court without a motion for good cause having been filed by the State. This is incorrect. The statute provides that a motion for good cause need only be filed if the State wishes to toll a period for reasons not otherwise enumerated within the statute. SDCL 23A-44-5.1(4)(f). See also State v. Shilvock-Havird, 472 N.W.2d 773, 775 (S.D.1991) (holding state’s failure to file motion to extend 180-day period did not require dismissal, as “motion-filing requirement is not absolute.”).

[¶21.] Finally, because the trial took place within the required statutory period, it is unnecessary to decide whether Hays waived the provisions of SDCL 23A-44-5.1. We will, however, discuss the issue for the purpose of clarification. Hays maintains that he did not waive his rights under this provision because the assertion did not come directly from his own mouth. We disagree. This Court has long understood that an attorney may waive the protection of SDCL 23A-44-5.1 on behalf of the client so long as it is done with the “concurrence of the defendant.” See State v. Batum, Jr., 494 N.W.2d 177, 179 (S.D. 1992) (quoting Shilvock-Havird, 472 N.W.2d at 776 (additional citation omitted)).

[¶22.] Hays knowingly and voluntarily waived the protections of the 180-day rule. See State v. Stepner, 1999 SD 40, ¶ 15, 590 N.W.2d 905, 908 (holding no formalities required to establish informed and voluntary waiver); Beynon, 484 N.W.2d at 902 (upholding waiver where defendant indicated he was “willing to let that ride beyond the 180 days” in order to get new court-appointed counsel). Hays’ failure to communicate with his first attorney resulted in Mr. Strange’s motion to withdraw. This, in ton, created the need for new counsel to be appointed. The court was concerned with the ninety days that had already passed when Sokolow, on March 21, 1997, immediately moved for a continuance. The court responded to Sokolow’s motion by stating that, not only was the inaction from December 27 until February 12 attributable to Hays’ failure to communicate with his attorney, but the time lapse from February 12 until the matter of scheduling was appropriately settled would count against Hays as well, in calculating the 180 days. Sokolow then replied that he had discussed the issue with his client and was preparing a stipulation to that effect. See State v. Martin, 493 N.W.2d 223, 226 (S.D.1992) (holding failure to sign stipulation not enough to invalidate informed and voluntary waiver). The parties clearly understood that Hays was waiving the 180-day time limit and the issue was never discussed again. See Stepner, 1999 SD 40 at ¶¶ 15-16, 590 N.W.2d at 908-09. The record shows that both of Hays’ trial attorneys, in Hays’ presence, offered and intended to waive the 180-day rule. While Strange’s initial offer of waiver may not have been effective, Sokolow’s later offer was.

[¶ 23.] Given the delay caused by Hays himself, as well as his informed and voluntary waiver, there is no indication that the trial court was required to grant a motion for dismissal. “This case reveals none of the prosecutorial abuse or ineffective scheduling practices the 180-day rule was intended to cure.” Webb, 539 N.W.2d at 96. Hays should not be given the benefit of any postponement he caused. “[D]elay is a defendant’s best lawyer; where a defendant assents to a period of delay and later attempts to take advantage of it, courts should be loathe to find a violation of an accused’s speedy trial rights.” Beynon, 484 N.W.2d at 903 (quoting State v. Cross, 468 N.W.2d 419, 420 (S.D.1991)) (other citation omitted). Where the record does not show that the motion to dismiss would have been successful, there is no prejudice. Hays has failed to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Boykin, 471 N.W.2d at 167. Therefore, Hays is not entitled to habeas relief for ineffective assistance of counsel.

Conclusion

[¶ 24.] Hays’ remaining claims of ineffectiveness are a meritless litany of excuses, many of which center upon his lack of candor with his own attorney. We deem them unworthy of discussion. While it may be true that there were instances where trial counsel’s assistance fell below normal standards, Hays has failed to prove that any of those instances resulted in prejudice. Hays is only guaranteed a fair trial, not a perfect one. Davi v. Class, 2000 SD 30, ¶ 51, 609 N.W.2d 107, 118. Accordingly, we affirm the decision of the habeas court.

[¶ 25.] AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 26.] SABERS, Justice, dissents.

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

SABERS, Justice

(dissenting).

[¶ 28.] I dissent on Issue 1. This majority opinion puts the final nail in the coffin of the 180-day rule. It effectively guts the 180-day rule and makes it a rule to be ignored.

[¶ 29.] “SDCL 23A-44-5.1 creates statutory rights in addition to a defendant’s constitutional right to a speedy trial.” State v. Hoffman, 409 N.W.2d 373, 374 (S.D.1987). The 180-day rule “serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society[J” State v. Cross, 468 N.W.2d 419, 420 (S.D.1991) (quoting Commonwealth v. Brocklehurst, 491 Pa. 151, 420 A.2d 385, 387 (1980)). The purpose of the rule “is to further the prosecution of cases in an effective manner and to afford defendants a right to have their case tried within a reasonable time.” Cross, 468 N.W.2d at 422 (Henderson, J., concurring).

[¶ 30.] “Proof by the defendant that the 180 days has run establishes a prima facie case for dismissal. Absent a showing of good cause delay by the State, the case must be dismissed.” State v. Cooper, 421 N.W.2d 67, 69 (S.D.1988) (emphasis in original). See also State v. Hoffman, 409 N.W.2d 373, 375 (S.D.1987) (holding that SDCL 23A-44-5.1 “requires a disposition of criminal matters within 180 days lacking good cause for delay”). The burden is on the State to show good cause. Cooper, 421 N.W.2d at 71 (citing Hoffman, 409 N.W.2d at 375).

[¶ 31.] Hays was arraigned on December 27, 1996, and tried on December 22, 1997. Since this is 5 days short of a year maybe we should change the name of the rule to the 365-day rule. The majority opinion’s chronology clearly demonstrates that more than 180 days passed between Hays’ initial appearance and the date of trial but excuses the delay as attributable to Hays. However, in reaching this conclusion, the majority opinion’s liberal construction of the 180-day rule affords great deference to the State in calculating the periods to be tolled. The majority opinion even goes beyond what the trial court did and finds more time which it claims can be tolled and attributed to intentional delay by Hays. The result is inconsistent with the purpose of the 180-day rule, a speedy trial.

[¶ 32.] The 180-day rule was designed “to prevent delay, procrastinations, and dilatory practices.” State v. Hetzel, 1999 SD 86, ¶ 19, 598 N.W.2d 867, 870 (Sabers, J., dissenting) (citing Hoffman, 409 N.W.2d at 376 (Wuest, CJ., concurring specially)). It is apparent that trial courts have failed to enforce this rule and have instead stretched the definition of good cause for delay too far. The majority opinion condones the acts of the State and the trial court and further erodes the already battered 180-day rule. As stated, it effectively guts the 180-day rule and, by liberal interpretation, turns it into a 365-day rule.

      . The bar was also known as the Seven Mile Station and the Riverside Station.

      . Hays had first asked Sere to start the fire. When Sere refused, Hays recruited Barr, an employee from Hays' canopy business.

      . For a more detailed recitation of the facts underlying Hays’ conviction, see State v. Hays, 1999 SD 89, 598 N.W.2d 200.

      . Subtracting 63 days from the 195 days calculated by the habeas court leaves the time from first appearance to trial at 132 days, well within the 180-day period.

      . The State bears the burden of proving any waiver was the product of a knowing and voluntary decision. State v. Beynon, 484 N.W.2d 898, 902 (citations omitted).

      . Subsequent actions indicate Strange’s initial offer of waiver was not deemed effective by either party or the court because the time limit continued to be an issue. But when Mr. Sokolow moved for a continuance, the court agreed only after Sokolow informed the court of the stipulation. Therefore, the court deemed the 180-day rule to still be in effect until the time of Sokolow’s appearance on March 21.