author: YANDE WALLE, Chief Justice. MARING, Justice,

text:
    2008 ND 54
    Heidi Lee NIEMANN, n/k/a Heidi Lee Wolf, Plaintiff and Appellee v. Lyle Thomas NIEMANN, Defendant and Appellant.
    No. 20060332.
    Supreme Court of North Dakota.
    March 20, 2008.

      Alan M. McDonagh, Carter McDonagh, P.L.L.P., Grand Forks, ND, for plaintiff and appellee.

      Darcie M. Einarson, Einarson Law Office, P.C., Grafton, ND, for defendant and appellant.
   YANDE WALLE, Chief Justice.

[¶ 1] Lyle Niemann appealed from a district court order denying his motion for change of custody and an order denying his motion for reconsideration. We reverse and remand for further proceedings in accordance with this opinion.

I.

[¶ 2] In 1998, Lyle Niemann and Heidi Wolf divorced and Heidi Wolf was granted custody of their son and daughter. Both remarried. Lyle Niemann sought a change of custody in 2001 but his motion was dismissed without a hearing. By agreement in June 2004, their daughter moved in with Lyle Niemann. In August 2005, Lyle Niemann brought a motion to gain custody of their son and the district court ordered an evidentiary hearing.

[¶ 3] At a June 2006 pretrial conference, the district court limited each party to two hours to present their case. Counsel for both sides objected. The parties, prior to the hearing, stipulated to the physical change in custody of their daughter from Heidi Wolf to Lyle Niemann. However, the parties could not agree on a custodial arrangement for their son.

[¶ 4] In support of his motion for change of custody, Lyle Niemann filed affidavits and submitted other documents which he asserted supported his allegations that 1) his son witnessed domestic violence in Heidi Wolfs home; 2) his son witnessed alcohol abuse by Heidi Wolf, her husband and their friends at the Wolf residence; 3) Social Services was called to the Wolf home on several occasions; 4) his son’s education had suffered because of Heidi Wolfs failure to do homework with him and provide structure; and 5) his son witnessed arguments, swearing and inappropriate language at the Wolf household. Heidi Wolf countered with affidavits and other evidence asserting 1) there is no domestic violence in her home; 2) their daughter made up lies in her attempt to live with her father and due to her dislike of Heidi Wolfs new husband; 3) Heidi Wolf helps her son with his homework though she does have trouble getting him to school on time; and 4) there is no alcohol abuse in her home.

[¶ 5] A custody investigator was appointed and interviewed Lyle Niemann, Heidi Wolf, their spouses, the two children and several friends and family members of both parties. The custody investigator recommended in her affidavit and at the hearing that custody of the son be awarded to Lyle Niemann, citing concerns about domestic violence, alcohol abuse, lack of structure and arguments with vulgar, inappropriate language in front of the children at the Wolf home.

[¶ 6] The domestic violence concerns stem from two alleged incidents. First, in June 2002, the daughter spoke with a social worker at her school about a fight between her mother and stepfather. According to the daughter, after Heidi Wolf locked her keys in her car, her husband yelled and swore at her in front of the children, then “trashed” the house when they arrived home. The daughter stated she wanted to call the police and her stepfather chased them when they left the house.

[¶ 7] The second incident occurred in May 2005, when the children indicated to their school social worker that their stepfather came home drunk, yelled, swore and pushed their mother. A report was filed with Social Services. The custody investigator interviewed several of the Wolfs’ friends regarding the incident. Two friends said Heidi Wolf and her husband were “in each other’s faces” and yelling but saw no physical violence. A third friend said he took his child and Heidi Wolfs son out of the house and was told by Heidi Wolfs husband to leave. The parties’ daughter said she saw her stepfather yell, swear and push her mother. She said she grabbed her half-brother and snuck out of the house through a construction area.

[¶ 8] Heidi Wolf admits she left with the children that night and her husband admitted to yelling, swearing and name-calling when angry. Heidi Wolf said she left the confrontation rather than dealing with it. She denied any domestic violence but admitted to the involvement of Social Services. A Social Services note indicates the case was closed after Heidi Wolf said she was leaving her husband and would obtain counseling for herself and the children. Heidi Wolf never obtained such counseling and disputes Social Service’s note.

[¶ 9] Witnesses at the hearing on July 31, 2006, included the parties, their daughter, their spouses, two former teachers of their son and the custody investigator. The judge, ruling from the bench, found no material change of circumstances and denied Lyle Niemann’s motion. A subsequent motion for reconsideration was also denied. Lyle Niemann argues the district court was clearly erroneous in finding no material change of circumstances present to warrant a change of custody. He also argues the district court abused its discretion in limiting his case presentation to two hours.

II.

[¶ 10] A court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds either a) on the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties, and b) modification is necessary to serve the best interest of the child. N.D.C.C. § 14-09-06.6(6). The two-step test is whether there has been a material change of circumstances, and if so, whether a custody change serves the child’s best interests. Id. A district court decision to change custody is a finding of fact subject to a clearly erroneous standard of review. Kelly v. Kelly, 2002 ND 37, ¶13, 640 N.W.2d 38.

[¶ 11] A finding of fact is clearly erroneous if induced by an erroneous view of the law, if no evidence supports it, or if the reviewing court, after reviewing the entire evidence, is left with a definite and firm conviction a mistake has been made. Burns v. Burns, 2007 ND 134, ¶ 9, 737 N.W.2d 243 (citation omitted). Under the “clearly erroneous” standard of review, we do not reassess evidence or credibility of witnesses nor retry a custody case nor substitute our judgment for a district court’s decision merely because we might have reached a different result. Id. A choice between two permissible views of the weight of the evidence is not clearly erroneous and our deferential review is especially applicable for a difficult child custody decision involving two fit parents. Id.

A. Material Change of Circumstances

[¶ 12] A material change of circumstances includes important new facts unknown at the time of the prior custodial decree. Kelly, at ¶ 17. A material change of circumstances can occur if a child’s present environment may endanger the child’s physical or emotional health or impair the child’s emotional development. Id. Improvements in a non-custodial parent’s situation, coupled by a general decline in the condition of the children with the custodial parent over the same period may constitute a significant change in circumstances. Kelly, at ¶20. The party seeking to modify the custody order bears the burden of proof. N.D.C.C. § 14-09-06.6(8).

[¶ 13] Lyle Niemann argues the incident iii May of 2005 was domestic violence and constitutes a material change of circumstances. Section 14-07.1-01, N.D.C.C., defines domestic violence to include “physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense.” The district court stated, “The court does not find that credible domestic violence or a pattern of domestic violence exists.” But the language used by the district court suggests the domestic violence must rise to the level of the standard used to invoke the domestic violence presumption in N.D.C.C. § 14-09 — 06.2(j) for purposes of determining whether a material change of circumstances occurred. Under that section the presumption is invoked if the court finds credible evidence that domestic violence has occurred and there exists one incident of domestic violence resulting in serious bodily injury, or “there exists a pattern of domestic violence within a reasonable time proximate to the proceeding.” Id.

[¶ 14] A court does not reach the consideration of the best interest factors, which include the domestic violence presumption, unless the court first finds a significant change in circumstances. Anderson v. Hensrud, 548 N.W.2d 410, 413 (N.D.1996). If domestic violence exists under the definition in N.D.C.C. § 14-07.1-01 but does not rise to the level necessary to invoke the presumption contained in. N.D.C.C. § 14 — 09—06.2(j), there may nevertheless be a change of circumstances which may justify a change in custody under N.D.C.C. § 14-09-06.6. Hurt v. Hurt, 2001 ND 13, ¶ 10, 621 N.W.2d 326 (“Evidence of domestic violence which does not trigger the presumption, nonetheless, remains one of the best interest factors to be considered by the trial court.”). Insofar as the district court believed there must be serious bodily injury or a pattern of domestic violence to justify a change in custody, we conclude the district court made a mistake of law by applying the standard necessary to invoke the domestic violence presumption to determine whether a change in circumstances justifying a change in custody occurred.

[¶ 15] The incident in May 2005 comports with the definition of domestic violence. By choosing the term “family or household member” when defining domestic violence in N.D.C.C. § 14-07.1-01, the legislature intended that courts presume that any domestic violence negatively impacts the best interests of the children. Hensrud, at 413 (citation omitted). Domestic violence is not confined to instances where the parent is the direct victim of the violence. Id. Even if Heidi Wolf did not fear imminent physical harm during the fight with her husband, it is obvious the children were afraid. The parties’ son was removed from the house by his stepfather’s friend. Their daughter’s fear of imminent physical harm is evident in her testimony regarding that night and in her current refusal to have contact with her stepfather.

[¶ 16] The new split-custody arrangement also appears to be a material change in circumstances. After living together with Heidi Wolf since the divorce in 1998, the children were separated when the daughter went to live with Lyle Niem-ann in 2005. Although split custody is not flatly prohibited, as a general rule we do not look favorably upon separating siblings in custody cases. Leppert v. Leppert, 519 N.W.2d 287, 291 (N.D.1994). This Court has approved split-custody cases where it was determined by the trial court to be desirable. Freed v. Freed, 454 N.W.2d 516, 519 (N.D.1990).

[¶ 17] In the Freed case, this Court upheld a split-custody arrangement where there was a large age difference between the children. Here, there is only a three-year age difference between the children. Further, the daughter testified that she often babysat her brother. Also, in the Freed case the parents’ homes were only a few miles apart while the parties in this case live farther apart. There was a rather liberal visitation arrangement in the Freed case but that is not the case here.

B. Best Interest Analysis

[¶ 18] Lyle Niemann argues the language of the district court order suggests the district court went through the best interest analysis and found in favor of him. The judge stated in his ruling from the bench, “If this was first round, Lyle would get custody.” However, in a best interest analysis, the trial court’s findings of fact should be stated with sufficient specificity to enable us to understand the factual basis for the court’s decision. Molitor v. Molitor, 2006 ND 168, ¶ 6, 718 N.W.2d 13. There are not sufficient findings of fact in the record regarding the best interest analysis to conclude the district court found in favor of Lyle Niemann on this part of the test.

III.

[¶ 19] Lyle Niemann also argues the trial court abused its discretion in limiting the parties to two hours within which to present evidence at the hearing. A district court “has broad discretion over the conduct of a trial or hearing, including limitations on the number of witnesses.” Burns v. Burns, 2007 ND 134, ¶ 7, 737 N.W.2d 243 (citation omitted). A district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when its decision is not the product of a rational mental process by which the facts of the record and law relied upon are stated and considered together for the purpose of achieving a reasonable determination, or when it misinterprets or misapplies the law. Id.

[¶ 20] The parties were notified in advance of the time limitation. Both sides had two hours to present their case but the district court did not limit the number of affidavits and stipulations the parties could make, evidenced by the numerous affidavits found in the record. We conclude the district court did not abuse its discretion in limiting the parties to two hours within which to present their case. However, the trial court may receive additional evidence and allow additional time on remand.

IV.

[¶ 21] We reverse and remand for further proceedings in accordance with this opinion.

[¶ 22] CAROL RONNING KAPSNER, and DALE V. SANDSTROM, JJ., concur.

MARING, Justice,

dissenting in part and concurring in part.

[¶ 23] I respectfully dissent from parts I and HA. I would affirm the order of the trial court in its entirety.

[¶ 24] On August 11, 2005, Lyle Niem-ann moved for change of custody to establish him as the custodial parent of both of the parties’ minor children and not just his son as the majority states. The Court found a prima facie case had been established based upon the fact that the daughter had resided with the father, Lyle Niemann, for more than one year. An evidentiary hearing was scheduled and held July 31, 2006. Prior to the hearing, the parties stipulated to the change in the physical custody of the minor daughter from Heidi Wolf to Lyle Niemann. Therefore the only custody issue before the trial court was whether there should be a change in the custodial arrangement for the parties’ minor son.

[¶ 25] The record indicates that Lyle Niemann moved to change custody previously on July 25, 2001. In 2001, Lyle Niemann alleged in his affidavit that Heidi Wolf had been remarried to Vance Wolf; that Vance Wolf and Heidi Wolf were having keg parties and drinking excessively; and that the minor children were abused emotionally and physically by Vance Wolf and neglected by Heidi Wolf. Both parties stipulated to have the issues determined by the court without hearing on August 2, 2001. The trial court held that Lyle Niem-ann had not established a prima facie case for an evidentiary hearing and denied his motion on October 19, 2001. The relevant inquiry is whether there has been a significant change in circumstances since 2001.

Section 14-09-06.6(6), N.D.C.C., provides:

The court may modify a prior custody order after the two-year period following the date of entry of an order establishing custody if the court finds:
a. On the basis of facts that have arisen since the prior order or which were unknown to the court at the time of the prior order, a material change has occurred in the circumstances of the child or the parties; and
b. The modification is necessary to serve the best interest of the child.

[¶ 26] For the purpose of a motion to modify custody, a material change in circumstances is defined as important new facts unknown to the court at the time of the prior custody order. Kelly v. Kelly, 2002 ND 37, ¶ 17, 640 N.W.2d 38.

[¶ 27] I disagree with the majority’s statement of the “two-step” test. The statute specifically requires a material change in the circumstances of the child or the parties and that “modification is necessary to serve the best interest of the child.” N.D.C.C. § 14 — 09—06.6(6)(b) (emphasis added); see Kelly, 2002 ND 37, ¶ 44, 640 N.W.2d 38 (Maring, J., concurring). I also disagree with the majority’s implication that the trial court misapplied or misapprehended the law with regard to domestic violence. The trial court considered the mother Heidi Wolfs version of what happened in May 2005 and the minor daughter’s version and found the mother’s explanation credible. In the trial court’s September 20, 2006, Order Denying Motion for Reconsideration, the court stated:

This incident did not rise to the level of domestic violence but rather is an isolated domestic disagreement. While such disagreements and conduct should be avoided, it surely is not the basis for a material change of circumstances.

In the parties’ Stipulation to Correct and Supplement the Record, the trial court’s findings included a sentence left out by the majority:

If there is no domestic violence, and only strong words, that is not good, but the incidents in 2002 and then in 2005 don’t rise to the level of domestic violence as we recognize it The court does not find that credible domestic violence or a pattern of domestic violence exists.

(Emphasis added.) This Court has never held that loud words or domestic disagreements amount to domestic violence.

[¶ 28] The trial court did not find any credible evidence of domestic violence. It did not find “physical harm, bodily injury, sexual activity compelled by physical force, assault, or the infliction of fear of imminent physical harm, bodily injury, sexual activity compelled by physical force, or assault, not committed in self-defense, on the complaining family or household members.” See N.D.C.C. § 14-07.1-01(2).

[¶ 29] The majority makes a finding that the testimony of the daughter is evidence of the daughter’s fear of imminent physical harm. The daughter said in her affidavit about the incident in May 2005, “It was really scary.” In her testimony, she said she was afraid of Vance Wolf and when asked why she said, “[h]e just scares me.” There is no evidence she was in fear of imminent physical harm, and the trial court did not make any such finding. The majority is reweighing the evidence, thereby ignoring precedent and applying a de novo standard of review. This Court has held that when two parties present conflicting testimony on issues of fact, we will not redetermine the trial court’s findings based upon that testimony. Roberson v. Roberson, 2004 ND 203, ¶ 10, 688 N.W.2d 380. Here, the trial court found the mother’s version of what occurred credible and impliedly did not find the testimony of the daughter that there was physical violence credible.

[¶ 30] Although the majority is correct that we have held that domestic violence does not need to be directed to a child to have a harmful effect on the child, there is no finding of domestic violence in this case, only a loud and strongly worded domestic disagreement. Such a finding is not a material change in circumstances necessitating a modification of custody in the best interest of the minor son, who was the only child left at issue.

[¶ 31] The majority, at ¶ 16, goes on to find “the new split-custody arrangement also appears to be a material change in circumstances” as a matter of law. The parties stipulated to this split after the parties’ minor daughter stated a preference to live with her father. If this amounts to a material change as a matter of law, it will discourage parties from settling custody disputes such as this. There is little, if any, evidence in this record about the relationship between the minor daughter and the minor son. What is there is lacking in detail and substance. There is no evidence they spend a substantial amount of time together or share any activities or interests. The trial court specifically found in its September 5, 2006, Order Denying Defendant’s Motion to Modify Custody:

2. [Lyle Niemann] has failed to show a significant change in circumstances relating to the following areas: ... (5) the relationship between [the minor daughter] and [the minor son] to justify an analysis of the best interest of the child factors under North Dakota Century Code Section 14-09-[0]6.2.

Again this Court is reweighing evidence and second-guessing the trial court’s credibility determinations. The trial court’s order is not clearly erroneous. I respectfully dissent and would affirm the order in its entirety.

[¶ 32] Daniel J. Crothers


source: Caselaw Access Project

author: KONENKAMP, Justice. GILBERTSON, Chief Justice

license: Public Domain

text:
    2008 SD 14
    Geoffery E. BALDRIDGE, Petitioner and Appellant, v. Douglas WEBER, Warden of the South Dakota State Penitentiary, Respondent and Appellee.
    No. 24521.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 6, 2007.
    Decided Feb. 20, 2008.

      Susan Shay Brugger of Brugger Law Office, Brookings, SD, Attorney for petitioner and appellant.
    Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, Attorneys for respondent and appellee.
   KONENKAMP, Justice.

[¶ 1.] As part of a plea agreement, Geoffrey E. Baldridge would plead no contest to a drug charge and cooperate with law enforcement officials in their investigation of criminal activity and reveal his sources, contacts and associates involved with illegal substances. The State promised, among other things, not to bring additional charges and to inform the court at sentencing of the extent and level of Baldridge’s cooperation. At sentencing the State said nothing, and Baldridge was sentenced to the maximum term of years. Baldridge did not appeal, but he later brought a petition for habeas relief. He asserted that his defense counsel was ineffective because counsel failed to (1) appeal his sentence, (2) file a motion to suppress, and (3) object when the State breached the plea agreement. The circuit court denied relief. Because the State breached an express term of the plea agreement and counsel was ineffective in bringing it to the attention of the court, we reverse and remand for resentencing.

Background

[¶ 2.] On December 20, 2003, Baldridge was stopped for speeding while driving on Interstate 29 through Codington County. He was on parole at the time. Riding in the car with him was his girlfriend. The South Dakota Highway Patrol trooper searched Baldridge’s vehicle incident to arrest, and found syringes under the passenger seat and a small amount of marijuana on Baldridge’s girlfriend. She claimed she obtained the marijuana from Baldridge, but later recanted and said the marijuana belonged to her. Baldridge was charged with speeding, no insurance, no driver’s license, untitled vehicle, and distribution of less than an ounce of marijuana.

[¶ 3.] Baldridge was transported to the Codington County Jail, where he consented to a urinalysis. The trooper field tested the UA. It was negative. Thereafter, the sample was sent to the State Health Lab in Pierre. The sample tested positive for methamphetamine. Baldridge was returned to prison for violating his parole because he drove without a license, purchased a vehicle without his parole officer’s permission, and left his prescribed jurisdiction also without permission.

[¶ 4.] Baldridge was indicted in Cod-ington County on January 26, 2004, for possession of methamphetamine and for distribution of less than one ounce of marijuana. Attorney Tracy Niemann was appointed to represent him. Plea negotiations ensued. On the advice of counsel, Baldridge entered into a plea agreement. He would plead no contest to the possession count and agree to cooperate with law enforcement officers in their investigation of ongoing criminal activities, including those he had participated in. In turn, the State promised to grant him immunity for all other drug-related crimes disclosed during his cooperation, refrain from filing additional charges, and dismiss any other charges. The State also promised to inform the sentencing court of the extent and level of Baldridge’s cooperation with law enforcement investigators.

[¶ 5.] At Baldridge’s arraignment, the court discussed the terms of the plea agreement with him. The court asked Baldridge if he was coerced into accepting the agreement, whether he understood that he faced a possible maximum sentence of ten years and a $10,000 fine or both, and whether he understood what the plea agreement entailed and that no promises were made other than those stated in the agreement. Baldridge responded that he understood the plea agreement and that no promises were made other than those stated. He also said he was aware of the possible maximum sentence and was not coerced to enter into the agreement. Bal-dridge pleaded no contest to possession of methamphetamine.

[¶ 6.] To comply with the cooperation portion of the plea agreement by turning over names of people involved with illegal drugs, Baldridge told Attorney Niemann that “I don’t know many people anymore. I know people that do it, but I don’t know anything, so don’t even ask me to do a controlled buy.” According to Niemann, however, Baldridge said that “he had some people that he had known in the Aberdeen area that he could provide DCI information to, and he felt comfortable doing that, and he ... had written a list ... with the names of the people in the Aberdeen area.”

[¶ 7.] Later, Attorney Niemann “came back and told [Baldridge], well, [the Cod-ington County State’s Attorney] only wants people in Watertown.” In response, Baldridge said, “I am not from Watertown, so I don’t really know anybody.” Nothing in the plea agreement limited acceptable cooperation to information about drug activity only in Watertown. Baldridge called his girlfriend, who was apparently involved with the local drug culture, and she gave him some Watertown names.

[¶ 8.] Baldridge then debriefed with a DCI agent in the jail. Attorney Niemann introduced them, but did not remain for this law enforcement interview with his client. Baldridge gave the agent the information he obtained from his girlfriend. He also revealed the names of the Aberdeen people who Baldridge had direct knowledge of. Nothing in the record suggests that Baldridge was asked to participate in a controlled drug buy or a lie detector examination. More importantly, there is no evidence that the DCI found Baldridge’s information untruthful or his cooperation insufficient.

[¶ 9.] The court ordered a presentence investigation. On May 19, 2004, Baldridge was sentenced. Attorney Niemann spoke on Baldridge’s behalf, and Baldridge also spoke. The State made no comment on the level of Baldridge’s cooperation, and the presentence investigation report did not contain any discussion of Baldridge’s level of cooperation. Aside from mentioning to the circuit court at sentencing that his client “did comply with [the] plea agreement,” Niemann never mentioned the cooperation and debriefing Baldridge gave to the DCI. Further, Niemann never requested that the State’s Attorney comply with the plea agreement by informing “the sentencing judge of the extent and level of [Baldridge’s] cooperation with law enforcement officials in fulfilling the terms of [the] plea agreement,” nor did Niemann object when the State’s Attorney failed to do so.

[¶ 10.] In imposing the maximum penitentiary term, the court considered Bal-dridge’s criminal record. Given Bal-dridge’s “prolonged involvement in the drug culture,” his prior convictions, and his failure to learn from his past, the judge concluded that he was a public risk. Therefore, the court imposed “a term of 10 years in the state penitentiary ... together with $55 in court costs and an order to repay [his] court-appointed attorneys fees.” A judgment of conviction was entered on May 19, 2004.

[¶ 11.] Baldridge claims that after his sentencing he called Niemann at his office to tell him that he wanted to appeal. According to Baldridge, Niemann would not take his call. Baldridge then enlisted help from his parole revocation attorney, Jason Shanks, to tell Niemann that he wanted to appeal his sentence. Attorney Shanks wrote to Niemann on May 20, 2004, stating that Baldridge “indicated to me his desire to appeal the length of his sentence”; that he “attempted to contact your office and speak with you regarding an appeal, however, he was unable to get through to you”; and that “Accordingly, I indicated that I would contact you via correspondence to let you know of his intentions and desires pertaining to his sentence number.”

[¶ 12.] On May 24, 2004, Niemann wrote to Baldridge informing him that he had “now completed [the] duty of representation as your court appointed attorney.” Niemann told Baldridge that he had “only thirty (30) days, which would be approximately June 18, 2004,” to appeal his sentence. He also told Baldridge that he had “no grounds for a successful appeal.” Niemann’s advice was “not to file an appeal at this time.” And, if Baldridge disagreed with Niemann, Niemann wrote, “please advise me in writing as soon as possible so that the June 18, 2004 deadline is met.” Baldridge did not contact Niem-ann or make any other effort to appeal his sentence.

[¶ 13.] Baldridge petitioned for a writ of habeas corpus on September 7, 2004. He alleged that his due process rights were violated by the ineffective legal assistance he received from Niemann. Specifically, Baldridge claimed that Niemann (1) failed to move to suppress the UA, (2) failed to file a direct appeal, (3) did not adequately inform him of the effect of a no contest plea, and (4) did not ensure that the plea agreement was followed. He also claimed that his sentence was cruel and unusual, in violation of the Eighth Amendment.

[¶ 14.] At the evidentiary hearing, Bal-dridge presented three witnesses: himself, Niemann, and Tom Smith, a forensic chemist at the State Health Lab in Pierre. Smith testified that he was not aware of what field tests were conducted on Bal-dridge’s UA by the trooper. However, he stated that the test used at the lab on Baldridge’s UA is highly reliable and “there are no false positives.” He explained that there are procedures in place for establishing the chain of custody of a sample and that they are generally followed, but could not testify to Baldridge’s sample in particular. According to Smith, Baldridge’s UA had been destroyed because no one asked for it to be retested after twelve months.

[¶ 15.] Attorney Niemann detailed his experience in handling criminal cases. He began law practice in 1995, and his first work involved court appointments. He also took many public defender appointments for several years. Then, in 2000, Niemann changed employment, but still took criminal appointments for many counties. Niemann indicated that when the firm accepted a public defender contract for Codington County, he handled the majority of those appointments.

[¶ 16.] Niemann testified that he explained to Baldridge that the State’s Attorney had a policy of bringing additional charges when a case was brought to trial. He also discussed with Baldridge his claim that the UA had been tampered with. According to Niemann, he researched Bal-dridge’s claims and discussed them with a senior partner. They both concluded that Baldridge’s claims would not support a motion to suppress. He informed Bal-dridge of this and told him that because the State’s Attorney would be inclined to bring more charges if the matter went to trial, Baldridge should consider a plea agreement.

[¶ 17.] Niemann testified that when he went over the plea agreement with Bal-dridge, he specifically informed Baldridge that he faced a possible maximum sentence of ten years and that whatever sentence he would receive was at the sole discretion of the judge. Baldridge signed a form indicating he understood this. After Bal-dridge was sentenced, Niemann said that he never received a call and that Baldridge never wrote or called after Niemann sent the May 24 letter indicating his representation was complete. He also testified that he was not aware of the letter from Attorney Shank, even though it turned out to be in Baldridge’s file at Niemann’s office.

[¶ 18.] In his testimony, Baldridge claimed that his UA had been tampered with because he had not used methamphetamine since 1999. He said that he told Niemann that the trooper altered his sample because it tested negative before it tested positive. Baldridge also said that he insisted on a jury trial because he was innocent, but Niemann told him that he would not get as harsh a sentence if he pleaded no contest. According to Bal-dridge, Niemann told him he would be sentenced to six months to a year. Bal-dridge said he was unaware that the sentence was up to the judge and he thought the State would recommend a lighter sentence.

[¶ 19.] The habeas court found no violation of Baldridge’s due process rights and no ineffective assistance of counsel. It explained that Niemann’s decision not to file the motion to suppress was made after investigation and in consideration of the merits of the claim. Moreover, although Baldridge’s parole violation attorney wrote to Niemann about Baldridge’s desire for a direct appeal, Niemann wrote Baldridge and informed him that his representation was complete. Niemann explained to Bal-dridge his right to appeal and the time he had to do so, and Baldridge did nothing.

[¶ 20.] The court also found that the State did not fail to fulfill the terms of the plea agreement. According to the court, “The problem is, Baldridge claimed to know nothing of any help, so there was nothing for Niemann to inform the judge of. The claim is thus without merit.” Finally, the court found Baldridge’s sentence to be constitutional: the maximum sentence was imposed in large part because of Baldridge’s extensive criminal history. A ten-year sentence fit within the legislative scheme and was not grossly disproportionate. Accordingly, the court denied Bal-dridge’s petition for habeas relief. Bal-dridge appeals.

Standard of Review

[¶ 21.] We apply the following standards of review in this case:

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

Rodriguez v. Weber, 2000 SD 128, ¶ 28, 617 N.W.2d 132, 142 (citing Meinders v. Weber, 2000 SD 2, ¶ 42, 604 N.W.2d 248, 264 (quoting Sund v. Weber, 1998 SD 123, ¶ 14, 588 N.W.2d 223, 225) (other citations omitted)).

Because a petition [for a writ] of habeas corpus collaterally attacks a final judgment, our review is limited. Hays v. Weber, 2002 SD 59, ¶ 11, 645 N.W.2d 591, 595. Habeas review is not a substitute for a direct appeal. Lien v. Class, 1998 SD 7, ¶ 10, 574 N.W.2d 601, 606. As a general matter, habeas corpus is used to review only: (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) whether, in certain cases, a defendant was deprived of basic constitutional rights. New v. Weber, 1999 SD 125, ¶ 5, 600 N.W.2d 568, 571-72. Findings of fact are reviewed under the clearly erroneous standard. Id.

Moeller v. Weber, 2004 SD 110, ¶ 10, 689 N.W.2d 1, 6.

Analysis and Decision

[¶ 22.] Baldridge first asserts that defense counsel was ineffective because he failed to seek suppression of the results of the UA. After Baldridge told Niemann of his concerns regarding the authenticity of the UA results, Niemann researched the issue, examined the police reports, and weighed Baldridge’s claim of what happened. He learned that the testing done in the State lab would be regarded as more reliable. He also believed that if the case proceeded to a jury trial, the prosecutor would be more apt to bring additional charges. He spoke with his senior partner about Baldridge’s claims that the police tampered with his UA, and that it tested negative before positive. Niemann concluded that based on his research and his discussion with his partner that the issue would not support a successful motion to suppress. He advised Baldridge that the optimal choice would be to enter into a plea agreement.

[¶ 23.] Baldridge bears the burden of establishing that under all the circumstances defense counsel’s decision not to bring a motion to suppress was an unsound strategy. See Weddell v. Weber, 2000 SD 3, ¶ 32, 604 N.W.2d 274, 282-83. We will not second-guess the strategic decisions of counsel. Id. (quoting Loop v. Class, 1996 SD 107, ¶ 18, 554 N.W.2d 189, 192 (quoting Aliberti v. Solem, 428 N.W.2d 638, 641 (S.D.1988))). See also Rodriguez, 2000 SD 128, ¶ 28, 617 N.W.2d at 142.

[¶ 24.] The habeas court found that “[t]here is not enough evidence in the record to establish either deficient performance or prejudice!.]” Because Bal-dridge submitted to the UA voluntarily and the lab expert testified that the test conducted by the State Health Lab would never show a false positive, the court found that the success of a motion to suppress would be unlikely. It concluded that the decision not to file a motion to suppress based on Baldridge’s chain of custody question “was a decision well within the defense attorney’s professional discretion.” With our deference to the court’s findings and the strategic decision of defense counsel, we find no error.

[¶ 25.] Baldridge next argues that defense counsel was ineffective when he failed to appeal his sentence at Baldridge’s request. Baldridge claims he called Niem-ann to inform him of his desire to appeal, but counsel did not return his call. He then had his parole violation attorney write a letter to Niemann. The letter was sent, but Niemann claims to have never seen it, even though his office had it on file. Nevertheless, Niemann did send a letter to Baldridge. In that letter, counsel informed Baldridge of his right to appeal and the time frame in which he had to do so. He also told Baldridge that it was his opinion that Baldridge should not appeal. But he warned Baldridge that if he desired to appeal, he should notify him as soon as possible. Baldridge did nothing thereafter.

[¶ 26.] The right to appeal is statutorily protected. SDCL 23A-32-2. “[I]t may not be indiscriminately denied.” State v. Hoxsie, 1997 SD 119, ¶ 7, 570 N.W.2d 379, 380 (per curiam). It is troubling that Niemann did not respond to the letter from Baldridge’s parole violation attorney, which clearly informed him that Baldridge wanted to appeal. Nonetheless, after that letter, Baldridge did receive correspondence from Niemann, specifically addressing his right to appeal. It explained in detail that Baldridge had an appeal right, when it expired, and that if he still desired to appeal he should “advise in writing as soon as possible[.]” Baldridge concedes he did nothing in response to this letter. We cannot say that the habeas court erred in concluding that Baldridge’s right to appeal was not indiscriminately denied or that he lost his right because of defense counsel’s ineffectiveness.

[¶ 27.] Baldridge next asserts that counsel was ineffective because he did not ensure that the plea agreement was followed. The plea agreement required that “the State of South Dakota will inform the sentencing judge of the extent and level of Baldridge’s cooperation with law enforcement officials in fulfilling the terms of this plea agreement.” (Emphasis added). At the sentencing hearing, the State made no statement about Baldridge’s cooperation. There was also nothing in the presentence investigation report that would inform the court on the level and extent of Baldridge’s cooperation. Citing only the circuit court’s findings as authority, the State contends that Baldridge could not identify how he cooperated, so his claim that a breach occurred is without merit. But the circuit court’s finding was clearly erroneous.

[¶ 28.] At the habeas hearing, Bal-dridge plainly outlined his cooperation. It stands uncontradicted. He told how the State’s Attorney, contrary to the plea agreement, limited the cooperation he wanted to only information about people in Watertown. Yet the plea agreement explicitly provided that Baldridge would cooperate with investigating “criminal activity in ... South Dakota and the nation.” Baldridge still tried to oblige this turnaround by obtaining Watertown names from his girlfriend. He also composed a list of names of Aberdeen people he knew to be involved in illicit drugs. He met with a DCI agent and provided all this information to him. Nothing in the record supports a conclusion that the State or the DCI was dissatisfied with this information or that Baldridge’s debriefing was somehow not in full compliance with the plea agreement. Thus, the habeas court’s finding that “Baldridge claimed to know nothing of any help” is incorrect.

[¶ 29.] As we recently stated in Vanden Hoek v. Weber,

[A] breach of a plea agreement implicates due process concerns. “[O]nce an accused agrees to plead guilty in reliance upon a prosecutor’s promise to perform a future act, the accused’s due process rights demand fulfillment of the bargain.” State v. Waldner, 2005 SD 11, ¶ 18, 692 N.W.2d 187, 191-92 (citing State v. Williams, [249 Wis.2d 492] 637 N.W.2d 733, 744 (2002)) (internal quotations omitted).

2006 SD 102, ¶ 14, 724 N.W.2d 858, 862-63. It is immaterial that the sentencing judge may not have been influenced by the State fulfilling its end of the bargain. See id. ¶ 22. When there is a breach of an agreement from a plea that rests “in any significant degree on a promise or agreement from the prosecutor, so that it can be said to be part of the inducement or consideration,” the case must be remanded. Id. ¶ 13 (quoting Santobello v. New York. 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971)).

[¶ 30.] We use a “ ‘straight-forward interpretation’ ” of the State’s promise when examining whether a breach occurred. State v. Bracht, 1997 SD 136, ¶ 9, 573 N.W.2d 176, 179 (quoting United States v. McCray, 849 F.2d 304, 305 (8th Cir.1988); United States v. Carbone, 739 F.2d 45, 47 (2d Cir.1984)). Here, the State promised Baldridge that in exchange for giving up his right to a jury trial, it “will inform” the sentencing court of the level and extent of his cooperation. (Emphasis added). Bal-dridge was not promised that the State would recommend a lesser sentence. Rather, his agreement clearly identified that he faced the maximum possible sentence and that his sentence was at the discretion of the judge. Nonetheless, a comment from the State on his cooperation with law enforcement authorities certainly could have impacted the sentence he received. The State’s failure to fulfill its promise resulted in a breach of a material element of the agreement.

[¶ 31.] Baldridge, however, did not appeal his sentence. Therefore, to prevail in this case, he must establish that he “was deprived of basic constitutional rights.” See Moeller, 2004 SD 110, ¶10, 689 N.W.2d at 6 (citing New, 1999 SD 125, ¶ 5, 600 N.W.2d at 571-72). Baldridge claims he was denied due process because his counsel was ineffective when he failed to ensure that the plea agreement was followed. In Loop v. Solem, we stated that “[b]efore a petitioner succeeds on an ineffective assistance of counsel claim, he must normally fulfill the twofold test stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864.” 398 N.W.2d 140, 142 (S.D.1986). That twofold test comprises a duty to show (1) ineffective assistance of counsel and (2) prejudice. Id.

[¶ 32.] We afford considerable deference to counsel’s strategic decisions. Moeller, 2004 SD 110, ¶ 28, 689 N.W.2d at 10. “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 petitioner must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d 674 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). “ ‘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 [process] cannot be relied upon as having produced a just result.’ ” Moeller, 2004 SD 110, ¶ 28, 689 N.W.2d at 10 (quoting Coon v. Weber, 2002 SD 48, ¶ 11, 644 N.W.2d 638, 642 (per curiam) (citation omitted)). Furthermore, we will not second guess the factual findings of the habeas court. Hofer v. Class, 1998 SD 58, ¶ 7, 578 N.W.2d 583, 585.

[¶ 33.] There is nothing in the record that suggests that defense counsel’s decision to do nothing when the State failed to inform the court of Baldridge’s cooperation was a reasoned strategy. The testimony elicited at the habeas hearing shows that counsel was not even aware that the State breached the terms of the plea agreement. Nevertheless, the habeas court found that no breach occurred and that counsel was not in effective because “Baldridge claimed to know nothing of any help.” These findings were clearly erroneous. Baldridge plainly set forth the cooperation he gave as required by his plea agreement. The express language of the agreement mandated that the State inform the court of Baldridge’s cooperation. That was never Baldridge’s duty. Defense counsel’s failure to object when the State breached a material element of the plea agreement amounted to a denial of the assistance of counsel.

[¶ 34.] The State argues that Baldridge has not established prejudice in the prosecutor’s failure to tell the sentencing judge of Baldridge’s cooperation and defense counsel’s failure to object. Here, however, there is an exception to the proof of prejudice requirement. “In certain Sixth Amendment contexts, prejudice is presumed.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d 674. One such instance is “[a]ctual or constructive denial of the assistance of counself.]” Id.; see also State v. Smith, 207 Wis.2d 258, 558 N.W.2d 379, 387 (1997). According to the Supreme Court, “[prejudice in these circumstances is so likely that case by case inquiry into prejudice is not worth the cost.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d 674; see also United States v. Vaval, 404 F.3d 144, 155 (2d Cir.2005). “In order to preserve the integrity of plea bargaining procedures and public confidence in the criminal justice system, a petitioner is generally entitled to the enforcement of a plea agreement without showing a tangible harm resulting from that breach.” Vaval, 404 F.3d at 155.

[¶ 35.] Baldridge had a substantial right to the fulfillment of the terms of his plea agreement. See Santobello, 404 U.S. at 262, 92 S.Ct. at 499, 30 L.Ed.2d 427. This was true even if the breach was inadvertent. Vanden Hoek, 2006 SD 102, ¶ 20, 724 N.W.2d at 863 (citing Waldner, 2005 SD 11, ¶ 13, 692 N.W.2d at 192 (quoting State v. Howard, 246 Wis.2d 475, 630 N.W.2d 244, 250-51 (App.2001))). Because the State breached a material element of the plea agreement, Baldridge was not afforded a fair and reliable sentencing proceeding. In this case, the remedy for the breach is to remand the case for resen-tencing with a different judge. See Bracht, 1997 SD 136, ¶ 12, 573 N.W.2d at 180 (citing United States v. Brody, 808 F.2d 944, 948 (2d Cir.1986); Brunette v. United States, 864 F.2d 64, 65 (8th Cir.1988)). Because we remand for resentenc-ing, we need not address Baldridge’s claim that his sentence violates his Eighth Amendment right to be free from cruel and unusual punishment.

[¶ 36.] Reversed and remanded.

[¶ 37.] SABERS, ZINTER and MEIERHENRY, Justices, concur.

[¶ 38.] GILBERTSON, Chief Justice, concurs in part and dissents in part.

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶ 39.] I respectfully dissent as to the Court’s conclusion that Baldridge is entitled to habeas relief over a purported violation of a plea agreement. I would affirm on that issue since, he has failed to show any prejudice.

[¶ 40.] This is a habeas proceeding. Thus, I fully agree with the Court that to succeed Baldridge must establish he “was deprived of basic constitutional rights.” Moeller v. Weber, 2004 SD 110, ¶ 10, 689 N.W.2d 1, 6 (citation omitted). Under the Strickland standard, to establish a deprivation of the right to effective counsel, Baldridge must show (1) ineffective assistance of counsel and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984), reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864.

[¶ 41.] The Court errs in its application of the standards for habeas relief. At ¶ 32 it acknowledges under Strickland for the petitioner to obtain relief, he or she must establish prejudice. However, at ¶ 34 n. 3 it faults this dissenter for requiring just that-a showing of prejudice. In previous cases concerning the review of plea bargain proceedings brought pursuant to a habeas challenge, we have applied a requirement that the applicant establish prejudice. Turner v. Weber, 2001 SD 125, 635 N.W.2d 587; Hopfinger v. Leapley, 511 N.W.2d 845 (S.D.1994); Petrilli v. Leapley, 491 N.W.2d 79 (S.D.1992).

[¶ 42.] The plea agreement required Baldridge to fully cooperate with law enforcement as to his knowledge of the sale of illegal drugs. Nevertheless, the habeas court found that: “Baldridge claims that under the plea agreement the State was to inform the sentencing judge of the extent of the Petitioner’s cooperation with law enforcement.... The problem was, Bal-dridge claimed to know nothing of any help, so there was nothing for Niemann (defense attorney) to inform the judge of.” This finding is not surprising in light of Baldridge’s concession:

I told them straight up, I said, “I don’t know many people any more. I know people that do it, but I don’t know anything, so don’t even ask me to do a controlled buy.”

Moreover the pre-sentence report stated:

This officer attempted to contact Mr. Baldridge at the South Dakota State Penitentiary via his case manager. Messages were left at the penitentiary for the case manager to contact his officer in an effort to interview Mr. Bal-dridge and the messages were not returned.

Thus, the finding of the trial court that Baldridge in essence did nothing to cooperate with law enforcement is not clearly erroneous. Hofer v. Class, 1998 SD 58 ¶ 7, 578 N.W.2d 583, 585.

[¶ 43.] The Court differs with this conclusion. Yet, a thorough review of its factual analysis shows it relies upon Bal-dridge’s self-serving testimony. After hearing this same testimony, the habeas court ruled against him. “The credibility of witnesses and the evidentiary value of their testimony falls solely within the province of the [fact finder].” LDL Cattle Co. v. Guetter, 1996 SD 22, ¶22, 544 N.W.2d 523, 528 (quoting Bridge v. Karl’s, Inc., 538 N.W.2d 521, 525 (S.D.1995) (citing Miller v. Hernandez, 520 N.W.2d 266, 272 (S.D.1994))). It has long been the rule in this jurisdiction that a party does not have a license to get on the stand and bind the trial court as the fact finder by uncontra-dicted testimony no matter how inherently improbable it is.

“The general rule is well settled that where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, the jury are not at liberty to discredit their testimony, when opposed to a mere presumption to the contrary; but this is subject to the exception that where the statements of the witness are grossly improbable, or he has an interest in the question at issue, courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of such witness.”

Port Huron Engine & Thresher Co. v. Sherman, 14 S.D. 461, 467-68, 85 N.W. 1008, 1010 (1901) (quoting Elwood v. Telegraph Co., 45 N.Y. 549 (1871)).

Under those circumstances, and even though there was nothing in any of the other evidence appearing in the record that would throw doubt upon plaintiffs credibility, yet the jury had a right, if they disbelieved him, to find that he did not take the assignment in payment of fees or a previous debt due him. In Nicholson v. Conner, 8 Daly (N.Y.) 212 it was held that the rule that, where a witness is unimpeached and his evidence not contradicted, his testimony cannot be disregarded by the court or jury, does not apply where such witness is a party, and the credibility of such party is always a question for the jury, and a verdict may be found against his uncon-tradicted evidence.

Hudson v. Sheafe, 41 S.D. 475, 484, 171 N.W. 320, 322 (1919).

We believe this transaction as testified to by [the defendant] and his wife brings it squarely within the rule established in this state that where even unimpeached witnesses testify distinctly and positively to a fact and are uncontradicted, but the statements of the witnesses are grossly improbable or they have an interest in the question at issue, courts are not bound to accept the statements of such witnesses. Crilly v. Morris, 70 S.D. 584, 19 N.W.2d 836 [ (1945) ] and cases cited.

Jorgensen v. Jorgensen, 74 S.D. 239, 251, 51 N.W.2d 632, 638 (1952).

[¶ 44.] The testimony of attorney Niemann on this point has no independent source — it is simply what he was told by his client Baldridge. Since the testimony was no better than its source the trial court was empowered not to rely upon it in arriving at its ultimate decision. See Roden v. Gen. Cas. of Wisconsin, 2003 SD 130, ¶ 16, 671 N.W.2d 622, 626.

[¶ 45.] Having not heard or seen Bal-dridge personally, we are limited by our evidentiary standard of appellate review. While paying lip service to this concept, this Court then engages in a de novo review of Baldridge’s testimony and finds him credible. Keeping in mind that the burden for habeas relief falls upon Bal-dridge, not the State, there is no finding by the trial court that Baldridge is credible. Instead after hearing Baldridge’s claims and testimony it dismissed his petition. Since Baldridge’s testimony was uncontested, had the trial court believed it, obviously Baldridge would have been entitled to prevail.

[¶ 46.] There is no evidentiary basis to support the Court’s conclusion that “counsel was not even aware that the State breached the terms of the plea agreement.” Niemann had ten years experience in criminal defense work. He testified he had never had a malpractice case brought against him and Baldridge was the only client during this lengthy period of time to bring a habeas claim against him for ineffective representation. He testified at the habeas hearing, two and a half years after the sentencing hearing, to an extensive recollection of the de-briefing process of his client by the Division of Criminal Investigation. Niemann further testified:

I always-I got a copy of the PSI [pre-sentence investigation report] from the Court Services Officer, and I always read through that, and that always had the prior criminal history in it, and then I would take that over to the jail or at my office if they weren’t in the jail, and have them read through the PSI because we are not allowed to make copies of that, and then after they had read through it, I would discuss it with them about what was in there, and about any additional information that they wanted me to present at the sentencing and I would fill that all out on my sentencing hearing form and get it all written down and go through it step by step at the sentencing hearing to make sure.

[¶47.] Moreover, one can only imagine the astonishment at the sentencing hearing had Baldridge’s defense counsel entered an objection that the prosecutor had remained silent when the plea bargain called upon prosecutor to inform the court prior to sentencing that Baldridge had done nothing to assist law enforcement with investigations of drug activity of which he had knowledge.

[¶ 48.] Baldridge cannot have it both ways. He cannot be entitled to habeas relief on the basis of ineffective counsel because his attorney failed to inform the trial court his client did nothing to assist law enforcement. Had that astonishing event occurred, Baldridge no doubt would then have raised the claim that his attorney was ineffective because he did inform the trial court that Baldridge did nothing.

[¶ 49.] In a similar situation, the Eleventh Circuit Court of Appeals found no violation of an agreement on the part of the prosecution where the prosecutor promised not to oppose a defendant’s request for a reduction of sentence conditioned on the defendant making a full and accurate disclosure to probation officials, which the defendant failed to fulfill. U.S. v. Mahique, 150 F.3d 1330, 1332 (11th Cir.1998), cert. denied, Mahique v. U.S., 525 U.S. 1090, 119 S.Ct. 843, 142 L.Ed.2d 698. Notably, the Eleventh Circuit has also opined:

The government did not breach its plea agreement with [the defendant]. By viewing a plea agreement as a contract, we imply that both the government and the defendant have obligations that they must perform to fulfill the agreement. See United States v. Howie, 166 F.3d 1166, 1168 (11th Cir.1999). The language of the plea agreement indicates that [the defendant’s] duty to make full disclosure to the government and probation office was a condition precedent to the government’s agreement to recommend a sentence at the low end of the guideline range. Based on the resolved facts in the PSI and the plea colloquy, [the defendant] did not make full and accurate disclosures to the probation office and misrepresented facts to the government. ...

U.S. v. Oduardo, 164 Fed.Appx. 945, 949, 2006 WL 231645, at *3 (11th Cir.2006).

[¶ 50.] For the above reasons, I would affirm the habeas court on this issue. I concur in the balance of the issues of the Court that no showing for habeas relief has been made. Thus, I would affirm the habeas court.

      . The dissent supports its argument that Bal-dridge did not cooperate with select quotes from the transcript and the presentence report. The dissent then goes on to conclude that the habeas judge did not find Baldridge credible. What the habeas judge found was that "Baldridge claimed to know nothing of any help.” That is simply false. Thus, the habeas court’s finding was clearly erroneous. A plain reading of the transcript shows that Baldridge met with a law enforcement officer, provided a list of names, and told him what he knew. The State never disputed this, and no claim was made that his cooperation was inadequate. The dissent's quote from the pre-sentence report has nothing to do with the plea agreement. In the presentence report, the court services officer explained that Bal-dridge’s "case manager” at the penitentiary did not return the court services officer’s phone calls. How can that be construed against Baldridge?

      . In its brief to this Court, the State goes further and argues that Baldridge breached the terms of the plea agreement because he could not establish how he cooperated, and therefore, the State was not obligated to perform its bargained for duty. This argument is without merit. At sentencing the State did not assert that Baldridge breached the agreement.

      . The dissent would nonetheless require a ha-beas petitioner to prove prejudice in these circumstances by showing that the sentence would have been different. How is that possible? Without possessing some type of telepathic faculty, how could anyone demonstrate what would have been in a sentencing judge's mind had the judge heard material information from the prosecutor that the judge was previously unaware of, i.e. the defendant’s post-plea cooperation with law enforcement drug investigators? Other than inducing unwitting defendants to plead guilty, then, what value would such prosecutorial promises have? The dissent's view means that these types of promises from prosecutors are unenforceable, and court-sanctioned prosecutorial incentives for defendants to enter pleas and waive their constitutional rights are worthless. The dissent’s position is also a sharp departure from our recent holding in Vanden Hoek, where Justice Sabers wrote for the majority that "[t]he inquiry is solely 'whether the [State has] met [its] obligation.’ ” 2006 SD 102, ¶ 22, 724 N.W.2d at 864.

      . The relevant part of the plea agreement stated:
      2. Defendant will cooperate with all reasonable requests made by law enforcement officials concerning the ongoing investigation into criminal activity in the State of South Dakota and the nation including, but not limited to the Defendant’s participation in these activities.
      3. Defendant will fully and truthfully apprise law enforcement officials of all of sources, contacts and associates involved in illegal drug or marijuana activity including the specific names, dates, times and places surrounding such activities. Any material misrepresentation or omission made will result in revocation of the plea bargain agreement in the State's discretion.
      4.Defendant will, at the request of law enforcement, voluntarily submit to a lie detector test or polygraph examination concerning illegal activity or any of the statements] given to law enforcement pursuant to his agreement. Defendant's failure of this test may result in a revocation of this agreement at the State’s discretion.


author: HECHT, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. James William RAMEY, Respondent.
    No. 07-0823.
    Supreme Court of Iowa.
    March 14, 2008.

      Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
    No appearance for respondent.
   HECHT, Justice.

The Iowa Supreme Court Grievance Commission has recommended revocation of attorney James Ramey’s license to practice law in Iowa for violations of the Iowa Code of Professional Responsibility for Lawyers. Although we agree with the commission’s finding that Ramey’s conduct violated several ethical rules, we conclude the appropriate sanction in this case is a public reprimand.

I. Factual and Procedural Background.

This case represents the fourth charge of ethics violations against James W. Ra-mey in the past twenty years. In 1988 we suspended Ramey for six months for failing to timely file tax returns in three years, for making a false statement on a client security questionnaire that one of those returns had been filed, and for failing to respond to the inquiries of the commission. See Comm. on Prof'l Ethics & Conduct v. Ramey, 424 N.W.2d 435 (Iowa 1988) (Ramey I). We also suspended Ramey’s license for three months in 1994 for making a false statement to the court and failing to disclose exculpatory evidence during the prosecution of a criminal case. See Comm. on Prof'l Ethics & Conduct v. Ramey, 512 N.W.2d 569 (Iowa 1994) (Ramey II).

We most recently suspended Ramey’s license in January 2002. Iowa Supreme Ct. Disciplinary Bd. of Prof'l Ethics & Conduct v. Ramey, 639 N.W.2d 243 (Iowa 2002) (Ramey III). That case stemmed from a complaint filed by Ramey’s former client, Ms. Edna Downard. In July 2000 Ms. Downard hired Ramey to represent her and her sisters regarding their brother’s estate, and gave him a $1000 retainer. Id. at 244. Downard had one additional conversation with Ramey, but thereafter never heard from Ramey again. Ramey did not return the $1000 retainer and did not provide an accounting for the services, if any, he provided. Id. We found Ra-mey’s conduct violated numerous ethical rules and suspended his license for three years. Id. at 246. He has not sought reinstatement during his present suspension.

The two complaints against Ramey in this case were originally filed with the grievance commission in May 2003, but arise from matters undertaken by him in the summer of 2000 when he committed the ethical violations in connection with the Downard case. Pursuant to Iowa Court Rule 34.5, the Iowa Supreme Court Attorney Disciplinary Board notified Ramey of the first of these two complaints in June 2001. Ramey did not respond to the notification. The board could not locate Ra-mey to issue a rule 34.5 notification for the second complaint, but it subsequently filed a two-count complaint with the grievance commission which listed both charges. Because the board was unable to personally serve Ramey with notice of the complaint filed with the grievance commission, notice was served on an assistant clerk of the Iowa Supreme Court on January 30, 2007. See Iowa Ct. R. 36.6(3) (“If service cannot be obtained pursuant to rule 36.6(2) [providing for personal service], the clerk of the grievance commission may serve notice of the complaint on the clerk of the supreme court who is appointed to receive service on behalf of lawyers subject to Iowa’s disciplinary authority.... Service on the clerk of the supreme court is deemed to be completed service of the notice on the respondent.”). Ramey did not file an answer to the complaint and failed to appear at the disciplinary hearing in April 2007, at which the commission received the board’s uncontroverted evidence. The following statement of facts is based upon the complaint and the testimony of the board’s witnesses at the disciplinary hearing.

A. Haberthur Dissolution. In 1998, Randy Haberthur, who had recently separated from his wife, asked Ramey to calculate the child support he should pay his wife during the separation. Ramey completed the work without incident. In June 2000, Haberthur paid Ramey $430 as a retainer for representing Haberthur in a dissolution of marriage action. In December of that year, Ramey informed Habert-hur that the divorce had been completed, and provided him with a dissolution decree purportedly entered on December 20, 2000. The decree bore a case number and purported to have been filed in the Polk County District Court. Ramey did not disclose to Haberthur that his license had been suspended in November 2000 for failure to comply with continuing legal education requirements.

Haberthur became suspicious of the decree’s validity. When he went to the clerk’s office to inquire, Haberthur learned no petition for dissolution had ever been filed, much less a decree. Haberthur retained other counsel and his dissolution was completed in July 2001. Ramey did not return the $430 retainer to Haberthur.

B. Hethershaw Real Estate Matter. Ramey was consulted in July 2000 by Charles Hethershaw about the marketability of his title to certain Alabama real estate inherited by Hethershaw. Hether-shaw gave Ramey a file containing documents including Hethershaw’s grandfather’s 1899 deed to the land.

About one month after delivering the file to Ramey, Hethershaw attempted to contact Ramey to inquire about the status of the matter. Ramey did not respond to Hethershaw’s calls or correspondence requesting information about the matter. After approximately two to three months without communication from Ramey despite repeated inquiries, Hethershaw drove to Ramey’s office and found it closed and locked. Hethershaw made no payment to Ramey, and had no further communication with him. The board subsequently retrieved at least part of Heth-ershaw’s file from Ramey’s vacated law office in Des Moines. Ramey did not notify Hethershaw that his license to practice law was suspended in November 2000.

C.Commission’s Findings. Ramey’s failure to respond to the complaints filed with the commission resulted in an admission of the allegations. Iowa Ct. R. 36.7. Based on the uncontroverted evidence at the hearing, the commission found Ramey violated DR 1 — 102(A)(4) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation), DR 1-102(A)(5) (a lawyer shall not engage in conduct that is prejudicial to the administration of justice and shall respond to the board’s notices), DR 1-102(A)(6) (a lawyer shall not engage in conduct that adversely reflects on the fitness to practice law), DR 6-101(A)(3) (a lawyer shall not neglect a client’s legal matter), DR 7-101(A)(l) (a lawyer shall not intentionally fail to seek the lawful objectives of the client), DR 7-101(A)(2) (a lawyer shall not intentionally fail to carry out a contract of employment), DR 7-101(A)(3) (a lawyer shall not intentionally damage a client during the course of the professional relationship), DR 9-102(B)(3) (a lawyer shall maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them), and DR 9-102(B)(4) (a lawyer shall promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive). The board found “nothing in the record to indicate that [Ramey] has acknowledged his mistakes and would practice law as required by the disciplinary rules in the future.” Given his history of disciplinary proceedings, the commission recommended that Ramey’s license to practice law in the State of Iowa be revoked.

II. Standard of Review.

When an attorney fails to appeal the commission’s recommendation, we review de novo the record made before the commission. Iowa Ct. R. 35.10(1); Comm. on Prof'l Ethics & Conduct v. Peterson, 524 N.W.2d 176, 178 (Iowa 1994). While we give respectful consideration to the commission’s findings and recommendations, we are not bound by them. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lemanski, 606 N.W.2d 11, 13 (Iowa 2000). The board must prove misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 803 (Iowa 2007).

II. Findings.

Upon our de novo review, we find the record supports the commission’s findings by a convincing preponderance of the evidence and we conclude Ramey violated numerous ethical rules.

A. Neglect. DR 6-101(A)(3) states that attorneys shall not neglect clients’ legal matters. “The rule requires an attorney to attend to matters entrusted to his care and to do so in a reasonably timely manner.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dunahoo, 730 N.W.2d 202, 205 (Iowa 2007). In abandoning Ha-berthur’s and Hethershaw’s cases without communication to the clients, Ramey neglected the interests of his clients, and violated DR 6-101(A)(3). Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 817 (Iowa 2007) (“Professional neglect involves indifference and a consistent failure to perform those obligations that a lawyer has assumed, or a conscious disregard for the responsibilities a lawyer owes to a client.” (Internal quotation omitted)).

B. Intentional Failure to Carry Out Contract of Employment, Failure to Seek the Client’s Lawful Objectives, and Intentionally Damaging the Client. Ra-mey’s intentional abandonment of the Ha-berthur and Hethershaw cases without communication to either client constituted violations of DR 7 — 101(A)(1)—(3). Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 818-19 (Iowa 2007).

C. Dishonesty, Fraud, Deceit, and Misrepresentation. DR 1-102(A)(4) prohibits lawyers from “engaging] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Ramey’s representation to Haberthur that his divorce was completed and his creation of a counterfeit dissolution decree violated DR 1-102(A)(4). Comm. on Prof'l Ethics & Conduct v. Wilson, 290 N.W.2d 17, 23 (Iowa 1980) (forging judge’s signature to a divorce decree and deceiving a client are violations of DR 1 — 102(A)(4)).

D. Prejudice to the Administration of Justice; Fitness to Practice Law. The fraud perpetrated by Ramey on Ha-berthur was prejudicial to the administration of justice, in violation of DR 1-102(A)(5), because Haberthur was forced to independently uncover Ramey’s deception and obtain different counsel to obtain the dissolution. Haberthur’s dissolution was delayed over six months as a result of Ramey’s deceitful act. Moreover, at the time he presented Haberthur with the forged decree, Ramey had been suspended from the practice of law — information he failed to provide to Haberthur. This conduct also adversely reflects on Ramey’s fitness to practice law, a violation of DR 1-102(A)(6).

Additionally, Ramey’s failure to complete the Hethershaw matter and return the client’s file upon request constitutes a violation of DR 1-102(A)(5) and (6), because Hethershaw was delayed in the realization of his legal objectives. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kennedy, 684 N.W.2d 256, 260 (Iowa 2004) (failure to initiate appropriate legal proceedings adversely reflects on fitness to practice law and prejudices the administration of justice).

E. Failure to Account. DR 9-102(B) requires attorneys to:

(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them.
(4) Promptly pay or deliver to the client as requested by a client the funds, securities, or other properties in the possession of the lawyer which the client is entitled to receive.

Ramey’s failure to return Haberthur’s retainer or provide an account of services rendered in the dissolution matter constituted a violation of DR 9-102(B)(3) and (4). Ramey’s failure to maintain and return Hethershaw’s file when requested resulted in a violation of the same disciplinary rules. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Earley, 729 N.W.2d 437, 442 (Iowa 2007).

F. Failure to Respond to Board Inquiries. Finally, Ramey’s failures to respond to the board’s inquiries constitute independent violations of DR 1-102(A)(5) and (6). Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Kallsen, 670 N.W.2d 161, 167 (Iowa 2003).

IY. Discipline.

Having found Ramey violated several provisions of the Code of Professional Responsibility in existence at the time of the infractions, we must consider whether to impose the commission’s recommended sanction of revocation. The appropriate sanction in any disciplinary case must be based on the particular facts and circumstances of the case. Ramey III, 639 N.W.2d at 245. Ramey’s conduct in connection with the Haberthur and Hethershaw matters occurred contemporaneously with the conduct which formed the basis for our conclusion in 2002 that Ra-mey’s license should be suspended with no possibility of reinstatement for three years. When the misconduct forming the basis for a current disciplinary charge antedates or is contemporaneous with conduct for which a previous suspension was issued, we must determine whether we would have imposed a greater suspension in the prior case had we been aware of the information now before the court. See Moorman, 729 N.W.2d at 805-06; Comm. on Prof'l Ethics & Conduct v. Clauss, 468 N.W.2d 213, 215 (Iowa 1991). Where the attorney’s conduct in both cases is “similar and demonstrates the same pattern of conduct,” a public reprimand may be more appropriate than additional punishment. Moorman, 729 N.W.2d at 806.

Ramey’s conduct in this case is similar in nature to that which was alleged against him in Ramey III, and appears to be part of a pattern of conduct in which Ramey abandoned his practice without informing clients or returning their files and previously advanced funds. It is unlikely we would have imposed a more severe penalty in Ramey III had the Haberthur and Hethershaw complaints and violations been considered. As in Moorman, because Ramey’s license is presently under suspension and he will be required to satisfy numerous conditions if he should apply for reinstatement, a more severe penalty will not serve to protect the public or deter future misconduct. Moorman, 729 N.W.2d at 806; see Bd. of Prof'l Ethics & Conduct v. Scieszinski, 599 N.W.2d 472, 474 (Iowa 1999) (“The canons of ethics are not primarily intended to mete out abstract justice to wayward attorneys, but rather are chiefly intended to provide protection to the public.”).

Accordingly, James William Ramey is hereby publicly reprimanded for misconduct in connection with the Haberthur and Hethershaw matters. In addition to the conditions prescribed in Ramey III, Ra-mey shall (1) pay $430 to Haberthur, and (2) return to Hethershaw any of his documents in Ramey’s possession prior to filing any application for reinstatement. Costs of this action are assessed to Ramey pursuant to Iowa Court Rule 35.25.

ATTORNEY REPRIMANDED.

All justices concur except APPEL, J., who takes no part.

      . The conduct alleged in this case against Ramey occurred in 2001. Accordingly, the violations found by the commission are based on the disciplinary rules of the Code of Professional Responsibility in force in 2001.

      . As a consequence of Ramey's failure to demonstrate compliance with continuing legal education requirements, his license to practice law has been suspended since November 10, 2000.

      . The deed was not among the papers retrieved from Ramey's abandoned office.