author: MARING, Justice.

text:
    2003 ND 140
    Rachel M. KAUTZMAN, n/k/a Rachel M. Dietz, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Defendant and Appellant.
    No. 20030038.
    Supreme Court of North Dakota.
    Aug. 22, 2003.
    Rehearing Denied Sept. 25, 2003.

      Steven A. Johnson, Vogel Law Firm, Fargo, N.D., for plaintiff and appellee.
    Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Robert A. Kautzman (“Kautz-man”) appealed a bench warrant and an order dated January 16, 2003, denying his motions to vacate the bench warrant and to determine that Rachel M. Kautzman, n/k/a Rachel M. Dietz (“Dietz”) has no right to enforce her equitable liens three years after judgment. We affirm and remand for a determination on Dietz’s request for attorney fees.

I

[¶ 2] This is the sixth appeal arising out of a 1995 divorce action. See Kautzman v. Kautzman, 2002 ND 118, 647 N.W.2d 684 (“Kautzman IV”); Kautzman v. Kautzman, 2000 ND 190, 618 N.W.2d 500 (“Kautzman III”)] Kautzman v. Kautzman, 2000 ND 116, 611 N.W.2d 883 (two appeals) (“Kautzman II”), and Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561 (Kautzman I).

[¶ 8] The second amended judgment granted Dietz a divorce, divided the marital property, and ordered Kautzman to pay Dietz spousal support of $4,000, which included rehabilitative support of $2,000 per month from December 1, 1997, through December 2002 and $2,000 per month from December 1, 1997, until Dietz reaches age 65, dies, or remarries after December 31, 2002. Kautzman I, at ¶ 18. The judgment awarded Kautzman the parties’ construction company (“KCI”) and ordered him to pay Dietz $200,000 within 60 days and an additional $180,000 within four years after entry of judgment. Id. at ¶ 4. Kautzman appealed, challenging the property distribution and spousal support, and Dietz cross-appealed, challenging the trial court’s valuation of KCI, its failure to require Kautzman to return $50,000 withdrawn from a savings account, and its failure to award attorney fees. We ruled against Kautzman on his appeal. We reversed in part, affirmed in part and remanded for, among other things, “a rede-termination of the value of KCI and a redetermination of the property distribution in light of the revaluation of KCI.” Id. at ¶ 38.

[¶ 4] After the decision in Kautzman I, the trial court increased the valuation of KCI by $280,859 and ordered Kautzman to pay Dietz an additional $140,429 as a property distribution. A third amended judgment issued on May 24, 1999, required Kautzman to pay Dietz $200,000, with interest, within 60 days and an additional $320,429, with interest, in seven annual installments, with an option to prepay at any time. The third amended judgment gave Dietz liens on the parties’ lake home and homestead and in Kautzman’s interest in KCI. It required Dietz “to subordinate her liens on the lake home and homestead to the interests of a mortgagee who loans money to [Kautzman] to make payments to [Dietz], to the extent of the payments received by her to satisfy the obligations under paragraphs 8. and 9.” The trial court also awarded Dietz attorney fees of $50,000 for the trial and $10,000 for the initial appeal, found Kautzman in contempt of court, ordered entry of money judgments against Kautzman, and denied Kautzman’s request to eliminate or reduce his spousal support obligation. Kautzman filed two appeals:

In appeal No. 990328, Robert Kautz-man appealed the district court’s third amended judgment, dated May 24, 1999; a memorandum opinion dated August 26, 1999; a September 30, 1999, order finding Robert Kautzman in contempt of court, denying Robert Kautzman’s motion to amend the third amended judgment or grant an evidentiary hearing,' denying Robert Kautzman’s motion for relief from the judgment, and directing the entry of money judgments; and money judgments entered on October 15 and 18, 1999, and January 3, 2000, in the amounts of: $1,500 for household goods and personal effects; $50,000 for money withdrawn from a bank account awarded to Rachel Kautzman; $322,139.18 for unpaid property distribution payments and interest; $41,893.88 for past-due spousal .support; and $60,000 for attorney fees. In appeal No. 990386, Robert Kautzman appealed from the district court’s November 3, 1999, order denying his motion to vacate paragraph 3 of the second amended judgment or to amend it to provide a reduced amount of spousal support or an earlier termination date, and from the district court’s December 9, 1999, order • denying Robert Kautz-man’s motion for reconsideration.

Kautzman II, at ¶ 4. Except for an issue about credit for spousal support payments, we summarily affirmed under N.D.R.App.P. 35.1. Kautzman- II, at ¶ 10.

[¶ 5] In his fourth appeal, Kautzman “appealed from a memorandum opinion rejecting his claim of exemptions from execution, and from an order confirming a sheriffs sale.” Kautzman III, at ¶ 1. “In November 1999, writs of execution were issued ... on the $322,139.18 money judgment for past-due property distribution payments_ The sheriff levied on ... Kautzman’s home in West Fargo. Kautz-man filed ... a claim of exemptions, which were rejected by the trial court in January 2000.” Id. at ¶ 4. “The West Fargo home was sold at a sheriffs sale on February 3, 2000, to Dietz, who submitted the highest bid, $130,000. The trial court confirmed the sheriffs sale and set a redemption period of 30 days from the date of service of the order.” Id. at ¶ 6. Among other things, we rejected Kautzman’s argument for application of N.D.C.C. ch. 32-19:

Kautzman argues Dietz’s lien in the West Fargo home granted by the trial court to secure the property distribution payments should be viewed as a mortgage lien, thus mandating compliance with the mortgage foreclosure provisions of N.D.C.C. ch. 32-19....
The specific lien granted by the trial court in the divorce judgment was in the nature of an equitable lien under N.D.C.C. § 14-05-25, and a “trial court may enforce an equitable lien by whatever means it deems appropriate to do justice between the parties.” Martian v. Martian, 399 N.W.2d 849, 854 (N.D.1987). See also Moen v. Moen, 519 N.W.2d 10, 12 (N.D.1994). Kautzman was not statutorily entitled to a one-year redemption period, and, under the circumstances, we conclude the trial court did not abuse its discretion in granting a 30-day redemption period.

Kautzman III, at ¶¶ 14, 15. We affirmed the trial court’s order confirming the sheriffs sale. Id. at ¶ 22.

[¶ 6] Kautzman IV, Kautzman’s fifth appeal in this divorce litigation, involved the trial court’s March 7, 2001, “order finding Kautzman in contempt of court and ordering Kautzman ‘taken into custody for a period of thirty days, or until [Kautz-man] begins paying [Dietz] $4,000 a month in spousal support and an additional 10% of that amount to reduce the arrearage that has accrued’” and a June 1, 2001, judgment awarding “Dietz $48,359.18 for a property distribution payment due June 1, 2000, with interest.” Id. at ¶ 3. We ruled Kautzman’s contention “‘the doctrine of extinguishment controls’ and his ‘debt has been paid’ ... is without merit.” Id. at ¶ 5. We said Kautzman’s reliance on a number of decisions was “misplaced, because those decisions involved the foreclosure of a junior mortgage when there was an outstanding senior mortgage or the foreclosure of a mortgage subject to a senior tax lien — situations not at issue in this appeal.” Id. We continued:

Kautzman’s argument has not persuaded us that a party in a divorce action who gets a judgment for unpaid property distribution payments, forecloses a judgment lien, and purchases the judgment debtor’s property at a sheriffs sale is precluded from seeking payment for any deficiency because the underlying debt was extinguished by the sheriffs sale.

Id. at ¶ 5. We also held “the trial court did not abuse its discretion in finding Kautz-man in contempt of court.” Id. at ¶ 12. The orders and judgments appealed from were affirmed. Id. at ¶ 14.

[¶ 7] The trial court, the Honorable Georgia Dawson, issued a bench warrant on December 3, 2002, directing that Kautz-man be apprehended, brought before a referee or judge, and “be released after serving 30 days in jail or upon posting $10,000.00 cash bail while awaiting appearance before this Court, whichever occurs first,” for Kautzman’s failure to purge himself of the contempt found in the March 7, 2001, order affirmed in Kautz-man IV. Kautzman moved to vacate the bench warrant, for an order confirming his application of a payment by a surety on a supersedeas bond, and “for an order determining that [Dietz] has no right to enforce her equitable liens three (3) years after judgment pursuant to N.D.C.C. § 32-19-06.” The court denied Kautzman’s motions in an order issued January 16, 2003.

[¶ 8] Kautzman appealed, stating a number of issues. For the sake of convenience, we will address Kautzman’s arguments as he framed them in the table of contents of his appellate brief:

Point 1. The underlying process was unfair to Robert
A. Judge Dawson should not have been the deciding judge on any issue
B. Despite Robert’s purgation of the contempt order, a bench warrant was improperly issued
C. Due Process Violations by the District Court — the basics
D. Due Process Violations by the District Court — the rules changed
E. Due Process Violations by the District Court — the law was disregarded
Point 2. Rachel Has No Right to Enforce Her Equitable Liens Three Years after Judgment

II

A

[¶ 9] Kautzman contends Judge Dawson should not have decided any issue, asserting she “failed to certify familiarity with the record and/or a determination that the proceedings in the case may be completed without prejudice to the parties” and alleging she acted in violation of Christl v. Swanson, 2001 ND 98, ¶ 2 n. 1, 626 N.W.2d 690, N.D.C.C. § 27-05-27, and N.D.R.Civ.P. 63.

[¶10] Under N.D.R.Civ-P. 63, “[i]f a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with-it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.” Rule 63 applies to a trial or hearing that has been commenced and is not completed by the judge. Here, Judge Dawson issued a bench warrant to enforce a contempt finding which this Court had affirmed on appeal. Judge Dawson heard motions to vacate her bench warrant and to hold Dietz’s liens unenforceable. Rule 63 is not applicable to the resolution of these motions. Nor is N.D.C.C. § 27-05-27 applicable, as it merely requires specified motions to “be presented and heard before the judge before whom the matter was heard ... unless for any reason the judge is unable to act.” In addition, Kautzman has not drawn our attention to any facts in the existing record with which Judge Dawson needed to become familiar before presiding in the case. Judge Dawson was familiar with this Court’s affirmance of the order finding Kautzman in contempt of court and with the judgments that Dietz was seeking to have enforced. Furthermore, Dietz asserted Kautzman never objected to Judge Dawson deciding the issues involved in this appeal. For an effective appeal on any proper issue, the matter must have been raised in the trial court, so the trial court could rule on it, and a failure to object to an irregularity at trial is a waiver of the issue. Piatz v. Austin Mut. Ins. Co., 2002 ND 115, 117, 646 N.W.2d 681. Thus, issues not raised in the trial court cannot be raised for the first time on appeal. Questa Res., Inc. v. Stott, 2008 ND 51, ¶ 6, 658 N.W.2d 756. “The purpose of this rule is to prevent a party from inviting error upon the trial court and then seeking to prevail upon appellate review of the invited error.” Klose v. Klose, 524 N.W.2d 94, 96 (N.D.1994). Kautzman has not directed our attention to anything in the record indicating he objected to Judge Dawson participating or ruling on any issue involved in this appeal. We “are not ferrets, obligated to engage in unassisted searches of the record for evidence to support a litigant’s position.” Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. We, therefore, decline to further address this issue.

B

[¶ 11] Kautzman contends he “purged himself of the contempt by his October, 2002, payment of $150,000 which was dedicated, in open court, to payment of unpaid spousal support.” However, the $150,000 payment was made by the surety on a supersedeas bond before Kautzman “dedicated” it to payment of unpaid spousal support, and Dietz applied it to payment of judgments related to property distribution. Kautzman has not shown the payment purged him of contempt.

[¶ 12] Kautzman asserts Dietz “should not be allowed to gain legal advantage because of her refusal to honor her obligation to subordinate under the ■ Third Amended Judgment ... with respect to the $150,000 paid on the supersedeas bond.” The judgment requires Dietz “to subordinate her liens on the lake home and homestead to the interest of a mortgagee who loans money to [Kautzman] to make payments to [Dietz], to the extent of the payments received by her to satisfy the obligations under paragraphs 8 and 9.” The judgment does not require Dietz to subordinate her hens to the interests of a surety on a supersedeas bond, and Kautz-man has not shown Dietz failed to subordinate her interests to a mortgagee lending money to Kautzman so he could make payments to Dietz.

[¶ 13] We will address this payment at greater length later in this opinion.

C

[¶ 14] Kautzman contends “[t]he defective civil contempt process that could lead to the issuance of the bench warrant constitutes a denial of due process,” asserting:

If Rachel is of the belief that any remaining delinquency in spousal support constitutes a contempt, she has the right to bring a motion to attempt [to] prove Robert is willfully disobeying his duties to her. Robert would be entitled to notice, and hearing, and the right to submit his defense to an impartial court — but only after Rachel first makes her case.

Kautzman ignores the fact that all of those acts have occurred and that he was found in contempt of court in an order this Court affirmed in Kautzman IV. The bench warrant issued by Judge Dawson in this case merely enforced the existing contempt order. Kautzman’s perfunctory argument is without merit.

D

[¶ 15] Kautzman complains that the $150,000 payment from the surety on his supersedeas bond should have been applied to his spousal support obligation, thereby purging him of contempt, and he was deprived of his liberty without due process by issuance of the bench warrant. We have said “a party waives an issue by not providing supporting argument” and, “without supportive reasoning or citations to relevant authorities, an argument is without merit.” Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 27, 643 N.W.2d 29. We have also said “a party making a constitutional claim must provide persuasive authority and reasoning.” New Town Pub. School Dist. No. 1 v. State Bd. of Pub. School Educ., 2002 ND 127, ¶ 17, 650 N.W.2d 813. Kautzman has not provided persuasive reasoning or citations to relevant authorities, and his eon-clusory arguments are without merit.

E

[¶ 16] Kautzman contends there were due process violations because the trial court disregarded N.D.C.C. § 9-12-07 in allowing Dietz to apply the $150,000 payment from the surety on Kautzman’s supersedeas bond as she wished, rather than as Kautzman directed.

[¶ 17] Section 9-12-07, N.D.C.C., provides in part:

When a debtor under several obligations to another does an act by way of performance, in whole or in part, which is applicable equally to two or more of such obligations, such performance must be applied as follows:
1. If, at the time of the performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation is manifested to the creditor, it must be applied in such manner.
2. If no such application is then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation the performance of which was due to him from the debtor at the time of such performance.

In State Bank of Streeter v. Nester, 385 N.W.2d 95, 97 (N.D.1986), this Court said N.D.C.C. § 9-12-07 applies only if there is voluntary performance and that “court-ordered liquidation of the collateral” for a promissory note “does not constitute voluntary performance.”

[¶ 18] Here, the performance was payment of $150,000 to Dietz by Alerus Financial as surety on a supersedeas bond posted by Kautzman to secure a stay of execution on the second amended judgment in connection with his 1998 appeal, which culminated in this Court’s decision in Kautzman I. Although Kautzman repeatedly opposed requiring the surety to pay, on October 10, 2002, Judge Dawson ordered “that Alerus Financial, as surety on the supersedeas bond, is liable to [Dietz] in the amount of $150,000.” Alerus paid the $150,000 with an October 15, 2002, check to Dietz.

[¶ 19] If N.D.C.C. § 9-12-07 was inapplicable because the payment was not voluntary, the trial court had to make an equitable allocation. Streeter, 385 N.W.2d at 97. The trial court ratified Dietz’s allocation when it issued the bench warrant, and the trial court’s decision “after weighing the equities of a ease will not be reversed unless an abuse of discretion is affirmatively established.” Id. Kautzman has not affirmatively established an abuse of discretion.

[¶ 20] If N.D.C.C. § 9-12-07 is applicable, Kautzman’s tardy attempt to allocate the payment to his spousal support obligation was insufficient under N.D.C.C. § 9-12-07(1), which only requires a creditor to allocate a debtor’s performance “to the extinction of any particular obligation” if the debtor’s intention “is manifested to the creditor” “at the time of the performance.” On October 10, 2002, Judge Dawson ordered “that Alerus Financial, as surety on the supersedeas bond, is liable to [Dietz] in the amount of $150,000.” Alerus paid the $150,000 with an October 15, 2002, check to Dietz. Kautzman first requested the $150,000 payment be allocated to his spousal support obligation in open court on November 20, 2002. Kautzman’s attorney acknowledged at oral argument that he received a copy of the order saying Alerus had to pay Dietz $150,000 and that he knew the $150,000 was going to be paid but did nothing about allocating that payment until November 20, 2002, asserting: “We didn’t think we had to.” Thus, Kautzman did not manifest his intention about allocation of the $150,000 payment until about one month after the performance occurred. When a debtor does not manifest an intention about the application of the performance at the time of the performance, then, under N.D.C.C. § 9-12-07(2), “the creditor ... may apply it toward the extinction of any obligation the performance of which was due to him from the debtor at the time of such performance.”

[¶ 21] We conclude N.D.C.C. § 9-12-07 did not preclude Dietz from allocating the $150,000 to whatever obligations Kautzman owed her when the payment was made.

Ill

[¶ 22] Relying on N.D.C.C. § 32-19-06, Kautzman contends Dietz has no right to enforce her equitable liens more than three years after judgment.

[¶ 28] In Kautzman II, we noted judgments had been entered in Dietz’s favor in October 1999 and January 2000 for “$1,500 for household goods and personal effects; $50,000 for money withdrawn from a bank account awarded to Rachel Kautzman; $322,139.18 for unpaid property distribution payments and interest; $41,893.88 for past-due spousal support; and $60,000 for attorney fees.” Id. at ¶4. In ruling the doctrine of extinguishment did not prevent entry of a money judgment after foreclosure of an equitable lien, this Court said:

Kautzman’s argument has not persuaded us that a party in a divorce action who gets a judgment for unpaid property distribution payments, forecloses a judgment lien, and purchases the judgment debtor’s property at a sheriffs sale is precluded from seeking payment for any deficiency because the underlying debt was extinguished by the sheriffs sale.

Kautzman IV, at ¶ 5. After citing that passage, Kautzman argued in his brief:

Robert believes that the Supreme Court chose its words wisely, and that this Supreme Court means what it says. Robert understands that the Supreme Court has ruled that procedures found with N.D.C.C. Chap. 32-19 need not be followed when the divorce court enforces the equitable lien. He does not take issue with that final decision.
However, no court can disregard the law and those protections afforded to Robert under the anti-deficiency statutes, specifically N.D.C.C. § 32-19-06, that created a three year window for Rachel to execute against her deficiency judgments. N.D.C.C. § 32-19-06, in pertinent part, provides:
“.. Any deficiency judgment obtained must be enforced by execution as provided by law, except that no execution may be enforced after three years from the date of the rendition of the deficiency judgment ...”
Such statute is not a procedural matter, but rather, a substantive right given to Robert by the Legislative Assembly of North Dakota. The three year window is an absolute limitation which the courts cannot expand.

[¶ 24] This Court’s use of the word, “deficiency,” in the cited passage obviously was not meant to cast Dietz’s judgment, which was not completely satisfied because there was an unpaid balance remaining, as a “deficiency judgment” subject to the three-year limitation imposed by N.D.C.C. § 32-19-06.

[¶ 25] Section 32-19-06, N.D.C.C., provides, in part:

In any action for the foreclosure of a real estate mortgage or the cancellation or the foreclosure of a land contract, the court may render judgment for the amount found to be due at the time of the rendition of the judgment.... Where a note or other obligation and a mortgage upon real property have been given to secure a debt contracted after July 1, 1951, and the sale of the mortgaged premises has failed to satisfy in full the sum adjudged to be due and the costs of the action, the plaintiff may, in a separate action, ask for a deficiency judgment.... Any deficiency judgment obtained must be enforced by execution as provided by law, except that no execution may be enforced after three years from the date of the rendition of the deficiency judgment.

On its face, N.D.C.C. § 32-19-06 applies only to foreclosure of mortgages and land contracts. It does not specify liens granted in a divorce judgment under N.D.C.C. ch. 14-05. This Court rejected Kautz-man’s attempt to subject liens granted under N.D.C.C. ch. 14-05 to the foreclosure procedures of N.D.C.C. ch. 32-19 in Kautzman III, at ¶¶ 14, 15. This Court had earlier summarily rejected, under N.D.R.App.P. 35.1, Kautzman’s argument that N.D.C.C. ch. 32-19 should control foreclosure of judicial liens, in Kautzman II, at ¶ 10. Kautzman’s perverse arguments have not persuaded us that a party in a divorce action who gets a money judgment for money or other property owed that party under a divorce judgment and forecloses a judgment lien, but whose judgment is not fully satisfied by the sale of the debtor’s property at the sheriff’s sale, is limited by N.D.C.C. § 32-19-06 to three years within which to enforce the equitable liens after judgment.

[¶ 26] Kautzman asserts “that for substantive purposes the equitable lien given to Rachel is a mortgage, or a judicially supervised sale and purchase of real property with a retained lien for the purchase price, both concepts falling within the substantive protections afforded Robert under the anti-deficiency statutes.” Clearly, the lien granted Dietz in the divorce judgment was not a sale and purchase of real property. We rejected Kautzman’s argument that the lien given to Dietz is a mortgage in Kautzman III, at ¶¶ 15, 16, and Kautz-man has again not shown it to be a mortgage, which N.D.C.C. § 35-03-01.1 says is a contract.

[¶ 27] Kautzman’s reliance on decisions, such as Oropallo v. Oropallo, 68 Cal.App.4th 997, 80 Cal.Rptr.2d 669 (1998); Red River State Bank v. Reierson, 533 N.W.2d 683 (N.D.1995); Borsheim v. Owan, 467 N.W.2d 95 (N.D.1991); and Langenes v. Bullinger, 328 N.W.2d 241 (N.D.1982), involving radically different fact situations than those presented in this case is misplaced.

[¶ 28] We conclude Kautzman has not shown N.D.C.C. § 32-19-06 applies to any judgment involved in this case.

IV

[¶ 29] Dietz has requested “attorneys fees incurred in this appeal pursuant to N.D.C.C. § 14-05-23,” contending Kautz-man “has asserted positions on appeal that lack merit and are frivolous.” “We have often expressed a preference to have this issue addressed initially by the trial court.” Kautzman I, at ¶ 37. As we did in that decision, “[w]e direct the trial court on remand to consider awarding attorney fees to [Dietz] for this appeal.” Id.

V

[¶ 30] The bench warrant and the order appealed from are affirmed and the matter is remanded for a determination of Dietz’s attorney fees on appeal.

[¶ 31] GERALD W. VANDE WALLE, C.J., ALLAN L. SCHMALENBERGER, D.J., WILLIAM A. NEUMANN, and DALE V. SANDSTROM, JJ., concur.

[¶ 32] The Honorable ALLAN L. SCHMALENBERGER, D.J., sitting in place of KAPSNER, J., disqualified.

      . As Justice Story once observed, "it is for the public interest and policy to make an end to litigation ... that suits may not be immortal, while men are mortal.” Ocean Ins. Co. v. Fields, 18 Fed. Cas. 532, 539 (C.C.D.Ma.1841) (No. 10,406), quoted in Lang v. State, 2001 ND App 2, ¶ 2 n. 1, 622 N.W.2d 238. See also Matrix Props. Corp. v. TAG Invs., 2002 ND 86, ¶ 38, 644 N.W.2d 601; City of Wahpeton v. Drake-Henne, Inc., 228 N.W.2d 324, 331 (N.D.1975).

      . This indicates the subject of allocating the payment was considered, but Kautzman chose not to request allocation of the payment to spousal support until after the payment had been made by Alerus. Ordinarily, "parties will not be relieved from free, calculated, deliberate choices they have made,” and it is not this Court's "function to allow second-guesses on trial strategy." State v. Motsko, 261 N.W.2d 860, 864 (N.D.1977). We need not attempt to determine if Kautzman's failure to seek allocation before November 20, 2002, constituted "a deliberate trial tactic designed to 'sandbag' the judicial process,” State v. Trieb, 315 N.W.2d 649, 655 n. 8 (N.D.1982).


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2003 SD 92
    Diana HICKS, Plaintiff and Appellant, v. GAYVILLE-VOLIN SCHOOL DISTRICT, Defendant and Appellee.
    No. 22579.
    Supreme Court of South Dakota.
    Argued Feb. 12, 2003.
    Decided July 30, 2003.

      Scott R. Swier of Doyle, Kennedy & Rokahr, Yankton, for plaintiff and appellant.
    Gerald L. Kaufman, Huron, for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Diana Hicks began teaching at the Gayville-Volin school in the fall of 1990. During the course of her employment, various administrators had concerns about her performance. In the spring of 2001, she was informed by the superintendent that her contract would not be renewed for the 2001-2002 school year. After a hearing before the Gayville-Volin School Board of Education (Board), the Board unanimously voted not to renew Hicks’s contract. She appealed the Board’s decision to circuit court. The circuit court affirmed the Board’s decision. We affirm.

FACTS

[¶ 2.] Hicks began teaching in the Gay-ville-Volin School District in the fall of 1990. During her ten years at Gayville-Volin, Hicks taught health, physical education, and social studies. For the 2000-2001 school year, Hicks taught 7th grade social studies, 6th-8th grade health, and K-8th grade physical education.

[¶ 3.] Throughout Hicks’s employment, various administrators documented concerns about her performance. In 1995, Superintendent Dale Waysman was concerned that Hicks: used inappropriate examples; discussed students with other staff members where students could hear the conversation; had favorites in class; and, needed help with strategies concerning student evaluations and student discipline.

[¶ 4.] In the spring of 1997, Principal Nancy Fargo evaluated Hicks and implemented a formal plan of study (plan of assistance). The plan of assistance was instituted because Fargo believed that Hicks needed to improve in the use of instructional objectives, and those objectives needed to be in her lesson plans; she needed to improve her class preparation; she needed to get her grades to teachers as required; and, she needed to take courses for professional growth. Because Hicks was placed on a plan of assistance, Fargo recommended that the Board renew Hicks’s employment contract for the 1997-1998 school year.

[¶ 5.] During the 1998-1999 school year, the Board changed its evaluation program and adopted a teacher self-evaluation procedure. Hicks acknowledged that it was the teacher’s responsibility to initiate that evaluation procedure. However, Hicks failed to initiate the self-evaluation, and she failed to meet with the principal to discuss the evaluation in order to determine whether the goals had been accomplished. Hicks specifically failed to indicate on the evaluation instrument how her identified goals would be measured in order to determine if those goals had been accomplished; she did not document whether the goals had been accomplished; and she failed to meet Fargo as required at the end of the 1998-1999 school year to discuss the evaluation. Hicks also failed to initiate the self-evaluation procedure for the 1999-2000 school year. Hicks failed to do so even though it had been requested by the administration and even though other staff members completed this requirement.

[¶ 6.] Jason Selchert was hired as the District’s CEO for the 2000-2001 school year. He evaluated Hicks’s class on January 24, 2001. He also placed Hicks on a plan of assistance. His concerns were that Hicks was not teaching all aspects of developmental activities, she was not sufficiently prepared for her classes, she did not give thorough and definite teaching directions, and she did not challenge students with “higher order thinking.” Sel-chert subsequently opined that Hicks did not satisfactorily complete the plan of assistance, and he recommended that the Board not renew Hicks’s teaching contract for the 2001-2002 school year. The Board accepted that recommendation, and Hicks received written notice of the Board’s decision not to renew her contract. Hicks was given the following reasons for the Board’s decision:

1. Failure to meet the needs of the students,
2. Failure to follow the physical education plan of study,
3. Inability to successfully challenge students,
4. Failure to be prepared for all instructional duties, and
5. Inability to motivate herself in areas of deficiency to facilitate growth.

[¶ 7.] Hicks requested a hearing before the Board. At the conclusion of the hearing on May 24, 2001, the Board did not vote on Hicks’s continued employment. The Board met a second time on May 31, 2001, and without making a final decision, invited Hicks and her attorney to meet with the Board in executive session on June 11, 2001. At the conclusion of the June 11 meeting, the Board voted not to renew Hicks’s teaching contract. On June 26, 2001, the Board issued written findings of fact and conclusions of law in conformance with its decision.

[¶ 8.] Hicks appealed the Board’s decision to the circuit court. The circuit court held a hearing to allow additional evidence concerning the procedure followed by the Board. The circuit court did not, however, hear additional evidence dealing with the merits of the Board’s decision. After reviewing the record, the circuit court affirmed the Board’s decision.

[¶ 9.] Hicks appeals the circuit court’s ruling, raising two issues.

1. Whether the Board acted arbitrarily, capriciously, or abused its discretion in non-renewing Hicks’s teaching contract for the 2001-2002 school year.
2. Whether the procedural requirements of South Dakota’s continuing contract law were followed, and if not, whether reinstatement is required.

STANDARD OF REVIEW

[¶ 10.] SDCL 13-46-6 allows a party to appeal a school board decision. That statute provides for a de novo trial to the circuit court.

The trial in the circuit court shall be de novo according to the rules relating to special proceedings of a civil nature so far as such rules are applicable and not in conflict with the provisions of this chapter and the court shall enter such final judgment or order as the circumstances and every right of the case may require and such judgment or order may be enforced by writ of execution, mandamus, or prohibition, or by attachment as for contempt.

Id. Despite the “de novo” language of this statute, this Court has long held that the standard of review is not that traditionally used in an ordinary trial de novo. Instead, great deference is given to the good faith determinations of school boards whether to renew a teacher’s contract. Wuest v. Winner School Dist. 59-2, 2000 SD 42, ¶ 12, 607 N.W.2d 912, 915; Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 25 (S.D.1989). Consequently, we have repeatedly stated:

[T]he circuit court’s review is not a trial de novo in the ordinary sense of the phrase. School boards are creatures of the [Ljegislature and the judiciary may not interfere with their decisions unless the decision is made contrary to law. Therefore, “[a]s long as the school board is legitimately and legally exercising its administrative powers, the courts may not interfere with nor supplant the school board’s decision making process.” Only the legality of the decision, not the propriety of the decision, may be reviewed by the courts. The legality of a school board’s decision is determined by a two-prong review. First, the procedural regularity of the decision is reviewed. This review includes whether the school board was vested with the authority to act and whether all procedural requirements required by law were followed. Second, the school board’s decision is reviewed to determine whether the decision was arbitrary, capricious or an abuse of discretion.

Gauer v. Kadoka School Dish No. 35-1, 2002 SD 73, ¶ 5, 647 N.W.2d 727, 730 (further citations omitted).

[¶ 11.] An arbitrary or capricious decision is one that is: “based on personal, selfish, or fraudulent motives, or on false information, and is characterized by a lack of relevant and competent evidence to support the action taken.” Coyote Flats, L.L.C. v. Sanborn County Com’n, 1999 SD 87, ¶ 14, 596 N.W.2d 347, 351 (quoting Tri County Landfill Ass’n, Inc. v. Brule County, 535 N.W.2d 760, 764); see also Hendriks v. Anderson, 522 N.W.2d 499 (S.D.1994); Iversen v. Wall Bd. of Educ., 522 N.W.2d 188 (S.D.1994); Riter v. Woonsocket School Dist., # 55-1, 504 N.W.2d 572 (S.D.1993). “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” In re South, Dakota Microsoft Antitrust Litigation, 2003 SD 19, ¶ 5, 657 N.W.2d 668, 671 (quoting Black v. Class, 1997 SD 22, ¶ 27, 560 N.W.2d 544, 551). “In applying the abuse of discretion standard, ‘we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.’ ” Id. (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995)). “Under such a standard of review we must be careful not to substitute our reasoning for that of the [lower tribunal].” Id. (quoting State v. Larson, 512 N.W.2d 732, 736 (S.D.1994)).

[¶ 12.] Although Gauer and some of our other decisions have also included a reference to the “clearly erroneous” standard of review in discussing this second prong, we clarify that the clearly erroneous standard only applies to the facts determined by the school board. As we have noted on other occasions, the clearly erroneous standard of review applies when the question is one of fact. Wuest, 2000 SD 42, ¶12, 607 N.W.2d at 916; Hughes v. Stanley County School Board, 1999 SD 65, ¶ 15, 594 N.W.2d 346, 351; Maasjo v. McLaughlin Sch. Dist. No. 15-2, 489 N.W.2d 618, 621 (S.D.1992); Aman v. Edmunds Cent. School Dist. No. 22-5, 494 N.W.2d 198, 199 (S.D.1992); Kellogg v. Hoven Sch. Dist. No. 53-2, 479 N.W.2d 147, 150 (S.D.1991); Jager, 444 N.W.2d at 26. Therefore, notwithstanding language to the contrary, we do not apply the clearly erroneous standard of review to determine whether under the facts, the board’s decision was arbitrary, capricious or an abuse of discretion.

DECISION

[¶ 13.] 1. The Board did not act arbitrarily, capriciously, or abuse its discretion in non-renewing Hicks’s teaching contract for the 2001-2002 school year.

[¶ 14.] The continuing contract law for teachers is found in SDCL §§ 13-43-6.1 to 6.6. SDCL §§ 13-43-6.1, 6.2 and 6.3 grant tenure to teachers who are in or beyond their fourth consecutive term of employment with a school district. If a teacher is tenured, the Board must have just cause to terminate, and the board must give written notice of the> reasons for non-renewal. It must also give the teacher access to employment records, an opportunity for a hearing, and an opportunity to be represented. SDCL 13-43-6.2. The purpose of these tenure statutes is to provide teachers with employment security and to prevent dismissals without cause. However, tenure does not prohibit a school board from non-renewing a teacher’s contract. Tenure simply entitles a teacher to the procedural and substantive due process rights set forth in these statutes before a teacher’s contract is terminated or not renewed. Iverson v. Wall Board of Education, 524 N.W.2d 624, 626 (S.D.1994) (Iverson II).

[¶ 15.] In considering whether the Board’s decision was arbitrary, capricious, or an abuse of discretion, we first note that there had been concerns about the quality of Hicks’s teaching since 1995. She was placed on a plan of assistance three separate times. Each time Hicks’s performance would improve while on the plan and then deteriorate again as soon as she completed the plan. Even though she recognized that the work she did under the plans of assistance was beneficial to her, she stopped the work improvement as soon as the plans ended. She also failed to participate in the District’s self-evaluation program even though she was reminded to do so. These failures were relevant and competent evidence that a reasonable board might accept as adequate to support the conclusion that her contract should not be renewed.

[¶ 16.] Although Hicks does not contest these facts, she first contends that the administration did not make an effort to contact her and have her come into the office to talk about her deficiencies. However, Hicks was reminded that she needed to set up an appointment to talk to her supervisor about her self-evaluation, and she failed to follow through. Moreover, this Court defers to the Board’s findings of credibility especially in cases such as this where the Board specifically found that Hicks’s testimony at the Board hearing was not credible.

[¶ 17.] Notwithstanding the deference we give to credibility determinations, Hicks argues that Jason Selchert was not a credible evaluator. We addressed a similar conflict over the qualifications of the evaluator in Iversen v. Wall Board of Education, 522 N.W.2d 188 (SD 1994) (Iversen I). There, a tenured teacher filed a grievance because she disagreed with the principal’s assessment. Id. at 190-191. One of the teacher’s arguments was that the principal was inexperienced. However, we noted that although that principal was relatively new to the school district, the school board determined that his education and experience qualified him to evaluate staff. Id. at 193.

[¶ 18.] Here, the Board determined that Selchert was qualified to conduct employee evaluations. Although Selchert was new at the school, the record reflects that he had completed graduate level administration courses, including courses on staff supervision. Selchert was also a school principal before he became the District’s CEO. Moreover, Selchert was the third administrator to place Hicks on a plan of assistance. Finally, Hicks had been on this latest plan of assistance for almost two months before Selchert determined that it was in the best interests of the Board not to renew her contract. Under these facts, we conclude that a reasonable Board member could have adopted Selchert’s opinions over Hicks’s.

[¶ 19.] Hicks finally argues that the evidence presented to the Board was not sufficient to justify the non-renewal when it is compared to our decisions in Gauer, 2002 SD 73, 647 N.W.2d 727; Wuest, 2000 SD 42, 607 N.W.2d 912; Collins, 1998 SD 17, 574 N.W.2d 889; and Jager, 444 N.W.2d 21. We disagree.

[¶ 20.] Gauer stands for the proposition that a single incident may not justify the non-renewal of a contract, and that a board should consider all relevant information. Gauer, 2002 SD 73, ¶ 17, 647 N.W.2d at 733. This case, however, involved more than a single incident, and Hicks has not identified any relevant information that was not considered.

[¶ 21.] In Wuest, we sustained a board decision not to renew a contract because the teacher had been on a plan of assistance and had failed to complete that plan of assistance satisfactorily. The board in Wuest held a hearing and “heard evidence from both sides on the issue of whether or not to renew the contract.” Wuest, 2000 SD 42, ¶ 38, 607 N.W.2d at 920. We. concluded that the Board “was in the best position to judge the credibility of the witnesses and to weigh the facts.” Id. We ultimately held that the school board decision “[was] not contrary to the evidence in [that] record.” Id. So also, this Board decision was based on credibility determinations, and it was not contrary to the evidence in the record.

[¶ 22.] Although a board termination-was reversed in Collins, that case is distinguishable. It is distinguishable because in that case, the teacher had twenty-nine years of satisfactory service, but that contract was terminated after just one error in judgment. , While not approving a termination under those circumstances, we did however note that “[a] person who habitually fails to perform his work with the degree of skill or accuracy usually displayed by other persons regularly employed in such work is incompetent. And the same is true of one who usually performs substantially less than others regularly so employed.” Collins, 1998 SD 17, ¶ 18, 574 N.W.2d at 893 (quoting Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 297 (S.D.1982)). This case falls within the latter rule because Hicks had been on three plans of assistance by three different administrators. Hicks’s failures were not a single error in judgment.

[¶ 23.] Jager is distinguishable for the same reasons. In that case the teacher had five years of excellent evaluations pri- or to an evaluation in which a principal noted only .one area that needed improvement. Jager, 444 N.W.2d at 26. Moreover, Jager was not placed on a plan of assistance following the evaluation that revealed a need for improvement. On the other hand, three different administrators noted deficiencies in Hicks’s performance, she was placed on three different plans of assistance, and she did not successfully complete the last plan of assistance. Jag-er is therefore distinguishable.

[¶24.] We conclude that the Board’s decision was not arbitrary, capricious, or an abuse of discretion.

[¶ 25.] 2. Most of the procedural requirements of South Dakota’s continuing contract law were followed. To the extent they were not, reinstatement is not required.

[¶ 26.] This issue focuses on the procedural prong of the standard of review. The question is whether the Board had authority to act and whether it followed all procedural requirements.

[¶ 27.] The Board’s authority to act is found in SDCL 13-48-6.1 to 6.6. See n. 2, supra. SDCL 13-43-6.1 provides that a teacher may be terminated for just causes, including incompetency, poor performance, and insubordination. In this case, the Board made its decision not to renew Hicks’s contract for five reasons involving poor performance. See ¶ 6, supra. Therefore, the Board had the .authority to terminate for just cause under SDCL 13—43-6.1.

[¶ 28.] In addition to having authority to act, the Board must also comply with all procedural requirements. Iverson II, 524 N.W.2d at 626 (quoting Jones v. Sully Buttes Schools, 340 N.W.2d 697, 699 (S.D.1983)). The relevant procedural requirements include written notice of the Board’s intent to non-renew the contract, a written statement of the reasons for non-renewal, access to employment records of the teacher, opportunity for a hearing, and the right to be represented by counsel. SDCL 13-43-6.2.

[¶ 29.] The Board afforded Hicks these rights. The Board provided Hicks with a written notice of non-renewal, which included the reasons for the non-renewal. She requested a hearing before the board, which took place on May 24, 2001. At the hearing, Hicks was given an opportunity to present reasons, in person or in writing, why the termination should not occur. In addition, the Board met in executive session with Hicks and her attorney on June 11, 2001. Although this executive session was not a typical board procedure, it did not violate any statutory requirements.

[¶ 30.] In addition to statutory procedures, school board policies have the force of - law and must be complied with. Iverson II, 524 N.W.2d at 628; Schnabel v. Alcester School District, 295 N.W.2d 340, 341 (S.D.1980). However, not every violation of a school policy will result in reinstatement. See, Schaub v. Chamberlain Board of Education, 339 N.W.2d 307, 310 (S.D.1983); Fries v. Wessington School District, 307 N.W.2d 875, 879 (S.D.1981). A procedural violation will only justify reinstatement if the teacher proves that the violation directly and substantially impaired the teacher’s ability to improve. Id.

. [The] proper test in determining whether reinstatement is the proper remedy for a violation of the teacher evaluation statutes or the collective bargaining agreement is whether a grievant has shown that the violation substantially and directly impaired his or her ability to improve himself or herselfi.]

Id.

[¶ 31.] Here, Hicks first claims that she was improperly compared with other faculty members in violation of a Board policy. We disagree. The purpose of this Board policy was to discourage teaching comparisons of teachers. However, none of Hicks’s complaints involved such comparisons. Instead, the comparison of Hicks’s conduct with others was unrelated to teaching methods or abilities. The comparisons to other teachers related only to compliance with school procedures and Hicks’s failure to follow those procedures.

[¶ 32.] Hicks also claims that school policy was violated because the evaluation documents were not “signed and dated” by both parties. However, Hicks admitted that she received a copy of the evaluation, which was put in her mailbox. Moreover, she never made any effort to discuss the evaluation with the administration. Such technical violations did not impair her ability to improve herself.

[¶ 33.] In a related matter, Hicks claims that the school administration did not comply with her procedural rights because her last evaluation did not include any recommendations for improvement. Hicks also claims that a particular “process improvement plan” was not completed or shared with her. However, the last evaluation articulated her deficiencies and •the specific requirements for improvement. Moreover, Hicks admitted that she received the written report of her classroom observations, albeit not on the particular required form. She also received a memo, 27 days after she had been placed on the plan of assistance, from the administrator advising her that her “weekly outlines” were not the “specific daily class outlines” that had been requested; that she needed to use the “Madeline Hunter” model in her lesson plans (which had not been used to that point); and that she needed to make notes on her lesson plans to describe the things that were and were not working.

[¶ 34.] Thus, through the documents Hicks possessed, her deficiences were identified. Moreover, Selchert sat down with her and explained the plan of assistance. Selchert also gave her his evaluation recommending a nonrenewal before he had even talked to the Board about it. Finally, as the trial court noted, “Hicks had been placed on several plans of assistance which contained recommendations for improvement so that she was aware of what the administration wanted.” However, Hicks did not follow through. We have previously noted that a record which establishes that the superintendent was standing ready to meet and assist, coupled with a teacher’s failure to use the opportunity to respond, question, object and ask for clarification or show where the superintendent was wrong in the evaluation, may preclude a finding that more specific assistance would have been effective. Nordhagen v. Hot Springs School District No. 23-2, 474 N.W.2d 510, 513 (S.D.1991). The burden is on the teacher challenging the Board’s decision to overcome the presumption that the Board was acting in good faith. Id. (citing Lantz v. Chamberlain Independent School District #1, 254 N.W.2d 155 (S.D.1977)). Here, Hicks has failed to meet that burden. Hicks did not sign a document which she admits receiving; she did not receive other documents, but received the information that would have been contained in them; and although she may not have had the extent of a formal face-to-face review with the administration that normally occurs, that failure did not substantially and directly impair her ability to improve herself. Schaub, 339 NW2d at 310.

[¶ 35.] We affirm.

[¶ 36.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . See, Collins v. Faith School District # 46-2, 1998 SD 17, ¶ 13, 574 N.W.2d 889, 892; Tschetter v. Doland Board of Education, 302 N.W.2d 43, 45-46 (S.D.1981).

      . SDCL 13-43-6.1
      A teacher may be terminated, by the school board, at any time for just cause, including breach of contract, poor performance, incompetency, gross immorality, unprofessional conduct, insubordination, neglect of duty, or the violation of any policy or regulation of the school district.
      SDCL 13-43-6.2
      The superintendent or the school board shall give written notice of the termination to the teacher; a written statement of the reasons for the termination; access to the employment records of the teacher; the opportunity to the teacher for a hearing before the school board to present reasons in person or in writing why the termination should not occur; and the opportunity to be represented. The hearing provided by this section shall be requested within fifteen days after receipt of the notice. The school board shall conduct the hearing not sooner than fourteen days, nor later than forty-five days, after receipt of the teacher's request for hearing. The parties may waive the time limitations provided for in this section.
      SDCL 13-43-6.3
      Until a teacher is in or beyond the fourth consecutive term of employment as a teacher with the school district, a school board may or may not renew the teacher’s contract. The superintendent or school board shall give written notice of nonrenewal by April fifteenth but is not required to give further process or a reason for nonrenewal. After a teacher is in or beyond the fourth consecutive term of employment as a teacher with the school district, §§ 13-43-6.1 and 13-43-6.2 apply to any nonrenewal of the teacher’s contract. On or before April fifteenth, the school board shall notify the teacher in writing of its intention to not renew the teacher’s contract.
      Acceptance by the teacher of an offer from the district to enter into a new contract with the teacher shall be in the manner specified in the offer. Failure of the teacher to accept the offer in the manner specified shall result in the termination of the existing contract between the teacher and the district at the end of its term.
      SDCL 13-43-6.4
      Notwithstanding §§ 13-43-6.1 to 13-43-6.3, inclusive, if a teacher’s contract is not renewed due to a reduction in staff, only written notice is required, which shall be provided by the school board to the teacher by April fifteenth.
      SDCL 13-43-6.5

        A teacher's employment may not be terminated because of the amount of the teacher's compensation.
      SDCL 13-43-6.6
      Although a collective bargaining ágreement between a districf and its teachers may set forth specific additional grounds for termination or set forth provisions as to the procedure or notice, no agreement- may limit the district’s right to terminate a teacher for the grounds set forth in §§ 13-43-6.1 to 13-43-6.3, inclusive. No agreement may limit the. protection.afforded to a teacher under § 13-43-6.5.

      . Iverson II relied on SDCL 13 — 43—9.1 et seq. These statutes were repealed in 1995 and were replaced by SDCL 13-43-6.1 to 6.6.

      . The hearing was held within forty-five days, and not sooner than fourteen days, as mandated by SDCL 13-43-6.2.

      . The fact that Hicks was given this additional opportunity to address the concerns of the board was to her benefit, and she has not demonstrated prejudice.

      . Fargo testified: that she had to personally obtain Hicks’s grades from her, but, Fargo did not have to do that with other teachers; that Fargo sent out a notice to all staff members to go over their evaluation form with her, but Hicks did not do so; and that Fargo conducted a classroom observation with Hicks and every other staff member.

      . We also note there was a dispute of fact over the extent of the review. The administrator denied that he had failed to honor her request to see if her lesson plans met his approval. We do not second guess these credibility determinations on appellate review.


author: GILBERTSON, Chief Justice SABERS, Justice

text:
    2003 SD 90
    Winston G. BRAKEALL, Petitioner and Appellant, v. Douglas WEBER, Warden South Dakota State Penitentiary, Respondent and Appellee.
    No. 22592.
    Supreme Court of South Dakota.
    Considered on Briefs April 28, 2003.
    Decided July 30, 2003.

      Timothy J. Wilka, Sioux Falls, South Dakota, Attorney for petitioner and appellant.
    John M. Strohman, Assistant Attorney General, Lawrence E. Long, Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   GILBERTSON, Chief Justice

[¶ 1.] Winston Brakeall petitions this Court for a writ of habeas corpus alleging his guilty pleas for two counts of rape and two counts of sexual contact were not knowing and voluntary; his counsel was ineffective; and the preparation and introduction of the presentence investigation report violated his right to due process of law. The habeas court denied Brakeall’s request for a writ of habeas corpus. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Brakeall pleaded guilty to one count of third degree rape, one count of first degree rape and two counts of sexual contact with a minor. Brakeall was sentenced to ten years for third degree rape, thirty years for first degree rape, and two ten year sentences for sexual contact with a minor. The sexual contact sentences were made to run consecutively. Brakeall did not exercise his right to direct appeal from these convictions.

[¶ 3.] Thereafter, attorney Carolyn Dick was appointed to represent Brakeall on habeas (habeas I). In that habeas proceeding, counsel raised the following issues:

Did an evaluation conducted as part of the presentence investigation report prepared by the victim’s therapist violate Brakeall’s right to due process?
Were Brakeall’s due process rights violated when he was given no opportunity to review the pre-sentence investigation prior to sentencing?
Does the requirement that Brakeall participate in the STOP program violate his Fifth Amendment right against self incrimination?
Did Brakeall enter a knowing and intelligent plea when the trial court failed to advise him of the mandatory minimum sentences he was facing?
Was Brakeall’s trial counsel ineffective when she failed to investigate and consider possible defenses and by failing to object to the presentence investigation?

[¶ 4.] The habeas court denied the application for a writ of habeas corpus and issued a certificate of probable cause. Attorney Dick was reappointed to represent Brakeall for the habeas appeal. She then filed a notice of appeal with this Court. That notice of appeal was one day late and pursuant to SDCL 21-27-18.1 this Court dismissed the appeal.

[¶ 5.] The State did not dispute that attorney Dick’s failure to timely file this notice of appeal was ineffective assistance of counsel. A second habeas corpus proceeding was then brought. The second habeas court issued a writ of habeas corpus directing that a certificate of probable cause be re-entered in Brakeall’s first ha-beas case as a result of habeas counsel’s ineffectiveness in failing to perfect his appeal. Brakeall was then granted a certificate of probable cause by the second habe-as court.

STANDARD OF REVIEW

[¶ 6.] The review of habeas decisions is “a collateral attack on a final judgment,” and thus more restricted than ordinary appeals. See Krebs v. Weber, 2000 SD 40, ¶ 5, 608 N.W.2d 322, 324 (citations omitted) overruled on other grounds by Jackson v. Weber, 2001 SD 136, 637 N.W.2d 19. The recognized standard of review is to determine: “(1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.” Id. We will not reverse the habeas court’s findings unless they are clearly erroneous. Id. Therefore, if the habeas court was “right for any reason,” we may affirm its ruling. Id.

ANALYSIS

ISSUE ONE

[¶ 7.] Whether Brakeall entered a knowing and voluntary plea when the trial court failed to advise him of the mandatory minimum sentences.

[¶ 8.] It is undisputed that the trial court failed to advise Brakeall of the mandatory mínimums for the crimes in which he pled guilty. Brakeall contends this failure renders his plea unconstitutional thus entitling him to habeas relief. Both parties assert this Court’s recent decision in State v. Richards, 2002 SD 18, 640 N.W.2d 480, is the controlling authority.

[¶ 9.] In Richards, this Court determined that the defendant was entitled to withdraw his guilty plea after the trial court failed to advise him of the statutory mandatory minimum as required by SDCL 23A-7-4 (Rule 11). Id. ¶ 15. That failure was deemed to constitute plain error requiring a reversal. Id. ¶ 6. Brakeall asserts that the same result is mandated here.

[¶ 10.] SDCL 23A-7 — 4(1) provides:

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

(emphasis added). “It is the trial court’s responsibility to inform a defendant of the mandatory minimum penalty and the maximum penalty provided by law.” Id. ¶ 7 (quoting State v. Wilson, 459 N.W.2d 457 (S.D.1990)). In reaching this result, the Richards court cited with approval North Dakota authority enunciating the following principles:

The failure to advise of the mandatory minimum sentence is more than a technical, harmless error and demonstrates a manifestation of injustice.
The trial court’s express statement on the record of an applicable mandatory minimum sentence eliminates the inherent danger of misinterpreting whether the defendant’s decision to plead guilty was made with full knowledge of the sentence which must be imposed as a result of that plea.
The interests of justice require that [the defendant] be allowed to withdraw his guilty plea.

Id. ¶¶ 13-14 (quoting State v. Schumacher, 452 N.W.2d 345 (N.D.1990)). Though the Richards decision involved a direct appeal case, Brakeall contends that the above cited authority indicates that the failure to advise of the mandatory minimum also constitutes constitutional error requiring a writ of habeas corpus to be issued. In response, the State cites footnote one of the Richards opinion to dispel this contention. That footnote states:

Regardless of what principal of law is applied in direct appeals, we hold that when a collateral attack is made on a guilty plea for failure of the district court to literally comply with new Rule 11, the defendant must show prejudice in order to qualify for § 2255 relief. In the absence of a fundamental defect which inherently results in the miscarriage of justice, or an omission inconsistent with the demands of fair procedure, relief cannot be given in a collateral attack on a guilty plea conviction based on failure of Rule 11 compliance when the plea was taken.
In State v. Moeller, 511 N.W.2d 803 (S.D.1994) the Court noted that failure to comply with SDCL ch 23A 7 does not rise to the level of a constitutional issue and is not proper for consideration of habeas corpus or similar collateral attack. The failure to advise a defendant of a maximum sentence under SDCL 23A-7-U is not a constitutional defect, in and of itself does not smack of a miscarriage of justice, and does not give rise to an opportunity to launch a collateral attack on a predicate conviction.

Id. n. 1 (emphasis added). This reasoning dispels Brakeall’s contention that a failure to advise of a mandatory minimum entitles him to habeas relief. The asserted grounds for relief are not within the scope of habeas review.

[¶ 11.] Furthermore, even if habe-as review were appropriate in order to collaterally attack his plea Brakeall is required to demonstrate prejudice resulting from the trial court’s failure to comply with Rule 11. See United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979) (holding collateral relief not available to defendant who shows only violation of formal requirements of Rule 11 and no prejudice). Here, not one but two habeas courts have found that Brakeall did not suffer prejudice as a result of the trial court’s failure to advise of the mandatory mínimums. The findings demonstrate that Brakeall was aware he faced a sentence in the double digits; Brakeall intended to plead guilty from the beginning of the case; and, based upon Brakeall’s statements at sentencing and counsel’s comments, the trial court’s advisement of the mandatory minimum would not have made a difference in the decision to plead guilty. Those findings are not clearly erroneous on this record. As a result, Brakeall has not met his burden and the writ of habeas corpus relating to this issue was properly denied.

ISSUE TWO

[¶ 12.] Whether Brakeall’s trial counsel was ineffective for failing to investigate.

[¶ 13.] Initially, Brakeall argues that his first habeas counsel was ineffective for failing to present evidence that his trial counsel was ineffective. In- this regard, he requests a remand for a hearing to address the facts surrounding trial counsel’s performance.

[¶ 14.] In Jackson, 2001 SD 30, ¶17, 637 N.W.2d at 23, this Court determined that:

We recognize that if habeas counsel must meet the same competency standards as trial counsel, then more than one claim of ineffective assistance of counsel may be brought on occasion. However, ineffective assistance of counsel at a prior habeas proceeding is not alone enough for relief in a later habeas action. Any new effort must eventually be directed to error in the original trial or plea of guilty.

Brakeall directs his contentions against the effectiveness of trial counsel by arguing that his first habeas counsel failed to challenge trial counsel’s representation. However, the record reveals that his first habeas counsel did indeed challenge trial counsel’s investigation of the case. Therefore, pursuant to Jackson, this Court addresses habeas counsel’s effectiveness only with the goal of proceeding directly to the issue of whether trial counsel was ineffective. Attorney Dick thoroughly examined trial counsel on this issue at the first habe-as hearing. The initial habeas court then determined that trial counsel was effective. Subsequently, the second habeas court determined that first habeas counsel was effective in her representation at that first habeas hearing. As a result, there are findings in the record as to the effectiveness of both attorneys. A remand is not required as these issues have been addressed below.

[¶ 15.] Ineffective assistance of counsel is a mixed question of fact and law upon which this Court can substitute its own judgment on whether counsel’s representation was ineffective. See Lykken v. Class, 1997 SD 29, ¶ 6, 561 N.W.2d 302, 304. In determining whether a defendant suffered from ineffective assistance of counsel, this Court has adopted the two prong test from 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 (1984). Those two prongs are: (1) whether trial counsel made errors that were so serious that she was not functioning as counsel guaranteed by the constitution; and, (2) whether those errors seriously prejudiced the defendant to the extent that they deprived him of a fair trial. “However, where there is no trial, as is the case here, the burden on the defendants to show ineffective assistance of counsel is increased. They must show not just deficient performance, but gross error by counsel in recommending that they plead guilty.” Coon v. Weber, 2002 SD 48, ¶ 12, 644 N.W.2d 638, 643.

The standard of review is highly deferential. There is a strong presumption that counsel’s performance falls within the wide range of professional assistance and the reasonableness of counsel’s performance is to be evaluated from counsel’s perspective at the time of the alleged error and in light of all the circumstances. The petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy-

Bradley v. Weber, 1999 SD 68, ¶ 19, 595 N.W.2d 615, 621.

[¶ 16.] Recently, in Randall v.Weber, 2002 SD 149, 655 N.W.2d 92, this Court examined a habeas challenge to an attorney’s investigation. Therein, we stated:

It is well settled that in reviewing trial counsel’s performance, it is not this Court’s function to second guess the decisions of experienced trial attorneys regarding matters of trial tactics unless the record shows that counsel failed to investigate and consider possible defenses and to exercise their good faith judgment thereon. The determination does not rest on whether this Court finds the tactics or strategy employed to be the most advantageous but, instead, whether counsel satisfied the Strickland standard of competence. In reviewing whether counsel acted reasonably we analyze counsel’s performance in light of the circumstances then existing. Neither the result reached nor second guessing with the benefit of hindsight determine the reasonableness of counsel’s performance.
While this court will not compare counsel’s performance to that of some idealized “super-lawyer” and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession. An attorney must make a reasonable investigation and must make reasonable decisions to forego particular investigations. A difference in trial tactics does not amount to ineffective assistance of counsel.

Id. ¶ 7 (citations omitted).

[¶ 17.] To succeed Brakeall is required to establish that the failure to investigate caused him to plead guilty rather than go to trial and that discovery of the evidence would have led counsel to change the recommendation as to the plea. Coon, 2002 SD 48, ¶ 13, 644 N.W.2d at 643. The testimony, as elicited by first habeas counsel from trial counsel, revealed that Brak-eall had read all the relevant police reports and then told trial counsel the reports concerning the sexual incidents were substantially accurate. Now, Brakeall asserts trial counsel was ineffective in not further investigating the children he admitted to assaulting. He also maintains counsel should have attempted to cast blame elsewhere through an alibi defense. However, given Brakeall’s statements it was reasonable for trial counsel not to proceed with investigating an alibi defense or issues of past abuse concerning these children in an attempt to question their veracity. Instead, it was reasonable for counsel to concentrate her efforts on securing a plea agreement based on the then-existing circumstances.

ISSUE THREE

[¶ 18.] Whether the presentence investigation report violated Brakeall’s right to due process of law.

[¶ 19.] Brakeall alleges that the presentence investigation report violated his right to due process of law because it was prepared by the therapist of an alleged victim. However, Brakeall was not charged for any contact relating to this alleged victim. Furthermore, Brakeall did not object to the report. In fact, Brak-eall’s trial counsel testified that the report contained recommendations she viewed as favorable. Those favorable findings were that Brakeall would benefit from treatment, no other reports of any other incident existed and that Brakeall was not a pedophile. She relied on these findings when arguing at the sentencing hearing for a lesser sentence.

[¶20.] For relief on this due process claim Brakeall was required to establish prejudice. State v. Holiday, 385 N.W.2d 332, 336 (S.D.1983). The habeas court found that there was no evidence that the report was inaccurate or in any way prejudicial. In fact, it found that there were a number of items that were very favorable to Brakeall. On these facts, Brakeall has not demonstrated what, if anything, contained in the presentence report' prejudiced him. Therefore, he has not established a due process violation.

ISSUE FOUR

[¶ 21.] Whether Brakeall’s due process rights were violated when he was not given an opportunity to review and object to the presentence investigation report.

[¶ 22.] Brakeall contends that his due process rights were violated when he was not given an opportunity to review the presentence report. Rather, Brakeall’s attorney was given full access to the report. Counsel took notes when she reviewed the report and subsequently met with Brakeall to review those notes. SDCL 23A-27-7 provides:

Before imposing sentence a court shall disclose the report of the presentence investigation to the defendant, the defendant’s counsel, if represented by counsel, and the prosecuting attorney, but the court may exclude any recommendation as to sentence, and other material that, in the opinion of the court, contains a diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information which, if 'disclosed, might result in harm, physical or otherwise, to the defendant or other persons. The court shall afford the defendant, the defendant’s counsel, or the prosecuting attorney an opportunity to comment thereon and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the pre-sentence report.

[¶ 23.] This Court has recognized that “questions of constitutional magnitude involving due process are reached when a prisoner is sentenced on the basis of assumptions concerning his criminal sentence which were materially untrue.” State v. Ellefson, 287 N.W.2d 493, 496 (S.D.1980) overruled on other grounds State v. Brammer, 304 N.W.2d 111 (S.D.1981). In Ellefson, there were errant facts concerning a defendant’s record and the matter was remanded for a reconsideration of sentencing. Id. at 497. In so doing, this Court held that it was violative of defendant’s right to due process to have his sentence based on inaccurate information. Id. However, this Court has not specifically addressed the disclosure requirements of SDCL 23A-27-7.

[¶ 24.] Though not identical, the federal counterpart to SDCL 23A-27-7 (Rule 32(c)(3)(a)) provides that “before imposing sentence the Court must verify that the defendant and defendant’s counsel have read and discussed the presentence report.” FedRCrimPro 32(c)(3)(a). The legislative history to that rule indicates that it “was designed to permit disclosure of the PSI to both the defendant and his counsel, and to impose upon the sentencing court the additional obligation of determining that the defendant and his counsel have had the opportunity to read the pre-sentence investigation report or summary thereof.” United States v. Stevens, 851 F.2d 140, 143 (6th Cir.1988) (citing House Judiciary Committee Notes, H.R.Rep. No. 94-247, U.S.Code Cong. & Admin.News 1975, p. 674 reprinted in 1987 Federal Criminal Codes and Rules 108). To fulfill the requirements of this rule, the sentencing court “must somehow determine that defendant and counsel have had an opportunity to read and discuss the PSI.” Id; United States v. Mays, 798 F.2d 78, 80 (3rd Cir.1986) (holding “the rule does not create an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report and discuss it with counsel. Instead, it appears that the drafters intended that the court need only somehow determine that the defendant has had this opportunity.”). But see United States v. Rone, 743 F.2d 1169, 1172 (imposing an affirmative duty on trial court’s to ascertain if defendant and counsel have discussed the report). Nevertheless, federal precedent interpreting this rule as not requiring an affirmative inquiry on the record also urges the trial court to make such an inquiry a regular part of the sentencing hearing to discourage non-meritous appeals. See United States v. Mitchell, 243 F.3d 953 (6th Cir.2001).

[¶ 25.] However, our rule does not require that the sentencing court verify that counsel and defendant have discussed and reviewed the report. Instead, SDCL 23A-27-7 requires disclosure of the report to the defendant and his counsel, if represented. In this situation, the report was not disclosed to defendant but only to his counsel. This contravenes the requirements of SDCL 23A-27-7. As such, the inquiry turns to whether or not this error requires a remand for re-sentencing.

[¶ 26.] As mentioned in issue three, relief on the basis of an asserted due process violation requires a showing of prejudice. See also United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir.2001) (determining that where no prejudice exists in a Rule 32 violation remanding for re-sentencing would require the “district court to undergo an exercise in futility in order to obtain the same sentence”). The record unequivocally establishes that Brakeall’s counsel reviewed the presentenee report, took notes and discussed it with him. Brakeall was also present during sentencing and heard counsel’s arguments concerning the favorable findings in the presentence report. Brakeall was then given an opportunity to address the court and did not dispute anything that was said concerning the presen-tence report. Significantly, Brakeall does not contend that anything in the presen-tence report was inaccurate. Furthermore, he does not indicate what if any additional matters he would have raised at sentencing if he had seen the report. See United States v. Prado, 204 F.3d 843, 845 (8th Cir.2000) (no prejudice shown for Rule 32 violation). Neither Brakeall nor his counsel objected to the presentence report or indicated to the trial court any errors contained therein. See State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766, 796 (2002) (holding defendant waived his qualified right to review presentence report by failing to object). Therefore, there is no showing of prejudice on these facts that would require a remand for re-sentencing.

[¶ 27.] The denial of the ■writ of habeas corpus is affirmed.

[¶ 28.] KONENKAMP and ZINTER, Justices, concur.

[¶ 29.] SABERS, Justice, dissents.

[¶ 30.] MEIERHENRY, Justice, disqualified.

SABERS, Justice

(dissenting).

[¶ 31.] I dissent on Issue 1 and would not reach Issues 2 through 4.

[¶ 32.] The failure of the trial court at sentencing to advise Brakeall of the minimum and maximum sentence prevents a knowing, intelligent and voluntary plea and is reversible error.

[¶ 33.] The majority opinion provides mere lip service to the language cited with approval in State v. Richards, as follows: The failure to advise of the mandatory minimum sentence is more than a technical, harmless error and demonstrates a manifestation of injustice.

The trial court’s express statement on the record of an applicable mandatory minimum sentence eliminates the inherent danger of misinterpreting whether the defendant’s decision to plead guilty was made with full knowledge of the sentence which must be imposed as a result of that plea.
The interests of justice require that [the defendant] be allowed to withdraw his guilty plea.

Richards, 2002 SD 18, ¶¶ 12-14, 640 N.W.2d at 483 (quoting State v. Schumacher, 452 N.W.2d 345 (N.D.1990)) (internal citations omitted).

[¶ 34.] The majority opinion then proceeds to ignore Richards because it involved a direct appeal rather than a habe-as corpus action, on the claimed basis that the violation is not a constitutional defect. By relying on a footnote in Richards to come to its conclusion that the law of that case does not apply here, the majority opinion ignores the actual text of the opinion. As noted in Richards, “[t]he importance of advising a defendant of the minimum penalty cannot be denied since a mandatory minimum penalty is an absolute while a maximum penalty is only a possibility.” Richards, 2002 SD 18, ¶ 11, 640 N.W.2d at 482. It is important to recognize that the footnote relied upon by the majority opinion deals specifically with mandatory maximum, rather than minimum penalties. The majority opinion’s assertion that failure to advise Brakeall of the mandatory minimum does not amount to constitutional error also ignores the law clearly expressed in South Dakota statutes.

[¶ 35.] SDCL 21-27-16(3) specifically provides:

Causes for discharge of applicant committed on judicial process. If it appears on the return of a writ of habeas corpus that the applicant is in custody by virtue of process from any court legally constituted, he can be discharged only for one or more of the following causes:
(3) where the process is defective in some substantial form required by law;

(emphasis supplied).

[¶ 36.] SDCL 23A-7-4(l) provides:
Before accepting a plea of guilty or nolo contendere, a court must address the defendant personally in open court ... and inform him of, and determine that he understands the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, and the maximum possible penalty provided by law.

(emphasis supplied). “It is the trial court’s responsibility to inform a defendant of the mandatory minimum penalty and the maximum penalty provided by law.” Richards, 2002 SD 18, ¶ 7, 640 N.W.2d at 482 (citing State v. Wilson, 459 N.W.2d 457 (S.D.1990)).

[¶ 37.] Citing United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the majority opinion asserts that Brakeall is required to show prejudice before he is entitled to relief. However, that assertion was not accepted by the majority opinion in Richards, which held that the defendant was entitled to withdraw his plea despite the fact that the mandatory minimum sentence was discussed at his sentencing hearing in his presence. Richards, 2002 SD 18, ¶¶ 20-23, 640 N.W.2d at 484. This Court should uphold its own precedent as provided in Richards.

[¶ 38.] In the context of habeas corpus, jurisdictional error is given an expansive construction. Due process violations, compliance with substantive statutory procedures and personal and subject matter jurisdiction are all subject to challenge in habeas corpus proceedings. Security Sav. Bank v. Mueller, 308 N.W.2d 761, 762 (S.D.1981) (additional citations omitted).

[¶ 39.] Here, “the process is defective in some substantial form required by law” and we have no choice but to reverse and issue a writ of habeas corpus to allow Brakeall to withdraw his plea.

      . The second habeas court determined that the first habeas counsel was ineffective solely for failing to timely file an appeal and therefore issued a certificate of probable cause as to those issues. Brakeall did not establish that first habeas counsel was ineffective at the first habeas hearing.

      . Under the federal rule it is undisputed that simply providing the report to counsel is not enough to meet the requirements of Fe-dRCrimPro 32. Federal Practice and Procedure, Wright, § 524 n. 42 (2002 supplement). The Wisconsin Court of Appeals has also held that it is in contravention of Rule 32 to withhold the report simply because it was disclosed to defense counsel. State v. Skaff, 152 Wis.2d 48, 447 N.W.2d 84, 88 (App.1989). This determination is supported by the rationale that “if incorrect or incomplete, no person is in a better position than [defendant] to refute, explain, or supplement the PSI.” Id.

      . We take this opportunity to indicate that it is advisable for the trial courts to make a finding on the record that the presentence report has been disclosed to the defendant to ensure the requirements of SDCL 23A-27-7 have been met before imposing sentence.