Fast Horse v. Weber

#26577-a-LSW

2013 S.D. 74

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****
VINCENT CHAD FAST HORSE, Petitioner and Appellant,

v.

DOUGLAS WEBER, WARDEN
OF THE SOUTH DAKOTA
STATE PENITENTIARY, Respondent and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

THE HONORABLE JOSEPH NEILES
Judge

****

CYNTHIA A. HOWARD of
Minnehaha County Office of
The Public Advocate
Sioux Falls, South Dakota Attorneys for petitioner
and appellant.

MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota Attorneys for respondent
and appellee.

****
CONSIDERED ON BRIEFS
ON AUGUST 27, 2013

OPINION FILED 10/16/13
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WILBUR, Justice

[¶1.] Vincent Fast Horse appeals the denial of his request for habeas corpus

relief. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Fast Horse was indicted by a grand jury in September 2007 for the

crimes of first-degree kidnapping, second-degree rape, and aggravated assault. The

State also filed a part two information, which alleged that Fast Horse had been

previously convicted of two felonies. The factual and procedural history of this case

is set forth in this Court’s opinion in State v. Fasthorse (Fasthorse), 2009 S.D. 106,

776 N.W.2d 233. 1

[¶3.] Traci Smith (trial counsel) was appointed to represent Fast Horse.

Fast Horse pleaded not guilty to the charges and the part two information at an

arraignment hearing 2 on October 24, 2007. The jury convicted Fast Horse of the

three charges.

[¶4.] On July 28, 2008, the trial court conducted an arraignment hearing in

relation to Fast Horse’s part two information at which Fast Horse pleaded guilty.

Ultimately, the trial court sentenced Fast Horse to 25 years in prison for

aggravated assault, 60 years in prison for second-degree rape, and 60 years in

1. We note that in the 2009 direct appeal we incorrectly referred to Fast Horse’s
last name as “Fasthorse.”

2. The judge (arraigning court) who presided over the October 24, 2007
arraignment was different from the judge (trial court) who presided over the
trial and the July 28, 2008 part two information arraignment.
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prison for first-degree kidnapping. These penalties were to run concurrently with

each other and consecutively to Fast Horse’s 1996 rape conviction. 3

[¶5.] Fast Horse appealed his convictions for aggravated assault,

kidnapping, and rape to this Court in Fasthorse. See generally id. This Court

affirmed Fast Horse’s convictions. Id.

[¶6.] Fast Horse filed a pro se petition for writ of habeas corpus on October

8, 2010. Fast Horse was appointed new counsel. On February 17, 2012, Fast Horse

filed an amended application for writ of habeas corpus. The habeas court filed a

writ of habeas corpus on the same day. A habeas hearing was held on June 5, 2012.

At the hearing, an investigator from the police department, trial counsel, Fast

Horse, and one of the two prosecutors, Paul Bengford, testified.

[¶7.] On August 10, 2012, the habeas court filed a memorandum decision

denying Fast Horse’s writ of habeas corpus. The habeas court subsequently entered

findings of fact and conclusions of law, and an order denying the permanent writ of

habeas corpus and judgment on September 10, 2012.

[¶8.] Fast Horse appeals the denial of his writ of habeas corpus and

presents the following issues on appeal:

1. Whether Fast Horse was denied effective assistance of
counsel when his trial counsel did not thoroughly
investigate his case; incorrectly advised him of the
maximum possible penalty; did not obtain a plea bargain
offer for him; and did not adequately attack the credibility
of the victim.

3. Fast Horse previously sought habeas relief from his 1996 rape conviction.
Relief was denied. This Court affirmed the denial of his request for habeas
relief. See Fast Horse v. Weber (Fast Horse I), 1999 S.D. 97, 598 N.W.2d 539.
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2. Whether Fast Horse was denied a fair trial when the trial
court limited his ability to cross-examine the victim.

3. Whether Fast Horse was denied due process of law when
the arraigning court incorrectly advised Fast Horse of the
maximum possible penalty.

STANDARD OF REVIEW

[¶9.] “A habeas corpus claim is a collateral attack on a final judgment and

therefore our review is limited.” Boyles v. Weber, 2004 S.D. 31, ¶ 6, 677 N.W.2d 531,

536. “A habeas corpus applicant has the initial burden of proof to establish a

colorable claim for relief.” Steiner v. Weber, 2011 S.D. 40, ¶ 4, 815 N.W.2d 549, 551

(quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 11, 590 N.W.2d 463, 468). “Habeas

corpus can only be used to review (1) whether the court had 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. (quoting Jenner, 1999 S.D. 20, ¶ 11, 590 N.W.2d at

468). A habeas court’s findings of fact will be upheld unless such findings are

clearly erroneous. Boyles, 2004 S.D. 31, ¶ 6, 677 N.W.2d at 536.

[¶10.] Additionally, we have previously delineated the standard of review for

claims of ineffective assistance of counsel:

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.

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Id. ¶ 7, 677 N.W.2d at 536 (quoting Hays v. Weber, 2002 S.D. 59, ¶ 12, 645 N.W.2d

591, 596).

DECISION

[¶11.] In this appeal, Fast Horse alleges four instances of ineffective

assistance of counsel that he claims affected the outcome of his trial. In addition,

Fast Horse alleges two due process violations. First, Fast Horse alleges that he was

denied a fair trial when the trial court limited his ability to cross-examine the

victim. Second, he alleges that he was denied due process when the arraigning

court incorrectly advised him of the maximum possible penalty.

[¶12.] 1. Whether Fast Horse was denied effective assistance of
counsel when his trial counsel did not thoroughly
investigate his case; incorrectly advised him of the
maximum possible penalty; did not obtain a plea bargain
offer for him; and did not adequately attack the
credibility of the victim.

[¶13.] Fast Horse alleges four instances of ineffective assistance of counsel.

Specifically, he contends that his trial counsel failed to thoroughly investigate his

case; incorrectly advised him of the maximum possible penalty; did not obtain a plea

bargain offer for him; and did not adequately attack the credibility of the victim.

[¶14.] “To prevail ‘on a claim of ineffective assistance of counsel, a defendant

must show that his counsel provided ineffective assistance and that he was

prejudiced as a result.’” State v. Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d 357,

360 (quoting State v. Thomas, 2011 S.D. 15, ¶ 21, 796 N.W.2d 706, 713). “[A]

defendant must show that counsel’s representation fell below an objective standard

of reasonableness.” Id. “The question is whether counsel’s representation

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amounted to incompetence under prevailing professional norms, not whether it

deviated from best practices or most common custom.” Id. Moreover,

[t]here 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 and the standard of review is highly
deferential. The petitioner must overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.

Boyles, 2004 S.D. 31, ¶ 27, 677 N.W.2d at 540 (quoting Siers v. Class, 1998 S.D. 77,

¶ 12, 581 N.W.2d 491, 495).

[¶15.] “To establish prejudice, there must be ‘a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Hannemann, 2012 S.D. 79, ¶ 11, 823 N.W.2d at 360 (quoting Thomas,

2011 S.D. 15, ¶ 28, 796 N.W.2d at 715). “Ultimately, . . . the question is whether

there is a reasonable probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt.” Id.

Case investigation

[¶16.] Fast Horse contends that trial counsel was ineffective because she

failed to interview the victim’s boyfriend. Fast Horse argues that the victim’s

boyfriend could have been a source of information to attack the victim’s credibility

because the victim completed a medical questionnaire in which she stated that she

had not had sexual intercourse within 72 hours prior to the rape even though the

victim’s boyfriend’s DNA was present in the victim and on her undergarments.

Fast Horse contends that “[the victim’s boyfriend] was an important source of

information about [the victim’s] sexual activity during the time frame of the alleged

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rape.” And Fast Horse alleges that “[i]n the end, [the victim’s boyfriend] might not

have been called as a witness for the defense, but he surely had information that

was pertinent to the case.”

[¶17.] “We have held that ‘standing alone, the fact that defense counsel failed

to investigate a witness does not by itself satisfy the prejudice prong of Strickland.’”

Boyles, 2004 S.D. 31, ¶ 31, 677 N.W.2d at 542 (quoting Siers, 1998 S.D. 77, ¶ 25, 581

N.W.2d at 497-98). And, in order for Fast Horse to establish prejudice, “he must

show ‘that the witness would have testified and that their testimony would have

probably changed the outcome of the trial.’” Id. “[S]peculation about the existence

of a witness and what the witness might say is [also] inadequate to undermine

confidence in the outcome and to establish the prejudice prong of a claim of

ineffective assistance of counsel.” Fast Horse v. Weber (Fast Horse I), 1999 S.D. 97,

¶ 18, 598 N.W.2d 539, 544 (emphasis added).

[¶18.] Trial counsel testified that she made a tactical decision not to solicit

any testimony from the victim’s boyfriend “[b]ecause all he would have really done

is confirm that [victim and victim’s boyfriend] had had sex.” Trial counsel stated

that if the victim’s boyfriend had confirmed that the two had sexual intercourse,

all it would have turned out to be is “So [the victim] was
mistaken when she told the doctor when she[ ] [was] under the
influence of alcohol and marijuana and had just been under this
traumatic event, so she had given the ER doctor inaccurate
information about having sex in the last 72 hours. Big deal.”

[¶19.] We agree with the habeas court that even if trial counsel should have

interviewed the victim’s boyfriend, Fast Horse did not offer any specific evidence

that demonstrated that trial counsel would have found relevant evidence from the

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victim’s boyfriend’s testimony that would have probably changed the outcome of the

trial. As noted by trial counsel, testimony from the victim’s boyfriend would not

have informed the jury as to whether the encounter between Fast Horse and the

victim was consensual or nonconsensual. And such testimony might have clarified

any credibility questions the jurors may have had regarding the victim’s activities

that evening based on her responses to the medical questionnaire. Indeed, trial

counsel took this into consideration and testified that the victim’s boyfriend’s

testimony could have hurt the position that the defense was trying to establish—the

victim’s lack of truthfulness. Additionally, Fast Horse failed to show that the

victim’s boyfriend would have testified at trial and only speculates as to what

information the victim’s boyfriend would have testified to had he been called to

testify. Taken together, Fast Horse’s argument is insufficient to establish the

prejudice prong of the Strickland test. Therefore, we cannot say that the habeas

court erred in its decision as to this point.

[¶20.] Fast Horse also alleges that his trial counsel failed to obtain video

surveillance footage from a convenience store that Fast Horse claimed he went to

with the victim on the night the rape occurred. Fast Horse contends that trial

counsel obtained video surveillance footage from other convenience stores but not

from the store identified by Fast Horse.

[¶21.] Trial counsel’s uncontroverted testimony at the habeas hearing

established that she and her staff investigated video surveillance footage, but were

unsuccessful in their efforts to obtain the specific video surveillance footage

identified by Fast Horse. Additionally, the record does not demonstrate nor does

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Fast Horse offer any explanation to this Court why this evidence was important or

relevant. As the habeas court determined, Fast Horse failed to present any

evidence to meet the first ineffective assistance of counsel prong. There is nothing

in the record to indicate that counsel’s failure to obtain the requested video

surveillance footage was any fault of her own. And, in any event, Fast Horse failed

to establish that had this evidence been obtained, it would have created a

reasonable probability the result of the proceeding would have been different.

Therefore, the habeas court’s determination as to this issue is affirmed.

Counsel’s advice on maximum possible penalty

[¶22.] Fast Horse alleges that trial counsel was ineffective because trial

counsel did not give Fast Horse correct advice as to the maximum possible penalty

he faced if convicted of the underlying charge of kidnapping and the part two

information. Fast Horse maintains that he was prejudiced in that he would have

been willing to consider a plea bargain offer had he known that he could have

received less than a mandatory life sentence.

[¶23.] At Fast Horse’s arraignment prior to trial in October 2007, the

arraigning court correctly advised Fast Horse that the kidnapping charge was a

class C felony and punishable by up to life in prison. The arraigning court also

discussed the legal effect of the part two information. Counsel for the State,

however, advised the arraigning court that because of the part two information, the

maximum penalty for the kidnapping charge would be a class B felony, a mandatory

life sentence. The arraigning court then advised Fast Horse as to the same. This

advice was incorrect, however. The South Dakota Legislature amended SDCL 22-7-

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7 in 2005 to state, in pertinent part, that the enhancement would “in no

circumstance . . . exceed the sentence for a Class C felony.” See 2005 S.D. Sess.

Laws ch. 120, § 383. The amendment was effective July 1, 2006. Thus, Fast Horse

actually faced a maximum penalty of life in prison and not a mandatory life

sentence.

[¶24.] Following trial, at the July 28, 2008 arraignment hearing in relation to

Fast Horse’s part two information, the trial court correctly advised Fast Horse that

the part two information would not “affect the penalty for kidnapping in the first

degree, as [the] maximum penalty for that charge is life imprisonment.” Fast Horse

pleaded guilty to the part two information. Additionally, trial counsel became

aware of the arraigning court’s mistaken advisement that same day and discussed

the correct penalty with Fast Horse.

[¶25.] At sentencing on October 10, 2008, trial counsel emphasized that Fast

Horse “ha[d] made a lot of bad decisions throughout his life, but [that] he ha[d]

steadfastly said from the very beginning of this case that he did not rape [the

victim].” And prior to making its final sentencing determination, trial court again

stated that the first-degree kidnapping charge was a class C felony.

[¶26.] As the habeas court determined, Fast Horse does not present any

evidence to show how his trial counsel’s failure to identify the correct maximum

penalty for the kidnapping charge prejudiced him. As established by trial counsel’s

testimony, Fast Horse had always maintained his innocence to the charged offenses

and a desire to go trial. Trial counsel also testified that she would never advise a

client to plead guilty to something that the client contends he or she did not do in

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order to receive a lighter sentence. Thus, even if counsel’s performance may have

fallen below an objective standard of reasonableness, Fast Horse did not identify

how this performance prejudiced him. Accordingly, we affirm the habeas court on

this issue.

Plea bargain

[¶27.] Fast Horse argues that his trial counsel was ineffective because she

failed to obtain a plea bargain offer for him. He contends that he would have

considered a plea bargain offer if he had known that he could have received less

than a mandatory life sentence. Fast Horse asserts that because his trial counsel

incorrectly advised Fast Horse as to the maximum penalty he faced, her mistake

affected how trial counsel represented Fast Horse in the plea bargaining phase of

his case.

[¶28.] “[A] defendant has no right to be offered a plea[.]” Missouri v. Frye, ___

U.S. ___, ___, 132 S. Ct. 1399, 1410, 182 L. Ed. 2d 379 (2012). See State v. Miller,

2006 S.D. 54, ¶ 16, 717 N.W.2d 614, 619 (stating that “there is no constitutional

right to be offered the opportunity to plea bargain”). Bengford testified that a plea

offer had been constructed in Fast Horse’s case. The offer “was that if [Fast Horse]

[pleaded] guilty to the second degree rape, and the Part Two Information, he would

be facing up to life, and we would be seeking a life sentence, if he [pleaded] to that.”

Bengford further testified that the State planned to seek the maximum penalty if

Fast Horse pleaded guilty to second-degree rape. Because of Fast Horse’s violent

criminal past, Bengford stated that any plea deal that would have been constructed

for Fast Horse would not have been a generous offer and that a significant sentence

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was appropriate. Bengford did not communicate this offer to Fast Horse’s trial

counsel. After reviewing his notes from the file, Bengford testified that the offer

“was written down by the other prosecutor in the case, Colleen Moran. And . . . the

[State’s] file indicates that the offer was relayed by [Moran] at the dispositional

conference.” Bengford did not recall whether Fast Horse responded to the offer.

Moran was not called to testify at the habeas hearing.

[¶29.] The habeas court correctly concluded that Fast Horse’s argument that

his trial counsel was ineffective for failing to obtain a plea bargain lacked

evidentiary support. Even though Bengford testified that a plea offer was

constructed and that notes from the State’s file indicated that Moran communicated

the offer to Fast Horse, Bengford did not personally offer a plea to Fast Horse nor

was Moran called to testify to confirm whether a plea offer was ever made to Fast

Horse. The habeas court was left to rely on the testimony of trial counsel and her

notes from the proceedings. And the habeas court found the testimony of Fast

Horse’s counsel to be credible. Boyles, 2004 S.D. 31, ¶ 23, 677 N.W.2d at 540

(internal citations omitted) (stating that “[c]redibility determinations are matters

for the trier of fact, . . . and we will not substitute our judgment for that of the judge

who saw the demeanor and heard the testimony of the witnesses”). In relying on

her notes from the proceedings, trial counsel testified that the State never

communicated an offer to the defense. She testified that at the dispositional

conference, Bengford indicated that there would not be any plea offers. Trial

counsel’s testimony further reflects that Fast Horse was not interested in a plea

bargain, that he maintained his innocence to the charged offenses, and that he

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wanted to go to trial. Trial counsel testified that she would never advise a client to

plead guilty to something that the client contends he or she did not do in order to

receive a lighter sentence.

[¶30.] Fast Horse contends that two recent United States Supreme Court

decisions support his argument. He cites to Lafler v. Cooper, ___ U.S. ___, 132 S.

Ct. 1376, 182 L. Ed. 2d 398 (2012) arguing that “[t]he U[nited] S[tates] Supreme

Court has recently affirmed that defendants have a right to competent counsel

during the plea bargaining process.” He also cites Missouri v. Frye, ___ U.S. ___,

132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) arguing that “an attorney who does not

even request an offer because of an erroneous belief about the maximum possible

penalty or to at least attempt to save his/her client from serving many years in

prison is not effective.”

[¶31.] In Lafler, the United States Supreme Court decided how to apply

Strickland’s prejudice test when ineffective assistance results in the defendant’s

rejection of a plea offer and the defendant is convicted at trial. ___ U.S. at ___, 132

S. Ct. at 1384-91. In Frye, the United States Supreme Court stated that

as a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and
conditions that may be favorable to the accused. Any exceptions
to the rule need not be explored here, for the offer was a formal
one with a fixed expiration date.

Id. at ___, 132 S. Ct. at 1408 (emphasis added). The Court in Frye held that

counsel’s failure to inform Frye of the written plea offer before it expired fell below

an objective reasonableness standard. Id. at ___, 132 S. Ct. at 1408-10. The Court

also held that Frye was required to show “not only a reasonable probability that he

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would have accepted the lapsed plea but also a reasonable probability that the

prosecution would have adhered to the agreement and that it would have been

accepted by the trial court.” Id. at 1410-11.

[¶32.] Our review of these two cases demonstrates that they are

distinguishable from the present case. Both Lafler and Frye involved undisputed

plea offers from the prosecution to the defendant. Here, while Bengford testified

that the notes from the State’s file indicated that Moran communicated the offer at

the dispositional conference, the record does not contain any evidence that a plea

offer was actually communicated to Fast Horse. Bengford did not personally offer a

plea to Fast Horse nor was Moran called to testify to confirm whether a plea offer

was made to Fast Horse. Thus, the habeas court was left with the testimony and

notes of Fast Horse’s trial counsel, which confirmed that no plea bargain was ever

offered to Fast Horse. Furthermore, Fast Horse never wanted to enter into a plea

bargain and Fast Horse always maintained his innocence to the charged offenses.

The habeas court found this testimony to be credible. Accordingly, the habeas

court’s determination as to this point is affirmed.

Victim’s credibility

[¶33.] Fast Horse contends that his trial counsel was ineffective because trial

counsel did not adequately attack the victim’s credibility with regard to victim’s

claim that Fast Horse had raped her. Specifically, he argues that the victim’s

answer in a medical questionnaire that she had not had sexual intercourse within

72 hours of the rape contradicted the DNA evidence. Fast Horse alleges that trial

counsel should have re-called the victim and medical witnesses in order to attack

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the credibility of the victim by presenting the victim’s contradictory statement to

the jury. Fast Horse contends that the jury was left to rely on trial counsel’s

statements in closing arguments as to the inconsistencies.

[¶34.] Trial counsel testified that the defense’s theory at trial was that Fast

Horse and the victim had consensual sexual intercourse. In explaining her

strategy, counsel testified,

[i]f I would have recalled [the victim] just to rehash [the
questionnaire answer issue], then [the State] would have had
another chance to have her say, “Well, even though you were
wrong about the 72 hours, you weren’t wrong about him
kidnapping you. You weren’t wrong about him taking you here.
You weren’t wrong about him doing this. You weren’t wrong
about him doing that.” It would have given the jury another
chance to be more sympathetic, and the last things they hear
would be all of the information I wouldn’t want them to hear.

[¶35.] The habeas court determined that trial counsel’s decision to not re-call

the victim or medical witnesses was sound trial strategy. The habeas court noted

that by calling the victim back to the stand, the defense could have potentially

created more sympathy for the victim and would have allowed the victim to explain

her statement in the medical questionnaire in some way that would have been

consistent with the DNA testimony. We agree. The decision by trial counsel was

defensible and sound trial strategy. Based on counsel’s trial strategy and rationale

for such strategy, the habeas court correctly determined that trial counsel was not

ineffective.

[¶36.] 2. Whether Fast Horse was denied a fair trial when the
trial court limited his ability to cross-examine the victim.

[¶37.] Fast Horse argues that he was denied a fair trial when the trial court

limited his ability to cross-examine the victim about her sexual activity in the 72

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hours prior to the rape and about her arrest on a drug charge, which occurred after

the rape. Fast Horse asserts that this information was important because it would

have impeached the victim’s credibility.

[¶38.] At trial, the court determined that cross-examination of the victim

concerning her drug charge was not relevant to her ability to recall events from the

night of the rape and that Fast Horse was trying to attack the victim’s character in

an impermissible manner. Fasthorse, 2009 S.D. 106, ¶ 15, 776 N.W.2d at 238-39.

The trial court also ruled that the victim’s statements on the medical questionnaire

concerning her sexual activity within 72 hours prior to the rape were not relevant

and the proper foundation had not been laid for the introduction of such evidence.

Id. ¶ 16, 776 N.W.2d at 239.

[¶39.] In Fasthorse, we agreed with the trial court and held that cross-

examination of the victim concerning her drug charge was not relevant to the

victim’s testimony concerning the rape. Id. ¶ 15, 776 N.W.2d at 238-39. As to the

limitation on the cross-examination concerning the victim’s sexual activity on the

night of the rape, we held that even if the trial court’s ruling was in error, Fast

Horse was not prejudiced because the results of the DNA test were eventually

presented to the jury, showing the presence of DNA from the victim, the victim’s

boyfriend, Fast Horse, and an unknown contributor. Id. ¶ 17, 776 N.W.2d at 239.

Additionally, Fast Horse was not prejudiced by the limited cross-examination on

this topic because trial counsel was allowed to present Fast Horse’s theory of the

case to the jury in her closing argument, including the impeaching DNA evidence.

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Id. Ultimately, we held that the trial court did not abuse its discretion. Id. ¶¶ 15-

16, 776 N.W.2d at 239.

[¶40.] The habeas court correctly determined that these arguments were res

judicata as they had been specifically addressed by this Court in Fasthorse. See id.

¶¶ 15-17, 776 N.W.2d at 238-39. It is settled law “that issues, which were raised in

a direct appeal, are res judicata on a writ of habeas corpus.” Rhines v. Weber, 2000

S.D. 19, ¶ 59, 608 N.W.2d 303, 316. Consequently, these issues are barred from

consideration by this Court.

[¶41.] 3. Whether Fast Horse was denied due process of law when
the arraigning court incorrectly advised Fast Horse of
the maximum possible penalty.

[¶42.] Finally, Fast Horse argues that he was denied due process of law when

the arraigning court incorrectly advised Fast Horse of the maximum possible

penalty he faced. Fast Horse contends that the arraigning court’s incorrect advice

resulted in a due process violation because Fast Horse’s trial counsel was also

“laboring under this [same] mistake” and it affected “how [trial counsel] represented

[Fast Horse] in the plea bargaining phase of his case.”

[¶43.] As was discussed previously, the arraigning court incorrectly advised

Fast Horse that he faced mandatory life in prison if convicted of the kidnapping

charge and the part two information. However, pursuant to the 2005 amendment of

SDCL 22-7-7, Fast Horse actually faced a maximum of life in prison. At the

arraignment on the part two information, the trial court correctly advised Fast

Horse of the maximum penalty.

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[¶44.] The habeas court determined Fast Horse’s argument as to this issue

lacked evidentiary support. We agree. Fast Horse does not offer any evidence as to

how the arraigning court’s incorrect statement regarding the maximum penalty

affected his ability to obtain a plea bargain through his trial counsel. The trial

court correctly advised Fast Horse of the maximum penalty at the arraignment

hearing prior to Fast Horse’s guilty plea to the part two information. Additionally,

Fast Horse had no interest in pursuing a plea bargain prior to trial; always

maintained his innocence to the charged offenses; and at all times wanted to go to

trial. Furthermore, Fast Horse received a lesser sentence from the trial court than

the sentence any plea offer would have provided him. Indeed, Bengford testified

that any plea offer from the State would not have been for anything less than the

maximum—a life sentence. And Fast Horse did receive less than the maximum

from the trial court—60 years in prison. Lastly, the only evidence presented to

support his position is Fast Horse’s own testimony that he would have considered a

plea bargain offer for anything less than a life sentence. But, trial counsel testified

that she has never encouraged a client to plead guilty to something he asserts that

he did not do in order to receive a more favorable sentence. Accordingly, the habeas

court correctly determined that Fast Horse failed to demonstrate how the

arraigning court’s incorrect statement regarding the maximum possible sentence

violated his due process rights.

CONCLUSION

[¶45.] The habeas court correctly determined that Fast Horse failed to

demonstrate ineffective assistance of counsel. Further, Fast Horse’s due process

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claims regarding cross-examination of the victim concerning her sexual activity

within 72 hours before the rape and her post-rape drug charge were res judicata,

having been resolved in Fast Horse’s direct appeal. Lastly, the habeas court

correctly determined that Fast Horse’s argument that the arraigning court’s

mistaken advisement denied him due process lacked evidentiary support.

[¶46.] Affirmed.

[¶47.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, and BARNETT, Circuit Court Judge, concur.

[¶48.] BARNETT, Circuit Court Judge, sitting for SEVERSON, Justice,

disqualified.

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