 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Sund v. Weber12/16/1998
Sund v. Weber, 1998 SD 123
South Dakota Supreme Court Appeal from the Eighth Judicial Circuit, Meade County, SD Hon. Timothy R. Johns, Judge
Reversed
Argued Oct 19, 1998; Opinion Filed Dec 16, 1998
[ ] Dennis Sund appeals the denial of habeas corpus relief based on ineffective assistance of counsel. The habeas court found counsel's performance deficient, but that no prejudice was shown. We reverse and remand for a new trial.
FACTS
[ ] On August 24, 1995, Gary and Laurie Bedford (Bedford) contacted Dennis Sund about repairing their roof. On September 7, Bedford paid Sund $1,473.76 as advance payment for materials and a portion of the labor. Both parties understood that Sund would not be able to immediately start work because he was working as a subcontractor on another project, the Nite Owl job. Sund cashed the check at the Royal Flush Casino.
[ ] Between September 7 and October 1, Sund and Bedford had three or four telephone contacts regarding the delay in beginning work. On or about September 28, Sund sent an employee to show Mrs. Bedford a shingle sample.
[ ] Sund's last day of work on the Nite Owl job was September 23.
[ ] On October 7, Sund was admitted to the hospital because of chest pains. He was discharged on October 9. He was again hospitalized on October 19 and discharged on October 24. Sund was also experiencing marital problems and separated from his wife during this time. Additional facts will be presented relevant to Sund's ineffective assistance of counsel claims.
[ ] After learning on October 11 that Sund's telephone was disconnected, Bedford filed a criminal complaint with the sheriff's office. No supplies had been purchased or delivered to the job site. The money had not been returned to Bedford.
[ ] Sund was arrested and charged with grand theft by deception, a violation of SDCL 22-30A-3(1) and 22-30A-17. Thomas Adams was appointed to represent Sund on the felony theft charges. Adams had been practicing criminal law since 1980.
[ ] While incarcerated and awaiting trial, Sund was diagnosed as alcohol dependent. He was admitted to Addiction Family Resources for inpatient treatment on February 8, 1996.
[ ] A jury trial was scheduled for March 12, 1996. Sund's attorney moved for a continuance on March 8 because Sund was being released from treatment on March 8 and Sund wanted time to prepare for trial. The trial court denied the motion. An additional motion for continuance filed on March 11 was also denied. At Sund's request, his attorney asked to withdraw from the case on the day of trial. The trial court denied the request. On March 12, the jury found Sund guilty of theft by deception. Sund appealed and his conviction was affirmed and expedited by this court.
[ ] Sund filed a writ of habeas corpus on March 7, 1997. The habeas court found that counsel's performance was deficient as to pretrial discovery and investigation, but that Sund failed to show the deficient performance resulted in prejudice. Therefore, the habeas court denied his application.
[ ] On November 26, 1997, the habeas court denied Sund's motion for a certificate of probable cause. This court issued a certificate of probable cause on January 8, 1998.
STANDARD OF REVIEW
[ ] Our standard of review for a habeas appeal is well established.
"Habeas corpus is not a substitute for direct review. Because habeas corpus is a collateral attack upon a final judgment, our scope of review is limited. On habeas review, the petitioner has the initial burden of proof. We review the habeas court's
Page 1 2 3 4 South Dakota DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|