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Sund v. Weber12/16/1998
show beyond a reasonable doubt to the satisfaction of all twelve jurors that Sund accepted the money knowing he did not intend to do the job. In fact, SDCL 22-30A-3(1) provides, in part, that "deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise[.]"
[ ] We must accept the habeas court's finding of deficient performance because the State failed to file a notice of review on that issue. Sund has shown prejudice resulting from counsel's deficient performance. Counsel failed to investigate and present witnesses which may have countered and undermined the State's case on the issue of specific intent. After reviewing the testimony offered at trial and at the habeas hearing, we find counsel's errors were sufficiently serious and prejudicial to deprive Sund of a fair trial and undermine confidence in the verdict. Strickland, 466 US at 687, 104 SCt at 2064, 80 LEd2d at 693.
[ ] Therefore, we reverse and remand for a new trial.
[ ] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.
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