Same sentence imposed 3 times by same judge, affirmed

The SD Supreme Court handed down one decision this morning, holding inter alia:  

         Same sentence imposed 3 times by same judge, affirmed

Summary follows:

STATE v. HIRNING, 2020 S.D. 29:  This Defendant pled guilty three times to the offense of possession of a controlled substance and was sentenced three times by the same trial judge. Each time the trial judge imposed a sentence of 25 years, with 7 years suspended.   After the first proceeding, Defendant requested a change of judge which was denied.  The history of these proceedings is unique, with my summary as follows:

Defendant sentenced to 25 years (with 7 years suspended) in 2010, reversed on direct appeal;  request for change of judge denied and Defendant again sentenced to 25 years (with 7 years suspended) in 2012; pro se direct appeal dismissed, but his subsequent writ of habeas corpus (filed in 2014) was successful, but Defendant again sentenced to 25 years (with 7 years suspended).

This Decision affirms the conviction and sentence. The Court states in its final paragraph, ¶ 15:

Judge Portra violated SDCL 15-12-22 by presiding over the hearing on Hirning’s affidavit for a change of judge and determining that Hirning’s affidavit was not properly filed. Under SDCL 15-12-32, only the presiding judge of the circuit could determine whether Hirning’s affidavit was timely and whether Hirning had a right to file the affidavit. Nonetheless, because Hirning was not entitled to file the affidavit, Judge Portra’s non-compliance with SDCL chapter 15-12, did not deprive the court of authority to accept Hirning’s guilty plea and impose a sentence.  

The ruling is unanimous (4-0), with a per curiam opinion. This decision was submitted on the briefs one month ago, April 29, 2020.  Retired Justice Wilbur sat on this case, with Justices Salter, Kern and Chief Justice Gilbertson also participating  (no explanation given regarding Justices DeVaney and Jensen).   

This decision may be accessed at

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

SD Supreme Court hands down 1 decision

The SD Supreme Court handed down one decision this morning, holding inter alia:  

1)    Dispute between neighboring landowners laid to rest

Summary follows:

HELLEBERG v. ESTES, 2020 S.D. 27: 

This dispute evolved from an alleged easement road and a restrictive covenant placed upon 40 acres of land which, in 1977, was divided into residential lots.   The covenant provided “The right of access to repair or install the water lines and to build an access road and use said access road over the water line is hereby granted by owner.” Multiple claims, including an assault and battery claim, were filed by and between the parties (neighboring landowners). The trial court resolved some claims by summary judgment and the remaining claims by bench trial. 

The SD Supreme Court affirmed, with the Court reviewing the trial court’s interpretation of the restrictive covenant de novo and also upholding the trial court’s finding that the Defendants failed to prove elements necessary to establish a prescriptive easement. 

The Court’s ruling is unanimous, with opinion authored by Justice Jensen.  Circuit Judge Giles sat on this case, in lieu of Justice Kern.  NOTE:  This decision is handed down less than two months after it was submitted on the briefs to the Court on March 13, 2020. 

This decision may be accessed at

http://ujs.sd.gov/Supreme_Court/opinions.aspx .

SD Supreme Court, 2 new decisions today

The SD Supreme Court handed down two decisions this morning:

1)    Challenge to productivity-based land assessment fails;

2)   Meaningful review of key issue in jury trial precluded by lack of trial transcript.

Summaries follows:

TRASK v. MEADE CTY. COMM’N, 2020 S.D. 25:  Landowners in Meade County challenged the valuation of their agricultural land.  Landowners secured minor relief from the Meade County Commission (sitting as a board of equalization).  The Circuit Court affirmed and the SD Supreme Court affirmed.  At issue in this case is the propriety of the change “from a market-value approach to a productivity-based model” encompassed in the recently enacted provisions of SDCL 10-6-33.28 to 10-6- 33.37.  This resulted in the landowner being taxed for a substantially large portion of his land as “cropland” despite the fact it is not used as “cropland.”   [The landowners’ ranch land was taxed at 61% cropland notwithstanding their assertion that only 23% of their property was actually utilized as cropland.] The Court recognized that this was the first taxpayer challenge to the new approach adopted by the Legislature.  In regard to the alleged “unfairness” of this new approach, the Court recognized in ¶ 42:

We understand that the Trasks offer a determined argument that productivity valuation should be based upon the actual use and production of the land. However, our role in this appeal is not to determine this claim of inequity directly. Instead, we must faithfully interpret and apply the statutes enacted by the Legislature for the specific purpose of departing from a market-based method of valuation for agricultural land. Lingering dissatisfaction with the resulting statutory procedure is best addressed by the Legislature, whose fact-finding committees and task force are uniquely situated to carefully study the impact of the productivity model statewide and propose legislative changes or adjustments.

And the Court further noted in footnote 9:

We note that during the 2019 legislative session, the Governor signed Senate Bill 4 into law, requiring the Department of Revenue, in conjunction with South Dakota State University to “study the impact of changes to the methodology of rating soils for purposes of assessing agricultural land.” SDCL 10-6-33.38.

This decision is unanimous, with opinion authored by Justice Salter.  Retired Justice Wilbur sat on this case which was submitted on the briefs over a year ago, on April 19, 2019.  Circuit Judge Sabers sat on this case in lieu of Justice Kern. 

GRAFF v. CHILDREN’S CARE HOSP. AND SCHOOL, 2020 S.D. 26:  This is a tort action on behalf of a 16 year old boy suffering “a variety of conditions related to his physical, mental, and intellectual abilities.”  This claim is against “Children’s Care Hospital and School (CCHS), alleging it was negligent and inflicted emotional distress by using physical restraints on [the 16 year old boy] when he received services at CCHS.”  Following a 3 week trial, jury found for Defendant.  Appellant’s primary assertion on appeal was that the trial court erred in refusing to allow certain Department of Health surveys into evidence – surveys “performed to assess CCHS’s compliance with Medicaid and Medicare requirements.”  The SD Supreme Court affirmed holding that “the lack of a trial transcript precludes meaningful appellate review.” This decision is unanimous, with opinion authored by Justice Salter.  [Of interest is footnote 2 of the opinion which indicates that Defendant “no longer uses prone restraints,” which was one of the assertions made in this case.]

These decisions may be accessed at

http://ujs.sd.gov/Supreme_Court/opinions.aspx .