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
