SD Supreme Court Denies Habeas Relief in Delayed Rape Prosecution

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

 

1. Habeas relief denied on rape charges filed 16 years after the offense

Summary follows:

 

LACROIX v. FLUKE, 2022 S.D. 29:  Defendant entered a nolo contender plea to charges of 1^st degree rape and sexual contact as against his daughter who was 10 years old at the time of the alleged offenses. Charges were filed after daughter turned 26 years old and made a report to law enforcement personnel.  The trial court sentenced Defendant 25 years in prison, with 5 years suspended on the rape charge and entered a suspended 1 year jail sentence on the sexual conduct charge. 

 

In his first application for writ of habeas corpus, Defendant asserted ineffective assistance of counsel.  In his amended application for habeas corpus, Defendant asserted this was an “unconstitutional ex post facto” prosecution (because he “was charged and pled guilty to a crime that wasn’t a crime at the time it was committed and was sentenced for the same”), protection by the statute of limitations, arguing “the charges were barred by the statute of limitations because the charges were filed when [the victim] was 26 years old and SDCL 22-22-1 required that the charges be filed within seven years of the offense date or prior to the time the victim turns 25 years of age.” The habeas trial court denied relief, holding that the Defendant’s “waiver of rights” in the plea agreement foreclosed habeas relief. 

 

The SD Supreme Court affirmed.   in a unanimous ruling, with opinion authored by Justice Kern.  Similar to the trial court, the SD Supreme Court also applied the doctrine of waiver to Defendant’s assertions and further stated that appellate review as to the statute of limitations issues was “precluded because [the issue] was not certified by the habeas court in its CPC. Our review is limited to consideration of only those issues certified for probable cause by the habeas court under SDCL 21-27-18.1.”  This decision is unanimous (5-0) ruling, with opinion authored by Justice Kern.

 

 

This decision may be accessed at

 

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

 

 

Prison Sentence for aggravated assault on girlfriend upheld

 

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

 

1. Prison sentence for aggravated assault on girlfriend upheld

Summary follows:

 

STATE v. TIMMONS, 2022 S.D. 28:  Defendant was sentenced to 15 years in prison, with 3 years suspended, for aggravated assault on his girlfriend.  Defendant's motion for new trial was supported by letter from girlfriend which Defendant asserted to be “newly discovered evidence.”  In the letter:

 

[girlfriend] stated that she felt like she was lied to, manipulated, and threatened by the State’s prosecutor…[and] that she did not want to call the cops, was coming down from meth, and did not believe that [Defendant] deserved a heavy sentence. She believed that [Defendant’s] [intentions] were not to hurt me.”

 

On appeal, Defendant asserted both insufficiency of evidence and denial of motion for new trial based upon newly discovered evidence (the letter). The SD Supreme Court affirmed, with opinion authored by Chief Justice Jensen.  The decision is unanimous (4-0) with Justice DeVaney having recused herself.  NOTE:  This case was submitted to the Court, on briefs, less than 2 months ago on March 21, 2011.           

 

This decision may be accessed at

 

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

 

 

SD Supreme Court hands down 3 decisions today

 

The SD Supreme Court handed down three decisions this morning:

 

1. Right of First Refusal in effective to defeat Wind Farm lease;

 

2. Another Drainage Permit dispute;

 

3. Custody modification upheld,

 

NOTE: The first two decisions were submitted to the Court this past Fall, in October and November, 2021 and have been decided with opinions authored by Justice DeVaney.  The 3^rd decision was submitted to the Court only 17 days ago and is decided by opinion authored by Justice Salter.

 

Summaries follows:

 

POWERS v. POWERS and PREVAILING WINDS, LLC, 2022 S.D. 25: Owner for a “right of first refusal” on real estate claimed right of specific performance as a result of lease for a wind farm on the property.  The trial court held the right was not triggered by the lease because it applied only to a fee interest transfer and further held that the right was “void as an unreasonable restraint on alienation.”  The SD Supreme Court affirmed.  This is a unanimous (5-0) ruling, with opinion authored by Justice DeVaney.

 

McLAEN v. WHITE TOWNSHIP, 2022 S.D. 26: This is a dispute over an application for a drainage permit.  The issues and result are described in the opening paragraph of the Court’s opinion:

[¶1.] Steven and Matthew McLaen obtained a drainage permit from the Marshall County Drainage Board. Thereafter, they sought approval of their project from the White Township Board of Supervisors because their drainage project could impact roads or rights-of-way in the Township. Ultimately, the Township denied the McLaens’ request, and the McLaens filed an administrative appeal and a separate declaratory action, both of which challenged the Township’s authority to regulate their drainage project and the merits of the Township’s decision. The circuit court issued one memorandum decision addressing both actions and upholding the Township’s decision. The McLaens filed a separate appeal in each action, asserting multiple issues related to the Township’s denial of their requested project. We consolidate the appeals and affirm.

This decision is unanimous (5-0), with opinion authored by Justice DeVaney.

 

FLINT v. FLINT, 2022 S.D. 27:  This is a modification of a “shared physical custody [provision in a] parenting order entered as part of [the parties’] 2018 Arizona divorce.”  After divorce, Father moved to South Dakota and Mother moved to California.  Father registered the decree in SD and sought primary custody.  The trial court granted primary custody to Mother, ruling contrary to the recommendation of the custody evaluator.  The SD Supreme Court affirmed, applying the principles found in Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798.  This ruling is unanimous (5-0), with opinion authored by Justice Salter.  Appellate attorney fees were requested by both parties and denied.  (NOTE:  This case was submitted on the briefs just 17 days ago, on April 25, 2022.)

 

These decisions may be accessed at

 

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

SD Supreme Court holds Appeal from Grant of Drainage Permit Not Authorized

 

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

 

1. Appeal from grant of drainage permit not authorized

 

HOSTLER v. DAVISON COUNTY DRAINAGE COMMISSION, 2022 S.D. 24: Landowner in Davison County sought drainage permit from County Drainage Commission.   Neighbor objected.  Commission granted permit.  Neighbor sought relief in Circuit Court by pursuing an appeal (under SDCL 46A-10A-35) and by seeking a declaratory judgment.  Circuit Court ruled for neighbor.  Landowner appeals to SD Supreme Court.  The SD Supreme Court ruled in favor of landowner by vacating the Circuit’s ruling on the basis that neither an appeal nor a declaratory judgment action is available under the facts of this case. 

 

As to the possibility of an appeal, the Court examined the peculiar language of the statute, pointing out:

 

[¶12.] We are unable to find, and [Appellant] has not identified, an instance in which this statute has been used to appeal the permitting decision of a drainage commission directly to a circuit court. Importantly, the first two sentences of this statute allow a landowner to appeal a drainage commission decision arising from a drainage conflict to either the board and then to the circuit court or to the circuit court directly. But the statute does not authorize a direct appeal to the circuit court from a drainage commission decision to grant or deny a drainage permit application. (emphasis is original by the Court)

 

As to the applicability of a DJ action, the Court stated:

 

[¶17.] Here, [Appellant] is not challenging the validity of any ordinance, and he is not seeking a declaration of his rights, status, or other legal relations under such ordinances. Moreover, while he is arguably affected by the drainage commission’s decision, he is not seeking to have determined “any question of construction or validity arising under” a municipal ordinance to “obtain a declaration of rights, status, or other legal relations thereunder.” See SDCL 21-24-3. Rather, he is requesting that the circuit court void the administrative decision of the drainage commission to grant a permit to a third party because, in his view, the drainage commission abused its discretion by failing to properly consider matters required to be considered. Because [Appellant’s]  request for relief is not of the type that circuit courts have authority to grant via a declaratory judgment action, the circuit court did not have authority under the Declaratory Judgment Act to consider [Appellant’s] complaint challenging the drainage commission’s decision to grant [Landowner’s] permitting request.  (emphasis is original by the Court)

 

This decision is unanimous (5-0), with opinion authored by Justice Kern.

 

Two aspects of this decision which I found interesting: 1) this relatively short ruling (19 ¶s) is handed down more than a year after it was submitted on the briefs on 4/26/21; and 2) the lawyers listed for the parties are officed out of state (Arizona and Minnesota). 

 

This decision may be accessed at

 

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