Consecutive Sentencing Upheld in Criminal Conviction Appeals

 

The SD Supreme Court handed down two decisions this morning, holding, inter alia:

 

1. Consecutive sentencing for drug offenses upheld;

 

2. Consecutive sentence for 3^rd degree rape upheld

 

Summaries follows:

 

STATE v. STEVENS, 2024 S.D. 3: Defendant was convicted, by jury, of drug offenses and sentenced to 1 year, 5 years and 10 years, to run consecutively.  The state’s primary witness was Defendant’s “former roommate and fellow methamphetamine user, testified for the State in exchange for immunity.” Defendant’s appeal is premised upon “the circuit [court’s failure to] give corroboration or cautionary accomplice jury instructions” in regard to the roommate’s testimony and the assertion of ineffective assistance counsel in regard to his trial counsel’s “for failing to propose accomplice testimony instructions.”  Since the 1^st issue was not preserved for appeal at trial, this appeal is addressed under the plain error standard of review.  The SD Supreme Court affirmed the trial court, holding that trial counsel’s effective cross-examination of the roommate foreclosed the issue of “prejudice” need for reversal on the basis of plain error. The holding in regard to lack of prejudice further dictates a rejection of the ineffective-assistance-of-counsel  assertion.  The Court’s ruling is unanimous (5-0) with opinion authored by Chief Justice Jensen.  Justice Salter filed a concurring opinion in which he opined , “I do not believe that absence of a corroboration instruction should be categorically regarded as error, plain or otherwise.”  NOTE: the rule that the testimony of an accomplice requires corroborating evidence is found in SDCL 23A-22-8 which is cited and discussed in both opinions.

 

STATE v. HORSE, 2024 S.D. 4: Defendant was convicted, by jury, of 3^rd degree rape and was sentenced, “to serve twenty years in the penitentiary, consecutive to a sentence he was already serving.” Defendant’s appeal raises three (3), “issues involving the validity of a search warrant for location data from his phone, comments made during trial by the State about the victim’s motivation to testify, and opinion testimony given by the detective who investigated the case.”  The SD Supreme Court rejected all three issues and affirmed the lower court. This ruling is unanimous (5-0) with opinion authored by Justice Kern.

 

These decisions may be accessed at

 

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

 

 

Taxpayer Denied refund of overpayment; McCook County Ordinance divides Justices 3/2

 

The SD Supreme Court handed down two decisions this morning:

 

1. Taxpayers request for refund of overpayment denied under “make whole” doctrine;

 

2. McCook County Zoning Ordinance divides Justices 3/2.

 

Summaries follows:

 

MCLANE WESTERN, INC. v. S.D. DEPARTMENT OF REVENUE, 2024 S.D. 1: Taxpayer is a wholesaler of tobacco products in South Dakota.  Through a miscalculation, Taxpayer overpaid its sales tax obligation by some $530,000.  Taxpayer sought a refund from the SD Dept. of Revenue (DOR).  DOR eventually denied the request.  After a contested hearing before the Office of Hearing Examiner, the DOR’s denial was confirmed.  Appeal to the Circuit Court also resulted in an affirmance.  On appeal, the SD Supreme Court agreed with the taxpayer that it had overpaid the required sales tax, thereby disagreeing with the DOR and lower court.  Nonetheless, the Taxpayer was denied relief on appeal because it had passed the overpaid tax obligation on to its purchasers and had been “made whole” in regard to the obligation. The Court stated in ¶¶ 15-16:

 

[¶15.] Because McLane calculated the tax it owed based on the higher  price it paid to UST Sales, it overpaid the tobacco taxes due under SDCL 10-50-61. The Department erred in concluding otherwise.

 

[¶16.] However, this does not mean that McLane was entitled to a refund for these overpaid amounts.  Although McLane overpaid its advance tax obligation, it fully recovered the advance tax it paid from the dealers to whom it subsequently sold the OTP.  McLane was made whole by its resale of the OTP and is not entitled to any refund. On this basis, we affirm the Department’s denial of McLane’s request for a refund.

 

This decision in unanimous (5-0), with opinion authored by Justice Myren.

 

STOCKWELL v. MCCOOK COUNTY BOARD OF COMMISSIONERS, 2024 S.D. 2:  This dispute involves the interpretation of a County Zoning Ordinance in McCook County which was enacted in 2014.  BACKGROUND:  In 1999, Landowner had sought to re-zone some 5 platted lots (ranging in size from 3.8 to 5.4 acres) from agricultural to rural residential.  The county officials approved the request at that time, but that decision was overturned by an election in the County, initiated by County Residents.  In 2022, Landowner made a 2^nd Zoning request, arguing that the plain language of the County’s 2014 Zoning Ordinance in fact permitted “single family dwellings” in land previously zoned as agricultural for “lots of record.”  The County Officials and the Trial Court ruled against the Landowner, holding the history and overall effect of the 2014 Ordinance was intended to grandfather in the prior determination.  The SD Supreme Court reversed, stating:

 

[¶23.] The circuit court erred by deviating from these well-established rules of statutory construction in favor of its effort to ascertain what it believed to be the broader “intent of the zoning regulations.” In so doing, the court failed to apply the unambiguous text of the 2014 ordinance, which the court acknowledged made clear that Stockwell’s lots were, indeed, lots of record

 

[¶35.] The 2014 ordinance’s lot of record definition unambiguously refers to the effective date of the 2014 ordinance. Despite recognizing that Stockwell’s lots satisfy this definition, the circuit court erroneously supplanted a plain application of the text with a determination of the BOC’s intent to hold Stockwell’s lots were in fact not buildable. We reverse.

 

The Court’s decision is a 3/2 ruling.  Justices DeVaney and Kern dissent, with the dissenting opinion authored by Justice DeVaney. 

 

These decisions may be accessed at

 

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