Three Criminal Cases. Three affirmations by unanimous (5-0) rulings.

Three Criminal Cases. Three affirmations by unanimous (5-0) rulings.

The SD Supreme Court handed three decisions this morning: 

1)    Presumption of probation not applicable to revocation proceeding;

 

2)   1^st Degree Manslaughter Conviction upheld;

 

3)   Failure to appoint counsel in revocation hearing upheld as non-prejudicial

 

Summaries follows:

STATE v. DIETZ, 2024 S.D. 70: Defendant “pleaded guilty to two counts of counterfeiting lottery tickets in two separate files” and was given “five-year suspended sentences on each conviction.” Thereafter, Defendant’s probation was revoked and he was sentenced to 5 years prison.  Defendant appeals.  The SD Supreme Court affirms, holding that Defendant indeed had a right to appeal, stating:

[¶18.] Accordingly, a right to appeal an order revoking a suspended execution of sentence exists under SDCL 15-26A-3(4), as such an order qualifies as a “final order affecting a substantial right, made in special proceedings, or upon summary application in an action after judgment[.]

But also holding that the “presumption of probation in SDCL 22-6-11” is applicable only at the time of sentencing and not in a “probation revocation proceeding.” 

This ruling is unanimous (5-0) with opinion by Chief Justice Jensen.

 

STATE v. PFEIFFER, 2024 S.D. 71: Defendant (who was 18 at the time of the incident) was found guilty, by jury following a 7 day trial, of 1^st degree manslaughter in connection with the accidental shooting of his friend.  The trial court, “sentenced [Defendant] to thirty years in prison with twenty-three years suspended and credit for time served.”  Defendant appealed, primarily arguing 1) error in the jury instructions but also arguing 2) error in the trial court’s refusal to allow the jury to be told that the Deputy State’s Attorney had said (in a written brief in a bond hearing), that, Defendant “pull[ed] the trigger, in the belief that the gun was not loaded.”  The SD Supreme Court rejected the Defendant’s arguments and affirmed.  This is a unanimous (5-0) ruling, with opinion by Justice DeVaney.

 

STATE v. FULLER, 2024 S.D. 72: Defendant was on felony probation for the drug charge of possession of more than 2 ounces of marijuana.  After two post-sentencing arrests, a probation revocation proceeding was instituted.  The trial court appointed two attorneys to assist Defendant in the revocation hearing.  After separate motions to withdraw by each attorney were granted, the trial court proceeded with the hearing (Defendant acting pro se) and imposed the previously-suspended 2 year prison sentence.  Appellate counsel was appointed.  The SD Supreme Court affirmed, holding,

[¶62.] Although the [trial] court did not comply with the statute [SDCL 23A-40-6]  that required it to appoint counsel for [Defendant] in this revocation proceeding, [Defendant]  has not established prejudice.

This ruling is unanimous (5-0), with opinion by Justice Salter.

These decisions may be accessed at

 

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

 

 

 

Big Horn Sheep Covenant Enforced; remedy for breach of 1995 oral land contract denied

 

The SD Supreme Court handed down two decisions this morning:

 

1)    “no build” covenant for Big Horn Sheep enforced;

 

2)   Remedy for breach of 1995 oral contract regarding real property denied in 3-2 ruling.

 

Summaries follows:

 

SPRING CANYON PROPERTIES, LLC v. CAL SD, LLC, 2024 S.D. 68:  Owner of recently-acquired property located outside of Rapid City started construction of a fenced area for a garden, with construction of contained an “overhead truss” structure for anticipated “hail netting.” Owner of neighboring lot (and prior owner of lot in question) filed suit to enforce “restrictive no build covenant.”  The trial court granted an injunction requiring the removal of the “all overhead components of the building structure in the ‘No Build’ zone [and also] enjoin[ing Defendanst] from rebuilding or placing any new structure in the ‘No Build’ zone that exceeds 8’ in height as measured from ground level.” The SD Supreme Court affirmed the injunction, but also held that on remand the 8’ height prohibition was to be removed because the height restriction was beyond the relief requested and was not supported by the “no build covenant,” and was not mandated by “Pennington County Ordinance.”  This decision is unanimous (5-0), with opinion authored by Justice Myren.

NOTE: The “no build” covenant states that its provisions were created for “the express purpose of allowing the free movement of big horn sheep in [the] wilderness preserve and to preclude any new fencing of areas…”

 

A photo of the garden fence and truss structure was included in the Court’s opinion and I have copied it at the bottom of this e-mail message. 

 

JOHNSON v. JOHNSON, 2024 S.D. 69: Parents deeded property to Daughter in 1995 under oral agreement described as follows in

[Daughter] and her family could live rent-free in [an adjoining] home. The agreement also contemplated that [Daughter] would transfer the [deeded property] equally to her four siblings and herself once she satisfied the mortgage on the [newly-constructed] home [on the deeded property.]

In 2005, surviving mother confirmed in writing that this was the intention of deceased father and mother in 1995 when making the “oral contract” with Daughter.

Daughter brought partition suit in 2018 in regard to ownership of adjoining property.  Brother answered, “claim[ing the 1995 oral contract] could be enforced through specific performance and partition of the [deeded property] or, in the alternative, an award of damages.”

Trial Court granted summary judgment for Daughter and against brother based, inter alia, upon the 6 year statute of limitations found in  SDCL 15-2-13.

The SD Supreme Court affirmed.  This is a split decision (3-2).  The Court’s opinion is authored by Justice Salter. 

Justice DeVaney filed a dissenting opinion in regard to the application of the 6 year statute of limitations, taking issue with the majority’s ruling in regard to when Brother (and siblings) had notice of Daughter’s intent to breach the oral contract and when the cause of action “accrued.”  Justice Kern agrees with Justice DeVaney’s view.  

 

These decisions may be accessed at

 

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

 

Attached is a photo of the “garden fence” which is the subject of SPRING CANYON PROPERTIES, LLC v. CAL SD, LLC, 2024 S.D. 68, summarized above:

 

 

 

 

 

 

Order Granting Access to Victim's Journals triggers analysis of Marsy's Law

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

 

1)    Order granting access to victim’s journals reversed (Marsy’s law applied)

 

Summary follows:

 

STATE v. WALDNER, 2024 S.D. 67: Co-Defendants “were indicted on varying degrees of rape and sexual contact a minor less than sixteen years of age.” Defendants were provided portions of a journal maintained by minor which detailed the conduct in question.  In response thereto, Defendants “sought other journals and diaries written by [minor] through a subpoena duces tecum.”  Trial court denied minor’s motion to quash, allowing access for Defendants.  Taking an intermediate appeal, the SD Supreme Court reversed and remanded.  This opinion analyzes and applies Marsy’s Law, an Amendment to the SD Constitution approved by 60% of popular vote in 2016.  This ruling is unanimous (5-0), with opinion authored by Justice DeVaney.

  

This decision may be accessed at

 

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

 

Consecutive Life Sentences Upheld

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

1)    Consecutive life sentences for 1^st Degree Murder Upheld 

 

Summary follows: 

STATE v. ABSOLU, 2024 S.D. 66: Defendant was convicted by jury of 3 counts of 1^st Degree Murder and sentenced to 3 consecutive life sentences.  Defendant’s appeal is predicated on the State’s non-disclosure of what Defendant’s describes as “Primary Witness Information.”  Defendant argued (and continues to argue) that disclosure was required under Brady and under the trial court’s pre-trial discovery order. The trial court denied Defendant’s Motion for New Trial.  The SD Supreme Court affirmed, holding:

[¶59.] We conclude that, although the broad language of the circuit court’s discovery order would include at least some of the information relating to [undisclosed information, Defendant] cannot prove he was prejudiced by the State’s failure to disclose it.

           The Court’s ruling is unanimous (5-0), with opinion authored by Justice Salter.

NOTE: The murders took place in Rapid City.  Note 3 of the Opinion states, “The State initially viewed this as a capital case, but it ultimately decided not to pursue the death penalty.” 

This decision may be accessed at 

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

Compliance with ICWA, Multiple Sentences Upheld, inmate granted habeas relief by 3/2 vote

 

The SD Supreme Court handed three decisions this morning:

 

1)    Termination of parental rights to Indian Children upheld;

 

2)   Multiple convictions and sentences upheld;

 

3)   inmate prevails on ineffective assistance of counsel claim in writ of habeas corpus proceeding, by 3-2 ruling.

 

Summaries follows:

 

INTEREST OF N.K., JR. AND S.K., 2024 S.D. 63: The trial court terminated the parental rights of Mother and Father, in regard to Indian Children.  Father appeals, asserting:  1) defect in service of process; 2) failure to establish termination as “the least restrictive alternative”; and 3) non-compliance with ICWA.  The SD Supreme Court rejects all of Father’s arguments and affirms the trial court.  This is unanimous decision (5-0), with opinion authored by Justice Kern.

STATE v. WASHINGTON, 2024 S.D. 64: Defendant was indicted and convicted on multiple counts, “including first-degree kidnapping, injury to personal property, and multiple counts of aggravated and simple assault.” The trial court imposed numerous sentences, with several running consecutively.  Defendant appeals asserting the following errors: “his trial counsel was ineffective, insufficient evidence to support the kidnapping conviction, improper convict[ion] on two counts of aggravated assault, [and non-conformity between] the circuit court’s written sentence [and] its oral sentence.” The SD Supreme Court rejected all of Defendant’s assertions and affirmed the trial court.  The Court’s decision is unanimous (5-0), with opinion authored by Justice DeVaney.   

 

SCHOCKER v. FLUKE, 2024 S.D. 65:  Inmate had been convicted by jury of “aggravated assault against a law enforcement officer” and sentenced to 25 years in prison, with 15 years suspended.  His direct appeal failed.  Thereafter, inmate brought this habeas corpus action alleging ineffective assistance of counsel.  The trial court (“habeas court”) agreed and granted relief to inmate.  State appeals.  The SD Supreme Court affirmed, also finding ineffective assistance of counsel.  This decision is split (3-2), with the Court’s opinion being authored by Justice Myren. 

Justice Kern filed a dissenting opinion, which is supported by Justice Salter, agreeing that the attorney’s performance was shown to be “deficient performance,” but also stating that she is, “unable to conclude that, but for this error, there is a ‘reasonable probability’ that [inmate] would not have been convicted.”

 

These decisions may be accessed at

 

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

 

 

 

3 new decisions by SD Supreme Court

 The SD Supreme Court handed three decisions this morning:

 

1)    Goff divorce decision, remix;

 

2)   Employee prevails in Work Comp appeal;

 

3)   Search of passenger’s purse scrutinized.

 

Summaries follows:

 

GOFF v. GOFF, 2024 S.D. 60:  This appears to be a “new” decision which is perhaps intended to replace the decision handed down by the Court a month ago, on September 11.  The previous decision was rendered on the basis that Appellant’s brief had not been timely filed, with the Court stating:

[¶11.] We note at the outset that this Court’s order could have potentially caused confusion, as it directed the Appellant to refile Fawna’s responsive brief on or before April 8, 2024. Regardless, “failure of the appellee to file a brief does not automatically translate to victory for the appellant. Appellant still has the burden of showing that the findings of fact are clearly erroneous or that the conclusions of law are incorrect.” Wichman v. Shabino, 2014 S.D. 45, ¶ 5 n.3, 851 N.W.2d 202, 203 n.3 (quoting Hawkins v. Peterson, 474 N.W.2d 90, 92 (S.D. 1991)). We must therefore still analyze the assignments of error urged by Terry.

Today’s decision has substituted ¶11 so as to read as follows:

[¶11.] Because this Court’s order could have potentially caused confusion, as it directed the Appellant to refile Fawna’s responsive brief on or before April 8, 2024, we permitted Fawna to file a responsive brief on or before June 17, 2024. The brief was timely received and considered by the Court.

Otherwise the result on appeal appears to be the same result as that set forth in the earlier decision.  NOTE: Nothing in today’s opinion states that the prior ruling has been withdrawn.

My previous Summary of the former decision, which appears to remain intact, is set forth here:

GOFF v. GOFF, 2024 S.D. 57: A default hearing on a Divorce petition evolved into a trial on the merits when Defendant (H) appeared telephonically and indicated that he wished to proceed.  Both parties were placed under oath and testified.  The trial court granted W a divorce on the ground of adultery and made determinations of child custody, child support, division of property and also made a partial award of attorney fees in favor of W.  The SD Supreme Court held that the trial court did not err by proceeding to a trial on the merits.  As to the merits, the SD Supreme Court reversed and remanded as to the following: 1) determination of child support arrearage; 2) visitation restriction on H mandating that visitation be exercised only in SD (restriction unsupported by proper findings); 3) attorney fee award to W.  This is a unanimous decision (5-0) with opinion authored by Justice Kern. 

 

 ARNESON v. GR MANAGEMENT, LLC, 2024 S.D. 61: This is a work comp case which generated 3 opinions by the Justices of the SD Supreme Court.  The DOL found the employee, having been injured by an electric shock, was “permanently and totally disabled under the odd-lot category” in regard to two injuries:  heart condition (A-fib) and numbness in his right hand.  On appeal to the Circuit Court, the employer/insurer prevailed with the trial court finding the employee “was not permanently and totally disabled.”  The SD Supreme Court reversed stating, “we affirm the Department’s determination that [employee] was permanently and totally disabled under the odd-lot category.”  The Court’s opinion is authored by Justice Myren (with CJ Jensen wholly agreeing).  Justice Salter filed a concurring opinion.  Justice DeVaney filed an opinion which concurs in part and dissents in part: dissenting as to how the Majority handles the “availability of suitable employment in the community” issue, suggesting that remand on this issue would be more appropriate. Justice Kern agrees with Justice DeVaney.

 STATE v. EDWARDS, 2024 S.D. 62: Driver of vehicle was lawfully pulled over and lawfully charged with possession of Meth.  Female passenger was asked to exit vehicle during search and she did so with her purse – with the purse in her close possesson (on her lap in the vehicle and then over her shoulder upon exiting vehicle).  After female passenger denied request by law enforcement to surrender her purse for inspection, it was forcibly taken from her.  Thereafter she was “indicted for possession of a controlled substance; possession of marijuana, two ounces or less; obstructing a law enforcement officer; and possession of drug paraphernalia… [and] The State also filed a part II habitual offender information alleging that [passenger] had been convicted of a prior felony.” The issue, as presented in a Motion to Suppress, was whether the seizure of the purse was lawful.  The trial court denied Defendant’s Motion to Suppress. The SD Supreme Court Affirmed the Denial in a 4-1 ruling, holding that the seizure of the purse was permitted as part of a search incident to the driver’s arrest. The Court’s opinion is authored by Chief Justice Jensen. Justice Myren dissented, expressing the view that passenger’s continuous exertion of close possession of her purse did not warrant its seizure.   

 

These decisions may be accessed at

 

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

 

 

Former AG's law license suspended 6 months; Adverse Possession determines title to mobile home lot

 The SD Supreme Court handed down two decisions this morning: 

1)    Former AG’s law license suspended for 6 months;

 

2)   Title to Mobile Home Lot acquired by Adverse Possession.

 

Summaries follows:

 

DISCIPLINE OF RAVNSBORG, 2024 S.D. 58: Disciplinary proceeding against the former Attorney General resulted in the Referee’s recommendation of public censure, “finding that Ravnsborg improperly used his title as attorney general to receive favorable treatment.”  The SD Supreme Court ordered additional briefing and conducted de novo review, “[b]ecause the Referee was in no better position than this Court is to weigh and consider documentary evidence.” Following oral argument, the Court handed down this ruling which orders a 6 month suspension of the former AG’s law license.  The concluding paragraph of the opinion provides:

[¶53.] After reviewing the facts and weighing the relevant mitigating and aggravating factors, the Court hereby suspends Ravnsborg’s license to practice law in South Dakota for a period of six months. While Ravnsborg is unlikely to continue practicing law in South Dakota, we conclude suspension is necessary to preserve theintegrity of the profession and deter like conduct by other attorneys. The six-month suspension shall commence on the date of entry of the order of suspension. Pursuant to SDCL 16-19-70.4, Ravnsborg shall also be responsible for reimbursing the State Bar of South Dakota for all costs and expenses related to these proceedings. These costs and expenses shall be reimbursed prior to his reinstatement to practice law in South Dakota.

This ruling is unanimous (5-0), with opinion authored by Chief Justice Jensen.

HOFFMAN v. HOLLOW HORN, 2024 S.D. 59: This case involves litigation over title to a mobile home lot in Eagle Butte.  Administrator of the Estate of “Mother Theresa Hoffmann” filed this action claiming legal title.  The trial court ruled in favor of subsequent possessors based upon two theories adverse possession.  The SD Supreme Court affirmed, based upon on just one of the theories – the basis that title was acquired through adverse possession in the name of the grantor of a subsequent quit claim deed. This ruling is unanimous (5-0), with opinion by Chief Justice Jensen. 

 

These decisions may be accessed at

 

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