State v. Marks

757 N.W.2d 149 (2008) 2008 SD 93

STATE of South Dakota, Plaintiff and Appellee,
v.
Kristopher J. MARKS, Defendant and Appellant.

No. 24597.

Supreme Court of South Dakota.

Considered on Briefs August 25, 2008. Decided October 8, 2008.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

G. Matthew Pike, Lawrence County Public Defender's Office, Deadwood, South Dakota, Attorneys for defendant and appellant.

PER CURIAM.

[¶ 1.] Kristopher Marks (Marks) appeals his conviction for possession of more than one pound but less than ten pounds of marijuana. We stay our consideration of the case and order counsel to file an amended brief in compliance with all of the requirements of State v. Korth, 2002 SD 101, 650 N.W.2d 528.

[¶ 2.] Pursuant to a plea bargain and guilty plea, Marks was convicted of one count of possession of more than one pound of marijuana but less than ten pounds. He was sentenced to eight years in the penitentiary with credit for time served. Marks appealed and his counsel filed a "Korth brief" alleging a lack of arguably meritorious issues for appeal. Id.

[¶ 3.] Counsel's brief fails to comply with several Korth requirements: it fails to contain a statement of significant motions filed in the case and their disposition or an alternative statement that no motions were filed^[1]; it fails to contain a statement that counsel discussed the case with Marks' trial-level counsel and with Marks; and, it fails to include Marks' signature on Section B of the brief.^[2]

[¶ 4.] We have occasionally forgiven failure to strictly comply with the Korth procedure. However, our further review of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991) and Korth, persuades us of the necessity for strict compliance with Korth to ensure fulfillment of Constitutional standards in those cases where appointed appellate counsel identifies no arguably meritorious issues for appeal. For example, the statement of significant motions and their disposition helps ensure that counsel has conducted a thorough review of the case as the client's advocate in search of arguably meritorious issues for appeal. Obviously, motions and their disposition are a frequent source of potential appellate issues. Counsel's statement that he has discussed the case with trial-level counsel and with the client also helps ensure a thorough review of the case and that counsel has provided the client with appropriate legal advice on issues the client seeks to raise. These were important considerations in the Oregon Supreme Court's development of the Balfour procedure on which Korth was based. See Balfour, 814 P.2d at 1080-81. This Court has already recognized that the client's signature is an essential part of Section B of a Korth brief. State v. Arabie, 2003 SD 57, ¶ 17, 663 N.W.2d 250, 255-56. The signature verifies that counsel shared the brief with the client, that the client reviewed it and that it adequately presents the client's claims of error and arguments in support of the claims in the manner sought by the client. Id.

[¶ 5.] In light of the omissions in counsel's Korth brief, we stay our further consideration of this case and order counsel for Marks to file an amended Korth brief within twenty days of the filing of this decision that includes a statement of significant motions in the case and their disposition, a statement that counsel discussed the case with Marks' trial-level counsel and with Marks, and Marks' signature on Section B of the brief.^[3] The record shall be returned to Lawrence County to assist counsel in carrying out this order. Upon the filing of the amended Korth brief and resubmission of the record, this Court will proceed with its consideration of this appeal.

[¶ 6.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

NOTES

[1] The record reflects that motions were filed in the case.

[2] Instead, counsel attached to the brief a copy of a letter from Marks that outlines the claims of error Marks wished to present in his appeal.

[3] In the event Marks' own actions or inactions prevent counsel's compliance with any of these requirements, counsel shall advise the Court of that fact in the amended Korth brief.