State v. Hirning

#28665-a-PER CURIAM
2020 S.D. 29IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
MILO WALTER HIRNING, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA
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THE HONORABLE TONY L. PORTRA
Judge
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JASON R. RAVNSBORG
Attorney General
JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
BRANDON M. TALIAFERRO
Aberdeen, South Dakota Attorney for defendant
and appellant.
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CONSIDERED ON BRIEFS
APRIL 29, 2019
OPINION FILED 05/27/20
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PER CURIAM
[¶1.] Milo Hirning (Hirning) appeals from a judgment of conviction for
possession of a controlled substance. Hirning contends the circuit court judge erred
when he continued to preside on Hirning’s case after Hirning filed an affidavit for
change of judge. He claims the error was jurisdictional. We affirm.
Facts and Procedural History
[¶2.] In 2010, Hirning pleaded guilty to one count of possession of a
controlled substance and admitted to a part II information as a habitual offender.
In exchange for Hirning’s plea, the State agreed to dismiss other drug related
offenses against Hirning. The circuit court, the Honorable Tony Portra presiding,
received Hirning’s guilty plea and sentenced Hirning to twenty-five years in the
penitentiary, with seven years suspended. On direct appeal, this Court reversed
and remanded the case, determining that Hirning’s waiver of counsel before he
entered his guilty plea was not voluntary, knowing, and intelligent. State v.
Hirning, 2011 S.D. 59, 804 N.W.2d 422.
[¶3.] On remand, the circuit court appointed counsel for Hirning. Despite
being represented by counsel, Hirning wrote an ex parte letter to Judge Portra,
dated December 2, 2011, requesting Judge Portra recuse himself from the case.
Judge Portra contacted Hirning’s counsel and instructed the matter “be addressed
through counsel.” Days later, on December 12, 2011, Hirning wrote an ex parte
letter to Presiding Judge Von Wald, informing him of his letter to Judge Portra and
requesting an answer to his informal request for recusal. Judge Von Wald
instructed Hirning to discuss the matter with counsel. Instead of consulting his
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counsel, Hirning filed an affidavit for change of judge on December 27, 2011.
Hirning’s counsel subsequently requested the matter be set for a hearing.
[¶4.] Judge Portra presided over the hearing on Hirning’s affidavit for
change of judge. Judge Portra denied Hirning’s request for change of judge because
Hirning had previously requested a change of judge before Judge Portra had been
assigned to the case. 1 Judge Portra also determined the affidavit for change of
judge was untimely. Judge Portra entered findings of fact, conclusions of law, and
order denying Hirning’s affidavit for change of judge on February 10, 2012.
[¶5.] Hirning subsequently entered into a plea agreement with the State.
The terms of the agreement, although not set forth in the record, appear
substantially similar to the agreement made before the case was remanded.
Hirning pleaded guilty to one count of possession of a controlled substance and
admitted to the part II habitual offender information, and the State dismissed the
remaining charges. Once again, Judge Portra sentenced Hirning to twenty-five
years in the penitentiary, with seven years suspended. The court entered a
judgment of conviction on March 29, 2012.
[¶6.] Shortly after the court entered the judgment, Hirning sent letters to
his trial counsel and the circuit court expressing his desire to appeal from the final
judgment of conviction. After receiving no response, Hirning filed a pro se direct
appeal. Hirning’s appellate counsel failed to file a brief in the matter, and as a
result, this Court dismissed Hirning’s appeal by order.
1. On May 17, 2010, Hirning sent a letter to Judge Flemmer requesting he
recuse himself. Judge Flemmer acquiesced in Hirning’s request and
Presiding Judge Von Wald assigned Judge Portra to the case.
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[¶7.] On March 27, 2014, Hirning filed an application for a writ of habeas
corpus. Among other claims, Hirning alleged he received ineffective assistance of
appellate counsel, which resulted in the dismissal of his 2012 direct appeal. At the
hearing on the writ, the State stipulated that Hirning’s appellate counsel was
ineffective and agreed that the appropriate remedy was to resentence Hirning in
the criminal case to revive his time for direct appeal. The habeas court granted the
writ of habeas corpus and ordered that Hirning be resentenced.
[¶8.] Following the habeas proceedings, Hirning appeared before Judge
Portra and again pleaded guilty to the charge of possession of a controlled substance
and the part II habitual offender information. The court imposed the same sentence
of twenty-five years in the penitentiary, with seven years suspended. The court
entered the judgment of conviction.
[¶9.] Hirning appeals from the conviction. He raises the following issue—
whether the circuit court erred by continuing to act on Hirning’s case after Hirning
filed an affidavit for change of judge and, if so, whether the error deprived the
circuit court of jurisdiction.
Analysis and Decision
[¶10.] SDCL 15-12-22 provides that when an affidavit for change of judge is
“properly filed that named judge . . . shall proceed no further in said action and
shall thereupon be disqualified as to any further acts with reference thereto unless
otherwise ordered to proceed by the presiding judge of the circuit involved.” See
also Legendary Loan Link, Inc. v. Larson, 2017 S.D. 25, ¶ 7, 896 N.W.2d 267, 269
(“When an affidavit for change of judge has been properly filed, the judge cannot
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proceed any further in the action and is deemed disqualified . . . .”). Further, the
judge named in the affidavit is not permitted by our rules to determine whether the
affidavit was properly filed. Rather, SDCL 15-12-32 provides that the presiding
judge of the circuit must determine whether “the affidavit is timely and that the
right to file the affidavit has not been waived or is not otherwise legally defective . .
. .” See State v. Tapio, 432 N.W.2d 268, 271 (S.D. 1988).
[¶11.] In State v. Peterson, 531 N.W.2d 581, 583 (S.D. 1995), the Court
concluded that a properly filed affidavit for change of judge deprives the challenged
judge of jurisdiction, and “all subsequent orders and judgments are void.” See also
State v. Johnson, 2004 S.D. 135, ¶ 8, 691 N.W.2d 319, 322. 2 In Legendary Loan,
however, we held that the rule voiding all subsequent orders and judgments after a
2. Courts are divided on whether the violation of a procedural court rule can
deprive a court of jurisdiction. The Arizona Supreme Court held that a court
procedural rule for a peremptory challenge of a judge, such as SDCL chapter
15-12, cannot deprive the challenged judge of subject matter jurisdiction. See
Taliaferro v. Taliaferro, 921 P.2d 21, 23 (Ariz. 1996) (en banc). “This court
could not, under its rule making power, detract from the constitutional grant
of jurisdiction. Whatever the effect of an erroneous failure to honor a notice
of change of judge, it cannot shrink the subject matter jurisdiction of that
court to hear and determine the proceeding before it.” Id. See also Hamer v.
Neighborhood Hous. Servs. of Chicago, __ U.S. __, __, 138 S. Ct. 13, 17, 199 L.
Ed. 2d 249 (2017) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S.
365, 370, 98 S. Ct. 2396, 57 L. Ed. 2d. 274 (1978)) (“It is axiomatic that the
Federal Rules of Civil Procedure do not create or withdraw federal
jurisdiction.”). Other courts have held that peremptory motions for change of
judge deprive the challenged judge of jurisdiction, or otherwise render the
judge’s subsequent orders void or invalid. See Turnipseed v. Truckee-Carson
Irrigation Dist., 13 P.3d 395, 400 (Nev. 2000); Pawlowski v. Pawlowski, 925
P.2d 240, 242 (Wyo. 1996); Erickson v. Hart, 750 P.2d 1089, 1091 (Mont.
1988); In re Marshall, 515 S.W.3d 420, 422 (Tex. App. 2017); People v. Tate,
89 N.E.3d 766, 773 (Ill. App. Ct. 2017); A.T. v. G.T., 960 N.E.2d 878, 882 (Ind.
Ct. App. 2012). Because Hirning was not entitled to file an affidavit for
change of judge, it is unnecessary to further consider Peterson or address
Hirning’s jurisdiction arguments.
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party files an affidavit for a change of judge is conditioned upon the applicability of
SDCL 15-12-32 in the first instance. 2017 S.D. 25, ¶ 7, 896 N.W.2d at 269.
Therefore, when a party is not entitled to file an affidavit under chapter 15-12, the
circuit court’s subsequent non-compliance with the rule does not deprive it of the
subject matter jurisdiction to which it is otherwise authorized to exercise.
[¶12.] In Legendary Loan, the appellant did not file an affidavit for change of
judge until the judge presiding in the case had already ruled on several motions
over a period of months. The judge continued to act in the case after the appellant
filed an affidavit for change of judge, without a formal order memorializing the
email of the presiding judge of the circuit allowing the judge to continue to act. Id.
¶¶ 4-5, 896 N.W.2d at 268-69. Citing Peterson, the appellant argued that the
consequence for the judge’s continued action in the case was that all subsequent
orders and judgments were void. Id. ¶ 6, 896 N.W.2d at 269. We rejected the
argument, however, after concluding that “in order to file an affidavit for change of
judge, a party must be ‘entitled to do so.’” Id. ¶ 8; see also SDCL 15-12-21
(providing that an affidavit for change of judge may be filed “[u]nless the right is
waived or is denied by this chapter . . . .”).
[¶13.] Here, Hirning was not entitled to seek Judge Portra’s removal under
the provisions of SDCL 15-12-24. Hirning initially pleaded guilty and was
sentenced by Judge Portra in 2010 on the charge of possession of a controlled
substance. On remand from this Court, Hirning filed his first peremptory recusal of
Judge Portra by filing an affidavit for change of judge on December 27, 2011. SDCL
15-12-24 provides that submission to a judge of “argument or proof in support of a
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motion or application . . . is a waiver of the right thereafter to file an affidavit for
change of such judge . . . .” The “waiver shall continue until the final determination
of the action and includes all subsequent . . . proceedings, trials, new trials, and all
proceedings to enforce, amend, or vacate any order or judgment.” Id. “A guilty plea
is ‘proof’ on an ‘application’ . . . .” State v. Burgers, 1999 S.D. 140, ¶ 12, 602 N.W.2d
277, 280. A party waives a right to file an affidavit for change of judge by entering a
guilty plea. Id. Further, “[w]here a remanded matter is a continuation of the
original proceeding, rather than a new one, the judge may not be changed by way of
affidavit.” State v. Lohnes, 432 N.W.2d 77, 82 (S.D. 1988) (citing Matter of Est.
Certain Terr. Elec. Boundaries, 318 N.W.2d 118 (S.D. 1982)).
[¶14.] In addition to waiving his right to file an affidavit under SDCL 15-12-
24, Hirning was no longer entitled to file an affidavit because he had previously
requested a change of judge in 2010, which was granted. SDCL 15-12-25 provides,
in pertinent part, that “[n]ot more than one change of judge or magistrate shall be
granted on request and/or affidavit made by or on behalf of the same party . . . .” By
informally requesting a prior change of judge, Hirning no longer had a right to file
the December 27, 2011 affidavit.
[¶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
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deprive the court of authority to accept Hirning’s guilty plea and impose a sentence.
We affirm.
[¶16.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER,
Justices, and WILBUR, Retired Justice, concur.
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