State v. Hirning

#30108-a-SRJ
2023 S.D. 28

IN 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 RICHARD A. SOMMERS
Judge

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CHRISTY GRIFFIN SERR
Aberdeen, South Dakota Attorney for defendant
and appellant.

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

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CONSIDERED ON BRIEFS
MARCH 21, 2023
OPINION FILED 06/21/23
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JENSEN, Chief Justice

[¶1.] Milo Hirning pleaded guilty to possession of methamphetamine with

intent to distribute in violation of SDCL 22-42-4.3, his second such offense. The

circuit court imposed the 10-year mandatory minimum sentence established for a

second or subsequent offense under SDCL 22-42-4.3. Hirning appeals from the

judgment of conviction and requests remand for resentencing. He asserts that the

court erred in determining that it was unable to deviate from the mandatory

minimum sentence because one of the six necessary conditions set forth in SDCL

22-42-2.5 was not met. We affirm.

Background

[¶2.] On June 22, 2021, law enforcement discovered a large quantity of

methamphetamine in a vehicle while executing a search warrant. The occupants of

the vehicle told the officers they had just come from Hirning’s home. At the time,

Hirning was on parole supervision with the Department of Corrections for a prior

felony conviction. Law enforcement received authorization from Hirning’s parole

officer to search Hirning’s home consistent with the terms of his parole agreement.

Hirning denied possessing any illegal substances when officers arrived. The officers

searched Hirning’s home and found a scale with methamphetamine residue, along

with an Altoids tin containing eight grams of methamphetamine packaged in

baggies, underneath some dirty clothes in his bedroom. Hirning refused to

cooperate with law enforcement.

[¶3.] Hirning was indicted on one count of possession of methamphetamine

with intent to distribute, one count of unauthorized ingestion of controlled drug or

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substance, and one count of keeping a place for use or sale of controlled substances.

The State also filed a part II information alleging Hirning had two prior felony

convictions. Hirning pleaded not guilty to the charges.

[¶4.] Hirning and the State subsequently reached a plea agreement, and its

terms were set forth on the record at a change of plea hearing. Hirning agreed to

enter a guilty plea to count one, possession with intent to distribute, in exchange for

the State’s dismissal of the remaining charges. The State also agreed to cap its

recommendation to a 15-year sentence, with five years suspended. The plea

agreement permitted Hirning to argue for a lesser sentence.

[¶5.] At the sentencing hearing, the following exchange took place:

THE COURT: Before we start the court would note that this is
his second conviction for distribution, which is a mandatory 10-
year sentence. And it appears that the court cannot waive that
10-year sentence unless I make a finding in writing that, among
other things, Mr. Hirning cooperated with law enforcement.
Has that taken place?

[TRIAL COUNSEL]: It hasn’t, but under that subsection, Your
Honor, if the State was already aware of where the narcotics
came from, it says under number five that the court can still
make a finding he complied if the State already knew where the
drugs had come from.

THE COURT: I don’t know that I read that the same way. Well,
anyway, I don’t know that I necessarily agree with that
interpretation, [counsel]. Just being honest, but I’ll hear your
argument on it.

[¶6.] Trial counsel acknowledged the mandatory minimum sentence

established by SDCL 22-42-4.3 but requested that the court deviate from the

mandatory minimum, as permitted by SDCL 22-42-2.5, because Hirning satisfied

all six conditions of the statute, and his health issues, age, and willingness to take

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responsibility were mitigating circumstances. Trial counsel explained his reading of

subsection (5) of SDCL 22-42-2.5:

It does say that the Defendant shall provide information before
the time of sentencing, but I think it has a couple qualifications.
It says, “but if the Defendant provides no relevant or useful
information, or -- and this is the part I think applies to [Hirning]
-- if the State was previously aware of the information.”

So in this case I think the key question would be, [Hirning],
where did you get the drugs? And in this case they already
know the answer to that question because it was the person
where he got the drugs that led them to his house. They had
stopped those individuals, searched that car and found the
meth. And then they said, “we were just at [Hirning’s] house.”
So I think if they would have asked him that question, they did
already know the answer to it.

[¶7.] The court expressed that both mitigating and aggravating factors

existed in the record. The court noted that Hirning was 66 years old at the time of

sentencing and had “a long history, including 10 felony convictions.” The court also

reiterated its understanding of Hirning’s struggles with addiction, advanced age,

and poor health.

[¶8.] In addressing Hirning’s request to deviate from the mandatory

minimum sentence, the court asked for clarification as to whether Hirning actually

provided any information. The State confirmed that he did not. The circuit court

found that subsections (1)-(4) and (6) of SDCL 22-42-2.5 were satisfied by the

record. All that remained on the threshold question of the court’s ability to deviate

downward from the mandatory minimum was the subsection (5) requirement that

the court make a written finding as follows:

The defendant truthfully provided to the state any information
and evidence in connection with any offense that was part of the
same course of conduct or of a common scheme or plan. The

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defendant shall provide any information before the time of
sentencing, but if the defendant provides no relevant or useful
information or if the state was previously aware of the
information, the court may determine that the defendant has
complied with the finding under this subdivision[.]

SDCL 22-42-2.5(5). After finding that Hirning had not provided any information to

the State, the court concluded that “I don’t believe that I have any discretion” to

deviate from the mandatory minimum sentence. The court then imposed a

sentence, stating, “I find that SDCL 22-42-2.5 does not apply and I will sentence

Mr. Hirning to the mandatory minimum of 10 years in the state penitentiary[.]”

[¶9.] Hirning raises two issues on appeal, which we restate as follows:

(1) Whether the circuit court erred by finding that the
requirements of SDCL 22-42-2.5 were not met and
sentencing Hirning to the mandatory minimum for a
second offense under SDCL 22-42-4.3.

(2) Whether Hirning received ineffective assistance of counsel
because counsel did not provide information about
Hirning’s methamphetamine source to the State prior to
sentencing. *
0F

Analysis

1. Sentencing.

[¶10.] “Questions of statutory interpretation and application are reviewed

under the de novo standard of review with no deference to the circuit court’s

decision.” Long v. State, 2017 S.D. 78, ¶ 5, 904 N.W.2d 358, 361 (quoting Deadwood

Stage Run, LLC v. S.D. Dep’t of Revenue, 2014 S.D. 90, ¶ 7, 857 N.W.2d 606, 609).

“In conducting statutory interpretation, we give words their plain meaning and

effect, and read statutes as a whole.” Reck v. S.D. Bd. of Pardons & Paroles, 2019

*. Appellate counsel is different from trial counsel.
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S.D. 42, ¶ 11, 932 N.W.2d 135, 139 (quoting State v. Bowers, 2018 S.D. 50, ¶ 16, 915

N.W.2d 161, 166). “[I]f the words and phrases in the statute have plain meaning

and effect, we should simply declare their meaning and not resort to statutory

construction.” Id. (alteration in original) (quoting State v. Bariteau, 2016 S.D. 57, ¶

15, 884 N.W.2d 169, 175). “[T]he starting point when interpreting a statute must

always be the language itself.” Id. (quoting State v. Livingood, 2018 S.D. 83, ¶ 31,

921 N.W.2d 492, 499).

[¶11.] A conviction for possession of methamphetamine with intent to

distribute, under SDCL 22-42-4.3, carries with it a mandatory minimum sentence.

“A second or subsequent conviction under this section shall be punished by a

mandatory sentence in the state penitentiary of at least ten years, which sentence

may not be suspended.” SDCL 22-42-4.3. SDCL 22-42-2.5 creates a narrow

exception for a court to deviate from the mandatory minimum sentence by

providing:

[T]he court shall impose a sentence without regard to any statutory
minimum sentence, only if the court makes written findings that:
(1) The defendant does not have a prior conviction for a crime
of violence as defined under subdivision 22-1-2(9);
(2) The defendant did not use violence or any credible threat
of violence or possess a firearm or other dangerous
weapon in connection with the offense;
(3) The defendant did not induce another participant to use
violence or any credible threat of violence or possess a
firearm or other dangerous weapon in connection with the
offense;
(4) The defendant was not an organizer, leader, manager, or
supervisor of any other participant in connection with the
offense;
(5) The defendant truthfully provided to the state any
information and evidence in connection with any offense
that was part of the same course of conduct or of a
common scheme or plan. The defendant shall provide any

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information before the time of sentencing, but if the
defendant provides no relevant or useful information or if
the state was previously aware of the information, the
court may determine that the defendant has complied
with the finding under this subdivision; and
(6) The offense did not result in death or serious bodily injury
to any person.

[¶12.] Hirning argues that, as a matter of statutory interpretation, SDCL 22-

42-2.5(5) was satisfied because the State was aware of his source. He points to how

stopping the vehicle that had just left his home provided law enforcement with

other information about related transactions. He asserts that the court’s statement

at sentencing that it did not believe it had discretion indicates that the court would

have deviated from the mandatory minimum if it had interpreted the statute

correctly and realized it had discretion. He contends that the court erred in

concluding that Hirning had not satisfied SDCL 22-42-2.5(5).

[¶13.] The State responds that Hirning has “not set out an argument that

legitimately questions the statutory construction, interpretation, or

constitutionality of SDCL 22-42-2.5.” The State further contends that Hirning’s

argument is really a challenge to sentencing discretion rather than to statutory

construction. It notes that the court only has to provide written findings if it

concludes that a defendant has complied with all six factors, and even then, the

statute is permissive with respect to sentencing outside the mandatory minimum.

As applied to the case at hand, the State argues that Hirning did not cooperate with

law enforcement and that trial counsel’s attempt to satisfy the requirement by

pointing to information obtained from others is unavailing.

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[¶14.] SDCL 22-42-2.5(5) requires a sentencing court to consider cooperation

by a defendant in determining whether it may deviate from the mandatory

minimum sentence under SDCL 22-42-4.3. Subsection (5) allows a court to make a

finding when a defendant has “truthfully provided to the state any information and

evidence in connection with any offense that was part of the same course of conduct

or of a common scheme or plan.” SDCL 22-42-2.5(5) (emphasis added).

[¶15.] We must read statutes as a whole. Reck, 2019 S.D. 42, ¶ 11, 932

N.W.2d at 139. Contrary to Hirning’s suggestion, the second sentence of SDCL 22-

42-2.5(5) does not provide an alternative basis to support a finding when a

defendant has failed to provide any information but the state is already aware of

information about related criminal transactions. Rather, the language expounds on

the timing and quality of the information provided by a defendant that will suffice

for a finding under subsection (5). Id. The second sentence requires that “[t]he

defendant shall provide any information before the time of sentencing, . . . .” Id. It

then explains that “if the defendant provides no relevant or useful information or if

the state was previously aware of the information, the court may determine that the

defendant has complied with the finding under this subdivision[.]” Id. (emphasis

added). Simply put, even if the information provided by a defendant is not helpful,

the court “may” still find “that the defendant has complied” with subsection (5). Id.

However, the finding is conditioned upon a showing that the defendant has

provided information.

[¶16.] It is undisputed that Hirning refused to cooperate with law

enforcement. At the time of sentencing, Hirning’s trial counsel acknowledged that

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he had not provided any information. Hirning’s reading of the statute under these

circumstances is not supported by the plain language of SDCL 22-42-2.5. While the

court stated that it could “draw the inference that the people that were stopped are

the people that gave him the meth[,]” the court correctly read the statute to provide

that “unless I make a finding in writing that, among other things, Mr. Hirning

cooperated with law enforcement[,]” the court was without authority or discretion to

deviate from the mandatory minimum sentence. The court did not err in

determining that SDCL 22-42-2.5 did not permit the court to deviate from the

mandatory minimum sentence because Hirning had failed to provide any

information to the State.

2. Ineffective assistance of counsel.

[¶17.] “To prevail on an ineffective-assistance-of-counsel claim, ‘the defendant

must show that . . . counsel made errors so serious that counsel was not functioning

as the “counsel” guaranteed the defendant by the Sixth Amendment’ and that

‘counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.’” State v. Chipps, 2016 S.D. 8, ¶ 17, 874 N.W.2d 475, 481-

82 (omission in original) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)). However, “[i]neffective-assistance-of-

counsel claims are generally not considered on direct appeal. Rather, such claims

are best made by filing a petition for a writ of habeas corpus which, if granted, will

result in an evidentiary hearing.” State v. Vortherms, 2020 S.D. 67, ¶ 30, 952

N.W.2d 113, 120 (quoting State v. Hauge, 2019 S.D. 45, ¶ 18, 932 N.W.2d 165, 171).

“Reviewing an ineffective-assistance-of-counsel claim on direct appeal does not

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permit an ‘attorney [ ] charged with ineffectiveness to explain or defend [his or her]

actions and strategies[.]’” Chipps, 2016 S.D. 8, ¶ 17, 874 N.W.2d at 482 (alterations

in original) (quoting State v. Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d 706, 714).

“Therefore, this Court will not grant relief for such a claim on direct appeal unless it

is obvious on the record that the defendant has been deprived of his constitutional

rights to counsel and a fair trial.” Id.

[¶18.] Hirning argues that his trial counsel misunderstood SDCL 22-42-

2.5(5). He argues his counsel should have provided the name of Hirning’s source to

the State prior to sentencing and that he should not suffer because of an error on

counsel’s part. In response, the State cites our decisional law that habeas corpus

proceedings are the appropriate means to pursue claims of ineffective assistance of

counsel and that that we rarely consider such claims on direct appeal. The State

also argues that Hirning cannot blame trial counsel for his own failure to cooperate

with law enforcement.

[¶19.] It is undisputed that neither Hirning nor his trial counsel shared any

information with the State prior to sentencing, but the record is undeveloped as to

any discussions between Hirning and his trial counsel about whether he should do

so. We decline to consider Hirning’s ineffective assistance of counsel claims on

direct appeal.

[¶20.] Affirmed.

[¶21.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.

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