SD Supreme Court overturns guilty plea as habitual offender

PIERRE — The South Dakota Supreme Court says Milo Hirning gets another chance.

The Aberdeen man pleaded guilty last year to unauthorized possession of a controlled substance and admitted to being a habitual offender.

The Supreme Court has found, however, that Hirning wasn’t warned by Circuit Judge Tony Portra of the dangers of representing himself.

The high court further said the legal record doesn’t indicate circumstances that Hirning was aware of the dangers, or that he made a voluntary, knowing and intelligent waiver of his right to a lawyer.

Consequently, the justices in a 5-0 decision have reversed the guilty pleas and remanded Hirning’s case back to circuit court for further action.

Hirning was already on parole and living at his home in Aberdeen when police, searching for another man, saw a vehicle belonging to that man’s father in Hirning’s driveway.

A subsequent search determined Hirning, the man, the man’s father and a woman were in the house. They tested positive for ingestion of marijuana and methamphetamine.

On Hirning was found marijuana, cash totaling $2,110 and marijuana paraphernalia. Methamphetamine was discovered in the house.

Attorney Chris Jung originally represented Hirning. But Hirning decided as his trial date approached that he wanted a different lawyer.

Questioning by the circuit judge found Hirning was trying to get another lawyer but hadn’t.

He said several times that if he couldn’t get one, he guessed he would have to represent himself.

Hirning eventually pleaded guilty to the two counts as offered in a plea bargain. He asked if he could get a lawyer to represent him at the sentencing.

With a lawyer present, Judge Portra ultimately sentenced Hirning to 25 years in prison as a habitual offender, with seven years suspended.

The Supreme Court had previously outlined a five-step process for circuit judges to use in instances where defendants wish to represent themselves. That process wasn’t used in the Hirning case.

The Supreme Court also determined the circuit judge hadn’t inquired into Hirning’s personal and legal experience regarding his ability to represent himself.

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