Supreme Court to consider three area cases

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The South Dakota Supreme Court will consider as part of its August docket area cases involving disagreement over a guilty plea, a drug conviction and the rights to a dead man's house.

Those two criminal and one civil appealed cases originated in Aurora, Tripp and Hutchinson counties in 2017 and 2018. All will be considered by the court without oral argument.

Justin Howard, a 36-year-old Sioux Falls man sentenced in November to 30 days in jail for a DUI conviction in Aurora County, has appealed his conviction to the Supreme Court.

Howard was arrested in Aurora County in September 2018 and was charged with a first-offense DUI. At the time of his arrest, he was on federal supervised release for a 2017 conviction of failure to register as a sex offender. Howard's supervised release in that case was revoked soon after he was sentenced for the Aurora County DUI, and he was sentenced to 11 months in federal prison, concurrent with 10 months for engaging in sexual contact with a person incapable of consent in McLaughlin in 2014, a separate conviction for which his supervised release was also revoked.

His attorney, Theresa Maule Rossow, entered a guilty plea to the Aurora County charge on his behalf using power of attorney in November, and a judgment of conviction was entered.


On Dec. 6, Howard filed a motion to set aside the judgment of conviction and withdraw his guilty plea. Judge Patrick Smith denied the motion, saying during a hearing that while circuit courts can allow defendants to withdraw pleas, he would have to be shown that a manifest injustice occurred in order to do so after a conviction.

"Courts are much more likely to grant (withdrawal) before sentencing because it mitigates against the fact that a party may be asking to withdraw the plea simply because they're unsatisfied with the outcome as opposed to asking to withdraw the plea because of some misunderstanding or other reason," Smith said at the Dec. 6 hearing.

Smith said that Maule Rossow, acting with power of attorney for Howard, had gotten consent from Howard to enter a guilty plea before she did so. He found that meant a manifest injustice had not occurred.

Howard's notice of appeal was filed on Dec. 12, 2018. He's asked the Supreme Court to determine whether Howard had ineffective assistance of counsel that made his entry of a guilty plea not knowing and voluntary, as well as whether the sentence he received violated his Sixth Amendment right to a speedy and public trial.

The Supreme Court will also consider the case of 38-year-old Anthony Martinez, of Winner, who is currently at the Rapid City Work Center serving a 4-year Tripp County sentence for unauthorized ingestion of a controlled substance in schedules I or II, a Class 5 felony.

Martinez pleaded guilty to that charge, for which he was arrested in May 2018, and was sentenced on Nov. 15. As of Friday morning, little additional information was available on the reason for his appeal, but the court will consider whether his judgment of conviction should be reversed.

The third case on the Supreme Court's August document deals with the estate of Kenneth Stoebner, a Hutchinson County man who died in 2017, the man he gave power of attorney, and what that man did with Stoebner's property.

The original complaint in the case, brought by the estate's executor against Curtis Huether, requested damages for that property, which Huether had sold to himself, using his power of attorney, for less than half the property's fair market value, which he then did not pay.


In 1990, according to the complaint, Stoebner executed his will, which stipulated that all of his property would be distributed to eight charities following his death. Stoebner's "only asset of any appreciable value," the proceeds of which would go to charity based on his will, was his property in Hutchinson County, which was alleged to have been valued at about $720,000.

In 2012, Stoebner appointed Huether as his attorney-in-fact. The complaint states the power of attorney paperwork didn't give Huether permission to self-deal with Stoebner's property.

On June 26, 2017, Huether executed a real estate purchase and sale agreement and a warranty deed for the Hutchinson County property. Huether signed the paperwork as the attorney-in-fact, signing over the property to himself for $350,000. Stoebner died in a nursing home four days later.

The estate reportedly found no evidence that Huether had paid Stoebner for the property before his death or the estate afterward. The complaint alleged that Huether had both violated his fiduciary duty to Stoebner and deprived the estate of its primary asset.

Smith granted the estate summary judgment in October 2018, ruling that Huether had breached his fiduciary duty. He ordered the sale agreement and warranty deed be considered null and void, giving the estate full ownership of the property. Huether was also ordered to pay the costs the estate incurred while bringing the action against him.

In his appeal, filed Nov. 28, Huether asked the Supreme Court to reverse the decision, arguing the standard for summary judgment was not met.

Related Topics: CRIME AND COURTS
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