APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE TONY L. PORTRA Judge
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON AUGUST 23, 2011
[¶1.] Milo Hirning pleaded guilty to unauthorized possession of a controlled substance and admitted to being a habitual offender. On appeal, he argues his waiver of counsel was not voluntary, knowing, and intelligent. We reverse and remand.
[¶2.] In January 2010, Hirning was on parole, living in his home in Aberdeen, South Dakota. Police were looking for an absconder, Jesse Madsen, and located Jesse's father's vehicle in Hirning's driveway. Believing Jesse was also in Hirning's house, police and a parole agent entered Hirning's home. They found Hirning, Jesse, Jesse's father John, and a woman. A search of Hirning uncovered marijuana, marijuana paraphernalia, and $2,110.00 in cash. Methamphetamine was found in the house. Hirning and the other occupants tested positive for ingestion of methamphetamine and marijuana.
[¶3.] Hirning was charged with keeping a place for use or sale of controlled
substances (SDCL 22-42-10), conspiracy to distribute a controlled drug or substance
with high potential for abuse (SDCL 22-42-2 & 22-3-8), possession of two ounces or
less of marijuana (SDCL 22-42-6), and use or possession of drug paraphernalia
(SDCL 22-42A-3). He retained Aberdeen attorney Chris Jung to represent him. On
March 16, 2010, the State filed a Part II Information alleging that Hirning was a
habitual offender as defined by SDCL 22-7-7 to -8.1. That same day, Hirning
pleaded not guilty to all charges. The habitual offender information was held in
abeyance. The State filed a second superseding indictment on March 19, 2010,
adding a charge of unauthorized possession of a controlled substance (SDCL 22-42-5). A jury trial was set for
June 22-23, 2010, but later continued until August 17, 2010, at Hirning's request.
[¶4.] Hirning sent a five-page letter to the court on June 9, 2010, detailing concerns regarding his attorney, past experience with the prosecutor, and having the time and resources to prepare for trial. Jung filed a motion to withdraw on June 10, 2010. The motion stated that Jung and Hirning disagreed "as to the proper course of action in this matter and [Hirning had] failed to keep in contact." [¶5.] A hearing was held on July 2, 2010. At the hearing, the court questioned Hirning on whether he had another attorney in place if Jung was allowed to withdraw. Hirning indicated he did not, but that he was looking. The court denied Jung's motion to withdraw at that time.
[¶6.] On July 12, 2010, Jung filed a motion for a mental examination to determine if Hirning was competent to stand trial. On July 16, 2010, Hirning sent the court a letter requesting an answer to a 15-page "Bill of Particulars." At a hearing on July 22, 2010, the court stated Hirning appeared to understand the proceedings and had sent the court letters demonstrating such. The court also stated that it thought the request might be a delay tactic on Hirning's part so that he could find another attorney. Because the court could find no reasonable cause, the motion was denied.
[¶7.] Jung renewed his motion to withdraw on August 9, 2010, stating that "material disagreements as to the proper course of action in the case have occurred, which have led to a breakdown in relations between client and attorney." Hirning sent another letter to the court dated August 4, 2010, indicating he had terminated Jung's services. He explained that Jung had not given him some paperwork he requested, refused to file his request for a bill of particulars, and he therefore had no trust or confidence in Jung's representation. Hirning also told the court that he had been attempting to find another attorney but had not been successful. [¶8.] At a hearing on August 11, 2010, the court questioned Hirning about why he dismissed Jung.
THE COURT: So what is your plan then if I allow Mr. Jung to withdraw at your request and at his request. We're set for trial on Tuesday. Are you going to represent yourself?
THE DEFENDANT: I guess so, Your Honor, yes.
THE COURT: Have you tried to secure other counsel?
THE DEFENDANT: I have, Your Honor, I've sent out several letters, some have been negative. I had one positive but at the time I didn't have $10,000 on hand. But I still have several letters out, all my mail is sent to Springfield so if any answers come in they'll be down there.
THE COURT: Are you asking for court appointed counsel? THE DEFENDANT: I hadn't really thought about it just yet, Your Honor, because I was ...