#27790-a-DG
2017 S.D. 61
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
LEE ANN STENSTROM, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBIN J. HOUWMAN
Judge
****
MARTY J. JACKLEY
Attorney General
KELLY MARNETTE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
MARK KADI of
Minnehaha County Office
of the Public Advocate
Sioux Falls, South Dakota Attorneys for defendant
and appellant.
****
ARGUED FEBRUARY 14, 2017
OPINION FILED 09/27/17
#27790
GILBERTSON, Chief Justice
[¶1.] Lee Ann Stenstrom appeals her termination from the drug-court
program and subsequent revocation of suspension of execution of a four-year
sentence. Stenstrom argues the drug court 1 violated her statutory and
constitutional rights to due process and counsel by denying her request to permit
her attorney to attend drug-court-team meetings. She also argues her termination
from the drug-court program was error. We affirm.
Facts and Procedural History
[¶2.] Stenstrom was initially arrested on July 1, 2014, in connection with a
law-enforcement investigation into possible drug dealing at the Power Keeno Casino
in Sioux Falls. Stenstrom was in possession of a hypodermic needle and a plastic
“snort tube” containing methamphetamine. A grand jury indicted her on a variety
of charges, but she was released from jail on a personal-recognizance bond. 2
[¶3.] Stenstrom subsequently failed to appear for a pretrial conference
hearing on November 6, and the court issued a bench warrant for her arrest. She
was again arrested and released on personal recognizance. She failed to appear for
another pretrial conference hearing on January 21, 2015. Another bench warrant
was issued, and Stenstrom was arrested for a third time on February 14. Following
1. As used in this opinion, the term drug court refers to the judge presiding over
proceedings relating to the drug-court program. When referring to the
program itself or the multidisciplinary team that advises the drug-court
judge, this opinion will use the terms drug-court program and drug-court
team, respectively.
2. Stenstrom was indicted for possessing methamphetamine, possessing drug
paraphernalia, possessing an unauthorized article in jail, and for
impersonation with intent to deceive law enforcement.
-1-
#27790
this arrest, she was charged with failing to appear as well as additional, felony drug
charges.
[¶4.] On April 27, Judge Patricia Riepel arraigned Stenstrom. Pursuant to
an agreement with the State, Stenstrom pleaded guilty to one count of possessing a
controlled substance (a Class 5 felony). In exchange, the State agreed to drop the
other offenses charged in the indictment, Stenstrom’s failure to appear, and the
additional drug charges arising out of the February 14 arrest. The agreement also
required Stenstrom to successfully complete the drug-court program. The circuit
court imposed a four-year sentence on Stenstrom but suspended its execution on the
condition that Stenstrom complete the drug-court program and undergo three years
of supervised probation.
[¶5.] Stenstrom was released on May 1, 2015, and was directed to reside at
a sober-living house used by drug-court participants. Four days later, Stenstrom
left the house and failed to return. She then failed to attend both a drug-court
hearing and a meeting with her court-services officer on May 7. Another warrant
was issued for her arrest. On July 14, Stenstrom was arrested on the warrant and
for possessing a controlled substance. The next day, she told her court-services
officer that she had used methamphetamine and marijuana during her absence
from the sober-living house. A subsequent urinalysis confirmed her confession.
[¶6.] On July 23, 2015, the drug-court team met to consider whether
Stenstrom should be terminated from the drug-court program. The next day,
Stenstrom’s court-services officer filed a drug-court termination report alleging
Stenstrom violated the requirements of the drug-court program by leaving the
-2-
#27790
sober-living house, failing to appear in drug court, failing to meet with her court-
services officer, using methamphetamine and marijuana, and by committing an
additional drug offense. Even so, Stenstrom was permitted to remain in the
program, and she was released from custody on August 28.
[¶7.] Stenstrom continued to struggle with meeting the program’s
requirements. On August 29, Stenstrom met with her court-services officer, who
noticed alcohol in Stenstrom’s residence. Stenstrom admitted to consuming alcohol,
and she blew a 0.029 on a preliminary breath test (PBT). On September 8, 2015,
Stenstrom was placed in the 24/7 Sobriety Program. She was required to refrain
from using alcohol or drugs. She failed another PBT on September 20, registering a
0.040. On September 28, a drug test indicated she had used methamphetamine at
some point in the previous two weeks.
[¶8.] On October 2, 2015, Stenstrom was placed at the Changes and Choices
halfway house. On October 16, she informed her court-services officer that she was
frustrated by the rules at the halfway house. She was also upset because her
roommate had been romantically involved with an individual who killed
Stenstrom’s nephew in 2003. The officer told Stenstrom that he would address her
concerns with the halfway house’s staff and that Stenstrom should also do so.
Instead, Stenstrom left the house and did not return.
[¶9.] Stenstrom subsequently failed to appear before the drug court on
October 22. The drug-court team met and proposed terminating Stenstrom from
the program. Another warrant was issued for Stenstrom’s arrest, and her court-
services officer filed a drug-court termination report on October 26. The report
-3-
#27790
alleged Stenstrom had violated the drug-court program’s conditions by leaving the
halfway house without permission, using alcohol and methamphetamine, and
evading supervision.
[¶10.] On December 28, Stenstrom was arrested for aggravated eluding and
driving with a suspended license, and an attorney was appointed to represent her.
The drug-court team then met again on December 31, and another proposal was
made to terminate Stenstrom from the drug-court program. On the same day, her
court-services officer filed another termination report alleging Stenstrom violated
the conditions of the drug-court program by committing aggravated eluding and
driving with a suspended license.
[¶11.] On January 6, 2016, Stenstrom asked the drug court to permit her
attorney to attend drug-court-team meetings. In a hearing held on January 21 and
28, the drug court denied Stenstrom’s request, and the State submitted exhibits and
witness testimony in support of the October 2015 termination report. Stenstrom’s
attorney presented argument and cross-examined the State’s witness. Although
given the opportunity to do so, Stenstrom did not present any evidence or testimony
disputing the termination report.
[¶12.] With Stenstrom’s consent, the drug court moved on to the question
whether to terminate her from the program. Stenstrom was given another
opportunity to address the drug court and present evidence. She read a prepared
statement to the drug court, and her attorney called one witness. After confirming
Stenstrom had nothing further to present, Judge Riepel retired to a closed-door
meeting with the rest of the drug-court team. Judge Riepel reminded the team that
-4-
#27790
she had previously found that Stenstrom violated the terms and conditions of her
probation. She then asked each team member to vote “yay” or “nay” on the question
whether to terminate Stenstrom from the drug-court program. The team
unanimously recommended termination, and Judge Riepel confirmed that they did
so on the basis of the testimony and exhibits previously submitted. After returning
to the courtroom, Judge Riepel informed Stenstrom that the drug-court team
unanimously recommended terminating her from the program.
[¶13.] On February 4, 2016, following Stenstrom’s termination from the drug-
court program, the State filed a motion to revoke the suspension of execution of her
sentence. On February 11, the motion was heard by Judge Robin Houwman, and
Stenstrom appeared with her attorney. The court informed Stenstrom of her rights;
specifically, the court told Stenstrom that she had the right to a hearing on the
question of revocation. The court emphasized that at such hearing, Stenstrom
would be presumed innocent, that the State would have the burden of proving she
violated the terms of her suspended sentence, that she would be able to call
witnesses, and that she would have an opportunity to cross-examine any witness
called by the State. Stenstrom waived her rights and admitted to violating the
conditions of her suspended sentence. The circuit court accepted her admission and
reinstated Stenstrom’s original, four-year sentence.
[¶14.] Stenstrom appeals, raising five issues:
1. Whether a drug-court participant has a statutory right to
have her attorney present at drug-court-team meetings.
2. Whether the drug court’s decision to keep team meetings
closed to the public violated Stenstrom’s right to due
process.
-5-
#27790
3. Whether the drug court’s decision to keep team meetings
closed to the public violated Stenstrom’s right to counsel.
4. Whether the drug court abused its discretion by
terminating Stenstrom from the drug-court program.
5. Whether the circuit court abused its discretion by
reinstating Stenstrom’s four-year sentence.
Analysis and Decision
[¶15.] This case involves a jurisdictional question not addressed by the
parties. 3 Stenstrom filed a notice of appeal regarding the circuit court’s decision to
revoke the suspension of execution of her sentence. In her brief, Stenstrom asserts
this Court has appellate jurisdiction under SDCL 15-26A-3, which applies to
appeals “from the circuit court[.]” (Emphasis added.) Yet, the first four issues
Stenstrom raises pertain to actions taken by the drug-court program. This Court
has only “such appellate jurisdiction as may be provided by the Legislature[.]” S.D.
Const. art. 5, § 5. Therefore, we may not directly review the drug court’s actions in
this appeal.
[¶16.] Even so, this Court does have appellate jurisdiction over the circuit
court’s decision to revoke the suspension of execution of Stenstrom’s sentence.
Within the context of revocation, the actions of a drug-court program may be
considered indirectly when a drug-court participant resists a motion for revocation
by alleging her termination from the drug-court program was the result of some
mistake or impropriety on the part of the program. In this case, however,
3. This Court is “required to take notice of jurisdictional questions, whether
presented by the parties or not.” State v. Schwaller, 2006 S.D. 30, ¶ 5,
712 N.W.2d 869, 871 (quoting Dale v. City of Sioux Falls, 2003 S.D. 124, ¶ 6,
670 N.W.2d 892, 894).
-6-
#27790
Stenstrom failed to make such an argument at the revocation hearing. At the
revocation hearing, Stenstrom initially indicated she would contest the propriety of
her termination from the drug-court program. 4 But after being advised of her
rights, Stenstrom explicitly waived the right to contest revocation, declining to offer
evidence or argument challenging the State’s assertion that she violated the terms
of her suspended sentence.
[¶17.] The only real issue in this appeal, then, is whether the circuit court
abused its discretion by revoking the suspension of execution of Stenstrom’s
sentence and by reinstating her original, four-year sentence. A court’s decision to
revoke the suspension of execution of a sentence is reviewed for an abuse of
discretion. State v. Divan, 2006 S.D. 105, ¶¶ 6-14, 724 N.W.2d 865, 869-71. The
circuit court conducted an independent review of Stenstrom’s case prior to deciding
to revoke and after providing Stenstrom an opportunity to present evidence and
argument. As noted above, Stenstrom had been in the drug-court program for
merely four days before first absconding. While absent from the program, she used
4. The following conversation occurred between the circuit court and
Stenstrom’s attorney:
[Stenstrom’s Attorney]: My client will admit that she was
terminated from Drug Court, but we don’t wish to waive the
propriety of that termination, so we can see historically that it
happened, but we made a number of motions in the other
court, . . . wherein we want to be able to contest the
determination was proper.
I don’t want to be conceding by admitting that we waived any of
those issues. So that’s how we are prepared to proceed.
[Court]: You have made your record and preserved any of those
issues for appeal. Absent that issue, you are prepared to
proceed with an admission and sentencing today?
[Stenstrom’s Attorney]: Yes.
-7-
#27790
multiple controlled substances and skipped meetings with the drug court and her
court-services officer. She returned to the program only after being arrested again,
but was given another chance. One day after being released from custody, she
failed a PBT and had alcohol visibly present in her residence. She failed another
PBT one month later, and a week after that, she tested positive for
methamphetamine use. Yet, the drug court gave Stenstrom another chance. In
response, Stenstrom absconded from the program again, skipping a drug-court
hearing and a meeting with her court-services officer. She was subsequently
arrested on additional charges. Under these circumstances, we do not think the
circuit court’s decision to revoke was “a choice outside the range of permissible
choices.” State v. Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d 75, 83 (quoting MacKaben v.
MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622).
[¶18.] Even so, Stenstrom contends that “[i]mposition of a sentence on its full
entirety conflicts with [the] Best Practice Standards[’] concerns about augmenting
sentences . . . .” She points out that under these standards, when it becomes
necessary to terminate a participant, “the participant should not be punished or
receive an augmented sentence for trying, but failing, to respond to treatment[.]”
1 National Association of Drug Court Professionals, Adult Drug Court Best Practice
Standards § IV(G) cmt., at 45 (2013). 5 This argument is meritless. The circuit
court did not increase Stenstrom’s sentence; it merely revoked the suspension of
execution of the previously determined sentence. Thus, the sentence imposed was
5. SDCL 16-22-5.3 required the State Court Administrator’s Office to
implement statewide standards in accordance with these standards.
-8-
#27790
punishment solely for committing a class 5 felony—not punishment for failing the
program. Moreover, the court gave Stenstrom credit for 206 days previously served.
Thus, the circuit court did not augment Stenstrom’s sentence.
Conclusion
[¶19.] SDCL 15-26A-3 does not authorize this Court to review the actions of
the drug-court program directly. By waiving her right to contest the State’s motion
for revocation, Stenstrom failed to preserve the issue of her termination for indirect
review. The circuit court conducted an independent review of the facts, and its
decision to revoke the suspension of execution of Stenstrom’s sentence was not an
abuse of discretion.
[¶20.] We affirm.
[¶21.] ZINTER, SEVERSON, and KERN, Justices, and WILBUR, Retired
Justice, concur.
-9-