State v. Hirning, 944 N.W.2d 537

In 2010 Hirning pleaded guilty to possession and admitted a part II habitual-offender information; Judge Tony Portra sentenced him to 25 years (7 suspended). This Court reversed on direct appeal because his waiver of counsel was not voluntary.
On remand counsel was appointed. Hirning sent ex parte letters asking Judge Portra to recuse, then (through counsel) filed a formal affidavit for change of judge on December 27, 2011.
Judge Portra presided over the hearing on that affidavit (contrary to SDCL procedures) and denied the affidavit as untimely and because Hirning had previously sought a change before Portra’s assignment.
Hirning pleaded guilty again, received the same sentence, and his direct appeal was later dismissed due to ineffective appellate counsel; a habeas court granted relief and ordered resentencing to revive appeal rights. Hirning again pleaded guilty and was resentenced.
The sole issue on this appeal was whether the circuit court erred by continuing to act after Hirning filed an affidavit for change of judge and, if so, whether that error deprived the court of jurisdiction to accept Hirning’s plea and impose sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the judge erred by continuing to preside after an affidavit for change of judge and whether that divested the court of jurisdiction	State: Hirning was not entitled to file the affidavit (waived by his guilty plea and by a prior change request), so the judge’s actions did not divest jurisdiction	Hirning: The judge acted after a (purportedly) properly filed affidavit for change of judge, so subsequent orders are void for lack of jurisdiction	Court: Hirning was not entitled to file the affidavit (guilty plea = waiver; he had previously obtained a change). Because the affidavit was invalid, Portra’s continuing to act did not deprive the court of authority. Conviction affirmed.

State v. Hirning, 2011 S.D. 59, 804 N.W.2d 422 (S.D. 2011) (prior reversal where defendant’s waiver of counsel was involuntary)
Legendary Loan Link, Inc. v. Larson, 2017 S.D. 25, 896 N.W.2d 267 (S.D. 2017) (rule voiding subsequent orders after a change depends on whether party was entitled to file the affidavit)
State v. Peterson, 531 N.W.2d 581 (S.D. 1995) (properly filed affidavit for change can deprive the challenged judge of jurisdiction)
State v. Burgers, 1999 S.D. 140, 602 N.W.2d 277 (S.D. 1999) (a guilty plea counts as "proof" or "submission" that waives the later right to file a peremptory change)
State v. Lohnes, 432 N.W.2d 77 (S.D. 1988) (a remanded matter that continues the original proceeding may not be the subject of a new affidavit to change the judge)
State v. Tapio, 432 N.W.2d 268 (S.D. 1988) (only the presiding judge may determine timeliness and entitlement to file an affidavit for change of judge)