#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-
