State v. Fuller

#30391-a-MES
2024 S.D. 72

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

MATTHEW P. FULLER, Defendant and Appellant.

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE ROBERT L. SPEARS
Judge

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DERRICK JOHNSON
Springfield, South Dakota Attorney for defendant
and appellant.

MARTY J. JACKLEY
Attorney General

ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.

****

CONSIDERED ON BRIEFS
MARCH 19, 2024
OPINION FILED 11/26/24
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SALTER, Justice

[¶1.] Pursuant to his guilty plea, Matthew Fuller was convicted of one felony

count of possessing more than two ounces of marijuana but less than one-half

pound. The circuit court suspended the execution of a prison sentence and placed

Fuller on supervised probation. After the second of two post-sentencing arrests, the

court ordered Fuller held in jail pending the resolution of the State’s petition to

revoke his probation. The court appointed two attorneys in succession to assist

Fuller in the probation revocation proceeding. Each attorney moved to withdraw,

and the court granted both requests. The court did not appoint substitute counsel

after allowing the second attorney’s withdrawal. The court conducted the

revocation hearing with Fuller acting pro se after denying his request for a

continuance and for the appointment of counsel. After finding that Fuller violated

the terms of his probation, the court executed the previously suspended two-year

prison sentence. With the assistance of appointed appellate counsel, Fuller appeals.

We affirm.

Factual and Procedural Background

[¶2.] Following a traffic stop in the Codington County community of Henry

on February 4, 2021, Matthew Fuller was charged in a superseding indictment with

one count of possessing one-half pound but less than one pound of marijuana with

the intent to distribute (a Class 4 felony) and one count of possessing one-half

pound but less than one pound of marijuana (a Class 5 felony). Though he was

initially held in jail, Fuller was released under bond conditions after posting a

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$2,500 cash bond. The circuit court appointed a series of attorneys to represent

Fuller, including Terry Sutton, Timothy Cummings, and Scott Bratland.

[¶3.] Sutton represented Fuller until January 2022 when he apparently

withdrew, though the record does not contain a motion to withdraw or

corresponding order. Cummings was then appointed, and he served as Fuller’s

attorney through an April 2022 suppression hearing, after which he moved to

withdraw. The circuit court appointed Bratland after that, and he represented

Fuller through the June 2022 change of plea and sentencing hearing after which he

withdrew.

[¶4.] At the April 20, 2022 suppression hearing, the circuit court became

aware that Fuller’s girlfriend was recording the hearing without authorization

using an iPad device. The court ordered her and the others in the courtroom to turn

over their phones and electronic devices. Fuller’s girlfriend and the others in

attendance complied, but Fuller refused to turn over his phone. The court ordered

him removed from the courtroom and determined that his conduct was

contemptuous. Deputies apprehended Fuller after he left the courtroom and

detained him in jail.

[¶5.] The following day, April 21, the State moved to revoke Fuller’s bond

based upon his noncompliant conduct during the suppression hearing. The circuit

court signed an arrest warrant the next day, which set a cash bond of $3,000.

Fuller’s father paid the bond amount several days later, and Fuller was released on

April 26.

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[¶6.] The contempt finding and his related confinement became a focal point

for Fuller. Through numerous pro se letters and filings, Fuller challenged the

circuit court’s decision and the jail’s authority to hold him. Fuller also began to

accuse the court of partiality and bias.

[¶7.] Although there are few details contained in the record, the contempt

finding also prompted a misdemeanor charge that was assigned a magistrate court

case number by the Codington County Clerk of Court. Fuller alleges the circuit

court acted on its alleged bias when it signed an arrest warrant in the contempt

case.

[¶8.] The drug possession case was eventually resolved on June 22, 2022,

through a plea agreement with the State under which Fuller pled guilty to

possessing more than two ounces but less than one-half pound of marijuana (a Class

6 felony). The State agreed to dismiss the two more serious felony charges and also

agreed to dismiss the charges in two other cases, including the misdemeanor case

relating to the contempt finding.

[¶9.] During a combined change of plea and sentencing hearing in June

2022, Fuller entered a knowing and voluntary guilty plea to the new felony

possession of marijuana charge. The circuit court obtained a factual basis for the

plea and imposed a suspended two-year prison sentence, conditioned upon Fuller’s

satisfactory completion of a term of supervised probation. Among Fuller’s probation

conditions was the obligation to obey all state, federal, tribal, and municipal laws.

[¶10.] Fuller was arrested following traffic stops on November 23, 2022, and

December 5, 2022. Both arrests resulted in drug-related charges and two new

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criminal cases with allegations concerning unlawful marijuana possession, as well

as use and possession of methamphetamine. The November set of charges also

included an allegation that Fuller committed the offense of aggravated assault by

choking his girlfriend.

[¶11.] These arrests prompted a violation report from Fuller’s court services

officer (CSO) who exercised his authority to detain Fuller after the December 5

arrest. See SDCL 23A-27-21.2 (authorizing a CSO to issue a detainer for a

probationer lasting up to 48 hours “for the purpose of obtaining a warrant,

revocation, bond hearing, or court order”). Before the expiration of the detainer, the

circuit court ordered Fuller held without bond in an email. However, the email was

not initially filed with the clerk, and Fuller claimed that he should have been

released after 48 hours.

[¶12.] The circuit court addressed Fuller’s detention at a December 9 hearing

during which it read the contents of the email that was later filed. Fuller was

represented at the hearing by newly appointed counsel, Don McCarty, who

presented his client’s arguments for bond, which the court denied. Fuller appeared

through a live video link and was frequently disruptive during the hearing. He

insisted on addressing the court personally concerning the lawfulness of his

detention, which the court allowed before again clarifying that it acted prior to the

expiration of the CSO detainer.

[¶13.] In early January 2023, Fuller filed a series of pro se motions seeking

new counsel, the production of certain documents, and a bond hearing “before an

unbiased judge.” The presiding judge for the Third Judicial Circuit denied the

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request for a new judge, and McCarty moved to withdraw, citing “an irremediable

and complete breakdown in the attorney/client relationship[.]” McCarty was

allowed to withdraw, and the court appointed attorney Manuel deCastro.

[¶14.] Fuller continued to file pro se motions and writs seeking bond, release

from confinement, and the circuit court’s recusal.1 Fuller also sought withdrawal of

his earlier guilty plea, repeating his theory that the circuit court demonstrated bias

in connection with the contempt finding and confinement prior to the resolution of

the underlying case. In addition, Fuller sought to hold his probation violation

proceeding in abeyance pending the resolution of the two criminal cases resulting

from the November and December 2022 arrests. Fuller noted that the court

indicated a willingness to do so in its earlier communication with McCarty.

[¶15.] Fuller began to object to deCastro’s representation in February. In a

pro se writ of mandamus petition, Fuller expressed his intent to represent himself,

with deCastro serving in an advisory, “second seat” role. DeCastro filed a motion to

withdraw in May, describing, as McCarty had, an “irremediable” breakdown in the

attorney/client relationship.

[¶16.] The circuit court considered the motion to withdraw at a May 17

hearing. Fuller agreed that deCastro should be allowed to withdraw, but stated, “I

do not want to represent myself.” The court allowed deCastro to withdraw and

addressed Fuller’s request for counsel:

Let me ask you this, I appointed, I believe, in my best
professional judgment, four of the best criminal defense

1. Fuller filed a petition for habeas corpus with this Court, which we considered
and denied in a January 6, 2023 order.

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attorneys in the region and you had problems with every one of
them. So do you have an attorney in mind?

[¶17.] Fuller identified a particular Aberdeen attorney and indicated he was

making an effort to retain him with financial assistance from his family. Relying

upon information not contained in the record, both the State and the circuit court

expressed skepticism that the Aberdeen attorney would agree to represent Fuller.

Ultimately, the court did not appoint any attorney for Fuller, and it stated that it

would conduct the revocation hearing the following week regardless of whether

Fuller had retained counsel.

[¶18.] Fuller did not retain counsel, and he proceeded pro se at a May 24

revocation hearing. The hearing featured testimony from Fuller’s CSO, who

testified he lost contact with Fuller in October 2022, and from law enforcement

officers involved in Fuller’s November and December 2022 arrests. The circuit court

denied a number of preliminary pro se motions Fuller filed, and, after Fuller

presented a new application for a court-appointed attorney, the court stated

specifically, “I am not going to appoint another attorney for you.” In response to

Fuller’s motion to compel the State to amend its petition to revoke to describe more

specific evidence, the court concluded that the petition was sufficient and also

confirmed that Fuller received all of the discovery from the State.

[¶19.] Fuller’s cross-examination of the law enforcement witnesses was

punctuated by argument and his own version of facts, and the circuit court

frequently redirected Fuller and sustained related objections from the State.

Overall, Fuller’s efforts appeared to be directed at minimizing the weight of the

marijuana seized during the two traffic stops and also liability for possessing it. As

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to the methamphetamine, he challenged the testimony relating to possession and

use by suggesting a compromised chain of custody for the seized contraband, which

was not itself admitted. Fuller also claimed the evidence of constructive possession

was insufficient to sustain a finding. Fuller called one witness, his girlfriend, who

testified he had not assaulted her.

[¶20.] The circuit court found that Fuller violated the condition of his

probation that required him to obey all laws, specifically noting that a urinalysis

obtained after his November 23 arrest tested positive for methamphetamine. As an

additional basis raised by the evidence, the court also found that Fuller violated his

probation because he had not maintained contact with his CSO. The court ordered

the execution of Fuller’s suspended two-year prison sentence and determined it

would not grant Fuller credit for the 170 days he had been confined pending the

resolution of the revocation proceeding.

[¶21.] When Fuller objected to this latter ruling, the court stated that it was

a matter of its discretion to award time-served credit in instances where a person is

held without bond. In connection with this discussion, the court explained its

justification for holding Fuller without bond by providing its assessment, as it had

at an earlier hearing, that Fuller was a “danger to this community.”

[¶22.] With the assistance of appointed appellate counsel, Fuller appeals,

challenging the circuit court’s decision to deny his request for counsel and to not

give credit for the time served awaiting the revocation hearing. He also argues that

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the circuit court was biased against him in violation of the Canons of Judicial

Conduct, and that the revocation petition and proof violated due process.2

Analysis and Decision3

Appointment of counsel for a probation revocation hearing

[¶23.] “[T]here are critical differences between criminal trials and probation

or parole revocation hearings[.]” Gagnon v. Scarpelli, 411 U.S. 778, 788–89, 93 S.

Ct. 1756, 1763, 36 L. Ed. 2d 656 (1973). “Revocation deprives an individual, not of

the absolute liberty to which every citizen is entitled, but only of the conditional

liberty properly dependent on observance of special parole restrictions.” Morrissey

v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972).

[¶24.] A probationer facing a revocation proceeding is entitled to certain due

process protections, as we explain below, but the United States Supreme Court has

noted that its “precedents have sought to preserve the flexible, informal nature of

the revocation hearing, which does not require the full panoply of procedural

safeguards associated with a criminal trial.” Black v. Romano, 471 U.S. 606, 613,

2. Through counsel, Fuller attempted to appeal the circuit court’s email denial
of a motion to stay proceedings and for bond pending appeal. We dismissed
the appeal by order because it was not “a signed, attested, filed order
pursuant to SDCL 15-26A-6.”

3. In State v. Dietz, 2024 S.D. 70, -- N.W.3d.--, also issued today, we resolved an
unsettled question concerning the source of our appellate jurisdiction to
review a probationer’s challenge to a final order in a probation revocation
proceeding. We determined in Dietz that probation revocation proceedings
are special proceedings and sourced our jurisdiction to SDCL 15-26A-3(4)
which allows an appeal from “[a]ny final order affecting a substantial right,
made in special proceedings[.]”

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105 S. Ct. 2254, 2258, 85 L. Ed. 2d 636 (1985) (citing Gagnon, 411 U.S. at 787–90,

93 S. Ct. at 1762–64 and Morrissey, 408 U.S. at 489–90, 92 S. Ct. at 2604–05).

[¶25.] As a result, the Supreme Court has “declined to hold that indigent

probationers have, per se, a right to counsel at revocation hearings, and instead left

the decision whether counsel should be appointed to be made on a case-by-case

basis.” Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 26, 101 S.

Ct. 2153, 2159, 68 L. Ed. 2d 640 (1981) (discussing Gagnon). In South Dakota,

however, our Legislature has enacted a statutory requirement for counsel in all

probation and parole revocation proceedings. SDCL 23A-40-6. Individuals need

only show that they are indigent and request the assistance of counsel. Id.

[¶26.] However, unlike the deprivation of the constitutional right to counsel

at trial, the deprivation of the statutory right to counsel at a probation revocation

hearing is not included among the narrow list of six structural errors which are not

subject to harmlessness review.4 See Guthmiller v. Weber, 2011 S.D. 62, ¶ 16, 804

N.W.2d 400, 406 (listing the six structural errors). Therefore, a defendant deprived

of the statutory right to counsel at a probation revocation hearing must prove the

deprivation was prejudicial. In other words, a defendant must prove “a reasonable

4. Fuller asserts that he had a constitutional right to have counsel present at
the revocation hearing, though he does not develop this argument beyond
citing our decision in State v. Christian, 1999 S.D. 4, 588 N.W.2d 881. In
Christian, however, we recognized, as we have here, that there is no
universal constitutional right to counsel at a probation revocation hearing.
Id. ¶ 15, 588 N.W.2d at 883. As a result, the particular due process violation
we ultimately identified was limited to the facts of the case which involved
insufficient notice of the alleged probation violation—a fact not present here,
as we explain below. Id. ¶¶ 22–24, 588 N.W.2d at 885. Accordingly, we will
evaluate Fuller’s denial of counsel argument as a statutory claim, not a
constitutional one.

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probability that, but for the error, the result of the proceeding would have been

different.” State v. Carter, 2023 S.D. 67, ¶ 26, 1 N.W.3d 674, 686.

[¶27.] Here, there is no dispute that Fuller is indigent, and it is equally clear

that he requested an attorney. The circuit court initially appointed two experienced

attorneys to assist Fuller, but the court granted their motions to dismiss after each

reported serious deterioration of the attorney/client relationship.5 For example, at

the May 17 hearing, held one week before the revocation hearing, deCastro reported

to the court:

[Fuller] informed my office that he won’t speak to me nor meet
with me.

And since that time, it’s just been some letters instructing me to
file, what I consider to be, frivolous at best, material which I
refused to file. But just today, it’s more of the same, just yelling
at me.

[¶28.] The circuit court’s letter, dated May 17, stated, “Although Mr. Fuller

has the right to be represented by a lawyer if he wishes, he does not have the right

to instruct counsel to file frivolous motions, refuse to listen or follow his attorney’s

5. Fuller asserts that we should review the substitution of counsel for an abuse
of discretion. In his view, the circuit court abused its discretion by not
holding separate hearings to determine the necessity to allow withdrawal for
either McCarty or deCastro. Though it may well have been advisable for the
court to conduct a hearing to clarify the role and responsibilities of a defense
attorney, Fuller is not actually challenging the decisions to allow McCarty’s
and deCastro’s withdrawals; he agreed to it in both instances. The only issue
presented in this appeal is the court’s refusal to appoint another attorney for
Fuller when he did not have one, despite his request and indigency. The
court’s obligation to do so is set out in SDCL 23A-40-6, and the claim that the
court did not comply with this statutory command is a legal issue we review
de novo. See State v. Falkenberg, 2021 S.D. 59, ¶ 55, 965 N.W.2d 580, 596
(holding that whether a court complies with a statutory standard is a
question of law reviewed de novo).

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candid, independent professional advice, or refuse to assist counsel in the proper

defense of his case.” The court was correct, at least insofar as it noted that Fuller

could not compel his attorney to file frivolous motions, but the court’s response to

evidence of Fuller’s querulous behavior was erroneous.

[¶29.] The circuit court determined that Fuller was delaying the revocation

proceedings and stated it would not appoint another attorney. Fuller could act on

his plan to retain an attorney with the financial assistance of his family or not, but,

either way, the court indicated that the revocation hearing would be held the

following week on May 24.

[¶30.] When he appeared on May 24 without an attorney, Fuller requested

court-appointed counsel and a continuance.6 The circuit court denied both motions,

and as to the denial-of-counsel ruling, the State concedes the court’s violation of

SDCL 23A-40-6, relying in part upon In re J.G.R., 2004 S.D. 131, 691 N.W.2d 586.

[¶31.] Although the statutory right to counsel we confronted in J.G.R.

concerned representation for a mother in an abuse and neglect action involving her

child, we noted that we had previously “adopted criminal procedures as a means to

safeguard this right.” J.G.R., 2004 S.D. 131, ¶ 9, 691 N.W.2d at 589 (citing cases).

The mother had been represented by a number of attorneys, appointed and

retained, all of whom had withdrawn with the circuit court’s permission. Id. ¶ 3,

691 N.W.2d at 588. The court grew concerned that the mother was acting to delay

6. The continuance request was based upon Fuller’s statements that he was
suffering from health-related concerns.

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the action and refused to appoint counsel for an adjudicatory hearing, despite the

mother’s indigency and request. See id.

[¶32.] We acknowledged the validity of the circuit court’s concern regarding

delay, but we cited procedures used “in the criminal context” to better “deal with

mother’s revolving door of attorneys.” Id. ¶ 10, 691 N.W.2d at 589–90. In

particular, the court could have denied “a motion to withdraw by counsel” or denied

“a motion to substitute counsel made by the defendant.” Id. at 589. By doing

neither, the court was unable to effectively address its unnecessary-delay concern

while still meeting its statutory obligation to appoint counsel. Id. ¶ 13, 691 N.W.2d

at 591.

[¶33.] The same is true here. Fuller qualified for appointed counsel and

requested it. We note that the record contains several statements from Fuller in

which he expressed a desire to represent himself with the assistance of standby

counsel. It is unclear if this was Fuller’s intent at the time of the revocation

hearing. Regardless, the circuit court did not pursue this option at any point,

though it could have by inquiring into Fuller’s willingness to knowingly and

voluntarily waive his statutory right to counsel, advising him of the risks of self-

representation, and appointing standby counsel.

[¶34.] However, Fuller does not allege he was prejudiced by the deprivation

of counsel at the revocation hearing, nor does the record support that he was.

Because “[a] probation revocation proceeding is not a criminal prosecution[,]” a

violation does not need to be established beyond a reasonable doubt. State v. Divan,

2006 S.D. 105, ¶ 7, 724 N.W.2d 865, 869. Instead, a court considering a probation

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revocation petition “has discretion to determine if it is reasonably satisfied that a

violation has occurred[.]” State v. Kari, 2021 S.D. 33, ¶ 30, 960 N.W.2d 614, 621.

[¶35.] Here, there is overwhelming evidence to support the circuit court’s

finding of a probation violation under the relatively modest reasonable satisfaction

of burden of proof. Leaving aside the evidence that Fuller failed to maintain contact

with his CSO and even the evidence of his marijuana possession, there is

undisputed evidence that he used methamphetamine.

[¶36.] Officer Alex Hansen, a K-9 officer with the Watertown Police

Department, testified that he responded with his drug-detecting canine to the

November 23 traffic stop involving Fuller. While using his canine to determine the

presence of the scent of illegal drugs, the canine indicated to Fuller’s vehicle. A

subsequent search revealed a glass pipe containing white residue and a used

needle, both of which tested presumptively positive for methamphetamine. Fuller

was also given a urinalysis, which likewise, resulted in a presumptively positive

test for methamphetamine. These results were later confirmed by laboratory

analysis.

[¶37.] In light of this evidence and the lack of any argument by Fuller that

the violation of his statutory right to counsel impacted the result of his revocation

proceeding, Fuller has not established prejudice resulting from what we readily

conclude was an erroneous failure to appoint counsel.

Credit for time served without bond pending a revocation hearing

[¶38.] “Defendants in South Dakota do not have a statutory right to credit for

time served.” State v. Ainsworth, 2016 S.D. 40, ¶ 5, 879 N.W.2d 762, 764 (citing

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State v. Sorenson, 2000 S.D. 127, ¶ 14, 617 N.W.2d 146, 149). However, the Due

Process Clause of the Fourteenth Amendment requires credit for indigent

defendants “where incarceration results from a defendant’s financial inability and

failure to post bond[.]” Sorenson, 2000 S.D. 127, ¶ 15, 617 N.W.2d at 149; see also

State v. Green, 524 N.W.2d 613, 614 (S.D. 1994).7

[¶39.] But this due process exception is limited to instances in which a

defendant’s indigency prevents the defendant from paying the amount of a bond to

obtain pretrial, or pre-revocation, liberty. In other words, it does not apply where

the defendant is held without bond, creating a circumstance in which no defendant,

indigent or not, may be released. See Sorenson, 2000 S.D. 127, ¶¶ 21–23, 617

N.W.2d at 150–51.

[¶40.] In Sorenson, we rejected a defendant’s argument that he was entitled

to credit for time served in pretrial custody after the circuit court revoked his bond

and ordered him held without bond. Id. ¶ 23, 617 N.W.2d at 151. Because the

defendant had committed a “material breach of a condition of release without good

7. We have discussed and applied this rule in the presentence context, not in
post-sentencing revocation proceedings. However, the parties have not
suggested this distinction is consequential to the rule’s substantive due
process nature. We do note, as an aside, that as a purely statutory—not
constitutional—matter, our Legislature has enacted a statute that requires
the Board of Pardons and Parole to “credit the inmate with time spent in
custody as a direct result of the parole violation.” SDCL 24-15-21. However,
there is no corresponding statute that requires a circuit court to grant credit
for time served awaiting a probation revocation determination.

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cause,” we applied SDCL 23A-43-218 and held that “he was not eligible for release”

prior to trial, “whether or not he had the financial ability to post bail.” 2000 S.D.

127, ¶¶ 21, 23, 617 N.W.2d at 151.

[¶41.] Here, after Fuller’s probation was interrupted by two felony arrests in

less than 30 days, the circuit court ordered him held without bond pending his

revocation hearing. The record is replete with Fuller’s efforts to obtain bond, both

through counsel and acting pro se, but the court denied each of them. And Fuller

does not challenge those rulings on appeal, either by alleging the court abused its

discretion or that he had a legal right to bond.

[¶42.] Nor does Fuller allege that the circuit court’s decision to deny him

credit for the 170 days he spent in jail awaiting his revocation constituted an abuse

of discretion. Instead, he makes a purely legal argument for jail credit based on

SDCL 23A-27-18.1, which authorizes a credit for confinement “toward any

incarceration imposed upon any subsequent revocation of a suspended imposition or

execution of sentence[.]”

[¶43.] However, Fuller’s reliance upon this text is misplaced because it

overlooks the operative portion of the statute. The provisions of SDCL 23A-27-18.1

contemplate custody ordered as a “condition” of probation or a suspended execution

8. In its entirety, SDCL 23A-43-21 provides:

Upon a showing that there has been a material breach of a
condition of release without good cause, the court shall declare a
forfeiture of the bond, if any, and shall enter an order revoking
the conditions of release. If the defendant is not in custody, the
court shall direct the clerk to issue a warrant for the defendant’s
arrest. The defendant shall remain in custody until discharged
by due course of law.

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of sentence. Simply put, Fuller was not held as a condition of his probation after his

December 5 arrest—he was held because the circuit court determined he was a

threat to the community, and that finding is not challenged here.9

[¶44.] Without receiving credit for the 170 days, Fuller argues his

penitentiary sentence will become illegal because it will exceed the two-year

statutory maximum. This argument is based on a flawed premise because the

circuit court did not “sentence” Fuller to the 170 days in addition to the suspended

two-year sentence it executed.

Allegation of judicial bias

[¶45.] Fairness is a judicial virtue that “requires the appearance as well as

the existence of impartiality.” Marko v. Marko, 2012 S.D. 54, ¶ 20, 816 N.W.2d 820,

826. Fuller alleges the circuit court in his case was biased against him and was

obligated to recuse itself under Canon 3E(1) of our Code of Judicial Conduct. See

SDCL 16-2, App. (South Dakota Code of Judicial Conduct).

[¶46.] Canon 3E(1) states that “a judge shall disqualify himself or herself in a

proceeding in which the judge’s impartiality might reasonably be questioned[.]”

These include instances of “personal bias or prejudice” or “personal knowledge[.]”

Canon 3E(1)(a).10 “The standard is an objective one, requiring disqualification

9. At his June 2022 sentencing, the circuit court ordered Fuller to serve 18 days
in jail as a condition of his suspended prison sentence, and it credited him
with the 18 days he had served prior to sentencing.

10. Canon 3E(1) also requires recusal in three other specifically identified
situations—“(b) prior service as a lawyer in the matter, (c) economic interest,
and (d) close personal relationship of relatives or parties to a proceeding.”
Marko, 2012 S.D. 54, ¶ 19, 816 N.W.2d at 826 (citing Canon 3E(1)).
(continued . . .)
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where there is ‘an appearance of partiality . . . even though no actual partiality

exists.’” Marko, 2012 S.D. 54, ¶ 20, 816 N.W.2d at 826 (citing Liljeberg v. Health

Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S. Ct. 2194, 2202–03, 100 L. Ed. 2d

855 (1988)).

[¶47.] The obligation of a judge to recuse when the judicial canons require it

is matched by an “equally strong duty not to recuse when the circumstances do not

require recusal.” Id. ¶ 21 (citing Center for Professional Responsibility, American

Bar Association, Annotated Model Code of Judicial Conduct 187 (2004)). This duty

to remain assigned to a case “discourages potential abuse of the recusal process” by

“a discontented litigant [seeking] to oust a judge because of adverse rulings made[.]”

Id. ¶ 20, 816 N.W.2d at 827 (quoting Ex parte Am. Steel Barrel Co., 230 U.S. 35, 44,

33 S. Ct. 1007, 1010, 57 L. Ed. 1379 (1913)).11

[¶48.] Here, Fuller has not established bias under Canon 3E(1). He bases his

claim of judicial bias, in large part, upon the contempt finding the circuit court

made during the pretrial suppression hearing when Fuller failed to comply with the

court’s order to turn over his phone. Fuller claims the court signed the arrest

(. . . continued)
Critically, however, these four examples are illustrative only, and “[t]he
commentary to Canon 3E(1) explains: ‘Under this rule, a judge is disqualified
whenever the judge’s impartiality might reasonably be questioned, regardless
whether any of the specific rules in Section 3E(1) apply.’” Id. ¶ 20 (quoting
Canon 3E(1) commentary).

11. In Marko, we clarified our standard of review and held that a judge exercises
discretion only when deciding “whether the facts and circumstances fit within
the disqualifying criteria.” 2012 S.D. 54, ¶ 18, 816 N.W.2d at 826. However,
once a judge determines that a disqualifying criterion is satisfied, recusal is
mandatory. Id.

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warrant in the misdemeanor contempt file and argues that the court “should have

disqualified himself and not signed any warrants pertaining to the contempt charge

nor should he have presided over that file.”

[¶49.] But whether the circuit court should have presided over the contempt

file is not before us. In fact, the record does not contain the arrest warrant from the

contempt file, though it does establish the fact that the contempt file was not finally

adjudicated. The change of plea transcript indicates that the contempt file was

dismissed, along with other unrelated charges, as part of a global plea agreement

that culminated in a knowing and voluntary plea that had the effect of waiving all

non-jurisdictional errors. See State v. Andrews, 2007 S.D. 29, ¶ 4, 730 N.W.2d 416,

418 (quoting State v. Hoeft, 1999 S.D. 24, ¶ 12, 594 N.W.2d 323, 326) (“It is ‘the

general rule that a voluntary and intelligent plea of guilty waives a defendant’s

right to appeal all nonjurisdictional defects in the prior proceedings.’”).

[¶50.] Fuller also alleges the circuit court demonstrated bias in its handling

of his probation revocation proceeding. The principal focus of Fuller’s argument is

the court’s decision to go forward with the revocation proceeding after initially

indicating to Fuller’s then-appointed counsel that it was inclined to defer acting on

the revocation case until the resolution of Fuller’s two new felony criminal cases.12

The court reconsidered this decision and decided to proceed with the probation

12. Fuller used a different judicial disqualification procedure to remove the
circuit court from his two new cases. See SDCL ch. 15-12. Though it is listed
among our codified laws, the procedure is, in fact, based upon court rules we
have promulgated, and it allows a party to unilaterally disqualify a judge
early in a case after filing an affidavit stating a belief that “such party cannot
have a fair and impartial trial before the named judge or magistrate.” SDCL
15-12-26.

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revocation case at approximately the same point it granted deCastro’s motion to

withdraw.

[¶51.] Critically, however, Fuller has not challenged the circuit court’s legal

authority to do precisely what it did. It seems incongruent to claim that a judge’s

official conduct in connection with a case evidenced improper bias despite being

authorized. The same holds true for Fuller’s additional argument that the circuit

court “denied Fuller the ability to introduce impeachment evidence[.]”

[¶52.] Fuller’s final claim of judicial bias concerns the fact that the circuit

court appeared to find that Fuller also violated the probation condition to remain in

contact with his CSO. Fuller notes that the State had not alleged this as a basis for

revocation and argues that the court “went out of his way in order to find more

probation violations against Fuller than were ever alleged against him[.]” We read

the record differently.

[¶53.] In context, the court’s findings regarding Fuller’s compliance with the

condition to stay in contact with his CSO was a fair comment on the evidence

adduced at the revocation hearing. Fuller’s CSO testified that Fuller missed an

October 21, 2022 appointment, and did not respond to the CSO’s October 26 email.

We discuss below whether the State’s petition provided notice to Fuller of the

failure to maintain contact with his CSO, but regardless, the court’s comments were

based upon the record and are not evidence of judicial bias.

Due Process

[¶54.] We have held that due process for revocation hearings requires the

following:

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(a) written notice of the claimed violations of probation or
parole;

(b) disclosure to the probationer or parolee of evidence
against him;

(c) opportunity to be heard in person and to present
witnesses and documentary evidence;

(d) the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for
not allowing confrontation);

(e) a neutral and detached hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and

(f) a written statement by the factfinders as to the evidence
relied on and reasons for revoking probation or parole.

State v. Christian, 1999 S.D. 4, ¶ 16, 588 N.W.2d 881, 883 (cleaned up) (quoting

Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604).

[¶55.] Fuller offers a passing due process challenge to the State’s revocation

petition: it violated due process because it did “not describe the new charges in any

way.” In Fuller’s view, the petition was constitutionally deficient because it did “not

disclose the evidence that would be used” against him. We disagree.

[¶56.] The petition listed the four specific charges arising out of his

November 23 arrest, and the five additional charges relating to the December 5

arrest. The petition also states that Fuller was required to “remain a law abiding

citizen” as a condition of his probation. This was sufficient to provide Fuller with

notice of the violations.

[¶57.] Fuller’s specific claim that the petition did not disclose the evidence

that would be used against him is somewhat confounding. Although the State must

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disclose the evidence against Fuller, there is no due process requirement that the

petition detail all of the State’s evidence. Indeed, it would seem unusual that this

would be the case in practice.

[¶58.] Significantly, Fuller does not allege that the State did not disclose the

evidence against him. And although the record does not reveal exactly what the

State provided, the transcript from the revocation hearing confirms that Fuller

received written police reports and video evidence from the body-mounted cameras

worn by officers, all relating to the November and December 2022 arrests. In fact, a

jail official stated that Fuller had been up at night watching recorded video from

police officers’ body cameras.

[¶59.] Fuller also claims that the circuit court was not a neutral and detached

judicial officer, but this is the same argument made as part of the disqualification

argument we rejected above. The fact that Fuller makes the same argument under

a due process theory, in addition to Canon 3E(1), does not change our conclusion

that the claim lacks merit.

[¶60.] Fuller makes a final argument that challenges the sufficiency of the

evidence to support the circuit court’s finding that he violated his probation. He

claims that the petition’s allegation that he violated the law-abiding-citizen

condition was facially deficient because it merely alleged arrests and any claim of

criminal conduct was ultimately not supported by the evidence. As indicated above,

the petition apprised Fuller of the State’s allegation.

[¶61.] We also conclude that the evidence supported the court’s findings that

Fuller violated the probation condition prohibiting violations of the law. Law

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enforcement officers involved in both arrests testified about the circumstances

leading up to both arrests, including traffic stops, the seizure of contraband in

Fuller’s vehicle, and other investigative efforts, which led to the charges. And as we

noted above in our prejudice discussion relating to the statutory right to counsel

issue, the evidence of Fuller’s illegal use and possession of methamphetamine was

particularly strong.

Conclusion

[¶62.] Although the court did not comply with the statute that required it to

appoint counsel for Fuller in this revocation proceeding, Fuller has not established

prejudice, and his remaining arguments are not supportable.

[¶63.] Affirmed.

[¶64.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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