#24597-stay-PER CURIAM 

2008 SD 93

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

KRISTOPHER J. MARKS, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE WARREN G. JOHNSON 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

FRANK GEAGHAN 

Assistant Attorney General Attorneys for plaintiff 

Pierre, South Dakota and appellee. 

G. MATTHEW PIKE 

Lawrence County Public 

 Defender's Office Attorneys for defendant 

Deadwood, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON AUGUST 25, 2008 

 OPINION FILED 10/8/08 
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PER CURIAM 

[¶1.] Kristopher Marks (Marks) appeals his conviction for possession of 

more than one pound but less than ten pounds of marijuana. We stay our 

consideration of the case and order counsel to file an amended brief in compliance 

with all of the requirements of State v. Korth, 2002 SD 101, 650 NW2d 528. 

[¶2.] Pursuant to a plea bargain and guilty plea, Marks was convicted of one 

count of possession of more than one pound of marijuana but less than ten pounds. 

He was sentenced to eight years in the penitentiary with credit for time served. 

Marks appealed and his counsel filed a "Korth brief" alleging a lack of arguably 

meritorious issues for appeal. Id. 

[¶3.] Counsel's brief fails to comply with several Korth requirements: it fails 

to contain a statement of significant motions filed in the case and their disposition 

or an alternative statement that no motions were filed1; it fails to contain a 

statement that counsel discussed the case with Marks' trial-level counsel and with 

Marks; and, it fails to include Marks' signature on Section B of the brief.2 

[¶4.] We have occasionally forgiven failure to strictly comply with the Korth

procedure. However, our further review of Anders v. State of California, 386 US 

738, 87 SCt 1396, 18 LEd2d 493 (1967), Smith v. Robbins, 528 US 259, 120 SCt 746, 

145 LEd2d 756 (2000), State v. Balfour, 814 P2d 1069 (Or 1991) and Korth,

persuades us of the necessity for strict compliance with Korth to ensure fulfillment 

of Constitutional standards in those cases where appointed appellate counsel 

 

1. The record reflects that motions were filed in the case. 

2. Instead, counsel attached to the brief a copy of a letter from Marks that 

outlines the claims of error Marks wished to present in his appeal. 
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identifies no arguably meritorious issues for appeal. For example, the statement of 

significant motions and their disposition helps ensure that counsel has conducted a 

thorough review of the case as the client's advocate in search of arguably 

meritorious issues for appeal. Obviously, motions and their disposition are a 

frequent source of potential appellate issues. Counsel's statement that he has 

discussed the case with trial-level counsel and with the client also helps ensure a 

thorough review of the case and that counsel has provided the client with 

appropriate legal advice on issues the client seeks to raise. These were important 

considerations in the Oregon Supreme Court's development of the Balfour

procedure on which Korth was based. See Balfour, 814 P2d at 1080 – 81. This 

Court has already recognized that the client's signature is an essential part of 

Section B of a Korth brief. State v. Arabie, 2003 SD 57, ¶ 17, 663 NW2d 250, 255-

56. The signature verifies that counsel shared the brief with the client, that the 

client reviewed it and that it adequately presents the client's claims of error and 

arguments in support of the claims in the manner sought by the client. Id. 

[¶5.] In light of the omissions in counsel's Korth brief, we stay our further 

consideration of this case and order counsel for Marks to file an amended Korth

brief within twenty days of the filing of this decision that includes a statement of 

significant motions in the case and their disposition, a statement that counsel 

discussed the case with Marks' trial-level counsel and with Marks, and Marks' 

signature on Section B of the brief.3 The record shall be returned to Lawrence 

3. In the event Marks' own actions or inactions prevent counsel's compliance 

with any of these requirements, counsel shall advise the Court of that fact in 

the amended Korth brief. 
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County to assist counsel in carrying out this order. Upon the filing of the amended 

Korth brief and resubmission of the record, this Court will proceed with its 

consideration of this appeal. 

[¶6.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and 

MEIERHENRY, Justices, participating.