ORDER DIRECTING ISSUANCE OF JUDGMENT OF AFFIRMANCE
The Court considered all of the briefs filed in the above-entitled matter, together with the appeal record, and concluded pursuant to SDCL 15-26A-87.1(A), that it is manifest on the face of the briefs and the record that the appeal is without merit on the ground that the issues on appeal are clearly controlled by settled South Dakota law or federal law binding upon the states (SDCL 15-26A-87.1(A)(1)), and that the Appellant failed to establish plain error.
As it relates to plain error, the Appellant has not demonstrated the existence of any error or that the error he asserts had a substantial impact on his rights. As to this latter requirement, the evidence that the Appellant challenges relates to a charge for which he was acquitted and does not relate to the single charge for which he was convicted.
The Court further considered the merits of Appellants ineffective assistance of counsel claim but only insofar as it relates to his principal claim of evidentiary error. Because we conclude there was no error and, in any event, no impact upon his substantial rights, the Appellant could not rely upon his trial counsels failure to object to the challenged evidence as a basis to claim ineffective assistance of counsel. Now, therefore, it is
ORDERED that a judgment affirming the amended judgment of the circuit court be entered forthwith.
Steven R. Jensen, Chief Justice
PARTICIPATING: Chief Justice Steven R. Jensen and Justices Janine M. Kern, Mark E. Salter, Patricia J. DeVaney and Scott P. Myren.