State v. Krause, 2017 SD 16

Twin brothers Ryan and Brian Krause, IT employees, stole equipment from their employers (Valley Queen Cheese and Big Stone Therapies) and sold it online; internal loss estimated at ~$180,000.
They also accessed and copied confidential data (payroll, bank-account numbers, personal and business financial statements, emails) from employer systems; Brian shared data with Ryan.
In plea agreements the brothers admitted to one count of grand theft and four counts each of unlawfully using a computer system, agreed to $80,000 restitution and transfer of a boat title; the State limited charges per the agreement.
At sentencing the circuit court imposed concurrent punishment recommendation aside, but sentenced each brother to four years for grand theft and four consecutive two-year penitentiary terms (one per computer conviction), all sentences consecutive. The Krauses appealed only the unlawful-use-of-computer-system sentences.
Appeals raised (1) Eighth Amendment challenge (gross disproportionality) and (2) claim that the court erred by imposing imprisonment rather than the presumptive probation for Class 5/6 felonies and failing to state aggravating circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether consecutive two-year sentences for unlawfully using a computer system violate the Eighth Amendment (gross disproportionality)	State: Sentences are proportional given violations of property and privacy and fit within statutory range	Krause: Sentences are grossly disproportionate; offenses were minor and defendants had mitigating factors (no substantial record, cooperation, restitution, counseling)	Held: No Eighth Amendment violation — sentences not grossly disproportionate to the offenses (de novo review)
Whether court erred by imposing imprisonment instead of presumptive probation and failing to state aggravating factors	State: Once defendants received penitentiary time for grand theft, SDCL framework precluded presumptive probation for remaining counts; court lacked authority to impose probation	Krause: Court improperly deviated from presumptive probation and failed to state aggravating circumstances in judgment	Held: No error — because brothers were committed to executive supervision by grand-theft penitentiary sentences, probation was not presumptive or available and court need not state aggravating circumstances for a non-departure

Harmelin v. Michigan, 501 U.S. 957 (1991) (rejects broad individualized proportionality review in noncapital sentencing)
Solem v. Helm, 463 U.S. 277 (1983) (framework for Eighth Amendment gross disproportionality analysis)
State v. Chipps, 874 N.W.2d 475 (S.D. 2016) (South Dakota application of gross-disproportionality review)
State v. Rice, 877 N.W.2d 75 (S.D. 2016) (de novo review for Eighth Amendment disproportionality in SD sentencing)
State v. Orr, 871 N.W.2d 834 (S.D. 2015) (court cannot impose probation concurrent with active penitentiary supervision)
State v. Garreau, 864 N.W.2d 771 (S.D. 2015) (discussion of proportionality review endpoints)
State v. Kramer, 754 N.W.2d 655 (S.D. 2008) (limits on court’s power to impose consecutive sentences)
State v. Arguello, 548 N.W.2d 463 (S.D. 1996) (contemporaneous discussion of consecutive-sentencing authority)
State v. Flittie, 318 N.W.2d 346 (S.D. 1982) (historical treatment of consecutive sentencing authority)