State v. Bonner

1998 SD 30 of South Plaintiff

STATE Appellee, BONNER,

Jonathan James Defendant Appellant.

Nos. 19961.

Supreme Court of South Dakota. Sept.

Considered on Briefs 1997. April

Decided 1998. Barnett, General, Attorney

Mark Paul Cremer, General, Pierre, Attorney Assistant plaintiff appellee. and Office, Debra D. Watson of Watson Law Rapid City, appellant. for defendant and KONENKAMP, Justice. upon We are called examine imposing longest possible peni-

whether tentiary burglary upon sentence for a devel- offender, opmentally disabled whose accom- plices probation, received constitutes cruel punishment. and unusual We conclude particular under the circumstances of this case, burglary grossly sentence was dis- proportionate to the offense committed and was thus cruel unusual under the Amendment. We reverse and remand resentencing burglary on the offense. On hand, the other we affirm the sentence for statutory rape.

FACTS Bonner, age 2.] Jonathan James nine- Elf teen, pled guilty degree to one count of third 22-22-1(5), rape, SDCL' and one count of 22-32-3, burglary, second SDCL years was sentenced to fifteen on each count consecutively. with the terms to be served Thus, thirty years his total sentence was penitentiary. prior felony He had no record and a few lesser misdemeanors. parole eligibility His first date is in the thirty-five. when he is [¶ 3.] While Bonner obtained the maximum possible incarceration for his in the bur- glary, his quite two codefendants received different judge. sentences before another crime, For degree burglary, the same second sentence, Anthony got suspended Sorensen fine, restitution, days jail $750 release, years probation. work and three codefendant, Patridge, Tad also sentence, fine, suspended received a a $750 restitution, days jail release, with work probation. Nothing petty, five as “atrocious.” The authorities were happy to see him explains why Wyoming these sentences were so move out of record pending against dismissed matters him. disparate. South Bonner’s troublesome behav- To understand the unfortunate cir- [¶4.] juvenile, iors continued. While still a he was brought this cumstances which case court placed probation on formal indefinite twice necessary briefly relate it Bonner’s degree petty for first theft and disturbance history. health childhood and mental Bonner peti- of school. He delinquency admitted a by his alcoholic mother at was abandoned charging tion him threatening with or ha- one, age and was raised his father. He rassing telephone calls. Yet until the inci- secondary diagnosed symptoms was with case, in dents involved this Bonner’s entire (FAS) syndrome primary fetal alcohol and petty adult record consisted first (FAE).1 symptoms of fetal alcohol effect theft, lighting limits, city fireworks within People FAE with and no driver’s license. skills, bonding frequently lack and social In [¶ 6.] the summer of Bonner amet poor judgment, use lack a conscious aware- fourteemyear-old girl Rapid City in who told maintaining peer relationships, ness of him she was about to turn seventeen. When adults, tend to relate better to lack self- Huron, she returned to her home in she esteem, low, performance school is fre- every day called Bonner a urging for week quently inappropriately, seek attention him to they come to Huron where would be span development, lack attention often boyfriend girlfriend and she would find followers, impulsively, act tend to be tend place him stay job. Enraptured, a and a auditory learning, to be weak verbal and hastily Bonner money borrowed from a get legal prob- into and tend social and terminal, friend for a bus ticket. At the his lems due to these deficits. begged go father him not to even tried —he According psychologist to one who examined physically prevent him leaving from —but him, “struggles Bonner and suffers with all intervened, local law enforcement officers al- Beginning age of the characteristics.” lowing Bonner to board the bus because he began receiving psychological ten Bonner anwas adult. counseling regimen prescribed a with Huron, stopped taking In Bonner [¶ 7.] his to control his medication behavior. His fa- spent medication and the next weeks drink- him, highly working ther was skilled with ing partying. During the weekend of stop modify but found it difficult to or some 19-20, 1996, July party to the moved school, negative In his behaviors. he at- home, Brodkorb a of one where friend mostly special tended education classes and companions house-sitting Bonner’s was when finally completed grade age the ninth sev- occupants away honey- on their were enteen, quit. signif- when he He has had no there, moon. Bonner broke into a While experience icant work since that time. locked box hidden behind the bed in the juvenile, As a Bonner was in recur- master bedroom and took two Black Hills necklaces, watch, Wyo- rent trouble with law enforcement in gold gold and several $2 violations, ming though away who described his bills. The items were locked because (FAS) Syndrome pattern pro- 1. Fetal Alcohol severe as children. is those of FAS FAS/FAE physical develop physical, mental and defects which duces irreversible mental and emotion- Many ingests some babies al unborn when mother deficits. children with FAS/FAE relationships during pregnancy. alcohol Those bom with FAS able to understand cause and effect seriously handicapped require long-term consequences. be a life- the Jour- special Impairments reported physi- care. time of include nal of the American Medical Association retardation, including leading cal birth defects that FAS is the known cause of mental deficiencies, 5,000 system growth function, dys- central nervous retardation. At least infants are bom each FAS, every approximately craniofacial abnormalities and behav- or one out of maladjustments. Thirty forty percent ioral Fetal Alcohol Effect 750 live births. of babies (FAE) symptoms. heavily throughout preg- a less set of the whose mothers drink severe same precise nancy syndrome. Experts agreement United are not in full on the have the Source: However, Department distinctions between FAS and FAE. States of Health and Human Ser- problems behavioral of FAE children can be as vices family they gifts sentencing generally, from for the Brodkorb review of were a sentence — statutory Bonner also took a number of children. within the maximum will not dis Later, left, everyone Kaiser, music CDs. after had appeal. turbed on State v. accomplices (S.D.1995). Furthermore, Bonner and his two returned to N.W.2d con more the house and took CDs. He divided separate secutive sentences for two acts of money he had taken earlier with the statutory rape have been held to be constitu During investigation other two. Bonner tionally permissible. Phipps, placed at first (S.D.1982). denied involvement and 128, 132 friend, gave blame on a but then a full state- Sentencing perhaps decisions are admitting guilt. ment his responsibility most difficult for trial investigated in Hu- [¶ 8.] Bonner was also judges, encompassing circumstances both ob J.S., girls: age ron for sexual acts with four engage vious and elusive. It is not for us to nine; H.B., thirteen; B.J.P., fourteen; and appellate resentencing, in or to “microman B.R., ultimately charged sixteen. He was age the justice” administration of criminal in rape with four counts of and two counts of South even when individual trial sexual age contact with a minor under the of judges impose widely punishments different B.J.P., fourteen-year-old sixteen. the who DePiano, for the same offense. See State v. Huron, Bonner in invited to a written state- 27, 494, (1996) 187 Ariz. 926 P.2d cert. police, to ment said she and Bonner had — --, 782, denied U.S. 117 S.Ct. voluntary sexual intercourse on two occa- (1997). why One of the reasons plea guilty degree rape sions. His of to third Congress sentencing guidelines enacted girl. to his acts All related with this federal courts was to disparity reduce the rape charges and sexual contact were dis- judges between what different ap consider plea as bargain. missed the No propriate punishment. legislative That was a details about the incidents with the other decision. South pervasive Dakota has no girls can be found the record. The sentencing guidelines; any sentence within supporting rape charge against facts the the minimum and maximum by limits set H.B., thirteen-year-old, were that he Legislature ordinarily will be left undis gave “hickeys,” kissed and her but she de- instances, many turbed. In this allows a any type activity nied of “sexual” with him. judge range options a punish to tailor a During legal proceedings, Bon- ment to fit the crime and criminal. ner, request attorney, at the his under- Yet, psychiatric [¶

went a examination.2 if the Although “Equal 12.] words Justice diagnosed he was Under just lofty and mild Law” call for more than a FAS/FAE retardation, psychiatrist inscription, vigilance ought conclud- then our to be competent ed Bonner was extremely stand trial. aroused when divergent sentences for the same offense. Gross AND ANALYSIS DECISION disparity public erodes confi- justice. dence our Upon plea institutions of guilty Bonner’s See Peo- Coles, ple 523, third rape degree burgla and second 417 Mich. 339 N.W.2d 440 (1983).3 ry course, he was equal sentenced to two consecutive fif Of treatment in sen- teen penitentiary tencing terms. Each sentence does not mean uniformity, senseless constitutes the maximum for each but when a sentence is proportion so out of 22-32-3, 22-22-1(5), 22-6-1, offense. SDCL to the offense and so different from what extremely 22-6-6.1. We take an conduct, deferential others received for the same then Appellate 2. attorney counsel was not defendant's sentencing guidelines, tion: The new federal in circuit court. (1990)("The Criminology J.Crim.L. & 883-884 purpose Sentencing of the [federal Act] Reform recognize 3. We that a sentence also be ex- tripartite problems was to disparity, attack the lenient, cessively Legislature but neither the nor offenses, dishonesty, and for some excessive le- our federal and state constitutions authorize us niency, seemingly by system all made worse to review and overturn such decisions. But see discretion.”) judicial near unfettered Forward, Nagel, structuring sentencing discre- urge particular exceedingly it decency [will be] conscience us to examine sentences rare.” Id. 463 closely. 103 S.Ct. at more (reviewing 77 L.Ed.2d at 649 courts occasions, many our Court 13.] On [¶ give legisla- should substantial deference conscience” partly employed a “shock the has determining types tures in and limits of if a sentence violates the query to determine punishments for crimes and the discretion prohibition against cruel Eighth Amendment possess sentencing). trial courts punishment. origi The test was unusual adopted application only with our nally Michigan, [¶ 15.] Harmelin v. constitution, Eighth own state 115 L.Ed.2d 836 Becker, Amendment. State v. 3 S.D. (1991), Supreme substantially Court mod (1892). However, we N.W. ified Solem’s Amendment three-fac roughly this test to be consistent declared proportionality analysis. tor Regrettably, disproportionality analysis gross with the multiple opinions, the Harmelin Court issued Supreme used the United States Court. fully supported by none of which were (S.D. Gehrke, majority justices. Kennedy, of the Justice Brown, See also State Idaho Souter, joined by Justices O’Connor and con (1992)(shoek 825 P.2d the con application, stricted Solem’s but declined to “essentially equivalent” science test Kennedy, overturn it. To Justice Solem was test). “grossly disproportionate” Today, we holding comparative “best understood as inapplicable test to the federal declare this analysis jurisdictions within and between is constitution.4 always proportionality relevant re 1004-1005, Eighth Amendment reflects our view.” Id. 501 U.S. at 111 S.Ct. 2707, dignity every Eighth nation’s belief in the human at 115 L.Ed.2d at 871. The Amendment, judi being legislative according Kennedy, and the view that and to Justice conduct, punish “encompasses power though proportionality cial criminal still a narrow deference, given high principle” noncapital is not absolute. Coker even in cases. Harme 597, lin, 584, 2861, 997, 2702, Georgia, v. 433 97 501 at 111 at U.S. S.Ct. U.S. S.Ct. 115 2868, (1977)(plurality opin Eighth 982 at 53 L.Ed.2d L.Ed.2d 866. “The Amendment ion); 153, 173, Gregg Georgia, require proportionality v. 428 U.S. 96 does not strict be 2909, 2925, Rather, (1976)(plu S.Ct. 49 L.Ed.2d 859 tween crime and sentence. it forbids Dulles, 86, rality Trop opinion); ‘grossly v. 356 U.S. extreme sentences that are dis 100, 590, 597, proportionate’ 2 78 S.Ct. to the crime.” Id. 501 U.S. at 1001, 2705, 869, (1958)(plurality opinion); v. 111 at 115 at Weems United S.Ct. L.Ed.2d States, 349, 373, 544, 551, J., (Kennedy, part, concurring)(quoting, 217 U.S. 30 S.Ct. (1910). Helm, Solem, 288, 303, 54 793 463 463 at 103 at L.Ed. Solem U.S. S.Ct. 277, 290, 3001, 3009, 3008, 3016, 648, 103 S.Ct. 77 77 L.Ed.2d at Justice 637, (1983), Supreme Kennedy L.Ed.2d what to be “some Court stated he believed proportionality analy principles give set forth a three-factor common content to the Eighth proportionality sis under the Amendment. It also uses and limits of review.” cases, 2703, capital decided that outside of “suc Id. 501 U.S. at challenges proportionality principles cessful to the of L.Ed.2d at 867. These are: burglary ment, Eighth 4. We have not had occasion in modern times to to be in violation of the Amend pro- question consider South Dakota’s own we need not examine the under constitutional VI, bring § S.D. "Ex- hibition set out in Const.Art. 23: South Dakota's Constitution. To ourselves required, sentencing jurisprudence cessive bail shall not be excessive fines line with modem we imposed, punishments nor cruel inflicted.” now isolate for future consideration under our Nonetheless, we at for decline this time to invoke state constitution the "shock the conscience” Rights Eighth pro South since the mulation and adhere to the most recent Dakota's Bill Supreme analysis Amendment under the United States nouncements of the United States Constitution, here, apply applicable Eighth we are Court Amendment. See which bound to Milbourn, confounding enough hardly People 461 N.W.2d and we wish to 435 Mich. sentencing by adopting (1990)(abandoning further burden law dual the shock the conscience overly importantly, Michigan's standards. Most be- test under constitution as sub constitutional jective). cause we find the sentence here for (1) If, grant proportionality, our reviewing courts must substan- review ends. on the hand, legislature’s broad appears grossly tial deference to the sentence dis- types limits authority proportionate, may, to determine we addition to examin- (2) factors, punishment; Amendment ing the other an Solem conduct intra- any adoption pe- one inter-jurisdictional does not mandate analysis to aid our (3) divergences nological theory; marked comparison or remand to the circuit court to inevitable, “are the often beneficial result comparison such before conduct resentenc- (4) structure”; propor- of the federal ing. mayWe also consider other relevant tionality by review federal courts should be factors, upon society such as the effect of this Id., by objective factors. informed type of offense. See 2703-04, 111 S.Ct. L.Ed.2d at 868. L.Ed.2d at 867-68. Grossly Disproportionate Sentences to the Gehrke, very at 423 fn. 2. At the 491 N.W.2d Offense proportionality analysis un least a restricted Burglary [¶ A. Sentence. Bonner 18.] der survives because seven of the Solem received a fifteen sentence and his two justices supported in Harmelin it to some suspended codefendants received sentences degree. Leapley, See Bult v. 507 N.W.2d probation. Rarely disparity with will be so (S.D.1993)(Henderson, specially J. immediate, accomplices when sentenced for concurring). diametrically the same offense oppo receive Supreme speaks Until the Court punishments. site At the hear unanimity, greater we will follow these ing, the trial court was informed of Bonner’s principles” “common to determine if Bon history, disability, and the circum grossly disproportion ner’s sentences were crime, surrounding stances virtue of ate. Other courts have likewise followed the presentence report, psychological See, Johnson, Kennedy analysis. e.g., v.U.S. psychiatric reports, statements from the vic (8thCir.1991), (cert. 944 F.2d 407-09 de (who burglary thought tims of the the fullest nied, 502 U.S. should be for all defen Manuel, (1991)); dants), testimony from Bonner’s clinical (8thCir.1991). 414, 417 F.2d We think it regarding social worker Bonner’s mental dis Kennedy noteworthy that Justice declined to prospects orders and for rehabilitation. conflicting debate the historical theories on appropriate An precisely [¶ what 19.] constitutes “cruel and unusual sentence re all, quires that: punishment.” After the Amend “evolving” ment embodies an set of stan sentencing “acquire court should dards, denoting progress maturing “the of a thorough acquaintance with the charac- society.” Trop, at history ter and of the man before it.” (1958)(footnote 597-98, 2 at 642 L.Ed.2d study This should examine a defendant’s omitted). As Justice Henderson in remarked “general character, mentality, moral decision, response day to the Harmelin “the environment, tendencies, habits social approving simply because it is age, sentence — aversion or inclination to commit statutory gone within limits —is sod crime, life, family, occupation, previ- —like Pack, prairie.” huts on the ous criminal record.” (S.D.1994)(Henderson, dis Winter, Chase in 534 N.W.2d at 354-55 senting). Pack, (cita- (quoting 516 N.W.2d at 667-68 omitted)). sentencing tions The court summary, to [¶ 17.] assess a pros- should also consider rehabilitation challenge proportionality to we first deter II, pects. Bult 507 N.W.2d at 328. appears grossly mine whether the sentence ¶ disproportionate. this, accomplish Lemley, To we State v. 1996 SD 91 552 N.W.2d involved, any consider the conduct sentencing, rele 412. At trial court dis- conduct, past vant with utmost deference to capacity, cussed Bonner’s limited intellectual Legislature sentencing prior juvenile and the court. If record which it viewed as “not suggest these gross good,” any circumstances fail to dis- the crimes which if showed “little Gehrke, people people’s respect sentencing.” for other and other See N.W.2d at 425 prior Harmelin, property,” as well as unsuccessful at- (citing 501 U.S. at tempts problems. to address Bonner’s The 115 L.Ed.2d at On the other danger,” him an court described as “absolute hand, explained point “at in some time we have It is clear that mental long retardation has going we are to

to decide what do with regarded been may as a factor that dimin- people propensity have a to who violate the ish culpability an individual’s for a criminal law, they capacity have a whether limited (citations omitted). act. In its most severe perform think or or not.” The court then forms, mental retardation result concluded, separated “he should be from so- complete exculpation from respon- criminal ciety period.” sibility. specific In the absence details to comparison, ordinarily use we defer to Lynaugh, 109 S.Ct. at judge’s trial broad discretion deter- 106 L.Ed.2d at 290. Bonner’s counsel and a mining the extent of to be im- clinical argued social worker posed applicable statutory within limits. penal system that the did not lend itself to State, (S.D.1980). Clark N.W.2d 916 disability. They Bonner’s mental urged the state, Appellant does not nor does the give suspended court to imposition Bonner a indicate, appellant record and La- place probation sentence and him on records, past demeanor, degree Croix’s give ten to fifteen him a chance to involvement, etc., sufficiently criminal (an enter Workshop the Black Hills institu- disparity similar as to cause the sentence disabled) serving tion developmentally unjust. any between them to be Absent where, years, in five to ten “probably he will similarities, showing of such we must defer fairly independently.” function judge’s trial discretion. Court, Id., Supreme speaking 294 N.W.2d at 921. The same is not true through Although ap- in this case. little information Justice Sealia who delivered the de pears in the record about Bonner’s cision in respect eodefend- Harmelin with ofV ants besides their names and the sentences opinion, held that individualized sentenc received, each the record does reveal each ing mitigating factors —is —consideration defendant’s involvement the bur- required capital cases. glary, essentially which was the same. The U.S. at only possible difference between these three Accordingly, L.Ed.2d at 865. we measure backgrounds their must be and the fact that proportionality by examining not mitigating pled guilty felony. Bonner to an additional details, aggravating by “objective but past Bonner’s entire record consisted of mi- extent,” possible factors to the maximum juvenile nor infractions and three nonviolent comparing the sentence with the criminal misdemeanor convictions as an adult. Even acts defendant committed and the conse if we assume the codefendants had clean quences upon of those acts the victims and records, backgrounds will the difference in Harmelin, society. remotely justify antipodal disparity even (quoting 115 L.Ed.2d at 868 here? Estelle, 263, 274-75, Rummel v. 445 U.S. attorney argues [¶ 21.] Bonner’s that 1133, 1139, (1980)). S.Ct. 63 L.Ed.2d 382 the sentence is offensive because of his limit We conclude the fifteen [¶ 23.] consec- capacity ed intellectual and his for reha need utive sentence Bonner received for second People bilitation. with mental retardation degree burglary grossly propor- was out of can punished be held accountable and severity tion to the of the crime. from Aside they Penry Ly criminal acts commit. the fact that his two eodefendants received naugh, 492 U.S. 109 S.Ct. (1989)(death opposite spec- sentences at the end of the penalty). For such trum, criminals, persons, following aids our decision: as with all convicted Bonner “[i]n- capaeitation goals prior felony and deterrence of are valid had no record of convictions or Harmelin, most severe sanctions for the most serious See offenses.5

other serious at 115 L.Ed.2d of the offense and the back combinations (considering constituting People de- ground felonies of the offender.” v. Milbo at 869 Solem). 1, 17 (1990). urn, His fendant’s recidivism 435 Mich. mention, Furthermore, for acts of delin- noteworthy convictions were similar it is petty theft and one quency amounting to wrongdoing serious in South arguably more Obviously this rec- petty theft as an adult. penalties equal to or less Dakota carries necessarily mitigate excuse or ord will for his severe than what Bonner received sentence, certainly it bears on the his but burglary. to the For ex misconduct related disproportionality. question gross theft, ample, grand stealing property valued $500, in excess of has a maximum particular circumstances of the The [¶ 24.] years. 22-30A-17. ten SDCL Second de offense, especially of violence the absence gree manslaughter years. likewise carries ten menace, that the sentence also indicate SDCL 22-16-20. disproportionate. grossly was 1002-1003, 111 no Since we have received [¶26.] (Solem’s nonviolent 115 L.Ed.2d at 869-870 comparative information to the with conduct pervasive violence associ- crime contrast analysis, in and without we remand to the degree bur- drugs). with illicit Second ated sup circuit court so that information can be a crime in South glary is labeled as violent plied sentencing judge can take it and the any suggest no individual but facts resentencing. into account on counsel We 22-1-2(9). in this case. We violence SDCL the circuit court that while the commission of cannot overlook the fact that this case consti- multiple crimes will influence the burglary. menacing a form of tutes less decision, punishment separate for a offense purported Bonner was a invitee to home imposed involving should be in the case that property. where he stole a few items offense. Commission of other crimes reflect accomplices Along with his two he returned proclivities ing a defendant’s will affect the day music CDs. That the next to take more consideration, in the case but sentence under degree burgla- gave event rise to the second justify imposing these circumstances cannot perpe- ry against each of the three conviction grossly disproportionate sentence for the property Bonner took from the trators. being crime for which the defendant is sen generated degree petty home also second State, tenced. See Thomas 333 Md. prosecutor charges, implying theft that the (1993)(“punishment separate 634 A.2d 9 less than believed the items were worth $100. conduct should be in the case involv Obviously, Legislature in ing although that conduct” other conduct establishing punishment range of zero to “the ultimate affect determination burglary, in fifteen for second what is a fair sentence for the case under of this tended the more serious commissions consideration.”) at the harsher crime to deserve sentences spectrum. precept Degree Rape. is a B. Third “[I]t end statutory rape justice respect for the crime should With to Bonner’s sen determine, graduated proportioned to the of tence we must first as we did with be States, sentence, burglary 217 this is “the fense.” Weems v. United whether 367, 549, comparison 54 at 798. Thus a rare case in which a threshold 30 S.Ct. at L.Ed. proportion im ought trial court’s sentence to be the crime committed and the sentence particulars posed gross dispro- and the to an inference of ate to the of the offense leads possible portionality.” Imposing offender. the maximum term where the circumstances of the crime 111 S.Ct. at 115 L.Ed.2d at 871. Se only justify range verity equivalent lower in itself is not to cruel a sentence at a legislative legitimate reserve the unusual. There be and com- violates intent “to burglary petty charges exception burglary charge 5. Other were of a and theft for theft dropped part plea bargain. stealing porch. as of the All these a "boombox” from someone’s home, charges related to the Brodkorb with the

583 GILBERTSON, J., Legislature pelling why concurring spe- [t 31.] reasons our decided up years in to fifteen to allow sentences cially. why sentencing

prison for this offense and GILBERTSON, (concurring spe- Justice maximum sentence might court believe the cially). fourteen-year- The fact that a appropriate. gives to intercourse is of old “consent” sexual fully join opinion I [¶32.] of the very premise The no relevant consideration. specially only Court. I write emphasize underlying statutory rape is that children past that in overturning our of a criminal incapable “consenting” voluntary sexual sentence on the basis of cruel and unusual Regardless perpetrator’s of the relations. “exceedingly has been rare” and capacity, underage or the victim’s adopted today under the standard it will voluntary participation, consequences for “exceedingly continue to be rare.” Solem v. statutory rape can be enormous: Childhood Helm, 277, 289-90, 463 U.S. abortions, diseases, pregnancies, venereal un- (1983). 77 L.Ed.2d 649 births, neglect, abuse and all flow wanted premature irresponsible from sex. routinely petitioned This is [¶33.] Court Moreover, child victims of sex offenses often serving for relief from those 18 months for develop long problems. life emotional multiple years no account checks or two children, against especially Crimes [IT28.] burglary. types These of sentences never offenses, sex have increased nationwide and, have been cruel and unusual under to epidemic proportions. Recognizing perni- its day’s opinion, have no more basis for relief years impact, Legislature cious our recent past. Sharp, than in the v. State 577 N.W.2d prohibiting statutory has revised the law (S.D. 1998); Pourier, State v. 575 rape accelerating to reflect its concern with (S.D. 1997); Arguello, N.W.2d 265 v. State protecting children. 1980 the law was (S.D. 1997); 575 N.W.2d 265 State v. San amended to increase the from ten to chez, (S.D.1997); N.W.2d State v. again fifteen and in 1984 amended McDonald, (S.D.1997); 570 N.W.2d 43 State age of raise the consent from fifteen to six- Zoll, (S.D.1997); 570 N.W.2d 246 v. State 22-22-1(5), teen. See SDCL 1980 S.L. ch. Rosales, (S.D.1997); 570 N.W.2d 246 State v. 175; 1984 S.L. ch. 167. The trial court re- Miles, (S.D. 1997); 570 N.W.2d 383 State v. light required this case in of the viewed (S.D. Nelson, 1997); factors, 570 N.W.2d 383 including rehabilitation. (S.D. 1996).* ¶ Whiteaker, Lemley, 557 N.W.2d 774 1996 SD 91 at N.W.2d “ addition, They ‘grossly disproportionate’ 412. In Bonner was able to avoid are not alleged trial for chil- instead, sex offenses highly appropri the crime” but are dren. The record fails to reveal the nature Michigan, ate. See Harmelin v. 501 U.S. offenses, of those but we conclude his attor- 957, 1001, 2680, 2705, L.Ed.2d ney knew of them and took them into consid- (1991) J., (Kennedy, concurring) plea entering agreement. eration when Solem, (quoting (1994); Ferguson, See State 77 L.Ed.2d at Winter, State v. Chase in 534 N.W.2d 350 (S.D.1995). Although the fifteen sen- degree rape

tence for third was severe it was grossly disproportionate to the offense.

Therefore, proportionality analysis no further necessary. burglary ease is reversed

[IT29.] resentencing.

remanded for The sentence statutory rape is affirmed. MILLER, C.J., SABERS,

AMUNDSON, JJ., concur.

* summarily These cases were affirmed this Court when this issue was raised.

Case Details

Case Name: State v. Bonner

Court Name: South Dakota Supreme Court

Date Published: Apr 1, 1998

Citation: 577 N.W.2d 575

Docket Number: None

Court Abbreviation: S.D.