State v. Ferguson
519 N.W.2d 50
S.D.
1994
Check Treatment

*1 evidence, vacuuming. There nowas howev- er, replacement to what the as cost Dakota, STATE of South Plaintiff consortium,

be. As to the loss of there was Appellee, and parties evidence that were not as inti- mate as for usual the first three four following

weeks the accident. There was Toby FERGUSON, Wade Defendant disagreement some Mr. and Mrs. between Appellant. whether, trial, they Bakker of time of as they always were as intimate had as been. No. 18244. damages sought by Of the total Ronald $41,000.00 $57,667.34, Bakker some consti- Supreme Court of South Dakota. damages. tuted non-economic Of the total $134,469.22, sought by Mai’lys Bakker of Considered on Briefs Oct. 1993. $115,000.00 some constituted non-economic Decided June 1994. damages. Accepting the fact that both Bakker’s are (Mrs.

permanently partially disabled greater far

Bakker extent that Mr. Bakker); accepting the fact that both likely experience physical

Bakkers will most

pain as the result of their for disabilities (again

rest of their lives Mrs. Bakker to a far Bakker); having extent than Mr. nature, intensity,

considered the and extent physical pain the Bakkers’ and disabilities evidence; by their accepting shown quality

the fact that of their lives is by physical pain they affected suffer

by disabilities; opinion their we damages

that the non-economic as well as the damages by jury awarded are not

facially manifestly inadequate. While

jury’s damages may awards these have

been by per- affected somewhat the Irvine’s background evidence,

sonal there are no ob-

jective supposition factors which this can Instead, sup-

be measured. the evidence

ports the jury. actions of the judge

We hold that the trial abused her granted

discretion when she the Bakkers a 6—59(a)(1),(5),

new trial under SDCL 15— (6). Accordingly grant- we reverse the order

ing a new trial and judgment reinstate the

previously entered.

MILLER, C.J., HENDERSON, AMUNDSON, JJ.,

SABERS and concur.

JOHNS, Judge, WUEST, J., Circuit

disqualified. *2 popular peers.

lar his activities and with He has no criminal record. began attending Ferguson

In 1989 Black University. Hills He was a business major who, by spring administration 1992, completed 79 credit with 2.42 hours a BHSU, GPA. a While at he also worked as manager Wendy’s shift and at a roller skating rink. involved in He was also club he karate where was voted the most inspirational student.

Through Ferguson’s involvement an in- participant structor the karate and a club (which Kinship Program pairs in the adult big children in volunteers with brother/sis- acquainted program) ter he became with boys community. young Ferguson in the boys developed relationships eight rang- with Gen., Barnett, Atty. Mark Sherri Sundem thirteen, ing age eight from and second Gen., Pierre, Wald, Atty. plaintiff Asst. through grades. Ferguson seventh befriend- appellee. boys played roller video ed skated Norman, City, Rapid Van de- Robert games gained with them. appellant. fendant initially parent(s) trust who believed good was role that he model allowed AMUNDSON, Justice. spend children to with him. their Ulti- plea agreement, Toby Pursuant to a Wade mately boys went to home pled Ferguson (Ferguson) guilty to count by Ferguson’s and were victimized acts of 22-22-1(1) rape, and seven counts SDCL intercourse, sex, fondling. anal oral (SDCL minor, 22- of sexual contact with relationships result of that he 22-7). (27) Twenty-seven rape counts developed boys, with these (31) thirty-one counts of contact with a sexual ultimately charged twenty-six counts of minor were dismissed. was sen- 22-22-1(1), rape in violation of SDCL two years penitentiary to 180 on the tenced rape 22-22- counts of violation of SDCL conviction; conditionally rape were 1(5), thirty-eight counts of sexual contact suspended. He was sentenced fifteen with a minor. years on each of the sexual contact convic- The sentences were ordered to be tions. agreement Ferguson Pursuant to a plea concurrently. served rape pled guilty count of and seven to one appeal, Ferguson contends On contact a minor. The counts sexual Eighth Amend- is excessive and violates the fifty-eight agreed to dismiss the other state to the ment United States Constitution rape pending and sexual contact. counts VI, § of the South Dakota Consti- Article agreed Ferguson would not re- It was tution. We affirm. parole a sentence of life without on ceive would run

rape count and that sentences FACTS concurrently. The recommendation state’s rape charge did of a 200 January on 1971. was born agreement nor not form basis child, Fergu- sexually abused. As a cap. was made was it a sentence No never treatment for this abuse. son received cap a sentence term years, Ferguson as to Throughout was a his school parole imprisonment life eli- than no without good student who was active extracurricu- gibility.* Ferguson explained readily that he ac certainly be determined and it can- cepted agreement to avoid the undone. risk he if went saw he to trial the enor presented When the State first their charges facing

mous number of him. something recommendation which was like *3 presentenee pre-

An report year extensive a 200 sentence with 110 sus- pared detailing Ferguson’s dysfunctional conditions, pended under various a lot of life, family his success a work- student and which conditions I have lot don’t a of con- er, and lack a over, of criminal career. The I thought trol it didn’t like sound psychologist that interviewed him concluded plea bargain much a and it still isn’t. ongoing retraining psy- that he needed bargain anybody. There is no I here chotherapy/counseling. Since there were few anybody get don’t think can a in a in people alternatives South Dakota for with mess like this. “problem complexity [Fergu- a There is benefit. There to is a benefit placement urged. son]” out-of-state Be- public in that these kids did not have cause was not in total denial as to through go anguish, grief to done, what had that M.S.W. evaluated coming jury trauma of in in here front a Ferguson’s “prognosis him found appro- with they grand after testified front of the priate good” treatment is and recommended jury, having go maybe to to school and out-of-state treatment. The STOP director having pointing other children at them and however, penitentiary, Fergu- at the noted giggling things to each other and other high son’s risk reoffending due to the they probably already that gone had victims, Ferguson’s young number of age, his through. you. There was a benefit to victims, threats of violence toward his Certainly you. to benefit the fact that all of the victims were grand jury As I transcript, read that pubescent males. The court services officer from what say these kids had to there nois pedophile noted that a like who my you gone doubt mind that if had prefers prepubescent boys has a recidivism trial, despite your the best efforts of most rate doubled that of pedophiles. Norman, capable lawyer, Mr. I Van think presentence report The also included vic- you would have been convicted. I am sure impact tim interviews and interviews you would have been rape convicted of the parents detailing the victims’ im- lasting charge, charges. the sexual contact I pact sexual had acts on the think if I had to listen to I if what read and victims and their families. it would have I sounded like think it would sentencing Ferguson When the trial court courtroom, have sounded in I this would explained reasoning its which we set forth compelled impose have felt a life sen- full: plea agreement tence. Your precludes a THE Ferguson, upon COURT: Mr. your based life guess I case. And everything I have read in I this have the reason I explain feel need to say grossest this is the case of sexual newspaper because to a reader of against viewer, abuse children that I they have seen. news read about how this damage The done to these kids cannot prior old man with no criminal record * through painstakingly The trial court assumption went de- mendation. The second is and the explanation plea agreement tailed second limitation Court is that all of the to ensure that understood opposed sentences will be concurrent as fully plea agreement. and was aware of the The only are consecutive. Those two limita- explanation trial court’s concluded with: plea agreement tions that I see in this on the then, up Fergu- THE COURT: To sum it Mr. Court other than what máximums set son, I think there are two limitations on the law. agreement. Court under this Number you Do understand that? imposed rape is that charge the sentence MR. FERGUSON: Yes. only cannot abe life sentence. It can Any questions THE COURT: me ask about years. be a sentence for a term But the 200 your plea agreement? any type agreement. is not of an It's MR. FERGUSON: No. maximum, it’s not minimum. It’s a recom- give you I will credit for all the time that sentence in hefty criminal obtained you jail. spent to ask have have them- this case body who read the people tence would selves, these kids. only response maybe somebody that lived with one of that could “How could this be?” I could make maybe fully testimony of these kids understand this sen- yourself is that the I guess any- only the sheriff to THE case is a total waste of some You will be remanded n sense COURT: n your begin I hope n life because this entire your some [*] .a sentence. lot of day [*] custody there is people n in recess. Court bewill seen, upon everything that have

Based obviously I can A nothing else do for WHETHER IMPOSITION OF there is *4 system the YEAR kids other than to make PENITENTIARY SENTENCE these anything see I can do other 90 work. I don’t WITH YEARS SUSPENDED IS UN- anymore kids in than see that there aren’t CONSTITUTIONAL? your future in ease.

the near appeal, “On we first determine whether ‘shocks the or is sentence conscience’ upon everything that’s been Based disproportionate so to the that it crime sented, 14, 20, 21, respect to Counts tence years. you terms ing children. That pornographic materials. you prior to ment. patient sexual rape, felony, count to run concurrent. state 22, conditions. of With That I’m the Court that 25, not obey it will be the in the amount of 15 penitentiary for a going 54 and you I’m participate respect parole or all state and federal under the conditions receive going 55, offender suspend to Count each you while judgment both you impose following be any activities of which is Class 3 any parole agree- inpatient imprisoned in counseling 90 on That, years as to 4, period parole. possess any first laws prison terms and of sentence and out- of that of 180 course, degree involv- either That each sen- all viewable that Holloway, review of a sentence v. tests.” it is well 879 natively, 356 N.W.2d sentence "within activates and without at sentence which is so excessive N.W.2d a sentence is determined the sentence disproportionate to the crime. State 1992); 1986); Andrews, 879; (S.D.1985) (citing it (S.D.1992); Weiker shocks Weiker State [823] 413, State we on 482 appeal.” Lykken, will 418 393 N.W.2d at 827 v. v. jurisdiction’ proportionality Eighth the conscience of the manifestly disproportionate II, N.W.2d II statutory Janssen, Lykken, (S.D.1991). only in South Dakota that a 366 N.W.2d State [State (S.D.1985). cases). where we have first engage Amendment 306, v. 484 N.W.2d 371 N.W.2d v. limits is 76, 310-311 Weiker], Basket, Accord State Stated in 82-83 484 N.W.2d at 827. in manifestly “Absent extensive duration not re ‘within court, alter (S.D. 869, 353, 468 366 “If v. crime, light gravity to the present [in I don’t think at the ... penalty] offense and harshness type has the of South Dakota in [Solem factors listed you going require then other two that are program 277, 3001, 103 77 Helm S.Ct. your age, v.] I U.S. [463 what have seen. Given from (1983) imposed on ] [sentence L.Ed.2d 637 my mind that eventu- there is no doubt jurisdiction in other hope same you I others ally will released. but jurisdictions] more and re become focused guarantee you that receive cannot II, 366 you quire review.”' Weiker you require extensive before treatment Helm, at 463 U.S. See parole supervision N.W.2d at 827. on released at 650. 103 3011 77 L.Ed.2d supervision. S.Ct. without Castaneira, 112, 114-115 v. 4 will run con- State The sentence Count Gehrke, (S.D.1993) 491 v. imposed quoting, State current with sentences 421, 423 N.W.2d counts. The test determine whether a sentence withdraw either before or after sen- so constitutionally as to tencing. offensive shock the SDCL 23A-27-11. re- conscience is which, two-fold. State v. Shilvoch- computa- ceived a own Havird, 472 N.W.2d 773 tion, parole eligibility twenty- allows for

First, years. punishment forty-two years is the He will be so excessive so old at such, cruel disapproval “as meet the and con- that time. As term allows rehabilitation, Leapley, demnation the conscience and reason of see Bult second, generally.” (S.D.1993), men And whether the and allows punishment hope. Lohnes, is so excessive or so cruel See State v.

shock (S.D.1984), Henderson, the collective J., conscience of this dissenting. court. addition, Ferguson placed we note that Id., 472 N.W.2d at 779. position himself in trust relation to the sentence, When determining fitting parents. victims and their He betrayed that “ sentencing ‘acquire court should a thor repeatedly sexually eight trust and abused ough acquaintance with the character and very young boys, two of whom he continues ” history of the man it.’ before deny abusing. such, As his sentence is not Carsten, (S.D.1978) constitutionally so offensive to shock the Hendrix, *5 (quoting United States v. 505 Basker, conscience. State v. 468 N.W.2d 413 (2d 1233, Cir.1974)); F.2d 1235-36 State v. (S.D.1991); Pack, v. State 516 N.W.2d 665 Murphy, 506 N.W.2d 130 This study “gen should examine defendant’s Finally, Ferguson argues that also his character, habits, mentality, eral moral so disproportionate. sentence is The settled environment, tendencies, cial age, aversion record reflects that and his counsel crime,

or life,.family, inclination to commit were well aware that the state would be occupation, previous criminal record.” recommending (S.D. a 200 759, They sentence. Degen, State v. 396 N.W.2d 760 1986); were also aware that the trial Murphy, court had an (lying 506 at 133 right accept reject absolute to or this recom proper the trial court is a factor to be Notwithstanding gratuitous mendation. sentencing considered the court in de disclosure, Ferguson presented termining defendant’s attitudes no evidence toward so ciety rehabilitation); or facts prospects trial court at the Lohnes, (S.D.1988) sentencing hearing subsequently regard State v. or 432 N.W.2d 77 (stating ing alleged disproportionality. light defendant’s lack of remorse was In of the state, properly precedent at sentencing). considered in this this Court has consistently guessing refrained from second Pack, (S.D. 665, v. State 516 N.W.2d 667-68 sentencing the trial court’s decision: 1994). The settled record sentencing tran- Ferguson argues that the conscience script contain no record of'information should be young, shocked because he is was regarding proportionality data having been molested himself and never treat received presented to trial court for its consid- ment, offender, is a good first-time is a stu eration imposing when sentence. That be- dent, record, has no arrest amendable case, ing accept this Court will not an to treatable. guess invitation to second the trial court Ferguson ignores important several as- its sentence. pects Ferguson pled of this however. (S.D. 306, Holloway, State v. 482 N.W.2d guilty pursuant plea agreement to a in order 1992). to avoid a parole. sentence of life without At plea hearing, Ferguson his specifically disproportionality, stated To assert all coun- trial must, on the record that under plea agreement old-timers, sel words of the bargain” he hog, received “the benefit words, “root die!” coun- work, which was to facing dig, sweat, read, avoid the risk sel study, must if sixty-six him he went produce statistics, criteria, to trial on the cases, history of charges studies, records, faced. See, Janssen, did not move court etc. advantage Take appears sel obvious: A foundation must be at 357. 371 N.W.2d level, later, level, appellate established, plea trial court at the being try set aside the sentence as uncon- advocacy to come. appellate punishment. The material stitutional Sheridan, v. by way in the brief of statistics within sented Henderson, concurring). 1986), (specially J. Analysis Dakota Statistical Center South Affirmed. apparently backup appel- was held as advocacy. Ferguson cannot have it both late MILLER, C.J., and WUEST advantage plea bar- ways: First take SAJBERS, JJ., concur. by erupt- gain repudiate it and then seek HENDERSON, J., specially. concurs level, ing, appellate time at for the first statutory sentencing references a host of HENDERSON, (specially concur- Justice and statistics. ring). counsel for was Appellate Pack, Compare my dissent 23A-27-11, Under SDCL trial counsel. (S.D.1994), appellant where Pack permitted make a motion to counsel hearing produce requested sentencing guilty plea before withdraw (UJS) System sentencing Judicial Unified Alternatively, counsel could imposed. statistics, as the but could not do so UJS withdraw a have filed a motion to receiving not furnish -without same injustice ... “... manifest guilty to correct also, indigent. Compare, Pack was $448.00. ...” no such after Counsel made in Butt special concurrence of this writer plea bargain was Apparently, motion. (S.D.1993), Leapley, Ferguson and to his counsel. acceptable to expressed: where guilty Had moved to withdraw *6 exhibits, Replete is the record below with grant it. plea, trial court did not have to statistics, setting history, data case of the trial It is all within the discretion twenty who were sen- forth defendants Grosh, court. State v. Penitentiary in South tenced to the State 1986). (Emphasis add- kidnapping. Dakota for Having accepted the sentence and the dis- ed.) many abuse of counts of sexual missal Castaneira, prepubescent boys, Ferguson now comes to See also State upon Eighth (S.D.1993) (Henderson, J., Supreme concurring an Amend- Court argument, namely that he has received ment is not specially). In this the record punishment. appel- exhibits, data, In the history, unconstitutional “replete” case brief, showing counsel now sets Nay, lant’s and data. no statistics time, forth, involving sex the first studies proportionality And a made whatsoever. Dakota which were offenders within South State v. analysis presented never below. gathered Christians, from the Dakota Statistical South

Analysis Center within the Division Crimi- Investigation

nal of the Office of South Further, Attorney

Dakota General. level, time, again appellate

first adjoining states with

presents statutes Too penalties for similar offenses.

lesser part of the information is not

late. Said Herman, record. No motion was any present court to

ever made to the trial eases,

statistics, studies, data, history of trigger records or studies which would

court disproportionality the conscience or

a shock his coun- The tactic of

review.