STATE of South Dakota, Plaintiff and Respondent, v. Jerry Buckley HELM, Defendant and Appellant.
No. 12789.
Supreme Court of South Dakota.
Argued Nov. 7, 1979. Decided Jan. 16, 1980.
287 N.W.2d 497
The fact is, that you were convicted in 1975 of raping an 8 and 10 year old girl, four counts of lewd and lucidious [sic] acts. Now that is a fact.
This statement was either a misunderstanding or a misreading of the record. The state concedes that defendant was acquitted of all charges relating to the eight-year-old girl (although the record itself is vague on this point). More significantly, however, the record does not permit the conclusion that there were any rape convictions. In State v. Carsten, supra, at 710, we quoted with approval from United States v. Herndon, 525 F.2d 208, 210 (2d Cir. 1975), which upheld a sentence when the errors were “fully called to the sentencing judge‘s attention by diligent trial counsel and there [was] no indication whatsoever that in imposing sentence the court relied on any of the inaccuracies referred to.” (emphasis supplied). In the present case, however, the words of the trial judge in passing sentence indicate that he misconstrued information concerning appellant‘s previous criminal record. We believe it was violative of defendant‘s right to due process to have his sentence based upon a misapprehension of the facts concerning his prior record. Crowe v. State, supra. In Crowe, we held invalid a sentence imposed where the trial court relied upon the erroneous assumption that petitioner had four prior rape convictions. We noted in that case “that the price of correcting the injustice resulting from such a situation is insubstantial.” 86 S.D. at 285-6, 194 N.W.2d at 246.
The judgment of conviction is affirmed; the case is remanded, however, for reconsideration of the defendant‘s sentence.
All the Justices concur.
HENDERSON, Justice (concurring in result).
Due to the position I have taken with respect to sentencing in State v. Coe, 286 N.W.2d 340 (S.D.1979), and State v. Helm, 287 N.W.2d 497 (S.D.1980), I cannot subscribe to an approval of State v. Williams, 84 S.D. 547, 173 N.W.2d 889 (1970), or that portion of State v. Robinson, 87 S.D. 375, 209 N.W.2d 374 (1973), cited in the majority opinion as authority for the proposition that a sentence within statutory limits is not reviewable on appeal. Otherwise, I concur in the entire language and result of this opinion.
Joseph Neiles, Pennington County Asst. Public Defender, Rapid City, for defendant and appellant.
DUNN, Justice.
Defendant pled guilty to the crime of uttering a no account check. He also admitted to convictions for six previous felonies and was adjudged an habitual offender. He was sentenced to life imprisonment in the state penitentiary. Defendant appeals from this life sentence, contending that it was an abuse of discretion, that it denied him due process of law, and that it constituted cruel and unusual punishment. We affirm.
Before pleading to the primary charge, the trial court gave defendant a thorough explanation of his rights. He was informed on three occasions that his guilty plea would trigger the habitual offender statute and that he could be sentenced to life imprisonment. The defendant and the attorney representing him indicated that defendant understood his rights and the possible consequences of a guilty plea. After this explanation, defendant waived his right to a preliminary hearing, insisted on pleading guilty, refused a presentence investigation and demanded immediate sentencing. The sentence of life imprisonment followed.
The constitutionality of South Dakota‘s habitual offender statute was upheld in State v. O‘Connor, 265 N.W.2d 709 (S.D. 1978). This statute permits sentencing of a person convicted of three prior felony offenses within the guidelines of a Class 1 felony.
South Dakota has adopted the rule that a sentence within the statutory limits is not reviewable on appeal, even if it is regarded as excessive. State v. Williams, 84 S.D. 547, 173 N.W.2d 889 (1970); State v. Austin, 84 S.D. 405, 172 N.W.2d 284 (1969). This court has stated, however, that a sentence may be constitutionally offensive if its duration is so excessive as to “shock the conscience.” State v. Bad Heart Bull, 257 N.W.2d 715 (S.D.1977).
While the instant sentence is severe, it does not shock the conscience of the court. This was defendant‘s seventh felony conviction, and his record indicates that he had spent most of his adult lifetime behind bars. His consistent failure to reform places defendant squarely in the category of an habitual offender, and criminologists almost universally agree that the only remaining alternative is to remove such an offender from society and thus protect innocent victims from further criminal activities.
The defendant was fully informed of the possibility of a life sentence; yet he refused to accede to a presentence investigation that might have revealed mitigating factors with regard to his sentence. His main contention now is that his previous felonies involved nonviolent crimes and were due to a severe drinking problem. Our legislature did not see fit to apply the habitual offender statute solely to violent crimes, nor were alcoholics excepted from its provisions. The legislature has provided this last resort sentence for habitual criminals who refuse to learn from their mistakes or to rehabilitate themselves. The record of this defendant fits all of these criteria, and the imposition of a life sentence, while severe, is not so unusual as to shock the conscience of the court. Such a sentence has not been found
The judgment of the trial court is affirmed.
FOSHEIM, J., concurs.
WOLLMAN, C. J., concurs specially.
MORGAN and HENDERSON, JJ., dissent.
WOLLMAN, Chief Justice (concurring specially).
As Justice Henderson points out in his dissent,
MORGAN, Justice (dissenting).
I join specially in the dissent of Henderson, Justice.
First, I would agree that some sentences could be constitutionally invalid. However, lest we open a new flood gate of appeals on sentencing, I would anticipate that review would not be necessary except upon imposition of life imprisonment or the death penalty.
With respect to this case, I too think the trial judge went too far. I agree with the trial judge‘s comments as far as they went. As I read the record, he had a 36-year-old man who had spent a good part of the previous 15 years in the state penitentiary. He apparently has an alcohol problem; at least he and his counsel injected that into the record.* However, almost all the previous offenses for which he had been convicted involved money or property as did the one for which he was being sentenced. True, the law protects property and property interests, but I consider life imprisonment to be a sentence that should be reserved for offenses against persons. Certainly, such a sentence should be supported by a much more extensive record demonstrating a more compelling reason than mere recidivism and further demonstrating that the sentencing judge had imposed the maximum sentence only after contemplative deliberation considering all possible alternatives. The record before us demonstrates a rather summary decision from the bench.
I would remand for resentencing.
HENDERSON, Justice (dissenting).
The defendant was sentenced to life imprisonment in the South Dakota State Penitentiary after pleading guilty to a charge of uttering a no account check of $100.00 and entering an admission of guilt to being a habitual offender.
At the time of sentencing, the court asked defendant if he had anything he wanted to say. He replied, “No,” whereupon the court pronounced sentence.
THE COURT: Well, I guess most anybody looking at this record would have to acknowledge you have a serious problem, if you‘ve been drinking all of this time and your prior imprisonments have not had any effect on your drinking problem, so far as motivating you for change. If you get out in the near future, you‘re going to be committing further crimes, so I can‘t see any purpose in my extending any leniency to you at all here and I intend to give you a life sentence.
It will be up to you and the parole board to work out when you finally get out, but I think you certainly earned this sentence and certainly proven that you‘re an habitual criminal and the record would indicate that you‘re beyond rehabilitation and that the only prudent thing to do is to lock you up for the rest of your natural life, so you won‘t have further victims of your crimes, just be coming back before Courts. You‘ll have plenty of time to think this one over.
The sentence of the trial court cannot be anticipatory of the compassion of the State Board of Pardons and Paroles, for when a defendant is sentenced to lifetime imprisonment, it is beyond its jurisdiction to grant parole. Nor should this court contemplate a possible commutation of sentence through a grant of executive clemency. It is incumbent upon this court to determine the propriety of such a sentence at this juncture; another branch of government should not be burdened with rectifying this injustice.
I agree with the majority opinion that the sentence is severe. It is so severe and extreme that I find it constitutionally offensive. While this court has been traditionally reluctant to disturb a sentence on appeal, we nonetheless have long recognized the vagaries that inhere in the sentencing process. We stated in State v. Bad Heart Bull, 257 N.W.2d 715, 720 (S.D.1977): “Although punishment by imprisonment is not per se cruel and unusual it may be constitutionally offensive when the duration of the sentence prescribed is so excessive or disproportionate to the crime as to shock ‘the conscience and reason of men generally,‘” citing State v. Becker, 3 S.D. 29, 40, 51 N.W. 1018, 1022 (1892). I do not choose to be shackled by the precedent of this court, namely, that a sentence within the statutory limits will not be disturbed on appeal. I find the language of the majority opinion especially alarming in light of the reenactment of the death penalty in this state. There are instances, though rare, where departure from this precedent is mandated. Thus, the discretion of the trial court is not boundless, nor is the function of this court merely perfunctory with regard to the review of a criminal sentence.
The United States Supreme Court has firmly embraced the concept that the Eighth Amendment bars not only punishments that are “barbaric” but also those that are “excessive” in relation to the crime committed. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1957). Although the United States Supreme Court has yet to hold a sentence cruel and unusual on the basis of length alone, its reasoning has suggested that a disproportionately long sentence would not be immune from Eighth Amendment challenge. “[I]t is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793, 798 (1910).
The proscriptions embodied in the Eighth Amendment have broad application; the
We must not lose sight of the basic concept of the Eighth Amendment, namely, that a penalty must accord with “the dignity of man.” Trop v. Dulles, supra. This has been interpreted to mean in one respect that the punishment not be “excessive.” Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Under Gregg, a punishment is “excessive” and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the pointless infliction of suffering; or (2) is grossly disproportionate to the severity of the crime.
In Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974), the Fourth Circuit set forth four factors, central to the Supreme Court‘s major decisions applying the cruel and unusual punishment clause, in determining whether the length of the sentence imposed under the West Virginia recidivist statute was cruel and unusual because it was grossly disproportionate to the crimes involved. The Fourth Circuit considered cumulatively: (1) the nature of the offense; (2) the legislative intent behind the punishment; (3) the punishment defendant would have received in other jurisdictions; and (4) the punishment meted out for other offenses within the same jurisdiction. The analysis in Hart was adopted by the Fifth Circuit in Rummel v. Estelle, 568 F.2d 1193 (5th Cir. 1978).
The factual situations in both Hart and Rummel bear a striking resemblance to the instant case. The Fifth Circuit concluded that Rummel‘s life sentence for the three crimes of obtaining money under false pretenses, intent to defraud, and passing a forged instrument was so grossly disproportionate to the offense as to constitute cruel and unusual punishment in violation of the Eighth Amendment. Likewise, in Hart, the court held that life imprisonment based on defendant‘s convictions of committing perjury, writing a check on insufficient funds and interstate transportation of forged checks was constitutionally excessive and wholly disproportionate to the nature of the offenses committed, and not necessary to achieve any legitimate legislative purpose.
A life sentence in South Dakota, at the time sentence was imposed herein, could be imposed on any person convicted of a Class A felony (murder) and upon any person convicted of a Class 1 felony (manslaughter in the first degree, kidnapping, arson in the first degree). Although I do not condone the issuance of worthless checks, I think it is significant that this case involves one of the most passive felonies a person could commit. The trial court equated the gravity of this offense with the most serious felonies in our state. This is why I believe it is vastly disproportionate to the crime committed and shocking to the “conscience and reason of men generally.”
Defendant was previously convicted of six felonies: three third-degree burglaries; obtaining money under false pretenses; grand larceny; and a felony DWI. Defendant is an alcoholic; in each prior conviction, alcohol had contributed to his problems with law and society. In describing the facts leading to his conviction in this case, defendant stated: “I was working in Sioux Falls, and got my check that day, was drinking and I ended up here in Rapid City with more money than I had when I started. I knew I‘d done something I didn‘t know exactly what. If I would have known this, I would have picked the check up. I was drinking and didn‘t remember, stopped several places.”
The sentence imposed is so excessive that it reaches constitutional dimension. I would reverse and remand the case for the limited purpose of resentencing this defendant proportionate to the offense. Defendant, if he rehabilitates himself, should at least be given an opportunity to obtain parole during his lifetime.
STATE of South Dakota, Plaintiff and Respondent, v. Roland Joseph HICKEY, Defendant and Appellant.
No. 12460.
Supreme Court of South Dakota.
Decided Jan. 16, 1980.