*1 thy attorney fees in the amount $1,712.68. proceedings reverse and remand for
consistent with decision.' HENDERSON and Judge acting and as a
Supreme Justice, concur. been member the Court at time these actions were did not Groff, Pennington
Dennis County State’s Rapid Atty., City, and V. Meierhenry, Mark Dakota, STATE of South Gen., Pierre, Atty. plaintiff and appel- Appellee, and lee. Loveland Doyle, Jane Office of Public SHERIDAN, Corey Defendant for Pennington County, Rapid Defender Appellant. and City, appellant. for defendant and FOSHEIM, Chief Justice. South Dakota. (Sheridan) plead Corey guilty degree burglary was sentenced Briefs Feb. forty-two as a first-time felon to months in penitentiary. the state He that sentence. We affirm.
On December Sheridan and a companion feloniously entered a building. They extensively vandal- equipment, including pop ized machine system' A stolen safe. stereo was later police recovered when officers followed footsteps their to a local house. Sheridan companion following and his were arrested fingerprint identification citizens’ re- ports had talked of both their participation the crime. only entering
Sheridan admitted building property guilty remove plea accepted factual was on that basis. presentence report received. The trial was court focused on Sheridan’s with the failure to “run-ins law” and be- Also, gainfully employed. high come *2 866 Christians, Id. also v. See State (ap- to the at amount
dollar
State
214,
(S.D.1986);
v.
217
$5,000.00)
Though
381 N.W.2d
was noted.
proximately
Mouttet,
(S.D.1985).
121,
N.W.2d
122
restitution,
372
to make
the
offered
Sheridan
option
to be futile.
court found
trial
error,
plain
the
doctrine
Under
suspended im-
requested a
Defense
23Á-44-15,
may
this court
notice
SDCL §
protect
of sentence “to
position
[Sheri-
rights
affecting substantial
al
defects
given
future
Credit was
record.”
dan’s]
brought
not
to the
though
were
atten
jail time
for
served.
recognize
tion
trial
To
of the
court.
the
rule, however,
say
is not
that every
to
argues that the sentence consti-
at
rises to the
error that occurs
trial
level
the trial court’s discre-
tuted an abuse of
plain
applied
It
error.
must be
cautious
felony
a
conviction
for
first-time
tion
exceptional
ly
only in
circumstances.
degree
He further
burglary.
claims
Brammer,
111,
State v.
304 N.W.2d
114
Equal
his
Protection
the sentence violates
Mountain,
(S.D.1981);
v. White
State
332
rights.
(S.D.1983). Error
728
cannot
N.W.2d
plainly
found from a sentence which is
illegal
may correct an
A trial court
year
penalty
well
the ten
maximum
within
imposition.
year after
sentence within one
22-6-1
for
which SDCL
authorizes
a
§
motion, the court
23A-31-1. On
SDCL §
felony.
class 4
a final civil
may
party
from
also relieve
accordingly
hold that
decline to
ex-
justifying
for
reason
relief
judgment
any
ceptional
appear which
circumstances
rise
15-6-60(b)(6).
operation.
its
SDCL
from
§
error. State v.
plain
Galle-
to
level of
the
lay
Title
which
provisions
The
of SDCL
(S.D.1982);
gos, 316
State
N.W.2d
637
appellate review of al
the
(S.D.1982).
Vogel,
v.
N.W.2d
323
315
errors,
in
applicable
leged
are
23A-32-14; see
criminal cases. SDCL §
pre-
urged
issues
were not
Since the
also SDCL 23A-30-1.
imposed
§
appeal and the sentence
served on
erroneous,
plainly
court is not
the trial
questioning the sen
No motions
appealed
judgment
affirmed.
did not take
tence were made. Sheridan
provided by
advantage
opportunities
of the
present
errors to the
statute to
his claimed
Judge
acting as a
court,
prior
appeal.
trial
trial court
Justice, concur.
therefore,
opportunity to
given an
was not
HENERSON, J.,
specially.
concurs
any
improper sentence.
illegal
correct
or
Hotter,
(S.D.
N.W.2d
State v.
In
340
691
not
been a member
1983), we said:
at the time
action was
of the Court
this
oc-
This court
stated
numerous
has
not
did
presented
not
casions that an issue
HENDERSON,
(specially concur-
Justice
reviewed at the
level will not be
ring).
The trial court must be
appellate level.
any
to correct
given
opportunity
an
comprehend appellant’s
As I
brief and
will
it on
claimed error
we
review
before
urges
advocacy, he
that a three
one-
Holt, 334
v.
47
State
appeal.
N.W.2d
the cruel
year prison
half
sentence violates
O’Connor,
(S.D.1983);
265
State
punishment clauses
and unusual
(S.D.1978). Appellant did
N.W.2d 709
Under
State and Federal Constitutions.
any
prior
this
raise
not at
time
Court, appellant
previous decisions of this
improper
sentence,
claim that his sentence was
believes his
Therefore,
illegal.
appellant’s
claim
or
shock
conscience of
should
in
concerning
per
a line
cases cited
original
sentence is
of old
N.W.2d
State v.
my
287
dissent
properly
this court.
before
867
(S.D.1980),*
dispropor
499
and/or is
per
sentence will
se—survive constitu
not—
to the
tionate
crime.
scrutiny simply
tional
because it is “with
—
in statutory limits.”
day
One
in prison
Appellant specifically
in my
seeks harbor
disproportional punishment.
could be
So
Janssen,
special writing in State v.
lem v.
463 U.S. at
(S.D.1985)(Henderson, J.,
N.W.2d
3008,
lars. To assert all trial must, in the words of old-tim-
ers, hog, words, “root or die!” In other read, dig, work, sweat, study,
counsel must criteria, produce statistics,
cases, studies, records, court etc. See
Janssen,
must court SAMUELSON, M. Danielle appellate advocacy for the to come. Appellant, Pertaining “shocking to a of the con- Court,” simply science of the I am George SAMUELSON, Wester First, appellant, shocked in this scenario. Appellee. Defendant and although has a track activity bad record in criminal Second, by ap-
reflected the DCI records. Supreme Court of South Dakota. pellant caused extensive to Dakota High (a) Junior School Briefs Feb. Office, (b) Office, (c) Administrative Ticket 112, (d) Kitchen, 118, (e) (f) Room Room (h) (g) Hallway, Room West Fire- Appellant
doors on floors and 4. and a
compadre burglarized public in crime in-
stitution and went on rampage de- Taxpayers
struction. and school children
all suffered.
Therefore, although prin- as a matter of
ciple, a proportionate sentence must be
to the crime which the has com- defendant
mitted, appellant’s advocacy is cor- regard,
rect Solem v.
U.S.
(1983), the foundation for review defi-
cient; and, although the sentence seems
facially felony” severe for a of- “first-time
fender, align- DCI records do reflect an activities, I
ment with criminal concur in so sentencing length. Thus, I would af- As an
firm. old mountain remains stand-
ing, light- after a storm with has laced it
ning upon and crashed it with thunderous
roar, I remain steadfast that a to the belief
* sentencing (1983). Helm was reversed the United 103 S.Ct. L.Ed.2d 637 States Court. Solem v. 463 U.S.