Bult v. Leapley

507 N.W.2d 325, 1993 S.D. LEXIS 133, 1993 WL 419710

• Court: South Dakota Supreme Court
• Decided: October 20, 1993
• Docket: 17914
• Status: Published

Opinions

MILLER, Chief Justice.

ACTION

A jury convicted Justin Lloyd Bult (Bult) of kidnapping, SDCL 22-19-1, and sexual contact with a child under fifteen, SDCL 22-22-7. He was sentenced to life imprisonment on the kidnapping conviction and to a concurrent ten year sentence on the sexual contact conviction by Circuit Court Judge Eugene L. Martin. This Court unanimously affirmed Bult’s convictions; no issues regarding the sentence were raised on direct appeal. State v. Bult, 351 N.W.2d 731 (S.D.1984). Bult filed an application for a writ of habeas corpus contending that his life sentence -without the possibility of parole was constitutionally offensive under state and federal constitutional provisions prohibiting the imposition of cruel and unusual punishment. Circuit Court Judge Jon R. Erickson entered findings of fact, conclusions of law, and judgment denying the application for a writ of habeas corpus. Because we conclude that the sentence shocks the conscience, we reverse and remand for resentencing proceedings.

FACTS OF THE OFFENSE

Bult does not dispute the factual allegations and evidence which supported them and led to his conviction. We summarize the facts of the offense from our statement of facts in State v. Bult, supra.

Over eleven years ago at 5:10 p.m. on September 15, 1982, Bult, an eighteen year old high school senior, forced a screaming and crying five-year-old girl off of her tricycle and into his automobile. He drove away at a high rate of speed. According to the victim, they drove to a corn field in the country where he held her down, removed her clothes, and “tried to put his wienie” in her while she was -laying on the seat. At 5:35 p.m. that afternoon the victim’s mother heard her daughter screaming in the yard and questioned her about what had happened.

Bult initially denied being implicated but later admitted to investigators that he abducted the victim and attempted to have sex with her. He refused to sign a written confession. At trial, Bult testified, denied all charges, and presented alibi witnesses. The jury reached guilty verdicts.

SENTENCING

At sentencing the trial court had the benefit of a presentence report. According to the report, Bult was born on January 19, 1964. He was raised by his natural parents and felt that he had á good childhood except for the times that his parents were drunk.

Bult’s criminal record involved an incident of alleged arson in 1975. He was adjudicated delinquent on October 16, 1975, and placed on indefinite probation which terminated on December 3, 1975. On September 14, 1981, Bult was placed on a ninety day diversion program because of a referral as a child in need of supervision alleging that he was a runaway and beyond parental control. This terminated on November 30, 1981.

Educationally, Bult was in the twelfth grade. Academically he was a poor student, a problem exacerbated by his short temper. Despite his low academic ability, he never missed a day and was never tardy for three years. With individualized educational instruction he showed considerable improvement in the area of self-concept although his social skills had not developed as dramatically-

At sentencing the state urged the trial court to impose a substantial sentence but did not ask that Bult be sentenced to life imprisonment due to his age and lack of previous felony convictions.¹ The state told the trial court, in part:

And the State is not going to ask that Mr. Bult be imprisoned for life. I think because of his age and his lack of previous felony convictions, in good conscience and fair [sic] to the Defendant, I don’t believe we can ask for it and we do not ask for it.

Bult’s attorney believed that a long penitentiary sentence would serve little purpose and urged remedial treatment.

The trial court addressed Bult and said, in part, that it was sentencing him to life imprisonment because:

The crimes that the Jury has found you guilty of are very serious and ones which generate very little if any compassion by anybody. I think that one must make an effort to balance your particular interests against the interests of the public and that is not an easy thing to do. And this is not an easy thing for me to do. But I have done some reading about the type of crimes that are of the nature that the Jury says you committed and the ability of some people to treat the individual who has committed those crimes. The problem that you keep running into is the chance of those crimes repeating themselves by virtue of the personality or whatever of the person who committed the crimes. And I thought about this matter a great deal and the things [sic] that concerns me most is the chance of repeating and the fact that I don’t feel that society should have to suffer the risk of this offense repeating itself again.,

HABEAS CORPUS

In his application for a writ of habeas corpus Bult contended that the life sentence without the possibility of parole infringed upon his constitutional right to be free from cruel and unusual punishment. In addition, Bult presented the court with information regarding the sentences of inmates imprisoned in the South Dakota penitentiary for kidnapping.

The habeas court concluded that while Bult’s sentence was severe, it was not, in light of all the facts, so excessive or cruel as to meet the disapproval and condemnation of the conscience and reason of men generally or of the court. It concluded that the sentencing court’s concern for the risk of Bult repeating the offense was confirmed by the 1990 South Dakota Governor’s Task Force on Children’s Justice Report which said that while youthful sex offenders may be treated to the point that they no longer pose a threat to society, the state penal facilities have inadequate evaluation and treatment programs resulting in the unsupervised release of perpetrators who are at risk to reoffend. The court also concluded that the Eighth Amendment to the United States Constitution and Article VI § 23 of South Dakota’s Constitution encompass a narrow proportionality principle.

ISSUE ■

WHETHER BULT’S SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE VIOLATES STATE AND FEDERAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT?

“On appeal, we first determine whether the sentence ‘shocks the conscience’ or is so disproportionate to the crime that it activates the Eighth Amendment ‘within and without jurisdiction’ proportionality tests.” State v. Lykken, 484 N.W.2d 869, 879 (S.D.1992); State v. Basker, 468 N.W.2d 413, 418 (S.D.1991). Accord State v. Andrews, 393 N.W.2d 76, 82-83 (S.D.1986); [State v. Weiker] Weiker II, 366 N.W.2d [823] at 827 (S.D.1985). “Absent a sentence which is so excessive in duration that it shocks the conscience of the court, it is well settled in South Dakota that a sentence within statutory limits is not reviewable on appeal.” Lykken, 484 N.W.2d at 879; State v. Janssen, 371 N.W.2d 353, 356 (S.D.1985) (citing cases). Stated alternatively, we will only engage in extensive review of a sentence where we have first determined the sentence was manifestly disproportionate to the crime. State v. Holloway, 482 N.W.2d 306, 310-311 (S.D.1992); Weiker II, 366 N.W.2d at 827. “If a sentence is manifestly disproportionate to the crime, [in light of the gravity of the offense and harshness of the penalty] ... then the other two factors listed in Helm [sentence imposed on others in the same jurisdiction and in other jurisdictions] become more focused and require extensive review.” Weiker II, 366 N.W.2d at 827. See also Helm, 463 U.S. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d at 650.

State v. Castaneira, 502 N.W.2d 112, 114-115 (S.D.1993) quoting, State v. Gehrke, 491 N.W.2d 421, 423 (S.D.1992).

The test to determine whether a sentence is so constitutionally offensive as to shock the conscience is two-fold. State v. Shilvock-Havird, 472 N.W.2d 773 (S.D.1991).

First, is the punishment so excessive or so cruel “as to meet the disapproval and condemnation of the conscience and reason of men generally.” And second, whether the punishment is so excessive or so cruel as to shock the collective conscience of this court.

Id., 472 N.W.2d at 779.

The commonly accepted goals of punishment are 1) retribution, 2) deterrence, both individual and general, and 3) rehabilitation. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). We have recognized that while a life sentence without parole extracts retribution, deters the convict from committing crime, removes him from the street, and puts would-be felons on notice of the high penalty of recidivism, it completely eschews the goal of rehabilitation. State v. Weiker, 342 N.W.2d 7 (S.D.1983).

In Weiker, supra, we noted that a life sentence is exceeded in severity only by capital punishment. While we acknowledged that there are cases where the imposition of a life sentence without parole is meritorious, we cautioned:

[T]hey are rare and should involve a history of much more serious offenses that by reason of their brutality or calculated destructiveness render irrelevant the goal of rehabilitation and require in vindication of public safety and the moral underpinnings of the criminal law that the offender forfeit his right to ever again be set free.

⅜ ⅜ ⅜ ⅜ * ⅜

But even more strongly, we recommend to the trial court that the maximum of life sentence be imposed only in such cases where it can determine from the facts of the principal offense and the previous convictions that rehabilitation is so unlikely as to be removed from consideration in sentencing; that the interests of society demand that the convict be kept off the streets for the rest of his life; and that society, speaking through the legislature, has clearly mandated that the offense or offenses involved are so malignant that a lifetime of incarceration is the only adequate retribution.

Weiker, supra, 342 N.W.2d at 12.

Bult was convicted of kidnapping, a Class 1 felony, and sexual contact with a child under fifteen, a Class 4 felony. The South Dakota Legislature gave trial courts broad discretion in determining the severity of the sentence that a defendant convicted of each crime receives. Neither crime carries a statutory minimum penitentiary sentence. The maximum penitentiary sentence for Class 1 kidnapping was life imprisonment without the possibility of parole while the maximum sentence for Class 4 sexual contact was ten years imprisonment. SDCL 22-22-7, 22-19-1, 22-6-1. The trial court sentenced Bult to the maximum penitentiary sentence for each conviction. It is apparent from its remarks at Bult’s sentencing that the trial court believed that any person committing the crimes Bult was convicted of was beyond rehabilitation.

We do not minimize or trivialize the seriousness of Bult’s abduction and attempted rape of a five-year-old girl. However, this crime, although brutal and destructive, does not rise to a level rendering rehabilitation irrelevant. Bult did return the child to her home shortly after the abduction. Fortunately, the victim was not raped, nor did she sustain substantial physical injury.

In addition, the record reveals that at the time of the offense the eighteen year old Bult’s criminal history consisted of two brushes with the law while he was a juvenile and resulted in a brief period of probation and a ninety day diversion program. While he had learning disabilities and self-image problems one-on-one counseling resulted in positive changes, a fact reflecting amenability to rehabilitation. In addition, there was no evidence of any prior sexual offenses or sexual disfunctionality which would lead to the conclusion that Bult was an incorrigible criminal incapable of rehabilitation.

In sentencing Bult to life imprisonment without the possibility of parole for kidnapping the trial court went beyond the facts of the case, the information contained in the presentence report, and the prosecutor’s recommendation. Based upon this record, a life sentence without the possibility of parole for this eighteen year old defendant shocks the conscience of men generally and of this Court.

Finally Bult presented the habeas corpus court with all available information concerning individuals serving time in the penitentiary for a conviction of kidnapping. Because of our conclusion that Bult’s sentence shocks the conscience, the need to determine whether the sentence is so disproportionate to the crime as to activate Eighth Amendment proportionality review is obviated.² We only observe that this data validates our judgment that a life sentence in Bult’s case shocks the conscience. Bult’s case is distinguished from the cases presented where life terms for kidnapping were imposed by Bult’s youth, his lack of significant prior convictions, and the fact that he did not inflict substantial bodily injury or use a deadly weapon.

Reversed and remanded for resentencing proceedings.

WUEST, SABERS, and AMUNDSON, JJ., concur. HENDERSON, J., concurs specially.

1 . We note the state offered a twenty year plea bargain which Bult declined.

2 . Whether the Eighth Amendment even encompasses a proportionality principle in non-capital cases has been called into question by the United States Supreme Court. Harmelin v. Michigan, 501 U.S.-, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991).