State v. Gehrke

491 N.W.2d 421, 1992 S.D. LEXIS 129, 1992 WL 217095

• Court: South Dakota Supreme Court
• Decided: September 9, 1992
• Docket: 17727
• Status: Published

Opinions

WUEST, Justice.

This is the second appeal brought by Defendant John W. Gehrke from the sentence imposed upon his conviction of aggravated assault. Gehrke was initially sentenced to twenty-five years. He appealed, and we affirmed his conviction for aggravated assault, but reversed the sentence because the habitual offender statute had been improperly applied to enhance Gehrke’s sentence. State v. Gehrke, 474 N.W.2d 722 (S.D.1991). On remand, the trial court resentenced Gehrke to the maximum prison term for aggravated assault— fifteen years. Gehrke appeals alleging the sentence constitutes cruel and unusual punishment. We affirm.

The facts are set out in the first opinion, Gehrke, 474 N.W.2d at 722-23, to which we refer the reader. We restate only those facts necessary to decide this appeal.

On January 8, 1990, while awaiting trial on two separate felony charges — tampering with a witness and intentional damage to property — Gehrke was found intoxicated in a parked pickup truck by South Dakota Highway Patrol Officer Prank Krumm. Gehrke had a loaded .22 caliber rifle under the seat. After Officer Krumm placed Gehrke under arrest for driving while intoxicated, against the officer’s order, Gehrke returned to his pickup, started it and parked in the ditch. After Officer Krumm ordered Gehrke into his patrol car, Gehrke punched the officer. The blow caused Officer Krumm’s jaw to become sore and swollen, and he developed a headache.

Officer Krumm called for assistance. Gehrke then charged at Krumm, verbally threatening to do further physical harm. At this time, Gehrke’s fists were clenched and he challenged Krumm to fight. Gehrke continued to throw punches at the officer, none of which connected. Krumm kept his distance and awaited the arrival of assistance. When assistance arrived, Gehrke was handcuffed. After the officers loosened a handcuff which had become too tight, and as the officers were placing Gehrke into the rear seat of Officer Krumm’s patrol car, Gehrke kicked Officer Krumm in the stomach. While en route to jail, Gehrke kicked out a light in the patrol car and otherwise damaged the interior.

Gehrke was convicted of aggravated assault against a law enforcement officer, a class three felony punishable by a maximum sentence of fifteen years in the South Dakota State Penitentiary and a $15,000 fine. SDCL 22-18-1.1(3) (1988); SDCL 22-6-1 (1988). Gehrke argues his sentence is excessive and constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article VI, Section 23 of the South Dakota Constitution.

At resentencing, Gehrke introduced statistics which indicated: the mean (average) sentence of those serving time in the South Dakota State Penitentiary for aggravated assault was 8.079 years; the medium sentence being 8.25 years; and the mode (most common) sentence being 10.0 years. Gehrke also presented evidence the maximum penalty for the same crime against a police officer: (1) in Minnesota is a year and a day in prison or a fine of $3,000, or both and (2) in Montana is ten years in prison or a $50,000 fine, or both.

This court gives great deference to sentencing decisions made by trial courts. State v. Weiker (Weiker II) 366 N.W.2d 823, 828 (S.D.1985) (citing Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)). Moreover, not every felony sentence will be subjected to exhaustive review. Weiker II, at 827. Accord State v. Reed, 451 N.W.2d 409, 410 (S.D.1990). We have previously relied on language set out in the United States Supreme Court decision in Helm v. Solem:

[W]e do not adopt or imply approval of a general rule of appellate review of sentences. Absent specific authority, it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence; rather, in applying the Eighth Amendment the appellate court decides only whether the sentence under review is within constitutional limits. In view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.

Weiker II, 366 N.W.2d at 827. (quoting Solem v. Helm, 463 U.S. 277, 290, n. 16, 103 S.Ct. 3001, 3009 n. 16, 77 L.Ed.2d 637, 649 n. 16 (1983)). Accord State v. Myers, 411 N.W.2d 402, 403 (S.D.1987). We recognize, “ ‘successful challenges to the proportionality of particular sentences will be exceedingly rare.’ ” Weiker II, 366 N.W.2d at 827 (quoting Helm, 463 U.S. at 289-90, 103 S.Ct. at 3009, 77 L.Ed.2d at 649).

“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); Weiker II, 366 N.W.2d at 827. “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 827.¹ See also Helm, 463 U.S. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d at 650.

This procedure was recently approved by a plurality of the United States Supreme Court in Harmelin v. Michigan, 501 U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (plurality). In Harmelin, five justices agreed Michigan’s mandatory sentence of life imprisonment without possibility of parole for the offense of possessing 672 grams of cocaine did not constitute cruel and unusual punishment in violation of the Eighth Amendment. Justice Scalia, joined by Chief Justice Rehnquist, concluded the Eighth Amendment contains no proportionality guarantee outside of death penalty cases and, therefore, Helm should be overruled. Id., 501 U.S. at -, 111 S.Ct. at 2696, 115 L.Ed.2d at 858. Justice Kennedy, joined by Justice O’Conner and Justice Souter, recognized in noncapital cases the cruel and unusual punishment clause encompasses a “narrow proportionality principle.” Id., 501 U.S. at -, 111 S.Ct. at 2702, 115 L.Ed.2d at 866. After setting forth four principles gleaned from Supreme Court decisions,² Justice Kennedy concluded: “[t]he Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate to the crime.’ ” Id. 501 U.S. at -, 111 S.Ct. at 2705, 115 L.Ed.2d at 869 (quoting Helm, 463 U.S. at 288, 303, 103 S.Ct. at 3008, 3016, 77 L.Ed.2d at 647, 657).

Further, Justice Kennedy stated the crime of possession of more than 650 grams of cocaine was of sufficient severity that no comparative analysis was necessary, concluding “intra- and inter-jurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dis-proportionality.” Id., 501 U.S. at -, 111 S.Ct. at 2707, 115 L.Ed.2d at 871. “The proper role for comparative analyses of sentences, then, is to validate an initial judgment that a sentence is grossly disproportionate to a crime.” Id., 501 U.S. at -, 111 S.Ct. at 2707, 115 L.Ed.2d at 872.

This analysis is consistent with previous decisions where we have held we must first determine whether the sentence “shocks the conscience” or is so disproportionate to the crime as to trigger the “within and without jurisdiction” proportionality test. Lykken, 484 N.W.2d at 879; Holloway, 482 N.W.2d at 310; Basker, 468 N.W.2d at 418. We have set out a two-part test to determine whether a sentence is so constitutionally offensive as to shock the conscience: First, whether the punishment is so excessive or 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.” State v. Shilvock-Havird, 472 N.W.2d 773, 779 (S.D.1991) (citing Reed, 451 N.W.2d 409; State v. Phipps, 318 N.W.2d 128 (S.D.1982)).

Gehrke’s acts of aggression against Officer Krumm were a cumulation of conduct on the part of Gehrke demonstrating his ongoing lack of respect for authority. At the initial sentencing hearing, in May 1990, the trial court specifically noted on the record it had reviewed Gehrke’s presen-tence investigation report and was particularly struck by his record. In the court’s view, Gehrke lacked emotional maturity and believed he did not have to obey authority. The court also pointed to Gehrke’s witness tampering conviction, which evidenced his effort to thwart the judicial process.

At the re-sentencing hearing on September 25, 1991, the court again noted the particular details contained in the presen-tence investigation report. This report is replete with details of Gehrke’s brushes with the law, including several instances when he willfully refused to obey court protection orders obtained by his ex-wife. It is apparent from the report Gehrke did exactly what he wanted, without regard for the law. Such arrogance was shown by Gehrke on January 8, 1990, when he refused to obey Officer Krumm’s instructions to remain in the patrol car after having been arrested.

In addition, Gehrke’s arrogant attitude was usually displayed through acts of aggression. When Gehrke violated the protection orders, he would often become involved in verbal or physical altercations, which usually resulted in charges being brought against him. For example, in August of 1986, Gehrke was charged with disturbing the peace and intentional damage to property because he struck the hood of a police car after the officer called to the scene reminded Gehrke of the restraining order and asked him to leave. Gehrke violated the protection order repeatedly, including one instance where he forced entry into his ex-wife’s home by breaking the back door. On another occasion, he was charged with simple assault for throwing a glass at his ex-wife, hitting her in the neck.³

Gehrke had a previous run-in with Officer Krumm, during which Gehrke’s actions were abusive and threatening. In a 1988 incident, Gehrke was stopped by a law enforcement officer for exhibition driving. The officer requested assistance and Officer Krumm responded. When the officers attempted to handcuff Gehrke and transport him to jail, he became very abusive and threatened Officer Krumm. Gehrke’s contact with Officer Krumm on the night of January 8, 19.90, went beyond threats. This time Gehrke carried out his verbal threats by punching Officer Krumm in the face and kicking him in the stomach.

Gehrke’s behavior clearly shows he is unimpressed with the criminal justice system. Even though he was awaiting trial on two separate felony charges — witness tampering and intentional damage to property — he drove a vehicle while intoxicated, and then assaulted a police officer. Based upon Gehrke’s persistent antagonism toward authority, and law enforcement officers in particular, coupled with his increasing history of aggression, it is apparent Gehrke has little hope for immediate rehabilitation. See Lykken, 484 N.W.2d at 880.

.Evidence was presented at the second sentencing hearing that Gehrke has taken some positive steps towards rehabilitating himself. It is unfortunate this has occurred so late. Gehrke has had several run-ins with the law and has had many chances to reform his behavior. If he finally succeeds, he may apply for parole and will be eligible for “good time.” SDCL 24-15-5 (1988); SDCL 24-5-1 (1988).

Incapacitation and deterrence are valid goals of sentencing. Harmelin, 501 U.S. at -, 111 S.Ct. at 2704, 115 L.Ed.2d at 868. The legislature, with the legitimate goal of deterrence in mind, enacted SDCL 22-18-1.1(3) in order to clothe with protection those who by virtue of their status as law enforcement officers have been pressed into service. State v. Feyereisen, 343 N.W.2d 384, 387 (S.D.1984); State v. Winckler, 286 N.W.2d 313, 314 (S.D.1979). Based upon all the circumstances presented in this case, the trial court’s imposition of the maximum sentence allowed within statutory limits was not so excessive or cruel as to shock the conscience of this court or of men generally, and is not grossly disproportionate to the crime committed. There is no need, therefore, for this court to reach a proportionality analysis. Lykken, 484 N.W.2d at 880; Basker, 468 N.W.2d at 418.

Even were we to reach the within and without jurisdiction proportionality review, we could not conclude Gehrke’s sentence violates the Eighth Amendment or Article VI, Section 23 of South Dakota’s Constitution. Gehrke submitted statistics regarding aggravated assault sentences being served in the South Dakota State Penitentiary. Gehrke’s statistics do not detail the facts on which the compared sentences are based. See discussion in footnote 1 supra. Moreover, the comparisons reveal the most common sentence imposed for aggravated assault is ten years (nineteen out of 106 sentences). Of the 106 sentences surveyed at the penitentiary, nineteen were as severe or more severe than Gehrke’s. Moreover, the record is not sufficiently developed to conduct an inter-jurisdictional review. See Holloway, 482 N.W.2d at 311; State v. Rederth, 376 N.W.2d 579, 581 (S.D.1985), appeal dismissed, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986). Gehrke submitted the statutes of only two states concerning the maximum sentence for assaulting a police officer: Minnesota (not more than one year and one day or a fine of $3,000, or both) and Montana (not to exceed ten years or a fine of $50,000, or both). It is possible other jurisdictions have more stringent penalties applicable to the same crime. Given the facts of this case, we cannot conclude the sentence was “grossly disproportionate” to the crime committed. Harmelin, 501 U.S. at -, 111 S.Ct. at 2707, 115 L.Ed.2d at 872.

We affirm.

MILLER, C.J., and SABERS and AMUNDSON, JJ., concur. HENDERSON, J., dissents.

1 . In Weiker II we noted:

This procedure will likely prevent the ‘floodgates from opening,’ as was heralded by the State. Courts will not need to accept vast statistical information at every sentencing hearing. It will also relieve this Court from the impossible task of reviewing for proportionality one term of years, as opposed to shorter or longer terms.

Id.

2 . Those principles are: (1) reviewing courts must grant substantial deference to the legislature’s broad authority to determine the types and limits of punishment; (2) the Eighth Amendment does not mandate adoption of any one phenological theory; (3) marked divergences “are the inevitable, often beneficial result of the federal structure”; and (4) proportionality review by federal courts should be informed by objective factors. Id., 501 U.S. at-, 111 S.Ct. at 2703-04, 115 L.Ed.2d at 867-68.

3 . Included in the presentence investigation report is an incident where Gehrke was convicted of cruelty to animals for stomping on the heads of three puppies, crushing their skulls.