State v. Helm

287 N.W.2d 497, 1980 S.D. LEXIS 238

• Court: South Dakota Supreme Court
• Decided: January 16, 1980
• Docket: 12789
• Status: Published

Opinions

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. SDCL 22-7-8 and SDCL 22-7-1(2). The maximum punishment for a Class 1 felony is a life sentence.

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 to be cruel or unusual in other jurisdictions. Cox v. Commonwealth, 514 S.W.2d 49 (Ky. 1974); State v. Custer, 240 Or. 350, 401 P.2d 402 (1965); State v. Gibson, 16 Wash.App. 119, 553 P.2d 131 (1976).

The judgment, of the trial court is affirmed.

FOSHEIM, J., concurs. WOLLMAN, C. J., concurs specially. MORGAN and HENDERSON, JJ., dissent.