#27917-a-DG 2017 S.D. 18
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
PAUL DEAN JENSEN, Defendant and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT STANLEY COUNTY, SOUTH DAKOTA
THE HONORABLE JOHN L. BROWN Judge
MARTY J. JACKLEY Attorney General
ANN C. MEYER Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee.
JEFF LARSON Jeff Larson Law, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.
**** CONSIDERED ON BRIEFS MARCH 22, 2017 OPINION FILED 04/19/17 #27917
GILBERTSON, Chief Justice
[¶1.] In 1996, Paul Dean Jensen received concurrent, mandatory life
sentences for the first-degree murder and kidnapping of Michael Hare. Jensen was
14 years old when he committed the offenses. In 2012, the United States Supreme
Court issued Miller v. Alabama, barring mandatory life sentences against juvenile
homicide offenders. 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Jensen
filed a motion in circuit court to have his sentence corrected. After the United
States Supreme Court issued Montgomery v. Louisiana, which declared that Miller
applies retroactively, the court held a resentencing hearing. See ___ U.S.___, 136 S.
Ct. 718, 193 L. Ed. 2d 599 (2016). At the conclusion of the hearing, the sentencing
court resentenced Jensen to concurrent, 200-year sentences for first-degree murder
and kidnapping. Jensen appeals. We affirm
Background
[¶2.] On January 14, 1996, 14-year-old Jensen and 16-year-old Shawn
Springer carried out their plan to rob a taxi driver in Pierre, South Dakota. Armed
with a gun and fitted with bandanas to cover their faces, Jensen and Springer
called for a taxi to pick them up in the back parking lot of a local hotel. The taxi
company dispatched driver Michael Hare to the hotel. Hare parked and waited in
the front parking lot, just outside the hotel’s entrance. Jensen and Springer
realized that the taxi was not going to pick them up in the rear parking lot and
decided that they could not keep their faces covered with bandanas if they entered
the taxi in front of the hotel. Jensen and Springer uncovered their faces, entered
the taxi, and directed Hare to drive them to Fort Pierre.
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[¶3.] Shortly thereafter, Hare stopped the taxi on a gravel road outside Fort
Pierre. Jensen pointed a gun at Hare, and Springer and Jensen demanded that
Hare give them all his money. Hare insisted that he only had $30 and gave the
money to Jensen and Springer. Jensen got out of the taxi with the gun drawn and
ordered Hare to exit the vehicle. Hare begged for his life. Jensen shot Hare three
times and walked back toward the taxi. Jensen grabbed Hare’s billfold, which had
been placed on the hood of the taxi. Jensen got into the passenger’s seat, and
Springer, who had already relocated to the driver’s seat, began to drive away. Law
enforcement learned of the robbery while Jensen and Springer were leaving the
scene and located the taxi being driven by Springer. A high-speed chase ensued but
ended when Springer drove the taxi into a snowbank. The officers arrested Jensen
and Springer.
[¶4.] In August 1996, Springer pleaded guilty to kidnapping and agreed to
testify against Jensen. The sentencing court sentenced Springer to 261 years in
prison. Jensen, after being transferred to adult court, pleaded not guilty. On
October 4, 1996, a jury found Jensen guilty of first-degree murder, two counts of
first-degree felony murder, first-degree robbery, aiding and abetting grand theft,
possession of a stolen motor vehicle, kidnapping, and conspiracy to commit first-
degree robbery. Only his convictions for first-degree murder and kidnapping are
relevant in this appeal. For those convictions, the sentencing court imposed
concurrent sentences of mandatory life in prison. We affirmed Jensen’s convictions
and sentences in State v. Jensen, 1998 S.D. 52, 579 N.W.2d 613.
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[¶5.] After the United States Supreme Court issued Miller, 567 U.S. 460,
132 S. Ct. 2455, Jensen filed a motion to correct an illegal sentence. The circuit
court granted Jensen’s motion and held a resentencing hearing on June 2-3, 2016.
At the hearing, both the State and Jensen presented expert testimony on the
mitigating qualities of Jensen’s youth, namely evidence related to Jensen’s
childhood and Jensen’s emotional, social, psychological, and intellectual attributes
as a juvenile offender. The parties also presented expert testimony on Jensen’s
changed, matured character as an adult. The State presented evidence regarding
Jensen’s potential for release under the parole system in effect at the time of his
crimes, referred to as the “old system.” The current parole system provides
presumptive release to offenders; the old system used a discretionary system. The
State’s witnesses described the old parole system and explained what factors the
parole board would typically consider before releasing a prisoner into the
community.
[¶6.] At the conclusion of the resentencing hearing, the court orally
sentenced Jensen to 200 years in prison for both first-degree murder and
kidnapping and ordered the sentences to run concurrently. Jensen would be eligible
for discretionary parole at age 39 and for parole based on good-time credit at age
116.
[¶7.] Jensen appeals, asserting the following issues:
1. Whether concurrent, 200-year sentences constitute cruel and unusual punishment?
2. Whether the sentencing court abused its discretion when it imposed concurrent, 200-year sentences?
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Analysis
1. Whether concurrent, 200-year sentences constitute cruel and unusual punishment?
[¶8.] Before we examine this issue, we address the State’s claim that Jensen
waived his right to challenge the length of his sentence under the Eighth
Amendment. The State claims that Jensen waived this right because he did not
object when the court sentenced him or file a motion to have the court reconsider its
sentence. Although we ordinarily decline to review an error not raised before the
circuit court, Jensen challenges the legality of the sentencing court’s decision to
impose concurrent, 200-year sentences under the Eighth Amendment, not the
court’s procedural or evidentiary decisions related to its sentencing. Whether the
court imposed an illegal sentence in violation of the Eighth Amendment is
preserved for our review. See SDCL 23A-31-1 (Rule 35) (“A court may correct an
illegal sentence at any time[.]”); State v. Springer, 2014 S.D. 80, ¶ 9, 856 N.W.2d
460, 463 (“[A]n unconstitutional sentence is an illegal sentence.”).
[¶9.] We review de novo whether a defendant’s sentence is cruel and
unusual in violation of the Eighth Amendment. Springer, 2014 S.D. 80, ¶ 9, 856
N.W.2d at 464. In regard to juveniles, the United States Supreme Court has held
that the Eighth Amendment forbids the imposition of the death penalty for any
crime, a sentence of life without parole for nonhomicide crimes, and a sentence of
mandatory life without parole for homicide crimes. Roper v. Simmons, 543 U.S.
551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (barring the imposition of the death
penalty); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)
(barring sentences of life without parole against juvenile nonhomicide offenders);
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Miller, 567 U.S. 460, 132 S. Ct. 2455 (barring sentencing schemes that mandate life
without parole for juvenile homicide offenders). In Springer, we recognized that our
Legislature amended SDCL 22-6-1 and SDCL 23A-27-1 (Rule 32(a)(1)) in response
to Roper, Graham, and Miller. Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465.
SDCL 22-6-1 no longer mandates a life sentence without parole for a juvenile
offender convicted of a Class A or B felony. And the Legislature amended Rule
32(a)(1) to allow a juvenile “to present any information in mitigation of
punishment.” In light of Miller and the statutory changes, we concluded that “the
sentencing court should carefully weigh and consider the [ ] mitigating qualities of
youth” as set out in Miller. Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 466.
[¶10.] Jensen acknowledges that the sentencing court considered the Miller
factors and notes that in many respects, the court correctly applied Miller. But he
argues that the sentencing court “made some statements that seem to stray from
Miller’s guidance,” which, to Jensen, renders his sentence unconstitutional. In
particular, Jensen quotes the court’s statement: “Youth simply isn’t an excuse or a
way to excuse a criminal offense.” Jensen contends the opposite is true—his youth
makes him constitutionally different than an adult—and that the court’s statement
makes clear that the court did not adequately account for Jensen’s youth.
[¶11.] Jensen is correct that “[s]entencing courts must consider what the
United States Supreme Court termed the ‘mitigating qualities of youth.’” Id. ¶ 14,
856 N.W.2d at 465 (quoting Miller, 567 U.S. at ____, 132 S. Ct. at 2467); accord
State v. Charles, 2017 S.D. 10, ¶ 19, ____ N.W.2d ____. Those qualities include:
(1) the chronological age of the juvenile, (2) the juvenile’s immaturity, impetuosity, irresponsibility, and recklessness, (3)
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family and home environment, (4) incompetency in dealing with law enforcement and the adult criminal justice system, (5) the circumstances of the crime, and, most importantly, (6) the possibility for rehabilitation.
Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465-66 (quoting Miller, 567 U.S. at
____, 132 S. Ct. at 2467-69).
[¶12.] But from our review of the sentencing court’s decision, the court did
not stray from its duty to weigh and consider the Miller factors. The court
specifically took into account Jensen’s youth at the time of the offenses. The court
identified that both Springer and Jensen “were young men of an age that the courts
have said now that we need to look at that age of minority and take that into
account as mitigation in terms of sentencing the individuals.” The court found that
Jensen matured—he was not the same person he was when he was convicted. From
the evidence presented, the court concluded that multiple factors weighed in favor
of Jensen’s potential for rehabilitation and that the 20 years served by Jensen
amounted to sufficient retribution. But the court concluded that Jensen “has a
great deal yet that he needs to accomplish and to prove that he can function in
society as a positive member of society” and imposed a sentence to a lengthy term of
years with a possibility of release at age 39.
[¶13.] Nevertheless, Jensen claims that his sentence is unconstitutional
under the Eighth Amendment because it is the functional equivalent of life without
parole. He recognizes that he is eligible for discretionary release at age 39, but
argues that discretionary release under South Dakota’s old parole system does not
comport with Miller. He distinguishes his case from State v. Diaz, in which we
remarked that Diaz did not receive a life sentence because she had the opportunity
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for parole at age 55. 2016 S.D. 78, ¶ 58, 887 N.W.2d 751, 768. Diaz, unlike Jensen,
was sentenced under the new parole system, which means she will be released at
age 55 without having to appear before the parole board so long as she is compliant
while in prison. Under the old parole system, Jensen could remain in prison until
his presumptive release date at age 116 (well beyond his natural life), if the parole
board denies Jensen release at each opportunity after he turns 39. Jensen cites to
Atwell v. State for the proposition that “[a] presumptive parole release date set
decades beyond a natural life span is at odds with the Supreme Court’s recent
pronouncement in Montgomery.” 197 So. 3d 1040, 1048 (Fla. 2016).
[¶14.] In 1992, Atwell was convicted of first-degree murder and armed
robbery. Id. at 1043. He was 16 years old when he committed the offenses. On the
murder conviction, the statute in effect mandated a sentence of life without the
possibility of parole for 25 years. Id. Following Miller, Atwell petitioned for post-
conviction relief, arguing that his mandatory sentence violated the Eighth
Amendment. Id. at 1044. The Florida district court denied relief because it held
that Atwell’s possibility of parole after serving 25 years removed his mandatorily-
imposed sentence from the purview of Miller.
[¶15.] On appeal, the Florida Supreme Court reversed. It found significant
that when the court sentenced Atwell in 1992, the court was not able to consider
how juveniles “are different and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at 1050 (quoting Miller, 567 U.S. at
___, 132 S. Ct. at 2469). And, even though Atwell would have an opportunity to
have his sentence re-examined after serving 25 years, the Florida court highlighted
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that the parole system in effect at the time did not require the parole board to
consider the Miller factors, which meant that Atwell would never have his juvenile-
related characteristics considered when imposing punishment. Id. at 1047 (quoting
Fla. Stat. § 947.002 (2015)). The court also rejected the claim that Atwell’s right to
presumptive release after serving 140 years brought Atwell’s mandatorily-imposed
sentence into compliance with Miller. Atwell had yet to have his juvenile-related
characteristics considered in regard to his punishment and release after serving 140
years was beyond Atwell’s natural life. Id. at 1048. Ultimately, the court ordered
that Atwell be resentenced so he could “receive the type of individualized sentencing
consideration Miller requires.” Id. at 1050.
[¶16.] Here, however, Jensen received the type of individualized sentencing
required by Miller when the sentencing court held a resentencing hearing in 2016.
Also, although South Dakota’s discretionary parole system, like Florida’s, does not
require the consideration of the mitigating qualities of youth, the Atwell court
examined Florida’s discretionary parole system to determine whether Atwell’s
opportunity for parole could remove his mandatorily-imposed sentence from the
purview of Miller and Montgomery. Jensen did not receive a mandatory sentence of
life without the possibility of parole. And Jensen directs us to no case in which this
Court or the United States Supreme Court has held that—when a juvenile receives
individualized sentencing mandated by Miller and has an opportunity for release—
the Eighth Amendment also requires that a parole board consider the juvenile
homicide offender’s youth-related characteristics.
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[¶17.] In response, Jensen cites to legislation from other states requiring
parole boards to apply the Miller factors at parole hearings for juvenile offenders.
See Conn. Gen. Stat. § 54-125a(f)(4); Cal. Penal Code § 4801(c); W. Va. Code § 62-
12-13b(a), (b). He then claims that because South Dakota has no similar provisions,
the sentencing court unconstitutionally vested full authority to the parole board to
decide whether Jensen in fact receives a life sentence without parole. Jensen
recognizes that Miller does not preclude a life sentence without the possibility of
parole. But in his view, the harshest penalties must be reserved for the most severe
criminals, and, here, the sentencing court did not consider him to be the “worst of
the worst.”
[¶18.] Although many states have reformed their laws in response to Miller
and Montgomery, it is not this Court’s role to judicially legislate the parole process.
The intersection of the parole process and imprisoned juvenile offenders in South
Dakota is an issue best left to be examined by the Legislature. The issue is
significant indeed. But here, the absence of legislation mandating that our parole
board consider the Miller factors does not render Jensen’s concurrent, 200-year
sentences unconstitutional under the Eighth Amendment. Jensen received a
discretionary sentence to a lengthy term of years following an individualized
sentencing that considered the mitigating qualities of youth and Jensen’s prospects
for rehabilitation as required by Miller. See Charles, 2017 S.D. 10, ¶ 20, ___
N.W.2d at ____ (court imposed discretionary sentence to a lengthy term of years
after considering the Miller factors); Diaz, 2016 S.D. 78, ¶ 45, 887 N.W.2d at 764
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(same). Therefore, Jensen has not established that his sentence is cruel and
unusual in violation of the Eighth Amendment.
2. Whether the sentencing court abused its discretion when it imposed concurrent, 200-year sentences?
[¶19.] Jensen asserts that the sentencing court abused its discretion because
it abdicated its sentencing discretion to the parole board. He directs this Court to
the sentencing court’s statement that it was not as equipped as the parole board to
decide when to release Jensen. He also highlights that the court’s concurrent, 200-
year sentences and Jensen’s good-time release (presumptive release) at age 116
prove that the sentencing court left the decision whether Jensen actually serves a
life sentence up to the parole board.
[¶20.] The State responds that Jensen waived the issue because Jensen did
not object at sentencing, arguing that the court abdicated its duties to the parole
board when the court imposed its sentence. During the resentencing hearing, the
court heard evidence and testimony concerning the difference between the old and
new parole systems. At the conclusion of the hearing, Jensen specifically requested
that the court consider the difference between the old and new parole systems and
not compare Jensen’s sentence to that of juveniles sentenced under the new system.
Jensen argued that unlike the more-recently sentenced juveniles, he “will always
have to do that next step of justifying it [his release] to the parole board.” From our
review, Jensen did not waive his right to have this Court review his claim.
[¶21.] A sentencing court has broad discretion when fashioning an
appropriate sentence. The court must “acquire a thorough acquaintance with the
character and history of the [person] before it.” State v. Lemley, 1996 S.D. 91, ¶ 12,
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552 N.W.2d 409, 412 (quoting State v. Chase in Winter, 534 N.W.2d 350, 354-55
(S.D. 1995)). “This includes the circumstances of the offense ‘together with the
character and propensities of the offender.’” State v. Anderson, 1996 S.D. 46, ¶ 32,
546 N.W.2d 395, 403 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909,
2932, 49 L. Ed. 2d 859 (1976)). When sentencing a juvenile offender, sentencing
courts must also “consider what the United States Supreme Court termed the
‘mitigating qualities of youth.’” Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465
(quoting Miller, 567 U.S. at ____, 132 S. Ct. at 2467).
[¶22.] From our review of the court’s oral sentence, it did not abdicate its
sentencing duties to the parole board. Yes, the court referred to the parole process
during its oral sentence. The court said:
Looking at this, this is somewhat unique. I was thinking there’s not very many people that are sentenced to the penitentiary for any period of time that have an opportunity to come back before the [c]ourt after a period of, a significant period of time beyond the two years that’s available and really have a full-blown resentencing hearing.
As I said, I thought that was unique and then I got to thinking a little more about that. Actually, that’s what our parole system is. Maybe this [c]ourt doesn’t sit as a parole board. The [c]ourt probably isn’t well equipped to perform that function.
But the court did not leave for the parole board to decide Jensen’s sentence. The
court imposed concurrent, 200-year sentences against Jensen for murder and
kidnapping after weighing and considering all the evidence presented, the
mitigating qualities of youth, the circumstances of Jensen’s crime, and Jensen’s
prospects for rehabilitation. The evidence presented includes extensive testimony
about Jensen’s childhood, multiple expert opinions on Jensen’s mental health as a
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juvenile and as an adult, evidence and testimony about Jensen’s maturity and
behavior while incarcerated, and testimony concerning what factors the parole
board would typically consider when deciding to exercise discretionary release.
Because the sentencing court acquired a thorough acquaintance with Jensen’s
character and history, considered the mitigating qualities of youth, and considered
Jensen’s prospects for rehabilitation, it did not abdicate its sentencing
responsibilities. See Lemley, 1996 S.D. 91, ¶ 12, 552 N.W.2d at 412; Charles, 2017
S.D. 10, ¶ 20, ___ N.W.2d at ____.
[¶23.] Affirmed.
[¶24.] SEVERSON, and WILBUR, Justices, and BROWN, Matthew, and
SOGN, Circuit Court Judges, concur.
[¶25.] BROWN, Matthew, Circuit Court Judge, sitting for ZINTER, Justice,
disqualified.
[¶26.] SOGN, Circuit Court Judge, sitting for KERN, Justice, disqualified.
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