State v. Weiker

366 N.W.2d 823, 1985 S.D. LEXIS 257

• Court: South Dakota Supreme Court
• Decided: April 17, 1985
• Docket: 14515
• Status: Published

Opinions

FOSHEIM, Chief Justice.

This is the second appeal on three convictions and sentences for controlled substances distributions. See State v. Weiker, 342 N.W.2d 7 (S.D.1983) (Weiker I). We affirmed the convictions but reversed the sentences and remanded. Id. A resen-tencing hearing was conducted, and new evidence was taken. Kenneth Weiker was then sentenced to serve three concurrent eighty year terms. We affirm the sentence.

We must first review Weiker I. Did this Court determine that Weiker was capable of rehabilitation and mandate that he be given an opportunity for rehabilitation on resentencing as claimed, or did we merely direct the trial court to determine if Weiker could be rehabilitated and then sentence him accordingly? The trial court and the State maintain the latter.

The issue stems from this language in Weiker I:

Were his previous convictions for the same offense it would be relatively easy to write him off as incorrigible, beyond rehabilitation, and a worthy candidate for a life sentence without parole. But that is not the ease. His prior offenses were in the nature of offenses against property rights. In light of these past offenses, it appears contrary to one of the goals of our criminal justice system to deny any effort at rehabilitation.

Weiker I, 342 N.W.2d at 11-12. Then, after addressing life sentences without parole and setting terms of sentences in general, this Court said:

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 I, 342 N.W.2d at 12.

In Weiker I we held only that his life sentence without parole was too harsh because it completely foreclosed rehabilitation. Id. We did not determine that he was capable of rehabilitation. Deciding whether Weiker is a likely subject for rehabilitation is a fact question to be decided by the trial court and will not be overturned unless clearly erroneous. United States v. Hollis, 718 F.2d 277, 279-280 (8th Cir.1983) cert. denied — U.S. —, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984). An appellate court is not equipped or designed to indulge in fact finding, State v. Bolger, 332 N.W.2d 718 (S.D.1983); State v. Johnson, 320 N.W.2d 142 (S.D.1982), and due regard must be given to the opportunity of the trial court to judge the credibility of witnesses. See, McMullen v. State, 84 S.D. 538, 173 N.W.2d 499 (1970); State v. Spoonemore, 287 N.W.2d 109 (S.D.1980); Compare, SDCL 15-6-52(a). The trial court correctly proceeded to determine the likelihood of rehabilitation.

Weiker next argues that the three concurrent eighty year sentences negate and frustrate any rehabilitation opportunity and are just as ineffective in that respect as the life sentences. Weiker will not be released until age sixty-two, or seventy-three, depending on whether he receives all of his good time and a parole. He argues this is not reasonably within his life expectancy and thus, the sentence in effect reimposes the life sentences. State v. Lohnes, 344 N.W.2d 686 (S.D.1984). The State counters that no break-off age can, or has been, adopted. The State also argues that life expectancy should not be a consideration in sentences, and that the eighty year sentences did therefore adequately leave room for rehabilitation. A sentence which allows for release at age seventy-three is not the same as a life sentence without parole. Courts have consistently made the distinction between a felony term sentence and life without parole. See, United States v. Stead, 740 F.2d 657 (8th Cir.1984); Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983); cert. denied, — U.S. —, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Moreover, we have shown reluctance to become involved in passing on sentences. State v. Antelope, 304 N.W.2d 115 (S.D.1981); State v. DuBois, 301 N.W.2d 425 (S.D.1981); See also, Solem v. Helm, 463 U.S. 277, -, 103 S.Ct. 3001, 3017, 77 L.Ed.2d 637, 658 (Burger, C.J., dissenting). We see no need to second-guess the trial court on this issue.

We must next determine whether the Eighth Amendment proportionality analysis set forth in Solem v. Helm, supra, applies to our review of this sentence. The Solem v. Helm proportionality criteria adopted in Weiker I, supra at 11, are: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for the commission of the same offense in other jurisdictions.

In State v. Williamson, 342 N.W.2d 15 (S.D.1983), this Court interpreted the Helm decision as requiring proportionality analysis only “when a life sentence without parole is imposed.” See also, State v. Dillon, 349 N.W.2d 55 (S.D.1984), following State v. Williamson, supra. Williamson and Dillon appear to be in conflict with Solem v. Helm. These cases represent two lines of South Dakota authority that need to be reconciled with Solem v. Helm. The first is the longstanding rule that we do not review sentences that fall within the maximum range set by the legislature. State v. Williamson, 342 N.W.2d at 18 and authorities cited therein. The second is that we consider the proportionality of a sentence only when a life sentence without parole is imposed. Williamson, supra; Dillon, supra.

In Solem v. Helm, the United States Supreme Court rejected the argument that proportionality analysis does not apply to sentences for a term of years:

The Constitutional principle of proportionality has been recognized explicitly in this Court for almost a century ... Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.

Solem v. Helm, 463 U.S. 277, -, 103 S.Ct. 3001, 3007-3008, 77 L.Ed.2d 637, 646-648 (1983).

There is no basis for the State’s assertion that the general principle of proportionality does not apply to felony prison sentences. The constitutional language itself suggests no exception for imprisonment. We have recognized that the Eighth Amendment imposes “parallel limitations” on bail, fines, and other punishments, ... and the test is explicit that bail and fines may not be excessive. It would be anomalous indeed if the lesser punishment of a fine and the greater punishment of death were both subject to proportionality analysis, but the intermediate punishment of imprisonment were not. There is also no historical support for such an exception. The common-law principle incorporated into the Eighth Amendment clearly applied to prison terms.... And our prior cases have recognized explicitly that prison sentences are subject to proportionality analysis ... (“Confinement in a prison ... is a form of punishment subject to scrutiny under Eighth Amendment standards”).

In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.

Id. 103 S.Ct. at 3009.

The overriding principle is that no sentence is per se constitutional. Id. We hold that felony sentences are subject to Eighth Amendment proportionality review. To the extent that Williamson, supra, and Dillon, supra indicate we review felony sentences only when life without parole is ordered, they are modified. Id. The question now before us is how extensive that review should be. We look to how other courts have approached sentence review since the Helm decision.

In United States v. Collins Spencer Catch The Bear, 727 F.2d 759 (8th Cir.1984), the Eighth Circuit Court of Appeals upheld a five year sentence for escape even though it considered it a “long one in the circumstances of [the] case.” Id. at 761. The Court could not say the sentence was an “abuse of discretion,” “greatly excessive,” or “manifestly disproportionate to the crime or criminal.” Id. A sentence within the statutory maximum generally is not disturbed. See, United States v. Roth, 736 F.2d 1222 (8th Cir.1984) (upheld fifteen year concurrent sentences on each count of making an extortionate extension of credit, and using extortionate means to collect or attempt to collect an extension of credit).

In United States v. Hollis, 718 F.2d 277 (8th Cir.1983) cert. denied, — U.S. —, 104 S.Ct. 1309, 79 L.Ed.2d 707 (1984), the Eighth Circuit upheld a twenty five year sentence for five counts of interstate transportation of forged securities. The Court held, “a sentence within the statutory maximum which is ‘greatly excessive under traditional concepts of justice’ or ‘manifestly disproportionate to the crime or criminal’ is reviewable by the federal court.... This court cannot, however, substitute its judgment for the discretion committed solely to the district court.” Id. at 279. See also, United States v. McMahan, 744 F.2d 647 (8th Cir.1984). The Eighth Circuit upheld the twenty five year sentence in part because the district court found that Hollis had “committed crimes at almost every opportunity when not incarcerated,” and that he could not be rehabilitated. Hollis, supra.

In Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983) cert. denied, — U.S. —, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984), the Fifth Circuit Court of Appeals upheld a life sentence with parole eligibility under the Texas habitual offender statute and discussed Helm and Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Id. at 179-180. “The Solem decision does set forth 'objective criteria’ to be used in ‘a court’s proportionality analysis under the Eighth Amendment.’ ... Nevertheless, the [United States Supreme] Court expressly did not require extensive analysis with regard to every petition for habeas corpus relief raising that issue.” Id. at 180. The Fifth Circuit Court of Appeals explained that Rummel did not foreclose proportionality review of sentences for a term of years and thus did not violate Helm; rather, Rummel is now controlling only in a similar fact situation. Id. The appeals court indicated that a primary consideration was whether parole eligibility was granted in a sentence within a reasonable time. Id. See also, United States v. Stead, 740 F.2d 657 (8th Cir.1984) (distinguished Helm on grounds that appellant was eligible for parole).

Based upon our review of Helm, supra, Rummel, supra, and the cases above, we decline to subject every felony sentence to exhaustive review. As the United States Supreme Court stated in Helm:

we 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.

Helm, supra, 103 S.Ct. at 3009, footnote 16. We recognize, as did the United States Supreme Court, that “successful challenges to the proportionality of particular sentences will be exceedingly rare.” Helm, supra 103 S.Ct. at 3009, quoting from Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 389 (1980).

We will first determine whether a sentence “shocks the conscience; ” State v. Diede, 319 N.W.2d 818 (S.D.1982), State v. Holtry, 321 N.W.2d 530 (S.D.1982); or is so disproportionate to the crime so as to activate the Eighth Amendment “within and without the jurisdiction” proportionality tests enunciated in Helm, supra. If a sentence is manifestly disproportionate to the crime, or in the case of life sentences without parole, then the other two factors listed in Helm become more focused and require extensive review. 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. Helm, supra 103 S.Ct. at 1139-1140.

This is similar to our past method of review. In both Williamson and Dillon, we mentioned the possibility of parole, see, Williamson, supra, at 18, and the fact that consecutive five year sentences were within statutory limits and did not “shock the conscience,” Dillon, supra at 56. See also, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); State v. Diede, supra; State v. Holtry, supra. But see, Rhoden v. Israel, 574 F.Supp. 61 (E.D.Wisc.1983) (applied Helm three prong test to review seventeen year sentence for armed robbery-sentence upheld).

In this case then, we decide the threshold question whether the eighty year concurrent sentences “shock the conscience” or are disproportionate to the crime. Relevant here are the nature of Weiker’s current convictions for drug distribution, and the fact that his prior offenses were relatively minor. See, Weiker I, supra. We also acknowledge that successful challenges to sentences for a term of years are exceedingly rare, Rummel, supra; that great deference is given to the discretion of the sentencing court, Id.;¹ and that this sentence is within the statutory maximum, SDCL 22-7-8, 22-6-1(2).

In view of these factors, we can not say that the trial court abused its discretion or that Weiker’s sentence shocks the conscience of this Court.

We next look at Weiker’s sentence to determine if it is disproportionate to sentences imposed on other criminals in the same jurisdiction. At the resentencing hearing, the trial court took evidence regarding proportionality of the sentence within the jurisdiction, Pennington County. Weiker contends that based upon evidence that his sentence is seventy years longer than the next longest sentence in the jurisdiction (Weiker’s exhibit), and fifty years longer than the average sentence served by South Dakota habitual offenders (State’s exhibit), his three eighty year concurrent sentences are disproportionate. In Catch The Bear however, the Eighth Circuit upheld a five year sentence for an escape conviction even though that sentence was “three times greater than the national average.” Catch The Bear, supra at 761.

The record indicates there are no hard and fast statistics on whether his sentence is disproportionate to that given for similar offenses in other jurisdictions. Weiker argues that because his sentence is the equivalent of a life sentence, he could have received a greater penalty in only two other states — Nevada and Wyoming. We have addressed Weiker’s proposition that his sentence is the equivalent of the previously imposed life without parole sentence, and concluded that it is not the same. Further, we are unable to draw any conclusions as to other jurisdictions for want of facts in the record.

Weiker urges us to appoint a new judge if the Court remands his case for resen-tencing. Weiker contends the sentencing judge had his decision made prior to the resentencing hearing in which evidence was submitted on his behalf. He argues that the sentencing memorandum prepared prior to the hearing evidences a pre-deter-mination that he could not be rehabilitated. The State counters that the sentencing memorandum leaves open any specific term of sentence; thus, the trial court could have changed his mind if Weiker’s evidence showed he could be rehabilitated.

Weiker argues that because the sentencing memorandum was prepared and the sentencing court took only five minutes to decide the length of the sentence after the hearing concluded, the hearing was not meaningful, since it came after the court made its decision. Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981), quoting from Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Weiker’s argument in this regard goes to whether he received due process at the February re-sentencing hearing and whether that alleged lack of due process is itself grounds for reversal and remand.

In our view it must be remembered that the trial court was already quite familiar with the facts and circumstances. There is no time factor mandated for the judge to draw a decision. The memorandum indicates pre-hearing preparation. The judge had done his homework in reviewing. Weiker’s second legal argument asserts that if this Court, for whatever reason, remands his case for resentencing, the case should be reassigned to a different judge. He contends the leading case this Court should follow is United States v. Robin, 553 F.2d 8 (2nd Cir.1977). Since we do not remand for re-sentencing, we need not address that issue.

We affirm.

WOLLMAN and MORGAN, JJ., and WUEST, Circuit Judge, Acting as a Supreme Court Justice, concur. HENDERSON, J., dissents.

1 . Of course, we also consider whether the trial court abused that discretion — "for example, [if the trial court] failed to read the presentence report, or listen to what the defendant or his lawyer had to say, or in short attend responsibly to the performance of his awesome duty of fixing the punishment that, within the statutory limits, will fit the crime and the criminal." United States v. Ely, 719 F.2d 902, 906 (7th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1313, 79 L.Ed.2d 710 (1984). Weiker touches on this in his request that a new judge be appointed on any resentencing. The 'judge prepared a sentencing memorandum prior to the hearing which justified a lengthy sentence, even though it did not set out the number of years, and which was negative about Weiker’s capacity for rehabilitation.