State v. Bonner

• Decision Date: 11 September 1997
• Docket Number: 19961,Nos. 19960,s. 19960
• Citation: 1998 SD 30,577 N.W.2d 575
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Jonathan James BONNER, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 575

577 N.W.2d 575

1998 SD 30

STATE of South Dakota, Plaintiff and Appellee, v. Jonathan James BONNER, Defendant and Appellant.

Nos. 19960, 19961.

Supreme Court of South Dakota.

Considered on Briefs Sept. 11, 1997.

Decided April 1, 1998.

Mark Barnett, Attorney General, Paul Cremer, Assistant Attorney General, Pierre, for plaintiff and appellee.

Debra D. Watson of Watson Law Office, Rapid City, for defendant and appellant.

KONENKAMP, Justice.

¶1 We are called upon to examine whether imposing the longest possible penitentiary sentence for burglary upon a developmentally disabled offender, whose accomplices received probation, constitutes cruel and unusual punishment. We conclude that under the particular circumstances of this case, the burglary sentence was grossly disproportionate to the offense committed and was thus cruel and unusual under the Eighth Amendment. We reverse and remand for resentencing on the burglary offense. On the other hand, we affirm the sentence for statutory rape.

FACTS

¶2 Jonathan James Bonner, age nineteen, pled guilty to one count of third degree rape, SDCL 22-22-1(5), and one count of second degree burglary, SDCL 22-32-3, and was sentenced to fifteen years on each count with the terms to be served consecutively. Thus, his total sentence was thirty years in the penitentiary. He had no prior felony record and only a few lesser misdemeanors. His first parole eligibility date is in the year 2013, when he is thirty-five.

¶3 While Bonner obtained the maximum possible incarceration for his part in the burglary, his two codefendants received quite different sentences before another judge. For the same crime, second degree burglary, Anthony Sorensen got a suspended sentence, a $750 fine, restitution, 160 days in jail with work release, and three years probation. The other codefendant, Tad Patridge, also received a suspended sentence, a $750 fine, restitution, 180 days in jail with work release and five years probation. Nothing in the record explains why these sentences were so disparate.

¶4 To understand the unfortunate circumstances which brought this case to court it is necessary to briefly relate Bonner's childhood and mental health history. Bonner was abandoned by his alcoholic mother at age one, and was raised by his father. He was diagnosed with secondary symptoms of fetal alcohol syndrome (FAS) and primary symptoms of fetal alcohol effect (FAE). ¹ People with FAE

lack bonding and social skills, frequently use poor judgment, lack a conscious awareness of maintaining peer relationships, tend to relate better to adults, lack self-esteem, school performance is low, frequently seek attention inappropriately, lack in attention span development, often act impulsively, tend to be followers, tend to be weak in verbal and auditory learning, and tend to get into social and legal problems due to these deficits.

According to one psychologist who examined him, Bonner "struggles and suffers with all of the characteristics." Beginning at age ten Bonner began receiving psychological counseling with a regimen of prescribed medication to control his behavior. His father was highly skilled in working with him, but found it difficult to stop or modify some of his negative behaviors. In school, he attended mostly special education classes and finally completed the ninth grade at age seventeen, when he quit. He has had no significant work experience since that time.

¶5 As a juvenile, Bonner was in recurrent trouble with law enforcement in Wyoming who described his violations, though petty, as "atrocious." The authorities were happy to see him move out of Wyoming and dismissed pending matters against him. In South Dakota, Bonner's troublesome behaviors continued. While still a juvenile, he was placed on formal indefinite probation twice for first degree petty theft and disturbance of school. He admitted a delinquency petition charging him with threatening or harassing telephone calls. Yet until the incidents involved in this case, Bonner's entire adult record consisted of first degree petty theft, lighting fireworks within city limits, and no driver's license.

¶6 In the summer of 1996, Bonner met a fourteen-year-old girl in Rapid City who told him she was about to turn seventeen. When she returned to her home in Huron, she called Bonner every day for a week urging him to come to Huron where they would be boyfriend and girlfriend and she would find him a place to stay and a job. Enraptured, Bonner hastily borrowed money from a friend for a bus ticket. At the terminal, his father begged him not to go--he even tried to physically prevent him from leaving--but local law enforcement officers intervened, allowing Bonner to board the bus because he was an adult.

¶7 In Huron, Bonner stopped taking his medication and spent the next weeks drinking and partying. During the weekend of July 19-20, 1996, the party moved to the Brodkorb home, where a friend of one of Bonner's companions was house-sitting when the occupants were away on their honeymoon. While there, Bonner broke into a locked box hidden behind the bed in the master bedroom and took two Black Hills gold necklaces, a gold watch, and several $2 bills. The items were locked away because they were gifts from family for the Brodkorb children. Bonner also took a number of music CDs. Later, after everyone had left, Bonner and his two accomplices returned to the house and took more CDs. He divided the money he had taken earlier with the other two. During the investigation Bonner at first denied involvement and placed the blame on a friend, but then gave a full statement admitting his guilt.

¶8 Bonner was also investigated in Huron for sexual acts with four girls: J.S., age nine; H.B., thirteen; B.J.P., fourteen; and B.R., sixteen. He was ultimately charged with four counts of rape and two counts of sexual contact with a minor under the age of sixteen. B.J.P., the fourteen-year-old who invited Bonner to Huron, in a written statement to police, said she and Bonner had voluntary sexual intercourse on two occasions. His plea of guilty to third degree rape related to his acts with this girl. All other rape and sexual contact charges were dismissed as part of the plea bargain. No details about the incidents with the other girls can be found in the record. The only facts supporting the rape charge against H.B., the thirteen-year-old, were that he kissed and gave her "hickeys," but she denied any type of "sexual" activity with him.

¶9 During the legal proceedings, Bonner, at the request of his attorney, underwent a psychiatric examination. ² Although he was diagnosed with FAS/FAE and mild mental retardation, the psychiatrist concluded Bonner was competent to stand trial.

ANALYSIS AND DECISION

¶10 Upon Bonner's plea of guilty to third degree rape and second degree burglary he was sentenced to two consecutive fifteen year penitentiary terms. Each sentence constitutes the maximum penalty for each offense. SDCL 22-32-3, 22-22-1(5), 22-6-1, 22-6-6.1. We take an extremely deferential review of sentencing--generally, a sentence within the statutory maximum will not disturbed on appeal. State v. Kaiser, 526 N.W.2d 722 (S.D.1995). Furthermore, consecutive sentences for two separate acts of statutory rape have been held to be constitutionally permissible. State v. Phipps, 318 N.W.2d 128, 132 (S.D.1982).

¶11 Sentencing decisions are perhaps the most difficult responsibility for trial judges, encompassing circumstances both obvious and elusive. It is not for us to engage in appellate resentencing, or to "micromanage the administration of criminal justice" in South Dakota, even when individual trial judges impose widely different punishments for the same offense. See State v. DePiano, 187 Ariz. 27, 926 P.2d 494, 498 (1996) cert. denied --- U.S. ----, 117 S.Ct. 782, 136 L.Ed.2d 726 (1997). One of the reasons why Congress enacted sentencing guidelines for federal courts was to reduce the disparity between what different judges consider appropriate punishment. That was a legislative decision. South Dakota has no pervasive sentencing guidelines; any sentence within the minimum and maximum limits set by the Legislature will ordinarily be left undisturbed. In many instances, this allows a judge a range of options to tailor a punishment to fit the crime and criminal.

¶12 Yet, if the words "Equal Justice Under Law" call for more than just a lofty inscription, then our vigilance ought to be aroused when extremely divergent sentences are imposed for the same offense. Gross disparity in punishment erodes public confidence in our institutions of justice. See People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983). ³ Of course, equal treatment in sentencing does not mean senseless uniformity, but when a sentence is so out of proportion to the offense and so different from what others received for the same conduct, then decency and conscience urge us to examine it more closely.

¶13 On many occasions, our Court has partly employed a "shock the conscience" query to determine if a sentence violates the Eighth Amendment prohibition against cruel and unusual punishment. The test was originally adopted for application only with our own state constitution, not the Eighth Amendment. State v. Becker, 3 S.D. 29, 40, 51 N.W. 1018, 1022 (1892). However, we declared this test to be roughly consistent with the gross disproportionality analysis used by the United States Supreme Court. State v. Gehrke, 491 N.W.2d 421, 423 (S.D.1992). See also State v. Brown, 121 Idaho 385, 825 P.2d 482, 491 (1992)(shock the conscience test "essentially equivalent" to "grossly disproportionate" test). Today, we declare this test inapplicable to the federal constitution. ⁴

¶14 The Eighth Amendment reflects our nation's belief in the dignity of every human being and the view that legislative and judicial power to punish criminal conduct, though given high deference, is not absolute. Coker v. Georgia, 433...