State v. Deleon, #29510

CourtSupreme Court of South Dakota
Writing for the CourtSALTER, Justice
Parties STATE of South Dakota, Plaintiff and Appellee, v. Cruz DELEON, Defendant and Appellant.
Docket Number#29510
Decision Date06 April 2022

973 N.W.2d 241

STATE of South Dakota, Plaintiff and Appellee,
v.
Cruz DELEON, Defendant and Appellant.

#29510

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS FEBRUARY 14, 2022
OPINION FILED April 6, 2022


ILISJA DUFFY of Duffy Law Firm, Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

JASON R. RAVNSBORG, Attorney General, ERIN E. HANDKE, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

SALTER, Justice

¶1.] Cruz Deleon appeals his sentence after pleading guilty to attempted first-degree murder and commission of a felony with a firearm. Deleon argues that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. Though not expressly stated, it appears that Deleon also challenges the exercise of the circuit court's sentencing discretion. After reviewing both theories, we affirm.

Facts and Procedural History

[¶2.] On July 31, 2017, Pennington County Sheriff's Deputy Jakob Whittle responded to a call seeking assistance with the execution of an arrest warrant for Cassandra Quiver at a Box Elder residence. Deputy Whittle arrived at the address before his Box Elder police officer counterpart and anticipated waiting in his patrol car until the other officer arrived. However, he observed a female matching Quiver's description1 walking around the home toward what he believed to be a parked vehicle, and he started out after her on foot in an effort to prevent her from leaving.

[¶3.] Parked in the driveway of the home associated with Quiver, Deputy Whittle noticed a minivan with a man, later identified as Cruz Deleon, in the driver's seat. The passenger's seat was occupied by a child. Deputy Whittle approached the vehicle and asked Deleon if the residence was "701." Before Deleon could answer, Deputy Whittle saw the numbers listed on the residence, confirming he was at the right address. He then asked Deleon if Quiver was home. Deleon responded that he did not know. Deputy Whittle observed that Deleon appeared nervous throughout the interaction and asked him for some identification. Deleon was unable to produce any identification and, after hesitating, told Deputy Whittle that his name was "Brad Husman."

[¶4.] Suspecting Deleon had provided a false name, Deputy Whittle asked him to step out of the van.2 After several requests,

[973 N.W.2d 244

Deleon opened the door and began to step out with his left foot. Deputy Whittle stepped back to give him some space. However, Deleon abruptly reversed course. He retreated back into the van, closed the door, and started the engine. Deputy Whittle attempted to open the door and pull Deleon out of the van, but Deleon swatted Deputy Whittle's hands away. Deleon then reached below his seat and retrieved a .38-caliber revolver and fired at Deputy Whittle who quickly drew his own gun and returned fire.

¶5.] In all, four shots were fired. Two shots fired by Deleon missed Deputy Whittle, and one of the two rounds fired by the deputy struck Deleon in the right forearm. Fortunately, others in the area, including children, were unharmed.3 Deputy Whittle attended to the wounded Deleon until the arrival of emergency medical personnel who transported Deleon to Rapid City Regional Hospital, where doctors surgically repaired a broken bone in his arm by inserting a metal rod. When Deputy Whittle secured Deleon's revolver, he found it contained three live rounds in addition to the two spent cartridges.

[¶6.] On September 6, 2017, a grand jury indicted Deleon on the following six counts: attempted first-degree murder, two counts of aggravated assault on a law enforcement officer, commission of a felony with a firearm, possession of a controlled substance, and false impersonation. Deleon pled not guilty, and bond was set at $1,000,000. He remained in custody during the pendency of the case, which lasted over three years.4

[¶7.] On November 3, 2020, Deleon and the State entered into a plea agreement under which Deleon agreed to plead guilty to attempted first-degree murder and commission of a felony with a firearm.5 Each charge is punishable by up to twenty-five years in prison. The parties’ plea agreement did not include a recommended sentence or sentencing range and did not limit the exercise of the circuit court's discretion. The charge of commission of a felony with a firearm carried a five-year mandatory minimum prison term along with a requirement that any sentence "imposed ... shall be consecutive to any other sentences imposed for a violation of the principal felony." SDCL 22-14-12.6 The circuit court noted the parties’ written factual basis statement, accepted the plea, and ordered a presentence investigation report (PSI).

[¶8.] On December 1, 2020, the circuit court conducted a sentencing hearing at which both Deputy Whittle and his wife provided victim impact statements. Deputy Whittle stated that he has had night terrors since the day of the incident, dreaming

[973 N.W.2d 245

that he is shot or that he unintentionally shoots an innocent child. He discussed the toll the incident has taken on both his mental health as well as his wife's. He stated the job he once loved has become less enjoyable.7 Deputy Whittle's wife also discussed the anxiety she now experiences when her husband does not answer her calls or text messages. She becomes easily paranoid and often fears the worst. Both Deputy Whittle and his wife asked the court to impose the maximum sentence in order to prevent Deleon from harming anyone else.

¶9.] During its sentencing argument, the State called the court's attention to portions of the PSI that it believed strongly suggested Deleon had not fully accepted responsibility for his criminal conduct. For instance, when the PSI author asked Deleon how he believed the victim felt, Deleon responded that he was the real victim because of lingering discomfort in his arm as a result of the gunshot wound. Deleon eventually conceded that he would be upset if someone had pointed a gun at him.

[¶10.] The PSI also detailed Deleon's extensive record of institutional misconduct while he was confined in the Pennington County Jail. Deleon's sixty-two separate disciplinary incidents led to additional criminal charges and included "threatening staff and other inmates; damaging jail property; spitting on inmates; ... disruptive behaviors and fail[ure] to follow staff directives; [and] disrespectful comments to staff and inmates[.]"

[¶11.] Deleon had not previously been convicted of a felony, but he had a pending felony case at the time of the incident with Deputy Whittle and had a history of contact with law enforcement. The PSI also indicated that Deleon had a poor employment record and a long history of controlled substance abuse, dating back to his childhood. On the day of the incident with Deputy Whittle, Deleon claimed he was high on methamphetamine and bath salts and had been for nearly two weeks.

[¶12.] The State asked the circuit court to impose the maximum penalty of twenty-five years on the charge of attempted first-degree murder and a sentence of ten years or more on the charge of commission of a felony with a firearm. In the State's view, Deleon's unprovoked attack on Deputy Whittle was further aggravated by the fact that it potentially put the safety of nearby children at risk.

[¶13.] Deleon argued for a sentence that was less than the statutory maximum. Deleon's attorney argued the jail write-ups were due to the difficult conditions Deleon faced while confined. Counsel contended Deputy Whittle caught Deleon off guard at a time when he was "spun out" on drugs. Deleon did not intend to kill Deputy Whittle, defense counsel claimed, and had made a terrible decision because his unrestrained drug use had compromised his physical and mental health. Deleon was a father of two children with strong family support, his attorney argued, and had accepted responsibility by pleading guilty. For his part, Deleon declined the opportunity to address the court or Deputy Whittle and his wife.

[¶14.] In explaining its sentence, the circuit court indicated its familiarity with the record and rejected Deleon's effort to minimize the extent of his institutional misconduct related in the PSI. The circuit court specifically commented on Deleon's lack of work history and unflattering lifestyle, which it characterized as, "Sell drugs. Hang out. Let your family support you."...

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