State v. Ferguson, 18244

• Decision Date: 07 October 1993
• Docket Number: No. 18244,18244
• Citation: 519 N.W.2d 50
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Toby Wade FERGUSON, Defendant and Appellant. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 50

519 N.W.2d 50

STATE of South Dakota, Plaintiff and Appellee, v. Toby Wade FERGUSON, Defendant and Appellant.

No. 18244.

Supreme Court of South Dakota.

Considered on Briefs on Oct. 7, 1993.

Decided June 29, 1994.

Mark Barnett, Atty. Gen., Sherri Sundem Wald, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Robert Van Norman, Rapid City, for defendant and appellant.

AMUNDSON, Justice.

Pursuant to a plea agreement, Toby Wade Ferguson (Ferguson) pled guilty to one count of rape, SDCL 22-22-1(1) and seven counts of sexual contact with a minor, (SDCL 22-22-7). Twenty-seven (27) counts of rape and thirty-one (31) counts of sexual contact with a minor were dismissed. Ferguson was sentenced to 180 years in the penitentiary on the rape conviction; 90 years were conditionally suspended. He was sentenced to fifteen years on each of the sexual contact convictions. The sentences were ordered to be served concurrently.

On appeal, Ferguson contends his sentence is excessive and violates the Eighth Amendment to the United States Constitution and Article VI, § 23 of the South Dakota Constitution. We affirm.

FACTS

Ferguson was born on January 15, 1971. As a child, he was sexually abused. Ferguson never received treatment for this abuse. Throughout his school years, Ferguson was a good student who was active in extracurricular activities and popular with his peers. He has no criminal record.

In 1989 Ferguson began attending Black Hills State University. He was a business administration major who, by the spring of 1992, completed 79 credit hours with a 2.42 GPA. While at BHSU, he also worked as a shift manager at Wendy's and at a roller skating rink. He was also involved in the karate club where he was voted the most inspirational student.

Through Ferguson's involvement as an instructor in the karate club and a participant in the Kinship Program (which pairs adult volunteers with children in a big brother/sister program) he became acquainted with young boys in the community. Ferguson developed relationships with eight boys ranging in age from eight to thirteen, and second through seventh grades. Ferguson befriended the boys and roller skated or played video games with them. Ferguson also gained the trust of the parent(s) who initially believed that he was a good role model and allowed their children to spend time with him. Ultimately the boys went to Ferguson's home and were victimized by Ferguson's acts of anal intercourse, oral sex, and fondling.

In 1992, as a result of relationships that he developed with these boys, Ferguson was ultimately charged with twenty-six counts of rape in violation of SDCL 22-22-1(1), two counts of rape in violation of SDCL 22-22-1(5), and thirty-eight counts of sexual contact with a minor.

Pursuant to a plea agreement Ferguson pled guilty to one count of rape and seven counts of sexual contact with a minor. The state agreed to dismiss the other fifty-eight pending counts of rape and sexual contact. It was agreed that Ferguson would not receive a sentence of life without parole on the rape count and that the sentences would run concurrently. The state's recommendation of a 200 year sentence on the rape charge did not form a basis for the plea agreement nor was it a sentence cap. No bargain was made as to a sentence cap or a term of years other than no life imprisonment without parole eligibility. ^* *] Ferguson explained that he accepted this agreement to avoid the greater risk he saw if he went to trial on the enormous number of charges facing him.

An extensive presentence report was prepared detailing Ferguson's dysfunctional family life, his success as a student and worker, and his lack of a criminal career. The psychologist that interviewed him concluded that he needed ongoing retraining and psychotherapy/counseling. Since there were few alternatives in South Dakota for people with the "problem of the complexity of [Ferguson]" out-of-state placement was urged. Because Ferguson was not in total denial as to what he had done, the M.S.W. that evaluated him found Ferguson's "prognosis with appropriate treatment is good" and recommended out-of-state treatment. The STOP director at the penitentiary, however, noted Ferguson's high risk for reoffending due to the number of victims, Ferguson's young age, his threats of violence toward his victims, and the fact that all of the victims were pre-pubescent males. The court services officer noted that a pedophile like Ferguson who prefers prepubescent boys has a recidivism rate doubled that of other pedophiles.

The presentence report also included victim impact interviews and interviews with the victims' parents detailing the lasting impact that Ferguson's sexual acts had on the victims and their families.

When sentencing Ferguson the trial court explained its reasoning which we set forth in full:

THE COURT: Mr. Ferguson, based upon everything I have read in this case, I have to say this is the grossest case of sexual abuse against children that I have seen. The damage done to these kids cannot readily be determined and it certainly cannot be undone.

When the State first presented their recommendation which was something like a 200 year sentence with 110 years suspended under various conditions, a lot of which conditions I don't have a lot of control over, I thought it didn't sound like much of a plea bargain and it still isn't. There is no bargain here for anybody. I don't think anybody can get a bargain in a mess like this.

There is a benefit. There is a benefit to the public in that these kids did not have to go through the anguish, the grief and trauma of coming in here in front of a jury after they testified in front of the grand jury, of having to go to school and maybe having other children pointing at them and giggling to each other and other things that they probably already had gone through. There was a benefit to you. Certainly a benefit to you.

As I read that grand jury transcript, from what these kids had to say there is no doubt in my mind that if you had gone to trial, despite the best efforts of your most capable lawyer, Mr. Van Norman, I think you would have been convicted. I am sure you would have been convicted of the rape charge, the sexual contact charges. I think if I had to listen to what I read and if it would have sounded like I think it would have sounded in this courtroom, I would have felt compelled to impose a life sentence. Your plea agreement precludes a life sentence in your case. And I guess the reason I feel a need to explain is because to a reader of the newspaper or a news viewer, they read about how this 22 year old man with no prior criminal record obtained this hefty criminal sentence in this case and would have to ask themselves, "How could this be?" I guess the only response I could make is that the only people that could fully understand this sentence would be maybe yourself and anybody who read the testimony of these kids or maybe somebody that lived with one of these kids.

Based upon everything that I have seen, there is obviously nothing else I can do for these kids other than to make the system work. I don't see anything I can do other than see that there aren't anymore kids in the near future in your case.

Based upon everything that's been presented, with respect to Counts 14, 20, 21, 22, 25, 54 and 55, each of which is a Class 3 felony, I'm going to impose a prison sentence in the amount of 15 years as to each count to run concurrent.

With respect to Count 4, first degree rape, it will be the judgment and sentence of the Court that you be imprisoned in the state penitentiary for a period of 180 years.

I'm going to suspend 90 years of that sentence under the following terms and conditions.

That you receive both inpatient and outpatient sexual offender counseling either prior to parole or while on parole. That you not participate in any activities involving children. That you not possess any pornographic materials. That, of course, you obey all state and federal laws and all terms and conditions of any parole agreement.

I don't think at the present time the State of South Dakota has the type of program that you are going to require from what I have seen. Given your age, there is no doubt in my mind that eventually you will be released. I hope but I cannot guarantee that you receive the treatment that you require before you are released on parole with supervision or without supervision.

The sentence on Count 4 will run concurrent with the sentences imposed on the other counts.

I will give you credit for all the time that you have spent in jail.

You will be remanded to the custody of the sheriff to begin your sentence.

* * * * * *

THE COURT: I hope some day there is some sense to your life because this entire case is a total waste of a lot of people

Court will be in recess.

WHETHER IMPOSITION OF A 180 YEAR PENITENTIARY SENTENCE WITH 90 YEARS SUSPENDED IS UNCONSTITUTIONAL?

"On appeal, we first determine whether the sentence 'shocks the conscience' or is so disproportionate to the crime that it activates the Eighth Amendment 'within and without jurisdiction' proportionality tests." State v. Lykken, 484 N.W.2d 869, 879 (S.D.1992); State v. Basker, 468 N.W.2d 413, 418 (S.D.1991). Accord State v. Andrews, 393 N.W.2d 76, 82-83 (S.D.1986); Weiker II [State v. Weiker], 366 N.W.2d at 827 (S.D.1985). "Absent a sentence which is so excessive in duration that it shocks the conscience of the court, it is well settled in South Dakota that a sentence within statutory limits is not reviewable on appeal." Lykken, 484 N.W.2d at 879; State v. Janssen, 371 N.W.2d 353, 356 (S.D.1985) (citing cases). Stated alternatively, we will only engage in extensive review of a sentence where we have first determined the sentence was manifestly disproportionate to the crime. State v. Holloway, 482 N.W.2d 306, 310-311 (S.D.1992); Weiker II, 366 N.W.2d at 827. "If a sentence is manifestly...