State v. Webb, No. 26983.

• Court: Supreme Court of South Dakota
• Writing for the Court: WILBUR, Justice.
• Citation: 856 N.W.2d 171
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Frankie Lee WEBB, Defendant and Appellant.
• Decision Date: 05 November 2014
• Docket Number: No. 26983.

856 N.W.2d 171

STATE of South Dakota, Plaintiff and Appellee
v.
Frankie Lee WEBB, Defendant and Appellant.

No. 26983.

Supreme Court of South Dakota.

Considered on Briefs Oct. 6, 2014.
Decided Nov. 5, 2014.

856 N.W.2d 172

Marty J. Jackley, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Molly C. Quinn, Office of the Minnehaha County, Public Defender, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

Opinion

WILBUR, Justice.

¶ 1.] Frankie Webb pleaded guilty to possession of a controlled drug or substance. The circuit court sentenced Webb to five years in prison with two years suspended. One of the conditions of the suspended sentence was that Webb pay a $10,000 fine. Webb appeals and argues that the $10,000 fine was grossly disproportionate to the offense in violation of the Eighth Amendment. We affirm.

Background

[¶ 2.] On September 30, 2013, law enforcement received notification that an individual by the name of Frankie Webb was selling illegal drugs near The Banquet¹ in Sioux Falls. Law enforcement located Webb at The Banquet. Webb consented to a search of his person, his car, and his cell phone. The police found a pill bottle with Webb's name on it that contained three bags of marijuana, seven hydrocodone pills, and ten alprazolam pills. A search of Webb's cell phone revealed that he was engaged in buying and selling drugs. Law enforcement subsequently arrested Webb.

[¶ 3.] Webb was on parole at the time of his arrest. He indicated that he was currently living at the Union Gospel Mission—a homeless shelter—and had recently been approved for Social Security disability benefits. Webb further indicated that he owned a recently-purchased vehicle. The record, however, is silent as to the value of the vehicle and whether he owned any other assets.

[¶ 4.] The State filed an indictment charging Webb with two counts of possession of a controlled drug or substance, possession of two ounces or less of marijuana, and possession of or use of drug paraphernalia. SDCL 22–42–5 ; SDCL 22–42–6 ; SDCL 22–42A–3. Webb had three prior felony convictions at the time of his arrest—possession of a controlled substance in 2006, aggravated burglary in 2002, and distribution of crack cocaine in 1999. Because of these prior convictions, the State filed a Part II habitual offender information.

[¶ 5.] Webb entered into a plea agreement whereby he agreed to plead guilty to possession of a controlled drug or substance—to wit, hydrocodone—which is classified as a Schedule II controlled substance. A violation of this offense is a Class 5 felony and carries a maximum sentence of five years imprisonment and a fine of $10,000. SDCL 22–42–5 ; SDCL 22–6–1. The State agreed to cap the sentence at three years of imprisonment. The State further agreed to dismiss the other three charges and the Part II information.

[¶ 6.] The circuit court conducted a plea and sentencing hearing. The court noted that although the plea agreement contemplated three years imprisonment, the court had discretion to sentence Webb to five years imprisonment and then suspend two years; in addition, the court could impose the maximum fine of $10,000. The court considered Webb's criminal history and commented that, as an habitual offender, Webb could have potentially faced up to life imprisonment or up to

[856 N.W.2d 173

fifteen years imprisonment.² The court then stated:

I find the conduct as described by the reporting party to be pretty outrageous, and if all of that were true then the [S]tate would have charged you with distribution, and I would have sentenced you to the maximum possible sentence that I could impose. It is not acceptable to the court under any circumstances that someone distribute controlled substances in our community. And if you do, then you are going to look at a pretty substantial sentence. As it is, I have you here only on a possession charge, which is obviously less serious.... [E]ven though the [S]tate has dismissed the Part Two Information, I am not going to ignore those prior felony convictions. I am still entitled to take those into consideration.

The court sentenced Webb to five years of imprisonment with two years suspended and fined him $10,000. The two suspended years of imprisonment were conditioned on Webb paying the $10,000 fine. The court did not make a finding and the record is silent as to whether Webb had the ability to pay the fine. Webb appeals and raises the following issue for our review:

¶ 7.] Whether the $10,000 fine for possession of a controlled drug or substance is grossly disproportionate in violation of the Eighth Amendment prohibition on excessive fines.

Standard of Review

[¶ 8.] An alleged infringement of a constitutional right is an issue of law to be reviewed under the de novo standard. State v. One 1995 Silver Jeep Grand Cherokee, 2006 S.D. 29, ¶ 3, 712 N.W.2d 646, 649 (citing State v. Krahwinkel, 2002 S.D. 160, ¶ 13, 656 N.W.2d 451, 458 ).

Under this standard, “no deference is given to the circuit court's determination, and the decision is fully reviewable by this Court.” Id. (citing Thieman v. Bohman, 2002 S.D. 52, ¶ 10, 645 N.W.2d 260, 262 ).

Analysis

[¶ 9.] Webb argues that the $10,000 fine imposed by the circuit court constituted an “excessive fine” in violation of the United States and South Dakota Constitutions because the fine was grossly disproportionate to the offense committed. Webb further argues that the circuit court inappropriately failed to consider his ability to pay the fine. As a result, Webb requests that this Court remand the case for a new sentencing hearing.

[856 N.W.2d 174

[¶ 10.] Both the Eighth Amendment to the United States Constitution and Article VI, § 23, of the South Dakota Constitution prohibit the imposition of “excessive fines.” The purpose of the Excessive Fines Clause is to limit “the government's power to extract payments, whether in cash or in kind, as punishment for some offense.” Austin v. United States, 509 U.S. 602, 609–10, 113 S.Ct. 2801, 2805, 125 L.Ed.2d 488 (1993) (emphasis omitted) (internal quotation marks omitted). The Excessive Fines Clause “protects against fines that are grossly disproportionate to the offense.” Krahwinkel, 2002 S.D. 160, ¶ 38, 656 N.W.2d at 464. A criminal fine is not grossly disproportionate if it bears “some relationship to the gravity of the offense that it is designed to punish.” Id. The gross disproportionality standard is only applicable in the “exceedingly rare and extreme case.” Lockyer v....