State v. Weiker

• Decision Date: 22 May 1985
• Docket Number: No. 14515,14515
• Citation: 366 N.W.2d 823
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Kenneth R. WEIKER, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 823

366 N.W.2d 823

STATE of South Dakota, Plaintiff and Appellee, v. Kenneth R. WEIKER, Defendant and Appellant.

No. 14515.

Supreme Court of South Dakota.

Argued Nov. 28, 1984.

Decided April 17, 1985.

Rehearing Denied May 22, 1985.

Grant Gormely, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

James D. Leach, Rapid City, for defendant and appellant.

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 resentencing 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 case. 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) ...