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State v. Guthmiller7/16/2003
sifications if the defendant had been convicted of three or more felonies none of which were crimes of violence. SDCL 22-7-8.1.
[ .] Since the 1976 revision, the legislature has amended the criminal code requiring specific mandatory minimum sentences for certain crimes. For example, in the 1980's the legislature added mandatory sentences for certain crimes involving drug manufacturing and distributing with specific enhancements for repeat drug offenders. SDCL Ch 42. In 1992, the legislature mandated a minimum sentence for rape (Class 1 felony) and sexual contact with a child under 10. SDCL 22-22-1.2. The law additionally allowed the sentencing judge to depart from the mandatory sentence if mitigating circumstances allowed. SDCL 22-22-1.4.
[ .] Under the current scheme, the penalty for a first conviction for pedophilia is twenty-five years to life in prison. SDCL 22-22-30.1. The penalty for a second conviction for pedophilia is life in prison. Additionally, if the defendant has been convicted of prior felonies within the last 15 years, the state's attorney has the discretion to charge the defendant as a habitual offender. SDCL 22-7-7, 22-7-9. If the defendant is found to be a habitual offender, the penalty is enhanced to life in prison without parole. The statutory scheme does not specify a downward departure if mitigating circumstances exist.
[ .] Nothing in the language of the statutes themselves or in the criminal statutes taken as a whole leads this Court to conclude that the legislature intended that the mandatory minimum sentence enhancement established in SDCL 22-22-30.1 preempts sentencing enhancement as a habitual criminal in SDCL 22-7-7. Each statute has a distinctive purpose. The habitual offender statute is designed to protect society from individuals who continue to commit felonies. The pedophilia statute is designed to protect children in our society from predators who rape children. The sentencing scheme is a policy decision within the purview of the legislature and will not be disturbed by this Court. Cf. State v. Stetter, 513 NW2d 87 (SD 1994).
[ .] Next, we turn to Guthmiller's claim that his life sentence without parole is cruel and unusual under the Federal and State Constitutions. Under a cruel and unusual analysis a life sentence would need to be grossly disproportionate. State v. Pugh, 2002 SD 16, , 640 NW2d 79, 85. " assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court." Id. (citing State v. Bonner, 1998 SD 30, , 577 NW2d 575, 580). If the sentence does not appear grossly disproportionate, no further review is necessary. State v. Hinger, 1999 SD 91, , 600 NW2d 542, 547. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. Id. We also consider "the gravity of the offense and the harshness of the penalty;" Solem v. Helm, 463 US 277, 292 103 SCt 3001, 3011, 77 LEd2d 637 (1983); and other relevant factors, such as the effect this type of offense has on society. Hinger, 1999 SD 91, , 600 NW2d at 547.
[ .] This Court in Hinger found a life sentence grossly disproportionate. Hinger pleaded guilty to first degree rape involving sexual contact with his 7-year-old nephew by penile and digital penetration. Id. at . An analysis of the statutory scheme of the child-rape statutes led to the conclusion that the legislature intended the more severe the crime, the harsher the penalty imposed. Id. at . The substantial increase in the maximum penalty for the first degree rape
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