#27628, #27629-a-DG

2017 S.D. 16


                                      IN THE SUPREME COURT
                                              OF THE
                                     STATE OF SOUTH DAKOTA
                                                     ****

                                                    (#27628)

STATE OF SOUTH DAKOTA,                                                 Plaintiff and Appellee,

        vs.

RYAN ALAN KRAUSE,                                                      Defendant and Appellant.


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                                                    (#27629)

STATE OF SOUTH DAKOTA,                                                 Plaintiff and Appellee,

        v.

BRIAN MICHAEL KRAUSE,                                                  Defendant and Appellant,




                                                     ****

                           APPEAL FROM THE CIRCUIT COURT OF
                              THE THIRD JUDICIAL CIRCUIT
                             GRANT COUNTY, SOUTH DAKOTA

                                                     ****

                            THE HONORABLE VINCENT A. FOLEY
                                        Judge

                                                     ****




                                                                       ARGUED OCTOBER 5, 2016
                                                                       OPINION FILED 04/12/17
MARTY JACKLEY
Attorney General

KIRSTEN E. JASPER
Assistant Attorney General
Pierre, South Dakota         Attorneys for plaintiff and
                             appellee.

CHAD C. NELSON
Milbank, South Dakota        Attorney for defendants and
                             appellants.
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GILBERTSON, Chief Justice

[¶1.]        Twin brothers Ryan Alan Krause and Brian Michael Krause appeal

the circuit court’s imposition of four consecutive, two-year sentences on each brother

for multiple convictions of unlawfully using a computer system. The Krauses first

argue their sentences violate the Eighth Amendment’s prohibition against cruel and

unusual punishment. They also argue the circuit court erred by deviating from

presumptive sentences of probation for these offenses and in failing to state the

aggravating circumstances justifying such deviation. We affirm.

                            Facts and Procedural History

[¶2.]        In 2014, the Krauses were both employed in information-technology

positions in Milbank. Brian worked for Valley Queen Cheese, and Ryan worked for

Big Stone Therapies. Valley Queen Cheese had contracted with the Xerox Company

to supply toner cartridges. Under the agreement, Xerox maintained ownership of a

cartridge even while it was in Valley Queen Cheese’s possession. In order to protect

its property interest in leased cartridges, Xerox maintains a security division that

monitors the internet for the sale of such consumables.

[¶3.]        In January 2014, Xerox’s security division discovered some of its toner

cartridges posted for sale on the internet. The cartridges had been assigned to

Valley Queen Cheese and were offered for sale by someone using the email address

Brian.Krause1@html.com. Xerox purchased the cartridges and made similar

purchases from the same seller in April 2014. Afterward, the seller offered to sell

Xerox additional property worth $5,800 for the price of only $600. After this

exchange, Xerox notified the Milbank Police Department.


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[¶4.]        The subsequent investigation uncovered a scheme in which the

Krauses stole equipment from both Valley Queen Cheese and Big Stone Therapies

and sold it on the internet. An internal investigation conducted by Valley Queen

Cheese revealed that approximately $180,000 in equipment had been stolen by the

Krauses. The stolen equipment included: toner, toner cartridges, computers,

computer monitors, printers, phones, electronic equipment, and other miscellaneous

items of inventory. The Krauses had also taken additional electronics from Big

Stone Therapies.

[¶5.]        In addition to stealing company property, the Krauses also accessed

sensitive and private information. On December 27, 2013, the Krauses accessed the

restricted database of Valley Queen Cheese’s accounting department and copied the

2013 payroll statement, which included the ID numbers, salaries, benefits, accrued

leave, bonus payments, mailing addresses, and bank-account numbers of its

employees. On July 1, 2014, Brian accessed the email account of the chief financial

officer (CFO) and copied an email containing a local businessman’s development-

loan application, which included the businessman’s taxpayer ID number, social

security number, underwriting documents, personal financial statement, and

business financial statement. On July 23, 2013, Brian accessed the CFO’s personal

files and copied the personal financial statements of the CFO and the chief

executive officer. On May 31, 2013, and February 12, 2014, Brian accessed the

CFO’s and IT administrator’s email accounts and used their information to access

the CFO’s and administrator’s online banking records. In each of the foregoing

instances, Brian shared and discussed the information he accessed with Ryan.


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[¶6.]         On July 10, 2015, the Krauses entered into identical plea agreements

with the State. The Krauses agreed to pay restitution to Valley Queen Cheese and

Big Stone Therapies in the amount of $80,000 and to sign over the title to a jointly

owned pontoon boat. In exchange, the State agreed to limit charges to one count

each of grand theft for the property taken and four counts each of unlawfully using

a computer system. The State also agreed to recommend that the sentences for

unlawfully using a computer system run concurrent with the sentence for grand

theft. Pursuant to these agreements, the State filed separate complaints against

the Krauses on July 14. Each complaint alleged one count of grand theft under

SDCL 22-30A-1 and four counts of unlawfully using a computer under SDCL 43-

43B-1(2).

[¶7.]         The Krauses entered guilty pleas to all charges on July 20, 2015, and

the circuit court sentenced them on September 15, 2015. Focusing on punishment

and deterrence, the circuit court sentenced each of the Krauses to four years

imprisonment for grand theft. The court also sentenced the Krauses to two years

imprisonment for each count of unlawfully using a computer system. Additionally,

the court ordered all sentences run consecutively.

[¶8.]         In this consolidated appeal, the Krauses raise two issues: 1

              1.     Whether their consecutive sentences for unlawfully using a
                     computer system violate the Eighth Amendment’s prohibition
                     against cruel and unusual punishment. 2




1.      Although the Krauses state three issues in their brief, two of those issues are
        consolidated in this opinion. See infra ¶ 15 & n.6.

2.      The Krauses do not appeal their sentences for grand theft.
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             2.    Whether the circuit court erred by imposing sentences of
                   imprisonment instead of probation for the unlawful-use-of-
                   computer-system convictions.

                               Analysis and Decision

[¶9.]        1.    Whether the Krauses’ consecutive sentences for
                   unlawfully using a computer system violate the Eighth
                   Amendment’s prohibition against cruel and unusual
                   punishment.

[¶10.]       “We generally review a circuit court’s decision regarding sentencing for

abuse of discretion.” State v. Rice, 2016 S.D. 18, ¶ 11, 877 N.W.2d 75, 79 (quoting

State v. Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486). “However, when the

question presented is whether a challenged sentence is cruel and unusual in

violation of the Eighth Amendment, we conduct a de novo review to determine

whether the sentence imposed is grossly disproportionate to the offense.” Id.

(quoting Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d at 486).

[¶11.]       The Krauses argue that their sentences for unlawfully using a

computer are grossly disproportionate to the circumstances of their crimes. They

contend that the circumstances of their crimes were minor. They also contend their

crimes are mitigated because: (1) neither of the Krauses has a substantial criminal

record, (2) they cooperated with law enforcement in interviews and by surrendering

computer evidence, (3) they immediately enrolled in counseling, and (4) they made

restitution prior to sentencing. However, the Krauses’ mitigation arguments are

entirely irrelevant to an Eighth Amendment analysis. The Supreme Court has

rejected individualized sentencing in noncapital cases. Harmelin v. Michigan,

501 U.S. 957, 995, 111 S. Ct. 2680, 2702, 115 L. Ed. 2d 836 (1991); accord Rice,

2016 S.D. 18, ¶ 18 & n.3, 877 N.W.2d at 81-82 & n.3. Therefore, we simply

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#27628, #27629

determine whether the sentences imposed appear grossly disproportionate to the

offenses committed. 3

[¶12.]         To determine whether a sentence is grossly disproportionate to an

offense, we first compare “the gravity of the offense and the harshness of the

penalty.” Chipps, 2016 S.D. 8, ¶ 38, 874 N.W.2d at 488 (quoting Solem v. Helm,

463 U.S. 277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)). “This

comparison rarely ‘leads to an inference of gross disproportionality’ and typically

marks the end of our review.” Id. ¶ 38, 874 N.W.2d at 489 (quoting State v.

Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d 771, 775). “If the penalty imposed appears

to be grossly disproportionate to the gravity of the offense, then we will compare the

sentence to those ‘imposed on other criminals in the same jurisdiction’ as well as

those ‘imposed for commission of the same crime in other jurisdictions.’” Id.

(quoting Helm, 463 U.S. at 291, 103 S. Ct. at 3010).

[¶13.]         The Krauses pleaded guilty to unlawfully using a computer system.

Among other instances, this offense occurs when a person “[k]nowingly obtains the

use of, accesses, or exceeds authorized access to, a computer system, or any part

thereof, without the consent of the owner, and the access or use includes access to

confidential data or material[.]” SDCL 43-43B-1(2). This particular variation of the

offense violates both property and privacy rights of the victim. As noted above,



3.       The Krauses’ appellant brief was filed one month after we decided Chipps but
         two weeks before we decided Rice. The State relied heavily on both Chipps
         and Rice in its reply brief. The Krauses do not address these cases and in
         fact, chose not to file a reply brief at all. Thus, the Krauses have not
         requested that their mitigation arguments be analyzed under the discretional
         dimension of sentencing, and we limit our analysis to the constitutional
         question of gross disproportionality.
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#27628, #27629

supra ¶ 5, the Krauses accessed and discussed payroll data, bank accounts, personal

financial statements, email, and other confidential data belonging to a number of

people. The Krauses argue that because they did not further disseminate the

confidential information they accessed or use it to extort their victims, their crimes

are not representative of the most serious of their kind. Yet, the offense for which

the Krauses were convicted addresses only obtaining the use of, accessing, or

exceeding authorized access to a computer system, without the consent of the

owner, to access confidential data or material. Id. The fact that the Krauses could

have committed additional crimes but did not do so does not diminish the gravity of

the crimes that occurred. Regardless, these crimes already lie on the lower end of

the gravity-of-offense spectrum. A two-year sentence correspondingly lies on the

low end of the spectrum of punishments. Therefore, considering the property and

privacy interests that the Krauses violated, their sentences do not appear grossly

disproportionate to their offenses, and our review ends. See Chipps, 2016 S.D. 8,

¶¶ 43-45, 874 N.W.2d at 490-91 (upholding five-year sentence of imprisonment for

four occurrences of identity theft).

[¶14.]       2.     Whether the circuit court erred by imposing sentences of
                    imprisonment instead of probation for the unlawful-use-
                    of-computer-system convictions.

[¶15.]       Next, the Krauses argue the circuit court erred by deviating from a

presumptive sentence of probation. At the time they were sentenced, SDCL 22-6-11

generally required a sentencing court to impose a sentence of probation for the

commission of a Class 5 or 6 felony. State v. Orr, 2015 S.D. 89, ¶ 9, 871 N.W.2d




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#27628, #27629

834, 837. 4 Deviation from a presumptive sentence of probation is permitted only if

the sentencing court finds aggravating circumstances posing a significant risk to

the public that requires such a departure. Id. The Krauses contend the circuit

court’s focus on punishment and deterring future offenders does not establish a

significant risk to the public sufficient to deviate from the presumptive sentence of

probation. 5 They additionally contend that even if aggravating circumstances were

present, the circuit court erred by not stating those circumstances in the judgment

of conviction. 6 The State responds that because the circuit court imposed a

sentence of imprisonment on the Krauses for grand theft, SDCL 22-6-11 does not

apply to the remaining offenses.


4.    The Legislature recently amended SDCL 22-6-11. 2016 S.D. Sess. Laws
      ch. 137, § 4.

5.    At the sentencing hearing, the court said:
             I don’t think rehabilitation is necessary. I think you have
             learned your lessons . . . .
             ....
             . . . [T]here needs to be that retribution regardless of how sorry
             you are and regardless of what steps you have taken, because
             the message needs to be sent.
             ....
             I need to punish you two for what you did for those invasions of
             privacy, but also you need to be the tool of the message to be
             sent, not only here in Milbank, not only in Grant County, not
             only graduates of Lake Area, but hopefully broader, that when
             we get you creepers, we punish you.
             ....
             You will be going to the penitentiary, because what you did in
             the Counts 2 through 5 deserves penitentiary time.

6.    The Krauses stated these two contentions as separate issues in their brief.
      Because these issues are related and turn on the same analysis, we address
      them together.
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[¶16.]         We recently reviewed the constitutionality of SDCL 22-6-11 in State v.

Orr. In that case, a defendant already sentenced to imprisonment in the

penitentiary received additional sentences for consecutive penitentiary time and a

concurrent term of probation. Orr, 2015 S.D. 89, ¶ 2, 871 N.W.2d at 835. The

defendant appealed, arguing he could not be subjected to simultaneous supervision

by the executive and judicial branches. Id. We agreed and held: “The judicial

branch cannot give itself authority over offenders that are in the state penitentiary

by sentencing a person to simultaneous probation and penitentiary sentences.” Id.

¶ 10, 871 N.W.2d at 838. Consequently, a “sentencing court cannot grant probation

where a defendant receives penitentiary time beyond that authorized by SDCL 23A-

27-18.1 and SDCL 23A-27-18.2.” Id. ¶ 12, 871 N.W.2d at 838. 7

[¶17.]         The Krauses did not respond to the State’s argument and have not

offered any analysis on whether Orr applies to the present case. We note that Orr

involved concurrent sentences of imprisonment and probation, whereas the current


7.       Subsequent to our decision Orr, the Legislature modified SDCL 22-6-11.
         2016 S.D. Sess. Laws ch. 137, § 4. That statute now requires a court to
         impose a sentence of probation for a Class 5 or 6 felony if the offender is not
         under the supervision of the executive branch; if the offender is under the
         supervision of the executive branch, the court is required to order a fully
         suspended penitentiary sentence. SDCL 22-6-11. This change, however,
         necessarily does not affect our analysis in this case. “[A] statute will not
         operate retroactively unless the act clearly expresses an intent to do so” or
         the change is merely procedural and not substantive. West v. John Morrell &
         Co., 460 N.W.2d 745, 747 (S.D. 1990). “As related to criminal law and
         procedure, substantive law is that which declares what acts are crimes and
         prescribes the punishment therefor; whereas procedural law is that which
         provides or regulates the steps by which one who violates a criminal statute
         is punished.” State v. Sylva, 804 P.2d 967, 969 (Kan. 1991) (quoting State v.
         Hutchison, 615 P.2d 138, 140 (Kan. 1980)). Nothing in the Legislature’s act
         indicates it was intended to operate retroactively. Consequently, because the
         amendment is a substantive change to the statute, it does not affect the
         present case.
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case involves consecutive sentences. Therefore, this case does not involve the same

dual-supervision problem presented in Orr. Even so, other statutes also suggest

that once the executive branch assumes supervision of an offender, he does not

return to the judicial branch for supervised release. By statute, a sentencing court

does not have discretion to impose a sentence of probation consecutive to a term of

imprisonment. See SDCL 22-6-6.1. 8 And while a court can supervise an offender

“with an entirely suspended penitentiary sentence” in some cases, it may not do so

if “the entirely suspended penitentiary sentence is concurrent or consecutive to an

additional penitentiary sentence[.]” SDCL 23A-27-18.4. In such a case, the

offender remains under the supervision of the executive branch. Id.

[¶18.]         In light of the foregoing, it appears the circuit court did not have the

authority—let alone an obligation—to sentence the Krauses to probation for their

unlawful-use-of-computer-system convictions. As the State correctly points out, the

Krauses were each sentenced to a four-year term of imprisonment in the

penitentiary for their grand-theft convictions. The Krauses have not appealed these

sentences. Thus, because the Krauses were otherwise committed to the supervision

of the executive branch, subsequent supervision by the judicial branch was not an


8.       SDCL 22-6-6.1 states: “If a defendant is convicted of two or more offenses, . . .
         the judgment or sentence may be that the imprisonment on any of the
         offenses or convictions may run concurrently or consecutively at the
         discretion of the court.” (Emphasis added.) “[T]he purpose of SDCL 22-6-6.1
         is to limit a court’s power to impose consecutive sentences to situations
         described in the statute.” State v. Kramer, 2008 S.D. 73, ¶ 11, 754 N.W.2d
         655, 658 (citing State v. Arguello, 1996 S.D. 57, ¶ 7, 548 N.W.2d 463, 464);
         State v. Flittie, 318 N.W.2d 346, 349 (S.D. 1982). The only consecutive-
         sentencing situation described in the statute is imposing a sentence of
         imprisonment consecutive to another sentence. Therefore, in its current
         form, SDCL 22-6-6.1 restrains a court’s power to consecutively impose
         sentences other than imprisonment (e.g., a sentence of probation).
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option, and probation was no longer the presumptive sentence under SDCL 22-6-11.

Because probation was not the presumptive sentence, the circuit court’s decision to

impose a penitentiary sentence was necessarily not a deviation from SDCL 22-6-11,

and the circuit court was not required to state aggravating circumstances in the

judgment of conviction.

                                     Conclusion

[¶19.]       The sentences the Krauses received for unlawfully using a computer

system do not appear grossly disproportionate to the gravity of their offenses;

therefore, the sentences are not cruel and unusual. Because the Krauses were

sentenced to imprisonment in the penitentiary, the circuit court was not required or

authorized to sentence the Krauses to probation for their unlawful uses of a

computer system. Therefore, the circuit court did not err by imposing two-year

sentences of imprisonment for each such conviction.

[¶20.]       We affirm.

[¶21.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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