#27385-a-DG

2016 S.D. 18

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

KEVIN JAMES RICE,                            Defendant and Appellant.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE BRADLEY G. ZELL
                               Judge

                                    ****


MARTY J. JACKLEY
Attorney General

JARED TIDEMANN
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


NICOLE J. LAUGHLIN
Sioux Falls, South Dakota                    Attorney for defendant
                                             and appellant.


                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 11, 2016

                                             OPINION FILED 03/02/16
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GILBERTSON, Chief Justice

[¶1.]         Kevin James Rice appeals the circuit court’s imposition of an 80-year

sentence for one count of first-degree manslaughter. Rice asserts his sentence

violates the Eighth Amendment’s prohibition against cruel and unusual

punishment. We affirm.

                          Facts and Procedural History

[¶2.]         On December 2, 2013, Sioux Falls resident Jason LaBeau returned

home after work to discover two intruders in his home attacking his 20-year-old son,

Jordan. After Jason rushed to Jordan’s aid, one of the intruders produced a pistol

and shot both Jason and Jordan. After the shooting, the intruders fled the scene,

leaving behind the pistol and one of their cell phones. Jason summoned help, but

Jordan died before emergency assistance arrived. Jason survived his injuries.

[¶3.]         Law enforcement’s investigation revealed a plot conceived by Jordan’s

girlfriend, Faith Rasmussen, and orchestrated by Rice to steal $100,000 in cash

from Jordan. Rasmussen ran a drug-distribution operation in Sioux Falls. She and

Rice became acquainted with one another in the course of Rice’s work for her as a

distributor. In the fall of 2013, Rasmussen told Rice that Jordan kept $100,000 in a

shoebox under his bed. 1 She showed Rice a picture as proof and gave him Jason’s

work schedule. Rasmussen’s ex-boyfriend, Austin Hogan, drove Rice to, and

identified, Jordan’s home.




1.      This money was purportedly Jordan’s share of proceeds from marijuana
        distribution.

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[¶4.]        Rice began recruiting help. He first contacted his long-time friend,

Doug Scholten. Rice then contacted Brian Anderson, an 18-year-old senior from

Watertown High School who had been selling marijuana for Rice. Rice told

Anderson that Jordan had previously been robbed without putting up a fight, that

Jordan would likely be under the influence when they entered the house, and that

Jason would not be home until after 5:00 p.m. Anderson agreed to the plan and in

turn, recruited his friend, Trevor Kruthoff, a 17-year-old high school student from

Watertown.

[¶5.]        Shortly before December 2, Anderson and Kruthoff drove to Sioux Falls

from Watertown. After meeting Rice, the three of them drove to the LaBeau

residence. The three agreed that Anderson and Kruthoff would carry out the plan.

The two would-be intruders plotted their point of entry and then returned to

Watertown. On December 2, Anderson and Kruthoff called Rice to tell him they

intended to carry out the plan that day. The two skipped school; packed duct tape,

gloves, and handcuffs; left Watertown; and joined Rice and Scholten at Rice’s

residence. While there, Rice handed a pistol to Scholten, who loaded the weapon

with ammunition. Rice then handed the weapon to Anderson.

[¶6.]        Armed with a loaded firearm and a hammer, the four left Rice’s

residence in two different vehicles. Rice and Scholten drove one car; Anderson and

Kruthoff, the other. Upon arriving at Jordan’s house, the four noticed that his

vehicle was there. Although Rice noted that the presence of Jordan’s vehicle

indicated Jordan was likely home, Anderson and Kruthoff decided to proceed as




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planned. Rice and Scholten drove to a nearby convenience store and waited for

Anderson and Kruthoff to return.

[¶7.]         Anderson and Kruthoff entered the home through a basement window

and were almost immediately confronted by Jordan. Anderson and Kruthoff

attempted to restrain Jordan. Despite the information Rice had received from

Rasmussen, Jason returned home from work at 2:15 p.m. Jason struck Anderson,

and Kruthoff drew the pistol. Anderson commanded Kruthoff to fire the weapon,

and Kruthoff complied, firing multiple shots at—and striking—Jason. Kruthoff

then turned the weapon on Jordan, shooting him as well.

[¶8.]         Anderson and Kruthoff fled the scene, leaving behind the pistol and

Kruthoff’s cell phone. The pair did not locate the $100,000. 2 Rice and Scholten saw

Anderson and Kruthoff’s vehicle speed past the convenience store. Anderson sent a

text message to Rice indicating there was a problem, and the four met back at Rice’s

residence. Rice and Scholten provided clean clothing to Anderson and Kruthoff.

Rice and Scholten then destroyed Anderson’s phone, disposed of as much evidence

as they could, and fled to Madison for the night. Anderson and Kruthoff returned to

Watertown.

[¶9.]         Rice, Scholten, Anderson, and Kruthoff were all arrested and charged

with homicide. All four subsequently pleaded guilty to first-degree manslaughter.

Anderson and Kruthoff also pleaded guilty to aggravated assault. Rice was

sentenced to 80 years imprisonment with 20 years suspended. Scholten was

sentenced to 30 years imprisonment with all 30 years suspended. Anderson was


2.      The police later found $89,000 in cash in the LaBeau residence.

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sentenced to 80 years imprisonment with 30 years suspended for manslaughter. He

also received a suspended, concurrent, 15-year sentence for aggravated assault.

Kruthoff was sentenced to 80 years imprisonment with 40 years suspended for

manslaughter. He also received a suspended, concurrent, 15-year sentence for

aggravated assault.

[¶10.]        Rice raises one issue on appeal: Whether his sentence violates the

Eighth Amendment’s prohibition against cruel and unusual punishment.

                                Standard of Review

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

abuse of discretion.” State v. Chipps, 2016 S.D. 8, ¶ 31, ___ N.W.2d ___, ___

(quoting State v. Garreau, 2015 S.D. 36, ¶ 7, 864 N.W.2d 771, 774). “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.

                               Analysis and Decision

[¶12.]        Rice asserts that a sentence of 80 years is grossly disproportionate to

the circumstances of the crime to which he pleaded guilty. Specifically, Rice argues

that the sentence he received is cruel and unusual because it is disproportionate to

the sentence Scholten received. Rice also argues that the sentencing court did not

properly weigh his background, criminal history, age, or prospects for rehabilitation

in determining his sentence. Rice presents all of these arguments as supporting the

conclusion that his sentence violates the Eighth Amendment. In doing so, Rice


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conflates the questions whether his sentence is constitutional and whether it is an

abuse of discretion. These questions are not synonymous, and the analysis for each

is different.

[¶13.]          We recently surveyed United States Supreme Court decisions on the

Eighth Amendment and explained the proper analysis of cruel-and-unusual-

punishment cases in Chipps. The question whether a noncapital sentence violates

the Eighth Amendment requires us to determine de novo whether the sentence

imposed is grossly disproportionate to its corresponding offense. Harmelin v.

Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836 (1991)

(Kennedy, J., concurring in part and concurring in the judgment); Chipps, 2016 S.D.

8, ¶ 38, ___ N.W.2d at ___. To do so, we first compare the gravity of the offense—

i.e., “the offense’s relative position on the spectrum of all criminality”—to the

harshness of the penalty—i.e., “the penalty’s relative position on the spectrum of all

permitted punishments.” Chipps, 2016 S.D. 8, ¶¶ 35-38, ___ N.W.2d at ___. “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. ¶ 38, ___ N.W.2d at ___ (quoting Solem v. Helm, 463 U.S. 277,

291, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)). The challenged sentence is

cruel and unusual only if these comparisons “validate [the] initial judgment that

[the] sentence is grossly disproportionate to [the] crime.” Id. ¶ 34, ___ N.W.2d

at ___ (quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707).




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[¶14.]       We begin by examining the gravity of Rice’s offense. Rice pleaded

guilty to first-degree manslaughter. Among other instances, this offense occurs

when one human being kills another “[w]ithout any design to effect death . . . but by

means of a dangerous weapon[.]” SDCL 22-16-1, -15(3). Historically, homicide has

long been considered “the highest crime against the law of nature, that man is

capable of committing.” 4 William Blackstone, Commentaries *177-78. Although

the gravity of the offense of manslaughter is less than that of murder, first-degree

manslaughter is still an unjustified and unexcused killing. This crime is among

those deemed inherently violent by the South Dakota Legislature, SDCL 22-1-2(9),

which contributes to the gravity of this offense, Chipps, 2016 S.D. 8, ¶ 35,

___ N.W.2d at ___ (“Nonviolent crimes are less serious than crimes marked by

violence or the threat of violence.” (quoting Helm, 463 U.S. at 292, 103 S. Ct.

at 3011)). Therefore, as a lesser form of the highest crime, the gravity of first-

degree manslaughter is relatively great on the spectrum of criminality.

[¶15.]       Next, we examine the harshness of Rice’s sentence. The circuit court

sentenced Rice to 80 years imprisonment with 20 years suspended. First-degree

manslaughter is a Class C felony, which carries a maximum sentence of life

imprisonment and a fine of $50,000. SDCL 22-6-1, -16-15. More severe

punishments authorized by the Legislature include death (Class A felonies) and

mandatory life imprisonment (Class A and Class B felonies). Notably, the fact that

the court imposed a term of years instead of a life sentence means that Rice could be

eligible for parole in the future. See SDCL 24-15-4 (“No inmate sentenced to life

imprisonment is eligible for parole . . . .”). Because the gravity of first-degree


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manslaughter is relatively great on the spectrum of criminality, Rice’s sentence

does not appear to be grossly disproportionate.

[¶16.]       Despite the foregoing, Rice argues that his sentence is cruel and

unusual because it is “grossly disproportionate with the sentences imposed on his

co-defendants.” Rice primarily relies on State v. Bonner, 1998 S.D. 30, 577 N.W.2d

575. In that case, we reviewed a defendant’s challenge of consecutive, 15-year

sentences for second-degree burglary and third-degree rape. In contrast to Bonner’s

15-year sentence for burglary, his two codefendants received suspended sentences

with probation. Id. ¶ 18, 577 N.W.2d at 580. We held that Bonner’s burglary

sentence was grossly disproportionate to his offense for a variety of reasons

including: (1) the disparity between his 15-year sentence and the suspended

sentences his codefendants received; (2) his lack of a serious criminal history; (3) the

absence of violence and menace in the offense; and (4) the sentence was the

maximum allowed by statute. Id. ¶¶ 23-25, 577 N.W.2d at 581-82. Taking this

opportunity to revisit our decision in Bonner, we conclude that its Eighth

Amendment analysis will no longer be followed by this Court.

[¶17.]       In light of the Eighth Amendment analysis detailed in Chipps and

summarized above, see supra ¶ 13, there are several analytical problems with

Bonner’s conclusion that the 15-year sentence at issue in that case was grossly

disproportionate to the crime of second-degree burglary. First, Bonner considered

the disparity between the defendant’s and codefendants’ sentences in answering the

threshold question whether Bonner’s sentence appeared to be grossly

disproportionate to the gravity of his offense. As discussed above, the appearance of


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gross disproportionality of sentence to offense is a precondition for comparing the

sentence to those “imposed on other criminals in the same jurisdiction[.]” Chipps,

2016 S.D. 8, ¶ 38, ___ N.W.2d at ___ (quoting Helm, 463 U.S. at 291, 103 S. Ct.

at 3010). As such, a defendant’s sentence must appear grossly disproportionate to

his offense before it will be compared to a sentence imposed on a codefendant.

Therefore, the disparity between Bonner’s sentence and his codefendants’ sentences

should not have been used to answer the threshold question of gross

disproportionality.

[¶18.]       Second, citing Justice Kennedy’s discussion of Helm, Bonner states

that a defendant’s lack of prior felony convictions “certainly bears on the question of

gross disproportionality.” Bonner, 1998 S.D. 30, ¶ 23, 577 N.W.2d at 582 (citing

Harmelin, 501 U.S. at 1002, 111 S. Ct. at 2705). However, the portion of Justice

Kennedy’s opinion cited in Bonner specifically referred to the felonies underlying

the defendant’s recidivism conviction instead of simply his entire criminal history

(or lack thereof). Harmelin, 501 U.S. at 1002, 111 S. Ct. at 2705. For purposes of

challenging the constitutionality of a sentence in a noncapital case, it appears that a

defendant’s criminal history is only relevant when the sentence is enhanced under

recidivism statutes. See Ewing v. California, 538 U.S. 11, 29, 123 S. Ct. 1179, 1190,

155 L. Ed. 2d 108 (2003) (plurality opinion); Harmelin, 501 U.S. at 1002, 111 S. Ct.

at 2705; Helm, 463 U.S. at 296, 103 S. Ct. at 3013. In such a case, “the latest

crime . . . is considered to be an aggravated offense[,]” Ewing, 538 U.S. at 25-26,

123 S. Ct. at 1188 (quoting Witte v. United States, 515 U.S. 389, 400, 115 S. Ct.

2199, 2206, 132 L. Ed. 2d 351 (1995)), and the gravity of the past offenses is


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incorporated into the gravity of the present (aggravated) offense, id. at 29,

123 S. Ct. at 1189-90. Therefore, these Supreme Court decisions do not support

Bonner’s conclusion that a defendant’s lack of a criminal history mitigates the

gravity of the offense under consideration. 3

[¶19.]         Third, Bonner found relevant the fact that the circuit court imposed

the maximum sentence permitted by statute for second-degree burglary. However,

the Eighth Amendment is not concerned with the harshness of a penalty relative to

the range of punishments permitted for a particular offense. Rather, as we

explained in Chipps, “[t]he harshness of the penalty . . . refers to the penalty’s

relative position on the spectrum of all permitted punishments.” 2016 S.D. 8, ¶ 37,

___ N.W.2d at ___ (emphasis added) (citing Harmelin, 501 U.S. at 1001, 111 S. Ct.

at 2705; Helm, 463 U.S. at 297, 103 S. Ct. at 3013 (Kennedy, J., concurring in part

and concurring in the judgment)). Bonner’s sentence should not have been

compared to the maximum sentence permitted by statute for second-degree

burglary. Instead, the harshness of Bonner’s sentence should have been determined

by examining the entire range of punishments “that the State could have imposed

on any criminal for any crime.” Id. (quoting Helm, 463 U.S. at 297, 103 S. Ct.

at 3013). Thus, the fact that Bonner’s sentence was the maximum permitted by




3.       Further, as Bonner itself recognized, mitigating factors generally are not
         considered in noncapital cases. 1998 S.D. 30 ¶ 22, 577 N.W.2d at 581 (citing
         Harmelin, 501 U.S. at 995, 111 S. Ct. at 2702 (majority opinion)).

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statute for his particular offense was not relevant to an Eighth Amendment

analysis. 4

[¶20.]         Finally, Bonner also states that our review under the Eighth

Amendment must include “utmost deference to the Legislature and the sentencing

court.” 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580. However, such deference plays only

a passive role in reviewing the constitutionality of a sentence. As we noted in

Chipps, “Justice Kennedy did not directly apply these principles in his Eighth

Amendment analysis.” 2016 S.D. 8, ¶ 33, ___ N.W.2d at ___. Instead, he relied on

deference to the legislature in concluding that the Eighth Amendment merely

forbids gross disproportionality—rather than requires strict proportionality—

between sentence and offense. Harmelin, 501 U.S. at 1001, 111 S. Ct. at 2705;

Chipps, 2016 S.D. 8, ¶ 33, ___ N.W.2d at ___. Thus, deference for the legislature

already inheres in the gross-disproportionality standard and should not be

considered as a separate factor.

[¶21.]         Chipps signaled a course correction in our Eighth Amendment

decisions. Bonner is still an important decision because it abandoned the shock-the-

conscience test previously employed by this Court for analyzing cruel-and-unusual-


4.       For the same reasons, the fact that a sentence is less than the statutory
         maximum does not necessarily support the conclusion that the sentence is
         constitutionally permissible. For example, a sentence of life imprisonment
         for driving with an expired license would likely be grossly disproportionate
         even if the Legislature had authorized the more severe penalty of death for
         that offense. Similarly, a sentence in excess of the statutory maximum is not
         necessarily unconstitutional. For example, the maximum sentence
         authorized for possession of more than two ounces but less than one-half
         pound of marijuana is two years imprisonment. While a sentence of two
         years and one day for such a crime would be an illegal sentence, it would
         likely not be grossly disproportionate.

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punishment claims in favor of Justice Kennedy’s gross-disproportionality analysis

from Harmelin. Bonner, 1998 S.D. 30, ¶¶ 13, 16, 577 N.W.2d at 579-80.

Furthermore, as discussed below, some of the legal concepts Bonner incorrectly

attributed to an Eighth Amendment analysis are nevertheless relevant to the

question whether a particular sentence is an abuse of discretion. Therefore, we

depart from Bonner (and its progeny) to the extent that its Eighth Amendment

analysis deviates from that explained in Chipps.

[¶22.]       In light of the foregoing, it is clear that Scholten’s sentence is not

relevant to answering the threshold question whether Rice’s sentence appears to be

grossly disproportionate to the offense of first-degree manslaughter. Rice’s

remaining arguments are likewise not relevant to an Eighth Amendment analysis.

Therefore, our conclusion that Rice’s sentence is not grossly disproportionate to his

offense is unchanged. However, in fairness to Rice, we address his remaining

arguments as challenges to the sentencing court’s discretion.

[¶23.]       In contrast to the Eighth Amendment analysis, the question whether

the sentencing court acted within its discretion requires a separate analysis.

“Within constitutional and statutory limits, the trial courts of this state exercise

broad discretion when deciding the extent and kind of punishment to be imposed.”

State v. Grosh, 387 N.W.2d 503, 508 (S.D. 1986) (emphasis added). Therefore, we

review the sentencing court’s decision for an abuse of discretion. Chipps, 2016 S.D.

8, ¶ 31, ___ N.W.2d at ___. “An abuse of discretion ‘is a fundamental error of

judgment, a choice outside the range of permissible choices . . . .’” MacKaben v.

MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting Gartner v. Temple,


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2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). Consequently, “a sentence within the

statutory maximum [generally] will not be disturbed on appeal.” State v. Bruce,

2011 S.D. 14, ¶ 28, 796 N.W.2d 397, 406 (quoting Bonner, 1998 S.D. 30, ¶ 10, 577

N.W.2d at 578).

[¶24.]       Rice first argues that his “sentence is grossly disproportionate with the

sentences imposed on his co-defendants.” Specifically, Rice argues that his

involvement in the crime was comparable to Scholten, who received only a 30-year,

suspended sentence, in that neither Rice nor Scholten participated in the actual

home invasion. Generally, similarly situated defendants should receive similar

sentences. See Bonner, 1998 S.D. 30, ¶ 12, 577 N.W.2d at 578. This principle

naturally follows from the notion that “[w]hen . . . statutory ranges are established,

the legislative intent is that ‘the more serious commissions of the crime deserve

sentences at the harsher end of the spectrum.’” Bruce, 2011 S.D. 14, ¶ 32,

796 N.W.2d at 407 (quoting Bonner, 1998 S.D. 30, ¶ 25, 577 N.W.2d at 582). Even

so, the fact that Rice and Scholten pleaded guilty to the same offense does not mean

they share the same level of culpability for that offense. State v. Garber, 2004 S.D.

2, ¶ 33, 674 N.W.2d 320, 328. In order to suggest the sentencing court abused its

discretion, then, Rice must show that his and Scholten’s “past records, demeanor,

degree of criminal involvement, etc., are sufficiently similar as to cause the sentence

disparity between them to be unjust.” Id. ¶ 32, 674 N.W.2d at 328 (emphasis

added) (quoting Bonner, 1998 S.D. 30, ¶ 20, 577 N.W.2d at 581).




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[¶25.]         Rice and Scholten are not similarly situated defendants. In this case,

the sentencing court found Rice to be the most culpable of the defendants and

Scholten the least culpable. As the court noted:

               I do [believe] that at least on this date and the . . . incident that
               took place with Jordan, you were in the center of it and that you
               did promote, did not prevent, you were aware of it, you provided
               a weapon for it, you assisted in the . . . covering up of evidence
               by not disclosing the information and such, so you were a very
               key part in the center of this activity.

               . . . I believe your enrollment, engagement in this was more
               pivotal than others.

The sentencing court “had the opportunity to personally evaluate the relative

character, demeanor, and truthfulness of each defendant. In addition, [the court]

was able to gauge the relative culpability of each defendant.” Id. ¶ 33, 674 N.W.2d

at 328. We see no reason to disagree with the court. Rice was the architect of the

criminal conspiracy that led to Jordan’s death. Rice assembled the other

defendants. He placed a loaded weapon in the hands of two high school students

and directed them toward the LaBeau residence despite knowing they were likely to

encounter Jordan inside the house. Rice then attempted a coverup. In short, this

particular crime would not have occurred but for Rice’s involvement. 5 Therefore,

the disparity in sentences imposed on Rice and Scholten does not suggest the

sentencing court abused its discretion.

5.       We have previously held that the mastermind of a homicide can be more
         culpable than even a codefendant who actually delivers the killing blow. See
         State v. Piper, 2006 S.D. 1, ¶ 90, 709 N.W.2d 783, 816 (“Piper planned and
         directed the plot from its inception. He cites to no authority which holds less
         culpable the masterminds of a murder plot while more severely punishing
         those who assist in carrying it out.”); State v. Page, 2006 S.D. 2, ¶ 111-12,
         709 N.W.2d 739, 775 (holding defendant who instigated incident resulting in
         homicide more culpable than codefendant).

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[¶26.]         Rice also argues a number of other factors should have mitigated the

sentence he received. Rice claims that he has a limited criminal history and is

relatively young. He also claims to be a good candidate for rehabilitation. Rice

correctly asserts that “the sentencing court should ‘acquire a thorough acquaintance

with the character and history of the man before it.’” Bonner, 1998 S.D. 30, ¶ 19,

577 N.W.2d at 580 (quoting State v. Lemley, 1996 S.D. 91, ¶ 12, 552 N.W.2d 409,

412). However, Rice does not actually claim that the sentencing court failed to

consider these factors. Even if he did, the record indicates the opposite is true. In

announcing the sentence, the court said:

               60 years, I believe this is your first felony conviction, as I
               understand it, would make you eligible for parole in 30 years,
               make you 51 years old before you’re eligible for parole.
               That is the length of time I believe is important for retribution
               in this matter. I believe that’s important for rehabilitation. I
               hope it’s significant enough for deterrence. I know it will deter
               you. I hope it will deter others.

This excerpt alone indicates the court considered Rice’s criminal history, age, and

prospects for rehabilitation in crafting a sentence. The court also explicitly noted,

“Regarding rehabilitation, the sentence the [c]ourt is imposing recognizes that you

are currently 21 years of age.” 6

[¶27.]         Additionally, Rice ignores other factors relevant to crafting a sentence.

“In fashioning an appropriate sentence, courts must also look to the character and

history of the defendant. This requires an examination of a defendant’s ‘general

6.       Rehabilitation “is not a bright-line rule [that] must be considered in every
         case[.]” State v. Milk, 2000 S.D. 28, ¶ 18, 607 N.W.2d 14, 20. As Justice
         Kennedy noted in his opinion in Harmelin, retribution, rehabilitation, and
         deterrence are each legitimate penological goals. 501 U.S. at 999, 111 S. Ct.
         at 2704.

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moral character, mentality, habits, social environment, tendencies, age, aversion or

inclination to commit crime, life, family, occupation, and previous criminal

record’ . . . .” Bruce, 2011 S.D. 14, ¶ 29, 796 N.W.2d at 406 (citation omitted)

(quoting Bonner, 1998 S.D. 30, ¶ 19, 577 N.W.2d at 580). Although Rice’s previous

criminal record is not extensive, Rice has displayed an inclination to commit crime.

The presentence investigation (PSI) indicates that Rice admitted involvement in an

ongoing drug-distribution operation with Rasmussen, Hogan, and Jordan for at

least a year prior to this homicide. During that time, Rice derived consistent

income by selling marijuana in Sioux Falls, Vermillion, and Watertown. Rice also

admitted to daily marijuana use and periodic opiate (Oxycodone) use. Although

Rice claims that violence was never associated with this drug-distribution

operation, it is that very operation that set the stage for the burglary and homicide

that occurred on December 2, 2013. Additionally, the PSI concluded that Rice is a

moderate risk to reoffend.

[¶28.]         Finally, the sentence itself reflects that the sentencing court had these

factors in mind. The Legislature authorized the court to impose a life sentence on

Rice for committing first-degree manslaughter. SDCL 22-6-1, -16-15. However, the

court imposed a sentence of substantially less time. 7 By imposing a term of years,

the court preserved the possibility of future parole for Rice, see SDCL 24-15-4, and

struck a balance between retribution, rehabilitation, and deterrence. In light of the

foregoing, we are unable to conclude that the sentencing court’s decision was “a



7.       The court could have also imposed a fine of up to $50,000 on Rice but chose
         not to. SDCL 22-6-1, -16-15.

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choice outside the range of permissible choices[.]” MacKaben, 2015 S.D. 86, ¶ 9,

871 N.W.2d at 622 (quoting Gartner, 2014 S.D. 74, ¶ 7, 855 N.W.2d at 850).

Therefore, the court did not abuse its discretion.

                                      Conclusion

[¶29.]         We recognize Bonner’s incompatibility with the United States Supreme

Court’s Eighth Amendment analysis as explained in Chipps. Today, we further

refine our review of excessive-sentence claims by properly distinguishing between

the constitutional and discretional dimensions of sentencing. Hereafter, this Court

will adhere to this refinement in analyzing these types of issues. 8 Accordingly, the

harshness of the sentence Rice received is not grossly disproportionate to the

gravity of his offense. Although Rice’s sentence is more severe than that imposed on

Scholten, Rice’s culpability is correspondingly greater. Therefore, the circuit court

neither violated the Eighth Amendment nor abused its discretion in sentencing

Rice. We affirm.

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




8.       We emphasize that our decision today does not foreclose the types of
         arguments analyzed in Bonner. Rather, our decision functionally changes the
         standard by which we review some of those arguments. Arguments that bear
         on the constitutional question whether a sentence is grossly disproportionate
         to an offense present questions of law that we review de novo. In contrast,
         arguments that bear on the question whether the sentencing court acted
         within its discretion will be reviewed under the abuse-of-discretion standard.

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