#28031-a-DG
2017 S.D. 34

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

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

      v.

JANNO KOLLAY TALLA,                          Defendant and Appellant.

                                    ****

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

                                    ****

                 THE HONORABLE DOUGLAS E. HOFFMAN
                               Judge

                                    ****


MARTY J. JACKLEY
Attorney General

CULLEN P. MCNEECE
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


BEAU J. BLOUIN of
Minnehaha County Public
 Defenders Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.



                                    ****
                                             CONSIDERED ON BRIEFS
                                             MAY 30, 2017
                                             OPINION FILED 06/07/17
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GILBERTSON, Chief Justice

[¶1.]         Janno Kollay Talla appeals his sentence of life imprisonment for one

count of first-degree manslaughter. Talla argues that in light of other sentences

imposed for manslaughter in Minnehaha County, as well as his alleged lack of

criminal history, the circuit court abused its discretion. We affirm.

                             Facts and Procedural History

[¶2.]         Talla was born in Barentu, Eritrea, in 1984 and immigrated to the

United States as a refugee sometime around 2012. After living in Charlotte, North

Carolina, for a short time, he moved to Sioux Falls, where he began a relationship

with Ammuna Gayya. The two moved in together, and in late 2013, Gayya became

pregnant with Talla’s child. In August 2014, prior to their child’s birth, Talla

obtained new employment in Worthington, Minnesota, which required him to

relocate. Gayya, who was in her late teens at the time, stayed in Sioux Falls to be

close to her mother. Gayya gave birth to a boy in September 2014.

[¶3.]         For a time, Talla and Gayya continued their relationship, and Talla

provided some financial support to Gayya and their son. When Talla would visit

Sioux Falls on his days off, he would stay with Gayya and their son. However,

Gayya eventually became romantically involved with another man, Danga Kotudi,

and ended her relationship with Talla. According to Talla, Gayya denied having a

relationship with Kotudi on several occasions when confronted by Talla. During

this time, Gayya also formally sought child support from Talla. 1




1.      Talla actually quit his job to avoid paying child support.

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[¶4.]         On October 29, 2015, while visiting Sioux Falls, Talla saw Gayya with

Kotudi. Talla was jealous because he wished to continue his relationship with

Gayya, so he drove to Kotudi’s apartment to confront them. Talla waited 30 to 40

minutes for them to return. He placed a folding knife with a six-inch blade in his

pocket, intending to kill Kotudi. After Kotudi and Gayya returned, Talla went

inside and confronted them. After speaking with them for several minutes, Talla

informed Kotudi that the two of them were going to fight to the death. Kotudi

refused, and Talla drew his weapon and stabbed Kotudi in his left arm. Kotudi fled

the apartment while his friend, Banana Tsegay, and Gayya attempted to restrain

Talla. Talla stabbed Gayya, puncturing her left lung and heart. Gayya attempted

to flee the apartment, but only made it a few feet before collapsing in the hallway.

Talla did not attempt to render aid; instead, he fled. Gayya died from her wound

about an hour later, but Kotudi survived.

[¶5.]         Following the encounter, Talla drove back to Worthington. Local law

enforcement was waiting and arrested him as he exited the interstate highway.

Talla’s pants had Gayya’s blood on them. Law enforcement found the folding knife

in the glove compartment of Talla’s car. The next day, Sioux Falls police searched

Talla’s car and discovered a suitcase, which contained clothes, medications, a white

envelope with $2,600 cash, a 0.25 caliber handgun, and a brown wallet containing

identification cards and documents for one “Malik Mensur.” 2 During a subsequent



2.      At the sentencing hearing, Talla’s attorney asserted that Mensur is Talla’s
        cousin and that Talla was in possession of Mensur’s documents because
        Mensur was incarcerated at the time. In contrast, the State asserted that it
        had been unable to establish any connection between Talla and Mensur. The
                                                            (continued . . .)
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#28031

interview, Talla admitted that he intended to kill Kotudi and had been planning to

do so for months.

[¶6.]        Talla was indicted on 12 counts, including two counts of first-degree

murder (premeditated and felony murder), one count of second-degree murder, one

count of attempted first-degree murder, three counts of first-degree burglary, two

counts of aggravated assault, and three counts of stalking. Eventually, Talla and

the State entered into a plea agreement. Talla agreed to plead guilty to one count of

first-degree manslaughter and one count of attempted first-degree murder. In

exchange, the State agreed to dismiss the remaining counts and to recommend

concurrent sentences. The agreement did not require the State to recommend a

particular length of imprisonment for either count. At a change-of-plea hearing on

June 17, 2016, Talla pleaded guilty, and the State produced a written factual

statement signed by Talla. Three months later, after the completion of a

presentence investigation, the circuit court sentenced Talla to concurrent terms of

imprisonment: 25 years for attempted first-degree murder and life for first-degree

manslaughter.

[¶7.]        Talla appeals, raising one issue: Whether the circuit court abused its

discretion in sentencing him to imprisonment for life for first-degree manslaughter.

                                 Standard of Review

[¶8.]        “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

________________________
(. . . continued)
         State theorized that Talla intended to use the documents to establish a false
         identity.

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State v. Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486). “An abuse of discretion ‘is

a fundamental error of judgment, a choice outside the range of permissible choices.’”

Id. ¶ 23, 877 N.W.2d at 83 (quoting MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9,

871 N.W.2d 617, 622).

                                Analysis and Decision

[¶9.]        Talla argues the circuit court abused its discretion by sentencing him

to imprisonment for life. Although Talla does not allege that his sentence is cruel

and unusual in violation of the Eighth Amendment, he nevertheless contends that it

is “grossly disproportionate to other sentences imposed in Minnehaha County on

manslaughter in the first degree convictions in the ten years leading up to

sentencing in this case.” Talla also contends that “[b]y imposing a life sentence, the

court denied [him] the possibility of parole at any time in the future, and

consequently failed to strike an appropriate balance between retribution,

rehabilitation, and deterrence.”

[¶10.]       We first address Talla’s proportionality argument. “[S]imilarly

situated defendants should [generally] receive similar sentences. This principle

naturally follows from the notion that ‘when 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.”’” Id. ¶ 24, 877 N.W.2d at 83 (citation

omitted) (quoting State v. Bruce, 2011 S.D. 14, ¶ 32, 796 N.W.2d 397, 407).

However, each “sentencing court has broad discretion in determining the sentence

to be imposed.” State v. Anderson, 1996 S.D. 46, ¶ 30, 546 N.W.2d 395, 402. “[A]

sentence within the statutory maximum generally will not be disturbed on appeal.”


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Rice, 2016 S.D. 18, ¶ 23, 877 N.W.2d at 83 (quoting Bruce, 2011 S.D. 14, ¶ 28,

796 N.W.2d at 406). Thus, when a judge imposes the maximum sentence permitted

by statute (as in the present case), it is sufficient that the judge could reasonably

conclude the offense in question is among “the more serious commissions of the

crime[.]” Id. ¶ 24, 877 N.W.2d at 83 (quoting Bruce, 2011 S.D. 14, ¶ 32, 796 N.W.2d

at 407).

[¶11.]       We think the sentencing court’s implied conclusion that Talla’s crime is

among the more serious occurrences of first-degree manslaughter is reasonable,

especially considering it occurred in the process of attempting to commit first-degree

murder. Talla intended to kill Kotudi. He sat outside Kotudi’s apartment for 30 to

40 minutes, waiting for him and Gayya to return. Talla armed himself and entered

the apartment. He sat, talking to Kotudi and Gayya in relative calm, for several

minutes. He then challenged Kotudi to mortal combat, and when Kotudi refused,

Talla attempted to kill him anyway. When Gayya intervened, Talla stabbed her—

the 19-year-old mother of his infant son—in the heart. Even if doing so was

reflexive and not intentional, Talla did not attempt to render aid to Gayya; instead,

he fled. And even after learning that Gayya died as a result of her injuries, Talla

did not express significant remorse.

[¶12.]       Even so, comparing his sentence to the one imposed in Rice, Talla

concludes he should have been sentenced to imprisonment for a term of years. In

Rice, the mastermind of a burglary plot that culminated in a homicide was

sentenced to imprisonment for 80 years (with 20 years suspended) on conviction of

one count of first-degree manslaughter. Id. ¶ 9, 877 N.W.2d at 79. Talla contends


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that unlike Rice, Talla had no criminal history, had not previously exhibited violent

behavior, had maintained legal employment while in the United States, and did not

attempt to cover up his crime. The sentencing court noted these factors at

sentencing. We also note that the presentence investigation report indicates there

is only a moderate risk that Talla will reoffend. Even so, this case does not involve

the type of unplanned-though-foreseeable violence that occurred in Rice. As noted

above, Talla admittedly entered the apartment with the premeditated intent to kill

Kotudi. In the course of his attempt, Talla instead killed Gayya, who as the circuit

court noted, “was entirely innocent of any wrongdoing and was not complicit in any

kind of illegal activity that spawned her resulting death.” Thus, it would not be

unreasonable for a sentencing court to conclude Talla’s crime was more serious than

the homicide that occurred in Rice despite Talla’s asserted mitigating factors. 3

Thus, Rice does not support the conclusion that the sentencing court abused its

discretion by sentencing Talla to imprisonment for life in this case.

[¶13.]         Next, Talla contends that the sentencing court failed to strike a

balance between retribution, rehabilitation, and deterrence. Talla essentially

contends the sentencing court’s view that rehabilitation was problematic was

erroneous. Whether a defendant “is capable of rehabilitation [is] a fact question to

be decided by the [sentencing] court.” State v. Pulfrey, 1996 S.D. 54, ¶ 20,

548 N.W.2d 34, 39. On the question of rehabilitation, the court said:

               [I]n circumstances like this, where the individual’s character
               creates a propensity to commit domestic abuse to the level of


3.       Nor is it necessarily unreasonable for a different sentencing court to conclude
         the homicide that occurred in Rice was more serious.

                                            -6-
#28031

             murder, the issue of rehabilitation is problematic. At the age of
             31, being a middle adult, when one’s mental processes are such
             that he concludes that he must kill his rival and put his former
             love interest at risk of a similar fatal result, the supposition that
             the individual could return to the community and engage in
             healthy relationships with other partners and that those
             partners would not be at risk of a similar fate is purely
             speculative in the [c]ourt’s view.

The court considered Talla’s mitigating factors prior to reaching this conclusion.

Considering the evidence available to the sentencing court, we are not “satisfied

that [the court’s findings] are contrary to a clear preponderance of the evidence.”

Gartner v. Temple, 2014 S.D. 74, ¶ 8, 855 N.W.2d 846, 850 (quoting In re Estate of

Olson, 2008 S.D. 97, ¶ 9, 757 N.W.2d 219, 222).

[¶14.]       Moreover, “[r]ehabilitation ‘is not a bright-line rule that must be

considered in every case.’” Rice, 2016 S.D. 18, ¶ 26 n.6, 877 N.W.2d at 84 n.6

(quoting State v. Milk, 2000 S.D. 28, ¶ 18, 607 N.W.2d 14, 20); see also Atiyeh v.

Capps, 449 U.S. 1312, 1314, 101 S. Ct. 829, 830, 66 L. Ed. 2d 785 (1981) (“[T]here is

nothing in the Constitution that says that ‘rehabilitation’ is the sole permissible

goal of incarceration . . . .”). Retribution, deterrence, incapacitation, and

rehabilitation are each legitimate penological goals. See Harmelin v. Michigan,

501 U.S. 957, 999, 111 S. Ct. 2680, 2704, 115 L. Ed. 2d 836 (1991) (Kennedy, J.,

concurring in part and concurring in the judgment); Rice, 2016 S.D. 18, ¶ 26 n.6,

877 N.W.2d at 84 n.6. None of these goals is “preeminent over any of the others.”

Anderson, 1996 S.D. 46, ¶ 31, 546 N.W.2d at 402 (quoting State v. Ramos, 1996 S.D.

37, ¶ 14, 545 N.W.2d 817, 821); see also Harmelin, 501 U.S. at 999, 111 S. Ct.

at 2704. “[T]he sentencing court determines, on a case-by-case basis, which theory

is accorded priority.” Anderson, 1996 S.D. 46, ¶ 31, 546 N.W.2d at 403.

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[¶15.]       As noted above, the sentencing court had serious concerns about

Talla’s ability to “return to the community and engage in healthy relationships with

other partners[.]” Notably, the court found that Talla was not significantly

remorseful. The court was also convinced that the age disparity between Talla and

Gayya, Talla’s response to Gayya’s formal request for child support (i.e., quitting his

job to avoid garnishment), and ultimately, Talla’s fatal attempt to control Gayya’s

relationships were evidence of domestic abuse. The court also noted that Talla has

two other children by two other mothers, one of whom was—like Gayya—much

younger than Talla. Thus, the court was concerned that Talla’s other partners (and

prospective partners) would be at risk of a fate similar to Gayya’s. So even if we

were convinced that the court clearly erred in determining Talla’s prospects for

rehabilitation were purely speculative, the court’s concerns also support the

sentence imposed under theories of deterrence and incapacitation.

                                     Conclusion

[¶16.]       A sentencing court could reasonably conclude that Talla’s offense is

among the most serious commissions of first-degree manslaughter. Our opinion in

Rice, even when considered in the context of Talla’s mitigating factors, does not

suggest otherwise. The court’s finding that rehabilitation was speculative is not

clearly erroneous. Therefore, we are not convinced the court abused its discretion

by sentencing Talla to imprisonment for life for killing Gayya.

[¶17.]       We affirm.

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




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