#28455-a-JMK
2019 S.D. 12

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA


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

      v.

SHAYLAN J. YEAGER,                          Defendant and Appellant.

                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                 THE HONORABLE JEFFREY R. CONNOLLY
                               Judge

                                   ****

MARTY J. JACKLEY
Attorney General

QUINCY R. KJERSTAD
Assistant Attorney General
JOHNATHAN STIEN
Legal Intern
Pierre, South Dakota                        Attorneys for plaintiff and
                                            appellee.

JEFFREY J. FRANSEN of
Pennington County Public
 Defender’s Office
Rapid City, South Dakota                    Attorneys for defendant and
                                            appellant.


                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON JANUARY 7, 2019
                                            OPINION FILED 03/06/19
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KERN, Justice

[¶1.]         Shaylan Yeager pled guilty to second-degree rape pursuant to a plea

agreement. The circuit court sentenced him to forty years in the state penitentiary,

with five years suspended, to run consecutive to the prison term Yeager is currently

serving in Iowa for offenses involving the same victim. Yeager appeals, alleging the

sentence was cruel and unusual in violation of the Eighth Amendment and an

abuse of discretion. We affirm.

                           Facts and Procedural History

[¶2.]         In 2008, Yeager pled guilty to five counts of third-degree sexual abuse

in Iowa district court for conduct involving his fourteen-year-old daughter M.Y. The

court sentenced Yeager to thirty years in prison in early 2009. In 2016, Yeager’s ex-

wife contacted the Pennington County Sheriff’s Office and reported that Yeager had

also abused M.Y. in August 2008 while their family vacationed in the Black Hills.

An investigation ensued and, while Yeager was still serving his Iowa sentence, the

Pennington County grand jury indicted him for ten counts of rape, sexual contact,

and incest. 1 On July 14, 2017, pursuant to a plea agreement, Yeager pled guilty to

one count of second-degree rape as defined in SDCL 22-22-1(2) 2 in exchange for




1.      Yeager was charged with three counts of second-degree rape, one alternative
        count of fourth-degree rape, three alternative counts of sexual contact with a
        child under sixteen years of age and three alternative counts of aggravated
        incest.

2.      SDCL 22-22-1(2) defines rape as “an act of sexual penetration . . . . [t]hrough
        the use of force, coercion, or threats of immediate and great bodily harm
        against the victim or other persons within the victim’s presence, accompanied
        by apparent power of execution[.]”
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dismissal of the remaining nine charges and an agreement that the State would

forego future prosecutions in Custer County.

[¶3.]        At a subsequent sentencing hearing, the court considered numerous

factors when fashioning Yeager’s sentence, including: (1) statements from the victim

and her mother; (2) Dr. Donald Janz’s evaluation of Yeager concluding he posed a

low risk of reoffending; (3) protection of the public; (4) Yeager’s pre-sentence

investigation, including his lack of criminal history; (5) retribution; and (6) the

significant lapse of time between the offense and its prosecution. The court

sentenced Yeager to forty years in prison with five years suspended and ordered

that his South Dakota sentence run consecutive to his prison term in Iowa. Yeager

appeals, raising two issues for our review:

             1.     Whether Yeager’s sentence is excessive under the Eighth
                    Amendment.

             2.     Whether the circuit court abused its discretion in
                    sentencing Yeager.

                               Analysis and Decision

             1.     Whether Yeager’s sentence is excessive under the Eighth
                    Amendment.

[¶4.]        Yeager asserts that his sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment. U.S. Const. amends. VIII, XIV.

“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.” State v. Rice, 2016 S.D. 18, ¶ 13, 877

N.W.2d 75, 80. To make this determination, we “compare the gravity of the

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

all permitted punishments.” Id. (citations omitted). Thus, when comparing

Yeager’s sentence to other penalties, we are not limited to the range of penalties

available for second-degree rape, but rather contemplate its harshness across the

sphere of all punishments permitted by the laws of our state. See id., 2016 S.D. 18,

¶ 19, 877 N.W.2d at 82.

[¶5.]        If, after considering those factors, the penalty appears “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.’” State v. Chipps, 2016 S.D.

8, ¶ 38, 874 N.W.2d 475, 489 (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.’” Rice, 2016 S.D. 18, ¶ 13, 877 N.W.2d 75, 80 (quoting

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

[¶6.]        We first review the gravity of Yeager’s crime. Rape is a heinous crime,

especially so when the victim is the perpetrator’s child. In its discussion of the

nature of this offense, the United States Supreme Court observed that “[r]ape is

without doubt deserving of serious punishment[.]” Coker v. Georgia, 433 U.S. 584,

598, 97 S. Ct. 2861, 2869, 53 L. Ed. 2d 982 (1977). It is a “violent crime because it

normally involves force, or the threat of force or intimidation, to overcome the will

and the capacity of the victim to resist.” Id. at 597, 97 S. Ct. at 2869. “[R]ape is

very often accompanied by physical injury to the [victim] and can also inflict mental


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and psychological damage. Because it undermines the community’s sense of

security, there is public injury as well.” Id. Child rape “may be devastating in [its]

harm.” See Kennedy v. Louisiana, 554 U.S. 407, 407, 128 S. Ct. 2641, 2644, 171 L.

Ed. 2d 525 (2008). Based on the enormity of the harm to the victim and the

community, the gravity of Yeager’s crime is comparatively high when weighed

against other criminal acts.

[¶7.]        As to the harshness of Yeager’s sentence, the circuit court imposed a

forty-year sentence, with five years suspended, to run consecutively with his

sentence in Iowa. Second-degree rape is a felony punishable by up to fifty-years

imprisonment, a maximum $50,000 fine, or both. See SDCL 22-6-1(4). The circuit

court’s sentence is ten years below the statutory maximum available for the crime,

with five additional years of Yeager’s sentence suspended. When viewed on the

spectrum of all permitted punishments, which includes the possibility of death for

Class A felonies and mandatory life imprisonment for Class A and Class B felonies,

Yeager’s penalty for raping M.Y. in South Dakota is well below the harshest

possible punishment permitted. Therefore, Yeager’s “sentence does not appear to be

grossly disproportionate.” Rice, 2016 S.D. 18, ¶ 15, 877 N.W.2d at 81.

[¶8.]        Notwithstanding the foregoing, Yeager argues the circuit court’s

imposition of a forty-year sentence for one offense was cruel and unusual because it

was grossly disproportionate to the sentence he received in Iowa for virtually the

same criminal conduct. The Iowa district court imposed a thirty-year sentence upon

Yeager for five counts relating to the sexual abuse of M.Y. Yeager also argues that

he was prejudiced by his ex-wife’s delay in reporting the offense because if he had


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been charged in South Dakota at the same time as his prosecution in Iowa, he could

have explored a global plea agreement involving concurrent sentences.

[¶9.]        Although Yeager’s sentence in South Dakota involves a longer prison

term than he is serving in Iowa, his arguments are meritless. Our legislature has

vested circuit courts with the authority to hand down consecutive sentences. See

State v. Red Kettle, 452 N.W.2d 774, 777 (S.D. 1990); SDCL 22-6-6.1 (“If a defendant

is convicted of two or more offenses, [the] . . . sentence may . . . run concurrently or

consecutively at the discretion of the court.”). While harsher than a concurrent

sentence, the mere fact that Yeager’s sentence was imposed consecutively does not

make it grossly disproportionate. Further, Yeager’s argument that the delay in

reporting somehow prejudiced him because he could have negotiated a more

favorable multi-jurisdictional plea agreement is speculative at best.

[¶10.]       After weighing the gravity of the offense against the sentence Yeager

received, the circuit court did not violate Yeager’s constitutional rights when it

imposed a sentence within the authorized fifty-year maximum. “If the threshold

requirement of gross disproportionality is not met, the analysis under the Eighth

Amendment ends.” State v. Traversie, 2016 S.D. 19, ¶ 15, 877 N.W.2d 327, 332.

Accordingly, no further review of Yeager’s challenge on Eighth Amendment grounds

is warranted.

             2.     Whether the circuit court abused its discretion in
                    sentencing Yeager.

[¶11.]       Circuit courts exercise broad discretion in imposing sentences and

when challenged on appeal they are reviewed for abuse of discretion. Rice,

2016 S.D. 18, ¶ 23, 877 N.W.2d at 83. “An abuse of discretion is a fundamental

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

(citations omitted).

[¶12.]       “Before sentencing a defendant, the court is to ‘acquire a thorough

acquaintance with the character and history of the person before it.’” State v. Diaz,

2016 S.D. 78, ¶ 47, 887 N.W.2d 751, 765 (quoting State v. Lemly, 1996 S.D. 91, ¶ 12,

552 N.W.2d 409, 412). It should consider the defendant’s “‘general moral character,

mentality, habits, social environment, tendencies, age, aversion or inclination to

commit crime, life, family, occupation, and previous criminal record[,]’ as well as the

rehabilitative prospects of the defendant.” State v. Overbey, 2010 S.D. 78, ¶ 36, 790

N.W.2d 35, 44 (quoting State v. Blair, 2006 S.D. 75, ¶ 27, 721 N.W.2d 55, 63).

[¶13.]       Yeager claims that his South Dakota sentence should be “struck down”

because his convictions in Iowa and South Dakota involve the same course of

conduct when analyzed under the “same evidence test” set forth in State v. Red

Kettle. 452 N.W.2d 774, 775–76 (S.D. 1990). According to Yeager, the crimes he

committed in Iowa are too similar to his conduct in South Dakota to allow

consecutive sentences.

[¶14.]       Red Kettle expressed that a “state and federal court may each sentence

a defendant for the commission of a single act constituting an offense under both

state and federal law,” but the sentences may only run consecutively when the

elements of the state and federal offenses are different. See id. at 775 (emphasis

added). Yeager’s convictions in South Dakota and Iowa did not arise from a single

act. Rather, every instance of rape involved different facts and constituted a

separate crime, albeit against the same victim. Because the South Dakota rape


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conviction involved a separate act from any of the Iowa convictions our decision in

Red Kettle is inapposite here.

[¶15.]       Yeager also argues the circuit court failed to consider mitigating

evidence including: his acceptance of responsibility and remorse, the delay in

reporting the crimes, and testimony from Dr. Janz that he fell “in the low risk range

for sexual recidivism.” Based on our review of the sentencing transcript, however, it

is apparent that the court considered these and other factors, including the nature

of the offense which the court described as “a heinous and disgusting crime.”

[¶16.]       Generally, we will not disturb a sentence that is within the statutory

maximum. See State v. Talla, 2017 S.D. 34, ¶ 10, 897 N.W.2d 351, 354. While a

consecutive sentence may be harsh, “[t]he South Dakota Legislature has authorized

the[ir] imposition . . . .” See Red Kettle, 452 N.W.2d at 775. Yeager subjected M.Y.

to years of sexual abuse in two different states, which she described to the circuit

court as years filled with “suffering and confusion and just pure horror” affecting

“every single aspect of [her] life.” While the penalty is lengthy, we cannot say the

circuit court abused its discretion. We affirm.

[¶17.]       GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices,

and SEVERSON, Retired Justice, concur.




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