#25918-a-DG

2011 S.D. 93

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

JASON THOMAS LARSEN-SMITH,                   Defendant and Appellant.

                                   * * * *

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

                                   * * * *

                        HONORABLE JOSEPH NEILES
                                Judge

                                   * * * *

MARTY J. JACKLEY
Attorney General

MAX A. GORS
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

MICHELLE M. THOMAS
Minnehaha County Public
 Defender’s Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.

                                   * * * *

                                             CONSIDERED ON BRIEFS
                                             ON NOVEMBER 14, 2011

                                             OPINION FILED 12/21/11
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GILBERTSON, Chief Justice

[¶1.]        Jason Thomas Larsen-Smith appeals his sentence for manslaughter in

the first degree. Larsen-Smith was sentenced to life without parole. Larsen-Smith

argues the sentence amounts to cruel and unusual punishment in violation of the

Eighth Amendment. Because the sentence is within the statutory maximum and

does not appear to be grossly disproportionate, the sentence is affirmed.

                                        Facts

[¶2.]        In the early morning hours of December 18, 2009, Steven Schade of the

South Dakota Highway patrol observed Larsen-Smith’s vehicle cross over the center

line on 41st Street in Sioux Falls. When Schade activated his lights Larsen-Smith

attempted to outrun him. Schade pursued. The pursuit continued through Sioux

Falls, reaching speeds of 90 miles per hour. At the intersection of 12th Street and

Ellis Road, Larsen-Smith ran a red light and collided with a Ford Ranger that was

proceeding through the intersection in the other direction. The driver of the Ford

Ranger died at the scene. Larsen-Smith was taken to the hospital, where a blood

draw, taken at least one hour after the accident, established his blood alcohol level

to be .12 percent.

[¶3.]        Larsen-Smith was charged by indictment with second-degree murder,

first-degree manslaughter, aggravated eluding, driving while revoked, driving

under the influence, and possession of two ounces or less of marijuana. A part two

information alleged the DUI was a fifth offense. Larsen-Smith later entered a

guilty plea to first degree manslaughter (SDCL 22-16-15(1)) and DUI; Larsen-Smith



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also admitted the part two information. The circuit court ordered a presentence

investigation (PSI).

[¶4.]         At sentencing, the wife and stepdaughter of the decedent read

prepared statements on how the death had devastated their lives. The sentencing

court addressed Larsen-Smith, and sentenced him to life without the possibility of

parole on the manslaughter conviction and a consecutive ten-year sentence on the

DUI conviction. Larsen-Smith appeals the sentence.

                                       Analysis

[¶5.]         Larsen-Smith challenges the constitutionality of his sentence. He

argues that life without parole is disproportionate to his crime, and therefore

violates the Eighth Amendment’s prohibition against cruel and unusual

punishment.

              It is well-settled that we employ very limited principles in our
              constitutional review of sentences. These principles include
              giving substantial deference to the legislature’s broad authority
              to determine the types and limits of punishment; and the notion
              that the Eighth Amendment does not mandate adoption of any
              one penological theory. Consequently, a sentence within the
              statutory maximum will rarely be disturbed. This Court applies
              the gross disproportionality test when assessing the
              constitutionality of a particular sentence.

State v. Iannarelli, 2008 S.D. 121, ¶ 12, 759 N.W.2d 122, 125 (citations and internal

quotation marks omitted).

[¶6.]         “[T]o 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. If these circumstances fail to suggest gross

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disproportionality, our review ends.” State v. Bonner, 1998 S.D. 30, ¶ 17, 577

N.W.2d 575, 580. “It is a rare case in which a threshold comparison of the crime

committed and the sentence imposed leads to an inference of gross

disproportionality.” Iannarelli, 2008 S.D. 121, ¶ 12, 759 N.W.2d at 125 (citation

and internal quotation marks omitted).

[¶7.]        First-degree manslaughter in violation of SDCL 22-16-15(1) is a Class

C felony. The maximum penalty for a Class C felony is life imprisonment. SDCL

22-6-1(3). Larsen-Smith’s sentence is within the statutory maximum.

[¶8.]        To arrive at an appropriate sentence: “the sentencing court should

‘acquire a thorough acquaintance with the character and history of the man before

it.’ This study should examine a defendant’s ‘general moral character, mentality,

habits, social environment, tendencies, age, aversion or inclination to commit crime,

life, family, occupation, and previous criminal record.’” Bonner, 1998 S.D. 30, ¶ 19,

577 N.W.2d at 580 (citations omitted).

[¶9.]        The sentencing court acquired an appropriate acquaintance with

Larsen-Smith. At the time of this offense, Larsen-Smith was nearly 31 years old.

Larsen-Smith was not married and had a son. Larsen-Smith’s mother was killed by

a drunk driver when he was two years old. He was raised by his maternal

grandparents. When not incarcerated, it appears that Larsen-Smith had

maintained employment. However, Larsen-Smith had spent a great deal of time

incarcerated.

[¶10.]       Since turning 18, Larsen-Smith pleaded guilty to seven previous DUI

charges. Larsen-Smith was first incarcerated at the penitentiary in 1999. He has

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been paroled six times and violated each time. Five of his violations were for DUI.

He has spent no more than ten consecutive months outside of prison since 1999.

[¶11.]       On one occasion, a Sioux Falls police officer responded to a roll-over.

Larsen-Smith, the driver, was able to get his vehicle upright. An individual

attempted to crawl through the vehicle’s window and remove Larsen-Smith from

the vehicle. Larsen-Smith drove away with the person hanging from his window.

The police reports indicate that the individual was nearly drug under the wheels of

Larsen-Smith’s vehicle. The PSI includes reports of other incidents involving

eluding the police.

[¶12.]       Larsen-Smith’s criminal history demonstrates his unwillingness to

avoid alcohol, and to avoid driving after drinking. This unwillingness illustrates his

disregard for the safety of the public. The conclusion from acquiring a thorough

acquaintance with Larsen-Smith is that this tragic incident was highly probable as

long as Larsen-Smith had the ability to obtain alcohol and a vehicle.

[¶13.]       Larsen-Smith argues that the sentencing court did not give enough

weight to his injury in considering the danger he posed to society. At sentencing, a

neurologist testified that Larsen-Smith suffered a brain injury as a result of the

accident. This neurologist testified that Larsen-Smith will likely suffer continued

lack of dexterity and strength on his right side and also complications with his

sight. Larsen-Smith argues that these physical limitations would prevent him from

driving again, which would eliminate the concern for public safety articulated by

the sentencing court. But the fact and degree of Larsen-Smith’s injury are

questionable.

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[¶14.]       The neurologist agreed that Larsen-Smith’s treating physicians did not

diagnose a brain injury. Further, the State introduced a video of Larsen-Smith

lifting weights in the exercise yard of the penitentiary. While Larsen-Smith did not

lift heavy weights, his agility and strength certainly did not appear so deficient as

to physically prevent him from driving. Finally, as pointed out by the State, the

negative effects of alcohol have not prevented Larsen-Smith from driving in the

past, leaving little assurance that limited strength and occasional minor vision

problems would.

[¶15.]       Larsen-Smith accuses the sentencing court of improperly ignoring

Larsen-Smith’s prospects for rehabilitation. Larsen-Smith argues that:

             a life sentence should only be imposed when a trial court[ ] can
             determine from the facts of the principal offense and the
             previous convictions that rehabilitation is so unlikely as to be
             removed from consideration in sentencing; that the interests of
             society demand that the [defendant] be kept off the streets for
             the rest of his life . . . .

State v. Ramos, 1996 S.D. 37, ¶ 17, 545 N.W.2d 817, 821 (citation and internal

quotation marks omitted). Larsen-Smith has been convicted of DUI eight times.

Larsen-Smith concedes in his brief that he has completed alcohol treatment classes

pursuant to earlier sentences. Nothing in his history gives any hint that

rehabilitation would work this time. Incarceration is the only thing that has

successfully prevented Larsen-Smith from drinking and driving. His history proves

that the interests of society demand the sentence imposed.

[¶16.]       Further, prospects for rehabilitation need not be considered each time

a defendant receives a life sentence. State v. Milk, 2000 S.D. 28, ¶ 18, 607 N.W.2d


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14, 20. This Court “will address this subject only if we initially determine that

there is a gross disproportionality in the sentence.” Id. “Clearly there are some acts

of such a criminal magnitude that they justify a life sentence whether the

perpetrator is capable of rehabilitation or not. In such instances the sentence is not

disproportionate to the crime.” Id.

[¶17.]       The charged conduct resulted in the death of a totally innocent man.

The victim’s family testified at sentencing. Not only did the death cause the

anticipated emotional devastation, but the family had to sell their home. Larsen-

Smith’s relevant past conduct reveals his disregard for the safety of the public and

the authority of law. Larsen-Smith has shown no responsiveness to rehabilitation –

too many efforts toward that goal have failed. The sentence imposed does not

appear grossly disproportionate. This Court’s analysis need proceed no further.

Bonner, 1998 S.D. 30, ¶ 17, 577 N.W.2d at 580.

                                      Conclusion

[¶18.]       The circuit court did not abuse its discretion when it sentenced Larsen-

Smith to life without parole. The sentence does not appear grossly disproportionate

to the crime. Larsen-Smith received a statutorily authorized sentence for his

conviction. The circuit court properly acquired a thorough acquaintance with

Larsen-Smith and imposed a sentence that took into consideration the safety of the

public and Larsen-Smith’s prospects for rehabilitation.

[¶19.]       Affirmed.

[¶20.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.



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