#26983-a-LSW

2014 S.D. 79

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

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

      v.

FRANKIE LEE WEBB,                         Defendant and Appellant.


                                 ****

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

                                 ****

                     THE HONORABLE JOSEPH NEILES
                                Judge

                                 ****

MARTY J. JACKLEY
Attorney General

JOHN M. STROHMAN
Assistant Attorney General
Pierre, South Dakota                      Attorneys for plaintiff
                                          and appellee.


MOLLY C. QUINN
Office of the Minnehaha County
 Public Defender
Sioux Falls, South Dakota                 Attorneys for defendant
                                          and appellant.

                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON OCTOBER 6, 2014

                                          OPINION FILED 11/05/14
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WILBUR, Justice

[¶1.]         Frankie Webb pleaded guilty to possession of a controlled drug or

substance. The circuit court sentenced Webb to five years in prison with two years

suspended. One of the conditions of the suspended sentence was that Webb pay a

$10,000 fine. Webb appeals and argues that the $10,000 fine was grossly

disproportionate to the offense in violation of the Eighth Amendment. We affirm.

                                     Background

[¶2.]         On September 30, 2013, law enforcement received notification that an

individual by the name of Frankie Webb was selling illegal drugs near The

Banquet 1 in Sioux Falls. Law enforcement located Webb at The Banquet. Webb

consented to a search of his person, his car, and his cell phone. The police found a

pill bottle with Webb’s name on it that contained three bags of marijuana, seven

hydrocodone pills, and ten alprazolam pills. A search of Webb’s cell phone revealed

that he was engaged in buying and selling drugs. Law enforcement subsequently

arrested Webb.

[¶3.]         Webb was on parole at the time of his arrest. He indicated that he was

currently living at the Union Gospel Mission—a homeless shelter—and had recently

been approved for Social Security disability benefits. Webb further indicated that

he owned a recently-purchased vehicle. The record, however, is silent as to the

value of the vehicle and whether he owned any other assets.




1.      The Banquet is a facility that provides meals to those in need.

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[¶4.]         The State filed an indictment charging Webb with two counts of

possession of a controlled drug or substance, possession of two ounces or less of

marijuana, and possession of or use of drug paraphernalia. SDCL 22-42-5; SDCL

22-42-6; SDCL 22-42A-3. Webb had three prior felony convictions at the time of his

arrest—possession of a controlled substance in 2006, aggravated burglary in 2002,

and distribution of crack cocaine in 1999. Because of these prior convictions, the

State filed a Part II habitual offender information.

[¶5.]         Webb entered into a plea agreement whereby he agreed to plead guilty

to possession of a controlled drug or substance—to wit Hydrocodone—which is

classified as a Schedule II controlled substance. A violation of this offense is a Class

5 felony and carries a maximum sentence of five years imprisonment and a fine of

$10,000. SDCL 22-42-5; SDCL 22-6-1. The State agreed to cap the sentence at

three years of imprisonment. The State further agreed to dismiss the other three

charges and the Part II information.

[¶6.]         The circuit court conducted a plea and sentencing hearing. The court

noted that although the plea agreement contemplated three years imprisonment,

the court had discretion to sentence Webb to five years imprisonment and then

suspend two years; in addition, the court could impose the maximum fine of

$10,000. The court considered Webb’s criminal history and commented that, as an

habitual offender, Webb could have potentially faced up to life imprisonment or up

to fifteen years imprisonment. 2 The court then stated:



2.      The parties disputed whether the aggravated burglary in 1999 constituted a
        crime of violence. This determination would control whether Webb faced
                                                          (continued . . .)
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             I find the conduct as described by the reporting party to be
             pretty outrageous, and if all of that were true then the [S]tate
             would have charged you with distribution, and I would have
             sentenced you to the maximum possible sentence that I could
             impose. It is not acceptable to the court under any
             circumstances that someone distribute controlled substances in
             our community. And if you do, then you are going to look at a
             pretty substantial sentence. As it is, I have you here only on a
             possession charge, which is obviously less serious. . . . [E]ven
             though the [S]tate has dismissed the Part Two Information, I
             am not going to ignore those prior felony convictions. I am still
             entitled to take those into consideration.

The court sentenced Webb to five years of imprisonment with two years suspended

and fined him $10,000. The two suspended years of imprisonment were conditioned

on Webb paying the $10,000 fine. The court did not make a finding and the record




______________________________________
(. . . continued)
         fifteen years imprisonment or lifetime imprisonment as an habitual offender.
         Under SDCL 22-7-8:
             If a defendant has been convicted of three or more felonies in
             addition to the principal felony and one or more of the prior
             felony convictions was for a crime of violence as defined in
             subdivision 22-1-2(9), the sentence for the principal felony shall
             be enhanced to the sentence for a Class C felony.
      (Emphasis added). Alternatively, under SDCL 22-7-8.1, the statute provides
      in pertinent part:
             If a defendant has been convicted of three or more felonies in
             addition to the principal felony and none of the prior felony
             convictions was for a crime of violence . . . the sentence for the
             principal felony shall be enhanced by two levels . . . .
      Thus, under the Part II information, if Webb’s aggravated burglary was
      deemed a crime of violence, then Webb’s principal felony would be enhanced
      to a Class C felony. A Class C felony carries a maximum penalty of up to life
      imprisonment and a fine of up to $50,000. If Webb’s aggravated burglary was
      not deemed a crime of violence, then Webb’s principal felony charge would be
      enhanced to a Class 3 felony, which carries a maximum sentence of up to
      fifteen years imprisonment and a fine of up to $30,000.

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is silent as to whether Webb had the ability to pay the fine. Webb appeals and

raises the following issue for our review:

[¶7.]        Whether the $10,000 fine for possession of a controlled drug or
             substance is grossly disproportionate in violation of the Eighth
             Amendment prohibition on excessive fines.

                                Standard of Review

[¶8.]        An alleged infringement of a constitutional right is an issue of law to

be reviewed under the de novo standard. State v. One 1995 Silver Jeep Grand

Cherokee, 2006 S.D. 29, ¶ 3, 712 N.W.2d 646, 649 (citing State v. Krahwinkel, 2002

S.D. 160, ¶ 13, 656 N.W.2d 451, 458). Under this standard, “no deference is given to

the circuit court’s determination, and the decision is fully reviewable by this Court.”

Id. (citing Thieman v. Bohman, 2002 S.D. 52, ¶ 10, 645 N.W.2d 260, 262).

                                      Analysis

[¶9.]        Webb argues that the $10,000 fine imposed by the circuit court

constituted an “excessive fine” in violation of the United States and South Dakota

Constitutions because the fine was grossly disproportionate to the offense

committed. Webb further argues that the circuit court inappropriately failed to

consider his ability to pay the fine. As a result, Webb requests that this Court

remand the case for a new sentencing hearing.

[¶10.]       Both the Eighth Amendment to the United States Constitution and

Article VI, § 23, of the South Dakota Constitution prohibit the imposition of

“excessive fines.” The purpose of the Excessive Fines Clause is to limit “the

government’s power to extract payments, whether in cash or in kind, as punishment

for some offense.” Austin v. United States, 509 U.S. 602, 609-10, 113 S. Ct. 2801,


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2805, 125 L. Ed. 2d 488 (1993) (emphasis omitted) (internal quotation marks

omitted). The Excessive Fines Clause “protects against fines that are grossly

disproportionate to the offense.” Krahwinkel, 2002 S.D. 160, ¶ 38, 656 N.W.2d at

464. A criminal fine is not grossly disproportionate if it bears “some relationship to

the gravity of the offense that it is designed to punish.” Id. The gross

disproportionality standard is only applicable in the “exceedingly rare and extreme

case.” Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1173, 155 L. Ed. 2d 144

(2003) (internal quotation marks omitted).

[¶11.]       This is the first instance in which we have addressed the Excessive

Fines Clause as it applies to a criminal fine. We have previously addressed the

Excessive Fines Clause as it applies to civil forfeitures and civil fines. See One 1995

Silver Jeep Grand Cherokee, 2006 S.D. 29, 712 N.W.2d 646 (civil forfeiture);

Krahwinkel, 2002 S.D. 160, 656 N.W.2d 451 (civil fine). In One 1995 Silver Jeep

Grand Cherokee, we applied a two-pronged approach for assessing gross

disproportionality. 2006 S.D. 29, ¶ 5, 712 N.W.2d at 650 (citing United States v.

Dodge Caravan Grand SE, 387 F.3d 758, 763 (8th Cir. 2004)). “First, the claimant

must make a prima facie showing of gross disproportionality; and, second, if the

claimant can make such a showing, the court considers whether the

disproportionality reaches such a level of excessiveness that in justice the

punishment is more criminal than the crime.” Id. (internal quotation marks

omitted).

[¶12.]       In order to make a prima facie showing of gross disproportionality, we

have said that, in the context of civil forfeitures and civil fines, particular attention


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must be given to a number of factors. See id. ¶ 8, 712 N.W.2d at 650; Krahwinkel,

2002 S.D. 160, 656 N.W.2d 451. Accordingly, we find it instructive to consider

certain factors in determining whether the $10,000 criminal fine in this case is

grossly disproportionate to the offense. The list of factors is not exhaustive and, “in

weighing these factors, mathematical exactitude in the analysis is not required.”

One 1995 Silver Jeep Grand Cherokee, 2006 S.D. 29, ¶ 8, 712 N.W.2d at 650

(quoting In re Property Seized from Terrell, 639 N.W.2d 18, 21 (Iowa 2002))

(internal quotation marks omitted); see also Lockyer, 538 U.S. at 72, 123 S. Ct. at

1173 (acknowledging that the United States Supreme Court “cases exhibit a lack of

clarity regarding what factors may indicate gross disproportionality”).

[¶13.]       One of the primary considerations for assessing gross

disproportionality should necessarily be the Legislature’s judgment about the

appropriate punishment for the offense. See One 1995 Silver Jeep Grand Cherokee,

2006 S.D. 29, ¶ 8, 712 N.W.2d at 651 (stating that “[c]riminal fines . . . reflect

judgments made by the legislature about the appropriate punishment for an

offense”); Graham v. Florida, 560 U.S. 48, 71, 130 S. Ct. 2011, 2028, 176 L. Ed. 2d

825 (2010) (recognizing that “[c]riminal punishment can have different goals, and

choosing among them is within a legislature’s discretion”); United States v.

Bajakajian, 524 U.S. 321, 336, 118 S. Ct. 2028, 2037, 141 L. Ed. 2d 314 (1998)

(acknowledging that “judgments about the appropriate punishment for an offense

belong in the first instance to the legislature”); Solem v. Helm, 463 U.S. 277, 290,

103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637 (1983) (stating that “[r]eviewing courts . . .

should grant substantial deference to the broad authority that legislatures


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necessarily possess in determining the types and limits of punishments for crimes”).

This consideration, however, is not dispositive because a fine that falls within the

statutory limits may still violate the Eighth Amendment and South Dakota

Constitution’s prohibition of grossly disproportionate punishment. See One 1995

Silver Jeep Grand Cherokee, 2006 S.D. 29, ¶¶ 8-11, 712 N.W.2d at 650-52.

Nonetheless, a criminal fine that falls within the statutory limits is almost certainly

not excessive. See id. ¶ 8, 712 N.W.2d at 651.

[¶14.]       In enacting SDCL 22-42-5, the Legislature determined that the

appropriate punishment for possession of a controlled Schedule II substance is a

Class 5 felony, which carries a penalty of up to five years imprisonment and up to a

$10,000 fine, or both. This penalty is consistent with the punishments for similar

controlled substance offenses found within SDCL chapter 22-42. The Legislature

has long recognized the negative impact that drug related offenses have on our

society, and the punishments for these offenses reflect that consideration. Here,

Webb was in possession of illegal drugs, and as the factual basis indicated, he was

also engaged in buying and selling those drugs. SDCL 22-42-5 was enacted to curb

exactly this type of conduct. Consequently, because Webb’s $10,000 fine falls within

the statutory range of SDCL 22-6-1, the criminal fine imposed by the circuit court is

almost certainly not excessive. See One 1995 Silver Jeep Grand Cherokee, 2006 S.D.

29, ¶ 8, 712 N.W.2d at 651.

[¶15.]       In assessing gross disproportionality, “a court must consider the entire

circumstances surrounding the offense” that led to the criminal fine. See One 1995

Silver Jeep Grand Cherokee, 2006 S.D. 29, ¶ 11, 712 N.W.2d at 652. The factual


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basis for Webb’s guilty plea established that Webb, while already on parole, was

selling illegal drugs from his car outside of a facility providing meals to the needy.

Webb had hydrocodone, alprazolam, three bags of marijuana, and drug

paraphernalia in his possession.

[¶16.]       Webb was charged with three other drug related offenses in addition to

the one to which he pleaded guilty. The circuit court acknowledged that the factual

basis supported charging Webb with distribution as well, which carries a more

severe punishment. In addition, as an habitual offender, Webb could have faced up

to life imprisonment or up to fifteen years imprisonment under an enhanced

sentence. The “entire circumstances” surrounding the offense do not suggest that

the $10,000 fine was grossly disproportionate.

[¶17.]       Nonetheless, Webb argues that the fine is grossly disproportionate to

the offense because he was not able to pay the fine. According to Webb, because the

circuit court did not consider Webb’s ability to pay the fine, this case should be

remanded to the circuit court for a new hearing.

[¶18.]       Webb cites to two Eighth Circuit Court of Appeals cases in support of

his argument that the circuit court should have considered his ability to pay the

fine. See United States v. Lippert, 148 F.3d 974, 978 (8th Cir. 1998); United States

v. Hines, 88 F.3d 661, 664 (8th Cir. 1996). Both of these cases involved a defendant

who was convicted of a federal offense. Hines involved a criminal fine whereas

Lippert involved a civil fine. The court in Hines noted that the defendant’s ability to

pay the fine is indeed a “critical factor” because the United States Sentencing

Commission Guidelines “mandate that this factor be considered . . . .” According to


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U.S.S.G. § 5E1.2(d)(2), the court shall consider “any evidence presented as to the

defendant’s ability to pay the fine (including the ability to pay over a period of time)

in light of his earning capacity and financial resources.” This sentencing guideline

applies to federal crimes and not to the state crime to which Webb pleaded guilty.

Therefore, this argument is unpersuasive.

[¶19.]       Notwithstanding the two Eighth Circuit Court of Appeals decisions,

Webb contends that consideration of his ability to pay was necessary given the

unique facts of this case. Webb points out that he was on Social Security disability,

he was living at the Union Gospel Mission at the time of his arrest, and he is

currently incarcerated and therefore unable to work. Furthermore, Webb notes that

there is nothing in the record to determine his net worth. According to Webb, these

facts should have alerted the court to consider his ability to pay the fine.

[¶20.]       In support of this argument, Webb cites to State v. Pettis, 333 N.W.2d

717, 721 (S.D. 1983). In Pettis, the defendant pleaded guilty to distribution of

marijuana. The circuit court sentenced Pettis to two years imprisonment and fined

him $2,000, to be paid within 90 days. Pettis did not assert a constitutional

challenge; this Court’s analysis was limited to whether the probation condition was

legal and reasonable. See White Eagle v. State of S.D., 280 N.W.2d 659, 660 (S.D.

1979) (holding that “the only limitation on what conditions may be imposed are that

they be legal and reasonable”). In our analysis, we noted that the circuit court

expressly determined that Pettis had the ability to pay the fine in 90 days. We

further said that “Pettis was in a reprehensible business and should not be heard to




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complain of his conditions of probation. [Pettis’s] probation gave him freedom at a

cost.” Pettis, 333 N.W.2d at 721.

[¶21.]       Webb argues that every factor that warranted the fine in Pettis is

absent here. According to Webb, he does not have “freedom at a cost” because he

does not possess the ability to pay the fine. This argument, however, loses sight of

the question at issue—whether the criminal fine is grossly disproportionate to the

offense committed. Here, Webb was charged with three other drug related offenses

in addition to the one to which he pleaded guilty. He had two prior drug related

felony convictions on his record as well as a felony conviction for aggravated

burglary. As an habitual offender, he faced the potential of a much more severe

sentence than the one he received. Moreover, the punishment he did receive falls

within the statutory range prescribed in SDCL 22-6-1. Accordingly, Webb has

failed to make a prima facie showing that the $10,000 fine is grossly

disproportionate to the offense committed.

[¶22.]       We affirm.

[¶23.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and

SEVERSON, Justices, concur.




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