
	Unified Judicial System

    

State of South DakotaPlaintiff and Appelleev.Nelda EkernDefendant and Appellant[2001 SD 20]
South Dakota Supreme CourtAppeal from the Circuit Court of The Seventh Judicial CircuitPennington County, South DakotaHon. Janine M. Kern, Judge
Mark Barnett, Attorney General Jason A. Glodt, Assistant Attorney General Pierre, South Dakota
Attorneys for plaintiff and appellee
 
Kelly D. Frazier Pennington County Public Defender's Office Rapid City, South Dakota
Attorneys for defendant and appellant
 
Considered on Briefs February 13, 2001
Opinion Filed 2/26/2001
#21600
PER CURIAM 
[Â¶1.] An attorney with the Pennington County Public Defender once again claims a sentence violates the constitutional protection against cruel and unusual punishment.[1]   Here, the claim is that a two year penitentiary sentence for third offense felony DUI is constitutionally infirm.  This suggestion "borders on the bizarre."  State v. Winchester, 438 NW2d 555, 556 (SD 1989).  
[Â¶2.] Ekern is a chronic alcoholic and has been arrested over thirty times for drug and alcohol related offenses.  She has eight lifetime DUI arrests, and, without counting the felony DUI in this case, two felony DUIs in the last five years.  She has completed five inpatient treatment programs and still drinks and drives.  
[Â¶3.] In this case, she pled guilty and received the benefit of a plea agreement.  Her sentence was within statutory limits.  After considering "the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court," Bonner, 1998 SD 30, Â¶17, 577 NW2d 580, it is abundantly clear that there is not even a remote suggestion of gross disproportionality.[2] 
[Â¶4.] The judgment is affirmed.
[Â¶5.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

[1].         All of the following cases have been summarily affirmed.  See, 21497, State v. Kostaneski, ___ NW2d ___ (Table)(2001); 21368, State v. Herron, ___ NW2d ___ (Table)(2000); 21434, State v. Jeunesse, ___ NW2d ___ (Table)(2000); 21182, State v. Genco, 614 NW2d 828 (Table)(2000); 21238, State v. Stands, 614 NW2d 828 (Table)(2000); 21250, State v. Orem, 614 NW2d 828 (Table)(2000); 21112, State v. Verhelst, 608 NW2d 330 (Table)(2000); 20711, State v. Gear, 596 NW2d 734 (Table)(1999); 20607, State v. Meeks, 590 NW2d 709 (Table)(1999).  See also all the cases cited in Justice Gilbertson's special concurrence in State v. Bonner, 1998 SD 30, 577 NW2d 575.  We cite these cases not to contravene SDCL 15-26A-87.1(E), but to show the Pennington County Public Defender's pattern with regard to this issue.
 

[2].         Attorneys should be mindful of South Dakota Rules of Professional Conduct, Rule 3.1.  Meritorious Claims and Contentions.

