State v. Lohnes , 1984 S.D. LEXIS 257 ( 1984 )

MORGAN, Justice

(dissenting).

I dissent.

I do not choose to speculate on what Lohnes had in mind when he so readily accepted the plea bargain, especially as to the length of sentence he anticipated. That is a quantitative analysis and there is nothing in the record to support it.

Lohnes bargained for and got a real benefit, a sentence with parole eligibility. He would have had no chance for parole had he been sentenced for life. SDCL 24-15-4 denies parole eligibility to prisoners sentenced to life imprisonment. As the Eighth Circuit Court of Appeals noted in Helm v. Solem, 684 F.2d 582, 585 (1982): “A life sentence without parole differs qualitatively from a sentence for a term of years

Lohnes committed a cold-blooded heinous crime. Protection of the public is an accepted justification for incarceration — get the criminal off the street. Considering the good-time credit Lohnes received and his parole eligibility factor,^* which is built into our criminal justice system, I would commend the trial judge for performing his duty and I would affirm.

* Lohnes’ parole eligibility factor arises under SDCL 24-15-5 and is based on the fact that he had no prior felony convictions. SDCL 24-15-5(1) provides:

A person is eligible for parole, subject to § 24-15-4:

(1) If convicted of a felony for the first time, when he has served one-fourth of the time for which he was sentenced; ....