State v. Larsen-Smith , 2011 S.D. LEXIS 150 ( 2011 )

#25918-a-DG
2011 S.D. 93IN 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
#25918
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
-1-
#25918
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
-2-
#25918
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
-3-
#25918
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.
-4-
#25918
[¶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
-5-
#25918
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.
-6-