State v. Chipps ( 2016 )

#27292, #27404-a-DG
2016 S.D. 8
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
CHRISTOPHER CHIPPS, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
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THE HONORABLE WARREN G. JOHNSON
Retired Judge
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MARTY J. JACKLEY
Attorney General
GRANT FLYNN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
DAVID L. CLAGGETT
Claggett & Dill, Prof. LLC
Spearfish, South Dakota Attorneys for defendant
and appellant.
****
CONSIDERED ON BRIEFS ON
NOVEMBER 30, 2015
OPINION FILED 01/27/16
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GILBERTSON, Chief Justice
[¶1.] A jury convicted Christopher Lee Chipps of one count of second-degree
burglary and four counts of identity theft. Facing a second trial for additional
criminal activity, Chipps pleaded guilty to one count of grand theft. He now appeals
his jury convictions and sentences imposed for each of the foregoing crimes. Chipps
asserts that he did not receive effective assistance of counsel, that his sentences are
cruel and unusual, and that there was insufficient evidence to sustain his
convictions. We affirm.
Facts and Procedural History
[¶2.] David and Charlotte Crisp shared a home as husband and wife in
Whitewood, South Dakota. Charlotte was diagnosed with leukemia in 2008 and
took several different medications to treat her illness and manage her pain,
including Lorazepam, a controlled substance. 1 On April 25, 2014, shortly after 7:30
p.m., the Crisps were watching television in their bedroom when Charlotte thought
she heard a vehicle in their driveway. David investigated but did not see anyone
outside.
[¶3.] Around 8:00 p.m., Charlotte asked David to bring her one of her
medications from their dining room. David discovered that Charlotte’s purse, their
cell phones, a bottle of Lorazepam, and Charlotte’s experimental cancer medications
were missing. 2 Further investigation revealed the basement lights were on, the
1. Charlotte lost her battle with leukemia on July 30, 2014.
2. David testified that a bottle of 20 of these experimental pills costs over
$4,400. Eight of these pills were taken in the burglary.
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basement door was open, several of David’s tools and a work jacket were missing,
and the dome light in his vehicle was on. David contacted law enforcement.
[¶4.] Lawrence County Sheriff’s Deputy Patrick Johnson was dispatched to
the Crisps’ residence at 8:07 p.m. and arrived within 10 minutes. Deputy Johnson
walked through the home and took pictures. Charlotte accessed her bank account
online. While Deputy Johnson and Charlotte were discussing the need to cancel her
credit and debit cards, unauthorized charges began appearing on her account. One
transaction occurred at 8:13 p.m. at Sonset Gas Station, which is located one to one-
and-one-half miles from the Crisps’ home. Three more transactions occurred at the
Walmart in neighboring Spearfish between 8:36 and 8:45 p.m. Deputy Johnson
contacted Detective Tavis Little of the Lawrence County Sheriff’s Office and alerted
him of the possible criminal activity.
[¶5.] After speaking with Deputy Johnson, Detective Little immediately
traveled to the Spearfish Walmart in order to obtain any available evidence.
Walmart employees provided Detective Little with a video recording of the
individual who had used Charlotte’s card. The recording showed a slender male
with short, dark hair and a tattoo on the left side of his neck. The man wore a work
jacket like the one David had noticed was missing from his home. The time stamps
on the recording corresponded to the time stamps on the receipts from the three
transactions involving Charlotte’s card.
[¶6.] After leaving Walmart, Detective Little contacted Sergeant Barff of the
Sturgis Police Department. Detective Little described the appearance of both the
individual he witnessed in the Walmart recording and the individual’s vehicle.
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Sergeant Barff told Detective Little that Chipps matched the given description.
Additionally, Detective Little learned that Chipps was known by the Sturgis Police
Department to drive a white Dodge Stratus. 3
[¶7.] Three days later, Detective Little also obtained a video recording from
Sonset’s manager showing the individual who had used Charlotte’s card at the
station. The recording showed a slender male with short, black hair—like the
individual shown in the Walmart recording—enter Sonset at 8:02 p.m. After
leaving the store, the same individual later returned in a white Dodge sedan, the
same style of vehicle that Detective Little associated with the individual he saw in
the Walmart recording. A portion of the vehicle’s license plate was legible. After
exiting the vehicle, the individual put on a work jacket of the same style worn by
the individual shown in the Walmart recording. After several attempts, the
individual successfully used Charlotte’s card to pay for fuel. As with the Walmart
transactions, the time stamps on the Sonset recording corresponded to the time
stamps on the receipts involving Charlotte’s card.
[¶8.] On April 30, Detective Little uncovered additional evidence. After
searching for Chipps’s name in an online registry of pawn-shop transactions,
Detective Little learned that Chipps had pawned a gold ring at First National Pawn
in Rapid City. The ring closely matched the description of a ring Charlotte reported
missing after the burglary. Detective Little also learned that Chipps had pawned a
pendant. After seeing pictures of the pawned jewelry, Charlotte confirmed they
belonged to her. Although the pawn shop was unable to make a copy of its video
3. The vehicle actually belonged to Chipps’s girlfriend.
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recording, Detective Little was able to view the recording of the transaction in
which Chipps sold Charlotte’s ring.
[¶9.] Later that day, Detective Little travelled to Chipps’s girlfriend’s home
in Blackhawk. Upon arriving, Detective Little noticed that the vehicle parked at
the residence was the same vehicle he had observed in the Walmart and Sonset
recordings. The vehicle’s license plate matched the portion of the license plate
visible in the video recordings. Chipps was present in the home, and Detective
Little recognized him as the individual shown in the recordings from Walmart,
Sonset, and First National Pawn. Chipps had a tattoo in the same spot as the
individual shown in the recordings. Meade County sheriff’s deputies arrested
Chipps, and Detective Little recovered Charlotte’s cell phone from the residence.
[¶10.] On April 18, 2014—one week before Chipps burglarized the Crisps’
home—Chipps had interviewed for potential employment with Justin Sherwood.
Shortly after the interview, Sherwood noticed that the keys to his vehicle were
missing. Sherwood reported the vehicle missing on June 26. The next day—and
after Chipps had been released on bond pending trial for the events surrounding the
Crisp burglary—Sturgis Police Officer Tyrone Lee noticed a vehicle matching the
description of the one Sherwood reported stolen. As Officer Lee approached the
vehicle, Chipps stepped out of the driver’s door. A check of the vehicle’s
identification number revealed that the vehicle was in fact the one reported stolen
by Sherwood. Meade County law enforcement took Chipps into custody for a second
time.
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[¶11.] Chipps was indicted in Lawrence County on May 22, 2014, with one
count of second-degree burglary in violation of SDCL 22-32-3, one count of grand
theft (more than $2,500 but less than $5,000) in violation of SDCL 22-30A-1 and
-17, one count of obtaining possession of a controlled substance by theft in violation
of SDCL 22-42-8, and four counts of identity theft in violation of SDCL 22-40-8. The
State also filed a habitual-criminal information alleging Chipps had previously been
convicted of two felonies. On July 9, before trial had commenced in Lawrence
County, Chipps was indicted in Meade County with one count of grand theft in
violation of SDCL 22-30A-1, -7, and -17 and possession of marijuana (two ounces or
less) in violation of SDCL 22-42-6. The State also filed a habitual-criminal
information with the Meade County indictment.
[¶12.] After Chipps was indicted in Lawrence County, his attorney at the
time arranged for him to undergo a forensic psychological evaluation for the
purpose of determining whether Chipps fit the statutory definition of “mentally ill”
at the time of the alleged crimes. Dewey J. Ertz, Ed. D., conducted the evaluation
and issued a report on July 21, 2014. The report stated:
It is my opinion that [Chipps] meets the current definition of
mental illness described in South Dakota law. He has
substantial psychiatric disorders which involve thought, mood,
and behavior. These disorders were present during the
commission of the alleged crimes noted above and frequently
impair [his] judgment. His impairments did not prevent him
from knowing the wrongfulness of his acts and they are
presented in various ways and various settings beyond repeated
criminal behavior or antisocial conduct. This opinion is stated
within a reasonable degree of psychological certainty.
Dr. Ertz recommended that “[l]ong-term supervision and constraints on [Chipps’s]
activities represent the most effective way of assisting [Chipps] to reduce the
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potential to be harmful to himself and to protect others from [Chipps] becoming
harmful to them.”
[¶13.] On September 18, 2014, after a two-day trial, a jury convicted Chipps
of second-degree burglary and all four counts of identity theft. Chipps did not
present a mental-illness defense. Chipps admitted to prior convictions for grand
theft in 2002 (Class 4 felony) and possession of a controlled substance in 2005
(Class 4 felony). The Lawrence County court sentenced Chipps to 20 years
imprisonment for the burglary conviction and 5 years for each identity-theft
conviction. Although each identity-theft sentence runs concurrently with the
others, they run consecutively with the burglary sentence. Chipps filed a notice of
appeal regarding these convictions and sentences on December 19.
[¶14.] On the same day that Chipps filed his first appeal, he underwent a
forensic psychiatric evaluation by Stephen Manlove, M.D. Dr. Manlove concluded:
“It is my opinion with reasonable medical certainty that [Chipps] was mentally ill at
the time of the crimes he has been convicted of.” Based on this and Dr. Ertz’s
earlier report, Chipps pleaded guilty but mentally ill on January 29, 2015, to the
grand theft charged in the Meade County indictment. Under a plea agreement, the
State dismissed the remaining charges as well as the habitual-criminal information.
Chipps was sentenced to eight years imprisonment, with two years suspended, and
fined $10,000. This sentence runs consecutively with the Lawrence County
sentences. Chipps filed a notice of appeal regarding this sentence on March 19.
[¶15.] In this consolidated appeal, Chipps raises three issues:
1. Whether the assistance rendered by Chipps’s trial attorney was
so ineffective that reversal on direct appeal is warranted.
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2. Whether Chipps’s sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishment.
3. Whether the circuit court erred by denying Chipps’s motion for
judgment of acquittal.
Analysis and Decision
[¶16.] 1. Whether the assistance rendered by Chipps’s trial
attorney was so ineffective that reversal on direct
appeal is warranted.
[¶17.] Chipps asserts that the assistance he received from his trial counsel
was ineffective. To prevail on an ineffective-assistance-of-counsel claim, “the
defendant must show that . . . counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”
and that “counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); McDonough v. Weber, 2015 S.D. 1,
¶ 21, 859 N.W.2d 26, 37. In order to meet this burden, Chipps must establish that
his counsel’s performance was not objectively reasonable under prevailing
professional standards, McDonough, 2015 S.D. 1, ¶ 22, 859 N.W.2d at 37 (citing
Strickland, 466 U.S. at 688, 104 S. Ct. at 2065), and that absent the deficient
performance, “there is a reasonable probability that . . . the result of the proceeding
would have been different[,]” State v. Craig, 2014 S.D. 43, ¶ 38, 850 N.W.2d 828,
838 (quoting Dillon v. Weber, 2007 S.D. 81, ¶ 8, 737 N.W.2d 420, 424). However,
there is a strong “presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” McDonough, 2015 S.D. 1, ¶ 22,
859 N.W.2d at 37 (quoting Owens v. Russell, 2007 S.D. 3, ¶ 8, 726 N.W.2d 610, 615).
Reviewing an ineffective-assistance-of-counsel claim on direct appeal does not
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permit an “attorney[] charged with ineffectiveness to explain or defend [his or her]
actions and strategies[.]” State v. Thomas, 2011 S.D. 15, ¶ 23, 796 N.W.2d 706, 714
(quoting State v. Arabie, 2003 S.D. 57, ¶ 20, 663 N.W.2d 250, 256). Therefore, this
Court will not grant relief for such a claim on direct appeal unless it is obvious on
the record that the defendant has been deprived of his constitutional rights to
counsel and a fair trial.
[¶18.] Chipps asserts his counsel was ineffective in the following ways: (1) by
not attempting to prevent statements and testimony relating to Charlotte’s illness
and passing; (2) by not objecting to various points of Detective Little’s testimony;
(3) by not objecting to alleged prosecutorial misconduct in the State’s opening and
closing arguments; (4) by making damaging admissions during closing argument;
(5) by failing to call any witnesses to refute the State’s assertion that Chipps was
motivated by a need for money; (6) by failing to argue that Chipps’s mental illness
precluded specific intent; (7) by failing to submit a special verdict form of “guilty but
mentally ill”; and (8) by failing to object to Chipps’s sentences in either county.
Thus, Chipps’s assertions may be divided into two broad categories: (1) trial
counsel’s alleged failures to object to the conduct of others and (2) trial counsel’s
own alleged conduct.
Failures to object
[¶19.] We first address the alleged errors consisting of trial counsel’s failures
to object to certain witness testimony and prosecutorial conduct. We need not
recount each of these alleged shortcomings in detail, however, because each suffers
from the same fatal defect: Chipps offers no analysis on the question of prejudice.
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Chipps has the burden of establishing that “there is a reasonable probability
that . . . the result of the proceeding would have been different” if counsel had not
committed the errors alleged. Craig, 2014 S.D. 43, ¶ 38, 850 N.W.2d at 838
(quoting Thomas, 2011 S.D. 15, ¶ 28, 796 N.W.2d at 715). Therefore, because the
proceeding in this case was a trial resulting in conviction, Chipps has the burden of
establishing that the jury likely would have found him not guilty in the absence of
the objectionable statements. Because the errors alleged here are failures to object,
this showing necessarily requires an analysis of whether the absent objection would
have been sustained if raised. If the objection would have been overruled, then the
jury would still have been presented with the objected-to statement and could not
reasonably be expected to return a different verdict. However, Chipps provides no
analysis on the likelihood that any of the objections he now asserts his trial counsel
should have raised below would have been sustained. Therefore, Chipps has failed
to meet his heightened standard on direct appeal of showing that it is obvious on
the record that a timely objection to any of these statements would have resulted in
a different verdict.
Defense counsel’s closing argument
[¶20.] Chipps asserts that his trial counsel was ineffective because counsel
admitted that the individual appearing in the Sonset and Walmart recordings was
Chipps and that Chipps was guilty of the identity-theft charges. During closing
arguments, defense counsel said the following:
[I]n these videos you were shown an individual purchasing items
at Wal-Mart. You’ve seen a picture of an individual pawning an
item. It’s Mr. Chipps. I submit Mr. Fitzgerald’s wrong when he
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says that Mr. Chipps was trying to avoid his identity by covering
up a tattoo.
....
I’m sorry. I hate to say it, but it’s not my burden to prove that
he didn’t steal something. But I’m here saying, yes, on these
videos it’s Mr. Chipps. Yes, these receipts show 159.87, 316.94.
Yes, that pawn shop shows he pawned $130 worth of stuff,
which he got $65 for it, by the way. I think that’s 600 bucks.
....
. . . Take a look at this evidence. I’m not asking for you to turn
Mr. Chipps loose on every count here. We didn’t walk into court
yesterday wanting to do that, but what we’re asking you to do is
look independently at each of these charges and determine
where is the evidence. What does it show Mr. Chipps is
responsible for? What does it fail to show that he’s responsible
for? That’s all.
It is not difficult to imagine that defense counsel’s strategy might have been to
garner some trust from the jury by conceding the obvious in order to increase the
chances of an acquittal on the more serious charge of burglary. Although Chipps
argues that “[i]dentity was at issue until trial counsel’s closing[,]” Chipps has not
established that it would have been objectively unreasonable for defense counsel to
conclude that the jury was not likely to decide the identity issue in Chipps’s favor.
Therefore, it is not obvious on the record that Chipps was denied his Fifth and Sixth
Amendment protections.
Failure to rebut the State’s assertion of motive
[¶21.] Chipps next asserts that his trial counsel was ineffective because he
“never called any witnesses to refute the State’s assertions that the crimes were
committed because Chipps was ‘broke.’” During the State’s opening statement, it
said:
What’s also important from this perspective in the evidence is to
show the motive for this crime of burglary, of theft, is that this
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man is broke. Because the evidence is going to show that when
the credit card of Charlotte’s gets rejected, he has to put the
cigarettes back and all he’s got money for is the $2 to pay for the
cola. That’s the only cash that he’s got. Motive. I think that
illustrates the motive.
According to the presentence investigation report conducted prior to sentencing in
Lawrence County, Chipps reported an annual income of approximately $300,000
between tribal benefits 4 and employment. Thus, Chipps concludes that “[h]is
mother could have easily provided testimony to refute the State’s claim for motive.”
[¶22.] There are several problems with Chipps’s argument. First, he offers
no analysis as to the impact the State’s assertion had on the jury’s verdict. If it had
no impact, then Chipps was not prejudiced regardless of whether his attorney
offered testimony to refute it. Second, having an annual income of $300,000 does
not necessarily refute the State’s assertion that he needed money on the night of
April 25, 2014. 5 Third, even if the testimony would have successfully refuted the
State’s assertion of motive, Chipps offers no analysis as to the likelihood that the
jury would have returned a different verdict. Evidence of motive is not an element
of the crime. If the jury probably would have found Chipps guilty on the remaining
evidence, then he was not prejudiced. In the absence of such analysis, Chipps
cannot claim that he was obviously deprived of his rights to counsel and a fair trial.
4. Chipps is one-quarter American Indian and is an enrolled member of the
Mdewakanton Indian Tribe in Prairie Island, Minnesota.
5. Despite Chipps’s previously-reported income, Dr. Manlove’s report indicates
the Tribe had reduced Chipps’s annual income to approximately $24,000
“around one year” prior to Dr. Manlove’s evaluation of Chipps in December
2014.
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Failure to raise a mental-illness defense
[¶23.] Next, Chipps asserts his trial counsel was ineffective because he did
not argue at trial that Chipps was mentally ill and, therefore, that Chipps was
incapable of forming the specific intent required for a conviction of second-degree
burglary. However, Chipps fails to make this argument on appeal as well.
According to Chipps, he “was unquestionably mentally ill at the time of the alleged
crimes.” Even if true, being mentally ill does not necessarily mean that Chipps was
incapable of forming specific intent. The term mental illness is defined as
any substantial psychiatric disorder of thought, mood or
behavior which affects a person at the time of the commission of
the offense and which impairs a person’s judgment, but not to
the extent that the person is incapable of knowing the
wrongfulness of such act. Mental illness does not include
abnormalities manifested only by repeated criminal or otherwise
antisocial conduct . . . .
SDCL 22-1-2(24) (emphasis added). In order to establish prejudice, Chipps must
show that the jury probably would have returned a different verdict in the absence
of trial counsel’s deficient performance, which in turn requires a showing that a
mental-illness defense likely would have been effective in convincing the jury that
Chipps was incapable of specifically intending to commit the alleged crimes. Chipps
offers no such analysis.
[¶24.] Even if he did, defense counsel might have simply made the strategic
choice of choosing one defense over another. Chipps himself asserts that there was
little direct, physical evidence placing him at the Crisp residence. This defense
essentially says, “I was never there; therefore, I could not have committed the acts
alleged.” However, the mental-illness defense Chipps asserts should have been
raised would have been relevant only if he had committed the acts in question. This
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defense essentially says, “I committed the acts in question, but I did not intend to.”
Perhaps trial counsel concluded that such a defense would imply that Chipps was
present at the Crisps’ home and would detract from the arguably stronger position
that Chipps was never present in the first place. Regardless, this example of
alleged deficient conduct does not clearly establish that Chipps was deprived of his
Fifth and Sixth Amendment rights.
Failure to object to sentencing
[¶25.] Chipps asserts his trial counsel should have objected to both of his
sentences. According to Chipps, the Lawrence County court’s failure to enter a
guilty-but-mentally-ill sentence will delay his mental-health treatment until the
commencement of his Meade County sentence 25 years from now. Chipps also
asserts trial counsel should have objected to the written sentence in Meade County
because it did not reflect the court’s verbal order pronounced at sentencing that
Chipps receive credit for time served. Neither of these arguments have merit.
[¶26.] There is no reason the Lawrence County court should have entered a
guilty-but-mentally-ill sentence. Such a sentence is authorized “[i]f a defendant is
found ‘guilty but mentally ill’ or enters that plea and the plea is accepted by the
court[.]” SDCL 23A-27-38. However, a jury is not provided with a special verdict
form of “guilty but mentally ill” unless “a defense of insanity or mental illness has
been presented during a trial[.]” SDCL 23A-25-13. As Chipps points out, defense
counsel did not present a mental-illness defense at trial. As we explained above,
such a trial strategy was not necessarily objectively unreasonable.
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[¶27.] Further, Chipps once again fails to address the issue of prejudice. A
finding of “guilty but mentally ill” does not necessarily result in a different sentence
or treatment.
If a defendant is found “guilty but mentally ill” . . . , the court
shall impose any sentence which could be imposed upon a
defendant pleading or found guilty of the same charge. If the
defendant is sentenced to the state penitentiary, he shall
undergo further examination and may be given the treatment
that is psychiatrically indicated for his mental illness. If
treatment is available, it may be provided through facilities
under the jurisdiction of the Department of Social Services. The
secretary of corrections may transfer the defendant from the
penitentiary to other facilities under the jurisdiction of the
Department of Social Services, with the consent of the secretary
of social services, and return the defendant to the penitentiary
after completion of treatment for the balance of the defendant’s
sentence.
SDCL 23A-27-38 (emphasis added). Chipps has offered no analysis regarding what
treatment options would have been available to him had he been found guilty but
mentally ill, nor has he addressed the likelihood that he would have been granted
such treatment.
[¶28.] Chipps’s assertion that his trial counsel should have objected to the
Meade County sentence is similarly meritless. It is true that the amended
judgment of conviction from Meade County did not mention credit for time served.
However, “[w]hen a court’s written sentence differs from its oral sentence, . . . the
oral sentence controls.” State v. Thayer, 2006 S.D. 40, ¶ 7, 713 N.W.2d 608, 611
(citing State v. Cady, 422 N.W.2d 828, 830 (S.D. 1988) (“It is settled law in this state
that the oral sentence is the only sentence and the written sentence must conform
to it.”)). At the sentencing hearing, the circuit court unambiguously announced that
Chipps would receive credit for time served from June 27, 2014. Therefore, the oral
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sentence controls; Chipps gets credit for time served and necessarily cannot
establish prejudice.
[¶29.] The record does not support Chipps’s claim that the performance of his
trial counsel clearly deprived him of his constitutional rights to counsel and a fair
trial. Chipps has failed to provide any analysis on the issue of prejudice for the
majority of the alleged deficiencies in his trial counsel’s performance. The
remaining allegations of deficient performance might simply be matters of trial
strategy. The question whether these alleged deficiencies are in fact attributable to
objectively reasonable trial strategy is not a question to be decided on direct appeal.
Thus, we do not decide today whether Chipps’s trial counsel was ineffective; we hold
only that it is not obvious on the record that the defendant has been deprived of his
constitutional rights to counsel and a fair trial. Therefore, we will not review the
merits of Chipps’s ineffective-assistance-of-counsel claim unless he decides to seek
habeas relief in the future.
[¶30.] 2. Whether Chipps’s sentence violates the Eighth
Amendment’s prohibition against cruel and
unusual punishment.
[¶31.] Chipps asserts that his sentences are grossly disproportionate to the
circumstances of his crimes. “We generally review a circuit court’s decision
regarding sentencing for abuse of discretion.” State v. Garreau, 2015 S.D. 36, ¶ 7,
864 N.W.2d 771, 774. However, when the question presented is whether a
challenged sentence is cruel and unusual in violation of the Eighth Amendment, we
conduct a de novo review. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc.,
532 U.S. 424, 435, 121 S. Ct. 1678, 1685, 149 L. Ed. 2d 674 (2001) (requiring
appellate courts to apply de novo standard in reviewing the proportionality of a fine
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under the Eighth Amendment); State v. Ball, 2004 S.D. 9, ¶ 20, 675 N.W.2d 192,
199 (“[W]hether a constitutional violation has occurred is subject to de novo review.”
(quoting Stallings v. Delo, 117 F.3d 378, 380 (8th Cir. 1997))). Therefore, we
conduct a de novo review to determine whether the sentences imposed in this case
are grossly disproportionate to Chipps’s offenses. See Garreau, 2015 S.D. 36, ¶ 7,
864 N.W.2d at 774.
[¶32.] The Eighth Amendment to the U.S. Constitution, which was extended
to the states through the Fourteenth Amendment, prohibits the infliction of “cruel
and unusual punishments[.]” U.S. Const. amend. VIII. 6 “In Solem v. Helm,
463 U.S. 277, 290, 103 S. Ct. 3001, 3009, 77 L. Ed. 2d 637, 649 (1983), the [United
States] Supreme Court set forth a three-factor proportionality analysis under the
Eighth Amendment.” State v. Bonner, 1998 S.D. 30, ¶ 14, 577 N.W.2d 575, 579.
The Supreme Court held that “a criminal sentence must be proportionate to the
crime for which the defendant has been convicted.” Helm, 463 U.S. at 290,
103 S. Ct. at 3009. According to Helm,
a court’s proportionality analysis under the Eighth Amendment
should be guided by objective criteria, including (i) the gravity of
the offense and the harshness of the penalty; (ii) the sentences
imposed on other criminals in the same jurisdiction; and (iii) the
6. The United States Supreme Court’s “cases addressing the proportionality of
sentences fall within two general classifications. The first involves
challenges to the length of term-of-years sentences given all the
circumstances in a particular case. The second comprises cases in which the
Court implements the proportionality standard by certain categorical
restrictions on the death penalty.” Graham v. Florida, 560 U.S. 48, 59,
130 S. Ct. 2011, 2021, 176 L. Ed. 2d 825 (2010) (plurality opinion). Because
the present case involves a sentence-specific challenge to a term-of-years
sentence, it belongs in the first class of cases, to which the analysis presented
here applies.
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sentences imposed for commission of the same crime in other
jurisdictions.
Id. at 292, 103 S. Ct. at 3011.
[¶33.] “In Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d
836 (1991), the Supreme Court substantially modified Solem’s Eighth Amendment
three-factor proportionality analysis.” Bonner, 1998 S.D. 30, ¶ 15, 577 N.W.2d
at 579. Writing for three justices, Justice Kennedy “stated what he believed to be
‘some common principles that give content to the uses and limits of proportionality
review.’” Id. (quoting Harmelin, 501 U.S. at 998, 111 S. Ct. at 2703 (Kennedy, J.,
concurring in part and concurring in the judgment)). 7 Those principles are:
(1) reviewing courts must grant substantial deference to the
legislature’s broad authority to determine the types and limits of
punishment; (2) the Eighth Amendment does not mandate
adoption of any one penological theory; (3) marked divergences
“are the inevitable, often beneficial result of the federal
structure”; and (4) proportionality review by federal courts
should be informed by objective factors.
Id. ¶ 15, 577 N.W.2d at 580 (quoting State v. Gehrke, 491 N.W.2d 421, 423 n.2 (S.D.
1992) (citing Harmelin, 501 U.S. at 998-99, 111 S. Ct. at 2703-04)). Justice
Kennedy did not directly apply these principles in his Eighth Amendment analysis.
Instead, these principles affect proportionality analysis only indirectly by leading to
the conclusion that “[t]he Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences that are
7. “[T]he Harmelin Court issued multiple opinions, none of which were fully
supported by a majority of the justices.” Bonner, 1998 S.D. 30, ¶ 15,
577 N.W.2d at 579. However, the Supreme Court has subsequently referred
to Justice Kennedy’s opinion as the controlling opinion of that case. Graham,
560 U.S. at 59-60, 130 S. Ct. at 2021-22 (plurality opinion).
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‘grossly disproportionate’ to the crime.” Harmelin, 501 U.S. at 1001, 111 S. Ct.
at 2705 (Kennedy, J., concurring in part and concurring in the judgment).
[¶34.] Justice Kennedy’s opinion is also significant in another respect: it
clarified that “comparative analysis within and between jurisdictions is not always
relevant to proportionality review.” Id. at 1004-05, 111 S. Ct. at 2707. Instead, the
intra- and interjurisdictional analyses of Helm’s second and third criteria “are
appropriate only in the rare case in which a threshold comparison of the crime
committed and the sentence imposed leads to an inference of gross
disproportionality.” Id. at 1005, 111 S. Ct. at 2707. Thus, “[t]he proper role for
comparative analysis of sentences . . . is to validate an initial judgment that a
sentence is grossly disproportionate to a crime.” Id.
[¶35.] In answering the threshold question of gross disproportionality—i.e.,
in applying Helm’s first criteria—the gravity of the offense refers to the offense’s
relative position on the spectrum of all criminality. See id. at 1002, 111 S. Ct.
at 2705 (“From any standpoint, [possession of more than 650 grams of cocaine] falls
in a different category from the relatively minor, nonviolent crime at issue in
[Helm].”); Helm, 463 U.S. at 296, 103 S. Ct. at 3012 (“Helm’s crime was ‘one of the
most passive felonies a person could commit.’ . . . It is easy to see why such a crime
is viewed by society as among the less serious offenses.” (quoting State v. Helm,
287 N.W.2d 497, 501 (S.D. 1980) (Henderson, J., dissenting))). The Supreme Court
has suggested a number of principles to aid in judging the gravity of an offense:
[N]onviolent crimes are less serious than crimes marked by
violence or the threat of violence. . . . Stealing a million dollars
is viewed as more serious than stealing a hundred dollars . . . .
[A] lesser included offense should not be punished more severely
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than the greater offense. . . . It also is generally recognized that
attempts are less serious than completed crimes. Similarly, an
accessory after the fact should not be subject to a higher penalty
than the principal. . . . Most would agree that negligent conduct
is less serious than intentional conduct. . . . A court, of course, is
entitled to look at a defendant’s motive in committing a crime.
Thus a murder may be viewed as more serious when committed
pursuant to a contract.
This list is by no means exhaustive.
Helm, 463 U.S. at 292-94, 103 S. Ct. at 3011 (citations omitted).
[¶36.] In judging the gravity of an offense, a court may also consider certain
past conduct of the defendant. As noted in the preceding paragraph, the
circumstances of the crime of conviction affect the gravity of the offense. See id.;
Garreau, 2015 S.D. 36, ¶ 12, 864 N.W.2d at 776 (considering defendant’s reckless
evasion of police in weighing the gravity of defendant’s shooting of an officer while
resisting arrest the subsequent day). Additionally, if the sentence is enhanced
because of the offender’s recidivism, then the gravity of his past offenses also
contributes to the gravity of the present offense. See Ewing v. California, 538 U.S.
11, 28, 123 S. Ct. 1179, 1189, 155 L. Ed. 2d 108 (2003) (plurality opinion). The
reason for this is that
the State’s interest is not merely punishing the offense of
conviction, or the “triggering” offense: “It is in addition the
interest in dealing in a harsher manner with those who by
repeated criminal acts have shown that they are simply
incapable of conforming to the norms of society as established by
its criminal law.”
Id. at 29, 123 S. Ct. at 1190 (quoting Rummel v. Estelle, 445 U.S. 263, 276,
100 S. Ct. 1133, 1140, 63 L. Ed. 2d 382 (1980)).
[¶37.] The harshness of the penalty similarly refers to the penalty’s relative
position on the spectrum of all permitted punishments. See Harmelin, 501 U.S.
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at 1001, 111 S. Ct. at 2705 (Kennedy, J., concurring in part and concurring in the
judgment) (“Petitioner’s life sentence without parole is the second most severe
penalty permitted by law.”); Helm, 463 U.S. at 297, 103 S. Ct. at 3013 (“Helm’s
sentence is the most severe punishment that the State could have imposed on any
criminal for any crime.”). The easiest comparison is between penalties that are
qualitatively—rather than quantitatively—distinguishable. See Helm, 463 U.S.
at 294 & n.18, 103 S. Ct. at 3012 & n.18 (drawing clear lines between capital and
noncapital punishments as well as between sentences involving a deprivation of
liberty and sentences with no deprivation of liberty). For sentences of
imprisonment, the question is one of degree—e.g., “[i]t is clear that a 25-year
sentence generally is more severe than a 15-year sentence[.]” Id. at 294, 103 S. Ct.
at 3012. The possibility of parole is also considered in judging the harshness of the
penalty. Id. at 294 n.19, 103 S. Ct. at 3012 n.19. 8
[¶38.] In light of the foregoing, our review of a sentence challenged under the
Eighth Amendment is relatively straightforward. “First, we look to the gravity of
the offense and the harshness of the penalty.” Id. at 290-91, 103 S. Ct. at 3010,
quoted in Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d at 775. “This comparison rarely
‘leads to an inference of gross disproportionality’ and typically marks the end of our
review[.]” Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d at 775 (quoting Bonner,
1998 S.D. 30, ¶ 27, 577 N.W.2d at 582); Harmelin, 501 U.S. at 1004, 111 S. Ct.
8. It should be noted, however, that “no penalty is per se constitutional.” Helm,
463 U.S. at 290, 103 S. Ct. at 3009. In fact, “a single day in prison may be
unconstitutional in some circumstances.” Id. at 290, 103 S. Ct. at 3010.
Therefore, a sentence of imprisonment is never constitutional solely because
it is less than the maximum punishment authorized for any offense.
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at 2707 (Kennedy, J., concurring in part and concurring in the judgment) (“[A]
reviewing court rarely will be required to engage in extended analysis to determine
that a sentence is not constitutionally disproportionate . . . .” (quoting Helm,
463 U.S. at 290 n.16, 103 S. Ct. at 3009 n.16)). If the penalty imposed appears to be
grossly disproportionate to the gravity of the offense, then we will compare the
sentence to those “imposed on other criminals in the same jurisdiction” as well as
those “imposed for commission of the same crime in other jurisdictions.” Helm,
463 U.S. at 291, 103 S. Ct. at 3010.
Second-degree burglary
[¶39.] Applying this analysis, we begin by examining the gravity of Chipps’s
offense. Chipps was convicted of second-degree burglary. This crime occurs when
“[a]ny person . . . enters or remains in an occupied structure with intent to commit
any crime, unless the premises are, at the time, open to the public or the person is
licensed or privileged to enter or remain, under circumstances not amounting to
first degree burglary[.]” SDCL 22-32-3. 9 Although this crime is no longer
9. Second-degree burglary becomes first-degree burglary if any of the following
additional elements are proven:
(1) The offender inflicts, or attempts or threatens to inflict,
physical harm on another;
(2) The offender is armed with a dangerous weapon; or
(3) The offense is committed in the nighttime.
SDCL 22-32-1.
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statutorily defined as an inherently violent crime in South Dakota, 10 burglary has
historically been viewed as a serious offense.
Burglary is one of the most detestable crimes known to the law.
Blackstone characterizes common law burglary as “a very
heinous offence” carrying “terror . . . with it; . . . it is a forcible
invasion of the right of habitation; . . . an invasion which in a
state of nature would be sure to be punished with death.”
Commonwealth v. Le Grand, 9 A.2d 896, 899 (Pa. 1939) (citation omitted) (quoting
4 William Blackstone, Commentaries *223); see also Commonwealth v. Hope,
39 Mass. (22 Pick.) 1, 8 (1839) (“[F]rom the earliest time, housebreaking by night
and by day[] has been deemed a substantive crime of great aggravation, and been
punished as such . . . .”). Indeed, burglary was punishable by death in some states
well into the 20th century. See Parker v. North Carolina, 397 U.S. 790, 792,
90 S. Ct. 1458, 1460, 25 L. Ed. 2d 785 (1970) (“Petitioner was indicted for first-
degree burglary, an offense punishable by death under North Carolina law.”). “The
main risk of burglary arises not from the simple physical act of wrongfully entering
onto another’s property, but rather from the possibility of a face-to-face
confrontation between the burglar and a third party—whether an occupant, a police
officer, or a bystander—who comes to investigate.” James v. United States, 550 U.S.
192, 203, 127 S. Ct. 1586, 1594, 167 L. Ed. 2d 532 (2007), overruled on other
grounds by Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d
10. The Legislature defined the phrase crime of violence in SDCL 22-1-2(9).
Although second-degree burglary was previously included among the list of
specifically enumerated crimes of violence, the Legislature removed second-
degree burglary from this list in 2005. 2005 S.D. Sess. Laws ch. 120, § 357.
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569 (2015). In this case, Chipps entered the Crisps’ home at a time of the evening
when many people are still awake, increasing the danger of a confrontation.
[¶40.] “In conducting the threshold comparison between the crime and the
sentence, we also consider other conduct relevant to the crime.” Garreau, 2015 S.D.
36, ¶ 12, 864 N.W.2d at 776. The State filed a habitual-criminal information, and
Chipps admitted to two prior felony convictions. Therefore, that history is relevant
to an Eighth Amendment analysis of this sentence. See Ewing, 538 U.S. at 29,
123 S. Ct. at 1190 (plurality opinion); Helm, 463 U.S. at 296, 103 S. Ct. at 3013 (“[A]
State is justified in punishing a recidivist more severely than it punishes a first
offender.”). Chipps has been previously convicted of committing the felonies of
grand theft and possession of a controlled substance. Thus, not only has Chipps
demonstrated a tendency to commit felonies, he has demonstrated a particular
penchant for the same type of crimes charged here—taking for himself that which
belongs to another.
[¶41.] Next, we must examine the harshness of Chipps’s penalty. The circuit
court sentenced Chipps to 20 years imprisonment for the second-degree burglary
conviction. Normally, second-degree burglary is a Class 3 felony carrying a
maximum sentence of 15 years imprisonment. SDCL 22-6-1(6), -32-3. However,
Chipps’s sentence was enhanced based on his criminal history; therefore, Chipps’s
offense is a Class 2 felony, SDCL 22-7-7, carrying a maximum penalty of 25 years
imprisonment, SDCL 22-6-1(5). For more serious crimes, the Legislature has
authorized sentences of death or mandatory life imprisonment (Class A felonies),
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mandatory life imprisonment (Class B felonies), nonmandatory life imprisonment
(Class C felonies), and 50 years imprisonment (Class 1 felonies). SDCL 22-6-1.
[¶42.] Based on the foregoing, the sentence Chipps received for burglarizing
the Crisps’ home does not appear to be grossly disproportionate to the gravity of the
offense. “Therefore, we will not conduct inter- and intrajurisdictional analyses; the
objected-to sentence falls within the constitutional prescriptions of the Eighth
Amendment.” Garreau, 2015 S.D. 36, ¶ 13, 864 N.W.2d at 776.
Identity theft
[¶43.] First, we examine the gravity of the offense. Chipps was convicted of
four counts of identity theft. One way identity theft occurs is when “any person,
without the authorization or permission of another person and with the intent to
deceive or defraud[,] . . . [a]ccesses or attempts to access the financial resources of
that person through the use of identifying information[.]” SDCL 22-40-8. Although
Chipps obtained a relatively small amount of money from his use of Charlotte’s
cards, the appropriation of property is not the central injury addressed by identity-
theft statutes. Instead, the harm contemplated by SDCL 22-40-8 is the
appropriation of the very identity of another person—a more profound and personal
violation of the victim than the mere theft of property. Chipps could have been
found guilty of identity theft even if his attempts at using Charlotte’s card were
entirely unsuccessful. See SDCL 22-40-8. As noted above, Chipps’s relevant
criminal history displays a clear disregard for the property of others. See supra
¶ 40.
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[¶44.] Next, we examine the harshness of the penalty. The circuit court
sentenced Chipps to five years imprisonment for each of the four identity theft
convictions, which run concurrently with one another. Normally, identity theft is a
Class 6 felony carrying a maximum sentence of two years imprisonment. SDCL 22-
6-1(9), -40-8. Because of Chipps’s prior felony convictions, these convictions were
punished as Class 5 felonies, which carry a maximum sentence of five years
imprisonment. SDCL 22-6-1(8). Although Chipps’s identity-theft sentences
individually reflect the maximum sentence permitted by statute for this offense, the
court ordered these four sentences to run concurrently. 11 Divided among four
convictions, Chipps will essentially serve the equivalent of only one-and-one-quarter
years imprisonment for each identity-theft conviction—a length of time barely more
than half of what he could have faced without sentence enhancement. As indicated
above, the spectrum of permitted punishment includes much harsher penalties, see
supra ¶ 41, and there is only one felony category of punishment less than that
prescribed here—the two-year maximum Chipps would have faced absent sentence
enhancement for his felony record.
[¶45.] We have no difficulty concluding that a five-year sentence for four
occurrences of identity theft does not appear to be grossly disproportionate.
Therefore, the sentence is not unconstitutional, and our review ends.
11. SDCL 22-6-6.1 gives a sentencing court discretion to impose concurrent or
consecutive sentences when a defendant has been convicted of more than one
offense.
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Grand theft
[¶46.] First, we examine the gravity of the offense. Chipps was convicted of
grand theft. One way that theft occurs is when “[a]ny person . . . receives, retains,
or disposes of property of another knowing that the property has been stolen, or
believing that the property has probably been stolen, unless the property is
received, retained, or disposed of with the intent to restore the property to the
owner[.]” SDCL 22-30A-7. Chipps stole property worth more than $5,000, elevating
his crime to grand theft. SDCL 22-30A-17 (defining grand theft as the theft of
property exceeding $1,000 in value). Although this was a nonviolent offense that
does not appear to have placed anybody in danger, Chipps’s “theft should not be
taken lightly. His crime was certainly not ‘one of the most passive felonies a person
could commit.’” Ewing, 538 U.S. at 28, 123 S. Ct. at 1189 (plurality opinion)
(quoting Helm, 463 U.S. at 296, 103 S. Ct. at 3012) (commenting on grand theft in
the amount of $1,200). 12
[¶47.] Next, we examine the harshness of the penalty. The Meade County
circuit court sentenced Chipps to eight years imprisonment for the grand theft
conviction but suspended two years of the sentence. Additionally, the court ordered
Chipps to pay a fine of $10,000. The value of the property stolen in this case
exceeded $5,000 but was less than $100,000; therefore, the theft was grand theft
and was punishable as a Class 4 felony. SDCL 22-30A-17. A Class 4 felony carries
12. Chipps’s sentence on this conviction was not enhanced based on his criminal
record. Therefore, his criminal history is not relevant to determining
whether his sentence for grand theft was grossly disproportionate to the
offense.
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a maximum sentence of up to 10 years imprisonment and a maximum fine of
$20,000. SDCL 22-6-1. As with identity theft, there are few felony categories with
punishments less severe—and many categories more severe—than that prescribed
by the Legislature for this offense. Although Chipps’s offense was a Class 4 felony,
the punishment he received was only slightly greater than the maximum permitted
for a felony of one lesser degree. 13
[¶48.] The sentence imposed on Chipps for grand theft does not appear to be
grossly disproportionate to the gravity of Chipps’s offense. Therefore, the sentence
is not unconstitutional, and our review ends.
[¶49.] 3. Whether the circuit court erred by denying Chipps’s
motion for judgment of acquittal.
[¶50.] Chipps asserts the circuit court erred by denying his motion for
judgment of acquittal on the charges of second-degree burglary and identity theft.
“We review the denial of a motion for judgment of acquittal as a question of law
under the de novo standard.” State v. Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d 35,
40. Therefore, we give no deference to the circuit court’s determination regarding
the sufficiency of the evidence. On appeal, then, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979); Overbey, 2010 S.D. 78, ¶ 12, 790 N.W.2d at 40. “The State
13. With two years of his sentence suspended, Chipps will only have to serve six
years and pay $10,000 for committing a Class 4 felony. The maximum
sentence and fine for a Class 5 felony is five years and $10,000. SDCL 22-6-
1(8).
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may . . . prove all elements of an offense through circumstantial evidence.” State v.
LaPlante, 2002 S.D. 95, ¶ 30, 650 N.W.2d 305, 312. However, “[v]erdicts cannot be
allowed to rest on mere suspicion, or upon a state of facts not shown to exist.” State
v. Lee, 48 S.D. 29, 35, 201 N.W. 703, 705 (1924); see also United States v. Plenty
Arrows, 946 F.2d 62, 65 (8th Cir. 1991) (“Although the government is entitled to all
reasonable inferences supporting the verdict, we cannot sustain a conviction ‘based
on a mere suspicion or possibility of guilt.’” (quoting United States v. Robinson,
782 F.2d 128, 129 (8th Cir. 1986))). Therefore, “we will set aside a jury verdict only
when ‘the evidence and the reasonable inferences to be drawn therefrom fail to
sustain a rational theory of guilt.’” State v. Guthrie, 2001 S.D. 61, ¶ 47, 627 N.W.2d
401, 420-21 (quoting State v. Hage, 532 N.W.2d 406, 410 (S.D. 1995)).
[¶51.] Chipps essentially argues that his alleged mental illness resulted in a
diminished capacity to form the specific intent required for convictions of second-
degree burglary and identity theft. According to Chipps, “[w]hen dealing with
specific intent crimes, the fact that Chipps had diminished capacity at the time of
the alleged crime is relevant.” As noted above, however, Chipps did not present a
mental-illness defense at trial. Even if he had, the jury was presented with
abundant circumstantial evidence of Chipps’s guilt. It was for the jury to decide
whether Chipps was the individual appearing in the video recordings from Sonset
and Walmart. The jury was presented with evidence indicating that Chipps used
Charlotte’s card within minutes of the burglary at a gas station within one-and-one-
half miles from the Crisps’ home; that Chipps used Charlotte’s card several more
times a short time later at Walmart in neighboring Spearfish; that in each of the
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video recordings, Chipps was seen wearing a jacket just like the one taken from the
Crisps’ home; that Chipps later pawned two pieces of jewelry identified by Charlotte
as having been in her purse at the time it was stolen; that Charlotte’s cell phone
was recovered from Chipps’s girlfriend’s home, in Chipps’s presence; and that the
Sturgis Police Department indicated that Chipps is known to drive the same vehicle
seen in the video recordings. Finally, trial counsel admitted that Chipps is the
individual who appears in the recordings. 14 “Direct and circumstantial evidence
have equal weight.” State v. Riley, 2013 S.D. 95, ¶ 18, 841 N.W.2d 431, 437 (quoting
State v. Webster, 2001 S.D. 141, ¶ 13, 637 N.W.2d 392, 396). “[I]n some instances
‘circumstantial evidence may be more reliable than direct evidence.’” Id. (quoting
Webster, 2001 S.D. 141, ¶ 13, 637 N.W.2d at 396). Therefore, we conclude that some
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Overbey, 2010 S.D.
78, ¶ 12, 790 N.W.2d at 40.
Conclusion
[¶52.] Chipps has largely ignored the question of prejudice on the majority of
the deficiencies he alleges in his trial counsel’s performance. Because the
remaining deficiency claims might be attributable to acceptable trial strategy,
Chipps has failed to establish that the performance of his trial counsel was so
14. The question whether trial counsel was ineffective because he admitted that
the man seen on the video recordings was Chipps is an issue separate from
whether the evidence presented was sufficient to sustain a conviction.
Despite Chipps’s claim to the contrary, his trial counsel’s admission of
identity does not necessarily entitle him to a reversal for ineffective
assistance of counsel.
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objectively unreasonable that Chipps was obviously denied his rights to counsel and
a fair trial. Therefore, the issue of whether Chipps received ineffective assistance of
counsel will not be decided outside of a petition for habeas corpus. The sentences
Chipps received do not appear to be grossly disproportionate to the crimes he
committed; therefore, the sentences are not cruel and unusual. Finally, the record
reflects ample evidence upon which a reasonable jury could have found Chipps
guilty beyond a reasonable doubt. Consequently, the circuit court did not err by
denying Chipps’s motion for judgment of acquittal. We affirm.
[¶53.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
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