Opinion
No. 21600
Considered on Briefs February 13, 2001.
Opinion Filed February 26, 2001.
Appeal from the Seventh Judicial Circuit, Pennington County, SD Hon. Janine Kern, Judge, #21600 — Affirmed
Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, SD, Attorneys for Plaintiff and Appellee.
Kelly D. Frazier, Pennington County Public Defender's Office, Rapid City, SD, Attorneys for Defendant and Appellant.
[¶ 1] An attorney with the Pennington County Public Defender once again claims a sentence violates the constitutional protection against cruel and unusual punishment. 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 N.W.2d 555, 556 (SD 1989).
All of the following cases have been summarily affirmed. See, 21497, State v. Kostaneski, ___ N.W.2d ___ (Table) (2001); 21368, State v. Herron, 622 N.W.2d 434 (Table) (2000); 21434, State v. Jeunesse, 622 N.W.2d 434 (Table) (2000); 21182, State v. Genco, 614 N.W.2d 828 (Table) (2000); 21238, State v. Stands, 614 N.W.2d 828 (Table) (2000); 21250, State v. Orem, 614 N.W.2d 828 (Table) (2000); 21112, State v. Verhelst, 608 N.W.2d 330 (Table) (2000); 20711, State v. Gear, 596 N.W.2d 734 (Table) (1999); 20607, State v. Meeks, 590 N.W.2d 709 (Table) (1999). See also all the cases cited in Justice Gilbertson's special concurrence in State v. Bonner, 1998 SD 30, 577 N.W.2d 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] 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.
[¶ 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, ¶ 17, 577 N.W.2d 580, it is abundantly clear that there is not even a remote suggestion of gross disproportionality.
Attorneys should be mindful of South Dakota Rules of Professional Conduct, Rule 3.1. Meritorious Claims and Contentions.
[¶ 4] The judgment is affirmed.
[¶ 5] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.