State v. Ekern

State of South Dakota
Plaintiff and Appellee
v.
Nelda Ekern
Defendant and Appellant

[2001 SD 20]

South Dakota Supreme Court
Appeal from the Circuit Court of
The Seventh Judicial Circuit
Pennington County, South Dakota
Hon. 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 

[¶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). 

[¶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 NW2d 580, it is abundantly clear that there is not even a remote suggestion of gross disproportionality.[2] 

[¶4.] The judgment is affirmed.

[¶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.