#29015-a-DG
2020 S.D. 28
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
DYLAN M. HOLLER, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
LINCOLN COUNTY, SOUTH DAKOTA
…
THE HONORABLE NATALIE DAMGAARD
Judge
…
JASON R. RAVNSBORG
Attorney General
ERIN E. HANDKE
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
NICOLE J. LAUGHLIN
Sioux Falls, South Dakota Attorney for defendant
and appellant.
…
CONSIDERED ON BRIEFS
MARCH 17, 2020
OPINION FILED 05/20/20
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GILBERTSON, Chief Justice
[¶1.] Dylan Holler shot and killed a young man in the course of completing a
“drug rip” and pled guilty to first-degree manslaughter. He was sentenced to 80
years in prison with 40 years suspended. He appeals his sentence, and we affirm.
Facts and Procedural History
[¶2.] In August 2017, shortly after his 18th birthday, Dylan Holler and two
juveniles, J.C. and R.S., drove to Bakker Park in Sioux Falls looking to purchase
marijuana. The plan was to perform a “drug rip” and take the marijuana by force.
Holler had a stolen gun and $1,500 cash in his possession. A friend of J.C.’s put
them in contact with Jayden Eastman, who had nine grams of marijuana to sell for
$130. They met Eastman at the park, then drove to a gas station so that Holler
could exchange some cash for smaller bills to pay Eastman. Holler claims that at
this point he had not yet decided whether he would actually rob Eastman.
[¶3.] When the group returned to the park, Holler put a round in his gun,
exited the vehicle, opened the driver’s side rear passenger door holding the gun,
pistol-whipped Eastman in the head, and struggled with him in an attempt to take
the marijuana. The gun was discharged twice during the struggle and R.S., sitting
in the other rear seat, was fatally shot in the chest and leg. Eastman forced the gun
out of Holler’s hand and fled the scene. Holler moved the vehicle a half block away
and disposed of the gun and a spent shell casing. He then returned to R.S. and
attempted CPR.
[¶4.] When law enforcement arrived, they found R.S. on the ground, along
with J.C. and Holler still at the scene. R.S. was transported to Sanford Hospital
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and pronounced dead. Officers found the gun in the park. Holler was indicted for
first-degree murder, first-degree robbery, and aggravated assault. J.C. was charged
in a separate criminal file that was later transferred to juvenile court.
[¶5.] Holler reached a plea agreement with the State under which he pled
guilty to a new charge of first-degree manslaughter and the prior indictment was
dismissed. The court ordered a pre-sentence investigation and Dr. Sarah Flynn
conducted a psychiatric evaluation of Holler. The case was set for a sentencing
hearing on February 15, 2019.
[¶6.] At this hearing, Holler called Dr. Flynn to testify in mitigation. The
circuit court considered her testimony and the contents of the pre-sentence
investigation report. The evidence revealed that Holler had a history of aggressive
behavior throughout his childhood. Holler was abused by his father and also at a
daycare as a young child. His mother was likewise a victim of abuse from Holler’s
father and was also abused by another boyfriend. She had trouble disciplining and
controlling Holler’s behavior. Holler attended counseling as a child, and was
diagnosed with ADHD. He was prescribed medication for ADHD at a young age,
but stopped taking his medication after he turned 18 because he could no longer
afford the medication after losing insurance coverage.
[¶7.] In 2010, Holler was placed on probation for a simple assault. After
violating his probation conditions, Holler was placed in an intensive supervision
program, and was eventually sent to Summit Oaks behavioral center, where he
successfully completed that program at age 14. After a 2016 burglary conviction,
Holler was placed at McCrossan Boys Ranch in Sioux Falls. While there he had one
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minor in possession charge, but completed the program successfully. Holler was
released from McCrossan a month before this incident.
[¶8.] Holler began drinking alcohol at age 14, but has not had problems with
alcohol addiction. He began smoking marijuana around the same time, using daily
by age 16 and consistently when not in residential programs. He experimented
with drugs throughout his teenage years and had used methamphetamine and
marijuana in the days leading up to this offense. The methamphetamine was still
in Holler’s system at the time of this offense.
[¶9.] Additionally, the court considered several victim impact statements
prior to imposing a sentence of 80 years in the South Dakota State Penitentiary
with 40 years suspended and credit for 536 days served. He was also ordered to pay
costs and restitution totaling around $44,000. Holler appeals his sentence raising
two issues restated as follows:
1. Whether Holler’s sentence is grossly disproportionate to
the offense under the Eighth Amendment.
2. Whether the circuit court abused its discretion in failing
to consider Holler’s individual characteristics at
sentencing.
Analysis and Decision
[¶10.] A circuit court’s sentencing decision is generally reviewed for an abuse
of discretion. State v. Chipps, 2016 S.D. 8, ¶ 31,
874 N.W.2d 475, 486. “An abuse of
discretion ‘is a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which, on full consideration, is arbitrary or
unreasonable.’” State v. Delehoy,
2019 S.D. 30, ¶ 22,
929 N.W.2d 103, 109 (quoting
Thurman v. CUNA Mut. Ins. Soc’y,
2013 S.D. 63, ¶ 11,
836 N.W.2d 611, 616).
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However, whether a sentence violates the Eighth Amendment is reviewed de novo.
Delehoy, 2019 S.D. 30, ¶ 20,
929 N.W.2d at 108.
1. Whether Holler’s sentence is grossly disproportionate to the
offense under the Eighth Amendment.
[¶11.] The Eighth Amendment to the United States Constitution protects
against the infliction of cruel and unusual punishments. U.S. Const. amend. VIII.
For a defendant’s sentence to violate the Eighth Amendment, “it must be grossly
disproportionate to the offense.” Delehoy, 2019 S.D. 30, ¶ 36,
929 N.W.2d at 111.
Our inquiry for determining gross disproportionality is well established:
“First, we look to the gravity of the offense and the harshness of
the penalty.” . . . 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.”
Chipps, 2016 S.D. 8, ¶ 38,
874 N.W.2d at 488-89 (quoting Solem v. Helm,
463 U.S.
277, 290-91,
103 S. Ct. 3001, 3010,
77 L. Ed. 2d 637 (1983)). If the threshold
question does not lead to an inference of gross disproportionality, the analysis ends
there.
Id. “[O]ther conduct relevant to the crime” is considered in making “the
threshold comparison between the crime and the sentence[.]” Id. ¶ 40,
874 N.W.2d
at 490.
[¶12.] Our inquiry starts with comparing the gravity of the offense here with
the sentence imposed. Id. ¶ 38,
874 N.W.2d at 488. Holler was convicted of first-
degree manslaughter —a killing “[w]ithout any design to effect death, . . . but by
means of a dangerous weapon”—a Class C felony under SDCL 22-16-15(3). Class C
felonies are punishable by up to life in prison and a $50,000 fine. SDCL 22-6-1(3).
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While manslaughter is less grave an offense than murder, “first-degree
manslaughter is still an unjustified and unexcused killing . . . . deemed inherently
violent by the South Dakota Legislature.” State v. Rice, 2016 S.D. 18, ¶ 14,
877
N.W.2d 75, 80. “[A]s a lesser form of the highest crime, the gravity of first-degree
manslaughter is relatively great on the spectrum of criminality.”
Id.
[¶13.] Holler admits that the gravity of his offense is relatively high, but
asserts that the gravity alone is not determinative. Holler emphasizes that he had
no intent to shoot anyone and no one foresaw the outcome of the robbery. He states
that it was an “ill-conceived plan by a group of adolescents,” he is remorseful, and
takes full responsibility. Holler argues the Legislature intended sentencing courts
to consider the individual circumstances of each case, which is why it authorized
such a broad range of permissible sentences for first-degree manslaughter. But “the
Eighth Amendment is not concerned with the harshness of a penalty relative to the
range of punishments permitted for a particular offense.” Id. ¶ 19,
877 N.W.2d at
82. Instead, “the harshness of the penalty refers to the penalty’s relative position
on the spectrum of all permitted punishments.”
Id. (quoting Chipps,
2016 S.D. 8,
¶ 37,
874 N.W.2d at 488).
[¶14.] The penalty for first-degree manslaughter ranges from no prison time
to life in prison. The punishments set for more serious Class A and B felonies
include mandatory life sentences or death. SDCL 22-6-1(1), (2). The 80-year
sentence is well within the statutory limits, and the 40 years suspended offers
Holler the possibility of release on parole in 20 years, under SDCL 24-15A-32. We
cannot say that the gravity of the offense is grossly disproportionate to the
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harshness of the penalty. Because the threshold question is not fulfilled, our
analysis ends here.
[¶15.] Holler nonetheless argues that evolving standards of decency dictate
that we should begin comparing co-defendants’ sentences in cases like his,
considering the fact that if the offense had occurred a month earlier, Holler’s case,
like J.C.’s, could have been transferred to juvenile court. He cites the United States
Supreme Court’s juvenile cases that created the jurisprudence treating children
differently for sentencing on certain types of offenses. See Miller v. Alabama, 567
U.S. 460,
132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012) (holding that sentencing a
fourteen year old to a mandatory term of life imprisonment for robbery violated the
Eighth Amendment); J.D.B. v. North Carolina,
564 U.S. 261,
131 S. Ct. 2394,
180 L.
Ed. 2d 310 (2011) (holding that a suspect’s age informs how a person in the
suspect’s position “would perceive his or her freedom to leave” when detained by law
enforcement); Graham v. Florida,
560 U.S. 48,
130 S. Ct. 2011,
176 L. Ed. 2d 825
(2010) (holding that sentencing a minor to life in prison violates the Eighth
Amendment when the juvenile offender did not commit homicide); Roper v.
Simmons,
543 U.S. 551,
125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005) (holding that
executing an offender who was a juvenile at the time he or she commits a capital
offense is prohibited by the Eighth Amendment).
[¶16.] But along with the fact that none of these cases would forbid the
sentence imposed here even if Holler had been under age 18 when this homicide
was committed, the fact remains that Holler crossed the line drawn for adulthood
before he committed this offense. As the Supreme Court noted in Roper v.
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Simmons, in drawing this conclusion, “[t]he qualities that distinguish juveniles
from adults do not disappear when an individual turns 18 . . . . however, a line must
be drawn.” 543 U.S. at 574,
125 S. Ct. at 1197-98. Therefore, we apply the
standard Eighth Amendment analysis under which a co-defendant’s sentence is
irrelevant to answering the threshold disproportionality question. Rice,
2016 S.D.
18, ¶ 22,
877 N.W.2d at 83. The circuit court’s sentence did not violate Holler’s
Eighth Amendment rights.
2. Whether the circuit court abused its discretion by failing to
consider Holler’s individual characteristics at sentencing.
[¶17.] Holler next argues that the circuit court did not properly assess his
individual attributes in making a sentencing determination. Circuit courts have
broad discretion in sentencing. State v. Bruce, 2011 S.D. 14, ¶ 28,
796 N.W.2d 397,
405-06. “[G]enerally, a sentence within the statutory maximum will not be
disturbed on appeal.”
Id. (quoting State v. Bonner,
1998 S.D. 30, ¶ 10,
577 N.W.2d
575, 578). “[A] trial court’s sentence ought to be proportionate to the particulars of
the offense and the offender.” Id. ¶ 32,
796 N.W.2d at 407 (quoting Bonner,
1998
S.D. 30, ¶ 25,
577 N.W.2d at 582).
[¶18.] “In order to determine the appropriate sentence, the ‘sentencing court
should’ acquire a thorough acquaintance with the character and history of the man
before it.” State v. McKinney,
2005 S.D. 74, ¶ 17,
699 N.W.2d 460, 466 (quoting
State v. McCrary,
2004 S.D. 18, ¶ 8,
676 N.W.2d 116, 120). The court looks at a
broad range of evidence to do so:
In determining the type and extent of punishment to be
imposed, the sentencing judge may exercise wide discretion with
respect to the type of information used as well as its source. He
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should have full access to the fullest information possible
concerning the defendant’s life and characteristics. Information
which should be available to the court includes general moral
character, mentality, habits, social environment, tendencies,
age, aversion or inclination to commit crime, life, family,
occupation, and previous criminal record.
State v. Arabie, 2003 S.D. 57, ¶ 21,
663 N.W.2d 250, 257 (quoting State v. Conger,
268 N.W.2d 800, 801-02 (S.D. 1978)). Rehabilitation prospects should also be
considered. State v. Hinger,
1999 S.D. 91, ¶ 21,
600 N.W.2d 542, 548.
[¶19.] Holler identifies many factors he believes the circuit court did not
properly consider, including: his traumatic childhood; abuse by his father and at a
daycare; his mother’s abuse; his ADHD, which he claims delays his brain
maturation by 2-3 years; and his multiple residential placements at young ages. He
cites to the United States Supreme Court’s juvenile jurisprudence to assert that it is
unlikely this crime reflects his true character.
[¶20.] Holler also emphasizes Dr. Flynn’s testimony that he is amenable to
rehabilitation and thrives when he has structure, like that afforded at Summit
Oaks or McCrossan. Finally, Holler claims the circuit court should have considered
the empathy and remorse he has shown since the offense occurred and argues the
length of the sentence diminishes his prospects of real rehabilitation. He asserts
that he does not “demonstrate the most serious combination of criminal conduct and
background of the offender.” In response, the State emphasizes Holler’s criminal
record dating back to the 2010 simple assault on his mother and argues Holler has
a long history of aggressive behavior.
[¶21.] The circuit court properly examined all these factors. At the
sentencing hearing, the court heard testimony of Dr. Flynn’s psychiatric evaluation
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of Holler, multiple victim impact statements, and had the opportunity to examine
the entire record before the hearing. The court found that even if the shooting itself
was an accident, many intentional acts led up to it. The court emphasized that just
because an offense committed at a younger age may mean a defendant has less
culpability, that does not mean there is no culpability. The court acknowledged that
Holler had shown empathy and maturation since the offense occurred, but noted
that even with a high level of intervention his whole life, nothing seems to have
changed his behavior. Before entering the sentence, the court stated: “[t]his isn’t a
probation case. This isn’t a suspended imposition of sentence case in my mind, but I
don’t think this is a life sentence case either.” The court expressed hope that Holler
will mature over the course of his prison sentence and become more amenable to
rehabilitation and less of a danger to the community.
[¶22.] It is clear from the record that the circuit court properly and carefully
examined the events surrounding the offense, Holler’s character and history, and
Holler’s rehabilitation prospects. The circuit court did not abuse its discretion.
Conclusion
[¶23.] Holler’s sentence of 80 years with 40 years suspended is not grossly
disproportionate to the offense of first-degree manslaughter and does not violate the
Eighth Amendment. Additionally, the circuit court properly reviewed all the
information available at sentencing and did not abuse its discretion in crafting the
sentence. We affirm.
[¶24.] KERN, JENSEN, SALTER, and DEVANEY, Justices, concur.
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