#29223-a-MES
2021 S.D. 24
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
JONATHON W. KLINETOBE, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
…
THE HONORABLE HEIDI LINNGREN
Judge
…
JASON R. RAVNSBORG
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff and
appellee.
ELIZABETH REGALADO of
Pennington County Public
Defender’s Office
Rapid City, South Dakota Attorneys for defendant and
appellant.
…
ARGUED
JANUARY 12, 2021
OPINION FILED 04/14/21
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SALTER, Justice
[¶1.] Jonathon Klinetobe pled guilty to aiding and abetting first-degree
manslaughter. Following a four-day sentencing hearing, the circuit court sentenced
Klinetobe to life in prison without the possibility of parole. He appeals the
sentence. We affirm.
Facts and Procedural History
[¶2.] Jonathon Klinetobe (Klinetobe) was in an on-again, off-again
relationship with Jessica Rehfeld (Rehfeld) throughout 2014 and 2015. Both lived
in Rapid City. Their relationship ultimately ended in April 2015. Klinetobe
believed Rehfeld had been unfaithful and became unhappy after she eventually
resumed a relationship with her ex-boyfriend. Klinetobe began a pattern of
threatening phone calls, texts, and social media posts directed to Rehfeld. She
obtained a temporary protection order against Klinetobe in May 2015 after
Klinetobe physically assaulted her. On her protection order application, Rehfeld
stated that she felt her “life is in danger.” 1
[¶3.] Klinetobe became increasingly angry after being served with the
protection order and began discussing the possibility of having Rehfeld killed with
Richard Hirth (Hirth) who, ironically, was a mutual friend. Hirth claimed to have
previous, tangential connections to the Hells Angels Motorcycle Club. Klinetobe
1. Klinetobe’s messages to Rehfeld were menacing and included the following
examples: “I hate u get out of state w u can or kill yourself everyone is better
off wit out u in their life go be . . . in hell;” “I’m done wit a skank like u u
deserve to get beat and raped everyday;” “go kill yourself it would do the
whole world some good you cheating slut;” “i am going to kill u and ur friends
are next;” “Ur a dead bitch bring it.”
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used an entirely fabricated story to convince Hirth that the Hells Angels
organization was offering an $80,000 bounty to whoever killed Rehfeld, allegedly
because she possessed damaging information about the club. Klinetobe even
arranged for Hirth to talk on the phone with a still-unknown individual posing as a
Hells Angels member who confirmed that Rehfeld was the object of the $80,000
bounty. When Hirth asked about the “plan of action,” the unidentified voice simply
responded, “dead.”
[¶4.] Hirth enlisted the assistance of a third man, Dave Schneider
(Schneider), and the three confreres met several times to discuss Rehfeld’s murder
throughout late-April and early-May 2015. Because Rehfeld trusted Hirth, their
plan called for him to pick her up at her home and drive her to her job at Walmart,
ostensibly for her protection. However, rather than taking Rehfeld to work, Hirth
would drive her to another location and kill her. Klinetobe, the group decided,
would not be present because Rehfeld would not get into the vehicle if she saw him.
Schneider was to serve as the driver. Klinetobe was anxious to carry out the plan
and instructed Hirth to bring him Rehfeld’s necklace coated with blood as proof of
her death.
[¶5.] On May 18, 2015, Hirth and Schneider picked up Rehfeld from her
home, purportedly to drive her to work. Rehfeld sat in the front passenger seat and
Hirth sat in the backseat behind her. Schneider drove a “back route” to Walmart,
telling Rehfeld it was to avoid being followed by Klinetobe. When they reached a
deserted spot in the road, Hirth leaned forward, put his left hand over Rehfeld’s
mouth, and began stabbing her with a knife. Police reports included in Klinetobe’s
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presentence investigation indicate that Rehfeld struggled and bit down on Hirth’s
hand. As Rehfeld continued to struggle, he kept stabbing her. From the driver’s
seat, Schneider held Rehfeld’s legs down to keep her from kicking. Rehfeld pleaded
for her life while Hirth continued to stab her.
[¶6.] Hirth later recalled in his interview with Rapid City police detectives
that Rehfeld began to weaken as the attack continued. As her resistance waned,
she looked up at Hirth and asked why this was happening to her. He recalled that
she repeatedly told him, “I trusted you” and asked “why, why, why, why are you
doing this, why, what have I done?” Near death, Rehfeld asked in vain if she could
call her father. She then asked to roll down her window so she could look at the
stars as she died. Hirth stabbed her in the neck again. Rehfeld died approximately
twenty minutes after Hirth commenced the attack.
[¶7.] Schneider and Hirth then removed Rehfeld’s body from the vehicle and
placed it in the trunk of the car using a military body bag. Hirth called Klinetobe to
inform him that Rehfeld had been killed. Klinetobe reminded Hirth to bring him
the necklace. Hirth insisted that Klinetobe help them dispose of Rehfeld’s body
because it had been Klinetobe’s idea to kill her. Schneider and Hirth went to
Klinetobe’s trailer to pick him up. The three then drove into the Black Hills
National Forest and selected a remote area near Rockerville where they dug a
shallow grave using Hirth’s military entrenching tool. Before burying Rehfeld,
Klinetobe took her necklace, purse, wallet, cell phone, and Walmart employee
identification tag.
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[¶8.] The three men agreed they would not tell law enforcement about the
killing or about any of the circumstances surrounding Rehfeld’s disappearance,
death, and burial. They met on at least two subsequent occasions and renewed
their commitment to keep quiet. The subject of the $80,000 bounty on Rehfeld’s life
was also a topic of discussion, but Klinetobe maintained his subterfuge and offered
contrived excuses for why he was unable to pay Schneider and Hirth their share of
the money.
[¶9.] Klinetobe returned to Rehfeld’s burial site several times. Because of a
seizure disorder, he could not drive himself to the remote location and relied upon
his friend, Beverly Cheshire (Cheshire), for rides. Cheshire knew Klinetobe had
been involved in Rehfeld’s disappearance and murder, and she understood that she
was transporting him to the place where Rehfeld was buried. She later told police
that Klinetobe had threatened that she “would be next” if she told anyone about his
crime. In late May 2015, Klinetobe solicited the help of two other men, Michael
Frye and Garland Brown, to rebury Rehfeld’s body in a deeper grave nearby.
[¶10.] Rehfeld’s sudden disappearance went unresolved for the next year.
During that time, Klinetobe feigned concern and ignorance regarding Rehfeld’s
whereabouts. He lied during an interview with a police detective and also lied to
Rehfeld’s family in an attempt to conceal his complicity and also to suggest
Rehfeld’s most recent boyfriend was responsible for her disappearance.
[¶11.] Ultimately, however, Cheshire decided “she couldn’t live with herself
any longer” and reported what she knew about Rehfeld’s murder to police in
Newcastle, Wyoming, where she was then living. Newcastle police officers, in turn,
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contacted their counterparts in Rapid City, and, with Cheshire’s assistance, they
quickly discovered Rehfeld’s body. Rapid City officers also moved to locate and
arrest Klinetobe, Hirth, and Schneider. While executing a search warrant at
Klinetobe’s house, detectives recovered Rehfeld’s necklace, purse, and other articles
taken from her body.
[¶12.] A Pennington County grand jury returned an indictment charging
Klinetobe, Hirth, and Schneider with first-degree murder under a premeditated
design theory or, alternatively, under a felony-murder theory. See SDCL 22-16-4(1)-
(2). The indictment also charged the three men with conspiracy to commit first-
degree murder, first-degree aggravated kidnapping, and conspiracy to commit first-
degree aggravated kidnapping. See SDCL 22-3-8 (conspiracy); SDCL 22-19-1
(aggravated kidnapping in the first degree). The State initially provided notice of
its intent to seek the death penalty but later withdrew its notice.
[¶13.] In September 2019, Klinetobe pled guilty to an information charging
him with one count of aiding and abetting first-degree manslaughter. See SDCL 22-
16-15 (first-degree manslaughter); SDCL 22-3-3 (aiding and abetting). The guilty
plea was part of a written plea agreement with the State. Perhaps the most notable
feature of the agreement was that it modified the statutory maximum sentence for
the homicide offense. Instead of mandating a life sentence in the event of a murder
conviction, the plea agreement authorized a guilty plea to first-degree
manslaughter, which is punishable by an indeterminate sentence of up to life in
prison. The provisions of the plea agreement made clear that the State intended to
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seek the maximum penalty but allowed Klinetobe the opportunity to argue for a
sentence that was less than life in prison.
[¶14.] As part of the plea agreement, the parties also executed and filed a
separate factual basis statement. In it, Klinetobe specifically acknowledged that
“[t]hroughout late April and early May” of 2015, he met with Hirth and Schneider
and “discussed killing Jessica Rehfeld.” Klinetobe admitted he “led Hirth and
Schneider to believe they would be paid” as part of “a supposed Hells Angels bounty
on Rehfeld’s head which would be payable upon ‘proof of death.’” The factual basis
statement further related that “Klinetobe was aware of the plan to kill [Rehfeld]
and when it would happen.” According to the plan, “only Hirth and Schneider
would be present at the killing[,]” and “Klinetobe would be called and join them
after she was killed.” Finally, the factual basis statement also confirmed the
sequence of events following Rehfeld’s killing, including her initial burial and
Klinetobe’s subsequent effort to exhume her body and rebury her.
[¶15.] After the completion of a presentence investigation, the circuit court
conducted a four-day sentencing hearing in December 2019. The State presented
testimony from a recently-retired Rapid City Police Department detective who
described details concerning the investigation of Rehfeld’s disappearance and death.
The court also heard in-court victim impact statements and received several letters
submitted by members of Rehfeld’s family and her friends.
[¶16.] Much of Klinetobe’s mitigation case focused on claims of intellectual
disability and mental illness, along with his description of a traumatic childhood.
His attorneys presented testimony from forensic psychologist Mark Cunningham,
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Ph.D., and forensic psychiatrist Michael Farnsworth, M.D., along with testimony
from Klinetobe’s mother, sister, and stepfather.
[¶17.] The expert testimony, related principally by Dr. Cunningham,
suggested that multiple adverse developmental factors disrupted the “trajectory” of
Klinetobe’s life and left him less equipped to make sound decisions. These factors
included prenatal exposure to alcohol, physical abuse and neglect in his childhood,
cognitive limitations, and mental illness. In Dr. Cunningham’s view, these
“damaging or impairing factors” diminished Klinetobe’s moral culpability. 2
[¶18.] Through testing, Dr. Cunningham opined that Klinetobe had a scaled
intelligence quotient (IQ) of 70-75, 3 which Dr. Farnsworth characterized as
“intellectually functioning . . . like an 11- or 12-year-old.” Both experts concluded
Klinetobe had a mild intellectual disability based upon his IQ and other cognitive
2. The term “moral culpability” is most often used in capital cases to determine
if a defendant or a class of defendants should be subject to the death penalty.
For example, in Atkins v. Virginia, 536 U.S. 304, 306,
122 S. Ct. 2242, 2244,
153 L. Ed. 2d 335 (2002), the United States Supreme Court, using the
parlance of the era, observed that mentally disabled individuals “do not act
with the level of moral culpability that characterizes the most serious adult
criminal conduct.” The Supreme Court ultimately held that imposing the
death penalty upon those who are intellectually disabled violates the Eighth
Amendment’s prohibition upon cruel and unusual punishment.
3. The State devotes a substantial portion of its brief to the claim that
Klinetobe’s IQ was actually higher than the value determined by Dr.
Cunningham. Central to this factual argument is the State’s claim that Dr.
Cunningham improperly corrected for what is known as the “Flynn effect,”
which posits that IQ scores artificially drift higher over time. However,
during the sentencing hearing, the State did not make this argument and
appeared to accept the application of the Flynn effect correction. Further, as
noted below, the circuit court did not, in any event, accept the more
important aspects of Dr. Cunningham’s testimony. Under the circumstances,
we do not believe there to be a question before us that requires us to resolve
the efficacy of correcting scaled IQ scores for the Flynn effect.
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and behavioral deficits. As a result, Dr. Cunningham concluded Klinetobe had
limited adaptive functioning skills, which Dr. Cunningham testified were
illustrated by Klinetobe’s poor employment record and history of financial
dependence, poor hygiene, lack of initiative and performance, faulty decision-
making, and an inclination to tell untrue stories. During his cross examination, Dr.
Cunningham acknowledged that Klinetobe’s concocted stories were often grandiose
and tended to make Klinetobe appear powerful or estimable.
[¶19.] Following a recess, the circuit court provided a detailed explanation of
its sentencing analysis by, among other things, referencing traditional sentencing
factors, such as rehabilitation, retribution, and public safety. The court highlighted
the evidence from the four-day sentencing hearing and specifically acknowledged
Klinetobe was not responsible for the adverse circumstances of his childhood. 4
Although the court generally accepted the expert testimony at least insofar as the
experts opined on Klinetobe’s multiple “diagnoses[,]” the court ultimately found the
expert testimony to be of little assistance.
[¶20.] In the court’s view, the experts’ opinions failed to adequately account
for the nature and the extent of Klinetobe’s planning and involvement in Rehfeld’s
murder and his subsequent ability to avoid detection for a year. The court
explained that “it makes no sense to me that a man who is unable to focus long
enough on his hygiene or his school work or his daily tasks could keep a murder
covered [up] as long as [Klinetobe] did.” In an apparent reference to his
4. The circuit court also found Klinetobe’s minimal criminal history to be
mitigating, though it noted that he had a “documented history” of mistreating
women.
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unfamiliarity with key pieces of information during cross examination, the court
further found “it was clear . . . that [Dr. Farnsworth] was unaware in making his
opinion of the extent of [Klinetobe’s] planning[.]”
[¶21.] Dr. Cunningham’s testimony suffered from a similar lack of factual
validation, the circuit court concluded. Though the court found “Dr. Cunningham’s
overall professional work to be credible,” some of the historical facts upon which he
based his theory that Klinetobe had reduced moral culpability were ultimately not
established. In this regard, the court credited testimony from Klinetobe’s mother
and sister who provided a less stark assessment of the level of violence to which
Klinetobe was exposed while growing up. In the court’s view, this testimony
“minimized the violence in [Klinetobe’s] home, violence and incidents that Dr.
Cunningham relied on.” The court also found that Klinetobe’s mother and sister
described a broader range of Klinetobe’s emotions and affect than Dr. Cunningham
had contemplated, including Klinetobe’s ability to express remorse and pursue
reconciliation after doing something that hurt another, despite the fact, the court
added parenthetically, he did not demonstrate genuine remorse for Rehfeld’s killing.
[¶22.] The balance of Dr. Cunningham’s testimony was, in the circuit court’s
view, not mitigating–but aggravating. The court noted that Dr. Cunningham’s
exhaustive exposition of Klinetobe’s “deficiencies, dismal past and the future of
uncertainty that lies ahead” was not reassuring. The court explained:
Although [Dr. Cunningham’s] testimony would have been very
effective to dissuade a jury to sentence [Klinetobe] to death, as
he was originally hired, his testimony only persuaded this Court
of the difficulties that [Klinetobe] would have, making [him] a
real threat to the community.
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[¶23.] The circuit court further found there was a paucity of evidence to
establish Klinetobe would be amenable to successful rehabilitation efforts,
commenting that “[t]here has been no plan or suggestion of any detail to this Court
as to what rehabilitation would look like.” Beyond this, the court commented that
Dr. Cunningham testified that Klinetobe’s likelihood of success in the event of
release or parole from prison could not be determined now, but would have to wait
years into the future. The court also referenced testimony from Dr. Farnsworth
during his cross-examination, in which he acknowledged that the principal traits
which were at the heart of Klinetobe’s criminal conduct will not be resolved through
treatment.
[¶24.] In the end, the circuit court concluded Klinetobe presented an acute
risk to public safety. Without some assurance that Klinetobe could successfully
address the issues that led him to seek Rehfeld’s murder, the court determined that
“no one is safe” and imposed a sentence of life in prison without the possibility of
parole.
[¶25.] Klinetobe appeals his sentence and presents the following issues for
our review:
1. Whether the circuit court abused its discretion by
sentencing Klinetobe to life in prison without the
possibility of parole.
2. Whether the circuit court’s sentence amounted to cruel
and unusual punishment in violation of the Eighth
Amendment.
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Standard of Review
[¶26.] We generally review a circuit court’s sentencing decision for an abuse
of discretion. State v. Holler, 2020 S.D. 28, ¶ 10,
944 N.W.2d 339, 342. “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.”
Id. (quoting State v. Delehoy,
2019 S.D. 30, ¶ 22,
929 N.W.2d 103,
109). “This Court, in turn, will not overturn the circuit court’s abuse of discretion
unless that ‘error is demonstrated and shown to be prejudicial error.’” State v.
Berget,
2014 S.D. 61, ¶ 13,
853 N.W.2d 45, 52 (quoting State v. Smith,
1999 S.D. 83,
¶ 39,
599 N.W.2d 344, 353).
[¶27.] Whether a circuit court’s sentence violates the Eighth Amendment’s
proscription against cruel or unusual punishment involves a different standard.
Holler,
2020 S.D. 28, ¶ 10,
944 N.W.2d at 342. We review this constitutional
question de novo.
Id.
Analysis and Decision
Abuse of Discretion
[¶28.] “Circuit courts have broad discretion in sentencing.” Id. ¶ 17. Courts
should consider the traditional sentencing factors of retribution, deterrence─both
individual and general─rehabilitation, and incapacitation. See State v. Pulfrey,
1996 S.D. 54, ¶ 15,
548 N.W.2d 34, 38. When considering these sentencing factors,
“[o]ne . . . is not preeminent over any of the others.”
Id. The factors are to be
weighed “on a case-by-case basis” depending on the circumstances of the particular
case. State v. Toavs,
2017 S.D. 93, ¶ 10,
906 N.W.2d 354, 357. See also State v.
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Talla, 2017 S.D. 34, ¶ 14,
897 N.W.2d 351, 355 (holding that circuit courts weigh
the relative importance of the penological goals of retribution, deterrence,
incapacitation, and rehabilitation on a case-by-case basis).
[¶29.] “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.” Holler,
2020 S.D. 28, ¶ 18,
944 N.W.2d at 344 (quoting State v.
McKinney,
2005 S.D. 74, ¶ 17,
699 N.W.2d 460, 466). The sentencing court should
have 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.”
Id. (quoting State v. Arabie,
2003 S.D. 57, ¶ 21,
663 N.W.2d 250, 257).
[¶30.] Here, the circuit court did not abuse its discretion. The record shows
that the circuit court carefully considered the evidence from the four-day sentencing
hearing and appropriately weighed the sentencing factors. In its oral sentencing
analysis, the court described and considered the factors in the context of this unique
sentencing record, demonstrating a keen familiarity with Klinetobe himself and the
entirety of the evidence adduced over the course of the lengthy sentencing hearing.
[¶31.] For example, the court found multiple areas of mitigating evidence,
including Klinetobe’s relatively young age, minimal criminal history, his guilty plea,
and personal childhood trauma. The court specifically stated that Klinetobe’s guilty
plea saved Rehfeld’s family the pain of a trial, and the court also expressed its
awareness of the challenges Klinetobe faced growing up. However, the court
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determined that aggravating factors weighed in favor of a harsher sentence,
including Klinetobe’s solicitation of others to assist in Rehfeld’s murder, the lies he
told to his accomplices, the manner of Rehfeld’s death, his efforts to cover up the
crime, and his lack of remorse. Klinetobe’s strategy to minimize the impact of this
evidence, though perhaps reasonable, was simply not successful.
[¶32.] In this regard, the circuit court was largely unpersuaded by the expert
testimony, finding the opinions about moral culpability and the level of Klinetobe’s
intellectual disability to be unconvincing. Although the court acknowledged that
Drs. Cunningham and Farnsworth appeared to be qualified experts, it found
significant flaws in their conclusions based upon the court’s own determination of
important predicate facts.
[¶33.] In the court’s view, Dr. Cunningham’s opinions regarding Klinetobe’s
moral culpability were weakened by testimony from Klinetobe’s mother and sister
describing Klinetobe as being capable of remorse and showing empathy throughout
his childhood. Further, the court determined that Dr. Farnsworth’s lack of
familiarity with the details of Rehfeld’s murder and the extent of Klinetobe’s
involvement diminished the effectiveness of his opinions. These determinations are
supported by the record.
[¶34.] Despite the evidence of Klinetobe’s intellectual disability and limited
adaptive functioning, the fact remains that he alone conceived the idea to kill
Rehfeld and fabricated a story to successfully convince others to help him commit
the most serious crime known to society. He constructed his bounty ruse so
carefully that he arranged for a different individual to pose as a Hells Angels
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member and speak to Hirth on the telephone to confirm the details. Investigators
have never apprehended the Hells Angels poseur.
[¶35.] After Rehfeld had been killed, Klinetobe put off paying Hirth and
Schneider with more deception. He lied to police and Rehfeld’s family to avoid
detection for the next year, despite the fact that the police were aware of Rehfeld’s
protection order against Klinetobe, his history of abusing her, and his threats.
Paired with Klinetobe’s lack of remorse, 5 these circumstances support the court’s
finding that his crime reflected careful planning and included his direct
involvement as a necessary component. The court surely was not obligated to
indiscriminately accept the expert testimony wholesale and find that Rehfeld’s
murder was the inevitable result of adverse circumstances beyond Klinetobe’s
control. See State v. Jensen, 1998 S.D. 52, ¶ 54,
579 N.W.2d 613, 622 (citation
omitted) (“Of course, the mere fact that an expert testifies does not mean that his or
her opinion must be accepted by the trial court. A trial court, when also sitting as
the fact finder, is the sole judge of the credibility of the witnesses and can accept or
reject all or part of the expert’s testimony.”); see also Podio v. American Colloid Co.,
83 S.D. 528, 532,
162 N.W.2d 385, 387 (1968) (citation omitted) (“The value of an
opinion of an expert witness is dependent on and entitled to no more weight than
the facts upon which it is predicated.”).
5. Klinetobe argues the circuit court overlooked his brief statement during
allocution that he “was truly sorry” to Rehfeld’s family and to his own family
and would accept “[w]hatever sentence I get.” We believe the court was in
the best position to judge Klinetobe’s sincerity, and we are not inclined to
revisit the court’s lack-of-remorse determination in this appeal.
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[¶36.] Nor can we accept Klinetobe’s argument that the circuit court focused
inordinately on the aggravated nature of the crime. Because the plea agreement
allowed Klinetobe to plead guilty to the less serious homicide offense of first-degree
manslaughter under an aider and abettor theory, the court acted within its
discretion to accurately assess his level of culpability and the true nature of the
offense. 6 For example, in addition to the other details of the crime described above,
the court discussed the terror Klinetobe inflicted on Rehfeld leading up to her
murder and the pain she suffered during the attack.
[¶37.] The court also noted that evidence relating to Klinetobe’s potential for
rehabilitation was comparatively weak. Although Drs. Cunningham and
Farnsworth had thoroughly detailed Klinetobe’s learning difficulties and mental
health challenges, they did so in such stark terms that the court could reasonably
find, as it did, that Klinetobe’s chance of rehabilitation appeared “slim, if not
nonexistent.” The court noted, in this regard, that there was no plan or suggestion
for Klinetobe’s rehabilitation and a life outside of prison. In fact, Dr. Farnsworth
testified that there is no treatment for the traits that played a central role in
Rehfeld’s death, including Klinetobe’s grandiose behavior, his inclination to
fabricate and lie, and his ability to persuade others to commit criminal acts for him.
6. The circuit court’s evaluation was not limited to the information contained
within the parties’ factual basis statement. It was free to also rely upon the
extensive sentencing record the parties subsequently developed. See Holler,
2020 S.D. 28, ¶ 18,
944 N.W.2d at 344 (quoting Arabie,
2003 S.D. 57, ¶ 21,
663 N.W.2d at 257) (“The court looks at a broad range of evidence . . . [and]
‘may exercise wide discretion with respect to the type of information used as
well as its source.’”).
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[¶38.] The circuit court also considered the sentencing factor relating to
incapacitation, explaining that Klinetobe represented a significant risk to public
safety. Given Klinetobe’s explosive violence and history of lashing out when he does
not get his way, along with the abysmal way he had treated women, 7 the court
concluded that “unless and until” Klinetobe gets his behavior under control, “no one
is safe.” We believe the court’s comments were supported by the sentencing record
and reflect a sound exercise of discretion.
[¶39.] Klinetobe also argues that his intellectual deficits and mental illness
should have justified a shorter sentence than Hirth and Schneider, but this
argument is not sustainable. A claim of unwarranted sentencing disparity depends
upon a record that establishes that co-defendants were similarly situated and
inexplicably received different sentences. See State v. Rice, 2016 S.D. 18, ¶ 25,
877
N.W.2d 75, 83 (holding that a defendant seeking to prevail on a claim of
unwarranted sentencing disparity “must show that his and [his co-defendant’s]
‘past records, demeanor, degree of criminal involvement, etc., are sufficiently
similar as to cause the sentence disparity between them to be unjust’”) (quoting
State v. Garber,
2004 S.D. 2, ¶ 32,
674 N.W.2d 320, 328)).
[¶40.] Here, there is an insufficient record to support such a claim. Hirth’s
case remains unresolved, and it appears Schneider had not been sentenced at the
7. The record shows Klinetobe continued to threaten and abuse women after
Rehfeld’s death, prompting four women to seek protection orders during the
year after Rehfeld’s disappearance. Included among these women was
another of Klinetobe’s ex-girlfriends and the mother of his newborn child. Dr.
Cunningham also testified that Klinetobe was “easily angered” and
“aggressive towards females, especially mom.”
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time of Klinetobe’s sentencing. As a result, Schneider’s sentencing record is not
included in the record before us, and though Klinetobe advises that Schneider
ultimately received a 75-year prison sentence, this does not establish a sufficient
record to review the issue. 8
[¶41.] Under the particular facts presented here, we can find no abuse of
discretion. The record indicates the court understood all of Klinetobe’s mitigating
evidence and gave it the proper weight. Indeed, the mere presence of mitigating
evidence does not entitle a defendant to a diminished sentence, but rather forms a
part of the larger sentencing record, all of which the sentencing court must consider.
In our view, the circuit court considered all the recognized sentencing factors and
appropriately weighed them as part of a “reasoned, careful and informed review of
the defendant and his crime . . . .” McKinney, 2005 S.D. 74, ¶ 24,
699 N.W.2d at
467.
Eighth Amendment
[¶42.] “The Eighth Amendment to the U.S. Constitution, which was extended
to the states through the Fourteenth Amendment, prohibits the infliction of ‘cruel
8. Klinetobe’s unwarranted sentencing disparity argument proceeds under the
premise that Schneider’s sentence represents the correct baseline sentencing
measure. However, this assumption may not be safe. Trial courts in South
Dakota generally impose indeterminate sentences that are the product of the
court’s discretion, not a determinate sentencing guideline system that assigns
fixed sentencing ranges to guide the court’s discretion. Therefore, all that
can be said of Schneider’s sentence is that it is different than Klinetobe’s.
This fact alone cannot establish it as a bellwether for the exercise of the
circuit court’s discretion in this case. See Apprendi v. New Jersey, 530 U.S.
466, 549,
120 S. Ct. 2348, 2394,
147 L. Ed. 2d 435 (2000) (O’Connor, J.,
dissenting) (“Studies of indeterminate-sentencing schemes found that
similarly situated defendants often received widely disparate sentences.”).
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and unusual punishments.’” State v. Taylor, 2020 S.D. 48, ¶ 53,
948 N.W.2d 342,
357 (quoting State v. Chipps,
2016 S.D. 8, ¶ 32,
874 N.W.2d 475, 486). When this
Court reviews sentences challenged under the Eighth Amendment, we are to
“determine whether the sentence imposed is grossly disproportionate to its
corresponding offense.”
Id. (quoting State v. Yeager,
2019 S.D. 12, ¶ 4,
925 N.W.2d
105, 108). The inquiry requires us to first compare “the gravity of the offense and
the harshness of the penalty.”
Id. (quoting Chipps,
2016 S.D. 8, ¶ 38,
874 N.W.2d at
488). “Such a comparison ‘rarely leads to an inference of gross disproportionality
and typically marks the end of our review.’”
Id. However, “[i]f an appearance of
gross disproportionality results after the initial comparison of the gravity of the
offense against the harshness of the penalty, only then will we compare [the
defendant’s] sentence to those imposed on other criminals for the same crime within
or, if necessary, outside the jurisdiction.” State v. Diaz,
2016 S.D. 78, ¶ 51,
887
N.W.2d 751, 766 (citation omitted).
[¶43.] Here, Klinetobe’s life sentence was the maximum allowed for the
offense of aiding and abetting first-degree manslaughter. It is, of course, one of the
most serious sentences a court can impose. See Bult v. Leapley,
507 N.W.2d 325,
327 (S.D. 1993) (“[A] life sentence is exceeded in severity only by capital
punishment.”). However, the gravity of Klinetobe’s offense is difficult to overstate.
Although the plea agreement allowed him to plead guilty to aiding and abetting
first-degree manslaughter, the undisputed facts establish Klinetobe as a principal
leader in what became a plot to kill Rehfeld, conceal her body, and avoid detection.
Though this effort was not formally denominated as a conspiracy to commit first-
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degree murder, it was, at a minimum, among the most serious types of
manslaughter. See Talla, 2017 S.D. 34, ¶ 10,
897 N.W.2d at 354 (quoting Rice,
2016
S.D. 18, ¶ 24,
877 N.W.2d at 83) (“[W]hen a judge imposes the maximum sentence
permitted by statute . . ., it is sufficient that the judge could reasonably conclude the
offense in question is among ‘the more serious commissions of the crime[.]’”).
[¶44.] We conclude that Klinetobe has failed to show his sentence is grossly
disproportionate and adhere to our general rule that “a sentence within the
statutory maximum generally will not be disturbed on appeal.” Rice,
2016 S.D. 18,
¶ 23,
877 N.W.2d at 83 (quoting State v. Bruce,
2011 S.D. 14, ¶ 28,
796 N.W.2d 397,
406). Under the circumstances, we need not compare the sentence to those imposed
on other criminals for the same crime.
Conclusion
[¶45.] Klinetobe’s sentence of life without parole reflects neither an abuse of
the sentencing court’s discretion nor gross disproportionality. We affirm the
sentence.
[¶46.] JENSEN, Chief Justice, and DEVANEY and MYREN, Justices, and
CLARK, Circuit Court Judge, concur.
[¶47.] CLARK, Circuit Court Judge, sitting for KERN, Justice, disqualified.
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