State v. Garreau

GILBERTSON, Chief Justice

#27122-a-DG APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge MARTY J. JACKLEY
Attorney General
ELLIE J. BAILEY
Assistant Attorney General
Pierre, South Dakota
Attorneys for plaintiff
and appellee.
PATRICIA A. CARLSON
Pierre, South Dakota
Attorney for defendant
and appellant.
GILBERTSON, Chief Justice [¶1.] Jason Todd Garreau appeals the circuit court's imposition of a 25-year sentence for his conviction on one count of attempted first-degree murder. Garreau asserts his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. He also asserts the circuit court violated his due process rights in considering a federal presentence investigation report that was included in the state presentence investigation report. Finally, Garreau asserts he was denied his right to counsel and right against self-incrimination during the court services interview in violation of the Fifth and Sixth Amendments. We affirm.

[¶2.] On October 30, 2013, Garreau borrowed a vehicle from his friend, Jason Mahto, to travel from Pierre to Fort Thompson. Mahto had active warrants. Although Garreau asserts his physical appearance is substantially different from that of Mahto, law enforcement apparently believed Garreau to be the owner of the vehicle and attempted to initiate a traffic stop before Garreau left Pierre. Rather than comply, Garreau led law enforcement on a high-speed chase through the City of Pierre, ignoring traffic signs, disregarding other motorists, and even driving on a sidewalk in order to evade a law enforcement roadblock. Garreau continued eastbound out of Pierre on highway 34, travelling at speeds in excess of 95 miles per hour. [¶3.] While fleeing from law enforcement, Garreau called his cousin, John. John intercepted Garreau on the highway, produced a firearm, and opened fire on the U.S. marshals in pursuit. At some point during the chase, John turned down a [¶5.] Garreau was indicted on two counts of attempted first-degree murder in violation of SDCL 22-4-1, SDCL 22-16-4(1), and SDCL 22-16-12. Garreau entered into a plea agreement with the State. Under the terms of that agreement, Garreau pleaded guilty to the attempted murder of Officer Martin, and the State dismissed the second count for the attempted murder of Officer Waller. Additionally, the State agreed to limit its sentencing recommendation to 20 years. The circuit court sentenced Garreau to the maximum term of 25 years. [¶6.] Prior to sentencing, Garreau filed objections to the presentence investigation report. In particular, Garreau objected to the inclusion of the federal presentence investigation report in the state presentence investigation report. Garreau also objected to being denied counsel at his presentence interview with court services. The circuit court denied the motions, and Garreau appeals. He raises three issues:

1. Whether his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment.



2. Whether the inclusion of the federal presentence investigation report in the state presentence investigation report violated due process.



3. Whether he was improperly denied counsel during his interview with court services.

[¶7.] We generally review a circuit court's decision regarding sentencing for abuse of discretion. See State v. Buchhold, 2007 S.D. 15, ¶ 17, 727 N.W.2d 816, 821. However, in reviewing a challenge to a sentence under the Eighth Amendment, we have consistently applied Justice Kennedy's analysis from his concurrence in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (plurality opinion). See State v. Bonner, 1998 S.D. 30, ¶ 16, 577 N.W.2d 575, 580. Therefore, "when a defendant challenges a sentence on Eighth Amendment grounds, our review is conducted using the gross disproportionality standard" instead of the abuse of discretion standard. See Buchhold, 2007 S.D. 15, ¶ 17, 727 N.W.2d at 821.

[¶8.] 1. Whether Garreau's sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. [¶9.] Garreau asserts that a sentence of 25 years is grossly disproportionate to the circumstances of the crime to which he pleaded guilty. "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime." Bonner, 1998 S.D. 30, ¶ 15, 577 N.W.2d at 579 (emphasis added) (quoting Harmelin, 501 U.S. at 1001, 111 S. Ct. at 2705 (Kennedy, J., concurring)) (internal quotation marks omitted). "[T]o assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate." Id. ¶ 17, 577 N.W.2d at 580 (emphasis added). To answer this threshold question, we consider "the gravity of the offense and the harshness of the penalty." Solem v. Helm, 463 U.S. 277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983), quoted in State v. Guthmiller, 2003 S.D. 83, ¶ 43, 667 N.W.2d 295, 309. This comparison rarely "leads to an inference of gross disproportionality[,]" Bonner, 1998 S.D. 30, ¶ 27, 577 N.W.2d at 582 (quoting Harmelin, 501 U.S. at 1005, 111 S. Ct. at 2707 (Kennedy, J., concurring)) (internal quotation mark omitted), and typically marks the end of our review, id. ¶ 17, 577 N.W.2d at 580. "[I]ntrajurisdictional and interjurisdictional prosecution, . . . has no adversarial role in the sentencing proceedings, . . . and acts as a neutral information gatherer for the judge,' the right to counsel does not attach." Id. (quoting Leonti, 326 F.3d at 1119). Garreau essentially argues that the content of the court services officer's questions alone is sufficient to render the court services officer an adversary. However, Garreau once again offers no authority for this proposition. Even if a court services officer asks a question that may be viewed as contrary to a defendant's interests, "the [court services officer] does not act on behalf of the government[.]" United States v. Gordon, 4 F.3d 1567, 1572 (10th Cir. 1993). [¶24.] Regardless, it is not necessary that we carve out an exception to Kauk today and decide whether a defendant has a Sixth Amendment right to counsel "when a court services officer assumes the role of inquisitor[.]" A defendant's Sixth Amendment right to counsel "attaches to charged offenses and does not attach to uncharged crimes or factually unrelated charged crimes." State v. Hoadley, 2002 S.D. 109, ¶ 26, 651 N.W.2d 249, 256-57 (emphasis added) (citing Texas v. Cobb, 532 U.S. 162, 171-72, 121 S. Ct. 1335, 1342-43, 149 L. Ed. 2d 321 (2001)). As noted above, Garreau asserts merely that his statements made during questioning "could have and may still result in other charges against [him]." (Emphasis added.) Garreau cannot logically argue that his responses in the presentence investigation interview led to the charge to which he pleaded guilty, and his statement necessarily implies that his objected-to statements have not yet resulted in any additional charges. Therefore, Garreau did not have a Sixth Amendment right to have counsel present at the interview.

[¶25.] The circuit court sentenced Garreau to the maximum available punishment, but not one grossly disproportionate to Garreau's nearly successful attempt to end Officer Martin's life. As Garreau said in his appellate brief, "Undoubtedly, had Jason Garreau surrendered to local law enforcement on October 31, 2013, instead of engaging in a shootout, he would not be serving state time for these crimes." The circuit court did not violate due process in viewing the federal presentence investigation report. Finally, Garreau has not articulated how any alleged violation of his Fifth or Sixth Amendment rights has impacted the case before us. Therefore, we affirm. [¶26.] ZINTER, SEVERSON, WILBUR and KERN, Justices, concur.