State v. Miles

956 N.W.2d 61

STATE of South Dakota, Plaintiff and Appellee,

v.Jason Michael MILES, Defendant and Appellant.

#29191

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS AUGUST 24, 2020

OPINION FILED February 24, 2021

JASON R. RAVNSBORG, Attorney General, PATRICIA ARCHER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

JUSTIN L. BELL of May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, Attorneys for defendant and appellant.

KERN, Justice

[¶1.] Jason Miles (Miles) pled nolo contendere to three counts of possession of child pornography, a Class 4 felony, pursuant to a plea agreement. The circuit court sentenced him to ten years in the state penitentiary, with six years suspended on each count and credit for time served. The court ordered counts 1 and 2 to be served consecutively with count 3 to run concurrently. Miles appeals, contending that his sentence violates the Eighth Amendment and constitutes an abuse of discretion. We affirm.

Facts and Procedural History

[¶2.] In January 2019, Division of Criminal Investigation (DCI) Special Agent Toby Russell (Agent Russell) conducted an online investigation into the practice of sharing child pornography files using the BitTorrent network.¹ Agent Russell connected to Miles's computer using special investigative BitTorrent software and obtained a partial download of two individual video files located at an Internet Protocol (IP) address in Pierre, South Dakota. Agent Russell selected these files because the file names indicated that they may contain child pornography. One of the files contained a video of graphic child pornography, but the other file could not be viewed.² He obtained a subpoena for the subscriber information for this IP address held by Midcontinent Communications. The information received from Midcontinent revealed that Miles was the customer using this IP address in Pierre.

[¶3.] In early February 2019, law enforcement officers obtained a warrant to search Miles's house. During the search of his residence, Miles told law enforcement that he did not know why his IP address was associated with child pornographic activity. Miles admitted that he used BitTorrent but said that there was nothing on any of his computers that related to child pornography. However, after conducting a search of his computer's hard drive, the forensic analyst discovered 18 separate images of child pornography.³ Miles claimed that, although the images were found on the hard drive, none of the images were accessible from his desktop. Miles claimed that the computer's operating system automatically saved the images in an area of the computer inaccessible to him without special software. However, prior to being saved, the files containing the images had to be downloaded on Miles's computer and opened.⁴ None of the other electronic devices law enforcement seized from Miles's house contained child pornography.

[¶4.] In July 2019, a Hughes County grand jury indicted Miles on ten counts of possession of child pornography under SDCL 22-24A-3(3).⁵ Pursuant to the terms of a plea agreement, on August 20, 2019, Miles pled nolo contendere to three counts of possession of child pornography in exchange for dismissal of the remaining seven counts. After the entry of his plea, the court ordered a presentence investigation and a psychosexual evaluation.

[¶5.] Miles appeared for sentencing on November 14, 2019. The court sentenced Miles on each count to serve ten years in the state penitentiary with six years suspended and gave him credit for time served. The circuit court ordered counts 1 and 2 to be served consecutively and count 3 to be served concurrently, providing for 20 years of supervision. Further, the court ordered that Miles complete sex offender treatment during his incarceration. Miles appeals, raising two issues for our review:

I. Whether Miles's sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment.

II. Whether the circuit court abused its discretion in sentencing Miles.

Standard of Review

[¶6.] When reviewing a sentence challenged on Eighth Amendment grounds, we conduct a de novo review. State v. Chipps , 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486. "We generally review a circuit court's decision regarding sentencing for abuse of discretion." Id.

Analysis and Decision

Cruel and Unusual Punishment

[¶7.] "The Eighth Amendment to the United States Constitution ... prohibits ‘cruel and unusual punishments,’ which the United States Supreme Court has interpreted to include ‘the right not to be subjected to excessive sanctions.’ " State v. Quevedo , 2020 S.D. 42, ¶ 19, 947 N.W.2d 402, 406 (quoting Roper v. Simmons , 543 U.S. 551, 560, 125 S. Ct. 1183, 1190, 161 L. Ed. 2d 1 (2005) ).

[¶8.] In reviewing a sentence challenged under the Eighth Amendment, our first determination is "whether the sentence imposed is grossly disproportionate to its corresponding offense." State v. Yeager , 2019 S.D. 12, ¶ 4, 925 N.W.2d 105, 108. A review for gross disproportionality requires us to "first compare the gravity of the offense—i.e., ‘the offense's relative position on the spectrum of all criminality’—to the harshness of the penalty—i.e., ‘the penalty's relative position on the spectrum of all permitted punishments.’ " State v. Rice , 2016 S.D. 18, ¶ 13, 877 N.W.2d 75, 80. And, "[i]f 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 489 (quoting Solem v. Helm , 463 U.S. 277, 291, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983) ).

[¶9.] We begin this relatively straightforward review by examining the gravity of Miles's offense. Miles possessed child pornography—that is, images and videos depicting the criminal victimization and exploitation of children. As we observed in State v. Bruce , children are harmed during production of each video and picture. 2011 S.D. 14, ¶ 30, 796 N.W.2d 397, 406. In recognition of the severity of this conduct, the Legislature criminalized each act of downloading an image, extending legislative protection to each exploited child in each picture. Id. Possession of these images is an egregious offense because it not only perpetuates the harm to some of the most vulnerable members of our society, but it also invades their privacy and furthers the profit motive of the manufacturers and distributors of child pornography. State v. McKinney , 2005 S.D. 74, ¶ 29, 699 N.W.2d 460, 468-70 (citing United States v. Norris , 159 F.3d 926, 929-30 (5th Cir. 1998) ).⁶

[¶10.] Miles argues that he is less culpable and the offense is less serious because he did not produce the child pornography, did not commit sexual acts with minors, and did not have the child pornography in a readily accessible part of his computer. In Miles's view, the sentencing court erred in assessing the gravity of the offense because it did not apply the factors set forth in Bruce , 2011 S.D. 14, 796 N.W.2d 397.

[¶11.] In Bruce , the circuit court sentenced the defendant to serve 100 years in prison for possession of 55 counts of child pornography. Id. ¶¶ 1-2, 796 N.W.2d at 400. Bruce appealed, challenging his sentence on Eighth Amendment grounds. Id. ¶ 27, 796 N.W.2d at 405. He argued that due to the wide range of conduct criminalized in SDCL 22-24A-3—including not just possession, but also manufacturing and distributing the images—the sentencing court must insure that the most severe penalties should be reserved for the most serious conduct and offenders. Id. ¶ 31, 796 N.W.2d at 406-07. Because his offenses involved only possession of the images, Bruce argued the circuit court erred by imposing the lengthy sentences. Id. ¶ 34, 796 N.W.2d at 408.

[¶12.] Concluding that the sentences were grossly disproportionate to the "offense and offender," this Court remanded for resentencing with the recommendation "that courts look at two additional determinants when assessing the seriousness of a child pornography offense: (1) the specific nature of the material and (2) the extent to which the offender is involved with that material." Id. ¶¶ 32, 39, 796 N.W.2d at 407, 409 (quoting State v. Blair , 2006 S.D. 75, ¶ 83, 721 N.W.2d 55, 76 (Konenkamp, J., concurring in result)).

[¶13.] Miles argues that the factors in Bruce control our analysis and that the circuit court erred by not assessing them. While we agree that these factors are useful considerations for a circuit court in assessing "the circumstances of the crime" and are relevant to "the gravity of the offense[,]" Chipps , 2016 S.D. 8, ¶ 36, 874 N.W.2d at 488, they are neither controlling of our gross disproportionality review, nor mandatory considerations for the sentencing court. As we reiterated in State v. Rice , our Eighth Amendment jurisprudence has undergone a course correction. 2016 S.D. 18, ¶ 21, 877 N.W.2d at 83. "[W]e depart[ed] from Bonner (and its progeny [including Bruce , 2011 S.D. 14, ¶ 32, 796 N.W.2d at 407 ]) to the extent that its Eighth Amendment analysis deviates from that explained in Chipps ." Id.

[¶14.] Here, Miles downloaded and possessed 18 images of child pornography and a video of child pornography. The psychosexual evaluation described these images and the video, and they speak for themselves.⁷ Relying upon the range of conduct discussed in Bruce , Miles argues that his actions fall on the lower end of the spectrum and that the prohibited materials found on his computer were more akin to "lewd exhibitionism." 2011 S.D. 14, ¶ 31, 796 N.W.2d at 406-07. While we disagree with Miles's characterization, at least with respect to some of the images located on his computer, regardless of how they are described, his knowing possession of such material unquestionably constitutes possession of child pornography under SDCL 22-24A-3, a...