The record contains several references to the "benefit of the bargain," but it appears it was initially offered simply as an explanation of Alvarez's motivation to enter into the plea agreement (i.e. to obtain the dismissal of the other rape charge and the aggravated assault charge)-not as a reference to an Alford-style plea in which a defendant pleads guilty to obtain the benefit of a plea agreement while simultaneously maintaining his innocence. See State v. Clegg, 2001 S.D. 128, ¶ 2, 635 N.W.2d 578, 579 (explaining a benefit of the bargain plea and relating the practice to the plea procedure set out in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). Indeed, Alvarez did not assert innocence at the change of plea hearing and agreed that all of the elements of first-degree rape were established, including penetration.
"A defendant's remorse and prospects for rehabilitation are proper considerations in sentencing." State v. Clegg , 2001 S.D. 128, ¶ 9, 635 N.W.2d 578, 581. Because "rehabilitation must begin with the offender's acknowledgment of personal fault[,] [t]he inability or unwillingness to accept personal responsibility may be considered by a sentencing court as an indicator that a defendant's rehabilitation prospects are limited."
That is because "[rehabilitation must begin with the offender's acknowledgment of personal fault." State v. Clegg, 2001 SD 128, ¶ 6, 635 N.W.2d 578, 580. The inability or unwillingness to accept personal responsibility may be considered by a sentencing court as an indicator that a defendant's rehabilitation prospects are limited.
Thus, his realistic chances of successful treatment and rehabilitation were questionable at best. As we stated in State v. Clegg, 2001 SD 128, ¶ 6, 635 N.W.2d 578, 580: [A]fter exercising the right to trial, a defendant's continued refusal to take accountability may be considered as a sign of lack of remorse.
Rehabilitation must begin with an offender's acknowledgment of personal fault. State v. Clegg, 2001 SD 128, ¶ 6, 635 N.W.2d 578, 580. [¶ 22.] Thus, the record does reflect that the trial court considered the prospects of rehabilitation along with the gravity of the offense; its effect on the victims; McKinney's background and the interest of the public in deterring these types of offenses.
See, e.g., Jennings v. State, 664 A.2d 903, 910 (Md. 1995) ("[A] sentencing court may consider, on the issue of a defendant's prospects for rehabilitation, the defendant's lack of remorse."); State v. Tiernan, 645 A.2d 482, 486 (R.I. 1994) (holding that the sentencing court properly considered the "defendant's refusal to acknowledge guilt for the limited purpose of assessing defendant's potential for rehabilitation"); State v. Clegg, 635 N.W.2d 578, 581 (S.D. 2001) ("[A] defendant's remorse and prospects for rehabilitation are proper considerations in sentencing."); State v. Fuerst, 512 N.W.2d 243, 247 (Wis. Ct. App. 1994) ("[A] sentencing court does not erroneously exercise its discretion by noting a defendant's lack of remorse as long as the court does not attempt to compel an admission of guilt or punish the defendant for maintaining his innocence."); cf.State v. Nooner, 759 P.2d 945, 946-47 (Idaho Ct. App. 1988) (concluding that, inasmuch as the sentencing court "did not rely solely upon Nooner's continued denial of guilt" after his conviction, such a consideration, "in light of all the evidence presented, did not constitute error").
Appellate courts from other states have also held that a sentencing court may consider the existence or absence of remorse by the defendant in assessing the defendant's need for rehabilitation, as well as the likelihood that a defendant may reoffend. See, e.g., People v. Ripley, 291 Ill.App.3d 565, 226 Ill.Dec. 259, 685 N.E.2d 362, 366 (1997); State v. Roberts, 641 A.2d 177, 179 (Me. 1994); Jennings v. State, 339 Md. 675, 664 A.2d 903, 910 (1995); People v. Wesley, 428 Mich. 708, 411 N.W.2d 159, 162 (1987); State v. Shreves, 313 Mont. 252, 60 P.3d 991, 996 (2002); State v. Tiernan, 645 A.2d 482, 485 (R.I. 1994); State v. Clegg, 635 N.W.2d 578, 581 (S.D. 2001); State v. Sims, 158 Vt. 173, 608 A.2d 1149, 1158 (1991); see also Bergmann v. McCaughtry, 65 F.3d 1372, 1379 (7th Cir. 1995) ("It is well established that a sentencing court may consider lack of remorse when imposing a sentence."). As the Vermont Supreme Court stated, "A defendant's acceptance of responsibility for the offense, and a sincere demonstration of remorse, are proper considerations in sentencing.
See,e.g.,Jennings v. State, 339 Md. 675, 664 A.2d 903, 910 (1995) ("[A] sentencing court may consider, on the issue of a defendant's prospects for rehabilitation, the defendant's lack of remorse."); State v . Tiernan, 645 A.2d 482, 486 (R.I.1994) (holding that the sentencing court properly considered the "defendant's refusal to acknowledge guilt for the limited purpose of assessing defendant’s potential for rehabilitation"); Statev . Clegg, 635 N.W.2d 578, 581 (S.D.2001) ("[A] defendant's remorse and prospects for rehabilitation are proper considerations in sentencing."); State v. Fuerst , 181 Wis.2d 903, 512 N.W.2d 243, 247 (Ct.App.1994) ("[A] sentencing court does not erroneously exercise its discretion by noting a defendant's lack of remorse as long as the court does not attempt to compel an admission of guilt or punish the defendant for maintaining his innocence."); cf.State v . Nooner, 114 Idaho 654, 759 P.2d 945, 946-47 (Ct.App.1988) (concluding that, inasmuch as the sentencing court "did not rely solely upon Nooner's continued denial of guilt" after his conviction, such a consideration, "in light of all the evidence presented, did not constitute error").
. . ." ( In re Personal Restraint of Dyer (2008) 164 Wn.2d 274 [ 189 P.3d 759, 773]; accord, People v. Ripley (1997) 291 Ill.App.3d 565 [226 Ill.Dec. 259, 685 N.E.2d 362, 366-367]; State v. Bragg (Iowa Ct.App. 1986) 388 N.W.2d 187, 192; State v. Clegg (S.D. 2001) 635 N.W.2d 578, 581; see State v. Amidon (2008) 185 Vt. 1 [ 967 A.2d 1126, 1137] ["a defendant may . . . [seek] to demonstrate his amenability to swift rehabilitation by owning up to his guilt and taking responsibility for his actions . . ."]; State v. Wood (Mo.Ct.App. 1984) 668 S.W.2d 172, 175 ["defendant's refusal to admit her guilt bodes ill for her rehabilitation"].) "`A pardon proceeds, not upon the theory of innocence, but implies guilt.