Opinion
No. 14189.
Considered on Briefs December 2, 1983.
Decided May 29, 1984.
Appeal from the Circuit Court, Seventh Judicial Circuit, Custer County, Thomas Parker, J.
Thomas H. Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Wayne F. Gilbert of Lehnert Gilbert, Rapid City, for defendant and appellant.
Appellant was originally charged with twelve counts of sexual contact with a minor, SDCL 22-22-7. In a plea bargain, seven counts from two other counties were dismissed and appellant pleaded guilty to five remaining counts. He was sentenced to five consecutive five-year terms in the state penitentiary. We affirm.
The maximum penalty at the time of appellant's offenses, which all occurred prior to July 1, 1982, was five years imprisonment and/or a $5,000.00 fine. SDCL 22-6-1(7), 1981 S.D.Sess.Laws ch. 176. The offense has since been reclassified from a class 5 felony to a class 4 felony, which carries a penalty of ten years imprisonment and/or a $10,000.00 fine. SDCL 22-6-1(6), 1982 S.D.Sess.Laws ch. 176, § 2.
Appellant contends that the maximum penalties on each of five counts are disproportionate to the offenses and violate the United States Constitution, eighth amendment, and the South Dakota Constitution, article VI, section 23.
We have interpreted the United States Supreme Court decision in Solem v. Helm, ___ U.S. ___, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), as instructing us that "we must consider the proportionality of the sentence when a life sentence without parole is imposed." (emphasis in original) State v. Williamson, 342 N.W.2d 15, 18 (S.D. 1983). Because appellant's consecutive five-year sentences were within the statutory limits and do not shock the conscience of the court, we will not review them on appeal. State v. Phipps, 318 N.W.2d 128 (S.D. 1982); State v. Antelope, 304 N.W.2d 115 (S.D. 1981).
The judgment of conviction and the sentences entered thereon are affirmed.