State v. EKREN

623 N.W.2d 448 (2001) STATE of South Dakota, Plaintiff and Appellee, v. Nelda EKERN, Defendant and Appellant. No. 21600. Supreme Court of South Dakota. Considered on Briefs February 13, 2001. Decided February 26, 2001. Mark Barnett, Attorney General, Jason A. Glodt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee. Kelly D. Frazier, Pennington County Public Defender's Office, Rapid City, South Dakota, Attorneys for defendant and appellant. PER CURIAM. [¶ 1.] An attorney with the Pennington County Public Defender once again claims a sentence violates the constitutional protection against cruel and unusual punishment.[1] Here, the claim is that a two year penitentiary sentence for third offense felony DUI is constitutionally infirm. This suggestion "borders on the bizarre." State v. Winchester, 438 N.W.2d 555, 556 (S.D. 1989). [¶ 2.] Ekern is a chronic alcoholic and has been arrested over thirty times for drug and alcohol related offenses. She has eight lifetime DUI arrests, and, without counting the felony DUI in this case, two felony DUIs in the last five years. She has completed five inpatient treatment programs and still drinks and drives. [¶ 3.] In this case, she pled guilty and received the benefit of a plea agreement. Her sentence was within statutory limits. After considering "the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court," Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d at 580, it is abundantly clear *449 that there is not even a remote suggestion of gross disproportionality.[2] [¶ 4.] The judgment is affirmed. [¶ 5.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating. NOTES [1] All of the following cases have been summarily affirmed. See, 21497, State v. Kostaneski, 624 N.W.2d 358 (2001); 21368, State v. Herron, 622 N.W.2d 434 (2000); 21434, State v. Jeunesse, 622 N.W.2d 434 (Table) (2000); 21182, State v. Genco, 614 N.W.2d 828 (Table)(2000); 21238, State v. Stands, 614 N.W.2d 828 (Table)(2000); 21250, State v. Orem, 614 N.W.2d 828 (Table)(2000); 21112, State v. Verhelst, 608 N.W.2d 330 (Table)(2000); 20711, State v. Gear, 596 N.W.2d 734 (Table)(1999); 20607, State v. Meeks, 590 N.W.2d 709 (Table)(1999). See also all the cases cited in Justice Gilbertson's special concurrence in State v. Bonner, 1998 SD 30, 577 N.W.2d 575. We cite these cases not to contravene SDCL 15-26A-87.1(E), but to show the Pennington County Public Defender's pattern with regard to this issue. [2] Attorneys should be mindful of South Dakota Rules of Professional Conduct, Rule 3.1. Meritorious Claims and Contentions.