#29015-a-DG

2020 S.D. 28

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

DYLAN M. HOLLER, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

LINCOLN COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE NATALIE DAMGAARD

Judge

* * * *

JASON R. RAVNSBORG

Attorney General

ERIN E. HANDKE

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

NICOLE J. LAUGHLIN

Sioux Falls, South Dakota Attorney for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

MARCH 17, 2020

OPINION FILED 05/20/20
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GILBERTSON, Chief Justice

[¶1.] Dylan Holler shot and killed a young man in the course of completing a 

“drug rip” and pled guilty to first-degree manslaughter. He was sentenced to 80 

years in prison with 40 years suspended. He appeals his sentence, and we affirm.

Facts and Procedural History

[¶2.] In August 2017, shortly after his 18th birthday, Dylan Holler and two 

juveniles, J.C. and R.S., drove to Bakker Park in Sioux Falls looking to purchase 

marijuana. The plan was to perform a “drug rip” and take the marijuana by force. 

Holler had a stolen gun and $1,500 cash in his possession. A friend of J.C.’s put 

them in contact with Jayden Eastman, who had nine grams of marijuana to sell for 

$130. They met Eastman at the park, then drove to a gas station so that Holler 

could exchange some cash for smaller bills to pay Eastman. Holler claims that at 

this point he had not yet decided whether he would actually rob Eastman.

[¶3.] When the group returned to the park, Holler put a round in his gun, 

exited the vehicle, opened the driver’s side rear passenger door holding the gun, 

pistol-whipped Eastman in the head, and struggled with him in an attempt to take 

the marijuana. The gun was discharged twice during the struggle and R.S., sitting 

in the other rear seat, was fatally shot in the chest and leg. Eastman forced the gun 

out of Holler’s hand and fled the scene. Holler moved the vehicle a half block away 

and disposed of the gun and a spent shell casing. He then returned to R.S. and 

attempted CPR.

[¶4.] When law enforcement arrived, they found R.S. on the ground, along 

with J.C. and Holler still at the scene. R.S. was transported to Sanford Hospital 
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and pronounced dead. Officers found the gun in the park. Holler was indicted for 

first-degree murder, first-degree robbery, and aggravated assault. J.C. was charged 

in a separate criminal file that was later transferred to juvenile court.

[¶5.] Holler reached a plea agreement with the State under which he pled 

guilty to a new charge of first-degree manslaughter and the prior indictment was 

dismissed. The court ordered a pre-sentence investigation and Dr. Sarah Flynn 

conducted a psychiatric evaluation of Holler. The case was set for a sentencing 

hearing on February 15, 2019.

[¶6.] At this hearing, Holler called Dr. Flynn to testify in mitigation. The 

circuit court considered her testimony and the contents of the pre-sentence 

investigation report. The evidence revealed that Holler had a history of aggressive 

behavior throughout his childhood. Holler was abused by his father and also at a 

daycare as a young child. His mother was likewise a victim of abuse from Holler’s 

father and was also abused by another boyfriend. She had trouble disciplining and 

controlling Holler’s behavior. Holler attended counseling as a child, and was 

diagnosed with ADHD. He was prescribed medication for ADHD at a young age, 

but stopped taking his medication after he turned 18 because he could no longer 

afford the medication after losing insurance coverage.

[¶7.] In 2010, Holler was placed on probation for a simple assault. After 

violating his probation conditions, Holler was placed in an intensive supervision 

program, and was eventually sent to Summit Oaks behavioral center, where he 

successfully completed that program at age 14. After a 2016 burglary conviction,

Holler was placed at McCrossan Boys Ranch in Sioux Falls. While there he had one 
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minor in possession charge, but completed the program successfully. Holler was 

released from McCrossan a month before this incident.

[¶8.] Holler began drinking alcohol at age 14, but has not had problems with 

alcohol addiction. He began smoking marijuana around the same time, using daily 

by age 16 and consistently when not in residential programs. He experimented 

with drugs throughout his teenage years and had used methamphetamine and 

marijuana in the days leading up to this offense. The methamphetamine was still 

in Holler’s system at the time of this offense.

[¶9.] Additionally, the court considered several victim impact statements 

prior to imposing a sentence of 80 years in the South Dakota State Penitentiary 

with 40 years suspended and credit for 536 days served. He was also ordered to pay 

costs and restitution totaling around $44,000. Holler appeals his sentence raising 

two issues restated as follows:

1. Whether Holler’s sentence is grossly disproportionate to 

the offense under the Eighth Amendment.

2. Whether the circuit court abused its discretion in failing 

to consider Holler’s individual characteristics at 

sentencing.

Analysis and Decision

[¶10.] A circuit court’s sentencing decision is generally reviewed for an abuse 

of discretion. State v. Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486. “An abuse of 

discretion ‘is a fundamental error of judgment, a choice outside the range of 

permissible choices, a decision, which, on full consideration, is arbitrary or 

unreasonable.’” State v. Delehoy, 2019 S.D. 30, ¶ 22, 929 N.W.2d 103, 109 (quoting 

Thurman v. CUNA Mut. Ins. Soc’y, 2013 S.D. 63, ¶ 11, 836 N.W.2d 611, 616). 
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However, whether a sentence violates the Eighth Amendment is reviewed de novo. 

Delehoy, 2019 S.D. 30, ¶ 20, 929 N.W.2d at 108.

1. Whether Holler’s sentence is grossly disproportionate to the 

offense under the Eighth Amendment.

[¶11.] The Eighth Amendment to the United States Constitution protects 

against the infliction of cruel and unusual punishments. U.S. Const. amend. VIII. 

For a defendant’s sentence to violate the Eighth Amendment, “it must be grossly 

disproportionate to the offense.” Delehoy, 2019 S.D. 30, ¶ 36, 929 N.W.2d at 111. 

Our inquiry for determining gross disproportionality is well established:

“First, we look to the gravity of the offense and the harshness of 

the penalty.” . . . If 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 488-89 (quoting Solem v. Helm, 463 U.S. 

277, 290-91, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983)). If the threshold 

question does not lead to an inference of gross disproportionality, the analysis ends 

there. Id. “[O]ther conduct relevant to the crime” is considered in making “the 

threshold comparison between the crime and the sentence[.]” Id. ¶ 40, 874 N.W.2d 

at 490.

[¶12.] Our inquiry starts with comparing the gravity of the offense here with 

the sentence imposed. Id. ¶ 38, 874 N.W.2d at 488. Holler was convicted of firstdegree manslaughter —a killing “[w]ithout any design to effect death, . . . but by 

means of a dangerous weapon”—a Class C felony under SDCL 22-16-15(3). Class C 

felonies are punishable by up to life in prison and a $50,000 fine. SDCL 22-6-1(3). 
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While manslaughter is less grave an offense than murder, “first-degree 

manslaughter is still an unjustified and unexcused killing . . . . deemed inherently 

violent by the South Dakota Legislature.” State v. Rice, 2016 S.D. 18, ¶ 14, 877 

N.W.2d 75, 80. “[A]s a lesser form of the highest crime, the gravity of first-degree 

manslaughter is relatively great on the spectrum of criminality.” Id.

[¶13.] Holler admits that the gravity of his offense is relatively high, but 

asserts that the gravity alone is not determinative. Holler emphasizes that he had 

no intent to shoot anyone and no one foresaw the outcome of the robbery. He states 

that it was an “ill-conceived plan by a group of adolescents,” he is remorseful, and 

takes full responsibility. Holler argues the Legislature intended sentencing courts 

to consider the individual circumstances of each case, which is why it authorized 

such a broad range of permissible sentences for first-degree manslaughter. But “the 

Eighth Amendment is not concerned with the harshness of a penalty relative to the 

range of punishments permitted for a particular offense.” Id. ¶ 19, 877 N.W.2d at 

82. Instead, “the harshness of the penalty refers to the penalty’s relative position 

on the spectrum of all permitted punishments.” Id. (quoting Chipps, 2016 S.D. 8, 

¶ 37, 874 N.W.2d at 488).

[¶14.] The penalty for first-degree manslaughter ranges from no prison time 

to life in prison. The punishments set for more serious Class A and B felonies 

include mandatory life sentences or death. SDCL 22-6-1(1), (2). The 80-year 

sentence is well within the statutory limits, and the 40 years suspended offers 

Holler the possibility of release on parole in 20 years, under SDCL 24-15A-32. We 

cannot say that the gravity of the offense is grossly disproportionate to the 
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harshness of the penalty. Because the threshold question is not fulfilled, our 

analysis ends here.

[¶15.] Holler nonetheless argues that evolving standards of decency dictate 

that we should begin comparing co-defendants’ sentences in cases like his, 

considering the fact that if the offense had occurred a month earlier, Holler’s case, 

like J.C.’s, could have been transferred to juvenile court. He cites the United States 

Supreme Court’s juvenile cases that created the jurisprudence treating children 

differently for sentencing on certain types of offenses. See Miller v. Alabama, 567 

U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (holding that sentencing a 

fourteen year old to a mandatory term of life imprisonment for robbery violated the 

Eighth Amendment); J.D.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. 

Ed. 2d 310 (2011) (holding that a suspect’s age informs how a person in the 

suspect’s position “would perceive his or her freedom to leave” when detained by law 

enforcement); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010) (holding that sentencing a minor to life in prison violates the Eighth 

Amendment when the juvenile offender did not commit homicide); Roper v. 

Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (holding that 

executing an offender who was a juvenile at the time he or she commits a capital 

offense is prohibited by the Eighth Amendment).

[¶16.] But along with the fact that none of these cases would forbid the 

sentence imposed here even if Holler had been under age 18 when this homicide 

was committed, the fact remains that Holler crossed the line drawn for adulthood 

before he committed this offense. As the Supreme Court noted in Roper v. 
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Simmons, in drawing this conclusion, “[t]he qualities that distinguish juveniles 

from adults do not disappear when an individual turns 18 . . . . however, a line must 

be drawn.” 543 U.S. at 574, 125 S. Ct. at 1197-98. Therefore, we apply the 

standard Eighth Amendment analysis under which a co-defendant’s sentence is 

irrelevant to answering the threshold disproportionality question. Rice, 2016 S.D. 

18, ¶ 22, 877 N.W.2d at 83. The circuit court’s sentence did not violate Holler’s 

Eighth Amendment rights.

2. Whether the circuit court abused its discretion by failing to 

consider Holler’s individual characteristics at sentencing.

[¶17.] Holler next argues that the circuit court did not properly assess his 

individual attributes in making a sentencing determination. Circuit courts have 

broad discretion in sentencing. State v. Bruce, 2011 S.D. 14, ¶ 28, 796 N.W.2d 397, 

405-06. “[G]enerally, a sentence within the statutory maximum will not be 

disturbed on appeal.” Id. (quoting State v. Bonner, 1998 S.D. 30, ¶ 10, 577 N.W.2d 

575, 578). “[A] trial court’s sentence ought to be proportionate to the particulars of 

the offense and the offender.” Id. ¶ 32, 796 N.W.2d at 407 (quoting Bonner, 1998 

S.D. 30, ¶ 25, 577 N.W.2d at 582).

[¶18.] “In order to determine the appropriate sentence, the ‘sentencing court 

should’ acquire a thorough acquaintance with the character and history of the man 

before it.” State v. McKinney, 2005 S.D. 74, ¶ 17, 699 N.W.2d 460, 466 (quoting 

State v. McCrary, 2004 S.D. 18, ¶ 8, 676 N.W.2d 116, 120). The court looks at a 

broad range of evidence to do so:

In determining the type and extent of punishment to be 

imposed, the sentencing judge may exercise wide discretion with 

respect to the type of information used as well as its source. He 
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should have full access to the fullest information possible 

concerning the defendant’s life and characteristics. Information 

which should be available to the court includes general moral 

character, mentality, habits, social environment, tendencies, 

age, aversion or inclination to commit crime, life, family, 

occupation, and previous criminal record.

State v. Arabie, 2003 S.D. 57, ¶ 21, 663 N.W.2d 250, 257 (quoting State v. Conger, 

268 N.W.2d 800, 801-02 (S.D. 1978)). Rehabilitation prospects should also be 

considered. State v. Hinger, 1999 S.D. 91, ¶ 21, 600 N.W.2d 542, 548.

[¶19.] Holler identifies many factors he believes the circuit court did not 

properly consider, including: his traumatic childhood; abuse by his father and at a 

daycare; his mother’s abuse; his ADHD, which he claims delays his brain 

maturation by 2-3 years; and his multiple residential placements at young ages. He 

cites to the United States Supreme Court’s juvenile jurisprudence to assert that it is 

unlikely this crime reflects his true character.

[¶20.] Holler also emphasizes Dr. Flynn’s testimony that he is amenable to 

rehabilitation and thrives when he has structure, like that afforded at Summit 

Oaks or McCrossan. Finally, Holler claims the circuit court should have considered 

the empathy and remorse he has shown since the offense occurred and argues the 

length of the sentence diminishes his prospects of real rehabilitation. He asserts 

that he does not “demonstrate the most serious combination of criminal conduct and 

background of the offender.” In response, the State emphasizes Holler’s criminal 

record dating back to the 2010 simple assault on his mother and argues Holler has 

a long history of aggressive behavior.

[¶21.] The circuit court properly examined all these factors. At the 

sentencing hearing, the court heard testimony of Dr. Flynn’s psychiatric evaluation 
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of Holler, multiple victim impact statements, and had the opportunity to examine 

the entire record before the hearing. The court found that even if the shooting itself 

was an accident, many intentional acts led up to it. The court emphasized that just 

because an offense committed at a younger age may mean a defendant has less 

culpability, that does not mean there is no culpability. The court acknowledged that 

Holler had shown empathy and maturation since the offense occurred, but noted 

that even with a high level of intervention his whole life, nothing seems to have

changed his behavior. Before entering the sentence, the court stated: “[t]his isn’t a 

probation case. This isn’t a suspended imposition of sentence case in my mind, but I 

don’t think this is a life sentence case either.” The court expressed hope that Holler 

will mature over the course of his prison sentence and become more amenable to 

rehabilitation and less of a danger to the community.

[¶22.] It is clear from the record that the circuit court properly and carefully 

examined the events surrounding the offense, Holler’s character and history, and 

Holler’s rehabilitation prospects. The circuit court did not abuse its discretion.

Conclusion

[¶23.] Holler’s sentence of 80 years with 40 years suspended is not grossly 

disproportionate to the offense of first-degree manslaughter and does not violate the 

Eighth Amendment. Additionally, the circuit court properly reviewed all the 

information available at sentencing and did not abuse its discretion in crafting the 

sentence. We affirm.

[¶24.] KERN, JENSEN, SALTER, and DEVANEY, Justices, concur.