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2017 S.D. 18 

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA, Plaintiff and Appellee,

v.

PAUL DEAN JENSEN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

STANLEY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JOHN L. BROWN

Judge

* * * *

MARTY J. JACKLEY

Attorney General

ANN C. MAYER

Assistant Attorney General

Pierre, South Dakota Attorneys for plaintiff

and appellee.

JEFF LARSON

Jeff Larson Law, LLP

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS 

MARCH 22, 2017

OPINION FILED 04/19/17
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GILBERTSON, Chief Justice

[¶1.] In 1996, Paul Dean Jensen received concurrent, mandatory life 

sentences for the first-degree murder and kidnapping of Michael Hare. Jensen was 

14 years old when he committed the offenses. In 2012, the United States Supreme 

Court issued Miller v. Alabama, barring mandatory life sentences against juvenile 

homicide offenders. 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). Jensen 

filed a motion in circuit court to have his sentence corrected. After the United 

States Supreme Court issued Montgomery v. Louisiana, which declared that Miller 

applies retroactively, the court held a resentencing hearing. See ___ U.S.___, 136 S. 

Ct. 718, 193 L. Ed. 2d 599 (2016). At the conclusion of the hearing, the sentencing 

court resentenced Jensen to concurrent, 200-year sentences for first-degree murder 

and kidnapping. Jensen appeals. We affirm

Background 

[¶2.] On January 14, 1996, 14-year-old Jensen and 16-year-old Shawn 

Springer carried out their plan to rob a taxi driver in Pierre, South Dakota. Armed 

with a gun and fitted with bandanas to cover their faces, Jensen and Springer 

called for a taxi to pick them up in the back parking lot of a local hotel. The taxi 

company dispatched driver Michael Hare to the hotel. Hare parked and waited in 

the front parking lot, just outside the hotel’s entrance. Jensen and Springer 

realized that the taxi was not going to pick them up in the rear parking lot and 

decided that they could not keep their faces covered with bandanas if they entered 

the taxi in front of the hotel. Jensen and Springer uncovered their faces, entered 

the taxi, and directed Hare to drive them to Fort Pierre. 
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[¶3.] Shortly thereafter, Hare stopped the taxi on a gravel road outside Fort 

Pierre. Jensen pointed a gun at Hare, and Springer and Jensen demanded that 

Hare give them all his money. Hare insisted that he only had $30 and gave the 

money to Jensen and Springer. Jensen got out of the taxi with the gun drawn and 

ordered Hare to exit the vehicle. Hare begged for his life. Jensen shot Hare three 

times and walked back toward the taxi. Jensen grabbed Hare’s billfold, which had 

been placed on the hood of the taxi. Jensen got into the passenger’s seat, and 

Springer, who had already relocated to the driver’s seat, began to drive away. Law 

enforcement learned of the robbery while Jensen and Springer were leaving the 

scene and located the taxi being driven by Springer. A high-speed chase ensued but 

ended when Springer drove the taxi into a snowbank. The officers arrested Jensen 

and Springer. 

[¶4.] In August 1996, Springer pleaded guilty to kidnapping and agreed to 

testify against Jensen. The sentencing court sentenced Springer to 261 years in 

prison. Jensen, after being transferred to adult court, pleaded not guilty. On 

October 4, 1996, a jury found Jensen guilty of first-degree murder, two counts of 

first-degree felony murder, first-degree robbery, aiding and abetting grand theft, 

possession of a stolen motor vehicle, kidnapping, and conspiracy to commit firstdegree robbery. Only his convictions for first-degree murder and kidnapping are 

relevant in this appeal. For those convictions, the sentencing court imposed 

concurrent sentences of mandatory life in prison. We affirmed Jensen’s convictions 

and sentences in State v. Jensen, 1998 S.D. 52, 579 N.W.2d 613. 
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[¶5.] After the United States Supreme Court issued Miller, 567 U.S. 460, 

132 S. Ct. 2455, Jensen filed a motion to correct an illegal sentence. The circuit 

court granted Jensen’s motion and held a resentencing hearing on June 2-3, 2016. 

At the hearing, both the State and Jensen presented expert testimony on the 

mitigating qualities of Jensen’s youth, namely evidence related to Jensen’s 

childhood and Jensen’s emotional, social, psychological, and intellectual attributes 

as a juvenile offender. The parties also presented expert testimony on Jensen’s 

changed, matured character as an adult. The State presented evidence regarding 

Jensen’s potential for release under the parole system in effect at the time of his 

crimes, referred to as the “old system.” The current parole system provides

presumptive release to offenders; the old system used a discretionary system. The 

State’s witnesses described the old parole system and explained what factors the 

parole board would typically consider before releasing a prisoner into the 

community. 

[¶6.] At the conclusion of the resentencing hearing, the court orally 

sentenced Jensen to 200 years in prison for both first-degree murder and 

kidnapping and ordered the sentences to run concurrently. Jensen would be eligible 

for discretionary parole at age 39 and for parole based on good-time credit at age 

116. 

[¶7.] Jensen appeals, asserting the following issues:

1. Whether concurrent, 200-year sentences constitute cruel and 

unusual punishment?

2. Whether the sentencing court abused its discretion when it 

imposed concurrent, 200-year sentences?
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Analysis 

 

1. Whether concurrent, 200-year sentences constitute cruel and 

unusual punishment? 

 

[¶8.] Before we examine this issue, we address the State’s claim that Jensen 

waived his right to challenge the length of his sentence under the Eighth 

Amendment. The State claims that Jensen waived this right because he did not 

object when the court sentenced him or file a motion to have the court reconsider its 

sentence. Although we ordinarily decline to review an error not raised before the 

circuit court, Jensen challenges the legality of the sentencing court’s decision to 

impose concurrent, 200-year sentences under the Eighth Amendment, not the 

court’s procedural or evidentiary decisions related to its sentencing. Whether the 

court imposed an illegal sentence in violation of the Eighth Amendment is 

preserved for our review. See SDCL 23A-31-1 (Rule 35) (“A court may correct an 

illegal sentence at any time[.]”); State v. Springer, 2014 S.D. 80, ¶ 9, 856 N.W.2d 

460, 463 (“[A]n unconstitutional sentence is an illegal sentence.”). 

[¶9.] We review de novo whether a defendant’s sentence is cruel and 

unusual in violation of the Eighth Amendment. Springer, 2014 S.D. 80, ¶ 9, 856 

N.W.2d at 464. In regard to juveniles, the United States Supreme Court has held 

that the Eighth Amendment forbids the imposition of the death penalty for any 

crime, a sentence of life without parole for nonhomicide crimes, and a sentence of

mandatory life without parole for homicide crimes. Roper v. Simmons, 543 U.S. 

551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (barring the imposition of the death 

penalty); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) 

(barring sentences of life without parole against juvenile nonhomicide offenders); 
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Miller, 567 U.S. 460, 132 S. Ct. 2455 (barring sentencing schemes that mandate life 

without parole for juvenile homicide offenders). In Springer, we recognized that our 

Legislature amended SDCL 22-6-1 and SDCL 23A-27-1 (Rule 32(a)(1)) in response 

to Roper, Graham, and Miller. Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465. 

SDCL 22-6-1 no longer mandates a life sentence without parole for a juvenile 

offender convicted of a Class A or B felony. And the Legislature amended Rule 

32(a)(1) to allow a juvenile “to present any information in mitigation of 

punishment.” In light of Miller and the statutory changes, we concluded that “the 

sentencing court should carefully weigh and consider the [ ] mitigating qualities of 

youth” as set out in Miller. Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 466. 

[¶10.] Jensen acknowledges that the sentencing court considered the Miller

factors and notes that in many respects, the court correctly applied Miller. But he 

argues that the sentencing court “made some statements that seem to stray from 

Miller’s guidance,” which, to Jensen, renders his sentence unconstitutional. In 

particular, Jensen quotes the court’s statement: “Youth simply isn’t an excuse or a 

way to excuse a criminal offense.” Jensen contends the opposite is true—his youth 

makes him constitutionally different than an adult—and that the court’s statement 

makes clear that the court did not adequately account for Jensen’s youth.

[¶11.] Jensen is correct that “[s]entencing courts must consider what the 

United States Supreme Court termed the ‘mitigating qualities of youth.’” Id. ¶ 14, 

856 N.W.2d at 465 (quoting Miller, 567 U.S. at ____, 132 S. Ct. at 2467); accord

State v. Charles, 2017 S.D. 10, ¶ 19, ____ N.W.2d ____. Those qualities include: 

(1) the chronological age of the juvenile, (2) the juvenile’s 

immaturity, impetuosity, irresponsibility, and recklessness, (3) 
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family and home environment, (4) incompetency in dealing with 

law enforcement and the adult criminal justice system, (5) the 

circumstances of the crime, and, most importantly, (6) the

possibility for rehabilitation. 

Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465-66 (quoting Miller, 567 U.S. at 

____, 132 S. Ct. at 2467-69). 

[¶12.] But from our review of the sentencing court’s decision, the court did 

not stray from its duty to weigh and consider the Miller factors. The court 

specifically took into account Jensen’s youth at the time of the offenses. The court 

identified that both Springer and Jensen “were young men of an age that the courts 

have said now that we need to look at that age of minority and take that into 

account as mitigation in terms of sentencing the individuals.” The court found that 

Jensen matured—he was not the same person he was when he was convicted. From 

the evidence presented, the court concluded that multiple factors weighed in favor 

of Jensen’s potential for rehabilitation and that the 20 years served by Jensen 

amounted to sufficient retribution. But the court concluded that Jensen “has a 

great deal yet that he needs to accomplish and to prove that he can function in 

society as a positive member of society” and imposed a sentence to a lengthy term of 

years with a possibility of release at age 39. 

[¶13.] Nevertheless, Jensen claims that his sentence is unconstitutional 

under the Eighth Amendment because it is the functional equivalent of life without 

parole. He recognizes that he is eligible for discretionary release at age 39, but

argues that discretionary release under South Dakota’s old parole system does not

comport with Miller. He distinguishes his case from State v. Diaz, in which we 

remarked that Diaz did not receive a life sentence because she had the opportunity 
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for parole at age 55. 2016 S.D. 78, ¶ 58, 887 N.W.2d 751, 768. Diaz, unlike Jensen, 

was sentenced under the new parole system, which means she will be released at 

age 55 without having to appear before the parole board so long as she is compliant 

while in prison. Under the old parole system, Jensen could remain in prison until 

his presumptive release date at age 116 (well beyond his natural life), if the parole 

board denies Jensen release at each opportunity after he turns 39. Jensen cites to 

Atwell v. State for the proposition that “[a] presumptive parole release date set 

decades beyond a natural life span is at odds with the Supreme Court’s recent 

pronouncement in Montgomery.” 197 So. 3d 1040, 1048 (Fla. 2016). 

[¶14.] In 1992, Atwell was convicted of first-degree murder and armed 

robbery. Id. at 1043. He was 16 years old when he committed the offenses. On the 

murder conviction, the statute in effect mandated a sentence of life without the 

possibility of parole for 25 years. Id. Following Miller, Atwell petitioned for postconviction relief, arguing that his mandatory sentence violated the Eighth 

Amendment. Id. at 1044. The Florida district court denied relief because it held 

that Atwell’s possibility of parole after serving 25 years removed his mandatorilyimposed sentence from the purview of Miller. 

[¶15.] On appeal, the Florida Supreme Court reversed. It found significant 

that when the court sentenced Atwell in 1992, the court was not able to consider 

how juveniles “are different and how those differences counsel against irrevocably 

sentencing them to a lifetime in prison.” Id. at 1050 (quoting Miller, 567 U.S. at 

___, 132 S. Ct. at 2469). And, even though Atwell would have an opportunity to 

have his sentence re-examined after serving 25 years, the Florida court highlighted 
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that the parole system in effect at the time did not require the parole board to 

consider the Miller factors, which meant that Atwell would never have his juvenilerelated characteristics considered when imposing punishment. Id. at 1047 (quoting 

Fla. Stat. § 947.002 (2015)). The court also rejected the claim that Atwell’s right to 

presumptive release after serving 140 years brought Atwell’s mandatorily-imposed

sentence into compliance with Miller. Atwell had yet to have his juvenile-related 

characteristics considered in regard to his punishment and release after serving 140 

years was beyond Atwell’s natural life. Id. at 1048. Ultimately, the court ordered 

that Atwell be resentenced so he could “receive the type of individualized sentencing 

consideration Miller requires.” Id. at 1050. 

[¶16.] Here, however, Jensen received the type of individualized sentencing 

required by Miller when the sentencing court held a resentencing hearing in 2016. 

Also, although South Dakota’s discretionary parole system, like Florida’s, does not 

require the consideration of the mitigating qualities of youth, the Atwell court 

examined Florida’s discretionary parole system to determine whether Atwell’s 

opportunity for parole could remove his mandatorily-imposed sentence from the 

purview of Miller and Montgomery. Jensen did not receive a mandatory sentence of 

life without the possibility of parole. And Jensen directs us to no case in which this 

Court or the United States Supreme Court has held that—when a juvenile receives 

individualized sentencing mandated by Miller and has an opportunity for release—

the Eighth Amendment also requires that a parole board consider the juvenile

homicide offender’s youth-related characteristics.
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[¶17.] In response, Jensen cites to legislation from other states requiring 

parole boards to apply the Miller factors at parole hearings for juvenile offenders. 

See Conn. Gen. Stat. § 54-125a(f)(4); Cal. Penal Code § 4801(c); W. Va. Code § 62-

12-13b(a), (b). He then claims that because South Dakota has no similar provisions, 

the sentencing court unconstitutionally vested full authority to the parole board to 

decide whether Jensen in fact receives a life sentence without parole. Jensen 

recognizes that Miller does not preclude a life sentence without the possibility of 

parole. But in his view, the harshest penalties must be reserved for the most severe 

criminals, and, here, the sentencing court did not consider him to be the “worst of 

the worst.” 

[¶18.] Although many states have reformed their laws in response to Miller

and Montgomery, it is not this Court’s role to judicially legislate the parole process. 

The intersection of the parole process and imprisoned juvenile offenders in South 

Dakota is an issue best left to be examined by the Legislature. The issue is 

significant indeed. But here, the absence of legislation mandating that our parole 

board consider the Miller factors does not render Jensen’s concurrent, 200-year 

sentences unconstitutional under the Eighth Amendment. Jensen received a 

discretionary sentence to a lengthy term of years following an individualized 

sentencing that considered the mitigating qualities of youth and Jensen’s prospects 

for rehabilitation as required by Miller. See Charles, 2017 S.D. 10, ¶ 20, ___ 

N.W.2d at ____ (court imposed discretionary sentence to a lengthy term of years 

after considering the Miller factors); Diaz, 2016 S.D. 78, ¶ 45, 887 N.W.2d at 764
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(same). Therefore, Jensen has not established that his sentence is cruel and 

unusual in violation of the Eighth Amendment. 

2. Whether the sentencing court abused its discretion when it 

imposed concurrent, 200-year sentences? 

 

[¶19.] Jensen asserts that the sentencing court abused its discretion because 

it abdicated its sentencing discretion to the parole board. He directs this Court to 

the sentencing court’s statement that it was not as equipped as the parole board to 

decide when to release Jensen. He also highlights that the court’s concurrent, 200-

year sentences and Jensen’s good-time release (presumptive release) at age 116 

prove that the sentencing court left the decision whether Jensen actually serves a 

life sentence up to the parole board. 

[¶20.] The State responds that Jensen waived the issue because Jensen did 

not object at sentencing, arguing that the court abdicated its duties to the parole 

board when the court imposed its sentence. During the resentencing hearing, the 

court heard evidence and testimony concerning the difference between the old and 

new parole systems. At the conclusion of the hearing, Jensen specifically requested 

that the court consider the difference between the old and new parole systems and 

not compare Jensen’s sentence to that of juveniles sentenced under the new system. 

Jensen argued that unlike the more-recently sentenced juveniles, he “will always 

have to do that next step of justifying it [his release] to the parole board.” From our 

review, Jensen did not waive his right to have this Court review his claim. 

[¶21.] A sentencing court has broad discretion when fashioning an 

appropriate sentence. The court must “acquire a thorough acquaintance with the 

character and history of the [person] before it.” State v. Lemley, 1996 S.D. 91, ¶ 12, 
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552 N.W.2d 409, 412 (quoting State v. Chase in Winter, 534 N.W.2d 350, 354-55 

(S.D. 1995)). “This includes the circumstances of the offense ‘together with the 

character and propensities of the offender.’” State v. Anderson, 1996 S.D. 46, ¶ 32, 

546 N.W.2d 395, 403 (quoting Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 

2932, 49 L. Ed. 2d 859 (1976)). When sentencing a juvenile offender, sentencing 

courts must also “consider what the United States Supreme Court termed the 

‘mitigating qualities of youth.’” Springer, 2014 S.D. 80, ¶ 14, 856 N.W.2d at 465 

(quoting Miller, 567 U.S. at ____, 132 S. Ct. at 2467).

[¶22.] From our review of the court’s oral sentence, it did not abdicate its 

sentencing duties to the parole board. Yes, the court referred to the parole process 

during its oral sentence. The court said:

Looking at this, this is somewhat unique. I was thinking there’s 

not very many people that are sentenced to the penitentiary for 

any period of time that have an opportunity to come back before 

the [c]ourt after a period of, a significant period of time beyond 

the two years that’s available and really have a full-blown 

resentencing hearing.

As I said, I thought that was unique and then I got to thinking a 

little more about that. Actually, that’s what our parole system 

is. Maybe this [c]ourt doesn’t sit as a parole board. The [c]ourt 

probably isn’t well equipped to perform that function.

But the court did not leave for the parole board to decide Jensen’s sentence. The 

court imposed concurrent, 200-year sentences against Jensen for murder and 

kidnapping after weighing and considering all the evidence presented, the

mitigating qualities of youth, the circumstances of Jensen’s crime, and Jensen’s 

prospects for rehabilitation. The evidence presented includes extensive testimony 

about Jensen’s childhood, multiple expert opinions on Jensen’s mental health as a 
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juvenile and as an adult, evidence and testimony about Jensen’s maturity and 

behavior while incarcerated, and testimony concerning what factors the parole 

board would typically consider when deciding to exercise discretionary release. 

Because the sentencing court acquired a thorough acquaintance with Jensen’s 

character and history, considered the mitigating qualities of youth, and considered

Jensen’s prospects for rehabilitation, it did not abdicate its sentencing 

responsibilities. See Lemley, 1996 S.D. 91, ¶ 12, 552 N.W.2d at 412; Charles, 2017 

S.D. 10, ¶ 20, ___ N.W.2d at ____. 

[¶23.] Affirmed.

[¶24.] SEVERSON, and WILBUR, Justices, and BROWN, Matthew, and 

SOGN, Circuit Court Judges, concur.

[¶25.] BROWN, Matthew, Circuit Court Judge, sitting for ZINTER, Justice, 

disqualified.

[¶26.] SOGN, Circuit Court Judge, sitting for KERN, Justice, disqualified.