#27156-a-GAS
2015 S.D. 70
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
COLE KELLEY, Appellant,
v.
SOUTH DAKOTA BOARD
OF PARDONS AND PAROLES, Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE SUSAN M. SABERS
Judge
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DANIEL K. HAGGAR of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for appellant.
MARTY JACKLEY
Attorney General
ASHLEY E.H. MCDONALD
Department of Corrections
Special Assistant Attorney General
Sioux Falls, South Dakota Attorneys for appellee.
****
CONSIDERED ON BRIEFS ON
MARCH 23, 2015
OPINION FILED 08/05/15
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SEVERSON, Justice
[¶1.] Cole Kelley appeals the revocation of his suspended sentence by the
Board of Pardons and Paroles (Board). We affirm.
Background
[¶2.] On April 16, 2007, Kelley was sentenced to seven years in the state
penitentiary for possession of a controlled drug or substance with intent to
distribute, and five years for committing or attempting to commit a felony with a
firearm, to be served consecutive to the possession sentence. He also received a
twenty year sentence with ten years suspended for grand theft, to run consecutive
to the possession and firearm sentences. Lastly, he received a two year sentence for
assault against an officer, to run consecutive to the possession and firearm
sentences. The sentencing court suspended ten years on the condition that Kelley
“be under the supervision of the Board . . . for ten (10) years upon release from
custody” and pay restitution.
[¶3.] On September 19, 2012, Kelley signed a suspended sentence
supervision agreement. The agreement required Kelley to “conform to the rules and
program requirements of the Department of Corrections, maintain a good
disciplinary record and satisfactorily participate in programs as assigned.” It also
contained the following provision: “I understand and agree that in the event I
violate these conditions prior to my suspended sentence commencing, the Board has
the authority to revoke the suspended portion and impose the entire sentence.”
After Kelley signed this agreement, he received twelve major rule infractions.
Following a hearing on November 4, 2013, the Board revoked Kelley’s suspended
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sentence for failing to maintain a good disciplinary record. It imposed the original
twenty-two year sentence. Kelley appealed the revocation and the circuit court
affirmed. Kelley appeals; his sole issue on appeal is whether the Board exceeded its
authority by imposing the conditions of the agreement and revoking his suspended
sentence upon violations of the Board’s conditions.
Standard of Review
[¶4.] SDCL 1-26-37 governs appeals from the Board. 1 Questions of fact are
reviewed under the clearly erroneous standard. Austad v. S.D. Bd. of Pardons &
Paroles, 2006 S.D. 65, ¶ 8, 719 N.W.2d 760, 764. We review questions of law de
novo. Id.
Analysis
[¶5.] Under SDCL 23A-27-18.4, 2 the sentencing court clearly has, at the
time of sentencing, the jurisdiction to limit and define conditions for which the
1. SDCL 1-26-37 provides:
An aggrieved party or the agency may obtain a review of any
final judgment of the circuit court under this chapter by appeal
to the Supreme Court. The appeal shall be taken as in other
civil cases. The Supreme Court shall give the same deference to
the findings of fact, conclusions of law, and final judgment of the
circuit court as it does to other appeals from the circuit court.
Such appeal may not be considered de novo.
2. SDCL 23A-27-18.4, in relevant part, provides:
Upon conviction, the sentencing court may suspend any portion
of a penitentiary sentence subject to conditions or restrictions as
the court may impose. The suspension order or judgment can be
made only in the court in which the conviction occurred. A
defendant with a partially suspended penitentiary sentence is
under the supervision of the Department of Corrections and the
Board of Pardons and Paroles. The board is charged with the
(continued . . .)
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Board is authorized to revoke the suspended terms of the sentence. However,
absent limitations imposed by the sentencing court, “[w]e have recognized that the
Board of Pardons and Paroles may impose conditions on a defendant’s suspended
sentence in addition to those imposed by the sentencing court so long as the
additional conditions are reasonable and not inconsistent with those mandated by
the court.” Mann v. S.D. Bd. of Pardons & Paroles, 2015 S.D. 13, ¶ 12, 861 N.W.2d
511 (quoting Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768) (internal quotation
marks omitted). As in Mann, Kelley does not argue that the conditions are
unreasonable, and we need only consider whether the conditions were “not
inconsistent” with the sentencing court’s conditions. See id.
[¶6.] Kelley argues that the conditions placed on him by the Board are
inconsistent with the sentencing court’s condition that he “be under the supervision
of the Board . . . for ten (10) years upon release from custody.” Once his suspended
sentence has been revoked, the full sentence will be served; upon release, he will not
be under supervision. However, Kelley does not explain why he could not comply
with both the Board’s conditions—conforming to the rules and program
requirements of the Department of Corrections, maintain a good disciplinary record,
and satisfactorily participate in programs as assigned—and the court’s condition.
Kelley could have complied with both, as the Board’s conditions do not preclude his
_________________________________________________
(. . . continued)
responsibility for enforcing the conditions imposed by the
sentencing judge, and the board retains jurisdiction to revoke
the suspended portion of the sentence for violation of the terms
of parole or the terms of the suspension.
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ability to be released under supervision. Therefore, the Board’s conditions are not
inconsistent with those placed on Kelley by the sentencing judge.
[¶7.] It is the revocation of the suspended portion of his sentence, the
punishment for violation of the conditions—rather than the conditions themselves—
that negates the court’s condition of supervision upon release. Kelley asserts that
the Board does not have authority to revoke an inmate’s suspended sentence for
violations of institutional rules. He notes that revocation of a suspended sentence is
not listed among the seven punishments authorized under SDCL 24-15A-4, which
grants the Department of Corrections authority to punish “[a]ny inmate violating
the rules or institutional policies[.]” 3 However, we have recently rejected such an
argument, explaining that “the Board’s authority to revoke the suspended sentence
does not derive from SDCL 24-15A-4; rather it derives from SDCL 23A-27-18.4.”
Mann, 2015 S.D. 13, ¶ 17, 861 N.W.2d at 517. Further, as in Mann, Kelley
“acknowledged when he signed the agreement that a violation of the suspended
sentence supervision agreement may result in the revocation of the suspended
3. SDCL 24-15A-4 provides:
Any inmate violating the rules or institutional policies is subject
to any of the following disciplinary sanctions:
(1) Disciplinary segregation;
(2) Imposition of fines;
(3) Loss of privileges;
(4) Additional labor without compensation;
(5) Referral to various programs;
(6) Transfer to a more secure housing unit;
(7) Change in classification status.
No corporal punishment may be inflicted upon inmates in the
penitentiary.
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portion of his sentence.” See id. As the circuit court noted, “It would be illogical to
conclude that a sentencing court’s act of ordering a period of supervision in
conjunction with a partially suspended sentence operates as a prohibition on the
revocation of suspended time itself.” Therefore, the Board acted within its
authority. We affirm.
[¶8.] GILBERTSON, Chief Justice, and WILBUR, Justice, concur.
[¶9.] ZINTER and KERN, Justices, concur specially.
ZINTER, Justice (concurring specially).
[¶10.] Under our recent decision in Mann v. South Dakota Board of Pardons
& Paroles, 2015 S.D. 13, 861 N.W.2d 511, the Board of Pardons and Paroles’
revocation of the circuit court’s suspended sentence must be affirmed. I write to
suggest that this Court’s cases may have strayed from constitutional and statutory
limitations on the Board’s power to condition and revoke a circuit court’s suspended
sentence. Because this question has not been briefed and argued, we should
consider it in a future case when it is properly presented.
[¶11.] The South Dakota Constitution delegates to the circuit courts the
authority to suspend and revoke criminal sentences. See S.D. Const. art. V, § 5.
But defendants sentenced to the state penitentiary are under the exclusive
supervision of the executive branch, specifically the Department of Corrections,
which includes the Board of Pardons and Paroles (Board). See S.D. Const. art. IV,
§ 9; SDCL 1-15-1; SDCL 1-15-1.4. The judicial suspended sentence power and the
executive supervision power may overlap when a defendant serving a suspended
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sentence under court-imposed conditions is involved in misconduct while
incarcerated in the penitentiary. For the last thirty years, this Court has
frequently, and sometimes inconsistently, wrestled with determining whether the
Board was authorized to revoke suspended sentences for violations of suspended
sentence conditions imposed by the Board. 4
[¶12.] In this case, the Board conditioned and revoked Kelley’s court-imposed
suspended sentence for a violation of penitentiary disciplinary rules. But in
apparent deference to Article V, § 5 of the South Dakota Constitution, the governing
statute only authorizes the Board to revoke suspended sentences for violations of
“conditions imposed by the sentencing judge,” and compliance with penitentiary
disciplinary rules was not a condition imposed by the sentencing judge. See SDCL
4. See State v. Huftile, 367 N.W.2d 193, 197 (S.D. 1985) (concluding that the
Board “has been granted the power to revoke when the inmate has been
paroled by virtue of a suspended sentence”); Turo v. Solem, 427 N.W.2d 843,
846 (S.D. 1988) (concluding that Board had the authority to revoke the
suspended sentence when defendant failed to report to parole officer); Smith
v. S.D. Bd. of Pardons & Paroles, 515 N.W.2d 219, 225 (S.D. 1994)
(concluding that the Board did not have authority to revoke defendant’s
suspended sentence for a noncriminal activity—the consumption of alcohol);
Robinson v. Leapley, 515 N.W.2d 216, 219 (S.D. 1994) (per curium)
(concluding that Board exceeded its authority when it revoked defendant’s
suspended sentence for violation of parole conditions—failure to keep his
parole agent advised of his whereabouts); Grajczyk v. S.D. Bd. of Pardons &
Paroles, 1999 S.D. 149, ¶ 16, 603 N.W.2d 508, 513 (concluding that the Board
properly revoked the suspended portion of defendant’s sentence when he
committed a felony in prison); Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768-
69 (concluding that the Board had the authority to revoke defendant’s
suspended sentence for violating two penitentiary conditions); Mann, 2015
S.D. 13, ¶ 14, 861 N.W.2d at 516 (concluding that the Board could revoke an
inmate’s suspended sentence for “behavioral” violations of penitentiary rules
although the court only imposed “financial” conditions).
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23A-27-18.4 (providing in relevant part: “The board is charged with the
responsibility for enforcing the conditions imposed by the sentencing judge, and the
board retains jurisdiction to revoke the suspended portion of the sentence for
violation of the terms of parole or the terms of the suspension.” (emphasis added)).
[¶13.] Notwithstanding this limitation, under this Court’s current precedent,
the Board did not exceed its authority. The Board did not exceed its authority
because the Board’s and the court’s conditions were “not inconsistent.” See Mann,
2015 S.D. 13, ¶¶ 15, 17, 861 N.W.2d at 516-17 (noting that the respective conditions
were “not inconsistent,” and therefore, the board had discretion under SDCL 23A-
27-18.4 to revoke the inmate’s suspended sentence for violating penitentiary rules).
In applying the “not inconsistent” test, we explained that the Board had authority
because “the [behavioral] conditions imposed by the Board did not contradict or
interfere with Mann’s obligation to pay restitution to the victims and Brookings
County[,]” the court-imposed conditions of the suspended sentence. Id. ¶ 14, 861
N.W.2d at 516 (emphasis added). Or, as the Court explains today, the revocation
was authorized because it was possible for the inmate to comply both the sentencing
court’s and the Board’s conditions. See supra ¶ 6. There is, however, a more
fundamental question: whether this application of the “not inconsistent” test is
proper under the limitations in SDCL 23A-27-18.4 and the Constitution.
[¶14.] Both this Court and the Legislature have attempted to delineate who
supervises inmates, what conditions may be placed on their suspended sentences,
and who may revoke their suspended sentences. Our cases have both restricted and
expanded the Board’s authority to revoke a circuit court’s suspended sentence for a
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violation of Board conditions not explicitly imposed by the sentencing judge. See
supra ¶ 11 n.4. As is relevant in this case, the Board’s authority to condition and
revoke a court’s suspended sentence has developed through three cases.
[¶15.] In 1983, this Court held that there is an implied condition in every
suspended sentence that the defendant may not violate the law. State v. Holter, 340
N.W.2d 691, 693 (S.D. 1983). Therefore, if an inmate commits a criminal offense, a
court’s suspended sentence may be revoked even if that condition was not imposed
by the sentencing judge. Id. Then in 1988, this Court recognized the Board’s
authority to impose additional conditions as long as they are reasonable and
“consistent” with those imposed by the court. Turo, 427 N.W.2d at 846. In Smith,
without explanation, this Court rephrased the Turo language to permit additional
conditions as long as they are reasonable and “not inconsistent” with those required
by the court. 5 Smith, 515 N.W.2d at 224. This unexplained language change was
carried over without comment in Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768 and
Mann, 2015 S.D. 13, ¶ 12, 861 N.W.2d at 515. Although this change could be
viewed as semantic rather than substantive, it has resulted in a significant
expansion of the Board’s authority.
5. On the same day Smith was published, this Court also issued a per curium
opinion, Robinson v. Leapley, 515 N.W.2d 216, 218 (S.D. 1994), with the same
interpretation of Turo as Smith. Robinson stated: “In Turo, this Court held
that the Board of Pardons and Paroles may impose conditions on a suspended
sentence in addition to those imposed by the sentencing court if the
additional conditions are reasonable and not inconsistent with those imposed
by the sentencing court.” Id. (emphasis added).
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[¶16.] As Mann and this case demonstrate, current application of this
unexplained change in language has stretched SDCL 23A-27-18.4 and compromised
the separation of judicial and executive powers. Under these cases, there is no real
limit on conditions the Board may impose. 6 There is no real limit because under the
“not inconsistent” test, the Board may impose any condition as long the inmate can
comply with both the court’s and the Board’s conditions. See supra ¶ 6 (“Kelley does
not explain why he could not comply with both the Board’s conditions—conforming
to the rules and program requirements of the Department of Corrections, maintain
a good disciplinary record, and satisfactorily participate in programs as assigned—
and the court’s conditions. Kelley could have complied with both, as the Board’s
conditions do not preclude his ability to be released under supervision.”).
[¶17.] Effectively limitless Board conditioning of court-suspended sentences
is not consistent with the language of SDCL 23A-27-18.4 or with the division of
powers delineated in the Constitution. Consequently, our cases should be re-
examined in a future case where the parties have briefed the statutory and
constitutional limits on the authority of the executive to condition and revoke a
court’s suspended sentence. This should include, but not be limited to, the question
whether Smith’s “reasonable and not inconsistent” test has resulted in an improper
6. The condition must also be reasonable. “We have recognized that ‘the Board
of Pardons and Paroles may impose conditions on a defendant’s suspended
sentence in addition to those imposed by the sentencing court so long as the
additional conditions are reasonable and not inconsistent with those
mandated by the court.’” Mann, 2015 S.D. 13, ¶ 12, 861 N.W.2d at 515
(emphasis added) (quoting Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768).
But reasonableness is a separate independent inquiry. See id.
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expansion of the authority of the executive to condition and revoke a circuit court’s
suspended sentence.
[¶18.] KERN, Justice, joins this special writing.
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