Smith v. Board of Pardons and Paroles

pertinent conditions of Robinson’s sus- criminal, process mandates pended sentence could not have been set subjected ato forfei- petitioner cannot be agreement. forth in Robinson’s he for those acts unless ture his course, warning. Of given prior fair acknowledges that due State’s brief in a warning not contained where the requires warning prior cess of law fair condition, be the record must close- formal probationer of thosе noncrimi- ly scrutinized to determine whether probation. to nal acts that can lead a loss did, fact, requisite See, Dane, stated, Simply supra. the author- warning, and footnote Turo, ity supra, inapplicable here be- given. warning prior cause that fair was keep probationer’s failure to While nothing in to There is the record whatsoever parole agent his of his whereabouts informed establish that Robinson was ever necessary fundamentаl might well be a and pa- to maintain contact with his failure any suspended condition of agent could to a revocation of his failure consti cites require- While such a sentence. activity. pro criminal unless the tutes might be so obvious and fundamental warning that fail prior receives fair bationer unnecessary, render the advisement to his keep parole agent his advised of ure to requirement a criminal is not breach his can lead to revocation of whereabouts Moreover, it act. since is so obvious and Pardons fundamental, beyond the it should not be and Paroles’ decision to revoke violates and means of the Board Pardons See, requirements of due give way warning to to find sufficient also, Foster, v. supra. See United States requirement prior releasing to an offend- (9th Cir.1974) fail (probationer’s F.2d 1241 split penitentiary under a er from the probation de to maintain contact with urе role/suspended sentence. revoking predicate partment not be could foregoing analysis, ha- probation probationer had not been and decision is reversed beas court’s obliged report to informed that was either grant to remanded with instructions matter department them advise application corpus re- Robinson’s habeas address). change of by reinstating lief sentence. Turo, warning” “prior fair Having reached this decision we deem by the requirement clearly met discus- unnecessary to address the balance agent Turo con- sion between the and arguments raised in Robinson’s brief. cerning the continuation of the conditions Reversed and remanded. parole during her her Turo’s execution the written enumerating of both her tract conditions There is instant case.

similar written contract fact, Robinson’s when hearing if during he had asked the habeas SMITH, Petitioner Edward Lee un- exрlained to Robinson that would be Appellee, requirements of der the same parole, as for AND PAROLES BOARD PARDONS “No, answered, agent specifically Dakota, Appellant. South State of didn’t.” No. 18211. impossible to it was advise State submits Supreme Robinson of additional Court of South Dakota. very suspended sentence because the on his on Briefs October 1993. Considered suspension, act that led April Decided keep with and failure meet whereabouts, agеnt made it advised of give

impossible fair of the condi- why However, explain fails tions. Howard,

Cynthia County Minnehaha Pub- Defender, Falls, petitioner ‍​‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌​​​​‍lic Sioux appellee. Barnett, Gen., Atty.

Mark Frank E. Gen., Pierre, Geaghan, Atty. appel- Asst. lant.

SABERS, Justice. appeals the circuit court’s reversal of the Board of Pardons and Paroles’ revocation (Smith) of Edward Lee Smith’s sentence.1

FACTS January pled guilty driving

fourth offense while under the influ- (DUI). ence alcohol He was sentenced to years serve four in the penitentiary. state years Execution of the two latter of Smith’s suspended on following sentence was ditions: successfully

A. That complete [Smith] in- patient Aftercare; and, treatment and [That B. driving privileges ‍​‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌​​​​‍Smith’s] [be] years revoked for following two dis- charge. granted September

Smith was on approximately eight after penitentiary.2 day months On the release, signed parole agreement conditioning nonconsump- on his beverages tiоn of and his attend- alcoholic meetings per ance AA five times A week. assigned new was later result, complet- case as a menced, substantially 1. This case involves issues similar he would have been released from the Leapley, those considered Robinson v. penitentiary under the terms and conditions N.W.2d 216 placed on the sentence the sentenc- ing any court well as under additional terms imposed suspension by and conditions on the pаrole, prior 2. This to commencement of Smith’s See, e.g., Board of Pardons and Paroles. Turo v. split parole/sus- created a Solem, (S.D.1988) (Board N.W.2d 843 say, That situation. is to place parole, conditions on while on sentence in addi- Smith was released from the penitentiary according suspension by solely sentencing those on to the terms and long conditions so established of Pardons additional are reason- Later, granting and Paroles in imposed by able and not when inconsistent with those year suspended court). sentencing Smith's two sentence com- beverages was not made on parole agreement December ed a second his violation of sec- agreement, the first Like parole agreement provision of his agreement conditioned Smith’s ond beverages alcoholic nonconsumption of not a violation of meetings. agree. We warranting at AA its revocation. his attendance Therefore, affirm in part we reverse January about On or part. report alleging parole agent filed violation occasions, had that, on at least two parole agree- provision of his

violated the 1 ISSUE consumption of alcoholic forbidding THE BOARD PARDONS AND DID The recommended beverages. RE- TO PAROLES HAVE AUTHORITY be revoked with that Smith’s status SEN- VOKE SMITH’S SUSPENDED good time.' loss TENCE? conducted A was circuit court argues State on Pardons and before determining Boаrd had no erred 26, During February 1992. authority sen to revoke Smith’s allegations of the admitted suspend before commencement of report concerning consumption agree with to this 28, portion. We ed beverages. February alcoholic extent. 1992, an, RE- “ORDER the Board entered AND PAROLE SUSPENDED

VOKING 1985, of this issue would Prior resolution added) providing (emphasis SENTENCE” Hotter, clear. State v. 340 have been that: 691, recog 693 this Court N.W.2d granted by the parole heretofore may revoke a sus “a trial court nized and Paroles to Edward Board of Pardons sentence or even pended before day September, the 27th L. Smith on por begins to serve the defendant 1991, hereby revoked with the loss added). (emphasis Hotter subse tion.” time; no dead time. NO by Applica this Court quently reaffirmed It is further Schmit, on 360 tion of Adams Behalf of (2) year ‍​‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌​​​​‍original 1985, however, that the two ORDERED N.W.2d original suspended portion of the sentence holding following this Court reached the (4) hereby original (S.D. 193, and the four revoked imposed on #27072’. year 1985): sentence only did the Board’s order revoke the Board of SDCL 1-15-1 establishes year suspend- also the two but as an arm and Corrections Charities portion of his sentence. ed government. Just as branch of executive in sus- clearly, trial court’s function appealed the Board’s order to 27, granting terms of pending sentence and parties 1992. The court on March

circuit facts, exclusively province оf probation are stipulation into a thereafter entered judicial The constitutional branch. and oral briefs were submitted necessarily 29, power suspend includes The 1992. conducted October unless power suspension, findings to revoke its of fact and conclu- court entered V, by Article sec- provided The otherwise law on sions of November expressly provid- it is tion 5. In this that the Board had circuit court determined by Charities statute that the ed to rеvoke Smith’s pow- granted sus- and Corrections been prior commencement > inmate has been when the dis- er revoke portion of the sentence. We paroled by virtue agree. The circuit court further determined 24-15; We SDCL 23A-27-19.3 ch. nonconsumption of alcoholic SDCL of Charities and Cor- during from the Board was amended 3. SDCL 23A-27-19 legislative to transfer this session conclude, therefore, that once the court has makes much of fact there committed a defendant explicit executive authorization the Board of Par- government, namely peniten- branch and Paroles dons to conduct revocation tiary, inmate then can be released ceedings begins before under the we find that to be of Corrections, Board of Charities and even significance. permit- little The statute that though the release results from an order of ted the revocation the suspended (footnote (emphаsis suspension, original) merely provided in Hotter “‘[a] suspension any revoke such time probationary period impose promptly reaffirmed Huftile and execute sentence without diminish- Court ” Hotter, (SD.1985): ment[.]’ n. 3 23A-27-13). (quoting response SDCL to The circuit courts of state do not this have the defendant’s the statute power, authority, jurisdiction the or to only permitted revocation while defen- the prisoners, to supervise parolees actually serving suspended part dant was the suspended those on under a sen- held, this “the Court statute tence, Thus, or to revoke once an prohibit not revoking does a court from jurisdiction is offender within the suspension suspended portion before the has government, judi- executive branch the begun; merely it allows the court to act juris- cial branch —the circuit court —loses Hotter, suspension.” diction and control. State v. (emphasis at 694 N.W.2d 193. anything, authorizing If the statute The abovе authorities make clear Pardons and to revoke a before a circuit court retained the suspended is more broad based authority suspended portion to revoke the than the one under in consideration Hotter. suspended portion a sentence even before the provides pertinent part SDCL 23A-27-19 in began run. to Oban caused a Huftile jurisdiction “the board retains to revoke necessary change principle by in holding this suspеnded portion of the sentence for jurisdiction that the circuit courts no have violation of the terms of suspension.” suspended revoke a sentence. That authori Thus, like permitting the statute revocation ty solely is now vested in the Board Par Hotter, prohib- SDCL 23A-27-19 does not dons and Paroles virtue of SDCL 23A-27- Pardons and Paroles from 19: revoking suspended sentence before the Any person suspended whose sentence is suspended portion begun. Therе is sim- pursuant to super- this section under ply no time limitation whatsoever in the vision pardons paroles, of the board of appellant vision. Similar to Applica- except provided §in 23A-27-18.2. The Adams, supra, point fails to charged responsibility board any statutory provision that limits the Board enforcing imposed by the conditions statutory of Pardons and Paroles’ sentencing judge and the board retains suspended portion revoke the of a defen- jurisdiction suspended por- to revoke the suspended dant’s sentence portion before tion of the sentence for violation of the begins to run. suspension. terms of the Thus, suspended under current if a analysis, the above we hold suspended tence is to be revoked before the determining the circuit court did err in run, portion begins to must revocation that the Board of Pardons and Paroles had conducted the Board of Pardons and Pa- no revоke Smith’s roles. The longer began circuit courts no have sentence before he the sus- jurisdiction in respect. Although sentence.4 reject position special

rections to Board of Pardons and Paroles. 4. We concur- Holier, regarding 1988 S.D.Sess.L. ch. 192. ‍​‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌​​​​‍rence our reliance on Adams, Application supra. These cases of his for those acts unless ture

ISSUE course, warning. prior fair Of THE CONDI- DID SMITH VIOLATE warning is not contained where the SEN- HIS SUSPENDED TIONS condition, must be closе- the record formal TENCE? ly whether the scrutinized determine also contends fact, did, requisite determining because non- court erred warning. beverages was not consumption of alcoholic and foot- 570 F.2d at 843-44 sentence, his note parole agree of his of that condition allegation that Smith’s there is support ment would alcohol, act, i.e., consumption of constitut- ar response, activity. Smith re- unless ed criminal gues that the revocation that act could prior fair ceived vio consumption of alcohol of his process of law. Smith rights lated his to due Paroles’ decision the Board of Pardons and given proper notice that asserts requirements of due to revoke violated consumption lead to the loss could his alcohol See, Dane, supra. he had sentence and that his hearing that prior to the revocation notice suspending judgment the While suspend his violation hаd both alcohol explicit prohibition sentence contained parole jeopardy. and his alcohol, ed sentence consumption of State contends his warning” “prior fair that Smith did substantially on United States relies consumption could lead to the revo- such Cir.1977) (9th au- 570 F.2d In that suspended his cation of arguments and state acknowl- thority for his regard, points to the condition process edges applicability of the due the to, requiring “suc- suspеnded sentence forth in the decision: principles set cessfully complete in-patient treatment process of component It due is an essential argues that common sense aftercare.” warning of given fair individuals be implicit from alcohol dictates abstinence of loss those acts therefore, and, alcohol treatment the liberty. This is no less true whether “spe- warning is of lack of fair contention of from a criminal arises lоss cious.” probation. of or the revocation viction argument, State cites matter, support of its of In general formal conditions As a Sullivan, 642 P.2d no- 197 Mont. purpose giving the of probation serve Sullivan, (1982). In proscribed But a formal of activities. tice years imprisonment to ten purposes of sentenced essential for not suspended. years The defen- latter five have sustained the revoca- notice. Courts parole, had while on aсtivity paroled com- dant was probation for criminal tion of suspended his sentence revoked prior the effective date of mitted mandating counseling. alcohol conditions, not of a condition the defendant was or where contended that appeal, the defendant aware of conditions. providing imputed condition of his “ law is knowledge of the criminal you regular alcohol parole must have understanding ‘on probationer, as an to the ” parole and applied only to his counseling,’ of the law will lead that violation Sullivan, 642 P.2d at probation. his probation. On the other reject court did 1011. The Montana hand, proscribed are not acts where However, Id. “specious,” criminal, process mandates recognizes “in the absence law subjected Montana forfei- petitioner cannot be general only good deal in analogous authority unquestionably provide the most continue to the circuit appeal, with the lack terms specific in this for the issue suspended sentences. revoke suspended courts to however, propriety the revocation of reviewing circuit court’s we are not prior to commencement suspended sentence. of a Huftile, supra supra, while portion. of conditions ordered sentencing beginning hearing, of the revocation court, parole imposed by consequence the conditions of maximum the Board of Pardons are the was the conditions of a revocation of his Sullivan, and loss of time. sentence.” 642 P.2d at The advise- Moreover, sentencing changed ment was then in- and Smith was had structed that expressly made the he could lose his status defendant’s and that his subject any supervisory sentence could be im- immediately imposed. Smith posed by indicated his the Board of Pardons. misunderstanding cоncerning loss his Montana, Unlike South Dakota law does suspended sentence and told the Board that recognize parole ap- “conditions of only had discussed the loss sentence!)]” ply suspensions also Sulli- Nearly pages six of the hear- van, Therefore, 642 P.2d at 1011. unlike ing transcript attempt are then devoted an Sullivan, operation of law the instant by both the Board and Smith ascertain the automatically case did not translate the con- сonsequences maximum of the revocation ditions of Smith’s into the conditions proceeding. Ultimately, when Smith was certainly sentence. That is asked if he consequences understood the within the of the Board of Pardons “Yeah, responded, guess easily and ‍​‌‌​‌​‌‌​‌‌​​‌​​‌‌​‌​‌‌‌​‌‌​‌‌‌‌​​​‌‌‌​‌‌‌​‌​​​​‍Paroles and could have been ac- so.” Turo, complished. this Court rec- Confusion continued into the Board’s order ognized that the Board Pardons and Pa- which revoked both Smith’s and his may impose rоles conditions on a defendant’s sentence but found addition to im- those “parole.” Smith had violated the terms posed by sentencing long court so as the process require- One minimum due additional conditions are reasonable and not probation ments or by inconsistent with those mandated proceedings However, Turo, written court. in notice require- the notice claimed violations. concerning ments the conditions of the sus- clearly by sentence were purpose met requirement fact The of the that writ- that the defendant’s specifically given prior proceed- ten notice be to such explained that suspend- ings the conditions of the parolee proba- is to insure that the ed sentence would be the same as for sufficiently prepare tioner is able by and the defendant’s execution a against allegations both of viola- enumerating tract the conditions оf against both the tions and the contention that the violations, and sentence. There is if proven, pa- demonstrate that similar in record the instant ease. probation role or longer is no an effective rehabilitative tool and should be revoked. suggests, As State the condition of Smith’s words, requirement In other bears di- suspended sentence that he obtain alcohol rectly upon ability to contest revoca- might treatment have Smith some рroceedings. nonconsumption of alcohol was McCormick, 385 N.W.2d 123 condition of his sentence. Nev- (citations (S.D.1986) omitted). and footnote ertheless, explicit the lack of notice of the clearly instance, led confusion and misun- clarity In this there was a lack of by derstanding both the Board and in concerning suspend- conditions of Smith’s notice, hearing leading and decision ed sentence that led to confusion in the revocation of Smith’s inacсuracy violation report, in the notice parole agent’s tence. The report violation hearing misunderstanding and by both the only Smith’s, “parole recommended sta- Board and Smith the revocation hear- tus (emphasis, stated, revoke[d].” be ing. The Simply if the Board was not hearing notice the revocation consequences advised that sure of the of the revocation hearing regard would be it is difficult to see how Smith could (i.e., of condition 13-A nonconsumption of and have been how the notice alcohol) parole agreement. At the sufficient to enable Smith to contest the revo- overruled; I The fact was of- this state and have been proceedings. cation my opinion upon express proceed is and further base fered continuance wanted argu- support provisions SDCL 23A-27-19. unpersuasive State’s also rights to sufficient waived expressed, Having in result so conсur of his violation. notice majority writing its bases voluntarily, must made waiver [A] Holter, rationale knowingly, intelligently, sufficient and (S.D.1983), for au cited five times circumstances awareness of the relevant thority; law this state Hotter likely consequences. waiver and The by Fur reversed in 1985. as was Hufbile right positively must be es- constitutional ther, than to cite to which reaf rather Oban tablished, party and the is on the burden Hufbile, being and law Oban solid firmed closely alleging waiver as scrutinize courts state, closing majority opinion its allegations, every indulging reason- to Application treatment on this issue cites presumption against waiver. When able Schmit, Adams on Behalf right determining whether a constitutional also See reversed case. waived, this court looks been (Wuest, J., N.W.2d at con totality of the circumstances. result). curring in McCormick, 123-24 by I am author’s I confess: bewildered movements, series of forward backward McCormick, supra, declined this court part thinking process, all probationer’s of a to construe the refusal ultimately begets product, the creative as proceedings continuance Harnessed I the decision. am Hufbile rights there was a waiver of his notice they greater believing should have nothing ad- to show he had ever been significance in the of our base part creative refusal the court or counsel that his vised Adams, decision, rather than Hotter and could be construed a waiver. been, having by subsequent deci- latter cases represented counsel was not even overruled; whereas, sion, the force of reason- nothing again, there is to show that precedent ing controlling abide Huf- rejection of a continuance Oban, I do therein. Accord: tile and abide right construed as a of his could be waiver Moon, (1994). 514 N.W.2d 705 the condition of his notice of allegedly violated. ISSUE 2 reasoning, upon the we find above no error court’s reversal No rights. No I concur. advisement of Smith’s attorney. scope in the Utter confusion and affirm. proper No notice. No reason proceeding. meaningful to be in a opportunity able heard MILLER, C.J., J., WTJEST, concur. v. Boddie manner. No See HENDERSON, J., concurs result. 780, Connecticut, 91 S.Ct. U.S. (1971); 786, Leapley, Butt v. 28 L.Ed.2d AMUNDSON, J., disqualified. (S.D.1993) (Henderson, 325, 329 N.W.2d result). HENDERSON, (concurring in J. J., concurring); specially Daugaard v. Baltic Ass’n, Coop Bldg. Supply ISSUE 1 of Pardons did not ex and Paroles (due jurisdiction to Article II of the ceed its dividing Dakota state

South Constitution departments). government into three distinct holdings in State premised This is our (S.D.1985), 125, 129 and State v. both of are settled law

Case Details

Case Name: Smith v. Board of Pardons and Paroles

Court Name: South Dakota Supreme Court

Date Published: Apr 20, 1994

Citation: 515 N.W.2d 219

Docket Number: 18211

Court Abbreviation: S.D.