Austad v. Bd. of Pardons and Paroles, 23914.

CourtSupreme Court of South Dakota
Citation719 N.W.2d 760,2006 SD 65
Docket NumberNo. 23914.,23914.
PartiesChristopher J. AUSTAD, Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
Decision Date19 July 2006

Page 760

719 N.W.2d 760
2006 SD 65
Christopher J. AUSTAD, Appellant,
No. 23914.
Supreme Court of South Dakota.
Argued May 25, 2006.
Decided July 19, 2006.

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Jason W. Shanks of May & Johnson, P.C., Sioux Falls, South Dakota, Attorney for appellant.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.


[¶ 1.] Christopher Austad (Austad) was sentenced to ten years in the South Dakota Penitentiary for grand theft. The sentencing court suspended six of those ten years. In preparation for his release from the Penitentiary to serve his suspended term, Austad signed a suspended sentence supervision agreement (supervision agreement) which subjected him to certain conditions. Prior to his release, Austad allegedly violated two of the conditions. Upon review, the Board of Pardons and Parole (Board) found that Austad violated the supervision agreement and revoked Austad's six-year suspended sentence. Austad challenges the Board's action. We affirm.


[¶ 2.] For the crime of grand theft, Austad received a sentence of ten years in the Penitentiary with six years suspended. He was scheduled to be released on supervision January 9, 2005. On December 11, 2004, Austad submitted a request to penitentiary mental health staff which read:

If you want to know what go's (sic) on through my everyday thought. Here

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you go! These are what my true thoughts are. I am going to my suspended time when I leave prison. If you feel I need mental help then get on it A.S.A.P! Until then . . . I don't know.

Attached to the note was an eight page journal-type document which contained detailed descriptions of violence against unnamed persons.

[¶ 3.] On December 29, 2004, Austad was presented with a supervision agreement containing the conditions and rules of Austad's supervised release. The initial paragraph of the agreement stated:

I have been made aware that SDCL § 23A-27-19 provides that: Any person whose sentence is suspended pursuant to this section is under the supervision of the Board of Pardons and Paroles. Also, I understand and agree that in the event I violate parole prior to my suspended sentence commencing, the Board has the authority to revoke the suspended portion, impose the entire sentence; and I may not be given credit for time spent on suspended sentence. 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 the suspension.

The agreement then stated, "[i]n consideration of Parole and/or Suspended Sentence/Supervision being granted me, I agree to the following." The next fourteen numbered paragraphs detailed the conditions of Austad's release. Paragraph 12 specifically provided that any pre-release violation of penitentiary rules could result in a violation of the agreement. Paragraph 12 stated, "I understand that violation of any institutional rule before my actual release from the institution may be considered a violation of my supervision agreement." Additionally, Paragraph 14 prohibited certain behaviors as follows: "I will not engage in any assaultive, abusive, or violent behavior, including stalking, or threats of violence." Austad signed the agreement on December 29, 2004.

[¶ 4.] On January 5, 2005, mental health professionals Tom Gilchrist (Gilchrist) and Don Baum (Baum) met with Austad to discuss his mental health request of December 11, 2004. During the meeting, Austad commented that if he were released, he would kill others and then himself. He also stated that if he met with his parole officer, he would "put two bullets in his skull" in "assassination style." When further questioned, Austad identified his parole officer as "Mark" whose last name began with the letter "K." After the meeting, Gilchrist submitted an informational report to prison officials which detailed the statements Austad made during the meeting.

[¶ 5.] Report of Austad's statements went to both the Department of Corrections (DOC) and the Board of Pardons and Paroles (Board), and both entities responded. DOC proceeded with disciplinary action and the Board scheduled a violation hearing. DOC's disciplinary action accused Austad of violating DOC rules and regulations by "threatening any non-inmate-staff." Austad "verbally accepted sanctions" of 90 days in disciplinary segregation for the DOC rule violation.

[¶ 6.] The Board's violation report alleged that Austad violated conditions 12 and 14 of the December 29, 2004 supervision agreement. At the Board's probable cause hearing on January 13, 2005, and after being advised of his rights, Austad testified and denied violating his supervision agreement. The Board then proceeded with a revocation hearing and concluded that Austad violated the terms of his suspended sentence, specifically conditions 12 and 14 of his supervision agreement.

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As a result, the Board revoked Austad's suspended time and imposed the remainder of his original ten year sentence.

[¶ 7.] Austad appealed the Board's decision to circuit court. The trial court determined that the Board met its burden of proof in showing that Austad violated conditions 12 and 14 of his suspended sentence agreement. The court also concluded that the imposition of Austad's suspended sentence did not violate his constitutional rights. Finally, the court determined that conditions 12 and 14 were reasonable. Austad appeals the trial court's decision and presents the following issues for our consideration:


1. Whether the Board met its burden of proving that Austad violated the conditions of his supervision agreement.

2. Whether Austad's equal protection rights were violated.

3. Whether conditions 12 and 14 were unreasonable.

4. Whether the Board's decision was clearly erroneous.


[¶ 8.] An appeal from the Board is governed by SDCL 1-26-37. Lee v. S.D. Bd. of Pardons & Paroles, 2005 SD 103, ¶ 6, 705 N.W.2d 609, 611. Therefore, "[w]e review questions of fact under the clearly erroneous standard; mixed questions of law and fact and questions of law are reviewed de novo." Id. Further, "[m]atters of discretion are reviewed under an abuse of discretion standard." Id. As we have noted,

The standard of proof required for a criminal conviction is not necessary to revoke a suspended sentence. Before the Board may revoke the suspended portion of a sentence, it must be "reasonably satisfied" that the terms of the suspension have not been followed. So long as there is adequate evidence to support that minimal level of scrutiny, the Board has not abused its discretion in revoking the suspended sentence and its decision should be upheld.

In re Brown, 1997 SD 133, ¶ 8, 572 N.W.2d 435, 437 (citations omitted); see also Amundson v. S.D. Bd. of Pardons & Paroles, 2000 SD 95, ¶ 21, 614 N.W.2d 800, 805 (applying the "reasonably satisfied" standard); Hughes v. S.D. Bd. of Pardons & Paroles, 1999 SD 44, ¶ 11, 593 N.W.2d 789, 791 (noting the "reasonably satisfied" standard).


Violation of Conditions of Supervision Agreement

[¶ 9.] Austad argues that the Board failed to present sufficient evidence to prove that he violated the terms of the supervision agreement. According to Austad, the Board had to prove that his statements constituted "true threats" under the First Amendment of the United States Constitution. Without such proof, Austad argues, his statements are protected speech and cannot constitute a violation of his supervision agreement.

[¶ 10.] While the First Amendment guarantees citizens the right of free speech, the government may regulate certain categories or modes of expression. Virginia v. Black, 538 U.S. 343, 358-59, 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003). It is well established that "the First Amendment . . . permits a State to ban a `true threat.'" Id. at 359, 538 U.S. 343, 123 S.Ct. at 1548, 155 L.Ed.2d 535; see also Watts v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664 (1969); People ex rel C.C.H.,

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2002 SD 113, ¶ 12, 651 N.W.2d 702, 706. The "true threat" doctrine originated in the context of a criminal prosecution.1 See Watts, 394 U.S. at 707-08, 89 S.Ct. at 1401-02, 22 L.Ed.2d 664. It has since been applied by many courts to determine whether speech was punishable or protected by the First Amendment. See, e.g., Doe v. Pulaski County Sch. Dist., 306 F.3d 616 (8thCir.2002) (considering whether expulsion of a student for making threats violated the First Amendment); C.C.H., 2002 SD 113, 651 N.W.2d at 702 (reversing a delinquency adjudication of a boy who made threatening statements at school). It is important in this case to note that the "true threats" doctrine also has been applied to statements made inside prison walls. See, e.g., United States v. Stewart, 420 F.3d 1007 (9thCir.2005) (finding that statements made by inmate to informant constituted "true threats" despite inmate's incarcerated status and affirming inmate's conviction for threatening to murder a federal judge); United States v. Miller, 115 F.3d 361 (6thCir.1997) (affirming conviction for threatening President based on "true threats" contained in inmate-defendant's letter); United States v. Glover, 846 F.2d 339 (6thCir.1988) (finding that inmates' letters threatening the President contained "true threats" and upholding their convictions).

[¶ 11.] The Board argues, however, that the "true threats" doctrine does not apply here. Both parties agree that while inmates retain free speech rights, those rights may be limited. We have not previously addressed the scope of an inmate's First Amendment rights, but the United States Supreme Court recently reiterated that "the Constitution sometimes...

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