Brim v. South Dakota Bd. of Pardons and Paroles

• Decision Date: 06 June 1997
• Docket Number: No. 19477,19477
• Parties: Robert BRIM, Applicant and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
• Court: South Dakota Supreme Court

Page 812

563 N.W.2d 812

1997 SD 48

Robert BRIM, Applicant and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.

No. 19477.

Supreme Court of South Dakota.

Argued Oct. 23, 1996.

On Reassignment March 11, 1997.

Decided April 30, 1997.

Rehearing Denied June 6, 1997.

John M. Wilka of Wilka, Haugen & Kirby, P.C., Sioux Falls, for applicant and appellant.

David O. Carter, Special Assistant Attorney General, Sioux Falls, for appellee.

GILBERTSON, Justice (on reassignment).

¶1 In 1958, Robert Brim was convicted of manslaughter in Stanley County and sentenced to life imprisonment. The original court file indicates that Brim shot Irene Stoesser, killing her and her unborn child. Stoesser and her husband employed Brim on their farm near Hayes, South Dakota. Although Irene's three-year-old daughter was also shot to death and a four-year-old son was injured in the same incident, Brim was only charged with Irene's death. ¹ He pled guilty and was sentenced to life imprisonment.

¶2 Brim began to serve his sentence on November 1, 1958. No parole eligibility date was ever set for him. His only documented request was submitted to the Board of Pardons and Paroles on November 12, 1993. The Board denied the request. We affirm the decision of the circuit court upholding the Board's decision.

ANALYSIS AND DECISION

¶3. Whether, at the time of his 1958 sentence to life imprisonment, state law required that a parole eligibility date be set for Brim?

¶4 Whether Brim had a right to be assigned a parole eligibility date depends upon the statutory framework as it existed in 1958. "The proper construction to be given a statute is a question of law which is fully reviewable. Accordingly, the questions presented are reviewed de novo." Estate of Chilton, 520 N.W.2d 910, 912 (S.D.1994); See also In re Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984) (citations omitted).

¶5 We conclude that while South Dakota did at one time statutorily allow for parole of persons sentenced to life imprisonment, this opportunity existed only for persons sentenced prior to July 1, 1913. As Brim was not sentenced until November 1, 1958, he cannot claim any denial of any right to apply for parole.

¶6 In 1911 the Legislature enacted what was designated as Chapter 198 of the 1911 Session Laws. ² Section 1 of that act established the right of a prisoner serving a life sentence to apply for parole.

Whenever the governor shall have received such recommendation above provided for, and is satisfied that any convict has been confined in the penitentiary for a sufficient length of time to accomplish his reformation, and that such convict may be temporarily released without danger to society, and is satisfied that permanent and suitable employment has been secured for such convict in some county of the state where he will be free from criminal influences, the governor shall issue an order to the warden that such convict shall be temporarily released from the penitentiary and allowed to go to said county. Provided, that no convict shall be paroled until he shall have served one-half of the time for which he was sentenced, allowing time earned for good behavior.

And Provided further, that in case of convicts serving under life sentence, such convict may be paroled when he has served at least thirty years of time for which he was sentenced, deducting therefrom time earned for good behavior. (Emphasis added.)

1911 S.D. Sess.L. ch. 198 § 1.

¶7 Section 2 of the same statute dealt with the Governor issuing a pardon. It provided in part:

Provided further, that in case the paroled convict is one who is serving under a life sentence, that such convict shall not in any event be given a pardon or final release until such convict has faithfully complied with the terms of his parole for a period of at least five years.

1911 S.D. Sess.L. ch. 198 § 2.

¶8 Thus, as of July 1, 1911, a person serving a life sentence could, under section 1 of this statute, be eligible for parole when the prisoner had served at least 30 years, and further under section 2, could be fully pardoned for the crime in an additional five years after the granting of the parole.

¶9 Apparently, the Legislature had second thoughts about the wisdom of its 1911 enactments as, at its very next session in 1913, ³ it amended Section 1 of the above-cited 1911 statute to read as follows:

Whenever the governor shall have received such recommendation above provided for, and is satisfied that any convict has been confined in the penitentiary for a sufficient length of time to accomplish his reformation, and that such convict may be temporarily released without danger to society, and is satisfied that permanent and suitable employment has been secured for such convict in some county of the state where he will be free from criminal influences, the governor shall issue an order to the warden that such convict shall be temporarily released from the penitentiary and allowed to go to said county. Provided, That no convict, except convicts given an indeterminate sentence, shall be paroled until he shall have served one-half of the time for which he was sentenced allowing time earned for good behavior. And Provided, Further, that any convict upon whom has been imposed an indeterminate sentence and who has served the minimum of such sentence, allowing time earned for good behavior, may be paroled by the governor as herein provided. (Emphasis original.) ⁴

1913 S.D. Sess.L. ch. 287 § 1. This amendment reflects only two changes to the 1911 statute. The 1913 Legislature dropped the 1911 provision allowing parole for a life prisoner after serving 30 years and instead replaced it with reference to prisoners who were sentenced to an indeterminate sentence. Thus, as of the effective date of the 1913 amendment to section 1 of the 1911 act, that being July 1, 1913, the right of a person sentenced to life imprisonment after July 1, 1913 to apply for a parole after 30 years, did not exist.

¶10 Yet the Legislature in 1913 had the remaining question of what to do with those prisoners who had been sentenced to life imprisonment prior to that date and had a vested right to parole consideration under the 1911 statute. Cf. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); People ex rel. Jones v. Russi, 199 A.D.2d 1043, 608 N.Y.S.2d 914 (1993). Under section 2 of the 1911 statute, those persons had been given the right to apply for a full pardon after serving 30 years of their sentence, obtaining parole and convincing the governor that for at least five years after parole, their exemplary conduct should allow them a full pardon. To address this situation, the Legislature left intact section 2 of the 1911 act. Section 2 of the 1911 act is carried forward to section 5404 of the 1919 code, and subsequently, to section 13.5302 of the 1939 code which was in effect when Brim was sentenced in 1958. At that point the statute read:

No pardon shall be granted under this section in any case where the sentence of the court is imprisonment for life or for a longer term than two years without application to and recommendation by the Board of Pardons in compliance with the laws and regulations governing the proceedings of such Board; provided further, that in case the paroled convict is one who is serving under a life sentence, such convict shall not in any event be given a pardon or final release until such convict has faithfully complied with the terms of his parole for a period of at least five years. ⁵

SDC 13.5302.

¶11 The reason for retaining section 2 of the 1911 act on the books this length of time was not to continue to allow parole for persons serving a life sentence who were sentenced after July 1, 1913, but was rather to deal with those persons serving a life sentence who were sentenced prior to that date and had a statutory right to apply for a pardon. The earliest anyone could have reached that status was 35 years after sentencing, which would have allowed a person sentenced in the first six months of 1913 to apply for a pardon, under a best case scenario, in 1948.

¶12 The subsequent inclusion of the 1913 statute in the next codification of 1919 is consistent with this analysis. Section 1 of the 1911 session laws as amended in 1913 is found at section 5398 of the 1919 Code under the title, "Governor May Parole." Section 2 of the 1911 session laws, which is the statute upon which Brim now relies, is found at section 5404 under the title, "Governor May Pardon." In 1919 there were still numerous legislators who had served in the 1913 Legislature and knew what had been passed in 1913. (See 1993 South Dakota Legislative Manual (Blue Book) pp. 245-48 and 257-60).

¶13 In the 1939 Code, section 1 of the 1911 session laws became SDC 13.5301. As amended in 1925 and 1931, it now contained a detailed formula for when a prisoner was eligible for parole. Noticeably missing was any calculation on how to determine parole eligibility for prisoners serving a life sentence or even a reference to them. ⁶ Section 2 of the 1911 session laws became a separate statute, SDC 13.5302, (see p 10, supra ), generally dealing with pardons and setting no formula for the parole of life prisoners.

¶14 Brim argues that the subsequent title of SDCL 23-60-15 adopted in the 1967 codification points towards retention of parole for life prisoners after 1913, as it is entitled, "Minimum duration of parole under life sentence." Obviously by 1967 there were no holdover legislators from 1913 who were aware of the intent of the law at the time it was amended in that year.

¶15 Neither does the title of the 1967 act provide any authority that there was an intent of that Legislature to amend the 1939 statute or its predecessors. This is based upon a fundamental change in the law of statutory construction which also occurred in 1939. At the time of the 1919 Code, the title of the statute was...