Brown, Matter of, 19843

• Court: Supreme Court of South Dakota
• Writing for the Court: LOVRIEN; SABERS
• Citation: 572 N.W.2d 435,1997 SD 133
• Parties: In the MATTER OF the Revocation of the Suspended Sentence of Bobby Wayne BROWN. . Considered on Briefs
• Docket Number: No. 19843,19843
• Decision Date: 01 May 1997

Page 435

572 N.W.2d 435 1997 SD 133 In the MATTER OF the Revocation of the Suspended Sentence of
Bobby Wayne BROWN. No. 19843. Supreme Court of South Dakota. Considered on Briefs May 1, 1997.
Decided Dec. 10, 1997.

David O. Carter, Special Assistant Attorney General, Sioux Falls, for appellant South Dakota Board of Pardons and Paroles.

Page 436

Steven G. Haugaard, Sioux Falls, for appellee Bobby Wayne Brown.

LOVRIEN, Circuit Judge.

¶1 The Board of Pardons and Paroles, (Board), appeals from a circuit court order reversing its decision to revoke the suspended portion of a sentence. We reverse the circuit court's decision and direct that it be remanded to the Board for further proceedings.

FACTS

¶2 Bobby Wayne Brown, (Brown), was found guilty of having sexual contact with a child under sixteen years of age. He was sentenced to ten years in the South Dakota State Penitentiary, with four years suspended on certain conditions. One of those conditions required that Brown "participate in all sex offender programs." Brown entered the penitentiary in March 1992. He apparently participated in various classes and programs which, in part, make up the sex offender program at the penitentiary. Brown tried to gain admission to the S.T.O.P. ¹ program for sex offenders but could not because he claimed he could not remember the sexual contact due to alcohol consumption at the time of the offense.

¶3 On September 15, 1995, a violation report was filed recommending revocation of the suspended portion of Brown's sentence for failure to participate in the S.T.O.P. program. At the preliminary hearing on September 20th, the hearing examiner determined that there were reasonable grounds to believe Brown may have violated a condition of his suspended sentence. The hearing examiner recommended a final hearing before the Board.

¶4 In October 1995, Brown was admitted to the S.T.O.P. program. Apparently the program's admission criteria changed and Brown was no longer denied entry into the program based on his claimed inability to remember his offense.

¶5 The Board heard evidence and considered Brown's case on November 17, 1995. During the Board hearing, Brown's attorney argued that Brown did all he could possibly do to bring himself into compliance with the conditions of the suspended sentence. He also argued that there was no basis for revoking the suspended portion of Brown's sentence because Brown had been admitted to the S.T.O.P. program and had already participated one hour per week for approximately one month. According to Brown's attorney, Brown was thus in compliance with the terms of the suspended sentence at the time of the hearing.

¶6 Unfortunately for Brown, the Board did not agree. It entered findings of fact and conclusions of law and an order revoking the suspended portion of Brown's sentence. Brown then appealed to the circuit court, which reversed the decision of the Board. The circuit court concluded that because Brown was participating in the S.T.O.P. program at the time of the Board hearing, the Board abused its discretion in revoking Brown's suspended sentence.

STANDARD OF REVIEW

¶7 The Board is under the direction and supervision of the Department of Corrections. SDCL 24-13-3. As a result, the Board is generally governed by the Administrative Procedures Act. SDCL 1-26-1 et seq. Our standard of review is:

The court shall give great weight to the findings made and inferences drawn by an agency on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

* * * * * *

5) clearly erroneous in light of the entire evidence in the record; or

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6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

SDCL 1-26-36. As we have said:

We will overrule an agency's finding of fact only when they are clearly erroneous. The question is not whether there is substantial evidence contrary to the agency finding, but whether there is substantial evidence to support the agency finding. In other words, even if there is evidence in the record which tends to contradict the Department's factual determination, so long as there is some substantial evidence in the record which supports the Department's determination, this court will affirm. Great weight is given to the findings made and inferences drawn by an agency on questions of fact. Conclusions of law are given no deference and are fully reviewable. When reviewing evidence presented by deposition, we do not apply the clearly erroneous standard but review that testimony as though presented here for the first time.

Kurtenbach v. Frito-Lay, 1997 SD 66 p 6, 563 N.W.2d 869, 872 (quoting Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 (S.D.1994)).

DECISION

¶8 The Board retains jurisdiction to revoke the suspended portion of a defendant's sentence for violation of the terms of the suspension. ² The standard of proof required for a criminal conviction is not necessary to revoke a suspended sentence. State v. Tuttle, 460 N.W.2d 157, 160 (S.D.1990). 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. Id. (citing State v. Olson, 305 N.W.2d 852, 853 (S.D.1981)). 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.

¶9 The circuit court concluded that because Brown was participating in the S.T.O.P. program by the time of the Board hearing, the Board abused its discretion in revoking Brown's suspended sentence. In reaching this conclusion, we believe the...