Brown, Matter of, 19843

• Decision Date: 01 May 1997
• Docket Number: No. 19843,19843
• Parties: In the MATTER OF the Revocation of the Suspended Sentence of Bobby Wayne BROWN. . Considered on Briefs
• Court: South Dakota Supreme Court

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.

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 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 circuit court focused its analysis on the wrong period of time.

¶10 The revocation process started on September 15, 1995 with the filing of a violation report. A violation report is similar to a pleading. The purpose of a pleading is to frame the issues upon which the case is to be tried and to advise the opposing party of what he is called upon to meet. Gross v. Gross, 355 N.W.2d 4, 8 (S.D.1984) (citing Bristow v. Western Surety Co., 76 S.D. 362, 78 N.W.2d 734, 736 (1956)). The pleading also serves to define the approximate time frame in which the complained of conduct, or lack of conduct, took place.

¶11 The proper inquiry for the Board was whether Brown was in compliance with the conditions of his suspended sentence when the violation report was filed on September 15, 1995. Brown's conduct after September 15, 1995 was not relevant in deciding whether a violation had occurred. ³ Accordingly, the fact that Brown had entered the S.T.O.P. program by the time of the hearing before the Board did not, by itself, make the Board's revocation of Brown's suspended sentence an abuse of discretion. The circuit court was in error to conclude otherwise.

¶12 Was the decision by the Board to revoke Brown's suspended sentence clearly erroneous or an abuse of discretion? It is undisputed that at the time of the violation report, Brown had not participated in the S.T.O.P. program. What is in dispute is the reason for Brown's failure to participate. Was Brown being truthful or not when he claimed he lacked any memory of the sexual contact offense? ⁴

¶13 A review of the Board's findings of fact indicate that no specific finding was made concerning Brown's truthfulness on this issue. ⁵ Based on the Board's findings of fact and its decision to revoke Brown's suspended sentence, we could infer that the Board did not believe Brown. We decline to make this inference. We believe a specific finding of fact should have been made by the Board on this question. Absent this finding, we are unable to determine whether the Board's decision was clearly erroneous or an abuse of discretion.

¶14 A decision of the Board must be supported by adequate findings of fact and conclusions of law. SDCL 1-26-25. As we have noted in the past, "[t]o permit the [agency] to announce its decisions without setting forth the justifications in the findings and conclusions would be tantamount to vesting in it absolute discretion by removing from the courts the only tools they possess which enable them to exercise their limited function of review." Matter of Johnson, 337 N.W.2d 442, 445 (S.D.1983) (quoting International U., United Auto., & A.I. Wkrs. v. NLRB, 455 F.2d 1357, 1369-70 (D.C.Cir.1971)).

¶15 If an agency fails to make adequate findings of fact, "[W]e have no basis upon which to conduct our review.... We must remand on this issue for entry of appropriate findings, based on the record before the Board at the hearing." Matter of SDDS, Inc., 472 N.W.2d 502, 513 (SD 1991). See also SDCL 1-26-36; Meade Educ. Ass'n v. Meade School District 46-1, 399 N.W.2d 885, 889 (S.D.1987).

¶16 Absent a specific finding as to the truthfulness of Brown's claimed lack of memory, it must be remanded to the Board for entry of appropriate findings based on the record before the Board at the time of the hearing.

¶17 Finally we note that the sentencing judge, as a condition of Brown's suspended sentence, required Brown to "participate in all sex offender programs." However, Brown was not required to participate in or complete all the sex offender programs by any specified date. On remand, the Board should also enter its findings and conclusions...