Martin v. Board of Pardons and Paroles, 25213.

• Court: Supreme Court of South Dakota
• Writing for the Court: Meierhenry
• Citation: 776 N.W.2d 93,2009 SD 103
• Parties: Darrell D. MARTIN, Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
• Docket Number: No. 25213.,25213.
• Decision Date: 02 December 2009

776 N.W.2d 93 2009 SD 103 Darrell D. MARTIN, Appellant,
v.
SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee. No. 25213. Supreme Court of South Dakota. Considered on Briefs October 5, 2009. Decided December 2, 2009.

[776 N.W.2d 95]

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

Marty J. Jackley, Attorney General, Max A. Gors, Special Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.

MEIERHENRY, Justice.

[¶ 1.] Darrell Martin appeals the circuit court's decision affirming the South Dakota Board of Pardons and Paroles (Board). The Board revoked Martin's parole for violating the terms of his parole supervision agreement by being terminated from Glory House and sex offender counseling at Great Plains Psychological Services (Great Plains). We affirm.

FACTS

[¶ 2.] Martin was serving ten years, with five years suspended, in the state penitentiary for possession of child pornography. Martin was released on parole on June 4, 2008. As a condition of his parole, Martin was required to maintain residence at Glory House in Sioux Falls, an addiction rehabilitation facility, and attend sex offender counseling at Great Plains.

[¶ 3.] On June 12, 2008, Martin was working in the kitchen of Glory House when an employee claimed to have seen him fondling himself. As a result of this incident, Martin was terminated from Glory House and dismissed from his treatment program at Great Plains. Martin was subsequently returned to the penitentiary and was subject to parole revocation. On July 3, 2008, Martin requested a court-appointed attorney. Martin appeared before a two-member panel of the Board on August 12, 2008, and requested a continuance to obtain court-appointed counsel. A circuit court appointed counsel on August 22, 2008. Martin then appeared before the Board on September 9, 2008, with his attorney and denied the claim he was fondling himself in the kitchen area of Glory House. The Board set a revocation hearing

776 N.W.2d 96

for October 7, 2008, but due to the Board's attorney's illness, the hearing was continued until November 18, 2008. The Board rendered its decision on December 11, 2008, concluding that Martin had violated his parole.

[¶ 4.] Martin appealed the Board's decision to circuit court on December 15, 2008. The circuit court affirmed the Board's decision. Martin appeals from the circuit court's order affirming the Board.

ISSUES

[¶ 5.] On appeal, Martin raises several issues concerning his parole revocation. Martin claims the allegations of a parole violation should have been dismissed because a hearing was not conducted within the 90-day time period required by the Board's administrative rules. Martin also claims: the state failed to meet its burden of proof that he violated his parole supervision agreement; the Board's decision that Martin violated his parole supervision agreement was clearly erroneous; the Board's imposition of his suspended sentence was unwarranted, erroneous, arbitrary, and an abuse of discretion; and, he was denied his right to cross-examine one of the witnesses at the hearing.¹

STANDARD OF REVIEW

[¶ 6.] An appeal from the Board is governed by SDCL 1-26-37. Austad v. S.D. Bd. of Pardons & Paroles, 2006 SD 65, ¶ 8, 719 N.W.2d 760, 764. "We review questions of fact under the clearly erroneous standard; mixed questions of law and fact and questions of law are reviewed de novo." Id. (citing Lee v. S.D. Bd. of Pardons & Paroles, 2005 SD 103, ¶ 6, 705 N.W.2d 609, 611). We have stated that "[m]atters of discretion are reviewed under an abuse of discretion standard." Id. We have also 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.

Id. (citing In re Brown, 1997 SD 133, ¶ 8, 572 N.W.2d 435, 437); see Acevedo, 2009 SD 45, ¶ 11, 768 N.W.2d at 159 (rejecting the contention that a parolee is entitled to parole).

ANALYSIS

Time Limit to Hold Parole Revocation Hearing

[¶ 7.] The Board promulgates rules regarding parole revocation hearings. SDCL 24-15A-42. A Board rule affords a parolee a final hearing for alleged parole violations within 90 days from the time the parolee is returned to the Department of Corrections facility. ARSD 17:60:11:07. This rule provides:

A parolee charged with violating a condition, special limitation, or rule of supervision shall be afforded a final hearing within 90 days following the return of the parolee to a South Dakota Department of Corrections facility. The final hearing shall determine if the parolee has violated a condition, special limitation, or rule of supervision and if

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the violation warrants supervision revocation or some other less restrictive disciplinary action, including continuance of supervision with new restriction. If the parolee admits the violation and signs a waiver of final hearing, the board may revoke supervision without a final hearing.

Id.

[¶ 8.] Martin argues his final parole revocation hearing was not held within the 90 days set forth by ARSD 17:60:11:07. As a result, Martin claims he is entitled to have his parole revocation dismissed with prejudice. Martin contends 117 days passed from the time he was returned to the penitentiary until the day of his final hearing. Martin does not dispute the delay due to his request for counsel should be excluded from the 90-day calculation. The parties, however, disagree...