Rowley v. S.D. Bd. of Pardons & Paroles
| Decision Date | 16 January 2013 |
| Docket Number | No. 26418.,26418. |
| Citation | 826 N.W.2d 360,2013 S.D. 6 |
| Parties | Lloyd ROWLEY, Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Steven K. Rabuck of Nichols & Rabuck, PC, Sioux Falls, South Dakota, Attorneys for appellant.
Marty J. Jackley, Attorney General, Pierre, South Dakota, Patrick T. Pardy, Special Assistant Attorney General, Department of Corrections, Sioux Falls, South Dakota, Attorneys for appellee.
[¶ 1.] Lloyd Rowley appeals his initial parole date determined by the Department of Corrections (the DOC) pursuant to SDCL 24–15A–32. The Board of Pardons and Paroles (the Board) and the circuit court affirmed. We reverse and remand to the Board with instructions to calculate Rowley's initial parole date in conformity with this opinion.
[¶ 2.] On October 12, 2007, Rowley pleaded guilty to one count of first-degree injury to property and one count of possession of a controlled substance, both Class 4 felonies. Rowley, who had three prior non-violent felony convictions, also admitted he was a habitual offender. In accordance with SDCL 22–7–8.1, the sentencing judge enhanced the sentence for the principal felonies by two levels, equivalent to that of a Class 2 felony.1 Rowley was sentenced to 21 years in the penitentiary for both convictions, to be served consecutively.
[¶ 3.] Rowley's sentences commenced on June 18, 2007. According to the DOC, Rowley's initial parole date is June 21, 2027. The DOC calculated Rowley's initial parole date pursuant to SDCL 24–15A–32.2SDCL 24–15A–32 contains a grid, which establishes the percentage of an inmate's sentence that must be served before he is eligible for parole. Because Rowley's sentences for the principal felonies were enhanced to correspond with sentences for Class 2 felonies, the DOC applied the percentage applicable to a Class 2 felony, even though Rowley was convicted of Class 4 felonies. Thus, the DOC maintains that Rowley must serve 50%, rather than 40%, of his sentence before he is eligible for parole.
[¶ 4.] Rowley applied to the Board for a final determination of his true and correct parole eligibility date pursuant to SDCL 24–15A–33. On November 15, 2011, the Board entered findings of fact, conclusions of law, and an order affirming Rowley's initial parole date calculated by the DOC. Rowley appealed to the circuit court, which affirmed the Board's decision. Rowley appeals, arguing that the Board acted without authority under South Dakota law by increasing the class of the principal felonies to Class 2 felonies for purposes of parole eligibility. Rowley also raises several constitutional issues on appeal. Because we conclude that the DOC incorrectly calculated Rowley's initial parole date, we decline to address the constitutional issues.
[¶ 5.] “Appeals from the Board are governed by SDCL 1–26–37.” Brant v. S.D. Bd. of Pardons & Paroles, 2012 S.D. 12, ¶ 7, 809 N.W.2d 847, 849 (quoting Acevedo v. S.D. Bd. of Pardons & Paroles, 2009 S.D. 45, ¶ 7, 768 N.W.2d 155, 158). Therefore, 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. (quoting Acevedo, 2009 S.D. 45, ¶ 7, 768 N.W.2d at 158). Because this case involves a question of statutory interpretation, the standard of review is de novo. State v. Jucht, 2012 S.D. 66, ¶ 22, 821 N.W.2d 629, 634 (citing State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920).
[¶ 6.] Rowley argues that the Board acted without authority by increasing the length of time he had to serve before he became eligible for parole based upon his conviction as a habitual offender under SDCL 22–7–8.1. Rowley maintains that SDCL 22–7–8.1 does not substantively change the class of the principal felony; it only enhances the sentence. Further, Rowley stresses that SDCL ch. 24–15A, governing parole, is completely silent on the effect a habitual offender conviction has on parole eligibility. To Rowley, this position is logical because a conviction as a habitual offender does not change the nature of the underlying offense. The Board disagrees, arguing that under SDCL 22–7–8.1, the principal felony is increased to a higher class of felony. In addition, the Board claims the statutory language of SDCL 22–7–8.1 demonstrates legislative intent to enhance the felony class when determining an inmate's parole eligibility date pursuant to SDCL 24–15A–32.
[¶ 7.] Whether the habitual offender statute at issue, SDCL 22–7–8.1, increases the class of the principal felony is a question of statutory interpretation.
The purpose of statutory construction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the Legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect.
City of Rapid City v. Estes, 2011 S.D. 75, ¶ 12, 805 N.W.2d 714, 718 (quoting State ex rel. Dep't of Transp. v. Clark, 2011 S.D. 20, ¶ 5, 798 N.W.2d 160, 162). “When the language in a statute is clear, certain and unambiguous, there is no reason for construction,and the Court's only function is to declare the meaning of the statute as clearly expressed.” In re Estate of Hamilton, 2012 S.D. 34, ¶ 7, 814 N.W.2d 141, 143 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611).
[¶ 8.] SDCL 22–7–8.1 provides,
If a defendant has been convicted of three or more felonies in addition to the principal felony and none of the prior felony convictions was for a crime of violence as defined in subdivision § 22–1–2(9), the sentence for the principal felony shall be enhanced by two levels but in no circumstance may the enhancement exceed the sentence for a Class C felony. A defendant sentenced pursuant to this section is eligible for consideration for parole pursuant to § 24–15A–32 if the defendant receives a sentence of less than life in prison.
(Emphasis added.) A plain reading of the phrase “the sentence for the principal felony shall be enhanced by two levels” indicates that the sentence is enhanced, not the principal felony. The words “for the principal felony” merely explain what sentence is enhanced. To construe this phrase as the Board suggests would require us to ignore the words “the sentence for,” which we will not do. See Jensen v. Turner Cnty. Bd. of Adjustment, 2007 S.D. 28, ¶ 12, 730 N.W.2d 411, 415 (). Later, in the same sentence, the Legislature limits the scope of the enhancement providing that “the enhancement [cannot] exceed the sentence for a Class C felony.” SDCL 22–7–8.1. Again, the plain language establishes that the sentence is the subject of the enhancement.
[¶ 9.] Nonetheless, the Board argues that its position that the principal felony itself is enhanced is supported by prior case law. To support its argument, the Board cites several decisions concerning the habitual offender statutes. Rowley correctly points out that these cases undermine the Board's position because they support the conclusion that the sentence, rather than the principal felony, is enhanced.
[¶ 10.] For example, in State v. Cady, we declared: “Being a habitual criminal is not a separate offense, rather the punishment for the principal crime is enhanced to a higher class of felony (SDCL 22–7–7 et seq.).” 422 N.W.2d 828, 831 (S.D.1988)(emphasis added). Then, in In re Novak, we determined that “ sentencing upon conviction under [SDCL 22–14–15] may be enhanced through SDCL 22–7–7.” 447 N.W.2d 530, 530 (S.D.1989) (emphasis added). Next, in State v. Salway, this Court, citing Cady, stated: “[B]eing a habitual criminal enhances the punishment for the principal crime to a higher class of felony.” 487 N.W.2d 621, 622 (S.D.1992) (emphasis added). Thereafter, in State v. Stetter, we explained that under SDCL 22–7–8.1, “[i]f a defendant has been convicted of three or more prior felonies, his sentence for the principal felony is enhanced two levels.” 513 N.W.2d 87, 89 (S.D.1994) (emphasis added). Finally, in State v. Guthmiller, we confirmed that “[t]he habitual offender statute SDCL 22–7–7 enhances the sentence to the next more severe felony class.” 2003 S.D. 83, ¶ 31, 667 N.W.2d 295, 306 (emphasis added). Regardless of the nomenclature we chose, these cases confirm that the habitual offender statutes operate to increase the defendant's sentence, but do not substantively change the class of the principal felony.
[¶ 11.] Next, the Board directs us to the last sentence of SDCL 22–7–8.1, which provides: “A defendant sentenced pursuant to this section is eligible for considerationfor parole pursuant to § 24–15A–32 if the defendant receives a sentence of less than life in prison.” The Board contends that because this sentence references SDCL 24–15A–32, the Legislature intended for the class of the principal felony to be enhanced for parole eligibility purposes.
[¶ 12.] However, the last sentence of SDCL 22–7–8.1 merely clarifies that a defendant subject to a sentence enhancement is still eligible for parole so long as his sentence is less than life in prison. It does not instruct the DOC to enhance the class of the principal felony when calculating an inmate's parole eligibility date, nor does any other portion of SDCL 22–7–8.1. Likewise, SDCL 24–15A–32 does not contain any such instructions, or, for that matter, a single reference to the habitual offender statutes. The Board's position essentially asks us to add language to the statutes. However, “[i]n interpreting legislation, [we] cannot add language that simply is not there.” West v. Dooley, 2010 S.D. 102, ¶ 14, 792 N.W.2d 925, 928 (quoting ...
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