Watkins v. Class

Citation566 N.W.2d 431,1997 SD 76
Decision Date26 March 1997
Docket NumberNo. 19759,19759
PartiesChip A. WATKINS, Applicant and Appellant, v. Joseph CLASS, Warden of the South Dakota State Penitentiary, Appellee. . Considered on Briefs
CourtSupreme Court of South Dakota

Thomas J. Penisten, Sioux Falls, for applicant and appellant.

Mark Barnett, Attorney General, Frank E. Geaghan, Assistant Attorney General, Pierre, for appellee.

MILLER, Chief Justice.

¶1 Chip A. Watkins appeals the denial of his application for a writ of habeas corpus. We affirm.

FACTS

¶2 As a result of a criminal escapade in Clay County, South Dakota, in 1984, Watkins was charged with three counts of first-degree robbery (SDCL 22-30-1); one count each of first-degree burglary (SDCL 22-32-1); possession of a controlled weapon (SDCL 22-14-6); commission of a felony while armed with a short shotgun (SDCL 22-14-12); and possession of a firearm by a convicted felon (SDCL 22-14-5). Pursuant to a plea agreement, Watkins pleaded guilty to one count each of first-degree robbery and possession of a controlled weapon. On March 26, 1984, he was sentenced to ten years in the state penitentiary for the robbery conviction and two years for the possession of a controlled weapon conviction, both sentences to run concurrently. When Watkins entered the penitentiary, his good-time release date was calculated to be September 26, 1990, and his flat-time release date was set for March 26, 1994.

¶3 Watkins was released on parole June 30, 1988. A warrant for his arrest was issued on September 20, 1988, and Watkins was returned to the penitentiary on September 21, 1988. The record is unclear as to how he violated his parole. The following day, the Board of Pardons and Paroles (hereinafter "the Board") revoked Watkins' parole and withheld one year and nine months of good-time credit as a result of the violation.

¶4 Watkins was released on parole a second time on September 27, 1988. 1 As a condition of this parole, he was again required to sign a standard parole agreement requiring him to keep his parole officer informed of his whereabouts at all times. In addition to obeying all municipal, county, state, and federal laws, he was also required to keep the hours specified by his parole officer and secure advance approval for use of any vehicle as conditions of his parole.

¶5 After being paroled, Watkins was involved in a physical confrontation with his roommate's friend. His roommate threatened to call the police and Watkins fled the state to avoid the possibility of parole revocation. On January 4, 1989, a warrant was issued for him as a parole absconder. 2 Watkins remained at large for more than five years, living in New Mexico under various aliases. On December 9, 1994, he was apprehended in Colorado and returned to South Dakota.

¶6 Watkins waived his right to a preliminary hearing before the Board and a final hearing was held on January 26, 1995. At the hearing, he admitted to having failed to inform his parole agent of his whereabouts in violation of his parole agreement. Based on this admitted violation, on January 27, 1995, the Board revoked his parole and withheld seventeen months of good-time credit. The Board deemed the five years, ten months and nineteen days Watkins spent as an absconder as tolled "dead time," inapplicable to his sentence. The effect of the reduction in Watkins' good-time credit and the tolled "dead time" was to calculate his good-time release date as October 15, 1999, and set his flat-time release date as February 15, 2000.

¶7 Watkins filed a writ of habeas corpus alleging that the State was without the authority to toll his parole supervision time. The habeas court denied Watkins' application. He appeals.

STANDARD OF REVIEW

¶8 Habeas corpus is not a substitute for direct review. Loop v. Class, 1996 SD 107, p 11, 554 N.W.2d 189, 191 (citation omitted). A habeas corpus proceeding is in the nature of a collateral attack on a final judgment; accordingly, our review is limited. Black v. Class, 1997 SD 22, p 4, 560 N.W.2d 544, 546; Jenner v. Leapley, 521 N.W.2d 422, 425 (S.D.1994); Gregory v. Solem, 449 N.W.2d 827, 829 (S.D.1989).

Habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases, whether an incarcerated defendant has been deprived of basic constitutional rights. For purposes of habeas corpus, constitutional violations in a criminal case deprive the trial court of jurisdiction.

St. Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (St. Cloud III) (internal citations omitted). The petitioner has the burden to prove by a preponderance of the evidence that he is entitled to relief. Two Eagle v. Leapley, 522 N.W.2d 765, 768 (S.D.1994); Petrilli v. Leapley, 491 N.W.2d 79, 81 (S.D.1992).

DECISION

¶9 Initially, we note the habeas court concluded the Board's authority to toll parole supervision time was granted by SDCL 24-15-24, 3 and concluded "[w]hile SDCL 24-15-21 (1986) and its later versions aid in statutory clarification when a parole absconder situation arises, SDCL 24-15-24 (1983) is nonetheless effective against parole absconders in limiting good credits received while on the run." SDCL 24-15-24 sets forth the remedies available to the Board for addressing parole violations, including parole revocation, reinstatement of the original sentence or reduction of good-time credit, in part or in whole. SDCL 24-15-21, on the other hand, provides for the tolling of parole supervision time during the period between the issuance of a warrant for a parole violation and parole revocation.

¶10 The habeas court's application of SDCL 24-15-24 as authority to reduce Watkins' good-time credits was proper. The application of SDCL 24-15-24 to toll Watkins' parole supervision time, however, was in error because the statute authorizes only post-violation remedies for a parole violation. SDCL 24-15-21, not SDCL 24-15-24, provides the correct framework for determining whether parole supervision time is tolled upon issuance of a warrant and applies to the "dead time" at issue in Watkins' application for a writ of habeas.

Whether the Board's application of SDCL 24-15-21 to toll the running of Watkins' sentence violated the ex post facto clause.

¶11 Though for the wrong reason, the habeas court's denial of Watkins' writ of habeas corpus reached the right result for the reasons stated below. See Kehn v. Hoeksema, 524 N.W.2d 879, 881 (S.D.1994); Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D.1994); Cowell v. Leapley, 458 N.W.2d 514, 519 (S.D.1990).

¶12 The United States Constitution expressly provides "no state shall ... pass ... any ex post facto law." U.S.Const.Art. I, § 10. Similarly, the South Dakota Constitution provides "no ex post facto law ... shall be passed." S.D.Const.Art. VI, § 12. The ex post facto clause is implicated only by a criminal or penal statute which "imposes a punishment for an act which was not punishable at the time it was committed or [which imposes] an additional punishment to that then prescribed." Collins v. Youngblood, 497 U.S. 37, 45-46, 110 S.Ct. 2715, 2721, 111 L.Ed.2d 30, 41 (1990).

¶13 Two elements are required for a finding that a statute is ex post facto: "[I]t must be retrospective, that is it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver v. Graham 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981) (footnotes omitted). See also Delano v. Petteys, 520 N.W.2d 606, 608 (S.D.1994); Stumes v. Delano, 508 N.W.2d 366, 371 (S.D.1993); Matter of Williams, 488 N.W.2d 667, 669-70 (S.D.1992) (Williams I ).

¶14 The State and Watkins do not dispute that the Board's authority to toll parole supervision time is derived from SDCL 24-15-21, which, as amended in 1986, provides:

If the executive director of the board is satisfied that any provision of § 24-15-20 has been violated, the executive director may issue a warrant to the Department of Corrections, any law enforcement officer, or any parole agent, directing that the parolee named be arrested. Pursuant to the provisions of § 24-15-23, the parolee may be returned to the state penitentiary. Upon the issuance of the warrant, the running of the parole supervision time shall be suspended until the board has entered its final order on the revocation. The board shall credit the inmate with time spent in custody as a direct result of the parole violation.

The version of this statute in effect when Watkins was convicted did not contain the language mandating the tolling of parole supervision time upon the issuance of a parole violation warrant. The tolling language was in effect, however, when Watkins was paroled in 1988. Watkins maintains the 1986 amendment is inapplicable to his parole violation because the amendment was not in effect when he was convicted in 1984. State argues the 1986 tolling provision is applicable because it was in effect at the time of the 1989 parole violation.

¶15 Watkins argues the Eighth Circuit Court of Appeals' review of our holding in Williams I supports his argument that the application of SDCL 24-15-21 constituted an ex post facto application. Williams v. Lee, 33 F.3d 1010, 1014 (8th Cir.1994) cert. denied 514 U.S. 1032, 115 S.Ct. 1393, 131 L.Ed.2d 244 (1995) (Williams II ). The Eighth Circuit concluded the revocation of Williams' good-time credits pursuant to a statutory amendment to SDCL 24-15-24 enacted two years after his conviction was an ex post facto application of the amendment. Id. The Eighth Circuit's decision, however, expressly declined to reach the issue of ex post facto application of SDCL 24-15-21. Id. (stating "we need not and do not reach" the issue of whether the tolling provision was ex post facto). We conclude Williams II is not determinative of the applicability of SDCL 24-15-21 to Watkins' appeal.

¶16 Watkins'...

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