Reck v. S.D. Bd. of Pardons & Paroles

#28839-a-SRJ
2019 S.D. 42

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

JOSHUA RECK, Appellant,

v.

SOUTH DAKOTA BOARD OF
PARDONS AND PAROLES, Appellee.

****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

****

THE HONORABLE JAMES A. POWER
Judge

THE HONORABLE LAWRENCE E. LONG
Judge

****

BEAU J. BLOUIN of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota Attorneys for appellant.

JASON RAVNSBORG
Attorney General
Pierre, South Dakota

CATHERINE SCHLIMGEN
Special Assistant Attorney General
Department of Corrections
Sioux Falls, South Dakota Attorneys for appellee.

****

CONSIDERED ON BRIEFS
ON MAY 28, 2019
OPINION FILED 07/17/19
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JENSEN, Justice

[¶1.] Joshua Reck was sentenced to penitentiary terms for aggravated

assault against a law enforcement officer and aggravated assault with a dangerous

weapon arising from unrelated incidents. The South Dakota Department of

Corrections (Department) calculated Reck’s parole eligibility for both sentences

under the parole grid in SDCL 24-15A-32. A South Dakota Board of Pardons and

Paroles (BPP) appeal panel affirmed the Department’s parole eligibility

calculations. Reck appealed to the circuit court, which affirmed the BPP’s decision.

Reck appeals to this Court, arguing the Department misapplied the parole grid by

using one or more of his prior non-violent felony convictions to increase his time

until parole. We affirm the circuit court’s ruling.

Facts and Procedural History

[¶2.] On December 5, 2016, Reck was sentenced in Hutchinson County to

twelve years in the state penitentiary with four years suspended following his nolo

contendere plea to aggravated assault against a law enforcement officer, a class 2

felony. The Department calculated Reck’s parole eligibility date by applying the

grid in SDCL 24-15A-32.1 At the time, Reck had been convicted of three prior

felonies in South Dakota, all considered non-violent for parole purposes under

SDCL 24-15A-32. Although aggravated assault against a law enforcement officer is

categorized as a violent offense for parole under SDCL 24-15A-32, the Department

considered Reck’s prior non-violent felonies when it calculated his parole eligibility.

1. The grid in SDCL 24-15A-32 is included as an appendix at the conclusion of
the opinion.

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Using his prior non-violent convictions, the Department treated Reck’s sentence for

aggravated assault against a law enforcement officer as his third felony conviction,

requiring him to serve 75% of his sentence.

[¶3.] On June 26, 2017, Reck was sentenced in Minnehaha County to fifteen

years in the state penitentiary, with five years suspended after he pleaded guilty to

aggravated assault with a dangerous weapon, a class 3 felony. This sentence was

ordered to run concurrent with his prior sentence for aggravated assault against a

law enforcement officer. After sentencing, the Department applied the parole grid

in SDCL 24-15A-32 and included at least one of Reck’s prior non-violent felonies to

determine the aggravated assault was at least his third felony conviction. Under

the grid, the Department calculated Reck would not be parole eligible until he

served 70% of his sentence.

[¶4.] Reck challenged the Department’s parole eligibility calculations for

both of his aggravated assault convictions. Reck did not dispute the classification of

the convictions, or their treatment as violent offenses, but took exception to the

Department’s use of his prior non-violent felonies to increase the parole eligibility

dates under the grid. He asserted that his prior non-violent felony convictions could

not be used to calculate his parole eligibility on his sentences for violent offenses

under the grid in SDCL 24-15A-32. To this end, Reck claimed the parole grid only

required him to serve 50% of his sentence for aggravated assault against a law

enforcement officer, because it was his first violent felony conviction. Similarly, he

argued the parole grid only required him to serve 60% of his sentence for

aggravated assault with a dangerous weapon, since it was his second violent felony

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conviction. The prison warden denied Reck’s challenge to the parole calculations,

and Reck appealed to the BPP.

[¶5.] At a hearing before a panel of the BPP, Reck appeared pro se and

maintained that the Department incorrectly applied the parole grid in SDCL 24-

15A-32. The Department’s Records Administrator, Melinda Johnson, testified to

the Department’s procedure when calculating the parole eligibility date. During

Johnson’s cross-examination, Reck asked what authority permitted the Department

to combine violent and non-violent felonies under the grid in SDCL 24-15A-32.

Johnson responded, “24-15A-16 . . . [p]art of [that statute] states that any felony

conviction in this state, any other state[,] or the United States shall be considered to

determine the initial parole date under [SDCL 24-15A-32].” The BPP panel

affirmed the Department’s calculations, stating in its findings of fact and

conclusions of law, “[f]or purposes of determining the percentage of a sentence an

offender must serve before reaching his initial parole date, SDCL 24-15A-32 and 24-

15A-16 must be read together . . . .”

[¶6.] Reck appealed the BPP decision to the circuit court. Following a

hearing, the circuit court denied Reck’s claim of error in the Department’s parole

calculations, stating: “Reck’s argument ignores the plain language of SDCL 24-15A-

16 which requires: “. . . Any felony conviction in this state, . . . shall be considered to

determine an initial parole date under Secs. 24-15-4 and 24-15A-32.”

[¶7.] Reck appealed the circuit court’s order and was appointed counsel for

his appeal to this Court. He raises one issue:

Whether the circuit court erred in affirming the
Department’s parole determinations for Reck’s

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aggravated assault sentences under the grid in SDCL 24-
15A-32.

Standard of Review

[¶8.] Reck filed this administrative appeal from the circuit court under

SDCL 1-26-37. See Rowley v. S.D. Bd. of Pardons & Paroles, 2013 S.D. 6, ¶ 5,

826 N.W.2d 360, 363. “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 Brant v. S.D. Bd. of Pardons & Paroles, 2012 S.D.

12, ¶ 7, 809 N.W.2d 847, 849). Since the sole question before this Court is one of

statutory interpretation, we review this case de novo. Id.; State v. Jucht, 2012 S.D.

66, ¶ 22, 821 N.W.2d 629, 634.

Analysis & Decision

[¶9.] Reck argues the Department improperly considered his prior non-

violent felony convictions to lengthen his prison time until he is eligible for parole.

He claims that SDCL 24-15A-32 does not permit the Department to combine his

non-violent felony convictions with his violent felony convictions when determining

parole eligibility under the grid. Reck also argues that the Department’s

calculations require reading new language into SDCL 24-15A-32 and, at the very

least, SDCL 24-15A-32 is ambiguous as to whether the Department may use

convictions for non-violent offenses to increase the time to parole for a violent

offense. He deduces that this conclusion requires us to apply the rule of lenity and

interpret the statute in his favor. See United States v. Smith, 756 F.3d 1070, 1075

(8th Cir. 2014) (“The rule of lenity requires a criminal statute be construed in a

defendant’s favor where, ‘after considering text, structure, history, and purpose,

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there remains a grievous ambiguity or uncertainty in the statute, such that the

Court must simply guess as to what Congress intended.’”) (quoting United States v.

Castleman, 572 U.S. 157, 172-73, 134 S. Ct. 1405, 1416, 188 L. Ed. 2d 426 (2014)).

[¶10.] The Department responds that there is no ambiguity and the statutory

grid considers all felony convictions, whether violent or non-violent, to determine a

parole eligibility date. The Department further points to the language in SDCL 24-

15A-16, which requires any felony convictions to be considered to determine an

initial parole date.

[¶11.] “In conducting statutory interpretation, we give words their plain

meaning and effect, and read statutes as a whole.” State v. Bowers, 2018 S.D. 50,

¶ 16, 915 N.W.2d 161, 166 (quoting Expungement of Oliver, 2012 S.D. 9, ¶ 6,

810 N.W.2d 350, 352). “[I]f the words and phrases in the statute have plain

meaning and effect, we should simply declare their meaning and not resort to

statutory construction.” State v. Bariteau, 2016 S.D. 57, ¶ 15, 884 N.W.2d 169, 175

(quoting Dale v. Young, 2015 S.D. 96, ¶ 6, 873 N.W.2d 72, 74). “The intent of a

statute is determined from what the Legislature said, rather than what we think it

should have said.” Engesser v. Young, 2014 S.D. 81, ¶ 22 n.1, 856 N.W.2d 471, 478

n.1 (quoting Esling v. Krambeck, 2003 S.D. 59, ¶ 6, 663 N.W.2d 671, 676).

“Therefore, the starting point when interpreting a statute must always be the

language itself.” State v. Livingood, 2018 S.D. 83, ¶ 31, 921 N.W.2d 492, 499.

[¶12.] A plain reading of SDCL 24-15A-16 and SDCL 24-15A-32 shows that

no ambiguity exists in the language of these statutes and the Department properly

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applied the parole grid. Initially, SDCL 24-15A-16 defines the prior felonies to be

considered in calculating parole under SDCL 24-15A-32. SDCL 24-15A-16 states,

[t]he determination of whether a prior offense is a felony for the
purposes of this chapter shall be determined by whether it is a
felony under the laws of this state, any other state, or the
United States at the time of conviction of the offense. Any felony
conviction in this state, any other state, or the United States shall
be considered to determine an initial parole date under §§ 24-15-
4 and 24-15A-32.

(Emphasis added.) “As a rule of statutory construction, we have determined

that ‘when shall is the operative verb in a statute, it is given obligatory or

mandatory meaning.’” Discover Bank v. Stanley, 2008 S.D. 111, ¶ 21,

757 N.W.2d 756, 762 (quoting In re J.H., 1999 S.D. 36, ¶ 31, 590 N.W.2d 473,

479). SDCL 24-15A-16 then, not only permits, but requires the Department to

consider “[a]ny prior felony conviction in this state . . .” to determine parole

eligibility under the grid in SDCL 24-15A-32.

[¶13.] SDCL 24-15A-32 tasks the Department with calculating an initial

parole date “by applying the percentage indicated in the following grid to the full

term of the inmate’s sentence[.]” The grid considers three factors to arrive at a

percentage of the penitentiary sentence to be served before an inmate is parole

eligible. Two of the factors are on the vertical axis of the grid and consider the

seriousness of the felony offense for which parole is being calculated. These two

factors are the felony classification of the offense and its categorization as either

“nonviolent” or “violent.” The third factor, on the horizontal axis of the grid,

considers the number of prior felony convictions committed by the inmate, up to a

maximum of three. The horizontal axis is simply labeled “Felony Convictions.” The

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horizontal axis does not differentiate between the classification or categorization of

an inmate’s previous felony convictions to arrive at a parole calculation.

[¶14.] Contrary to Reck’s argument, the applicable statutes for determining

parole eligibility are not ambiguous or unclear. Reck’s argument that the statutes

could be interpreted in two different ways ignores the legislative mandate in

SDCL 24-15A-16 to consider “[a]ny felony conviction in this state . . .” to calculate

parole. To accept Reck’s argument would also require reading additional language

into the horizontal axis of the grid in SDCL 24-15A-32. “This court assumes that

statutes mean what they say and that legislators have said what they meant.”

Brim v. S.D. Bd. of Pardons & Paroles, 1997 S.D. 48, ¶ 22, 563 N.W.2d 812, 817

(quoting In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D. 1984)).

[¶15.] Reck also argues that a 2019 legislative amendment to SDCL 24-15A-

32 shows that an ambiguity exists in these statutes. The amendment added the

following language to SDCL 24-15A-32:

The application of the violent or nonviolent column of the grid is
based on whether the inmate’s current sentence is for a violent
or nonviolent crime. Any prior felony shall be considered
regardless of whether it is violent or nonviolent when
determining which percentage to apply to the inmate’s parole
date calculation.

2019 S.D. Sess. Laws ch. 119, § 1.2 Reck’s argument presupposes that the

Legislature amended the statute because it was ambiguous. However, an

2. Reck did not raise this argument until his reply brief, which normally bars
our consideration of the issue. See Ellingson v. Ammann, 2013 S.D. 32, ¶ 10,
830 N.W.2d 99, 102. However, Reck submitted his initial brief in November
2018, before the Legislature was in session, so it was not possible for Reck to
have included this argument in his initial brief. The State did not request an
opportunity to respond to this argument in Reck’s reply brief.
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ambiguity exists “where the literal meaning of a statute leads to an absurd or

unreasonable conclusion . . . or when a statute is capable of being understood by

reasonably well-informed persons in either of two or more senses.” Farm Bureau

Life Ins. Co. v. Dolly, 2018 S.D. 28, ¶ 9, 910 N.W.2d 196, 200 (quotations omitted).

Neither of these conditions existed under the plain language of these statutes prior

to the 2019 amendment to SDCL 24-15A-32. The decision by the Legislature to add

language to the statute does not change our reading of the statute as it existed prior

to the amendment. See Expungement of Oliver, 2012 S.D. 9, ¶ 16, 810 N.W.2d 350,

354.

[¶16.] GILBERTSON, Chief Justice, KERN and SALTER, Justices, and

MEIERHENRY, Retired Justice, concur.

Appendix

The grid in SDCL 24-15A-32 provides:

Felony Convictions
Felony Class First Second Third
Non-Violent
Class 6 .25 .30 .40
Class 5 .25 .35 .40
Class 4 .25 .35 .40
Class 3 .30 .40 .50
Class 2 .30 .40 .50
Class 1 .35 .40 .50
Class C .35 .40 .50
Violent
Class 6 .35 .45 .55
Class 5 .40 .50 .60
Class 4 .40 .50 .65
Class 3 .50 .60 .70
Class 2 .50 .65 .75
Class 1 .50 .65 .75
Class C .50 .65 .75
Class B 1.0 1.0 1.0
Class A 1.0 1.0 1.0

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