Williams v. South Dakota Board of Pardons & Paroles

#24243-rev-PER CURIAM
2007 SD 61

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

MICHAEL W. WILLIAMS, Appellee,

v.

SOUTH DAKOTA BOARD OF
PARDONS AND PAROLES, Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
CHARLES MIX COUNTY, SOUTH DAKOTA

* * * *

HONORABLE BRUCE V. ANDERSON
Judge

* * * *

LAWRENCE E. LONG
Attorney General

FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota Attorneys for appellant.

JASON W. SHANKS of
May and Johnson
Sioux Falls, South Dakota Attorney for appellee.

* * * *

CONSIDERED ON BRIEFS
ON MARCH 19, 2007

OPINION FILED 6/27/07
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PER CURIAM

[¶1.] The Board of Pardons and Paroles (Board) appeals the circuit court's

order reversing its decision to deny Michael Williams credit for two years served on

supervised release.

FACTS

[¶2.] Williams was convicted of sexual contact with a minor and sentenced

to serve ten years in the penitentiary. However, nine of the ten years were

suspended and Williams was placed under the supervision of the Board. Williams

signed an agreement on June 16, 2000, setting forth various conditions of his

suspended sentence. The relevant condition at issue here provided: "I will keep my

Parole Agent informed of my whereabouts and of all activities participated in and

submit such reports as required." Williams was also required to complete

treatment in a sex offender program.

[¶3.] On October 28, 2005, Williams' parole agent, David Bruns, prepared a

violation report indicating on October 21, 2005, he advised Williams to surrender to

the Charles Mix Sheriff's office by 5 p.m. that day for failing to complete a required

sex offender program. Williams did not turn himself in that day. Williams testified

he was at his grandfather's funeral in Avon, South Dakota, and did not have a

vehicle. Bruns made attempts to contact Williams and also his family members.

Williams did not return Bruns' phone calls, maintain any contact with him or

appear for a scheduled meeting. Williams was located on November 2, 2005, when

he was hospitalized for an attempted suicide.

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[¶4.] At the revocation hearing, Bruns indicated that Williams was "a

constant stream of problems" and a "high-maintenance" parolee. Prior incidences

included drinking and drug use, leaving while on house arrest, curfew violation,

failing to notify of residence changes, residing with a minor child without prior

approval and missed sexual offender classes. The Board found that Williams had

violated the conditions of his suspended sentence and imposed the original

sentence. In addition, the Board determined that two years of the more than five

years that Williams was on supervision would not be credited against the sentence.

[¶5.] Williams appealed the Board's decision to circuit court challenging the

decision to revoke the suspended sentence as well as the denial of two years credit

while he was on supervision. The circuit court upheld the Board's decision finding

it did not abuse its discretion in revoking the suspended sentence. However, the

circuit court reversed the Board's decision denying Williams credit for two years

spent under supervision reasoning the denial was not commensurate with Williams'

conduct leading to revocation. The Board appeals contending the circuit court

erroneously substituted its own judgment for that of the Board.

ANALYSIS

[¶6.] Whether the Board erred in denying Williams credit for two
years spent on supervised release. 1

1. As a threshold matter, Williams contends the Board has waived its right to
appeal by only appealing the trial court's determination that the Board
abused its discretion and not appealing the determination the Board was
clearly erroneous in denying the credit. Those two holdings are part and
parcel of each other. Reviewing for an abuse of discretion includes an inquiry
into the authority for the decision as well as the facts supporting the decision.
See Iverson v. Wall Board of Education, 522 NW2d 188, 192 (SD 1994).
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[¶7.] In an appeal from an agency decision, “[w]e review questions of fact

under the clearly erroneous standard; mixed questions of law and fact and

questions of law are reviewed de novo. Matters of discretion are reviewed under an

abuse of discretion standard.” Lee v. Board of Pardons & Paroles, 2005 SD 103, ¶ 6,

705 NW2d 609, 611 (citations omitted). Further,

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.

Austad v. Board of Pardons & Paroles, 2006 SD 65, ¶ 8, 719 NW2d 760, 764

(citations omitted).

[¶8.] SDCL 24-15A-28 governs revocation or modification of parole. That

statute provides:

If the board is satisfied that any provision of § 24-15A-27
has been violated, it may revoke the parole and reinstate
the terms of the original sentence and conviction or it may
modify conditions of parole and restore parole status. In
addition, the board may order the denial of credit for time
served on parole. If the board does not find that the
provisions of § 24-15A-27 have been violated, the board
may restore the parolee to the original or modified terms
and conditions of the parolee's parole.

SDCL 24-15A-28. Williams has not filed a notice of review or contested the circuit

court decision upholding the revocation of parole. The only question is whether the

Board abused its discretion in denying credit for two of the five years Williams was

on supervised release.

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[¶9.] Bruns, the parole agent, testified before the Board that based on

Williams' conduct and history he was recommending that Williams "lose a

minimum of two years of his five years of street time." This recommendation was

also contained in a violation report detailing Williams' prior incidents while on

supervision; the sanctions imposed for that conduct and the facts supporting this

most recent violation. The same two year recommendation was also provided by

Bruns' supervisor. The prior sanctions imposed against Williams included:

requiring further counseling, a verbal reprimand, adjustments in the required

amount of contacts with the agent, establishing a curfew, requiring Williams to

prepare a daily log and written reports, being placed on house arrest, and imposing

jail time. The Special Assistant Attorney General argued that the Board should

deny credit for three years of the supervised time based on Williams' conduct. The

Board ultimately agreed with the recommendation of Bruns and denied credit for

two years of the supervised time. Given the fact Bruns was the witness with the

most contact with Williams, it is not surprising that the Board would accord a

degree of deference to his recommendation.

[¶10.] In reversing the Board's decision, the circuit court re-weighed evidence

concerning the severity of Williams' failure to maintain contact and highlighted the

fact that although Williams failed to attend the sexual offender treatment program

and was dropped, the instructor enjoyed having him there when he attended. The

circuit court also narrowed its focus and determined that each prior violation was

dealt with by an appropriate sanction and gave those incidents little weight

cumulatively in reviewing the Board's decision. Moreover, the circuit court found

"Williams' suspended sentence violation stems from his living in a state of poverty
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where he could not afford adequate transportation, the death of his grandfather,

and other unfortunate circumstances that were partially beyond his control."

Rather than providing deference to the Board, these findings represent a circuit

court's second judgment on what the appropriate sanction should have been.

[¶11.] As the United States Supreme Court has observed:

Implicit in the system's concern with parole violations is
the notion that the parolee is entitled to retain his liberty
as long as he substantially abides by the conditions of his
parole. The first step in a revocation decision thus
involves a wholly retrospective factual question: whether
the parolee has in fact acted in violation of one or more
conditions of his parole. Only if it is determined that the
parolee did violate the conditions does the second
question arise: should the parolee be recommitted to
prison or should other steps be taken to protect society
and improve chances of rehabilitation? The first step is
relatively simple; the second is more complex. The second
question involves the application of expertise by the
parole authority in making a prediction as to the ability of
the individual to live in society without committing
antisocial acts. This part of the decision, too, depends on
facts, and therefore it is important for the board to know
not only that some violation was committed but also to
know accurately how many and how serious the violations
were. Yet this second step, deciding what to do about the
violation once it is identified, is not purely factual but also
predictive and discretionary.

Morrissey v. Brewer, 408 US 471, 479-80, 92 SCt 2593, 2599-2600, 33 LEd2d 484

(1972) (emphasis added). Therefore, a reviewing court "must be wary not to retry a

case and make new judgments based upon a cold record." Iverson, 522 NW2d at

193. To support a reversal, the record must establish the Board's decision was an

abuse of discretion, not merely a decision which the circuit court "might have made

differently if done so as the initial fact finder." Id. Because the circuit court

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exceeded its appellate role, we reverse and remand for the circuit court to enter

judgment affirming the Board’s decision.

[¶12.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER

and MEIERHENRY, Justices, participating.

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