APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE PETER H. LIEBERMAN Judge.
The opinion of the court was delivered by: Konenkamp, Justice
ARGUED ON FEBRUARY 17, 2009
[¶1.] After petitioner pleaded guilty, the circuit court gave him an indeterminate sentence, leaving to the Board of Pardons and Paroles the discretion to set petitioner's actual term of years. The Parole Board held a hearing and imposed the maximum term of the indeterminate sentence. Petitioner sought a writ of habeas corpus alleging that he was denied his right to court-appointed counsel before the Parole Board at the indeterminate sentencing hearing. The habeas court agreed and ordered the Parole Board to hold a second hearing affording petitioner a right to court-appointed counsel. On appeal by the State, we reverse because a Parole Board hearing setting the term of an indeterminate sentence is an administrative action in which an inmate has no right to court-appointed counsel.
[¶2.] Petitioner Rodney Cowans pleaded guilty to felony child abuse in violation of SDCL 26-10-1. On March 17, 2003, a circuit judge gave him an indeterminate sentence of not less than five years and not more than ten years. See SDCL 23A-27-37 (repealed in 2004). After sentencing, petitioner's court-appointed attorney advised him that the Parole Board would hold a hearing at which petitioner would appear and that the Parole Board would impose a sentence within the range set by the court. On March 20, 2003, counsel informed petitioner in writing that "South Dakota law does not give you the right to have an attorney at that hearing. If you wish to preserve that issue for appeal, be sure to ask for one at each proceeding." On October 31, 2003, petitioner was advised in writing by the Parole Board in relevant part as follows:
2. That I have the right to appear with my attorney (retained by me).
3. That if I cannot afford an attorney, I may request the sentencing court to appoint an attorney to represent me. The request may or may not be granted by the Court.
4. I further understand that an attorney may help in the presentation of my case to the Board at the above hearing.
5. I understand that even in the event I do not have an attorney, that I have the right to be present at the above hearing, and to present written letters and statements for the Board to consider in this matter, and that the Board may also consider letters, statements and similar kinds of non-testimonial evidence from victims and the interested persons.
A. I request that counsel be appointed for me. or
B. I do not request the appointment of counsel.
The advisement required petitioner to initial each sentence. He did. He also initialed "B," indicating that he did not request the appointment of counsel.
[¶3.] At the indeterminate sentencing hearing on November 21, 2003, the Parole Board orally questioned petitioner about whether he desired to have representation. Petitioner was asked, "It's the duty of the Parole Board at this time, Mr. Cowans, to set [your] sentence. You're not represented by a lawyer?" Petitioner responded, "No." The Parole Board then asked, "Do you wish to be?" Petitioner replied, "No." The hearing continued. Petitioner spoke on his own behalf. Hope Matchan of the State's Attorney's Office in Minnehaha County spoke on the State's behalf. She recommended that petitioner's sentence be set for the ...