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Acevedo v. South Dakota Board of Pardons and Paroles

June 17, 2009

ESEQUIEL ACEVEDO, APPELLANT,
v.
SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE GLEN A. SEVERSON Judge.

The opinion of the court was delivered by: Zinter, Justice

CONSIDERED ON BRIEFS ON APRIL 27, 2009

[¶1.] Esequiel Acevedo was sentenced to two years in the penitentiary for failure to register as a sex offender. He was subsequently released and placed on parole. After allegedly violating two conditions of his release, the Board of Pardons and Paroles (Board) revoked his parole. Acevedo appeals raising issues regarding the burden of proof applicable in parole revocations, the sufficiency of the evidence, and the time in which he would next be eligible for parole.

Facts and Procedural History

[¶2.] On May 28, 2008, Acevedo was released from the Sioux Falls penitentiary and placed on parole. On the same day Acevedo traveled from Sioux Falls to Rapid City, met with his parole agent, John Clemens, and signed a Parole Board Supervision Agreement. Condition 13a of the Agreement prohibited Acevedo from purchasing, possessing, or consuming any beverage containing alcohol. Condition 13f prohibited Acevedo from using, viewing, purchasing, or possessing any form of pornography.

[¶3.] After meeting with Clemens, Acevedo went to the Rapid City Police Department where he picked up what has been described in the record as his "evidence bag." Acevedo then went to the courthouse and picked up what have been described as his "court clothes." After leaving the courthouse, Acevedo rented a motel room and placed his clothes and the evidence bag in the room. He then went to a friend's home for supper and admittedly drank three and one-half cans of beer. Sharon Tail arrived at some point in the evening, and Acevedo and Tail walked back to Acevedo's motel room.

[¶4.] Later that same evening, Clemens conducted a random check of Acevedo at his motel. Clemens knocked and announced that he was a parole agent. Because Acevedo would not open the door, Clemens called Acevedo from the hotel office and asked him to open the door. Acevedo initially resisted but ultimately complied. According to Clemens, Acevedo's breath smelled strongly of alcohol. A portable breath test revealed a blood alcohol concentration of .16 percent alcohol by weight. Acevedo admitted to drinking three and one-half cans of beer. A search of Acevedo's room revealed a full 40-ounce bottle of malt liquor. A videotape marked with an "X" was also found in his evidence bag. Clemens testified that he asked Acevedo if he knew whether the videotape was pornographic, and Acevedo replied that the videotape "contains lesbian pornographic material." Acevedo was placed in custody for alleged parole violations involving the consumption of alcohol and the possession of pornography.

[¶5.] The Board held a revocation hearing on August 12, 2008. The videotape was received into evidence. Acevedo testified that he assumed the tape was pornographic because it had an "X" on the label. Clemens testified that he had viewed the videotape and it was pornographic. Clemens further testified regarding the evidence of alcohol possession and consumption. The Board found, by the "reasonably satisfied" standard, that Acevedo had violated his conditions of release, and it revoked his parole. In its findings of fact, the Board found:

The [Board] is reasonably satisfied that Acevedo violated his parole supervision agreement "13a. I will not purchase possess or consume any beverage containing alcohol, to include beer, wine, and those beverages labeled as 'non-alcohol'. (Non-alcohol beer, champagne, etc.)" by consuming alcohol to the extent that his blood alcohol content registered .16 on the portable breath test and by having a full bottle of King Cobra malt liquor in his possession.

The [Board] is reasonably satisfied that Acevedo violated his parole supervision agreement "13f. I will not use, view, purchase or have in my possession any form of pornography or erotica including, but not limited to books, magazines, photographs, films, video tapes, live entertainment or computer internet" by having a VHS video tape of adult pornography in his possession.

The Board concluded:

The [Board] is reasonably satisfied that [ ] Acevedo does not have the ability to live in society without committing antisocial acts. Now, therefore, the [Board] concludes . . . that the [Board] should revoke [ ] Acevedo's parole.

[ΒΆ6.] In affirming the Board, the circuit court first concluded that "[t]he burden of proof at a parole revocation hearing is whether the Board is reasonably satisfied that the parolee . . . has violated the regulations or restriction[s] placed upon the parolee by the Board[.]" The court then concluded that "[t]he evidence was sufficient to reasonably satisfy the Board that Acevedo violated ...


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