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Martin v. South Dakota Board of Pardons and Paroles

December 2, 2009

DARRELL D. MARTIN, 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 GENE PAUL KEAN Judge.

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

CONSIDERED ON BRIEFS ON OCTOBER 5, 2009

[¶1.] Darrell Martin appeals the circuit court's decision affirming the South Dakota Board of Pardons and Paroles (Board). The Board revoked Martin's parole for violating the terms of his parole supervision agreement by being terminated from Glory House and sex offender counseling at Great Plains Psychological Services (Great Plains). We affirm.

FACTS

[¶2.] Martin was serving ten years, with five years suspended, in the state penitentiary for possession of child pornography. Martin was released on parole on June 4, 2008. As a condition of his parole, Martin was required to maintain residence at Glory House in Sioux Falls, an addiction rehabilitation facility, and attend sex offender counseling at Great Plains.

[¶3.] On June 12, 2008, Martin was working in the kitchen of Glory House when an employee claimed to have seen him fondling himself. As a result of this incident, Martin was terminated from Glory House and dismissed from his treatment program at Great Plains. Martin was subsequently returned to the penitentiary and was subject to parole revocation. On July 3, 2008, Martin requested a court-appointed attorney. Martin appeared before a two-member panel of the Board on August 12, 2008, and requested a continuance to obtain court-appointed counsel. A circuit court appointed counsel on August 22, 2008. Martin then appeared before the Board on September 9, 2008, with his attorney and denied the claim he was fondling himself in the kitchen area of Glory House. The Board set a revocation hearing for October 7, 2008, but due to the Board's attorney's illness, the hearing was continued until November 18, 2008. The Board rendered its decision on December 11, 2008, concluding that Martin had violated his parole.

[¶4.] Martin appealed the Board's decision to circuit court on December 15, 2008. The circuit court affirmed the Board's decision. Martin appeals from the circuit court's order affirming the Board.

ISSUES

[¶5.] On appeal, Martin raises several issues concerning his parole revocation. Martin claims the allegations of a parole violation should have been dismissed because a hearing was not conducted within the 90-day time period required by the Board's administrative rules. Martin also claims: the state failed to meet its burden of proof that he violated his parole supervision agreement; the Board's decision that Martin violated his parole supervision agreement was clearly erroneous; the Board's imposition of his suspended sentence was unwarranted, erroneous, arbitrary, and an abuse of discretion; and, he was denied his right to cross-examine one of the witnesses at the hearing.*fn1

STANDARD OF REVIEW

[¶6.] An appeal from the Board is governed by SDCL 1-26-37. Austad v. S.D. Bd. of Pardons & Paroles, 2006 SD 65, ¶8, 719 NW2d 760, 764. "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. (citing Lee v. S.D. Bd. of Pardons & Paroles, 2005 SD 103, ¶6, 705 NW2d 609, 611). We have stated that " [m]atters of discretion are reviewed under an abuse of discretion standard." Id.

We have also noted:

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.

Id. (citing In re Brown, 1997 SD 133, ¶8, 572 NW2d 435, 437); see Acevedo, 2009 SD 45, ¶11, 768 NW2d at 159 (rejecting the contention ...


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