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Kelley v. South Dakota Board of Pardons and Paroles

Supreme Court of South Dakota

August 5, 2015

COLE KELLEY, Appellant,
v.
SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.

CONSIDERED ON BRIEFS ON MARCH 23, 2015

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE SUSAN M. SABERS Judge

DANIEL K. HAGGAR of Minnehaha County Public Defender’s Office Sioux Falls, South Dakota Attorneys for appellant.

MARTY JACKLEY Attorney General ASHLEY E.H. MCDONALD Department of Corrections Special Assistant Attorney General Sioux Falls, South Dakota Attorneys for appellee.

SEVERSON, JUSTICE

[¶1.] Cole Kelley appeals the revocation of his suspended sentence by the Board of Pardons and Paroles (Board). We affirm.

Background

[¶2.] On April 16, 2007, Kelley was sentenced to seven years in the state penitentiary for possession of a controlled drug or substance with intent to distribute, and five years for committing or attempting to commit a felony with a firearm, to be served consecutive to the possession sentence. He also received a twenty year sentence with ten years suspended for grand theft, to run consecutive to the possession and firearm sentences. Lastly, he received a two year sentence for assault against an officer, to run consecutive to the possession and firearm sentences. The sentencing court suspended ten years on the condition that Kelley "be under the supervision of the Board . . . for ten (10) years upon release from custody" and pay restitution.

[¶3.] On September 19, 2012, Kelley signed a suspended sentence supervision agreement. The agreement required Kelley to "conform to the rules and program requirements of the Department of Corrections, maintain a good disciplinary record and satisfactorily participate in programs as assigned." It also contained the following provision: "I understand and agree that in the event I violate these conditions prior to my suspended sentence commencing, the Board has the authority to revoke the suspended portion and impose the entire sentence." After Kelley signed this agreement, he received twelve major rule infractions. Following a hearing on November 4, 2013, the Board revoked Kelley's suspended sentence for failing to maintain a good disciplinary record. It imposed the original twenty-two year sentence. Kelley appealed the revocation and the circuit court affirmed. Kelley appeals; his sole issue on appeal is whether the Board exceeded its authority by imposing the conditions of the agreement and revoking his suspended sentence upon violations of the Board's conditions.

Standard of Review

[¶4.] SDCL 1-26-37 governs appeals from the Board.[1] Questions of fact are reviewed under the clearly erroneous standard. Austad v. S.D. Bd. of Pardons & Paroles, 2006 S.D. 65, ¶ 8, 719 N.W.2d 760, 764. We review questions of law de novo. Id.

Analysis

[¶5.] Under SDCL 23A-27-18.4, [2] the sentencing court clearly has, at the time of sentencing, the jurisdiction to limit and define conditions for which the Board is authorized to revoke the suspended terms of the sentence. However, absent limitations imposed by the sentencing court, "[w]e have recognized that the Board of Pardons and Paroles may impose conditions on a defendant's suspended sentence in addition to those imposed by the sentencing court so long as the additional conditions are reasonable and not inconsistent with those mandated by the court." Mann v. S.D. Bd. of Pardons & Paroles, 2015 S.D. 13, ¶ 12, 861 N.W.2d 511 (quoting Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768) (internal quotation marks omitted). As in Mann, Kelley does not argue that the conditions are unreasonable, and we need only consider whether the conditions were "not inconsistent" with the sentencing court's conditions. See id.

[ΒΆ6.] Kelley argues that the conditions placed on him by the Board are inconsistent with the sentencing court's condition that he "be under the supervision of the Board . . . for ten (10) years upon release from custody." Once his suspended sentence has been revoked, the full sentence will be served; upon release, he will not be under supervision. However, Kelley does not explain why he could not comply with both the Board's conditions-conforming to the rules and program requirements of the Department of Corrections, maintain a good disciplinary record, and satisfactorily participate in programs as assigned-and the court's condition. Kelley could have complied with both, as the Board's ...


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