#27156-a-GAS
2015 S.D. 70

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                     ****

COLE KELLEY,                                 Appellant,

      v.

SOUTH DAKOTA BOARD
OF PARDONS AND PAROLES,                      Appellee.



                                 ****
                   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.




                                     ****


                                             CONSIDERED ON BRIEFS ON
                                             MARCH 23, 2015

                                             OPINION FILED 08/05/15
#27156

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


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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



1.      SDCL 1-26-37 provides:
             An aggrieved party or the agency may obtain a review of any
             final judgment of the circuit court under this chapter by appeal
             to the Supreme Court. The appeal shall be taken as in other
             civil cases. The Supreme Court shall give the same deference to
             the findings of fact, conclusions of law, and final judgment of the
             circuit court as it does to other appeals from the circuit court.
             Such appeal may not be considered de novo.

2.      SDCL 23A-27-18.4, in relevant part, provides:
             Upon conviction, the sentencing court may suspend any portion
             of a penitentiary sentence subject to conditions or restrictions as
             the court may impose. The suspension order or judgment can be
             made only in the court in which the conviction occurred. A
             defendant with a partially suspended penitentiary sentence is
             under the supervision of the Department of Corrections and the
             Board of Pardons and Paroles. The board is charged with the
                                                                   (continued . . .)
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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.

[¶6.]        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 conditions do not preclude his



_________________________________________________
(. . . continued)
               responsibility for enforcing the conditions imposed by the
               sentencing judge, and the board retains jurisdiction to revoke
               the suspended portion of the sentence for violation of the terms
               of parole or the terms of the suspension.

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ability to be released under supervision. Therefore, the Board’s conditions are not

inconsistent with those placed on Kelley by the sentencing judge.

[¶7.]        It is the revocation of the suspended portion of his sentence, the

punishment for violation of the conditions—rather than the conditions themselves—

that negates the court’s condition of supervision upon release. Kelley asserts that

the Board does not have authority to revoke an inmate’s suspended sentence for

violations of institutional rules. He notes that revocation of a suspended sentence is

not listed among the seven punishments authorized under SDCL 24-15A-4, which

grants the Department of Corrections authority to punish “[a]ny inmate violating

the rules or institutional policies[.]” 3 However, we have recently rejected such an

argument, explaining that “the Board’s authority to revoke the suspended sentence

does not derive from SDCL 24-15A-4; rather it derives from SDCL 23A-27-18.4.”

Mann, 2015 S.D. 13, ¶ 17, 861 N.W.2d at 517. Further, as in Mann, Kelley

“acknowledged when he signed the agreement that a violation of the suspended

sentence supervision agreement may result in the revocation of the suspended


3.      SDCL 24-15A-4 provides:
             Any inmate violating the rules or institutional policies is subject
             to any of the following disciplinary sanctions:
                     (1)   Disciplinary segregation;
                     (2)   Imposition of fines;
                     (3)   Loss of privileges;
                     (4)   Additional labor without compensation;
                     (5)   Referral to various programs;
                     (6)   Transfer to a more secure housing unit;
                     (7)   Change in classification status.
             No corporal punishment may be inflicted upon inmates in the
             penitentiary.


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portion of his sentence.” See id. As the circuit court noted, “It would be illogical to

conclude that a sentencing court’s act of ordering a period of supervision in

conjunction with a partially suspended sentence operates as a prohibition on the

revocation of suspended time itself.” Therefore, the Board acted within its

authority. We affirm.

[¶8.]        GILBERTSON, Chief Justice, and WILBUR, Justice, concur.

[¶9.]        ZINTER and KERN, Justices, concur specially.



ZINTER, Justice (concurring specially).

[¶10.]       Under our recent decision in Mann v. South Dakota Board of Pardons

& Paroles, 2015 S.D. 13, 861 N.W.2d 511, the Board of Pardons and Paroles’

revocation of the circuit court’s suspended sentence must be affirmed. I write to

suggest that this Court’s cases may have strayed from constitutional and statutory

limitations on the Board’s power to condition and revoke a circuit court’s suspended

sentence. Because this question has not been briefed and argued, we should

consider it in a future case when it is properly presented.

[¶11.]       The South Dakota Constitution delegates to the circuit courts the

authority to suspend and revoke criminal sentences. See S.D. Const. art. V, § 5.

But defendants sentenced to the state penitentiary are under the exclusive

supervision of the executive branch, specifically the Department of Corrections,

which includes the Board of Pardons and Paroles (Board). See S.D. Const. art. IV,

§ 9; SDCL 1-15-1; SDCL 1-15-1.4. The judicial suspended sentence power and the

executive supervision power may overlap when a defendant serving a suspended


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sentence under court-imposed conditions is involved in misconduct while

incarcerated in the penitentiary. For the last thirty years, this Court has

frequently, and sometimes inconsistently, wrestled with determining whether the

Board was authorized to revoke suspended sentences for violations of suspended

sentence conditions imposed by the Board. 4

[¶12.]         In this case, the Board conditioned and revoked Kelley’s court-imposed

suspended sentence for a violation of penitentiary disciplinary rules. But in

apparent deference to Article V, § 5 of the South Dakota Constitution, the governing

statute only authorizes the Board to revoke suspended sentences for violations of

“conditions imposed by the sentencing judge,” and compliance with penitentiary

disciplinary rules was not a condition imposed by the sentencing judge. See SDCL




4.       See State v. Huftile, 367 N.W.2d 193, 197 (S.D. 1985) (concluding that the
         Board “has been granted the power to revoke when the inmate has been
         paroled by virtue of a suspended sentence”); Turo v. Solem, 427 N.W.2d 843,
         846 (S.D. 1988) (concluding that Board had the authority to revoke the
         suspended sentence when defendant failed to report to parole officer); Smith
         v. S.D. Bd. of Pardons & Paroles, 515 N.W.2d 219, 225 (S.D. 1994)
         (concluding that the Board did not have authority to revoke defendant’s
         suspended sentence for a noncriminal activity—the consumption of alcohol);
         Robinson v. Leapley, 515 N.W.2d 216, 219 (S.D. 1994) (per curium)
         (concluding that Board exceeded its authority when it revoked defendant’s
         suspended sentence for violation of parole conditions—failure to keep his
         parole agent advised of his whereabouts); Grajczyk v. S.D. Bd. of Pardons &
         Paroles, 1999 S.D. 149, ¶ 16, 603 N.W.2d 508, 513 (concluding that the Board
         properly revoked the suspended portion of defendant’s sentence when he
         committed a felony in prison); Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768-
         69 (concluding that the Board had the authority to revoke defendant’s
         suspended sentence for violating two penitentiary conditions); Mann, 2015
         S.D. 13, ¶ 14, 861 N.W.2d at 516 (concluding that the Board could revoke an
         inmate’s suspended sentence for “behavioral” violations of penitentiary rules
         although the court only imposed “financial” conditions).

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23A-27-18.4 (providing in relevant part: “The board is charged with the

responsibility for enforcing the conditions imposed by the sentencing judge, and the

board retains jurisdiction to revoke the suspended portion of the sentence for

violation of the terms of parole or the terms of the suspension.” (emphasis added)).

[¶13.]       Notwithstanding this limitation, under this Court’s current precedent,

the Board did not exceed its authority. The Board did not exceed its authority

because the Board’s and the court’s conditions were “not inconsistent.” See Mann,

2015 S.D. 13, ¶¶ 15, 17, 861 N.W.2d at 516-17 (noting that the respective conditions

were “not inconsistent,” and therefore, the board had discretion under SDCL 23A-

27-18.4 to revoke the inmate’s suspended sentence for violating penitentiary rules).

In applying the “not inconsistent” test, we explained that the Board had authority

because “the [behavioral] conditions imposed by the Board did not contradict or

interfere with Mann’s obligation to pay restitution to the victims and Brookings

County[,]” the court-imposed conditions of the suspended sentence. Id. ¶ 14, 861

N.W.2d at 516 (emphasis added). Or, as the Court explains today, the revocation

was authorized because it was possible for the inmate to comply both the sentencing

court’s and the Board’s conditions. See supra ¶ 6. There is, however, a more

fundamental question: whether this application of the “not inconsistent” test is

proper under the limitations in SDCL 23A-27-18.4 and the Constitution.

[¶14.]       Both this Court and the Legislature have attempted to delineate who

supervises inmates, what conditions may be placed on their suspended sentences,

and who may revoke their suspended sentences. Our cases have both restricted and

expanded the Board’s authority to revoke a circuit court’s suspended sentence for a


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violation of Board conditions not explicitly imposed by the sentencing judge. See

supra ¶ 11 n.4. As is relevant in this case, the Board’s authority to condition and

revoke a court’s suspended sentence has developed through three cases.

[¶15.]         In 1983, this Court held that there is an implied condition in every

suspended sentence that the defendant may not violate the law. State v. Holter, 340

N.W.2d 691, 693 (S.D. 1983). Therefore, if an inmate commits a criminal offense, a

court’s suspended sentence may be revoked even if that condition was not imposed

by the sentencing judge. Id. Then in 1988, this Court recognized the Board’s

authority to impose additional conditions as long as they are reasonable and

“consistent” with those imposed by the court. Turo, 427 N.W.2d at 846. In Smith,

without explanation, this Court rephrased the Turo language to permit additional

conditions as long as they are reasonable and “not inconsistent” with those required

by the court. 5 Smith, 515 N.W.2d at 224. This unexplained language change was

carried over without comment in Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768 and

Mann, 2015 S.D. 13, ¶ 12, 861 N.W.2d at 515. Although this change could be

viewed as semantic rather than substantive, it has resulted in a significant

expansion of the Board’s authority.




5.       On the same day Smith was published, this Court also issued a per curium
         opinion, Robinson v. Leapley, 515 N.W.2d 216, 218 (S.D. 1994), with the same
         interpretation of Turo as Smith. Robinson stated: “In Turo, this Court held
         that the Board of Pardons and Paroles may impose conditions on a suspended
         sentence in addition to those imposed by the sentencing court if the
         additional conditions are reasonable and not inconsistent with those imposed
         by the sentencing court.” Id. (emphasis added).


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[¶16.]         As Mann and this case demonstrate, current application of this

unexplained change in language has stretched SDCL 23A-27-18.4 and compromised

the separation of judicial and executive powers. Under these cases, there is no real

limit on conditions the Board may impose. 6 There is no real limit because under the

“not inconsistent” test, the Board may impose any condition as long the inmate can

comply with both the court’s and the Board’s conditions. See supra ¶ 6 (“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 conditions. Kelley could have complied with both, as the Board’s

conditions do not preclude his ability to be released under supervision.”).

[¶17.]         Effectively limitless Board conditioning of court-suspended sentences

is not consistent with the language of SDCL 23A-27-18.4 or with the division of

powers delineated in the Constitution. Consequently, our cases should be re-

examined in a future case where the parties have briefed the statutory and

constitutional limits on the authority of the executive to condition and revoke a

court’s suspended sentence. This should include, but not be limited to, the question

whether Smith’s “reasonable and not inconsistent” test has resulted in an improper




6.       The condition must also be reasonable. “We 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, 2015 S.D. 13, ¶ 12, 861 N.W.2d at 515
         (emphasis added) (quoting Austad, 2006 S.D. 65, ¶ 22, 719 N.W.2d at 768).
         But reasonableness is a separate independent inquiry. See id.

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expansion of the authority of the executive to condition and revoke a circuit court’s

suspended sentence.

[¶18.]       KERN, Justice, joins this special writing.




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