Krukow v. South Dakota Board of Pardons & Paroles

#23853-a-JKK

2006 SD 46

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JASON D. KRUKOW, Petitioner and Appellant,

v.

SOUTH DAKOTA BOARD
OF PARDONS AND PAROLES, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN K. CALDWELL
Judge

* * * *

STEVEN R. BINGER of
Binger Law Office Attorney for petitioner
Sioux Falls, South Dakota and appellant.

LAWRENCE E. LONG
Attorney General

JOHN M. STROHMAN
Assistant Attorney General Attorneys for respondent
Pierre, South Dakota and appellee.

* * * *

CONSIDERED ON BRIEFS
ON APRIL 24, 2006

OPINION FILED 05/17/06
#23853

KONENKAMP, Justice

[¶1.] For his conviction on grand theft, petitioner was sentenced to ten years

in the penitentiary, with nine years and six months suspended on the condition of

good behavior. More than five years after he was released on his suspended

sentence, petitioner breached the terms of his release. His suspended sentence was

revoked by the Board of Pardons and Paroles. The Board also denied him credit for

the time he spent on release, imposing the entire suspended sentence. Petitioner

claims that the Board had no jurisdiction to suspend his sentence and was not

empowered to deny him credit for the time spent while he was released under

supervision. We conclude that the Board had both the jurisdiction and the power to

act as it did.

Background

[¶2.] Petitioner, Jason D. Krukow, pleaded guilty to grand theft in October

1998. He was sentenced on November 10, 1998, to ten years in prison, with all but

six months suspended. His sentence was to run concurrently with a penitentiary

sentence he was currently serving in Minnesota. Upon commencement of his

suspended sentence, the court required Krukow to “execute and deliver to the South

Dakota Board of Pardons and Paroles . . . such Suspended Sentence Agreement,

Parole Agreement, or other Supervision Agreement, as the Board may deem

necessary, appropriate, or advisable for [his] supervision . . . and which agreements

may thereafter be modified as the Board may determine necessary, appropriate, or

advisable.”

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[¶3.] According to Krukow’s prison records, on March 8, 1999, he was

released on parole. On May 10, 1999, he was released under his suspended

sentence. By the terms of his supervision agreement, the Board was empowered to

supervise him under SDCL 23A-27-19. In the event he violated his agreement, the

Board could revoke the suspended portion of his sentence. The agreement also

provided that he “may not be given credit for time spent on the suspended

sentence.”

[¶4.] On August 10, 2004, Krukow was charged in Minnesota with two

felony counts of receiving stolen property. The next day his urinalysis proved

positive and he admitted to having used marijuana and methamphetamine.

Accordingly, the South Dakota authorities were notified. South Dakota Parole

Services issued a violation report, and Krukow was returned to South Dakota.

[¶5.] In its notice of hearing, the Board alleged that Krukow violated his

agreement to “obey all Municipal, County, State and Federal Laws” and “not

purchase, possess or use marijuana, hallucinatory drugs, narcotics, controlled

substances, mood altering drug/chemicals or drug paraphernalia.” At the Board

hearing, Krukow, who was represented by counsel, entered pleas of “no contest” to

the allegations. The Board concluded that he violated the terms of his supervision

agreement and revoked the suspended portion of his ten-year sentence. The Board

further denied Krukow credit for his time while on release on his suspended

sentence.

[¶6.] Krukow appealed the Board’s decision to the circuit court on the

grounds that the Board had no jurisdiction to revoke his suspended sentence and no

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power to deny him credit for his “street time.” The circuit court affirmed the

Board’s decision in all respects. On appeal to this Court, Krukow advances the

same argument.

Analysis and Decision

[¶7.] Although our standard of review under SDCL 1-26-37 remains

deferential to factual findings, Krukow is challenging the Board’s legal authority;

therefore, our review in this case is de novo. Wendell v. S.D. Dept. of Transp., 1998

SD 130, ¶5, 587 NW2d 595, 597; see also Boehrns v. S.D. Bd. of Pardons & Paroles,

2005 SD 49, ¶5, 697 NW2d 11, 12-13.

1. Jurisdiction

[¶8.] Krukow does not dispute that he violated the conditions of his

supervision agreement. Instead, he contends that he was not under the Board’s

jurisdiction at the time the violations occurred. According to Krukow, his November

1998 judgment does not explicitly state how long he was to remain on supervised

release, and thus the Board did not have the power to revoke his suspended

sentence nearly six years after he was sentenced. The Board, on the other hand,

claims that a plain reading of Krukow’s sentence demonstrates that the sentencing

court “expected the suspended sentence to last nine years and six months.”

[¶9.] At his revocation hearing, Krukow did not challenge the Board’s

jurisdiction to impose the remainder of his suspended sentence. However, we will

consider the issue because questions of jurisdiction can be raised and considered at

any time. Wells v. Wells, 2005 SD 67, ¶11, 698 NW2d 504, 507 (citing Reaser v.

Reaser, 2004 SD 116, ¶27, 688 NW2d 429, 437 (citations omitted)). While Krukow

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is correct that the trial court’s sentence does not explicitly state the time Krukow

will be subject to the Board’s supervision, he cites no authority for the conclusion

that absent such a provision the Board has no jurisdiction. Nevertheless, he insists

that this Court cannot assume that the sentencing court meant to place Krukow on

supervision for the entire time of his suspended sentence.

[¶10.] Once a defendant is released on a suspended sentence, the Board has

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

the [B]oard retains jurisdiction to revoke the suspended portion of the sentence for

violation of the terms of suspension.” SDCL 23A-27-19. Krukow was sentenced to

ten years. Then, on the condition that he adhere to certain terms, the court

suspended the execution of nine years and six months of his sentence. While the

court could have stated in its sentence that Krukow was to remain under the

Board’s supervision for less than the suspended nine years and six months, the

court was not required to do so. See State v. Macy, 403 NW2d 743, 744-46 (SD

1987). Unless otherwise provided, the length of supervision and the suspended

sentence were coterminous. Despite the fact that Krukow had been on supervised

release for over five years, he was still under the supervision of the Board at the

time he violated the conditions of his suspended sentence. Therefore, the Board had

jurisdiction to revoke the suspended portion of his sentence.

2. Denial of Credit for Time on Supervised Release

[¶11.] At the hearing where the Board revoked Krukow’s suspended sentence,

it also decided to deny him credit for the entire time he was on supervised release.

Krukow claims, first, that the Board wa s not vested with the power to deny him

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credit for his “street time” and, second, that if the statute is construed to give the

Board such power, then denying him credit for this time violated his right against

double jeopardy.

[¶12.] Resolution of this issue depends on our interpretation of the statutes

governing revocation of parole and suspended sentences.

The primary purpose of statutory construction is to determine
the intent of the law. See Moss v. Guttormson, 1996 SD 76, ¶10,
551 NW2d 14, 17. “[S]tatutes must be construed according to
their intent, the intent must be determined from the statute as a
whole, as well as enactments relating to the same subject.” See
id. (quoting U.S. West Communications, Inc. v. Public Utilities
Comm’n., 505 NW2d 115, 122-23 (SD 1993)). “But, in construing
statutes together it is presumed that the legislature did not
intend an absurd or unreasonable result.” Id.

State v. Barton, 2001 SD 52, ¶8, 625 NW2d 275, 278; see also Brim v. S.D. Bd. of

Pardons & Paroles, 1997 SD 48, ¶4, 563 NW2d 812, 813. From the language of the

statutes, Krukow argues that when the Board revoked his suspended sentence

under SDCL 23A-27-19, it did not have the power under SDCL 24-15A-28 to deny

him credit for time spent on release. That statute provides:

If the board is satisfied that any provision of § 24-15A-27 has
been violated, it may revoke the parole and reinstate the terms
of the original sentence and conviction or it may modify
conditions of parole and restore parole status. In addition, the
board may order the denial of credit for time served on parole. If
the board does not find that the provisions of § 24-15A-27 have
been violated, the board may restore the parolee to the original
or modified terms and conditions of the parolee’s parole.

SDCL 24-15A-28 (emphasis added).

[¶13.] By the plain language of this statute, it only governs denial of credit

for time served on parole, not time served on a suspended sentence. Krukow argues

that only SDCL ch. 23A-27 vests the Board with certain powers over those released

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under a suspended sentence. He claims that nothing in SDCL ch. 23A-27 can be

interpreted to grant the Board the power to deny him credit for his release time.

Because the Board’s jurisdiction over Krukow exists only in SDCL 23A-27-19, he

contends that the word “parole” in SDCL 24-15A-28 cannot be interpreted to include

persons released under a suspended sentence. 1

[¶14.] In its appellate brief, the Board dedicates most of its argument to this

Court’s past cases, where we discussed the relationship between a suspended

sentence and parole. See Turo v. Solem, 427 NW2d 843 (SD 1988); State v. Oban,

372 NW2d 125 (SD 1985); State v. Hu ftile, 367 NW2d 193 (SD 1985). In those

cases, we concluded that “[s]uspended sentences and paroles are alike in practice”

because “[b]oth involve the release of an offender from the penitentiary prior to

expiration of the full term of the offender’s sentence.” Turo, 427 NW2d at 845-46

(citing Oban, 372 NW2d at 127-28); see also Huftile, 367 NW2d at 195-96. Like

persons released on parole, those who leave the penitentiary under a suspended

sentence, are “under the supervision of the executive branch of government.” Turo,

427 NW2d at 845 (citing Oban, 372 NW2d at 130); see also Grajczyk v. S.D. Bd. of

Pardons & Paroles, 1999 SD 149, ¶7, 603 NW2d 508, 510.

1. SDCL 23A-27-19 states, in relevant part, that

[a]ny person whose sentence is su spended pursuant to this section is under
the supervision of the Board of Pardons and Paroles. . . . The [B]oard is
charged with the responsibility for enforcing the conditions imposed by the
sentencing judge, and the [B]oard retains jurisdiction to revoke the
suspended portion of the sentence for violation of the terms of the suspension.

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[¶15.] Contrary to the Board’s argument, the cases it cites interpret statutes

no longer in effect. After July 1, 1996, the Legislature enacted SDCL ch. 24-15A,

which replaced the majority of the statutes in SDCL ch. 24-15. Language declaring

similarities between a suspended sentence and parole derived from this Court’s

interpretation of SDCL 24-15-14 in conjunction with SDCL 23A-27-19. Huftile, 367

NW2d at 195-96. The support for the comparison was that SDCL 24-15-14, like

SDCL 23A-27-19, placed persons released under a suspended sentence under the

supervision of the Board. Id. The cases that followed Huftile similarly held that the

Board’s power over those released on a suspended sentence stemmed both from

SDCL ch. 24-15 and SDCL 23A-27-19. See Turo, 427 NW2d at 845; Oban, 372

NW2d at 127-28.

[¶16.] Because Krukow was sentenced after July 1, 1996, SDCL ch. 24-15

does not apply to him, and our earlier cases are inapplicable here. See SDCL 24-

15A-1. Nonetheless, based on the entirety of the statutes governing release on

parole and suspended sentence, we conclude that the Board has discretion to deny

credit for time spent on release to persons who violate their supervision conditions

during the term of their suspended sentences. First, under SDCL 23A-27-19, the

Board is “charged with the responsibility for enforcing the conditions imposed by

the sentencing judge, and the [B]oard retains jurisdiction to revoke the suspended

portion of the sentence for violation of the terms of the suspension.” Second, under

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SDCL 24-15A-8, the Board is empowered to grant persons serving a suspended

sentence an early release from supervision.2

[¶17.] By including those released under a suspended sentence within the

purview of SDCL 24-15A-8, found in the chapter governing adult parole, we

conclude that the Legislature intended to grant the Board discretion in deciding

who receives credit for time spent on release. The power to grant early release

includes the power to deny such release. To read these statutes as Krukow would

have us do could result in allowing those released on a suspended sentence to evade

supervision and defy their release terms, and yet still receive credit for time served

while they were in violation of their conditions. We do not believe that the

Legislature intended such an interpretation of its enactments. See Moeller v.

Weber, 2004 SD 110, ¶46, 689 NW2d 1, 16.

[¶18.] Krukow next claims that if this Court interprets our statutes to allow

the Board to deny him credit for his time while free on his suspended sentence, then

applying that statutory interpretation to him would violate his double jeopardy

rights. Specifically, he contends that because this statutory interpretation did not

exist before, applying the decision to him violates his legitimate expectation that

the laws meant what they said when he was sentenced. Because the laws

governing sentences applicable to Krukow came into effect in 1996, and he was not

sentenced until 1998, his argument is without merit.

2. SDCL 24-15A-8, states, in part, that the Board has the power to “grant an
early final discharge from supervision for a parolee or person serving a
suspended sentence under supervision of the [B]oard if the [B]oard is satisfied
(continued . . .)

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[¶19.] Affirmed.

[¶20.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.

__________________
(. . . continued)
that an early final discharge would be in the best interests of society and the
inmate.” (Emphasis added).

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