Martin v. South Dakota Board of Pardons & Paroles

#25213-a-JKM

2009 SD 103

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

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

* * * *

JASON W. SHANKS of
May & Johnson, P.C.
Sioux Falls, South Dakota Attorneys for appellant.

MARTY J. JACKLEY
Attorney General

MAX A. GORS
Special Assistant Attorney General
Pierre, South Dakota Attorneys for appellee.

* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 5, 2009

OPINION FILED 12/02/09
#25213

MEIERHENRY, Justice

[¶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

-1-
#25213

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. 1

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

1. Martin also claims the Board used the wrong burden of proof. This claim is
without merit and controlled by Acevedo v. S.D. Bd. of Pardons & Paroles,
where this Court held that the “reasonably satisfied” standard applies in
parole revocation hearings. 2009 SD 45, ¶12, 768 NW2d 155, 160.

-2-
#25213

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 that a parolee is entitled to

parole).

ANALYSIS

Time Limit to Hold Parole Revocation Hearing

[¶7.] The Board promulgates rules regarding parole revocation hearings.

SDCL 24-15A-42. A Board rule affords a parolee a final hearing for alleged parole

violations within 90 days from the time the parolee is returned to the Department

of Corrections facility. ARSD 17:60:11:07. This rule provides:

A parolee charged with violating a condition, special limitation,
or rule of supervision shall be afforded a final hearing within 90
days following the return of the parolee to a South Dakota
Department of Corrections facility. The final hearing shall
determine if the parolee has violated a condition, special
limitation, or rule of supervision and if the violation warrants
supervision revocation or some other less restrictive disciplinary
action, including continuance of supervision with new
restriction. If the parolee admits the violation and signs a
waiver of final hearing, the board may revoke supervision
without a final hearing.

Id.

-3-
#25213

[¶8.] Martin argues his final parole revocation hearing was not held within

the 90 days set forth by ARSD 17:60:11:07. As a result, Martin claims he is entitled

to have his parole revocation dismissed with prejudice. Martin contends 117 days

passed from the time he was returned to the penitentiary until the day of his final

hearing. Martin does not dispute the delay due to his request for counsel should be

excluded from the 90-day calculation. The parties, however, disagree how many

days to exclude due to his request. Martin claims only the time from when he

requested counsel to the day counsel was appointed should be excluded. The Board

contends the time from when Martin requested counsel to the time Martin

reappeared in front of the Board with counsel should be excluded. Martin

calculates the time frame at 106 days, and the Board calculates the time frame at

89 days.

[¶9.] We agree with the Board’s calculation. When Martin first appeared

before the Board’s two-member panel and requested counsel, the panel permitted

him 30 days to obtain counsel. A transcript of that hearing shows that Martin

agreed to the 30-day continuance. Because Martin agreed to the continuance, the

delay in rescheduling his hearing cannot be counted against the 90 days.

Consequently, excluding that time from the 90-day calculation was not error.

[¶10.] Even assuming the final hearing did not take place within 90 days

from the time he was returned to the penitentiary, Martin did not claim he was

prejudiced by the delay. When alleging due process violations, prejudice must be

shown. As we indicated in a similar case involving a preliminary parole violation,

“alleging no prejudice, and the record disclosing none, defendant will not be heard

-4-
#25213

to maintain that he suffered any due process deprivation.” Cf. State v. Ellefson, 334

NW2d 56, 58 (SD 1983). See, e.g., McNeal v. United States, 553 F2d 66, 68 (10th

Cir 1977) (holding that delay before a hearing, by itself, does not amount to a

violation of due process that would entitle the defendant to be released); State v.

Hall, 195 P3d 220 (Kan 2008) (requiring prejudice to the defendant before finding a

due process violation in the context of issuing a delayed probation violation

warrant); Reese v. State, 866 P2d 82, 84 (Wyo 1993) (concluding time limits should

be adhered to, but the failure to do so will not result in the automatic dismissal of

the revocation petition); Hackett v. State, 354 NW2d 247 (Iowa Ct App 1984)

(stating the court should conduct a constitutional balancing test considering, among

other factors, the prejudice to the defendant). Without a showing of prejudice,

Martin’s contention fails.

Inability to Contest Program Terminations

[¶11.] Martin alleges he did not violate his parole by being terminated from

the programs at Glory House and Great Plains. Martin’s parole agreement stated,

in relevant part, that he was to “take advantage of the opportunities offered [to him]

by supervision, secure suitable employment or beneficial occupation and support

[himself] and dependents as directed” and to “participate, cooperate, and complete

any programs as directed.” Martin asserts these provisions of his agreement were

not violated by his termination because the allegation against him was not

sufficiently substantiated. The circuit court rejected Martin’s argument and

pointed out that “Martin violated his parole by being dismissed or terminated from

the programs.” We agree. It is undisputed that Martin failed to comply with the

-5-
#25213

conditions of his parole, in that he was terminated from the programs at Glory

House and Great Plains. His parole was conditioned on “tak[ing] advantage of the

opportunities offered [to him]” and to “participate, cooperate, and complete any

programs as directed.” If he was unable to participate and complete the programs,

regardless of the reason, the Board had a basis to be “reasonably satisfied” Martin

violated his parole. Consequently, the circuit court did not err in affirming the

Board’s decision.

Arbitrary and Unreasonable Sanction

[¶12.] Martin alleges the Board’s imposition of his suspended sentence was

clearly erroneous, arbitrary, and an abuse of discretion. See SDCL 1-26-36(6). We

find no merit to Martin’s claim. Our review of the record indicates that the Board

was justified in imposing Martin’s suspended sentence. The Board had Martin’s

criminal history before it, his prior parole violations, the most recent allegation

stemming from the incident at Glory House, as well as Martin’s removal from the

sex offender treatment program. We agree with the circuit court, that in light of the

facts, the Board did not abuse its discretion. See Hughes v. S.D. Bd. of Pardons &

Paroles, 1999 SD 44, ¶8, 593 NW2d 789, 790; 2 Lee, 2005 SD 103, ¶6, 705 NW2d at

611.

2. Like in Hughes, Martin

misunderstands the nature of the suspended sentence “agreement.” It
is not a contract in the true sense of the word where two parties
negotiate at an arms-length position towards a mutually agreeable
result. Here the terms are set forth by the State and the prisoner
seeking the benefits of the “suspended sentence agreement” either
accepts them and the agreement is implemented or the prisoner does
(continued . . .)
-6-
#25213

Disclosure of Expert Witness’ Underlying Data

[¶13.] Dr. Kauffman, a forensic psychologist, testified at the revocation

hearing that it was his opinion that Martin was likely to reoffend. Kauffman based

his opinion, in part, on the Abel Assessment, a report created from Martin’s

responses to a series of questions administered by a third person. Martin claims he

was unable to effectively cross-examine Kauffman without the “raw data” of the

assessment, which consisted of questions and Martin’s responses. Kauffman

testified that the “raw data” formed the basis of his opinions expressed in the Abel

Assessment report. Martin asserts that Kauffman’s testimony should be struck

from the record because without the “raw data,” he could not effectively cross-

examine Kauffman. 3 The Board’s attorney offered to provide the raw data to a

qualified psychologist of Martin’s choice. Martin, however, effectively ignored this

offer and reasserted that the raw data must be disclosed. Given the circumstances,

the Board did not abuse its discretion in denying Martin’s request. Kauffman

________________________
(. . . continued)
not and the prisoner remains in custody. If the prisoner cannot
conform to the rules of the agreement, a flat time sentence is the
result.

1999 SD 44, ¶14, 593 NW2d at 791.

3. Martin’s argument that Crawford v. Washington applies to this case is
misplaced. See 541 US 36, 124 SCt 1354, 158 LEd2d 177 (2004). Crawford
applies to criminal proceedings, not civil parole revocation proceedings.
United States v. Ray, 530 F3d 666, 668 (8thCir 2004) (“[A] parole revocation
hearing should not, for this purpose, be equated with a criminal trial. The
Sixth Amendment only applies to ‘criminal prosecutions,’ and a revocation of
supervised release is not part of a criminal prosecution. . . . Crawford is not
implicated in a supervised release revocation hearing.”) (internal citations
omitted).

-7-
#25213

testified about the proprietary and ethical barriers to releasing the “raw data”

directly to Martin. Under the specific facts of this case, Martin’s interest in

obtaining this information was not compelling enough to justify its production.

Additionally, Martin’s counsel was able to effectively cross-examine Kauffman

about his opinion without the underlying “raw data.” Even so, without Kauffman’s

testimony, more than a sufficient basis existed for the Board to revoke his parole.

See supra ¶12.

[¶14.] We affirm on all issues.

[¶15.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,

Justices, and SABERS, Retired Justice, concur.

[¶16.] SABERS, Retired Justice, sitting for SEVERSON, Justice, disqualified.

-8-