Amundson v. South Dakota Board of Pardons & Paroles

2000 SD 95, 614 N.W.2d 800
CourtSouth Dakota Supreme Court
DecidedJuly 19, 2000
DocketNone
StatusPublished
Cited by4 cases

This text of 2000 SD 95 (Amundson v. South Dakota Board of Pardons & Paroles) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amundson v. South Dakota Board of Pardons & Paroles, 2000 SD 95, 614 N.W.2d 800 (S.D. 2000).

Opinions

SABERS, Justice.

[¶ 1.] The Board of Pardons and Paroles revoked the suspended sentence of Richard E.' 'Amundson and ordered that he serve the remainder of his sentence, one year, in the state' penitentiary. The circuit court reversed. ' 'The Board appeals and we reverse.

FACTS

[¶ 2.] Amundson was convicted of possession of a firearm by a felon and was sentenced to serve a term of two years with one year suspended. He was incarcerated from December 10, 1997 to December 10, 1998 when he was released under “intensive supervision.” Pursuant to the Suspended Sentence Agreement that he signed, Amundson agreed that he would not “own,- purchase or have under [his] control, possess, transport or use weapons ... considered [to be] dangerous by [his] Parole Agent_” Duane Ries, Amundson’s sponsor, specifically asked Parole Agent Greg Barnett whether Amund-son could possess a‘ kitchen knife. Barnett approved Amundson’s possession of a kitchen knife:

I told him that a knife that would be in the kitchen used only for kitchen purposes would be appropriate, but a knife on his person or used for something like as a weapon would be a violation of his parole or suspended sentence.

Ries testified that Barnett merely approved the -knife for preparation of food and things associated with “everyday living.” Neither version of the oral instructions was reduced to writing.

[802]*802[¶ 3.] Amundson lived with Ries and his family out on their farm for nine days until he could find an apartment in Sioux Falls. On December 19, Ries helped Amundson move into a one-room efficiency apartment and supplied him with some kitchen utensils, including a kitchen knife. That night and the next night, Amundson heard loud voices from the neighboring apartment from 12:00 a.m. to 2:00 a.m. He could not understand what they were saying because they were speaking and yelling in Spanish. He testified that he heard “bottles and things being clinked around in the neighbor’s apartment” and thought he “detected the odor of marijuana smoke.” He also testified that he was “concerned” about the neighbors’ behavior and discussed the situation with Ries. Ries confirmed this conversation:

[Amundson] said he had been awakened the previous nights by loud noise from the adjacent apartment and that was occurring late at night, or somewhere around the midnight hour and he thought that they were probably getting off from work and, [ ] they were coming in and being very noisy [ ] in that process.

Amundson testified that he felt intimidated by the noise because the neighbors seemed to be fighting or cursing in Spanish, a language he did not understand.

[¶ 4.] Barnett had six personal contacts and six collateral contacts1 with Amund-son between December 10 and December 21. Barnett testified and noted in his violation report that Amundson complied with all the conditions and “had been mostly agreeable to his supervision and all imposed conditions.” In fact, there was testimony that Amundson was acting as a “model parolee.”

[¶ 5.] Amundson testified that at 8:00 p.m. on December 21, 1998, he laid out his clothing and equipment for his first day of work the next morning at Sioux Steel and went to bed at 9:00 p.m. At 11:32 p.m., Barnett and Parole Agent Travis Ripperda arrived at Amundson’s apartment to conduct a random curfew check. As they entered the building, they heard a “commotion” from the apartment next to Amundson’s and identified the occupants as Hispanic. The agents testified that they knocked on Amundson’s door three times. Despite the fact that this was the first curfew check conducted on Amundson and despite an internal policy,2 the agents failed to identify themselves.

[¶ 6.] Inside the apartment, Amundson was asleep. He woke up and listened when he heard “pounding” on his door. He testified that the “pounding” continued so he called out and asked who was there, but received no response. The “pounding” continued again so he claimed he got out of his bed and shouted, “who is there,” but received no response. He stated that he was concerned that it might be the neighbors and that he grew “very nervous” because his door is secured with only a single bolt and was without a peephole or chain. He grabbed the kitchen knife, which had a six and one-half inch blade, and stuck it in the waistband of his jeans behind his back. Dressed only in his jeans, he approached the door and heard his neighbors “jibber-ing in Spanish.” He claims he asked a third time, “who is it,” but there was no response.

[¶ 7.] Barnett and Ripperda claim that they did not hear any requests for identifi[803]*803cation from Amundson. Amundson testified that he put his left foot up against the door and slowly opened the ‘door. At that point, he recognized Barnett and opened the door.'

[¶ 8.] Once inside, Ripperda administered a breathalyzer test while Barnett looked around the apartment. According to Amundson, after he finished taking the breathalyzer test, he told Ripperda that he started a new job the next morning. As he was talking, he claims that he turned his back to Ripperda and stepped into the kitchen area, faced the kitchen sink, removed the knife from his waistband and placed it on the counter in front of him. Because his back was towards Ripperda, he claims that Ripperda saw him openly remove the knife from his waistband. Conversely, Ripperda testified that Amundson stepped backward into the kitchen area and “discreetly” removed the knife from his waistband while he was facing Ripperda. Ripperda also testified that Amundson reached behind his back, took the kitchen knife out of his waistband and “set it on the counter right in front of him.” (emphasis added). It is undisputed that Amundson did not use the knife in a threatening manner or make threatening statements or motions with the knife toward the agents.

[¶ 9.] Once confronted, Amundson explained that he possessed the knife because he was “scared” as he was new in the apartment building and did not know who was at his door. Barnett repeatedly testified that Amundson truthfully answered all of the questions, fully cooperated and did not feel that the situation was dangerous. However, Barnett and Rip-perda concluded that Amundson’s possession of the knife on his person was -a violation of his suspended sentence agreement. They handcuffed Amundson and took him to jail.

[¶ 10.] Barnett reported the violation to the Board on December 22, 1998. On January 4, 1999, the Board concluded that probable cause existed to believe that Amundson violated the terms of his Suspended Sentence Agreement. A hearing was conducted on March 25, 1999. On March 30, 1999, the Board concluded that Amundson’s conduct was a violation of his suspended sentence. The Board’s findings of fact and conclusions of law, dated April 7, 1999, do not provide that Amundson lacked credibility. The ten days during which, Amundson was released were considered “dead time” and he was ordered to jail until December 20,1999.

[¶ 11.]' Amundson appealed the Board’s decision to the circuit court. A hearing was held on October 4, 1999. The Board argued that Amundson intended to use the kitchen knife as a weapon, if the need arose, and this intention violated the conditions of his suspended sentence. In addressing the Board’s position, the circuit court stated:

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Related

Kirwan v. City of Deadwood
990 N.W.2d 108 (South Dakota Supreme Court, 2023)
Acevedo v. South Dakota Board of Pardons & Paroles
2009 SD 45 (South Dakota Supreme Court, 2009)
Austad v. South Dakota Board of Pardons & Paroles
2006 SD 65 (South Dakota Supreme Court, 2006)
Amundson v. South Dakota Board of Pardons & Paroles
2000 SD 95 (South Dakota Supreme Court, 2000)

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Bluebook (online)
2000 SD 95, 614 N.W.2d 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amundson-v-south-dakota-board-of-pardons-paroles-sd-2000.