Krukow v. South Dakota Board of Pardons & Paroles

2006 SD 46, 716 N.W.2d 121, 2006 S.D. LEXIS 51
CourtSouth Dakota Supreme Court
DecidedMay 17, 2006
Docket23853
StatusPublished
Cited by6 cases

This text of 2006 SD 46 (Krukow 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
Krukow v. South Dakota Board of Pardons & Paroles, 2006 SD 46, 716 N.W.2d 121, 2006 S.D. LEXIS 51 (S.D. 2006).

Opinion

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 His suspended sentence was revoked by the Board of Pardons and Paroles.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.”

[¶ 3.] According to Krakow'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.”

*123 [¶ 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 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 N.W.2d 595, 597; see also Boehrns v. S.D. Bd. of Pardons & Paroles, 2005 SD 49, ¶ 5, 697 N.W.2d 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 N.W.2d 504, 507 (citing Reaser v. Reaser, 2004 SD 116, ¶ 27, 688 N.W.2d 429, 437 (citations omitted)). While Krukow 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 [Bjoard retains jurisdiction to revoke the suspended portion of the *124 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 N.W.2d 743, 744-46 (S.D.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 Krakow'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 was not vested with the power to deny him 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.

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Bluebook (online)
2006 SD 46, 716 N.W.2d 121, 2006 S.D. LEXIS 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/krukow-v-south-dakota-board-of-pardons-paroles-sd-2006.