Brim v. South Dakota Board of Pardons & Paroles , 1997 S.D. LEXIS 48 ( 1997 )

GILBERTSON, Justice

(on reassignment).

[¶ 1.] In 1958, Robert Brim was convicted of manslaughter in Stanley County and sentenced to life imprisonment. The original court file indicates that Brim shot Irene Stoesser, killing her and her unborn child. Stoesser and her husband employed Brim on their farm near Hayes, South Dakota. Although Irene’s three-year-old daughter was also shot to death and a four-year-old son was injured in the same incident, Brim was only charged with Irene’s death.¹ He pled guilty and was sentenced to life imprisonment.

[¶ 2.] Brim began to serve his sentence on November 1, 1958. No parole eligibility date was ever set for him. His only documented request was submitted to the Board of Pardons and Paroles on November 12, 1993. The Board denied the request. We affirm the decision of the circuit court upholding the Board’s decision.

ANALYSIS AND DECISION

[¶ 3.] Whether, at the time of his 1958 sentence to life imprisonment, state law required that a parole eligibility date be set for Brim?

[¶ 4.] Whether Brim had a right to be assigned a parole eligibility date depends upon the statutory framework as it existed in 1958. “The proper construction to be given a statute is a question of law which is fully reviewable. Accordingly, the questions presented are reviewed de novo.” Estate of Chilton, 520 N.W.2d 910, 912 (S.D.1994); See also In re Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984) (citations omitted).

[¶ 5.] We conclude that while South Dakota did at one time statutorily allow for parole of persons sentenced to life imprisonment, this opportunity existed only for persons sentenced prior to July 1, 1913. As Brim was not sentenced until November 1, 1958, he cannot claim any denial of any right to apply for parole.

[¶ 6.] In 1911 the Legislature enacted what was designated as Chapter 198 of the 1911 Session Laws.² Section 1 of that act established the right of a prisoner serving a life sentence to apply for parole.

Whenever the governor shall have received such recommendation above provided for, and is satisfied that any convict has been confined in the penitentiary for a sufficient length of time to accomplish his reformation, and that such convict may be temporarily released without danger to society, and is satisfied that permanent and suitable employment has been secured for such convict in some county of the state where he will be free from criminal influences, the governor shall issue an order to the warden that such convict shall be temporarily released from the penitentiary

and allowed to go to said county. Provided, that no convict shall be paroled until he shall have served one-half of the time for which he was sentenced, allowing time earned for good behavior.

And Provided further, that in case of convicts serving under life sentence, such convict may be paroled when he has served at least thirty years of time for which he was sentenced, deducting therefrom time earned for good behavior. (Emphasis added.)

1911 S.D. Sess.L. ch. 198 § 1.

[¶ 7.] Section 2 of the same statute dealt with the Governor issuing a pardon. It provided in part:

Provided further, that in case the paroled convict is one who is serving under a life sentence, that such convict shall not in any event be given a pardon or final release until such convict has faithfully complied with the terms of his parole for a period of at least five years.

1911 S.D. Sess.L. ch. 198 § 2.

[f 8.] Thus, as of July 1, 1911, a person serving a life sentence could, under section 1 of this statute, be eligible for parole when the prisoner had served at least 30 years, and further under section 2, could be fully pardoned for the crime in an additional five years after the granting of the parole.

[¶ 9.] Apparently, the Legislature had second thoughts about the wisdom of its 1911 enactments as, at its very next session in 1913,³ it amended Section 1 of the above-cited 1911 statute to read as follows:

Whenever the governor shall have received such recommendation above provided for, and is satisfied that any convict has been confined in the penitentiary for a sufficient length of time to accomplish his reformation, and that such convict may be temporarily released without danger to society, and is satisfied that permanent and suitable employment has been secured for such convict in some county of the state where he will be free from criminal influences, the governor shall issue an order to the warden that such convict shall be temporarily released from the penitentiary and allowed to go to said county. Provided, That no convict, except convicts given an indeterminate sentence, shall be paroled until he shall have served one-half of the time for which he was sentenced allowing time earned for good behavior. And Provided, Further, that any convict upon whom has been imposed an indeterminate sentence and who has served the minimum of such sentence, allowing time earned for good behavior, may be paroled by the governor as herein provided. (Emphasis original.) ⁴

1913 S.D. Sess.L. ch. 287 § 1. This amendment reflects only two changes to the 1911 statute. The 1913 Legislature dropped the 1911 provision allowing parole for a life prisoner after serving 30 years and instead replaced it with reference to prisoners who were sentenced to an indeterminate sentence. Thus, as of the effective date of the 1913 amendment to section 1 of the 1911 act, that being July 1, 1913, the right of a person sentenced to life imprisonment after July 1, 1913 to apply for a parole after 30 years, did not exist.

[¶ 10.] Yet the Legislature in 1913 had the remaining question of what to do with those prisoners who had been sentenced to life imprisonment prior to that date and had a vested right to parole consideration under the 1911 statute. Cf. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); People ex rel. Jones v. Russi, 199 A.D.2d 1043, 608 N.Y.S.2d 914 (1993). Under section 2 of the 1911 statute, those persons had been given the right to apply for a full pardon after serving 30 years of their sentence, obtaining parole and convincing the governor that for at least five years after parole, their exemplary conduct should allow them a full pardon. To address this situation, the Legislature left intact section 2 of the 1911 act. Section 2 of the 1911 act is carried forward to section 5404 of the 1919 code, and subsequently, to section 13.5302 of the 1939 code which was in effect when Brim was sentenced in 1958. At that point the statute read:

No pardon shall be granted under this section in any case where the sentence of the court is imprisonment for life or for a longer term than two years without application to and recommendation by the Board of Pardons in compliance with the laws and regulations governing the proceedings of such Board; provided further, that in case the paroled convict is one who is serving under a life sentence, such convict shall not in any event be given a pardon or final release until such convict has faithfully complied with the terms of his parole for a period of at least five years.⁵

SDC 13.5302.

[¶ 11.] The reason for retaining section 2 of the 1911 act on the books this length of time was not to continue to allow parole for persons serving a life sentence who were sentenced after July 1, 1913, but was rather to deal with those persons serving a life sentence who were sentenced prior to that date and had a statutory right to apply for a pardon. The earliest anyone could have reached that status was 35 years after sentencing, which would have allowed a person sentenced in the first six months of 1913 to apply for a pardon, under a best case scenario, in 1948.

[¶ 12.] The subsequent inclusion of the 1913 statute in the next codification of 1919 is consistent with this analysis. Section 1 of the 1911 session laws as amended in 1913 is found at section 5398 of the 1919 Code under the title, “Governor May Parole.” Section 2 of the 1911 session laws, which is the statute upon which Brim now relies, is found at section 5404 under the title, “Governor May Pardon.” In 1919 there were still numerous legislators who had served in the 1913 Legislature and knew what had been passed in 1913. (See 1993 South Dakota Legislative Manual (Blue Book) pp. 245-48 and 257-60).

[¶ 13.] In the 1939 Code, section 1 of the 1911 session laws became SDC 13.5301. As amended in 1925 and 1931, it now contained a detailed formula for when a prisoner was eligible for parole. Noticeably missing was any calculation on how to determine parole eligibility for prisoners serving a life sentence or even a reference to them.⁶ Section 2 of the 1911 session laws became a separate statute, SDC 13.5302, (see ¶ 10, sttpra), generally dealing with pardons and setting no formula for the parole of life prisoners.

[¶ 14.] Brim argues that the subsequent title of SDCL 23-60-15 adopted in the 1967 codification points towards retention of parole for life prisoners after 1913, as it is entitled, “Minimum duration of parole under life sentence.” Obviously by 1967 there were no holdover legislators from 1913 who were aware of the intent of the law at the time it was amended in that year.

[¶ 15.] Neither does the title of the 1967 act provide any authority that there was an intent of that Legislature to amend the 1939 statute or its predecessors. This is based upon a fundamental change in the law of statutory construction which also occurred in 1939. At the time of the 1919 Code, the title of the statute was considered to be part of the statute. This Court in State v. Johnson, 24 S.D. 590, 124 N.W. 847, 850 (1910), a case dealing with criminal procedure, held:

[T]he general rule of construction as to title and headings ... is as follows: ‘Especially may the title be consulted as an aid to interpretation where, as is the ease in many states, the Constitution provides that the subject of the act shall be expressed in the title, for under such constitutional provisions the title becomes a part of the act itself....’ It seems clear, therefore, that in construing words and phrases used in the statutes the court should give effect to the headings according to their plain import.

However, with the adoption of the 1939 Code, there was to be a complete reversal of this rule of construction for statutes contained in that Code. SDC 65.0202(3) states, “source notes, cross-references, and titles, whether designating entire titles, parts, chapters, sections, or subdivisions, constitute no part of any statute.” (emphasis added). This was carried forward to the 1967 SDCL via SDCL 2-14-9. Thus, the statutory titles relied upon by Brim in the 1939 and 1967 codes which he claims to support his position are not part of the statute, while the titles in the 1919 code were part of that statute.

[¶ 16.] Further support for our interpretation is found in the Legislature’s treatment of good time. In section 5456 of the 1919 Code, good time eligibility existed for all prisoners except those serving life sentences. This lack of eligibility for good time is logical if one considers it would be a useless act if the prisoner serving a life sentence were not eligible for parole in the first place. This distinction between prisoners serving a term of years and a life sentence was carried forward into the 1939 code at SDC 13.4718 and the 1967 code at SDCL 24-5-1.⁷ If persons serving life sentence were eligible for parole after 1913 until 1978, what legislative rationale would deny them recognition for good- behavior while granting it to the rest of the prison population serving a term of years?

[¶ 17.] The two Attorney General opinions of 1920 and 1925⁸ relied upon by Brim which conclude parole was authorized for a life sentence, fail to rely on the above statutory analysis. Because there is no formula in the statutes after 1913 to determine parole eligibility for a life sentence, the Attorney General came up with the illogical conclusion that a person serving a fixed term of years (such as a burglar or bad check writer) could not be considered for parole until a given number of years has been served (one half of the sentence less good time) as set by a statutory formula; yet he concluded that a prisoner such as a multiple murderer, who is under a life sentence, the most severe penalty that could be imposed,⁹ “may be paroled at any time after commitment to the State Penitentiary....” 1920 OpAtt’yGen 469, 470 and 1925 OpAtt’yGen 286. The opinions of the Attorney General are not binding on this Court. Stumes v. Delano, 508 N.W.2d 366, 372 (S.D.1993). We cannot accept the premise that our Legislature from 1913 until 1978 thought it appropriate to require minor felons to serve at least half them sentence (less good time) before parole could be considered, but would allow a person who shot and killed a pregnant mother of two to apply for parole the day he arrived at the penitentiary. We will not construe a statute to arrive at a “ ‘strained, unpractical or absurd result.’ ” Island v. Dep’t of Corrections, 1996 SD 28, ¶ 8, 545 N.W.2d 201, 203 (quoting Nelson v. South Dakota State Bd. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991)).

[¶ 18.] With no statutory good time for prisoners serving a life sentence and no statutory formula to set dates for parole on the books, if parole for prisoners serving life sentences did exist, this would create a situation of uncertainty and chaos. Yet, there is not a single reported case from 1913 until 1993 when it is raised in Stumes that any statutory interpretation is sought on this issue. The obvious conclusion is that there were no such cases because there was no parole to argue over or interpret.¹⁰

[¶ 19.] Also instructive is the case of State v. King, 82 S.D. 514, 149 N.W.2d 509 (1967). Therein we were faced with an equal protection challenge to the following statute:

‘Every prisoner confined in the State penitentiary for a term of less than life, or held as a prisoner there under any means of lawful custody whether sentenced or not, who escapes or attempts to escape therefrom, is punishable by imprisonment in such Penitentiary for a term not exceeding five years. If such prisoner is confined therein under sentence of imprisonment, his sentence on conviction for such escape shall commence at the expiration of the original term of his imprisonment.’ (Emphasis added.)

Id. (quoting SDC 1960 Supp. 13.1226). Two prisoners who were serving a term of years alleged they were denied equal protection of the law in that they must serve additional time for their escape after their original sentence, while the statute would, in effect, authorize no additional punishment for an escaped prisoner who was serving a life sentence. In rejecting this claim, we noted that a life sentence was just that, a life sentence, except when the Governor granted a pardon or commutation which was held to be “a privilege and not a right....” King, 149 N.W.2d at 509-10. Noticeably absent is any suggestion that a life sentence could also be shortened by parole or that there was some statutory right by a person serving a life sentence to apply for a parole.

[¶ 20.] This statutory analysis advanced by the State is consistent with the factual record that exists in this ease. Although much of the records have been lost with time, Arthur Canary, who was Executor Director of the South Dakota Parole Board after it took the parole function over from the Governor in 1961, stated that from the time of its creation, no person serving a life sentence was ever considered by the Board for parole. See Stumes, supra.¹¹ This policy is confirmed by Brim himself who stated in his brief before the Board of Pardons and Paroles, that his research indicated that it was during the period of 1913 to 1920 when the “Board of Charities and Corrections first formulated this practice.” Brim also states that the Board uniformly enforced this policy up to January 1,1979.¹²

[¶ 21.] SDCL 24-13-7 charges the Board of Pardons and Paroles with adopting procedural rules for “the effective enforcement of chapters 24-13 to 24-15” not the evasion of it. Rather than ignoring this area of the law, this Board, which is an expert in this area of the law, was correctly following it for the past 36 years.

[¶ 22.] In conclusion, it is clear that a person serving a life sentence in this state was eligible for parole only if sentenced prior to July 1, 1913. As Brim was not sentenced until 1958, he has no statutory right to request a parole date and his request for relief must be denied. “This court assumes that statutes mean what they say and that legislators have said what they meant.” Famous Brands, 347 N.W.2d at 885.

[¶ 23.] As this issue is dispositive of the appeal, we need not reach Brim’s second issue as to whether there is a retrospective application of SDCL 24-15-4 (enacted in 1978 by 1978 SD Sess. L. ch. 186 § 21) which denies parole eligibility to inmates serving life sentences, and is claimed to be an ex post facto law when applied to Brim.

[¶ 24.] We affirm.

[¶ 25.] MILLER, C.J., and KONENKAMP, J., concur. [¶ 26.] SABERS and AMUNDSON, JJ., dissent.

1 . Stanley County placed detainers or hold orders in Brim's penitentiary file, presumably to preserve other potential charges for the crimes against the Stoesser children. In 1974, Brim filed a motion to dismiss any other criminal charges pending against him. An Order of Dismissal was entered in May of 1974 on the grounds that Brim did not receive a speedy trial, and apparently, the holds were then removed. Correspondence in the record dated in 1965 and 1966 seems to indicate that Brim made even earlier attempts to have the holds removed from his file.

2 . Historically there was no parole in South Dakota until 1905 when it was created by § 4 of ch 144 of the 1905 Session Laws. However the statutes were silent as to the applicability of parole for prisoners serving life sentences until 1911.

3 . At that time, the South Dakota Legislature met every other year.

4 . This statute later became SDRC 5398 of the 1919 Code. Subsequently it became SDCL 23-60-5 and 23-60-12 in the 1967 Code.

5 . In the 1967 Code, it became SDCL 23-60-15. It was amended by chapter 186 of the 1978 session laws to its current version, which is found at SDCL 24-15-4. Since 1978 it has provided: "A person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles.” Chapter 1986 of the 1978 session laws was a comprehensive overhaul of the entire parole system of which SDCL 24-15-4 was but a single provision. This overhaul was not surprising as it falls on the heels of the 1976 revision of the entire criminal code.

6 . SDC 13.5301 read in part, “[T]he Governor shall issue an order to the Warden of the penitentiary that such convict shall be paroled and temporarily released from the Penitentiary and allowed to go to such county in the following cases:

(1) A person who shall have been convicted of a felony for the first time, and who shall have been under the age of twenty-five years at the time of such conviction, shall be eligible for parole after he shall have served one-fourth of the time for which he was sentenced, allowing time earned for good behavior;

(2) A person who shall have been convicted of a felony for the first time, and who shall have been over the age of twenty-five years at the time of such conviction, shall be eligible for parole after he shall have served one-third of the time for which he was sentenced, allowing time earned for good behavior;

(3) A person who shall have been convicted of a felony for a second time shall be eligible for parole after he has served one-half of the time for which he was sentenced, allowing time earned for good behavior;

(4) A person who shall have been convicted of a felony two or more times previously shall be eligible for parole after he shall have served three-fourths of the time for which he was sentenced, allowing time earned for good behavior;

(5) A convict on whom has been imposed an indeterminate sentence shall be eligible for parole after he has served the minimum of such sentence, allowing time earned for good behavior.

7 . SDRC 5456 and SDC 13.4718 read in relevant part: “Every convict sentenced for any term less than life ... shall be entitled to a deduction from his sentence!.]”

8 . OpAtt'y Gen 470 (1920) and OpAtt'y Gen 287 (1925).

9 . South Dakota had no death penalty in effect from 1915 until 1939. See State v. Moeller, 1996 SD 60, ¶ 101, 548 N.W.2d 465, 487, and Opinion of the Judges, 83 S.D. 477, 479, 161 N.W.2d 706, 708 (1968).

10 . Our attention is called to SDCL 23-60-4 (formerly SDC 13.5304) which stated at the time of Brim’s commitment that "[w]henever any person becomes an inmate of the Penitentiary it shall be the duty of the Department to immediately establish in their record the date when such inmate will be eligible to parole.” This statute was passed in 1955 as part of lengthy legislation which resulted in the creation of the Department of Probation and Parole. 1955 SD Sess.L. ch. 31 § 2. However, if this provision were meant to include those serving life sentences, it would run afoul of the fact that there is no statutorily authorized way to set such a date; as established above, there was no good time for lifers nor statutory formula to set the date for parole. Thus for prisoners serving a life sentence, the unpleasant reality of SDCL 23-60-4 was that they must serve their natural life in prison.

11 . In Stumes we noted the existence of the issue now before us but decided the case on other procedural grounds. Brim points to a statement in dictum where we said, "a parole date should have been set immediately." Id. at 373. However we also went on to observe:

Stumes was sentenced to life in prison on March 27, 1974. No date was ever set as to when Stumes would be eligible for parole. The explanation for this is found in the affidavits presented to the parole board by Arthur Canary former director of the Department of Probation and Paroles, and Max Gors, former chairman of the South Dakota Board of Pardons and Paroles. According to them, persons serving life sentences in the South Dakota State Penitentiary at the time of Stumes' conviction and sentencing were not considered to be eligible for parole. These statements lend credence to the assertion that there was no parole available for a convict serving a life sentence even before the passage of SDCL 24-15-4 [in 1978].

Id. at 372.

Other passing references in our prior case law render little assistance in the resolution of the question now before us. Bush v. Canary, 286 N.W.2d 536 (S.D.1979) makes a passing reference that Bush, who was sentenced to life imprisonment, was subsequently paroled. At this time we have no background as to why this was done, under what circumstances, if it was an error of law on the part of the Board or the accuracy of the state of the record on this fact. What we do know is that in no way was it a disputed issue before the court in Bush. On the other hand, in Cody v. Leapley, 476 N.W.2d 257, 259 (S.D.1991) Cody was convicted of a murder committed in February, 1978 prior to the repeal of SDCL 23-60-15 and the adoption of our current statute SDCL 24-15-4. Yet the court "noted” in passing that “in South Dakota life in prison is without parole.” Id. at n. 2. See Stumes 508 N.W.2d at 372-73.

12 . Brim states "Each board adopted, enforced and published its rules, with one exception: the rule to justify the practice of requiring a convict serving a life sentence, before 1 January 1979, to secure a commutation to a number of years before being eligible for parole.” Brief to Board at p. 6. In fairness to Brim he went on to argue that this "policy” was in contravention of the then-existing statutes.