West v. Dooley

#25654-a-SLZ
2010 S.D. 102IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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STEVEN WEST #34271, Petitioner and Appellant,
v.
ROBERT DOOLEY, Warden,
Mike Durfee State Prison, Respondent and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
DEUEL COUNTY, SOUTH DAKOTA
* * * *
HONORABLE TIM D. TUCKER
Judge
* * * *
CHRIS S. GILES of
Ericsson & Giles, LLP
Madison, South Dakota Attorneys for petitioner
and appellant.
MARTY J. JACKLEY
Attorney General
MAX A. GORS
Special Assistant Attorney General
Department of Corrections
Pierre, South Dakota Attorneys for respondent
and appellee.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 16, 2010
OPINION FILED 12/29/10
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ZINTER, Justice
[¶1.] Steven West petitioned for a writ of habeas corpus challenging the
Department of Correction’s calculation of the time he must serve on two consecutive
sentences. The dispute involves the manner of calculating good-conduct credit
under SDCL 24-5-1. The habeas court affirmed the Department’s calculation,
which applied the statutory formula to each sentence separately. West appeals,
arguing that the total time to be served under both sentences should be aggregated
before applying the statute. We affirm the Department’s calculation.
Facts and Procedural History
[¶2.] On July 1, 1998, Steven West was sentenced to 7½ years in the state
penitentiary for sexual contact with a child (his “first sentence”). On the same day,
he was sentenced to 7½ years for sexual contact with another child (his “second
sentence”). The second sentence was to run consecutively to the first.
[¶3.] West is an “old-system” inmate because his offenses were committed
before July 1, 1996. See SDCL 24-15A-1. As an old-system inmate, West was
entitled to a reduction of his sentences for good conduct (colloquially referred to as
“good time”) under SDCL 24-5-1. That statute provides that an inmate’s sentence
will be reduced four months per year for good conduct during the first nine years of
the “sentence” and six months per year during the tenth year and each succeeding
year of the “sentence.” The statute provides:
Every inmate sentenced for any term less than life, or who has
had an indeterminate sentence set at a term of years, or who
has had a life sentence commuted to a term of years, and subject
to the provisions of §§ 24-2-17 and 24-2-18, is entitled to a
deduction of four months from his or her sentence for each year
and pro rata for any part of a year for the first year to the tenth,
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and six months for the tenth year and for each year thereafter
until the expiration of the period of the sentence as pronounced
by the court, for good conduct.
SDCL 24-5-1.
[¶4.] The Department calculated West’s total time to serve by allowing good-
time credit of 2½ years on each 7½-year sentence. The Department’s calculation
was as follows:
First Sentence: 7½ years X 4 months/year = 30 months
30 months/12 = 2½ years
7½ years – 2½ years = 5 years to serve
Second Sentence: 7½ years X 4 months/year = 30 months
30 months/12 = 2½ years
7½ years – 2½ years = 5 years to serve
Total time to serve: 5 years + 5 years = 10 years
Under this calculation, West completed serving his first 7½-year sentence on May
14, 2003. 1 West then commenced serving his second sentence. Allowing 2½ years
good-time credit on the second 7½-year sentence, the Department determined that
West would complete serving his second sentence on May 14, 2008.
[¶5.] West contended that his good-time credit should have been calculated
by adding his 7½-year sentences together before applying SDCL 24-5-1. In other
words, West contended that the separate sentences should be aggregated to a total
of fifteen years before the statutory formula was applied. West proposed a
calculation as follows:
1. This date is less than five years from the date of sentencing because West
had additional credits for pre-sentencing time served and a partial
commutation.
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First Sentence of 7½ years + Second Sentence of 7½ years = 15 years
9 years X 4 months/year = 36 months
6 years X 6 months/year = 36 months
36 months + 36 months = 72 months
72 months/12 = 6 years good time
Total time to serve: 15 years – 6 years good-time credit = 9 years
Under West’s calculation, he would have completed serving both sentences in nine
years, one year earlier than under the Department’s calculation.
[¶6.] The habeas court concluded that “SDCL 24-5-1 does not have
aggregation language,” and that the court should not supply words that the
Legislature did not include in the statute. Statutory interpretation is a matter of
law that this Court reviews de novo. In re B.Y. Dev. Inc., 2010 S.D. 57, ¶ 7, 785
N.W.2d 296, 299.
Decision
[¶7.] West relies on Anderson v. S.D. Bd. of Pardons and Paroles, 1999 S.D.
41, 590 N.W.2d 915, for the proposition that consecutive sentences are to be added
together and good time is to be calculated on the aggregate time to serve. Our
reading of Anderson dictates the opposite conclusion.
[¶8.] In Anderson, the defendant received consecutive sentences of seven
years and five years, and he was ordered to serve the seven-year sentence first.
Anderson was later paroled, but his parole was subsequently revoked. In the
revocation proceeding, the parole board initially revoked the twenty-eight months of
good time that Anderson had acquired on the seven-year sentence. The board later
amended its order and revoked the twenty months of good time that he had
acquired on the five-year sentence. Id. ¶ 5, 590 N.W.2d at 916. Anderson appealed,
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arguing that he had completed the five-year sentence and good time could not be
revoked from a completed sentence. Id. ¶ 7, 590 N.W.2d at 916.
[¶9.] In resolving that issue, this Court held that the parole board was
authorized to revoke the good time on both sentences. We stated that the parole
board was correct in its original revocation of the twenty-eight months of good time
relating to Anderson’s seven-year sentence, and the board was also correct in
revoking the twenty months of good time relating to his five-year sentence. Id. ¶ 11,
590 N.W.2d at 917. Notably, this holding acknowledged that the good time was
calculated separately on each sentence.
[¶10.] West, however, relies on two other statements in the Anderson
analysis. Anderson stated that aggregation “is reflected in SDCL 24-15-7 . . . which
require[s] the time to be served for consecutive sentences to be added together to
determine parole eligibility.” Id. ¶ 10, 590 N.W.2d at 917. West also notes that
Anderson cited Grant v. Hunter, 166 F.2d 673, 674 (10th Cir. 1948), for the
proposition that with respect to good time, “the imprisonment of one serving
consecutive sentences is considered a single term, consisting of the aggregate of
such sentences for the purpose of computing good time allowance.” Id. ¶ 9, 590
N.W.2d at 917. West argues that by these statements “[t]his Court appeared to be
giving an indication . . . that SDCL 24-5-1 should be interpreted to have good time
calculated on the aggregate term similar to the way parole is calculated.” We
disagree for two reasons.
[¶11.] First, Anderson’s language describing SDCL 24-15-7 has no relevance
here. SDCL 24-15-7 is a parole eligibility statute rather than a statute governing
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the calculation of good time. Second, although Anderson cited aggregation language
from Grant, Grant is a federal case applying a federal statute specifically requiring
that consecutive sentences be added together for calculating good time. SDCL 24-5-
1 does not have aggregation language found in the federal statute 2 or SDCL 24-15-
7. 3 For these reasons, West’s cited language from Anderson does not apply to
today’s issue involving the calculation of good-time credit under SDCL 24-5-1.
[¶12.] Instead, Anderson’s language supports the Department’s calculation.
Anderson observed that the defendant’s good-time credits had been calculated
separately for each sentence (twenty-eight months for the first seven-year sentence
and twenty months for the second five-year sentence). We indicated that separate
good-time calculations “explain[] the difference between the twenty-eight months of
good time applicable to Anderson’s seven[-]year sentence and the twenty months of
2. At the time Grant was decided, the portion of the federal statute dealing with
the calculation of good time provided: “When two or more consecutive
sentences are to be served, the aggregate of the several sentences shall be the
basis upon which the deduction shall be computed.” 18 U.S.C.A. § 4161(repealed by Pub.L. 98-473, Title II, § 218(a)(4), Oct. 12, 1984, 98 Stat. 2027).
3. SDCL 24-15-7 provides:
In the determination of an inmate’s eligibility for consideration for
parole, two or more convictions arising from the same transaction, for
which the sentences are made to run consecutively, shall be considered
as one conviction. Two or more sentences arising from different
transactions for which the sentences are made to run consecutively
shall be considered as separate convictions. In determining the
eligibility date for a person receiving two or more sentences which are
made to run consecutively, the sentences shall be added together and
the total number of convictions shall then determine the total amount
of time to be served before becoming eligible for consideration for
parole subject to the provisions of § 24-15-5.
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good time applicable to his five[-]year sentence.” Id. ¶ 5 n.3, 590 N.W.2d at 916 n.3
(citing SDCL 24-5-1). We added: “The good time related to a particular sentence is
calculated according to the duration of that sentence.” Id. (emphasis added). Thus,
Anderson impliedly recognized that good-time credit is calculated separately for
each particular sentence.
[¶13.] West finally argues that SDCL 24-5-1 should not require separate
calculations on each sentence simply because the statute refers to reducing a
“sentence” rather than the “sentences.” West notes that SDCL 2-14-6 provides that
“[w]ords used in the singular number include the plural, and the plural, the
singular, except where a contrary intention plainly appears.” But linguistically,
SDCL 24-5-1 does not make sense if the word “sentence” is simply changed from
singular to plural the four times it appears in the statute. Moreover, if aggregation
had been intended, the Legislature would have used aggregation language. For
example, the Legislature specifically stated that consecutive sentences should be
“added together” in calculating parole eligibility under SDCL 24-15-7. See supra
note 3. But the Legislature did not use any similar language suggesting
aggregation in SDCL 24-5-1.
[¶14.] “In interpreting legislation, this Court cannot add language that
simply is not there.” City of Deadwood v. Gustafson Family Trust, 2010 S.D. 5, ¶ 9,
777 N.W.2d 628, 632. See also State v. Koerner, 1999 S.D. 161, ¶ 9, 603 N.W.2d 718,
722 (“[This Court] cannot pose as legislators to amend a statute to read what it
plainly does not say.”). Because there is no aggregation language in SDCL 24-5-1,
we affirm.
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[¶15.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,
and, SEVERSON, Justices, concur.
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