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. 6 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * LLOYD ROWLEY , Appell ant ,

v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES , Appell ee . * * * * APPEAL FROM THE CIRCUIT COURT OF THE SE COND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA * * * * THE HONORABLE STUART L. TIEDE Judge * * * * STEVEN K. RABUCK of Nichols & Rabuck, PC Sioux Falls, South Dakota Attorneys for appellant

. MARTY J. JACKLEY Attorney General P ierre, South Dakota and PATRICK T. PARDY Special Assistant Attorney General Department of Corrections Sioux Falls , South Dakota Attorneys for appellee

.
* * * * CONSIDERED ON BRIEFS ON NOVEM BER 6 , 201 2 OPINION FILED 

### 01/16/13- 1

- #26418 GILBERTSON, Chief Justice [¶ 1. ] Lloyd Rowley appeals his initial parole date determined by the Department of Corrections (the DOC) pursuant to SDCL 24

- 15A

- 32. The Board of Pardons and Paroles (the Board) and the circuit court affirmed. W e reverse and remand to the Board with instructions to calculate Rowley’s initial parole date in conformity with this opinion. F ACTS [¶ 2. ] On October 12, 2007, Rowley ple a d ed guilty to one count of f irst

- d egree injury to property and one count of p ossession o f a controlled substance, both C lass 4 felonies. Rowley , who had three prior non

- violent felony convictions, also admitted he was a habitual offender

. In accordance with SDCL 22

- 7

- 8.1, t he sentencing judge enhanced the sentence for the pri ncipal felonies by two levels , equivalent to that of a Class 2 felon y . 1 Rowley was sentenced to 21 years in the penitentiary for both convictions , to be served consecutively

. [¶ 3. ] Rowley’s sentence s commenced on June 18, 2007. Accordin g to the DOC , Rowley’s initial parole date is June 21, 2027. The DOC calculated Rowley’s
initial parole date pursuant to SDCL 24

- 15A

- 32

. 2 SDCL 24

- 15A

- 32 contains a grid ,

1

. Accordingly, Rowley could have be en se ntenced to 25 years in the penitentiary, the maximum penalty for a Class 2 felony, as opposed to 10 years, the maximum penalty for a Class 4 felony. 2

. SDCL 24

- 15A

- 32 provides, in relevant part: Each inmate sentenced to a penitentiary term, except thos e under a sentence of life or death, or an indeterminate sentence which is not yet set to a term of years by the board or determined to be ineligible for parole as authorized in § 24

- 15A

- (continued . . .)#26418

- 2

- which establish es the percentage of an inmate’s sentence that must be served before he is eligible for parole . Because Rowley’s sentence s for the principal felonies w ere enhanced to correspond with sentences for Class 2 felonies , the DOC applied the percentage applicable to a Class 2 felony , even though Rowley was convicted of

________________________ (. . . continued) 32.1, shall have an initial parole date set by the department. This date shall be calculated by applying the percentage indicated in the following grid to the full term of the inmate ’ s sentence pursuant to § 22

- 6

- 1.

. . . Felony Convictions Felony Class First Second Third Nonviolent Class 6 .25 .30 .40 Class 5 .25 .35 .40 Class 4 .25 .35 .40 Class 3 .30 .40 .50 Class 2 .30 .40 .50 Class 1 .35 .40 .50 Class C .35 .40 .50 Violent Class 6 .35 .45 .55 Class 5 .40 .50 .60 Class 4 .40 .50 .65 Class 3 .50 .60 .70 Class 2 .5 0 .65 .75 Class 1 .50 .65 .75 Class C .50 .65 .75 Class B 1.0 1.0 1.0 Class A 1.0 1.0 1.0 Each inmate shall serve at least sixty days prior to parole release. Inmates with life sentences are not eligible for parole. An initial parole date t hrough the application of this grid may be applied to a life sentence only after the sentence is commuted to a term of years. A Class A or B felony commuted to a number of years shall be applied to the Class C violent column of the grid.#26418

- 3

- Class 4 fe lonies. Thus, the DOC maintains that Rowley must serve 50%, rather than 40%, of his sentence before he is eligible for parole. [¶ 4. ] Rowley applied to the Board for a final determination of his true and correct parole eligibility date pursuant t o SDCL 24

- 15A

- 3 3 . On November 15, 2011, the Board entered findings of fa ct, conclusions of law, and an o rder affirming Rowley’s initial parole date calculated by t he DOC. Rowley appea led to t he circuit
court , which affirm ed the Board’s decision. Rowley appeals, arguing that the Board acted without authority under South Dakota law by increasing the class of the principal felonies to Class 2 felonies for purposes of parole eligibility. Rowley also raises several constitutional issues on appeal. Because w e conclude that the DOC incorrectly calculated Rowley’s initial parole date, we d ecline to address the constitutional issues. S TANDARD OF REVIEW [¶ 5. ] “Appeals from the Board are governed by SDCL 1

- 26

- 37.” Brant v. S. D

. Bd. of Pardons & Par oles , 2012 S.D. 12, ¶ 7, 809 N.W.2d 847, 849 (quoting Acevedo v. S.D. Bd. of Pardons & Paroles , 2009 S.D. 45, ¶ 7, 768 N.W.2d 155, 158)

. Therefore, we “review questions of fact under the clearly erroneous standard; mixed questions of law and fact and ques tions of law are reviewed de novo.” Id. (quoting Acevedo , 2009 S.D. 45, ¶ 7, 768 N.W.2d at 158). Because this case involves a question of statutory interpretation, the standard of review is de novo. State v. Jucht , 2012 S.D. 66, ¶ 22, 821 N.W.2d 629, 63 4 (citing State v. Powers , 2008 S.D. 119, ¶ 7, 758 N.W.2d 918, 920)

.#26418

- 4

- A NALYSIS AND DECISION [¶ 6. ] Rowley argues that the Board acted without authority by increasing the length of time he had to serve before he became eligible for parole based upon his conviction as a habitual offender under SDCL 22

- 7

- 8.1. Rowley maintains that SDCL 22

- 7

- 8.1 does not substantively change the class of the principal felony; it only enhances the sentence. Further , Rowley stresses that SDCL ch. 24

- 15A , governing parole, is completely silent on the effect a habitual offender conviction has on parole eligibility. To Rowley, this position is logical because a conviction as a habitual offender does not change the nature of the underlying offense. The Board disagrees , arguing that under SDCL 22

- 7

- 8.1 , the principal felony is increased to a higher class of felony. In addition, the Board claims the statutory language of SDCL 22

- 7

- 8.1 demonstrates legislative intent to enhance the felony class when determining an inmate ’s parole eligibility date pursuant to SDCL 24

- 15A

- 32

. [¶ 7. ] W hether the habitual offender statute at issue, SDCL 22

- 7

- 8.1, increase s the class of the principal felony is a question of statutory interpretation. The purpose of statutory c onstruction is to discover the true intention of the law, which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the Legislature said, rather than what the courts think it should ha ve said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. City of Rapid City v. Estes , 2011 S.D. 75, ¶ 12 , 805 N.W.2d 714, 718 (quoting State ex rel. Dep’t of Transp. v

. Clark , 2011 S.D. 20, ¶ 5, 798 N.W.2d 160, 162). “ When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute#26418

- 5

- as clearly expressed. ” In re Es tate of Hamilton , 2012 S.D. 34, ¶ 7, 814 N.W .2d 141, 143 (quoting Martinmaas v. Engelmann , 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611). [¶ 8. ] SDCL 22

- 7

- 8.1 provides, If a defendant has been convicted of three or more felonies in addition to the principal felony and none of the prior felony convictions was for a crime of violence as defined in subdivision § 22

- 1

- 2(9), the sentence for the principal felony shall be enhanced by two levels but in no circumstance may the enhancement exceed the se ntence for a Class C felony. A defendant sentenced pursuant to this section is eligible for consideration for parole pursuant to § 24

- 15A

- 32 if the defendant receives a sentence of less than life in prison. (Emphasis added.) A plain reading of the phras e “the sentence for the principal felony shall be enhanced by two levels” indicates that the sentence is enhanced, not the principal felony

. The words “for the principal felony” merely explain what sentence is enhanced

. To construe this phrase as the Boa rd suggests would require

us to ignore the words “the sentence for , ” which we will not do

. See Jensen v. Turner C nty

. Bd. of Adjustment , 2007 S.D. 28, ¶ 12 , 730 N.W.2d 411, 415 ( “When [the Court] interpret[s] a statute , . . . effect should be given to eve ry part and every word.”). Later, in the same sentence, the L egislature limits the scope of the enhancement providing that “the enhancement [cannot] exceed the sentence for a Class C felony.” SDCL 22

- 7

- 8.1. Again, the plain language establishes that the sentence is the subject of the enhancement. [¶ 9. ] Nonetheless, t he Board argues that its position that the principal felony itself is enhanced is supported by prior case law. To support its argument, the Board cites several decisions concerni n g the habitual offender statutes. Rowley
correct ly points out that these cases undermine t he Board’s position because they#26418

- 6

- support the conclusion that the sentence, rather than the principal felony, is enhanced. [¶ 10. ] For example, in State v. Cady , we declared : “ B eing a habitual criminal is not a separate offense, rather the punishment for the principal crime is enhanced to a higher class of felony (SDCL 22

- 7

- 7 et seq.).” 422 N.W.2d 828, 831 (S.D. 1988) (emphasis added). Then, in In re Novak , we determined that “ sentencing upon conviction under [SDCL 22

- 14

- 15] may be enhanced through SDCL 22

- 7

- 7.” 447 N.W.2d 530, 530 (S.D. 1989) (emphasis added). Next, in State v. Salway , this Court, citing Cady , stated : “ [B] eing a habitual criminal enhance s the punishment for the principal crime to a higher class of felony.” 487 N.W.2d 621, 622 (S.D. 1992) (emphasis added). Thereafter, in State v. Stetter , we explained that under SDCL
22

- 7

- 8.1 , “[i]f a defendant has been convicted of three or more prior f elonies, his
sentence for the principal felony is enhanced two levels.” 513 N.W.2d 87, 89 (S.D. 1994) (emphasis added). Finally, in State v. Guthmiller , we confirmed that “[t]he habitual offender statute SDCL 22

- 7

- 7 enhances the sentence to the next more severe felony class. ” 2003 S.D. 83, ¶ 31, 667 N.W.2d 295, 306 (emphasis added). Regardless of the nomenclature we chose, t hese cases confirm that the habitual offender statutes operate to increase the defendant’s sentence, but do not substantively chang e the class of the principal felony. [¶ 11. ] Next, the Board directs us to the last sentence of SDCL 22

- 7

- 8.1 , which provides : “ A defendant sentenced pursuant to this section is eligible for consideration for parole pursuant to § 24

- 15A

- 32 if the defendant receives a sentence of less than life in prison.” The Board contends that because this sentence#26418

- 7

- references SDCL 24

- 15A

- 32, the Legislature intended for the class of the principal felony to be enhanced for parole eligibility purposes

. [¶ 12. ] However, the last sentence of SDCL 22

- 7

- 8.1 merely clarifies that a defendant subject to a sentence enhancement is still eligible for parole so long as his sentence is less than life in prison. It does not instruct the DOC to enhance the class of the principal felony when calculat ing an inmate’s parol e eligibility date , nor does any other portion of SDCL 22

- 7

- 8.1

. Likewise, SDCL 24

- 15A

- 32 does not contain any such instructions, or, for that matter, a single reference to the habitual offender statu tes . The Board’s position essentially asks us to add language to the statutes. However, “[i]n interpreting legislation, [we] cannot add language that simply is not there. ” West v. Dooley , 2010 S.D. 102, ¶ 14, 792 N.W.2d 925, 928 (quoting City of Deadwoo d v. M.R. Gustafson Family Trust , 2010 S.D. 5, ¶ 9 , 777 N.W.2d 628, 632)

. [¶ 13. ] Moreover, SDCL 22

- 7

- 8.1 and SDCL 24

- 15A

- 32 have substantially different histories and purposes. As we have previously acknowledged, “[t]he purpose of habitual crim inal statutes is to punish a defendant for his persistence in crime.” Roden v. Solem , 411 N.W.2d 421, 422 (S.D. 1987) (citation omitted). Whereas, “[t]he object of parole laws is rehabilitation rather than punishment.” Id. (citation omitted). Thus, whe n the two statutes are considered together, it appears that the Legislature never consider ed how a habitual offender conviction would affect an inmate’s parole eligibility

.

[¶ 14. ] T he only authority granted to the Board under SDCL 24

- 15A

- 32 is to calculate an initial parole date “by applying the percentage indicated in the . . . grid#26418

- 8

- to the full term of the inmate’s sentence[.]” This language, however, does not provide any clear authority to substantively change and enhance the class of the pri ncipal felony when determining the percentage to apply to an inmate’s sentence , nor d oes any other provision in SDCL ch. 24

- 15 A governing parole. 3 Without any precise statutory authority in this chapter and more specifically in SDCL 24

- 15A

32 , we cannot a gree with the Board that the Legislature intended for the principal felony to be enhanced for parole purposes based upon a habitual offender conviction. [¶ 15. ] Further, u nder the Board’s position, even though Rowley’s criminal conduct correspond s to that of a Class 4 felony, his parole eligibility date would be calculated as though he committed a Class 2 felony. The logical interpretation of the statutory language is that the percentage applied to an inmate’s sentence is determined, in part, upon the nature of the crime for which he was convicted , not some formula reserved for sentencing. “ We will not construe a statute to arrive at a strained, impractical, or illogical conclusion.” Santema v. S

. D

. Bd. of Pardons & Paroles , 2007 S.D. 57, ¶ 14, 7 35 N.W.2d 904, 908 (quoting Hoeft v. S

. D

. Bd. of Pardons & Paroles , 2000 S.D. 88, ¶ 9, 613 N.W.2d 61, 63)

. [¶ 16. ] Finally , t he Board’s interpretation of the statutory language ignores the fact that SDCL 24

- 15A

- 32 already takes into account recid ivism. The horizontal axis on the grid found in SDCL 24

- 15A

- 32 contains first, second, and third felonies. The Board’s position factors an inmate’s prior felony convictions in twice: first on

3

. We note that when the Legislature chose to change the class of the principal felony, it provided directions. For example, the last sentence of SDCL 24

- 15A

- 32 provides that “[a] Class A or B felony commuted to a number of years shall be applied to the Class C violent column of the grid. ”#26418

- 9

- the vertical axis, then on the horizontal axis. The Board arg ues that this approach is reasonable because the grid does not account for felony convictions in excess of three; its approach does. [¶ 17. ] T he Board fails to recognize that the parole eligibility statutes have never accounted for more than thre e prior felony convictions. Parole was established in 1905 “ when it was created by § 4 of ch. 144 of the 1905 Session Laws. ” Brim v. S

. D

. Bd. of Pardons & Paroles , 1997 S.D. 48, ¶ 6 n.2 , 563 N.W.2d 812, 81 3 n.2

. Then, an inmate was not eligible for paro le “until he . . . served one

half of the time for which he was sentenced.” 1911 S.D. Sess. L aws ch. 198 , § 1. By 1939, the parole statute, SDC 13.5301, “ contained a detailed formula for when a[n] [ inmate] was eligible for parole [,] ” which, like SDCL 24

- 15A

- 32, did not account for felony convictions in excess of three. 4 Brim , 1997 S.D. 48, ¶ 13, 563 N.W.2d at 815.

4

. 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 c ases: (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 pa role 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; (continued . . .)#26418

- 10

- A lthough subsequent revisions were made to the statutory scheme for parole eligibility , it was never amended to account for more than three f elony convictions. See 2004 S.D. Sess. Laws ch. 168, § 56; 1988 S.D. Sess. Laws ch. 196, § 2; 1978 S.D. Sess. Laws ch. 186, § 20; 1975 S.D. Sess. Laws ch. 174 , § 1

. [¶ 18. ] Evidently, the Legislature is aware that some in mates have more than thre e felony convictions, but chose to consider only three for purposes of determining an inmate’s initial parole date

. As previously stated , “ [we] cannot add language that simply is not there [ , ]” nor can we “ attempt to rew rite the law to conform with what we or others think it should have said. ” Dooley , 2010 S.D. 102, ¶ 14, 792 N.W.2d at 928 (quoting City of Deadwood , 2010 S.D. 5, ¶ 9 , 777 N.W.2d at 632) ; State v. Burdick , 2006 S.D. 23, ¶ 18, 712 N.W.2d 5, 10 (quoting MGA Ins. Co., Inc. v. Goodsell , 2005 S.D . 118, ¶ 29, 707 N.W.2d 483, 488)

. Therefore, we do not agree with the Board that the Legislature intended to account for an inmate’s prior felony convictions twice. [¶ 19. ] Lastly, our interpretation does not permit an inmate with a life
sente nce to be eligible for parole. Both SDCL 22

- 7

- 8.1 and SDCL 24

- 15A

- 32 expressly state that the parole statutes do not apply to an inmate who has received a life sentence. See SDCL 22

- 7

- 8.1 ( “A defendant sentenced

________________________ (. . . continued) (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.#26418

- 11

- pursuant to this section is eligible for c onsideration for parole pursuant to §
24

- 15A

- 32 [only] if the defendant receives a sentence of less than life in prison .” ); SDCL 24

- 15A

- 32 ( “ Each inmate sentenced to a penitentiary term, except those under a sentence of life or death , . . . shall have an i nitial parole date set by the department.

. . . Inmates with life sentences are not eligible for parole. ” ). Accordingly, our interpretation is strictly limited to inmates who have received less than a life sentence , and are thus eligible for parole. C ONCLUSION [¶ 20. ] By its plain language , SDCL 22

- 7

- 8.1 does not substantively change the principal felony nor does the reference to SDCL 24

- 15A

- 32 in the last sentence of SDCL 22

- 7

- 8.1 demonstrate legislative intent to enhance the felony class whe n determining an inmate’s parole eligibility date pursuant to SDCL 24

- 15A

- 32. Further, this Court’s prior decisions confirm that SDCL 22

- 7

- 8.1 enhances a defendant’s sentence, not the principal felony. Finally, nowhere in SDCL 24

- 15A

- 32 did the Legislatu re say that the principal felony may be increased due to a habitual offender conviction when determining an inmate’s initial parole date. As a result , t he Board acted without authority in determining that Rowley was a Class 2 felon when calculating his in itial parole date . We reverse and remand to the Board with directions to calculate Rowley’s initial parole date consistent with the dictates of this opinion. [¶ 21. ] ZINTER and WILBUR, Justices, concur. [¶ 22. ] KONENKAMP and SEVERSON, Ju stices, dissent.#26418

- 12

- SEVERSON, Justice (dissenting). [¶ 23. ] I respectfully dissent. While I agree with the majority that SDCL 22

- 7

- 8.1 does not change the class of the principal felony, Rowley’s parole eligibility is determined by SDCL 24

- 15A

- 32, ba sed on his enhanced sentence due to prior felony convictions. [¶ 24. ] We use statutory construction to find the “‘true intention of the law, which is to be ascertained primarily from the language expressed in the statute.’” State ex rel. Dep’t of T ransp. v. Clark , 2011 S.D. 20, ¶ 5, 798 N.W.2d 160, 162 (quoting In re Guardianship of S.M.N., T.D.N., and T.L.N. , 2010 S.D. 31, ¶ 9, 781 N.W.2d 213, 217

- 18). “‘ When the language in a statute is clear, certain and unambiguous, there is no reason for const ruction, and the Court ’ s only function is to declare the meaning of t he statute as clearly expressed

. ’” Martinmaas v. Engelmann , 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson , 1996 S.D. 76, ¶ 10, 551 N.W.2d 14, 17). [¶ 25. ] The language here is clear. SDCL 22

- 7

- 8.1 provides, in part, “[i]f a defendant has been convicted of three or more felonies in addition to the principal felony . . . the sentence for the principal felony shall be enhanced by two levels. . . .” Rowley’s s entence was enhanced by two levels because he had three prior non

violent felony convictions. His enhanced sentence was based on a Class 2 felony sentence. SDCL 24

- 15A

- 32 directs the Board of Pardons & Paroles to calculate a parole date “by applying the percentage indicated in the following grid to the full term of the inmate’s sentence pursuant to § 22

- 6

- 1.” (Emphasis added.) Importantly, SDCL 24

- 15A

- 32 clearly expresses that the percentage of time served#26418

- 13

- before parole eligibility is based on applying the grid to the full term of the inmate’s
sentence. [¶ 26. ] SDCL 24

- 15A

- 32, as passed by the Legislature, clearly states that parole eligibility is based on the full term of a sentence. The full term of a sentence includes habitual offender enhan cements. It follows, from reading the statute as a whole, 5 that the words “Felony Class” on the grid in SDCL 24

- 15A

- 32 reference the full term that a defendant is actually sentenced to serve, including habitual offender enhancements, not just the class of the underlying felony for which the defendant was convicted. [¶ 27. ] For this reason, I respectfully dissent and would affirm the trial court. [¶ 28. ] KONENKAMP, Justice, joins this dissent.

5

. The whol e - text canon “calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012). This canon construes the statute as a whole to provide context, which “is a primary determinant of meaning.” Id.