#26011-a-DG

2012 S.D. 12

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STACY BRANT, Appellant,

v.

SOUTH DAKOTA BOARD OF

PARDONS AND PAROLES, Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE WILLIAM J. SRSTKA, Jr.

Judge

* * * *

JASON R. ADAMS of

Tschetter & Adams Law Office, PC

Sioux Falls, South Dakota Attorneys for appellant.

MARTY J. JACKLEY

Attorney General

Pierre, South Dakota

and

PATRICK T. PARDY

Special Assistant Attorney General

Sioux Falls, South Dakota Attorneys for appellee.

* * * *

CONSIDERED ON BRIEFS

ON JANUARY 9, 2012

OPINION FILED 02/08/12
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GILBERTSON, Chief Justice

[¶1.] Stacy Brant challenges the partial revocation of his suspended 

sentence, alleging that he did not violate a condition and that he did not have fair 

warning that a violation may result in revocation of his suspended sentence. We 

affirm.

FACTS & PROCEDURAL HISTORY

[¶2.] Brant pleaded guilty to first-degree burglary for an incident occurring 

at a home in Sisseton, South Dakota, on March 23, 2009. At the change of plea 

hearing and sentencing on October 1, 2009, the court ordered the following:

Well the Court has accepted the plea . . . . And at this time the 

Court would sentence the defendant to serve 15 years in the 

state penitentiary with 13 years of that time being suspended. . . 

. He would further be required to provide a full and honest 

debrief as to the incident at 222 Main Street in Sisseton on 

March 23, 2009 to law enforcement. Giving the names of each 

person or persons involved and what that person’s involvement 

was. He would further be expected to cooperate with law 

enforcement if he is requested to provide additional statements 

or sworn testimony. He would be expected to do that in a 

truthful manner.

[¶3.] Immediately after the hearing concluded, Brant completed his debrief

with Sisseton Police Chief Jim Croymans, Court Services Officer Kraig Archer, and 

Brant’s attorney, Kay Nikolas. The debrief was conducted under oath, with a court 

reporter present. After the debriefing, on October 8, 2009, the circuit court signed 

the Judgment of Conviction and Sentence of the Court. It provided: “It is further 

ordered that thirteen (13) years of the penitentiary sentence be suspended on 

conditions that . . . Defendant is to cooperate with law enforcement in all respects 
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and is to make a full, honest and truthful de-brief with law enforcement regarding 

the 3-23-09 incident at 222 Main in Sisseton, SD.”

[¶4.] Based on statements from other individuals, Chief Croymans and 

Archer did not believe that Brant was truthful in his debriefing. The State’s 

attorney submitted documents supporting this position to the South Dakota Board 

of Pardons and Paroles (Board) on October 28, 2009. Based on this information, a 

violation report was filed in December 2009 for failure to comply with the Court 

Order to honestly debrief the incident. 

[¶5.] The Board held a hearing in April 2010. Counsel for Brant argued 

that the circuit court’s oral sentence did not say that Brant’s suspended time could 

be revoked if he failed to comply with the truthful debriefing order.1 Counsel also 

asserted that Brant was truthful in his debrief. The Board determined that Brant 

had violated the terms of his sentence and issued an order that six years and six

months of his sentence be suspended instead of 13 years. Amended findings of fact 

and conclusions of law were issued.

[¶6.] Brant appealed the Board’s decision to the circuit court. A hearing was 

held in February 2011. Brant made the same arguments to the circuit court as he 

had to the Board: that there was a due process violation because Brant did not have 

a fair warning that failure to truthfully debrief would cause his suspended sentence 

to be revoked and that he was truthful. The court issued a decision affirming the 

Board. Brant appeals, alleging that the Board and circuit court erred in 

 

1. Ms. Nikolas did not represent Brant before the Board or on appeal.
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determining that he was given a fair warning that a failure to honestly debrief 

would result in the loss of his suspended sentence, and that violated a condition of 

his suspended sentence.

STANDARD OF REVIEW

[¶7.] “Appeals from the Board are governed by SDCL 1-26-37.” Acevedo v. 

S.D. Bd. of Pardons & Paroles, 2009 S.D. 45, ¶ 7, 768 N.W.2d 155, 158. We 

therefore “review questions of fact under the clearly erroneous standard; mixed 

questions of law and fact and questions of law are reviewed de novo.” Id. “Matters 

of discretion are reviewed under an abuse of discretion standard.” Id. 

ANALYSIS

[¶8.] As we noted in Grajczyk v. South Dakota Board of Pardons & Paroles, 

1999 S.D. 149, ¶ 13, 603 N.W.2d 508, 512, “it is an essential component of due 

process that individuals be given fair warning of those acts which may lead to a loss 

of liberty.”

As a general matter, formal conditions of probation serve the 

purpose of giving notice of proscribed activities. But a formal 

condition is not essential for purposes of notice. Courts have 

sustained the revocation of probation for criminal activity 

committed prior to the effective date of the conditions, or where 

the defendant was not aware of the conditions. In such a case, 

knowledge of the criminal law is imputed to the probationer, as 

is an understanding that violation of the law will lead to the 

revocation of probation. On the other hand, where the 

proscribed acts are not criminal, due process mandates that the 

petitioner cannot be subjected to a forfeiture of his liberty for 

those acts unless he is given prior fair warning.

Id. 
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[¶9.] The same rationale applies to parole. Here, the Board and the circuit 

court determined that Brant’s failure to give a full and truthful debrief was “not a 

violation of the law, meaning he would have needed ‘prior fair warning’ that a 

failure to do such could result in revocation of time suspended.”2 The issue before 

us is whether Brant received a prior fair warning that failing to give an honest 

debrief could result in a revocation of his suspended sentence. We conclude he did. 

[¶10.] The sentencing court stated that it “would sentence the defendant to 

serve 15 years in the state penitentiary with 13 years of that time being suspended. 

. . . He would further be required to provide a full and honest debrief as to the 

incident at 222 Main Street in Sisseton on March 23, 2009 to law enforcement. . . . 

He would further be expected to cooperate with law enforcement if he is requested to 

provide additional statements or sworn testimony. He would be expected to do that 

in a truthful manner.” (Emphasis added.) The court’s word choice indicated that 

the debrief was not an option or a recommendation. In the context of that portion of 

the hearing, the court listed other requirements of Brant’s sentence that were also 

mandatory, such as paying costs, following rules and regulations of the Department 

of Corrections, and eliminating involvement with gang members. It is not 

reasonable to construe this requirement as optional; nor is it reasonable to assume 

that failure to comply would have no consequences. 

 

2. We note that Brant gave his debrief under oath, to an officer. If he lied, then 

he committed perjury. SDCL 22-29-1. Perjury is a crime and knowledge of

criminal law is generally imputed. However, because the circuit court based 

its decision on whether Brant received fair warning, we review the decision in 

that context.
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[¶11.] The parties and the circuit court on appeal discuss Smith v. Board of 

Pardons & Paroles, 515 N.W.2d 219 (S.D. 1994), and State v. Anderson, 331 N.W.2d 

568 (S.D. 1983). In Smith, we held that the defendant did not have fair warning 

that consumption of alcohol was prohibited as a condition of his sentence, only that 

he had to complete alcohol treatment. Smith, 515 N.W.2d at 224. In Anderson, we 

held that the defendant did have fair warning that he could not drive as a condition 

of his sentence because it was part of his written order. Anderson, 331 N.W.2d at 

572. In this case, the circuit court on appeal concluded that Brant’s case was 

somewhere between Smith and Anderson because the court was clear on the 

condition but the written order came after Brant had the opportunity to fulfill the 

condition. Unlike Smith or Anderson, Brant does not argue that he lacked fair 

warning of the condition. Rather, Brant argues that he lacked fair warning of the 

possible consequences of a violation of a condition. However, Brant sought no 

clarification nor raised any questions upon hearing the circuit court’s sentence. 

Based on the context of the hearing and the court’s oral sentence, Brant was warned 

that he had conditions on his sentence. 

[¶12.] The court unequivocally indicated that Brant was to truthfully debrief 

with officers. Brant made no objection at the sentencing to this order.3 Essentially, 

 

3. In fact, Brant’s counsel even said that negotiations regarding the plea deal 

were that the proposed recommendation would be “a 15-year sentence to the 

penitentiary with 13 years suspended on such conditions that the Court might 

set.” The circuit court also discussed the plea agreement with Brant, saying 

that in exchange for the State withdrawing the habitual offender information 

and making a recommendation of a lesser sentence, Brant would “be 

(continued . . .)
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Brant is arguing that he might have done something different had he been explicitly 

told his suspended sentence could be revoked if he refused to cooperate or lied. 

Although Brant makes a due process argument, we have previously said that 

“[t]here is no constitutional right to lie.” State v. Garber, 2004 S.D. 2, ¶ 24, 674 

N.W.2d 320, 326. Neither is there a statutory one. Brant also implies that he 

believed the court gave him a 15-year sentence with 13 years suspended but 

without any conditions that, if violated, would revoke any of the 13 years. This is 

simply not rational.

4 Moreover, the record does not support Brant’s position.

[¶13.] Furthermore, “if the sentencing court was not patently clear at the oral 

sentencing as to its intent, there is guidance to interpret the intent. An orally 

pronounced sentence does control over the written judgment, however, if the verbal 

sentence is not clear, the intent of the sentencing court may be construed from the 

entire record.” Lykken v. Class, 1997 S.D. 29, ¶ 13, 561 N.W.2d 302, 306. Even 

though the circuit court could have explicitly stated that his sentence would be 

revoked if Brant failed to comply, the written judgment and sentence of the circuit 

court is clear and unambiguous. It explicitly provides that “thirteen years of the 

penitentiary sentence be suspended on conditions that . . . . Defendant is to 

_________________________

(. . . continued)

sentenced to serve 15 years in the penitentiary with 13 years suspended . . . 

[plead] guilty to the charge of First Degree Burglary and the Court then could 

impose that sentence as well as the standard terms and conditions. Is that 

your understanding of the agreement?” Brant answered affirmatively. 

4. We note that Brant has a criminal record so this was not his first experience 

with the judicial system.
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cooperate with law enforcement in all respects and is to make a full, honest and 

truthful de-brief with law enforcement regarding the 3-23-09 incident at 222 Main 

in Sisseton, SD.” (Emphasis added.) There is no question that it was the court’s 

intent that a truthful debrief be a condition of the suspended sentence. 

[¶14.] Brant also argues that the Board erred in determining that he violated 

the condition of his suspended sentence that he truthfully debrief with law 

enforcement. Specifically, Brant asserts that Chief Croymans and Archer depended 

on statements made by three unreliable individuals to reach their conclusion. All 

three individuals made statements that Brant was not involved and later 

statements that he was. At the Board hearing, Brant’s private investigator testified 

that Brant had remained consistent on his version of the events. A friend of the 

victim testified that the victim told him that Brant was not involved. 

[¶15.] We have previously noted that:

Before the Board may revoke the suspended portion of a 

sentence, it must be “reasonably satisfied” that the terms of the 

suspension have not been followed. So long as there is adequate 

evidence to support that minimal level of scrutiny, the Board 

has not abused its discretion in revoking the suspended sentence 

and its decision should be upheld. 

Austad v. S.D. Bd. of Pardons & Paroles, 2006 S.D. 65, ¶ 8, 719 N.W.2d 760, 764. 

The Board found that it was reasonably satisfied that Brant had violated a 

condition of his suspended sentence based on the transcript of the debrief and 

testimony of others. Brant has not demonstrated that this finding is clearly 

erroneous. Based on a review of the record and giving regard to the circuit court on 

appeal and the Board’s determination of credibility, we affirm.
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[¶16.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.