author: KLAPHAKE, Judge. DIETZEN, Judge

text:
    In the Matter of the Application for PERA Police and Fire Plan Line of Duty Disability Benefits of Stephen BRITTAIN.
    No. A04-2407.
    Court of Appeals of Minnesota.
    Nov. 15, 2005.

      Denise Yegge, Charles A. Horowitz; Mansfield, Tanick & Cohen, Minneapolis, MN, for relator Stephen Brittain.
    Mike Hatch, Attorney General, Jon K. Murphy, Rory H. Foley, Assistant Attorneys General, St. Paul, MN, for respondent Public Employees Retirement Association.
    Considered and decided by DIETZEN, Presiding Judge, KLAPHAKE, Judge, and PETERSON, Judge.
   OPINION

KLAPHAKE, Judge.

By writ of certiorari, relator appeals from the decision of the Public Employees Retirement Association (PERA) denying him line-of-duty disability benefits payable under Minn.Stat. § 353.656, subd. 1 (2004). PERA interpreted the statute to provide line-of-duty benefits only when the injury, sickness, or disability was incurred during a hazardous situation.

Because the statute provides line-of-duty benefits to a person injured during “any act of duty,” without limitation to hazardous situations, we reverse.

FACTS

Relator Stephen Brittain had been a Ramsey County Deputy Sheriff for 16 years when he developed severe depression in August 2002. Prior to 2002, relator had no problems at work, except for mild hearing loss from being a firearms instructor. In 2002, a new supervisor became acting head of relator’s unit. Relator and the new supervisor clashed; relator felt that she was “out to get [him]” and co-workers told him that she referred to him as one of the “male slugs” who was “brain dead.” Relator and some of the male deputies felt that the supervisor favored female deputies and her own brother, assigning them easier jobs with more overtime. The bad feelings between relator and the new supervisor culminated in a shouting match on August 9, 2002. On August 27, 2002, relator went on medical leave.

Relator consulted with his family physician, Dr. Kenneth Hodges, and a psychologist, Brockman Schumacher. Schumacher supported relator’s medical leave, based on findings of “insomnia, somatic difficulties, diminished enjoyment of usual activities, intrusive ruminative thinking, depressed mood, exhaustion, difficulty concentrating, emotional lability, and agitation.” Relator began receiving disability benefits.

Ultimately, both Hodges and Schumacher opined that relator was unable to perform the duties of a deputy sheriff, based on major mental disorder, primarily depression, which arose out of the course of his duties. PERA consulted with physicians from the Minnesota Department of Health, who agreed that relator was medically disabled due to depression. In December 2003, PERA awarded relator a non-duty disability pension, but denied him a line-of-duty disability pension, a difference of about $500 per month.

Relator asked for a fact-finding conference before an administrative law judge (ALJ). After a hearing, the ALJ issued findings of fact, conclusions, and a recommendation that relator be granted a line-of-duty disability pension, stating:

[Relator] has demonstrated by a preponderance of the evidence, that his disability is the direct result of a depression that was incurred in or arose out of his service as a Ramsey County Sheriffs Deputy. While his loss of hearing added to his stress on the job, it was not the primary cause for the depression. Instead, the primary cause for the depression was the hostility which he perceived in his working environment. His depression arose out of an act of duty, and thus he is entitled to line of duty benefits.

Despite the ALJ’s recommendation, the PERA staff recommended that its board deny relator line-of-duty benefits. On October 14, 2004, the board denied relator’s application because (1) relator was already receiving disability benefits, albeit not line-of-duty benefits; and (2) relator’s depression was the result of his perception of a hostile work environment, and not the result of the inherent dangers of a sheriff deputy’s job. Relator filed a petition for a writ of certiorari, which was granted.

ISSUE

Did the PERA Board err by concluding that depression resulting from a hostile work environment is not a disability incurred in or arising out of any act of duty within the meaning of Minn.Stat. § 353.656, subd. 1 (2004)?

ANALYSIS

The appellate court reviews the actions of a public retirement fund board under the same standard of review as the actions of an administrative agency. Axelson v. Minneapolis Teachers’ Ret. Fund Ass’n., 544 N.W.2d 297, 299 (Minn.1996). The quasi-judicial decision of such a body will not be reversed unless it is fraudulent, arbitrary, unreasonable, unsupported by substantial evidence, not within its jurisdiction, or based on an error of law. Id. The reviewing court is not bound by the agency’s decision and need not defer to agency expertise, although a certain amount of deference is paid to the agency’s interpretation of its own regulations, if they are unclear or ambiguous. St. Otto’s Home v. Dept. of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989). Statutory construction, however, is a question of law reviewed de novo. Brookfield Trade Ctr. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

Minn.Stat. § 353.656, subd. 1 (2004) provides line-of-duty benefits if a police officer becomes physically or mentally unable to perform the duties of a police officer for a period of at least one year “as the direct result of an injury, sickness, or other disability incurred in or arising out of any act of duty.” Both physical and mental disabilities are included in the statute. Id. “Nonduty disability benefit[s]” are paid if a police officer becomes unable to perform his duties “because of sickness or injury occurring while not on duty as a police officer.” Id., subd. 3.

The basis for PERA’s denial of line-of-duty benefits is its interpretation of Minn. Stat. § 353.656, subd. 1, in conjunction with MinmStat. § 353.63 (2004), which states:

It is the recognized policy of the state that special consideration should be given to employees of governmental subdivisions who devote their time and skills to protecting the property and personal safety of others. Since this work is hazardous, special provisions are hereby made for ... disability benefits ... based on the particular dangers inherent in these occupations. The .benefits provided for in sections 353.63 to 353.68 are more costly than similar benefits for other public employees since they are computed on the basis of a shorter working lifetime taking into account experience which has been universally recognized. This extra cost should be borne by the employee and employer alike at the ratio of 40 percent employee contri-buttons and 60 percent employer contributions.

PERA concluded that this language limits line-of-duty benefits to disabilities incurred during hazardous situations and further concluded that “[disabilities resulting from factors such as supervisory harassment or hostile work environment do not constitute a disability arising out of an Act of Duty.”

. Both relator and PERA agree that relator is occupationally disabled and that his disability occurred as the result of a hostile work environment. There is no indication in the record that relator had a history of depression or mental illness before his employment or that there was any triggering event not related to his employment. It is interpretation of the statute, rather than the issue of causation, that is before us.

Laws are construed to “ascertain and effectuate the intention of the legislature.” MinmStat. § 645.16 (2004). Thus the letter of the law, if clear and unambiguous, may not be disregarded “under the pretext of pursuing the spirit.” Id. Words and phrases are interpreted according to their common meaning, except for words or phrases that have acquired a technical or special meaning. MinmStat. § 645.08 (2004).

MinmStat. § 353.656, subd. 1, states that line-of-duty benefits are payable for a disability that is “a direct result of an injury, sickness, or other disability incurred in or arising out of any act of duty” that renders, the employee unable to perform his or her duties. (Emphasis added.) The statute does not include any limitation on the type of duty or offer a definition for “act of duty.” Although Minn.Stat. § 353.63, which describes the purpose or policy of the special benefits for police officers and firefighters, refers to the hazardous nature of the work, it does not specifically delineate that certain benefits are available only if earned during a dangerous situation; rather, it refers generally to the “particular dangers inherent in these occupations.” This statute also notes that because these employees have a “shorter working lifetime,” the benefits are more expensive, and therefore the “extra cost should be borne by the employee and employer alike.” Id. On its face, Minn. Stat. § 353.63 is, as PERA suggests, a statement of policy; it justifies the payment of more liberal benefits to those engaged in certain hazardous occupations and provides for financing the increased costs. It does not, however, limit these benefits to injuries incurred while performing hazardous duty.

Our interpretation of this statute is borne out by the legislative history. Minn. Stat. § 353.63 was enacted by 1959 Minn. Laws ch. 650, § 31, and is unchanged since that time. It was enacted together with the provisions that established different and more generous retirement benefits for police officers and firefighters, set lip. a fund separate from the PERA fund available to other public employees, and funded the benefits. In 1971, the legislature added Minn.Stat. § 353.656 to address the question of disability benefits. See 1971 Minn. Laws ch. 297, § 3. Although certain changes in language have occurred over the years, the basic language of the statute has remained the same: line-of-duty benefits are payable for injuries “incurred in or arising out of any act of duty”; non-duty benefits are payable for injuries incurred “while not on duty as a police officer.” Again, this clear distinction between benefits for disabilities incurred while on duty and those incurred while off-duty supports our conclusion that this statute is not ambiguous.

This court recently issued an opinion that analyzed the phrase “any act of duty.” In re Application of Hildebrandt, 701 N.W.2d 293, (Minn.App.2005). Relator Hildebrandt was employed as a 911 operator who was ultimately deemed disabled after she experienced a severe anxiety reaction and depression from responding to a 911 call. The PERA Board denied Hil-debrandt duty-related benefits, concluding that “act of duty”' disabilities must arise from an inherent danger associated with her job, and that Hildebrandt was experiencing stress because of her “reaction to the expectations of her supervisors” and “this reaction was not a condition that would arise normally out of her prescribed duties.” In reversing the board’s denial of duty-related benefits, this .court stated: “Applying the common meaning of ‘any’ to ‘act of duty,’ it is clear that the legislature intended a local correctional employee to receive ‘duty-related’ disability benefits for injuries that were directly caused by all tasks or functions required of that employee, without limitation.” Id. at 299-300.

The dissent’s analysis of the phrase “act of duty” supports our analysis. The dissent defines an “act” as “[sjomething done or performed; a deed,” and “duty” is defined as “[a] service, function, or task assigned to one,” concluding that an “ ‘act’ of duty requires two things: (1) the performance of a task or deed; and (2) the task or deed must involve an activity that the employee had some obligation to perform or otherwise be integral to the responsibilities that he or she was assigned to perform.” Nothing in this analysis contradicts our conclusion that appearing for work and performing one’s job are acts of duty for an employee, perhaps the most basic acts of duty required of an employee. The dissent asserts that “[i]t is hard to conceive of anything not covered under [our] reasoning,” and that coverage could be provided absent any requirement of causation. But causation is not the issue here; both parties agreed that relator’s problems were caused by his work environment. Further, disabilities that are the result of sickness or injuries incurred outside the workplace or which are rooted in a personal history of mental illness or psychosis are not covered.

Although the dissent focuses on the phrase “act of duty,” it ignores one part of the statutory phrase: “any” act of duty. As this court stated in Hildebrandt, “any act of duty” applies to “all tasks or functions required of that employee, without limitation.” 701 N.W.2d at 299-300. If the legislature intended to cover only hazardous acts, it could have clarified this with limiting language.

The parties here agree that relator’s injury arose out of the hostile work environment. The language of the statute is unambiguous on its face: line-of-duty benefits are payable for injuries incurred in or arising out of any act of duty, including a disability incurred as the result of a hostile work environment. We therefore conclude that the PERA Board erred in its interpretation of the law.

DECISION

Under the unambiguous language of Minn.Stat. § 353.656, subd. 1, relator is entitled to line-of-duty disability benefits because his disability was incurred in or arose out of his duties as a sheriffs deputy.

Reversed.

DIETZEN, Judge

(dissenting).

I respectfully dissent. This is a case of statutory interpretation, which we review de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998). Yet “[w]hen the meaning of a statute is doubtful, courts should give great weight to a construction placed upon it by the Department charged with its administration.” Mammenga v. State Dept. of Human Servs., 442 N.W.2d 786, 792 (Minn.1989) (quotation omitted).

Relator claims that he is entitled to line-of-duty disability benefits because he was exposed to a hostile work environment over a period of. months, and that his supervisor’s unfair and vindictive behavior caused his depression. The Public Employees Retirement Association of Minnesota (PERA) board reviewed the entire record and denied relator’s application for line-of-duty benefits. In so doing, the PERA board adopted and incorporated by reference the PERA Staffs August 30, 2004 Fact Sheet and exceptions to the ALJ report. The PERA Staff found that: (1) relator’s problems were a result of “personnel changes, office reorganization and his interaction with his supervisor, ... not because of his duties as a deputy sheriff, as outlined in the job description for that position”; and (2) relator’s “reaction to routine personnel policies implemented by [the sheriffs office] were the basis for his depression, not the duties of the position itself.” The staff did not find that relator’s problems were incurred as a result of following the directives of his supervisor.

Two reasons support my dissent. First, the statute in question limits coverage to an “act of duty.” The PERA, statute in pertinent part reads: ' '

A member of the police ... who becomes disabled and physically unfit to perform duties as a police officer ... as a direct result of an injury, sickness, or other disability incurred in or arising out of any act of duty, which has or is expected to render the member physically or mentally unable to perform the duties as a police officer ... for a period of at least one year, shall receive disability benefits during the period of disability-

Minn.Stat. § 353.656, subd. 1 (2004) (emphasis added). The purpose of all statutory interpretation is to discern the intention of the legislature. Id. § 645.16. Minnesota law does not define “act of duty.” Therefore, the words and phrases must be construed according to their common meaning unless they have otherwise acquired a technical or special meaning. Id. § 645.08(1).

“Act,” among other possibilities, is defined as “[sjomething done or performed; a deed.” The American Heritage Dictionary 16 (4th ed. 2000). Thus, an act is a task or deed that is affirmatively done or performed. “Duty” in this context is “[a] service, function, or task assigned to one, especially in the armed forces: hazardous duty.” Id. at 557 (emphasis in original). Hence, the phrase an “act of duty” requires two things: (1) the performance of a task or deed; and (2) that the task or deed must involve an activity that the employee had some obligation to perform or must otherwise be integral to the responsibilities that he or she was assigned to perform. This interpretation is supported by the statutory canons of construction for two reasons. First, it interprets “act of duty” according to its plain and ordinary meaning. Minn.Stat. § 645.08(1). Second, the interpretation gives meaning to all of the words in the phrase “act of duty.” See id.

Under the majority’s interpretation, the statute would extend line-of-duty disability benefits to everything that occurred at the workplace. It is hard to conceive of anything that is not covered under the majority’s reasoning. Such an interpretation would provide broader coverage than the Worker’s Compensation Act, and without any requirement of causation. And it may extend to activities normally considered outside the course and scope of employment. But the statutory language “act of duty” clearly indicates a legislative intent to provide limited coverage. Consequently, the term “act of duty” must be read as a limitation on the ability to recover line-of-duty benefits to only those claims where the applicant was performing a task or deed that the applicant had some duty to perform.

This case is distinguishable from In re Hildebrandt, 701 N.W.2d 293, 298 (Minn.App.2005). In Hildebrandt, the relator was a 911 operator who experienced severe anxiety and depression from fielding an emergency call. See id. at 295-96. Under those facts, this court held the relator was entitled to similar duty-related disability benefits. Id. at 301. Clearly, fielding the 911 call was an act of duty integral to the relator’s performance as an operator. Here, the mere exposure to a perceived hostile work environment is not an “act of duty”: there is no act, such as fielding a 911 call, or duty, such as aiding a citizen in an emergency situation.

Second, relator fails to meet his burden of demonstrating that his depression arose from any “act of duty.” In re Application of Allers, 533 N.W.2d 646, 652 (Minn.App.1995), review denied (Minn. Aug. 30,1995). The PERA board found that relator did not do anything; he was simply exposed to a situation he perceived as hostile. The board found that relator’s reaction to routine personnel policies caused his depression. Based on these findings, the board determined that relator must show more than his subjective feelings in order to qualify for these benefits. The board’s determination is entitled to deference. Mammenga, 442 N.W.2d at 792. Relator does not present evidence to demonstrate he performed any “act of duty” which gave rise to his depression. Without such proof, the board properly refused to base benefits solely upon relator’s perception.

      . The Minnesota statute differs from those of foreign jurisdictions cited by PERA, which include a definition of “act of duty” that requires “special risk” or "heroism.” See, e.g., Trettenero v. Police Pension Fund, 268 Ill.App.3d 58, 205 Ill.Dec. 731, 643 N.E.2d 1338 (1994).

      . Although Hildebrandt’s disability benefits were governed by Minn.Stat. § 353E.06, subd. 1 (2004), the language is similar to Minn.Stat. § 353.656, subd. 1: duty-related benefits are payable for physical or mental disabilities incurred as a direct result of injury, sickness, or other disability, "that was incurred in or arose out of any act of duty.” (Emphasis added.)

      . Even if there is some question as to the meaning of "act of duty,” the benefit of the doubt should be resolved in favor of the PERA Board’s interpretation of the statute. See Mammenga, 442 N.W.2d at 792. The PERA Board determined that a disability allegedly resulting from a hostile work environment is not a disability incurred in or arising out of any "act of duty.” This determination predicated on the board’s reading of the statute and is entitled to deference.


source: Caselaw Access Project

author: MEIERHENRY, Justice.

license: Public Domain

text:
    2005 SD 103
    Neil LEE, Petitioner and Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Respondent and Appellee.
    No. 23532.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 30, 2005.
    Decided Oct. 19, 2005.

      Kenneth M. Tschetter, Sioux Falls, SD, for plaintiff and appellant.
    Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, for defendant and appel-lee.
   MEIERHENRY, Justice.

[¶ 1.] This is an appeal from the trial court’s review of the Board’s revocation of Neil Lee’s parole and suspended sentence. We affirm.

FACTS

[¶ 2.] Neil Lee (Lee) pleaded guilty to possession of a controlled substance on October 10, 2002. He was sentenced to ten years in the South Dakota Penitentiary, with five of those years suspended contingent on his compliance with various conditions of suspension. After serving approximately two years of his sentence, Lee was offered parole. As a condition of parole, Lee was required to sign a supervision agreement. Condition 8 of the agreement provided: “I will not leave my assigned Agent’s area or the State of South Dakota without permission, keeping my parole agent informed of my whereabouts and activities and submit such reports as required.” A similar condition was not contained in the conditions of Lee’s suspended sentence. Lee signed the agreement and was released on parole on June 18, 2004.

[¶ 3.] Within the first week of Lee’s release, his parole' agent was unable to locate him. A violation report was filed on July 1, 2004, for violation of Condition 8 of the supervision agreement. Lee was eventually apprehended in Pipestone, MN on July 19, 2004.

[¶ 4.] Once Lee was back in custody, the parole revocation process began. Lee waived his right to a preliminary hearing and his right to a hearing before the Board of Pardons and Paroles (Board). He admitted to violating Condition 8 of his supervision agreement, but he submitted a letter to the Board. In the letter, Lee did not present any legal arguments or defenses in opposition to the violation of the parole conditions. Rather, he presented the potentially mitigating information explaining that he had absconded to help his daughter, who was having some personal problems. Because Lee had admitted to the violation, had waived his right to appear at a hearing, and had offered no defense but only mitigating evidence by way of a letter, no evidentiary hearing was held on the matter. The Board found that Lee had violated the terms of both his parole and his suspended sentence. An order revoking both parole and the suspended sentence was entered and the entire ten year sentence was imposed with no credit for the time spent on parole.

[¶ 5.] Lee appealed the order pursuant to SDCL 1-26-30.2. He then sought, and was provided, court appointed counsel. Lee filed a statement of issues which alleged that the Board violated Lee’s due process rights by revoking his suspended sentence without providing proper notice that such a consequence was possible for violating Condition 8 of the supervision agreement. The Board submitted the limited agency record to the circuit court pursuant to SDCL 1-26-33. On December 21, 2004, without holding a hearing, the circuit court issued a memorandum decision denying Lee’s appeal. A formal Order of Affirmance and Dismissal was filed on January 3, 2005. Lee appeals.

ISSUES

1. Whether the circuit court erred in finding the Parole Board had the authority to revoke Lee’s suspended sentence.
2. Whether the circuit court abused its discretion in failing to grant a hearing to address Lee’s claims.

STANDARD OF REVIEW

[¶ 6.] This is an appeal from an agency decision. SDCL 1-26-37 governs the standard of review. We review questions of fact under the clearly erroneous standard; mixed questions of law and fact and questions of law are reviewed de novo. Grajczyk v. State, 2003 SD 74, ¶ 7, 666 N.W.2d 472, 474. Matters of discretion are reviewed under an abuse of discretion standard. See State v. Goodwin, 2004 SD 75, ¶ 4, 681 N.W.2d 847, 849.

DECISION

The Parole Board’s Authority to Revoke the Suspended Sentence

[¶ 7.] Pursuant to Lee’s admission, the Board found him in violation of the supervision agreement and revoked both his parole and his suspended sentence. Lee does not dispute that the Board generally has authority to revoke a suspended sentence. See Turo v. Solem, 427 N.W.2d 843, 846 (S.D.1988). Rather, Lee argues that the Board had no authority to do so in this case because he was not provided sufficient notice or “prior fair warning” that the suspended portion of his sentence could be revoked as part of his parole or the parole revocation process. See Smith v. Board of Pardons and Paroles, 515 N.W.2d 219, 223 (S.D.1994). The evidence does not support his claim.

[¶ 8.] Before being released on parole, Lee signed a supervision agreement in the presence of a witness. The agreement stated the following:

I understand and agree that in the event I violate parole prior to my suspended sentence commencing, the Board has the authority to revoke the suspended portion, impose the entire sentence; and I may not be given credit for time spent on suspended sentence. The Board is charged with the responsibility for enforcing the conditions imposed by the sentencing judge and the Board retains jurisdiction to revoke the suspended portion of the sentence for violation of the terms of the suspension.

This provision expressly and clearly notified Lee that a violation of the parole conditions could result in the revocation of the suspended sentence. Lee’s argument that the second sentence of the provision creates confusion and results in the notice being insufficient is unpersuasive. The meaning of the first sentence is unmistakable, even when considered in connection with the second sentence. Therefore, proper notice was provided to Lee. Consequently, his contention that the Board lacked authority to revoke the suspended sentence due to insufficient notice must fail.

Failure to Grant a Hearing

[¶ 9.] Lee further contends that his parole officer did not review the agreement with him, making the notice provided insufficient. The trial court did not consider this assertion, because it was raised for the first time on appeal and because it was “based on facts which do not appear in the settled record.” The record supports the court’s finding. Because Lee waived any hearing before the Board and admitted to the violation of his supervision agreement, no testamentary evidence was taken by the agency. The record is devoid of any information concerning this allegation. Since the trial court’s review of the agency decision was “confined to the record,” facts not contained in the record cannot be raised absent the assertion of a specific legal basis for doing so. See SDCL 1-26-35.

[¶ 10.] In this case, Lee asserted no legal basis to the trial court that would allow the court to consider non-record evidence. So, to this extent, the trial court was correct in not considering the new evidence. Additional evidence can only be presented in an administrative appeal if the party can satisfy the court “that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency.” SDCL 1-26-34. The statute provides:

If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.

Id. The problem Lee faces is that he did not apply to the court “for leave to present additional evidence.” See id. His failure to ask the court’s permission to present additional evidence precludes our consideration of the matter. See Weber v. South Dakota Dept. of Labor, 323 N.W.2d 117, 120 (S.D.1982) (“Issues not presented at the trial court level are not properly before this Court”).

[¶ 11.] Lee now claims that he was erroneously denied an opportunity to request the court to allow additional evidence because the trial court failed to schedule and hold a hearing pursuant to SDCL 1-26-33.6. Lee claims he was unable to make the request because the trial court decided and issued an opinion based solely on the record without setting a hearing date. Lee claims that it was error not to set a date and time for hearing. He relies on SDCL 1-26-33.6 which provides:

Upon the filing of the record and other papers in the office of the clerk of the circuit court, it shall be the duty of such court when its attention is called to the matter by the parties, or one of them, immediately to fix a date for hearing, and said cause shall be speedily heard and determined.

Lee argues that SDCL 1-26-33.6 requires the court to set a hearing date. Lee claims that by making a decision without setting a hearing, the trial court improperly deprived Lee of his opportunity to file his application.

[¶ 12.] We do not agree. Under the plain meaning of the statute, the parties have the responsibility to notify the court of the necessity to set a hearing date. Under normal circumstances, the trial court has the discretion of setting a date for oral argument or deciding the matter based on the record without oral argument. The statute provides:

The review shall be conducted by the court without a jury and shall be confined to the record. A trial de novo may not be granted unless otherwise authorized by law, but in eases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, may hear oral argument.

SDCL 1-26-35. The wording of SDCL 1-26-33.6 requires the court to set a hearing date only “when its attention is called to the matter by the parties.” Id.

[¶ 13.] Here, Lee was aware of his right to present additional evidence under SDCL 1-26-34, but he simply failed to pursue that right. In his verified motion to waive fees and appoint counsel, Lee stated “that he was aware that he has the right to request [the circuit court] to amend the record or conduct a trial de novo pursuant to 1-26-34 and 35.... ” Subsequently, when Lee’s counsel filed his brief with the circuit court prior to that court’s decision, Lee specifically raised the issue that his parole agent had not reviewed the supervision agreement with him. Moreover, the state responded by specifically pointing out that Lee’s allegation was not in the record and Lee had not filed a motion to consider this nonrecord evidence as required by SDCL 1-26-34. Lee, however, never made the motion. Thus, he was not denied the opportunity to present additional evidence to the trial court.

[¶ 14.] Further, Lee waived his right to a hearing before the Board. Consequently, there were no transcripts presented as part of the appeal. Had he intended to ask permission to submit additional evidence, he needed to apprise the trial court of that intent. Had Lee done so, the court would have been put on notice that a hearing needed to be scheduled. Without that application, the trial court could not have known that Lee was requesting an eviden-tiary hearing. All Lee requested was oral argument. The trial court denied the request for oral argument and decided the case based on the record. The trial court has discretion to deny oral argument. SDCL 1-26-35. Since the court proceeded without oral argument, it had no need to schedule a hearing date. Without Lee’s request to present additional evidence, the court had no reason to schedule a hearing date. Therefore under these circumstances, Lee was not denied the opportunity to move to present additional evidence and the trial court did not err by failing to schedule a hearing.

[¶ 15.] We affirm.

[¶ 16.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.


author: ZINTER, Justice.

text:
    2005 SD 106
    STATE of South Dakota, Plaintiff and Appellee, v. Joseph Wayne THIN ELK, aka Joseph Wayne Ross, Defendant and Appellant.
    No. 23513.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 30, 2005.
    Decided Oct. 19, 2005.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Gary W. Conklin, Sioux Falls, SD, for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Joseph Wayne Thin Elk, also known as Joseph Wayne Ross, was charged with first-degree murder. Thin Elk entered a guilty plea and received a sentence of life imprisonment. Thin Elk appeals, asserting that (1) his guilty plea was not intelligent and voluntary; and (2) there was an insufficient factual basis for the trial court to accept his guilty plea. We disagree and affirm.

Facts and Procedural History

[¶ 2.] On July 12, 2004, Thin Elk attended a party at the apartment of Orlando Foolbull. At the party, a fight started between Foolbull and Dondrell Buffalo. During the fight, Thin Elk approached Buffalo and shot him three times in the head, killing him. Thin Elk left the scene and was eventually apprehended in South Sioux City, Nebraska.

[¶ 3.] Thin Elk was indicted on one count of first-degree murder and one count of grand theft. He initially pleaded not guilty. Later, against the advice of counsel, he pleaded guilty to first-degree murder. He was sentenced to life imprisonment without parole.

Analysis and Decision

[¶ 4.] Thin Elk’s first contention is that his guilty plea was not intelligent and voluntary. In Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970), we adopted the advisement of rights requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and, in addition, required that a defendant understand the nature and consequences of his guilty plea. SDCL 23A-7-4 also contains additional requirements that must be satisfied before a court may accept a guilty plea.

[¶ 5.] In determining whether a plea was intelligently and voluntarily made, we not only look to the foregoing requirements, but we also look to the totality of the circumstances. State v. Lashwood, 384 N.W.2d 319, 321 (S.D.1986) (citations omitted). We consider “the defendant’s age, prior criminal record, and whether he was represented by counsel.” Weiker v. Solem, 515 N.W.2d 827, 832 (S.D.1994) (citations omitted). Other factors include “the existence of a plea agreement” and “the time lapse between the explanation of rights at the arraignment and [when] the guilty plea [was] considered.” State v. Goodwin, 2004 SD 75, ¶¶ 15, 17, 681 N.W.2d 847, 853-54.

[¶ 6.] A review of this record clearly reflects that the trial court ensured an intelligent and voluntary plea by first satisfying the requirements of Boykin and Nachtigall, With respect to the right to a trial, the judge explained the aspects of a jury trial, informing Thin Elk that: twelve jurors would hear the ease; it was the jury’s responsibility to hear all of the evidence, including the State’s and his witnesses; he could testify at the trial and the jury would hear his evidence; and the jury would decide whether he was guilty or not guilty of the crime. Thin Elk was warned that by entering a plea of guilty he would waive this right to a jury trial.

[¶ 7.] Thin Elk was also informed of his right to confront his accusers as well as his right to subpoena witnesses to present his side of the case. The judge continued and told Thin Elk that by pleading guilty he would be waiving these rights. In order to ensure Thin Elk understood these consequences, the judge then reiterated that if Thin Elk entered á plea of guilty there would be no jury trial, he would not have the opportunity to talk to a jury, and he would not be able to see or confront any of the State’s witnesses. The judge asked Thin Elk if he understood that he was giving up these rights, and Thin Elk responded that he did.

[¶ 8.] The judge next addressed Thin Elk’s right against compulsory self-incrimination. Thin Elk was informed that he had the right to remain silent, and in very simplistic terms, the judge went into detail explaining this right. The judge also advised Thin Elk that by pleading guilty he was waiving his right to remain silent “in a very, very strong way” because his plea would make him guilty of the crime. Thin Elk acknowledged that he understood that he was giving up this right by entering a guilty plea.

[¶ 9.] The judge then reviewed the foregoing rights one additional time. After reiterating that Thin Elk would be waiving his right against self-incrimination, his right to a jury trial, and his right to confront and cross-examine the State’s witnesses by pleading guilty, the judge asked Thin Elk if he had any questions. Thin Elk, again, indicated that he understood and did not have any questions about the waiver of his rights. This colloquy clearly satisfied the requirements of Boykin.

[¶ 10.] We now turn to the additional requirements of Nachtigall and SDCL 23A-7-4 that were not satisfied by the Boykin advisement. The first subsection of SDCL 23A-7-4 requires an advisement of the charge, including its mandatory minimum and possible maximum penalties. In addressing these requirements, the judge informed Thin Elk that he was charged with first-degree murder for killing Dond-rell Buffalo without lawful authority and with a premeditated design. He was further informed that murder in the first-degree was a Class A Felony that was “punishable by either death or life in the State Penitentiary.” However, the judge continued, stating that in this case the punishment would be life in the state penitentiary and that the court was not permitted to reduce that sentence. Thin Elk stated that he understood both the charge and his sentence.

[¶ 11.] The second subsection of SDCL 23A-7-4 requires that the court inform the defendant that he has the right to court-appointed counsel if he was not represented by an attorney. Because Thin Elk was represented by two attorneys throughout these proceedings, this requirement was satisfied.

[¶ 12.] The third subsection requires that the defendant must know and understand that he has the right to plead not guilty. It is very clear from this record that the defendant was aware of his right to plead not guilty. This is apparent from both of his attorneys’ advisement to plead not guilty. Furthermore, the judge asked Thin Elk if he understood that his lawyers were advising him not to plead guilty, and Thin Elk stated that he understood.

[¶ 13.] Finally, the requirements in the fourth subsection were satisfied by the court’s Boykin advisement, and the fifth subsection was inapplicable as Thin Elk has not been prosecuted for perjury for anything he said in entering his plea or answering questions of the court. Thus, because the circuit court complied with Boykin, Nachtigall, and SDCL 23A-7-4, Thin Elk’s plea was intelligent and voluntary.

[¶ 14.] Thin Elk, however, disagrees, contending that:

1. He entered a plea virtually without counsel as his two attorneys were unable to persuade him from entering a guilty plea;
2. Having just turned eighteen and committed his first adult felony, “his age and lack of exposure to the adult legal system” prevented him from ’ making an intelligent plea;
3. He was accustomed to the juvenile corrections system, which is geared toward rehabilitation as opposed to the harsher and more punitive adult system; and
4. There was an abrupt transition from the juvenile system to the adult criminal system as there were only twelve days between his release from the juvenile system and his incarceration in the adult system; thus, he “was too young and immature to make a reasoned decision to surrender his right to a trial and other constitutional due process protections.”

[¶ 15.] The totality of the circumstances does not sustain these contentions. Thin Elk was eighteen years old at the time of his guilty plea. However, his juvenile record indicates that he was more than familiar with the criminal justice system. Moreover, he was vigorously represented by two attorneys who advised him against this plea of guilty. Therefore, although Thin Elk contends that he was too immature to make a reasoned decision, we conclude that he received all the law requires. “The fundamental test is whether the plea of guilty was an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” Hofer v. Class, 1998 SD 58, ¶ 26, 578 N.W.2d 583, 588 (citation omitted). Here, Thin Elk’s age, juvenile record, and the advice of counsel, when considered in conjunction with the trial court’s extensive explanation of his constitutional and statutory rights, clearly reflect that his guilty plea was an intelligent act done with knowledge of the circumstances and consequences. Therefore, despite his recent experiences in the juvenile system, Thin Elk’s plea was intelligent and voluntary.

[¶ 16.] Thin Elk finally contends that because he pleaded to a life sentence with no plea bargain or other legal benefit, his plea was not intelligent and voluntary. Although there was no plea agreement, one of his attorneys explained that Thin Elk’s “decision to plead guilty was not based on the strength of the State’s case but on his desire to confront the awful truth of the thing he did ... that he can’t undo.” As a result, while Thin Elk may not have received any legal benefit of a plea agreement, the record reflects rational thought in his decision to plead guilty; i.e., the peace of mind he received in return for taking responsibility for his actions.

[¶ 17.] In sum, the record reflects that the court informed Thin Elk of his constitutional and statutory rights, and Thin Elk understood that by entering a guilty plea he would waive those rights. We, therefore, find that under the totality of the circumstances, Thin Elk’s subsequent plea was intelligent and voluntary.

Factual Basis for Guilty Plea

[¶ 18.] SDCL 23A-7-2 (Rule 11(a)) and SDCL 23A-7-14 (Rule 11(f)) provide that a court may not accept a defendant’s guilty plea unless there is a factual basis for the plea. “The purpose of establishing a factual basis for a plea is to ‘protect a defendant who is in a position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’ ” Lashwood, 384 N.W.2d at 321 (citations omitted).

[¶ 19.] Thin Elk contends that there was an insufficient factual basis for the trial court to find that he committed first-degree murder. Thin Elk points out that his counsel “reluctantly” made statements confirming a factual basis. He also argues that the trial court gave undue weight to his defense counsel’s statements confirming a factual basis for the charge.

[¶ 20.] However, a review of the sentencing transcript does not reflect that his attorneys were reluctant to admit the existence of a factual basis. Rather, the record reflects that they were simply uncomfortable admitting that there was a factual basis at a time when Thin Elk was pleading guilty against their advice. More specifically, after the attorneys were assured that Thin Elk could plead guilty against their advice and there could still be a factual basis for the plea, one defense counsel stated, “[c]ertainly there would be a sufficient factual basis I think for this plea of guilty.” The other then stated, “I would agree with that, Judge. I think there is enough for the court to find a factual basis.” Based on the entire record, we conclude the trial court correctly found that Thin Elk’s attorneys confirmed without reluctance that there was a factual basis for his guilty plea. We also conclude that the court appropriately considered those statements.

[¶ 21.] Thin Elk, however, also asserts that the State did not establish a factual basis that he intended to kill Buffalo because he “thought that the safety on the firearm was ‘on’ and that it would not discharge.” However, the sentencing transcript clearly indicates that the judge advised Thin Elk of the charge, including the element of premeditation, and that Thin Elk admitted there was a factual basis for the premeditation element.

[¶ 22.] The factual basis for a guilty plea does not have to come from the defendant himself but may be attained by an inquiry of the prosecution. State v. Schulz, 409 N.W.2d 655, 658 (S.D.1987) (citation omitted). Here, the factual basis came from the prosecution and from Thin Elk. He not only agreed with the factual basis given by the state’s attorney but also corrected the trial court on one portion of the factual basis statement that he believed was incorrect. However, that one correction did not relate to the premeditation element he now challenges on appeal. Therefore, based upon the entire record, the trial court did not err in determining that there was a sufficient factual basis to accept Thin Elk’s guilty plea.

[¶ 28.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . We stated:
      [I]t is now settled as a principle of the constitutional law that a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin — self-incrimination, confrontation and jury trial — and an understanding of the nature and consequences of the plea.

        Nachtigall, 85 S.D. at 128, 178 N.W.2d at 201.

      . SDCL 23A-7-4 provides:
      Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in § 23A-7-5, and inform him of, and determine that he understands, the following:
      (1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
      (2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him;
      (3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
      (4) That if he pleads guilty or nolo conten-dere there will not be a further trial of any kind, so that by pleading guilty or nolo, contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
      (5) That if he pleads guilty or nolo contender e, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence' of counsel, his answers may later be used against him in a prosecution for perjury.

      . The court went to great lengths to impress upon Thin Elk the significance of his guilty plea. The Court stated:
      You’re making a very important decision today... ,[B]ecause it is an important decision, I'm going to take some time today to visit with you.... And the reason I'm doing that is when you enter a guilty plea, you give up legal and constitutional rights. That it's important that you understand that you're giving up these rights.

      . The Court: Okay. I’m going to just very quickly summarize what I have said to you, Mr. Thin Elk. You're giving up your right to remain silent. When you say you’re guilty, you’re making yourself guilty with your own words. At that point the prosecutors who represent the State do not have to call witnesses, do not have to convince the jury of anything because you’re admitting your guilt. Do you have any questions about that?
      The Defendant: No.
      The Court: Do you have any questions at all about the fact that you are giving up your right to a trial, that you’re never going to get to see the State’s witnesses or ask them questions, and you’re never going to have an opportunity to call your own witnesses and give your side of what happened? Any questions about that?
      The Defendant: No.
      The Court: Any questions at all, Mr. Thin Elk, about the fact that once you plead guilty, I'll no longer look at you as being presumed innocent? You’re no longer presumed innocent once you plead guilty. You are guilty. All that will remain in the case is for the sentence to be imposed. Do you understand that, sir?
      The Defendant: Yeah.

      . Another factor considered when analyzing the totality of the circumstances is the length of time between the explanation of rights at the arraignment and when the guilty plea was considered. This factor is inapplicable in this case as the judge explained Thin Elk’s rights immediately before the guilty plea was taken.

      . SDCL 23A-7-2 (Rule 11(a)) provides in pertinent part:
      The court may not enter a judgment unless it is satisfied that there is a factual basis for any plea except a plea of nolo contendere.

      .SDCL 23A-7-14 (Rule 11 (f)) provides:
      The court shall defer acceptance of any plea except a plea of nolo contendere until it is satisfied that there is a factual basis for the offense charged or to which the defendant pleads.

      .
      The Court: Mr. Der Hagopian, from your investigation of the case, can you state that there would be a factual basis for the plea here?
      Mr. Der Hagopian: I would be very uncomfortable doing that since he’s pleading guilty against my advice.

      .
      The Court: Mr. Thin Elk, the charge against you is Murder in the First Degree. The State of South Dakota is charging you as follows: That on or about the 12th of July, 2004, here in Minnehaha County, South Dakota, that you, the defendant, Joseph Thin Elk, also known as Joseph Ross, did commit the crime of Murder in the First Degree, that without authority of law and with a premeditated design to effect his death, did kill Dondrell M. Buffalo, a human being, in violation of statute. Do you have any questions about what those words mean, that you’re charged with Murder in the First Degree?
      The Defendant: No.

      State’s Attorney: [0]n the 12th day of July, 2004, this defendant was attending a house party at the residence of Orlando Foolbull
      with several other people, including a couple of co-defendants in this case. After being at the house party for some time at 2400 West 9th Street, Apartment Number 203, in Sioux Falls, Minnehaha County, Dondrell Buffalo arrived at the party.... [A] fight broke out between Mr. Buffalo and the co-defendant Foolbull in the apartment. This was actually Mr. Foolbull's apartment. The fight spilled out into the hallway, where Mr. Buffalo and the co-defendant Foolbull fought in the hallway. The defendant Thin Elk approached the participants in this fight with a small caliber handgun that he had received from co-defendant West earlier in the night, and he basically went up to Mr. Buffalo with this handgun and shot him three times in the head and killed him, and fled the scene, concealed the evidence and left the state.

      The Court: Mr. Thin Elk, is that basically what happened?
      The Defendant: Basically, except for the part to who gave me the gun.
      The Court: Okay. But the part about you using the weapon, is that accurate?
      The Defendant: Yes.