author: DIETZEN, Judge.

text:
    In the Matter of the WELFARE OF L.M.
    No. A06-0044.
    Court of Appeals of Minnesota.
    Aug. 15, 2006.

      Mike Hatch, Attorney General, St. Paul, MN; and Gordon L. Moore, III, Nobles County Attorney, Kathleen A. Kusz, Assistant County Attorney, Worthington, MN, for appellant State of Minnesota.
    Mark D. Nyvold, Special Assistant State Public Defender, St. Paul, MN, for L.M.
    Considered and decided by STONEBURNER, Presiding Judge; TOUSSAINT, Chief Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellant State of Minnesota challenges the district court’s denial of its motion to designate L.M. as an adult for the charges of aiding and abetting aggravated robbery, conspiracy to commit aggravated robbery, and felony theft, arguing that the court abused its discretion by shifting to the state the burden of rebutting the presumption of certification. We reverse and remand.

FACTS

Respondent L.M. is a Guatemalan native who moved to Sioux Falls, South Dakota, in March 2005 to live with his aunt. L.M. speaks no English and has never attended school. Instead of attending school, he worked in the fields to earn money. L.M. can read Spanish but cannot write. Because of his age and the lack of proper documentation, L.M. was unable to obtain employment after arriving in the United States.

In October 2005, L.M. drove to a video store in Worthington, Minnesota, with Jeni Garcia and Jairo Sandoval-Lopez. Garcia entered the store to buy a calling card, while L.M. and Sandoval-Lopez waited in the car. When Garcia returned, Sandoval-Lopez asked her who was running the store. Garcia told him that it was a “girl.”

When L.M. and Sandoval-Lopez entered the store, L.M. got two bottles of juice and went to the register. When the cashier opened the register, Sandoval-Lopez went behind the counter with a look-alike gun and began taking money from the register while L.M. acted as a lookout. After L.M. and Sandoval-Lopez left the store, the cashier fell to her knees. When the police arrived, they found her crying and shaking. The robbery was captured on the store’s video-recording system. The police then stopped the car based on the description witnesses had given them. In the car, officers found a pellet gun under an infant seat’s cover and more than $1,700 in cash.

L.M. initially denied knowing anything about the robbery but later admitted being there. Sandoval-Lopez told police that he and L.M. had planned the robbery for two or three days and identified duct tape and plastic ties that the police had found in their possession as items that they intended to use during the robbery. Sandoval-Lopez indicated that although Garcia may have been suspicious, she was not involved in the robbery.

The state charged 17-year-old L.M. with aggravated robbery and theft and moved to certify him for adult prosecution. The juvenile-certification study recommended certification based on the seriousness of the offense, L.M.’s culpability, the lack of programming in the juvenile system, and the lack of dispositional options. But the district court denied the state’s certification motion reasoning that although the offense was serious and the child was culpable, the remaining statutory factors, including the lack of a prior delinquency record and programming history, weighed against certification. The court also noted that the record contained no evidence that L.M. was unamenable to treatment or that adequate programming was not available in the juvenile system. This appeal follows.

ISSUES

I. Did the district court abuse its discretion by shifting the burden of proof of certification to the state?

II. Did the district court abuse its discretion by failing to properly weigh the seriousness of the offense and by implicitly concluding that L.M. rebutted the presumption of certification with clear and convincing evidence that retaining the proceeding in the juvenile system served public safety?

ANALYSIS

I.

The state first argues that the district court abused its discretion by shifting the burden of persuasion to the state despite the presumption of certification. This court will reverse a certification decision only if it finds that the district court abused its discretion. St. Louis County v. S.D.S., 610 N.W.2d 644, 647 (Minn.App.2000).

Minn.Stat. § 260B.125, subd. 3(1)-(2) (2004), provides that certification is presumed when a defendant is 16 or 17 years old at the time of the offense and the delinquency petition alleges an offense that would result in presumptive commitment under the sentencing guidelines. The state bears the burden of showing that the juvenile is more than 16 years old and that the offense alleged in the petition carries an adult sentence. See In re Welfare of K.A.P., 550 N.W.2d 9, 12 (Minn.App.1996) (stating that “[i]n presumptive certification case, the state can rest its argument on proof of the juvenile’s age at the time of the offense and on the seriousness of the offense”), review denied (Minn. Aug. 20, 1996). When the state has established a prima facie case for presumptive certification, the burden shifts to the child to rebut the presumption of certification by “demonstrating by clear and convincing evidence that retaining the proceedings in the juvenile court serves public safety.” Minn. Stat. § 260B.125, subd. 3.

In determining whether retaining the proceedings in juvenile court would serve public safety, the district court must consider six factors. Minn.Stat. § 260B.125, subd. 4 (2004). In considering these factors, the court must give greater weight to the seriousness of the alleged offense and the child’s prior record of delinquency than to other factors. Id. For certification purposes, a juvenile is presumed to have committed the alleged offense. In re Welfare of U.S., 612 N.W.2d 192, 195 (Minn.App.2000). If the child fails to provide sufficient evidence regarding each of the statutory factors, the matter must be certified. Minn.Stat. § 260B.125, subd. 3(2) (providing that “[i]f the court finds that the child has not rebutted the presumption by clear and convincing evidence, the court shall certify the proceeding”).

Here, the district court’s written order and supporting memorandum reflect that the court shifted to the state the burden of showing that L.M. was unamenable to treatment and that no adequate programming was available in the juvenile system. For example, the district court found that no evidence had been presented that L.M. was unamenable to programming within the juvenile system. In its memorandum, the court also noted again that “there is no evidence that the [cjhild is not amenable to handling in the juvenile system.” But in presumptive-certification cases the state does not have the burden of showing that the child is unamenable to treatment; instead, the burden is on the child to show clearly and convincingly that he or she is amenable to treatment and that adequate programming is available. Id., subd. 3.

The court similarly shifted the burden of proof to the state by determining that “the State ha[d] not shown by a preponderance of the evidence that [adequate] programming d[id] not exist.” The state did not have the burden of showing that adequate programming did not exist in the juvenile system, however; the burden was on the child to show that such programming existed.

Finally, in its memorandum, the court indicated that “when a[c]hild commits an offense while under the age of 18 that [c]hild is entitled to be deemed a juvenile.” As a matter of law, however, a child who commits an offense under the age of 18 is not always entitled to be deemed a juvenile. On the contrary, the governing statute expressly provides that a child who is 16 years or older and commits an offense punishable by incarceration is presumed to be suitable for prosecution purposes as an adult, and the statute places on the child the burden of showing clearly and convincingly that he or she should be deemed a juvenile. See Minn.Stat. § 260B.125, subds. 3, 4. Thus, the district court abused its discretion by shifting the burden of proof to the state.

II.

The state next argues that the district court abused its discretion in determining that retaining jurisdiction in the juvenile court would serve public safety. Specifically, the state argues that the district court failed to properly weigh the seriousness of the offense. The state also argues that L.M. failed to rebut the presumption of certification with clear and convincing evidence that retaining the case in the juvenile system would serve public safety.

Seriousness of the Offense

In evaluating whether retaining jurisdiction in the juvenile court would serve public safety, the district court must place more weight on the seriousness of the offense and the child’s prior record of delinquency than on the other four factors. Minn.Stat. § 260B.125, subd. 4. The failure to place the proper weight on the seriousness of the offense is a basis for reversal. St. Louis County v. S.D.S., 610 N.W.2d 644, 648-49 (Minn.App.2000) (reversing certification decision on ground that district court “understated and failed to weigh properly the seriousness of [the child’s] alleged offenses” and the extensiveness of his record of gang-related misdemeanors). At the same time, however, evidence of the alleged offense alone is insufficient to justify certification. In re Welfare of 435 N.W.2d 595, 599 (Minn.App.1989) (stating that in addition to any inference that may be drawn from the commission of the offense itself, the record must contain evidence of non-offense-related factors bearing on public safety), review denied (Minn. Mar. 17, 1989). The state makes seven arguments in support of its position that the district court did not place the proper weight on the seriousness of the offense.

First, the state argues that the district court failed to acknowledge that the use of a firearm enhanced the seriousness of the offense. See Minn.Stat. § 260B.125, subd. 4(1) (listing the use of a firearm as a factor to be considered in evaluating the seriousness of the offense). But the district court noted that, if proved, “the offense would constitute a serious offense in that it is a robbery of a business, during business hours, at a time when people were present, with a firearm being used in the robbery.” (Emphasis added.) The state’s claim lacks merit.

Second, the state argues that in evaluating the seriousness of the offense the district court “appears to [have] discounted] the importance of the presence of the gun based on [L.M.’s] lack of direct contact with it during the robbery.” The district court did not consider the lack of direct contact with the gun in evaluating the seriousness of the offense; but the district court’s findings clearly show that it considered the lack of direct contact with the gun in assessing the degree of L.M.’s culpability. The certification statute expressly requires the court to consider “the level of the child’s participation in planning and carrying out the offense” in determining culpability. Minn.Stat. § 260B.125, subd. 4(2); see also In re Welfare of K.C., 513 N.W.2d 18, 22 (Minn.App.1994), (stating that “[t]he court is ... free to consider the juvenile’s degree of participation in determining whether the county’s burden of proof has been met under the prima facie reference statute”), review denied (Minn. May 17, 1994). Clearly, L.M.’s lack of direct contact with the gun reflected on the degree of his participation in carrying out the offense. The district court thus properly considered that factor in assessing L.M.’s culpability.

Third, the state argues that the district court abused its discretion by not taking into account the presence of other aggravating factors, including the impact of the crime on the victim. But the record reflects that the district court considered the impact of the offense on the victim in determining the seriousness of the offense. The court noted in its memorandum that the impact on the victim was the same as if a real firearm had been used, and it concluded that “for purposes of the charges and the impact on the victim [,] there is no question that this offense is serious.” (Emphasis added.) Thus, although the state may disagree with the weight the court gave to the impact of the offense on the victim, it is clear that the district court did consider that factor in determining whether the offense was serious.

Fourth, the state argues that the district court did not expressly consider that L.M. committed the crime “as part of a group of three or more persons who all actively participated in the crime[]” an aggravating factor under the sentencing guidelines. See Minn. Sent. Guidelines, II. D.2.b(10). But on this record, the court may well have concluded that Garcia did not “actively participate in the crime” and that her presence was not, therefore, an aggravating factor. The record reflects that Sandoval-Lopez told police that although Garcia was suspicious, she was not involved in the robbery. Thus, the district court did not abuse its discretion.

Fifth, the state argues that the district court abused its discretion by holding that “[L.M.’s] lack of [a] prior record was a factor that completely counterbalanced and canceled out the seriousness of the offense.” But the district court simply stated that the lack of a prior record of delinquency or programming was “compelling” and, after noting that it was required to give more weight to the seriousness of the offense and the child’s prior record of delinquency, concluded that the seriousness of the offense supported certification while the lack of a prior record of delinquency did not. The court’s statement that the lack of a prior record and available programming was “compelling” cannot reasonably be construed to mean that those factors “canceled out” the seriousness of the offense. Thus, the record does not support the state’s claim that the district court discounted the seriousness of the offense in determining whether certification was appropriate.

Sixth, the state argues that the court’s determination that the lack of a prior record of delinquency and programming was “compelling” suggests that the court gave undue weight to the lack of a prior record of delinquency and insufficient weight to the seriousness of the offense. Relying on S.D.S., the state argues that the balance must be in favor of the seriousness of the offense. See 610 N.W.2d at 648^49 (balancing record of delinquency with seriousness of the offenses). But S.D.S. does not stand for the proposition that the seriousness of the offense necessarily trumps the lack of a prior record of delinquency; it merely holds that greater weight must be given to the seriousness of the alleged crimes and the extensiveness of a child’s prior gang-related record than to other factors. See id. (reversing denial of certification motion on ground that district court “understated and failed to weigh properly facts that demonstrated the seriousness of respondent’s alleged offenses ... [and the child’s] prior delinquency record”). On this record, we cannot say that the district court gave undue weight to the lack of a prior record of delinquency and insufficient weight to the seriousness of the offense.

Finally, the state argues that, in assessing culpability, the district court abused its discretion by considering L.M.’s lack of contact with the gun while ignoring evidence that L.M. actively participated in the planning and execution of the robbery. But the record contains no evidence that the court viewed L.M.’s lack of contact with the gun as precluding certification. Instead, the court properly considered L.M.’s lack of contact with the gun in assessing the degree of L.M.’s participation in the robbery. See Minn.Stat. § 260B.125, subd. 4(2). And the court’s failure to explicitly acknowledge L.M.’s participation in the planning of the offense does not mean that the court did not take that factor into account in concluding that L.M. was culpable.

The district court placed the proper weight on the seriousness of the offense and did not abuse its discretion either by considering L.M.’s lack of contact with the gun in assessing the level of his participation in the offense or by concluding that the lack of a record of delinquency and a history of programming was compelling and weighed against certification.

Sufficiency of Rebuttal Evidence

The state next argues that L.M. failed to rebut the presumption of certification with clear and convincing evidence that retaining the case in the juvenile system would serve public safety. We agree.

In support of its position that certification was unwarranted, L.M. introduced the surveillance videotape, the Juvenile Certification Study, and the probation officer’s testimony. The certification study recommended certification based on the seriousness of the offense, the degree of L.M.’s participation in the offense, the adequacy of punishment available in the juvenile system, the lack of adequate programming, and the lack of disposition options. The study indicated, inter alia, that given the seriousness of the offense, the fact that the offense involved the use of a firearm, and the fact that L.M. spoke no English and was uneducated, there were no programs within the juvenile system that could accommodate L.M.’s needs. Each of the five programs the probation officer contacted rejected L.M. for admission. Finally, the study indicated that because of the lack of programming and the lack of a delinquency record, neither EJJ nor commitment to the commissioner of corrections was an available disposition.

L.M. established through the probation officer’s testimony that although she knew of no programs that could meet his needs, “there may be programming available that would meet L.M.’s needs.” The probation officer also testified, in response to questioning by the court, that she had contacted several state programs that she knew about and had sought additional references from those programs but had not contacted colleagues in other counties to find out if other programming was available. Based on that testimony, the court concluded that it was “not satisfied that a more extensive search would not discover programming that would address [L.M.’s] needs.”

The mere possibility that a more extensive search would reveal that adequate programming was available, however, is a far cry from clear and convincing evidence that an adequate program was available. L.M.’s burden was to establish clearly and convincingly that adequate programming existed. L.M. did not meet that burden.

This court’s decision should not be construed to mean that L.M. must be certified after all the factors are adequately balanced on remand in light of the correct burden of proof. In fact, some of the factors clearly do not favor certification. The district court has broad discretion in balancing the statutory factors. But the factors must be balanced in light of the correct burden of proof.

DECISION

The district court abused its discretion by shifting to the state the burden of rebutting the presumption of certification with evidence that L.M. was not amenable to treatment and that no adequate programming existed in the juvenile system to address his needs. We remand for further proceedings consistent with this opinion. The district court may reopen the record to conduct a further evidentiary hearing, but is not required to do so.

Reversed and remanded.

      . Because certification proceedings are governed by Minn.Stat. § 260B.125 and are not civil actions or proceedings, Minn. R. Evid. 301 does not apply. See Minn. R. Evid. 301.


source: Caselaw Access Project

author: KAPSNER, Justice. MARING, Justice,

license: Public Domain

text:
    2006 ND 169
    STATE of North Dakota, Plaintiff and Appellee v. Sharol Kaye SALVESON, Defendant and Appellant.
    Nos. 20060015, 20060016.
    Supreme Court of North Dakota.
    July 27, 2006.
    Tom P. Slorby, Minot, ND, for defendant and appellant.
    Rozanna C. Larson, Assistant State’s Attorney, Minot, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Sharol Salveson appeals from criminal judgments entered following her pleas of guilty to driving under the influence and aggravated reckless driving, both class A misdemeanors. She was sentenced to two consecutive one-year sentences with three months suspended. On appeal, she argues she received an illegal sentence. We conclude Salveson’s convictions for driving under the influence and aggravated reckless driving involve substantially different criminal objectives and the trial court was within its discretion imposing two consecutive one-year sentences. We affirm.

I

[¶ 2] On April 3, 2005, Salveson was charged with driving under the influence and aggravated reckless driving, both class A misdemeanors, and driving while license privileges were under suspension or revocation, a class B misdemeanor. Previously, Salveson had been convicted of driving under the influence on December 26, 2001 and July 23, 2004. The current charges arose while Salveson was driving with a blood-alcohol level of .26%. While driving drunk, Salveson hit two children who were walking their bicycles down a county road. One, a fifteen-year-old boy, suffered extensive injuries from the accident. His leg was left in a mangled state. His mother testified the boy was currently confined to a wheelchair. The child’s family incurred over $43,000.00 in medical expenses.

[¶ 3] Salveson attempted to negotiate a plea bargain with the State that would limit her jail time to between six and nine months. The district court rejected the recommended sentences. On December 13, 2005, Salveson pled guilty to aggravated reckless driving and driving under the influence. The State dismissed a charge of driving with a suspended license. The case proceeded to sentencing. The district court reviewed the sentencing factors found in N.D.C.C. § 12.1-32-04, concluding several factors weighed heavily in favor of a lengthy sentence. The court sentenced Salveson to twelve months incarceration and ordered her to pay $43,796.77 in restitution for the aggravated reckless driving charge. Following that sentence, Salveson was sentenced to another twelve months, with three months suspended, for the driving under the influence charge. The two sentences were to run consecutively meaning Salveson was to be incarcerated for two years, with three months suspended. Salveson appeals her sentence arguing a two-year sentence following a DUI and aggravated reckless driving conviction constitutes an illegal sentence.

II

[¶ 4] A trial court is allowed the widest range of discretion in criminal sentencing. State v. McClean, 1998 ND 21, ¶ 4, 575 N.W.2d 200. Within this discretion, a trial court has the authority to determine whether a sentence should run concurrent with or consecutive to another sentence. State v. Ulmer, 1999 ND 245, ¶4, 603 N.W.2d 865. This discretion is limited by statute when imposing consecutive sentences for multiple misdemeanor convictions:

When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.

N.D.C.C. § 12.1-32-11(3).

[¶ 5] This statute authorized the district court to sentence Salveson to consecutive terms of incarceration for two class A misdemeanor convictions if each misdemeanor was committed “as part of a different course of conduct” or if each misdemeanor “involved a substantially different criminal objective.” N.D.C.C. § 12.1-32-11(3). Salveson’s two crimes were a part of the same course of conduct. However, the district court concluded the crimes of aggravated reckless driving and DUI involved different criminal objectives. In making this determination, the district court relied on this Court’s interpretation of “substantially different criminal objectives” in Ulmer, 1999 ND 245, ¶ 10, 603 N.W.2d 865.

[¶ 6] Exactly what the legislature meant when it included the phrase “criminal objective” in the statute is ambiguous. We concluded such in Ulmer, where we reviewed the relevant legislative history leading up to the enactment of N.D.C.C. § 12.1-32-11(3). Ulmer, at ¶¶ 9-10. From our review of the relevant legislative history, a unanimous court held:

under N.D.C.C. § 12.1-32-11(3), multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

Ulmer, at ¶ 10. In Ulmer, we concluded the crimes of driving with a suspended license and driving while under the influence constituted two crimes with substantially different criminal objectives. Id. at ¶ 7. The same analysis from Ulmer applies in this case.

[¶ 7] As in Ulmer, we look to the elements of the crimes to determine whether they invoke separate criminal objectives. The essential elements of DUI are driving a motor vehicle on a public way while under the influence of intoxicating liquor. Ulmer, at ¶ 7. The essential elements of aggravated reckless driving are driving with reckless disregard for the safety of others or driving without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another, and inflicting injury upon the person of another. N.D.C.C. § 39-08-03. Each offense involves separate and distinct violations of the law and separate criminal objectives the legislature sought to proscribe. To conclude otherwise would mean the separate act of inflicting injury upon pedestrians while driving recklessly is without consequence.

[¶ 8] The crimes of DUI and aggravated reckless driving do not relate to each other under any of the three categories announced in Ulmer. This is not a case of an included offense such as being charged for reckless driving and aggravated reckless driving for the same conduct. This is not a case of being charged with a crime and an inchoate version of the crime such as conspiracy, attempt, or other form of preparation to commit the crime. Nor is this a case that prohibits generally the same conduct prohibited specifically by the other. None of the three categories announced in Ulmer apply in this case.

[¶ 9] Aggravated reckless driving requires a separate act of inflicting “injury upon the person of another.” N.D.C.C. § 39-08-03. Salveson’s separate act of hitting two pedestrians, mutilating the leg of one of them, is more than merely reckless drunk driving. The act of inflicting injury constitutes a separate and distinct act to support the aggravated reckless driving charge. This separate act evidences a new “substantially different criminal objective.” N.D.C.C. § 12.1-32-11(3). Therefore, N.D.C.C. § 12.1-32-11(3) did not limit the district court’s discretion to sentence Salveson to only one year. The district court did not abuse its discretion in sentencing Salveson to two consecutive one-year sentences with three months suspended for committing two class A misdemeanors.

Ill

[¶ 10] We conclude the definition of “substantially different criminal objectives” announced in State v. Ulmer, 1999 ND 245, ¶ 10, 603 N.W.2d 865, is controlling in this case. Applying that definition, we conclude the crimes of DUI and aggravated reckless driving constitute substantially different criminal objectives. We affirm.

[¶ 11] GERALD W. VANDE WALLE, C.J., and DANIEL J. CROTHERS, J., concur.

MARING, Justice,

dissenting.

[¶ 12] I respectfully dissent. I believe the majority is too invested in its own opinion in State v. Ulmer, 1999 ND 245, 603 N.W.2d 865, to recognize that, although achieving the correct result, a portion of our decision in that case is directly contrary to the legislative history behind N.D.C.C. § 12.1-32-11(3). Legislative history that, by our own admission in Ulmer, we sought to honor. 1999 ND 245, ¶¶ 9-10, 603 N.W.2d 865. Nevertheless, the majority grasps, in the name of “precedent,” to retain a contradictory test completely divorced from the legislative history surrounding the language of the statute being interpreted. Because I believe consecutive sentencing in a case such as this is precisely what the drafters of N.D.C.C. § 12.1-32-11(3) intended to avoid, I would reverse and remand for resentencing.

[¶ 13] Section 12.1-32-11(3), N.D.C.C., limits the power of a trial court to impose consecutive sentences for multiple misdemeanors in certain cases.

When sentenced only for misdemeanors, a defendant may not be consecutively sentenced to more than one year, except that a defendant being sentenced for two or more class A misdemeanors may be subject to an aggregate maximum not exceeding that authorized by section 12.1-32-01 for a class C felony if each class A misdemeanor was committed as part of a different course of conduct or each involved a substantially different criminal objective.

N.D.C.C. § 12.1-32-11(3). The statute allows a trial court to impose consecutive sentences for multiple class A misdemeanors if they each involve substantially different criminal objectives or are each committed as a part of a different course of conduct.

[¶ 14] The majority, at ¶ 6, remains flummoxed by the phrase “criminal objective,” in spite of the fact that in Ulmer we correctly equated “criminal objective” with “criminal intent.” 1999 ND 245, ¶ 7, 603 N.W.2d 865; see also, e.g., State v. Cooper, 2002 WL 31891013, *7, 2002 Minn.App. LEXIS 1438, *19; State v. Garza-Villarreal, 123 Wash.2d 42, 864 P.2d 1378, 1381 (1993); In re Doe, 855 A.2d 1100, 1106 n. 10 (D.C.App.2004). Thus, in many cases, the application of N.D.C.C. § 12.1-32-11(3) should require nothing more than an examination of whether the criminal intent behind one crime was substantially similar to the criminal intent behind the other. The majority, however, now asserts, at ¶ 10, that its bright-line test in Ulmer should control the definition of “criminal objective” in the statute.

[¶ 15] In this case, it is conceded by the parties that the two offenses are a part of a single course of conduct, so that is not an issue under the statute. In addition, the offenses are closely related in time and the same act — driving while intoxicated— forms the basis of both convictions. Reckless driving is defined under N.D.C.C. § 39-08-03, as follows:

Any person is guilty of reckless driving if the person drives a vehicle:
1. Recklessly in disregard of the rights or safety of others; or
2. Without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another.
Except as otherwise herein provided, any person violating the provisions of this section is guilty of a class B misdemeanor. Any person who, by reason of reckless driving as herein defined, causes and inflicts injury upon the person of another, is guilty of aggravated reckless driving, and is guilty of a class A misdemeanor.

To be convicted of aggravated reckless driving, the defendant must drive a vehicle recklessly and the reckless driving must cause an injury. This was clearly proven when Salveson’s guilty plea was entered. The pertinent part of the guilty plea colloquy was:

THE COURT: Were you driving while you were intoxicated?
THE DEFENDANT: Yes.
THE COURT: The Court will find that there is an adequate factual basis to accept the defendant’s plea in that matter. Did you strike some pedestrians?
THE DEFENDANT: Yes.
THE COURT: Did you cause injuries to those pedestrians?
THE DEFENDANT: Yes.
THE COURT: The Court will find that there is an adequate factual basis to accept the plea to the charge of aggravated reckless driving.

In the factual basis established for Salve-son’s guilty plea, there simply are no facts presented establishing Salveson’s act of reckless driving other than the fact she drove with a blood-alcohol concentration of .26. There are no facts in this record to indicate Salveson was weaving, speeding, inattentive, or any of the other myriad of factors that could support a finding of reckless driving had the officer observed them. I cannot comprehend how the majority can hold that Salveson had two separate and distinct criminal objectives for committing the singular act that is the indispensable element for proving both crimes.

[¶ 16] In wrestling with how to address the application of N.D.C.C. § 12.1-32-11(3) in Ulmer, we, correctly, resolved the case by stating:

To drive a vehicle with a suspended or revoked license shows a criminal objective to operate a vehicle without authorized privilege to do so. To operate a vehicle while under the influence of alcoholic beverages shows a criminal intent to drive without regard to whether one is driving impaired. While both violations involve driving a vehicle, they have substantially different criminal objectives.

1999 ND 245, ¶ 7, 603 N.W.2d 865. I am of the opinion that the criminal intent to drive “without regard to whether one is driving impaired” is the same objective as driving “[r]ecklessly in disregard of the rights or safety of others” under the facts of this case. The majority does not attempt to explain to us what the criminal intent is of aggravated reckless driving. Because the only act in the record establishing reckless driving is Salveson’s driving while intoxicated, I conclude her objectives for both offenses are one and the same. Had the facts shown Salveson’s recklessness was based on some other act than driving while intoxicated, I would affirm.

[¶ 17] Undoubtedly, a problem applying N.D.C.C. § 12.1-32-11(3) can arise when dealing with misdemeanor traffic and other strict liability offenses because they often do not involve criminal intent as an element of the offense. In Ulmer, this Court held that driving a vehicle with a suspended or revoked license and driving while under the influence constituted two crimes with substantially different criminal objectives. 1999 ND 245, ¶ 7, 603 N.W.2d 865. In doing so, we looked to the legislative history of N.D.C.C. § 12.1-32-11(3). We said:

N.D.C.C. § 12.1-32-11(3) was adopted by the legislature in 1973 and is a near verbatim adoption of Subsection (4) of Section 3204 of the proposed Federal Criminal Code. It is appropriate, therefore, for us to look to the drafters’ Comment to the proposed federal code for insight into the meaning of our statute. The Comment to Subsection (4) merely states, “when .... a defendant is convicted of unrelated class A misdemeanors he may be consecutively sentenced into the class C felony sentence range.” Neither the code draft nor the commentary to Subsection (4) further explains or defines what the drafters meant by “substantially different criminal objective.” However, Subsection (2) of Section 3204 of the proposed Federal Criminal Code, which limits consecutive sentences for multiple offenses, together with the Comment to Subsection (2) provide useful insight into the drafters’ intended meaning of the phrase “substantially different criminal objective” under Subsection (4) of the federal draft.
Subsection (2) states:
(2) Multiple Sentences. A defendant may not be sentenced consecutively for more than one offense to the extent:
(a) one offense is an included offense of the other;
(b) one offense consists only of a conspiracy, attempt, solicitation or other form of preparation to commit, or facilitation of, the other; or
(c) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to
prohibit a specific instance of such conduct.
The Comment to Subsection (2) explains:
Subsection (2) prohibits consecutive sentences in three situations where the multiple crimes result from one criminal objective. An alternative and more general statement might be: “The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.”
Subsection (2) defines, in effect, the circumstances under which multiple offenses involve one criminal objective rather than different criminal objectives. This proposed federal language offers a bright-line definition for determining when multiple offenses involve different criminal objectives. We conclude that under N.D.C.C. § 12.1-32-11(3), multiple class A misdemeanor offenses may be deemed by the sentencing court to involve substantially different criminal objectives if they do not fall under one of the following three categories: (1) one offense is an included offense of the other; (2) one offense consists of a conspiracy, attempt, solicitation, or other form of preparation to commit, or facilitation of, the other; or (3) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

Ulmer, 1999 ND 245, ¶¶ 9-10, 603 N.W.2d 865 (citation omitted). I agree, as I agreed in Ulmer, that this test will identify many of the situations when N.D.C.C. § 12.1-32-11(3) would apply without requiring the trial court to examine the defendant’s intent. However, as this case demonstrates, it cannot be an all-inclusive test.

[¶ 18] As the majority states, the crimes Salveson was convicted of do not fall into any of the three categories formulated in our bright-line test in Ulmer. However, because both crimes rely on the underlying fact that Salveson drove while intoxicated and the driving while intoxicated is what constituted the reckless conduct supporting her conviction for aggravated reckless driving, I believe this is the very situation for which the drafters of N.D.C.C. § 12.1-32-11(3) sought to limit consecutive sentencing. My review of the entirety of the legislative history of N.D.C.C. § 12.1-32-11(3) confirms my view. We should not, as the majority does, elevate a test we formulated by selecting only a portion of the legislative history over what that history tells us when reviewed as a whole.

[¶ 19] The bright-line test of Ulmer, however, is not even what the majority applies. In paragraph 7, the majority states that the application of N.D.C.C. § 12.1-32-11(3) requires us to “look to the elements of the crimes to determine whether they invoke separate criminal objectives.” In doing so, the majority applies a footnote in Ulmer.

Generally, the same act or transaction may constitute two distinct offenses and justify conviction on both and separate sentences to run consecutively if each offense requires the proof of some fact or element not required to establish the other. This general rule is also in harmony with our interpretation and application of N.D.C.C. § 12.1-32-11(3). Under the statute, as under the general rule of law, the trial court can impose consecutive sentences for multiple offenses when each requires proof of a different element or fact.

Id. at ¶ 10 n. 2 (citations omitted).

[¶ 20] By the addition of footnote 2 in Ulmer, this Court made the test for whether consecutive sentences exceeding one year may be imposed for class A misdemeanors under N.D.C.C. § 12.1-32-11(3) the same as the Blockburger test for determining whether the same act or transaction constitutes the same offense for double jeopardy purposes. Compare Ulmer, at ¶ 10 n. 2, with State v. Bertram, 2006 ND 10, ¶ 14, 708 N.W.2d 913 (citation omitted) (holding “[u]nder the ‘same elements’ test a court determines whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution”); see also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gore v. United States, 357 U.S. 386, 392, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958).

[¶ 21] A review of the legislative history behind N.D.C.C. § 12.1-32-11(3), when not clouded by a desire to uphold Ulmer, reveals the test formulated in footnote 2 was precisely the narrow practice the drafters intended to prevent when drafting the provision. The drafters of the proposed Federal Criminal Code stated that, although they intended to retain the traditional authority of the court to impose concurrent or consecutive sentences at the court’s discretion, additional limitations on consecutive sentencing were intended to address the problems they saw in applying only the Blockburger approach:

The bracketed language of subsection (1) raises the question of whether an additional limitation is desirable and, also is intended to emphasize the need for another approach if the aggregate maximum provisions are not adopted. There are some cases where the defendant has technically committed more than one offense, but where the purpose of providing limits for classes of offenses would be defeated if the fact that he has violated more than one statute permits pyramiding the sentences. The most obvious, perhaps, are cases involving lesser included offenses or even equal offenses where some overlap in definition is unavoidable.

II Working Papers of the National Commission on Reform of Federal Criminal Laws 1322 (1970). In a footnote to the above-quoted section, the drafters explain:

The bracketed language read: “The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” A new subsection (2) was inserted in its place.... Note that conviction of both an inclusive and its included offenses is prohibited by Study Draft section 703(3).

Id. at n. *. This bracketed language was later incorporated into Subsection (4) of Section 3204 of the proposed Federal Criminal Code, from which N.D.C.C. § 12.1-32-11(3) is derived.

[¶ 22] The drafters of the proposed Federal Criminal Code were uncomfortable with having Blockburger as the only bar against consecutive sentences for multiple offenses. They specifically state that the language, which our legislature adopted in enacting N.D.C.C. § 12.1-32-11(3), was intended to afford more protection than Blockburger:

The question of multiple punishment is dealt with in the sentencing part of the Code. Clearly the prevention of undue accumulation of punishment lies at the very heart of the multiple crime problem as well as the more narrow problem of double jeopardy. Both this draft and section 3206 of the sentencing part take a position quite strongly opposed to the multiplication of punishments in common multiple offense situations.
A major source of dispute and difficulty concerning punishment for multiple offenses has been the so-called Block-burger or “same evidence” rule which permits consecutive or cumulative punishment for offenses arising out of a single criminal transaction so long as there is some slight variation in the elements of proof required for the two offenses. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), a single sale of narcotics was penalized cumulatively as two offenses — selling drugs not in a stamped package and selling drugs not pursuant to a written order. In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), a comparable single narcotics sale was divided into three counts with cumulative punishment. Blockburger states the “same evidence” test as follows:
Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
It seems beyond argument that the appropriate sentence and the number of years for which a man shall be punished for an offense is not rationally a function of the number of statutory violations into which his conduct may be parsed by a clever pleader. The Draft, therefore, is careful not to use the Block-burger approach and to this extent changes existing Federal law.

I Working Papers of the National Commission on Reform of Federal Criminal Laios 340-41 (1970) (emphasis added). Section 3206 of the Study Draft was later renumbered to become Section 3204 later adopted by North Dakota, in part, as N.D.C.C. § 12.1-32-11(3). See Final Report of the National Commission on the Reform of the Federal Criminal Laws 352, Table III (1971); see also A Hornbook to the North Dakota Criminal Code, 50 N.D. L.Rev. 639, 659 (1974). The drafters further explain:

The multiplication of charges and punishment in a single criminal proceeding seems to be at variance with at least two related policies. One is that the legislature, by fixing a punishment for a crime, has determined the maximum level of penalty for that conduct. When the prosecutor is permitted to multiply a single act and convert it into a series of criminal acts, each carrying cumulative punishment, this legislative policy is defeated. A second basic idea is that for one man there should be one punishment; that is, that the criminal penalties are not so much directed towards retribution and the vindication of past conduct as they are aimed toward the offender as a person, his correctional needs, and the protection of society.

I Working Papers of the National Commission on Reform of Federal Criminal Laws 334 (1970). Although these comments deal with the multiple prosecution sections of the proposed Federal Criminal Code, the philosophy applies equally to N.D.C.C. § 12.1-32-11(3).

[¶ 23] The comments to Section 3204 of the proposed Federal Criminal Code direct us to other areas where the reasoning of the drafters is explained. See Final Report of the National Commission on the Reform of the Federal Criminal Latos 294 (1971). Discussing consecutive sentences again, the drafters make clear they are wrestling with two approaches to addressing the problem posed by Blockburger and Gore:

There are basically two ways to deal with a case such as Gore. The first is through provisions in the law defining offenses which in effect prohibit conviction of more than one offense in such a situation. Whether the robbery of two people on a single occasion or the theft of money and of jewelry during a single burglary should constitute one or two offenses is at the first instance a question of interpretation of the statute defining the offenses of robbery and of larceny. The second is through such a provision as the Model Sentencing Act or the New York proposals quoted above — a provision which, even though it is determined there can be two convictions in such an instance, prohibits the cumulation of sentences. A choice between these two methods — or perhaps the adoption of some combination of them — should be part of a new Federal Criminal Code. It is clearly indefensible to permit the fragmentation of a single offense so that a sentence in excess of the legislative maximum can be imposed.

II Working Papers of the National Commission on Reform of Federal Criminal Laws 1282-83 (1970). Section 3204 represents an adoption of the second approach:

No limit on multiple convictions is established. Limitations on multiple convictions could be provided; but to require the court or prosecutor to choose one of several offenses to submit to the jury or upon which to enter judgment could result in an unjustified windfall to the defendant, where the charge for the offense chosen is dismissed on appeal. Accordingly, limitations have been placed instead on sentencing (§ 3204).

Final Report of the National Commission on the Reform of the Federal Criminal Laws 59-60 (1971).

[¶ 24] The drafters’ comments make it clear that the concern over solely using Blockburger’s limitations on sentencing was resolved in favor of restrictions on multiple consecutive sentencing that would provide greater protection to a defendant than Blockburger. The majority responds to its review of history rejecting the Block-burger analysis by applying N.D.C.C. § 12.1-32-11(3) precisely as it would the Blockburger analysis. I would overrule footnote 2 of the Ulmer opinion to the extent that it can be read to limit the meaning of our statutory language “substantially different criminal objectives.” Footnote 2 represents the very practice that the drafters of the language of N.D.C.C. § 12.1-32-11(3) intended to avoid.

[¶ 25] The majority attempts, at ¶ 8, to leave the impression that it is applying the bright-line test formulated in Ulmer, rather than the Blockburger analysis used and left unnamed in ¶ 7. However, a review of the legislative history of N.D.C.C. § 12.1-32-11(3) reveals that the drafters questioned whether a “bright-line” test could even be developed for preventing the abuse of consecutive sentencing. See II Working Papers of the National Commission on Reform of Federal Criminal Laws 1322-23 (1970). In its Working Papers, the commission stated the language that became N.D.C.C. § 12.1-32-11(3):

[I]s an admittedly unsatisfactory attempt to state a principle which will preclude a consecutive sentence in some such cases. As observed in the ABA Report, no satisfactory way of stating such a limit has been developed elsewhere, primarily because so many potential variations can arise.

Id. at 1322. That a satisfactory bright-line test is difficult to develop has been borne out in cases both prior to and after the completion of the drafters’ work. See, e.g., State v. Johnson, 273 Minn. 394, 141 N.W.2d 517, 524-25 (1966); State v. Gladden, 274 Minn. 533, 144 N.W.2d 779, 782 (1966); State v. Reiland, 274 Minn. 121, 142 N.W.2d 635, 637-38 (1966); People v. Hernandez, 242 Cal.App.2d 351, 51 Cal.Rptr. 385, 391-92 (1966); People v. Tillery, 141 Ill.App.3d 610, 95 Ill.Dec. 875, 490 N.E.2d 967 (1986); State v. Smith, 121 Idaho 20, 822 P.2d 539, 542 (1991). I do not believe that, in Ulmer, this Court created a perfect bright-line test, using the drafters’ language, when such a test remained elusive to the drafters.

[¶ 26] To understand the principle which underlies N.D.C.C. § 12.1-32-11(3), it is important to again refer to the Comment to Subsection (2) of Section 3204 of the proposed Federal Criminal Code. The drafters stated:

Subsection (2) prohibits consecutive sentences in three situations where the multiple crimes result from one criminal objective. An alternative and more general statement might be: “The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” In the event that subsections (3) and (if) are not adopted, some such limitation on the open-ended imposition of consecutive terms would be appropriate.

Final Report of the National Commission on the Reform of the Federal Criminal Laws 293 (1971) (emphasis added). This last sentence clearly refers to the “alternate and more general statement” rather than the limited three categories of Subsection (2). The drafters, therefore, indicate that if the limitations on consecutive sentencing of felonies and misdemeanors, set forth in Subsections (3) and (4) of Section 3204, were not adopted, a “more general statement” prohibiting consecutive sentences “would be appropriate.” See id. Thus, the language in Subsection (4), ultimately adopted by our legislature in N.D.C.C. § 12.1-32-11(3) refers to this “more general statement.” It does not refer to the limited three categories set forth in Subsection (2) of Section 3204 of the proposed Federal Criminal Code. In other words, the legislative history itself indicates that the drafters of the language of N.D.C.C. § 12.1-32-11(3) would have rejected the test we formulated in TJlmer as being the sole test when applying the provision.

[¶ 27] Although I believe the three Subsection (2) categories of Section 3204 will identify many of the situations when consecutive sentences for two or more class A misdemeanors may not be imposed under N.D.C.C. § 12.1-32-11(3), a trial court interpreting that provision must also keep in mind that the language of the statute, by its plain wording, requires a review of whether the crimes involved were committed as part of a different course of conduct or whether they had substantially different criminal objectives. Therefore, the three Subsection (2) categories, as this case shows, should not be viewed as being all inclusive, but rather, as merely identifying three of the categories of crimes that, as a matter of law, have substantially similar criminal objectives for purposes of N.D.C.C. § 12.1-32-11(3).

[¶ 28] Without a doubt, this is an emotionally charged case. As the majority states at ¶ 9, “Salvesoris separate act of hitting two pedestrians, mutilating the leg of one of them, is more than merely reckless drunk driving.” But, when the reckless driving element of the aggravated reckless driving charge is only established by the act of driving while intoxicated and the defendant has also been convicted separately for that act, the fact that an unintended consequence occurred does not support a finding that the defendant had two substantially different criminal objectives.

[¶ 29] Dealing with similar circumstances to those presented here and applying a similar prohibition against consecutive sentencing, the Minnesota Supreme Court has held:

[Violations occurring under such circumstances demonstrate a substantial relationship between the conduct constituting the violations. Stated another way, the conduct and state of mind of the defendant are indivisible even though each offense is separate in the sense of requiring proof of facts which the other does not.

State v. Reiland, 274 Minn. 121, 142 N.W.2d 635, 638 (1966); see also State v. Johnson, 273 Minn. 394, 141 N.W.2d 517 (1966) (holding defendant’s driving while under the influence of intoxicants and driving over the centerline resulted from a single criminal objective); State v. Gladden, 274 Minn. 533, 144 N.W.2d 779, 783 (1966) (holding, under the facts of the case, driving while under the influence of alcoholic beverages and careless driving manifested a single criminal objective).

[¶ 30] In Ulmer, we stated that “[t]o operate a vehicle while under the influence of alcoholic beverages shows a criminal intent to drive without regard to whether one is driving impaired.” 1999 ND 245, ¶ 7, 603 N.W.2d 865. Nowhere does the majority point us to what the criminal intent of the reckless driving charge was in this case. Instead, the majority ignores that, in Ulmer, it equated criminal objective with intent. At paragraph 7, the majority states that criminal objective is something that can be determined by looking to the legislatively enacted elements of a crime. Then, at paragraph 9, the majority baldly claims that the fact someone was injured “evidences a new ‘substantially different criminal objective.’” What was that objective? In what way was it not substantially similar to the objective that led to the driving while intoxicated? Does a defendant’s singular intent divide into multiple objectives merely because that singular intent led to more than one result? The majority strains credulity and ignores Ulmer in order to affirm Ulmer. Under the facts, it is inescapable that the only criminal objective supporting Salev-son’s conviction for reckless driving was the same objective that led to the driving while intoxicated.

[¶ 31] Section 12.1-32-11(3) was adopted at a time when the rehabilitative theory of penology was at its zenith. The North Dakota Criminal Code Hornbook states: “The New Code emphasizes merger and concurrent sentences as do the Proposed Federal Code and the American Bar Association standards. The emphasis is based on the therapeutic theory of penology.” 50 N.D. L.Rev. 639, 659 (1974). Since that time, society has moved towards a more retributive theory of penology. Although it may be prudent for the legislature to examine N.D.C.C. § 12.1-32-11(3) to determine if the rehabilitative philosophy that guided its adoption is still the goal of our legal system, I do not believe it is this Court’s place to legislate away the intent of N.D.C.C. § 12.1-32-11(3) in favor of a retributive theory our personal predilections may favor.

[¶ 32] I would reverse and remand for resentencing.

[¶ 33] Dale V. Sandstrom, J., agrees.

      . The record indicates that the State initially agreed with Salveson that N.D.C.C. § 12.1-32-11(3) prevented her from being consecutively sentenced to more than one year and only came over to its current position after numerous plea agreements were rejected by the trial court.


author: MEIERHENRY, Justice.

text:
    2006 SD 65
    Christopher J. AUSTAD, Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
    No. 23914.
    Supreme Court of South Dakota.
    Argued May 25, 2006.
    Decided July 19, 2006.

      Jason W. Shanks of May & Johnson, P.C., Sioux Falls, South Dakota, Attorney for appellant.
    Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.
   MEIERHENRY, Justice.

. [¶ 1.] Christopher Austad (Austad) was sentenced to ten years in the South Dakota Penitentiary for grand theft. The sentencing court suspended six of those ten years. In preparation for his release from the Penitentiary to serve his suspended term, Austad signed a suspended sentence supervision agreement (supervision agreement) which subjected him to certain conditions. Prior to his release, Austad allegedly violated two of the conditions. Upon review, the Board of Pardons and Parole (Board) found that Austad violated the supervision agreement and revoked Aus-tad’s six-year suspended sentence. Austad challenges the Board’s action. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] For the crime of grand theft, Austad received a sentence of ten years in the Penitentiary with six years suspended. He was scheduled to be released on supervision January 9, 2005. On December 11, 2004, Austad submitted a request to penitentiary mental health staff which read:

If you want to know what go’s (sic) on through my everyday thought. Here you go! These are what my true thoughts are. I am going to my suspended time when I leave prison. If you feel I need mental help then get on it A.S.A.P! Until then ... I don’t know.

Attached to the note was an eight page journal-type document which contained detailed descriptions of violence against unnamed persons.

[¶ 3.] On December 29, 2004, Austad was presented with a supervision agreement containing the conditions and rules of Austad’s supervised release. The initial paragraph of the agreement stated:

I have been made aware that SDCL § 23A-27-19 provides that: Any person whose sentence is suspended pursuant to this section is under the supervision of the Board of Pardons and Paroles. Also, 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.

The agreement then stated, “[i]n consideration of Parole and/or Suspended Sentence/Supervision being granted me, I agree to the following.” The next fourteen numbered paragraphs detailed the conditions of Austad’s release. Paragraph 12 specifically provided that any pre-release violation of penitentiary rules could result in a violation of the agreement. Paragraph 12 stated, “I understand that violation of any institutional rule before my actual release from the institution may be considered a violation of my supervision agreement.” Additionally, Paragraph 14 prohibited certain behaviors as follows: “I will not engage in any assaultive, abusive, or violent behavior, including stalking, or threats of violence.” Austad signed the agreement on December 29, 2004.

[¶ 4.] On January 5, 2005, mental health professionals Tom Gilchrist (Gilchrist) and Don Baum (Baum) met with Austad to discuss his mental health request of December 11, 2004. During the meeting, Austad commented that if he were released, he would kill others and then himself. He als.o stated that if he met with his parole officer, he would “put two bullets in his skull” in “assassination style.” When, further questioned, Austad identified his parole officer as “Mark” whose last name began with the letter “K.” After the meeting, Gilchrist submitted an informational report to prison officials which detailed the statements Austad made during the meeting.

[¶ 5.] Report of Austad’s statements went to both the Department of Corrections (DOC) and the Board of Pardons and Paroles (Board), and both entities responded. DOC proceeded with disciplinary action and the Board scheduled a violation hearing. DOC’s disciplinary action accused Austad of violating DOC rules and regulations by “threatening any non-inmate-staff.” Austad “verbally accepted sanctions” of 90 days in disciplinary segregation for the DOC rule violation.

[¶ 6.] The Board’s violation report alleged that Austad violated conditions 12 and 14 of the December 29, 2004 supervision agreement. At the Board’s probable cause hearing on January 13, 2005, and after being advised of his rights, Austad testified and denied violating his supervision agreement. The Board then proceeded with a revocation hearing and concluded that Austad violated the terms of his suspended sentence, specifically conditions 12 and 14 of his supervision agreement. As a result, the Board revoked Austad’s suspended time and imposed the remainder of his original ten year sentence.

[¶ 7.] Austad appealed the Board’s decision to circuit court. The trial court determined that the Board met its burden of proof in showing that Austad violated conditions 12 and 14 of his suspended sentence agreement. The court also concluded that the imposition of Austad’s suspended sentence did not violate his constitutional rights. Finally, the court determined that conditions 12 and 14 were reasonable. Austad appeals the trial court’s decision and presents the following issues for our consideration:

ISSUES
1. Whether the Board met its burden of proving that Austad violated the conditions of his supervision agreement.
2. Whether Austad’s equal protection rights were violated.
3. Whether conditions 12 and 14 were unreasonable.
4. Whether the Board’s decision was clearly erroneous.

STANDARD OF REVIEW

[¶ 8.] An appeal from the Board is governed by SDCL 1-26-37. Lee v. S.D. Bd. of Pardons & Paroles, 2005 SD 103, ¶ 6, 705 N.W.2d 609, 611. Therefore, “[w]e review questions of fact under the clearly erroneous standard; mixed questions of law and fact and questions of law are reviewed de novo.” Id. Further, “Matters of discretion are reviewed under an abuse of discretion standard.” Id. As we have noted,

The standard of proof required for a criminal conviction is not necessary to revoke a suspended sentence. 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.

In re Brown, 1997 SD 133, ¶ 8, 572 N.W.2d 435, 437 (citations omitted); see also Amundson v. S.D. Bd. of Pardons & Paroles, 2000 SD 95, ¶ 21, 614 N.W.2d 800, 805 (applying the “reasonably satisfied” standard); Hughes v. S.D. Bd. of Pardons & Paroles, 1999 SD 44, ¶ 11, 593 N.W.2d 789, 791 (noting the “reasonably satisfied” standard).

DECISION

Violation of Conditions of Supervision Agreement

[¶ 9.] Austad argues that the Board failed to present sufficient evidence to prove that he violated the terms of the supervision agreement. According to Aus-tad, the Board had to prove that his statements constituted “true threats” under the First Amendment of the United States Constitution. Without such proof, Austad argues, his statements are protected speech and cannot constitute a violation of his supervision agreement.

[¶ 10.] While the First Amendment guarantees citizens the right of free speech, the government may regulate certain categories or modes of expression. Virginia v. Black, 538 U.S. 343, 358-59, 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003). It is well established that “the First Amendment ... permits a State to ban a ‘true threat.’ ” Id. at 359, 538 U.S. 343, 123 S.Ct. at 1548, 155 L.Ed.2d 535; see also Watts v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664 (1969); People ex rel C.C.H., 2002 SD 113, ¶ 12, 651 N.W.2d 702, 706. The “true threat” doctrine originated in the context of a criminal prosecution. See Watts, 394 U.S. at 707-08, 89 S.Ct. at 1401-02, 22 L.Ed.2d 664. It has since been applied by many courts to determine whether speech was punishable or protected by the First Amendment. See, e.g., Doe v. Pulaski County Sch. Dist., 306 F.3d 616 (8thCir.2002) (considering whether expulsion of a student for making threats violated the First Amendment); C.C.H., 2002 SD 113, 651 N.W.2d at 702 (reversing a delinquency adjudication of a boy who made threatening statements at school). It is important in this case to note that the “true threats” doctrine also has been applied to statements made inside prison walls. See, e.g., United States v. Stewart, 420 F.3d 1007 (9thCir.2005) (finding that statements made by inmate to informant constituted “true threats” despite inmate’s incarcerated status and affirming inmate’s conviction for threatening to murder a federal judge); United States v. Miller, 115 F.3d 361 (6thCir.1997) (affirming conviction for threatening President based on “true threats” contained in inmate-defendant’s letter); United States v. Glover, 846 F.2d 339 (6thCir.1988) (finding that inmates’ letters threatening the President contained “true threats” and upholding their convictions).

[¶ 11.] The Board argues, however, that the “true threats” doctrine does not apply here. Both parties agree that while inmates retain free speech rights, those rights may be limited. We have not previously addressed the scope of an inmate’s First Amendment rights, but the United States Supreme Court recently reiterated that “the Constitution sometimes permits greater restriction of [First Amendment] rights in a prison than it would allow elsewhere.” Beard v. Banks, — U.S. —, —, 126 S.Ct. 2572, 2577-78, — L.Ed.2d —, —(2006). Prison regulations which impinge First Amendment rights are permissible if they are “reasonably related” to legitimate penological interests and are not an “exaggerated response” to those objectives. Id. at-, 126 S.Ct. at 2578 (quoting Turner v. Safley, 482 U.S. 78, 87, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)).

[¶ 12.] In this case, Austad does not challenge the supervision agreement or any prison regulation as an unreasonable restriction of his First Amendment right. He argues only that his speech was not a “true threat” and therefore was protected by the First Amendment. Neither party has presented any eases considering the “true threats” doctrine in the context of prison discipline or parole/suspended sentence revocation. Because the doctrine applies to criminal prosecutions of inmates, we will apply it in this case. Thus, our inquiry centers on whether Austad’s statements were “true threats” which could form the basis of punishment or whether his statements were protected by the First Amendment.

[¶ 13.] In determining what constitutes a true threat, the United States Supreme Court explained,

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.”

Black, 538 U.S. at 359-60, 123 S.Ct. at 1548, 155 L.Ed.2d 535 (citing Watts, 394 U.S. at 708, 89 S.Ct. 1399, 1401-02, 22 L.Ed.2d 664; R.A.V. v. City of St. Paul, 505 U.S. 377, 388, 112 S.Ct. 2538, 2546, 120 L.Ed.2d 305 (1992)). The Eighth Circuit Court of Appeals has stated that “[t]he court must analyze an alleged threat ⅛ the light of [its] entire factual context’ and decide whether the recipient of the alleged threat could reasonably conclude that it expresses ‘a determination or intent to injure presently or in the future.’ ” United States v. Dinwiddie, 76 F.3d 913, 925 (8thCir.1996) (citations omitted); see also Pulaski, 306 F.3d at 621-22 (8thCir.2003) (en banc) (citations omitted) (reversing Doe v. Pulaski County Special Sch. Disk, 263 F.3d 833 (8thCir.2001)).

[¶ 14.] In light of the facts and circumstances of this case, Austad’s statements can be characterized as true threats. Austad not only made general threats regarding himself and others, he made specific threats regarding his parole officer. Austad identified the parole officer as “Mark K.” and stated that he would “put two bullets in [the parole officer’s] skull” in “assassination style.” The recipients of Austad’s statements, Gilchrist and Baum, considered them serious. They informed both DOC and parole staff. Their reactions to Austad’s statements were influenced by their past interactions with Austad. Both knew of the gruesome contents of Austad’s journal. Further, Baum knew that Austad had been disciplined numerous times.

[¶ 15.] Austad argues that his statements were not true threats because he did not intend to harm his parole officer. Austad asserts that he merely intended to seek further institutional placement by presenting himself as mentally disturbed. Whether he intended to follow through with the threats, however, is irrelevant. See Black, 538 U.S. at 359-60, 123 S.Ct. at 1548, 155 L.Ed.2d 535. In light of the facts of this case, a recipient of Austad’s statements could “reasonably conclude” that he intended to injure his parole officer. See Dinwiddie, 76 F.3d at 925.

[¶ 16.] Therefore, we cannot agree with Austad’s position that his statements were protected speech and therefore did not violate the terms of his supervision agreement. Austad asserts no other basis for his claim. The Board did not err when it determined that Austad violated the terms of the supervision agreement. Although the trial court did not engage in the true threat analysis, it determined that the Board presented sufficient evidence to prove that Austad violated the agreement. Because the result was correct, we affirm the trial court. Tovsland v. Reub, 2004 SD 93, ¶ 20, 686 N.W.2d 392, 400; see also Poindexter v. Hand County Bd. of Equalization, 1997 SD 71, ¶ 16, 565 N.W.2d 86, 91 (“Where a judgment is correct, this court will not reverse although it was based on incorrect reasons or erroneous conclusions.”).

Equal Protection

[¶ 17.] Next, Austad argues that the Board violated his constitutional right of equal protection under the laws when it considered his conduct a violation of his supervision agreement. According to Aus-tad, other inmates who had a portion of their sentence suspended, but who have not signed supervision agreements, would not be subject to revocation of their suspended sentences for violations of institutional rules. Therefore, Austad argues that he was treated differently from similarly situated inmates.

[¶ 18.] The Fourteenth Amendment to the United States Constitution and Article VI, Section 18 of the South Dakota Constitution guarantee equal protection of the laws to all persons. Equal protection “requires that the government ‘treat similarly situated people alike,’ a protection that applies to prison inmates.” Murphy v. Miss. Dept. of Corr., 372 F.3d 979, 984 (8thCir.2004) (citations omitted). For an equal protection claim, an inmate must prove that he was treated differently from a similarly situated class of inmates, that such treatment burdens one of his fundamental rights, and that the different treatment bears no rational relation to any legitimate penal interest. Id.

[¶ 19.] In this case, Austad failed to meet the first prong — he failed to prove that he was treated differently from a similarly situated class of inmates. If we consider a narrow group of similarly situated inmates — those who have signed supervision agreements and are awaiting release on suspended sentence terms — we cannot find an equal protection violation. The record is devoid of any evidence indicating that such inmates would not be subject to revocation of their suspended sentences if they violated the terms of their supervision agreements.

[¶ 20.] Even if we consider a larger group of inmates, as asserted by Austad, we cannot find that Austad was treated differently from those inmates serving sentences which include a suspended term. Austad relies solely on the testimony of Ed Ligtenburg (Ligtenburg), the director of parole services, to support his claim. Lig-tenburg stated that an inmate’s suspended sentence would not normally be revoked for a violation of DOC rules if an inmate had not signed a suspended sentence supervision agreement. Ligtenburg testified as follows:

Q (by Austad’s attorney): If someone has not signed a suspended sentence supervision agreement, and they violate DOC rules, do you go and impose their suspended sentence violation?
A: No, we would not normally do that.
Q: They would just be punished by DOC rules and regulations; correct?
A: That’s correct.

Ligtenburg’s testimony, however, establishes only that revocation “would not normally” occur under such circumstances. It does not establish specific evidence that another inmate with a suspended term was not subject to revocation for violation of institutional rules. Austad has failed to present sufficient evidence of an equal protection violation.

[¶ 21.] Further, our cases indicate that an inmate serving a sentence of which a term has been suspended may indeed be subject to revocation of that sentence, even if the inmate has not signed a supervision agreement. See, e.g., Grajczyk v. S.D. Bd. of Pardons & Paroles, 1999 SD 149, 603 N.W.2d 508; Smith v. Bd. of Pardons & Paroles, 515 N.W.2d 219 (S.D.1994); In re Schmit, 360 N.W.2d 513 (S.D.1985); State v. Hotter, 340 N.W.2d 691 (S.D.1983). We have established “ ‘that once the court has committed a defendant to the executive branch of the government, namely the penitentiary, that inmate then can be released only by and, under the supervision of the Board of Charities and Corrections, even though the release results from an order of suspension.’ ” Grajczyk, 1999 SD 149, ¶ 7, 603 N.W.2d at 511 (quoting State v. Huftile, 367 N.W.2d 193, 197 (S.D.1985)). Therefore, only the Board can revoke a suspended sentence before it commences. Id.; see also Smith, 515 N.W.2d at 222. In Grajczyk, we reaffirmed “[t]he strong public policy” which validates the breadth of discretion possessed by the Board:

[I]f a person convicted of a crime and granted a period of probation or suspension as part of the sentence should commit offenses of such nature as to demonstrate to [the Board] that he is unworthy of the suspension, [the Board] has the power to revoke or change the suspension, both during the time of the suspended sentence and before the suspended portion begins.

1999 SD 149, ¶ 9, 603 N.W.2d at 511 (quoting Hotter, 340 N.W.2d at 693) (emphasis added). Therefore, the Board can revoke a suspended sentence—even if an inmate has not signed a supervision agreement— as long as it determines that the inmate’s offenses demonstrate the inmate is unworthy of suspension. It logically follows that the Board can revoke a suspended sentence after the inmate signs a supervision agreement but before release. In light of this principle and the lack of evidence in the record, Austad’s equal protection claim is without merit.

Reasonableness of Conditions

[¶ 22.] Austad claims that Conditions 12 and 14 of his supervision agreement were not reasonable. We have recognized that “the Board of Pardons and Paroles may impose conditions on a defendant’s suspended sentence in addition to those imposed by the sentencing court so long as the additional conditions are reasonable and not inconsistent with those mandated by the court.” Smith, 515 N.W.2d at 224. According to Austad, Condition 12 was not a condition at all and is therefore unreasonable. Austad further argues that Conditions 12 and 14 were unreasonable because violating DOC rules subjected Austad to revocation of his suspended sentence. Austad does not argue that the conditions are inconsistent with any condition imposed by the sentencing court. Rather, Austad simply argues that the conditions are unfair.

[¶ 23.] Austad claims that Condition 12 of the agreement is unreasonable because it does not set forth a condition of release. Condition 12 clarifies that even though Austad has signed his supervision agreement, he is still bound by the institutional rules of the Penitentiary. In its entirety, Condition 12 states, “I understand that violation of any institutional rule before my actual release from the institution may be considered a violation of my supervision agreement.” Austad points out that unlike the other conditions that begin with the phrase “I will” followed by a directive, Condition 12 begins with the phrase “I understand.” Therefore, Austad asserts that Condition 12 only requires Austad to “understand” something; it is not actually a condition and is therefore unreasonable.

[¶ 24.] We disagree. The preface of the conditions states that “[i]n consideration of Parole and/or Suspended Sentence/Supervision being granted me, I agree to the following.” The plain language of the preface, considered in combination with the language of Condition 12, clarifies that subsequent to signing the supervision agreement and prior to release, Austad was still bound by institutional rules and any violation thereof could be considered a violation of the agreement. Condition 12 provided notice to Austad of that contingency, and the phrase “I understand” does not operate to remove it as a condition of the agreement.

[¶ 25.] We also disagree that Conditions 12 and 14 are unreasonable. As we established above, the Board maintains discretion to revoke an inmate’s suspended sentence if the inmate commits offenses that demonstrate he is unworthy of the suspension. Conditions which subject inmates to institutional rules and preclude threats of violence promote the legitimate penological objectives of deterring crime, rehabilitating prisoners, and promoting institutional security. Austad does not argue that the conditions are in any way inconsistent with the conditions imposed by the sentencing court.

Decision of Board

[¶ 26.] Finally, Austad argues that the Board’s decision to revoke his suspended sentence was clearly erroneous. While Austad frames the issue as being subject to the clearly erroneous standard of review, he admitted at oral argument that the “reasonably satisfied” standard applies to the Board’s revocation of a suspended term. After a review of the record, we find that the standard was met.

[¶ 27.] The transcript of the violation hearing before the Board contains testimony by Baum and Gilchrist, the mental health professionals present when Austad made the statements at issue. Gilchrist stated,

[I]n my discussion with [Austad], I was trying to decide if in fact, you know, [the threats contained in his letter] were genuine or if they were not. And so I then asked the questions that you see in [the informational report]. And one of the questions that was asked in reference to him hurting people. You know, if you don’t get into [the Human Services Center] and you’re on the street, what might happen? And his quote was, If I get on the street, you better hope I don’t pick up a gun, end quote. Upon further questioning, he indicated he would kill others and then kill himself. And I told him, well, you have choices, and to that he said, quote, The only choices are to be institutionalized or dead. And then Austad further stated killing people gives power Satan — gives power to Satan. And then I further asked if he ever saw himself coming back to prison and he said, quote, If I ever come back here, I will be on death row, end quote. Some more discussion followed that, and as the session was ending, we had talked to him about his parole agent and he indicated that his parole agent was Mark. He didn’t know the last name. It started with a K. He said that, quote, If I go to his office, I will put two bullets in his skull, end quote. When further questioned about that statement he said, quote, It will be assassination style, end quote.

The report filed by Gilchrist, also part of the record before us, mirrored his testimony regarding Austad’s statements. Further, Baum testified:

[W]e called Mr. Austad into the office to clarify some things with the [letter].. and to see just — if there was a level of threat. And he did make statements .... Just about his parole officer and that if he happened to get ahold of a gun, if he was released that people may be in danger, so we followed up with that and became a little more specific, and he said he’d, you know, go to his parole officer’s office and — with the gun and shoot two bullets into his skull.

[¶ 28.] The evidence in the record, therefore, supports the Board’s conclusion that Austad’s threatening behavior violated the conditions of his supervision agreement. Austad cannot and does not point to any evidence leading to a contradictory conclusion. Austad argues, however, that he was not actually threatening to kill his parole officer. Instead, he argues he was attempting to present himself as mentally disturbed so as to obtain a mental health placement at the Human Services Center (HSC), rather than being released to the suspended term of his sentence. In support of his argument, Austad points to the testimony of Dr. Robert Strayhan (Strayhan), a psychiatrist who evaluated Austad. Strayhan testified that because Austad had not met his parole officer, his statement did not “present [] a direct threat so much as ... an attempt to manipulate the environment to show people that he was ill enough and needed to be at HSC.”

[¶ 29.] Austad’s argument lacks merit. By itself, Strayhan’s opinion merely suggests that Austad did not intend to actually threaten anyone. The other evidence in the record, however, supports a contrary conclusion. First, the record contains Austad’s eight-page letter/journal which graphically describes brutally assaulting and raping unnamed victims. Second, Strayhan admitted that “it may be on the surface that [the letter] was something that was written without any true intent, but it may be also something that would indicate [Austad] has certain fantasies that he has not heretofore spoken to that may present a risk.” Strayhan could not “make a definitive conclusion without further evaluation.” Strayhan’s opinion was that Austad needed further treatment, which according to a psychometric algorithm and supporting literature, “would be treatment that included — that occurred while the individual was incarcerated.” Finally, Baum testified that while incarcerated, Austad made numerous threats to staff and officers.

[¶ 30.] Because there is adequate evidence to support the Board’s decision, we cannot find that the Board abused its discretion in revoking Austad’s suspended sentence. Affirmed.

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

      . Watts considered a federal statute prohibiting knowing, willful threats against the President of the United States. Id. at 706, 394 U.S. 705, 89 S.Ct. at 1401, 22 L.Ed.2d 664. During a public rally, the defendant stated, “If they ever malee me carry a rifle the first man I want to get in my sights is L.B J.” Id. The Court concluded that the statute requires proof of a "true threat." Id. at 708, 394 U.S. 705, 89 S.Ct. at 1401, 22 L.Ed.2d 664. The court reasoned:
      "[W]e must interpret the language Congress chose 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited,’ robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.’ ” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

        Id. at 708, 394 U.S. 705, 89 S.Ct. at 1401-02, 22 L.Ed.2d 664. Because the Court held that the statement was not a "true threat,” it reversed the conviction and remanded for judgment of acquittal. Id. at 708, 394 U.S. 705, 89 S.Ct. at 1402, 22 L.Ed.2d 664.