COMBS, JUDGE

NOT TO BE PUBLISHED APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 15-CI-00433 OPINION
AFFIRMING

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BEFORE: CLAYTON, COMBS, AND TAYLOR, JUDGES. COMBS, JUDGE: Quincy Bailey (Bailey), pro se, brings this appeal from an order of the Boyle Circuit Court dismissing his petition for a declaration of rights in a prison disciplinary matter. We conclude that KRS 505.020 does not apply to this case and that sufficient evidence existed in the record - even without considering the testing pertaining to the drugs found among Bailey's possessions. Therefore, we affirm.

On December 16, 2014, Correctional Treatment Officer Jann Edington received information that inmate Bailey possessed dangerous contraband. Officer Edington notified Tracy Nietzel (Correctional Internal Affairs Lieutenant), who directed William Elam (Correctional Lieutenant) and John Phillips (Correctional Officer) to respond.

While searching through Bailey's belongings, Lieutenant Elam noticed that the RF modulator connecting Bailey's television appeared to have been altered. He opened it and discovered five small baggies containing "what appeared to be drugs" as well as a cell phone watch. Lieutenant Elam and Officer Phillips confiscated the items and gave them to Lieutenant Nietzel. After opening the baggies, Nietzel discovered "3 grams of beige powder, 1 gram of white chunky powder, 1 gram of white crystal powder and 2 grams of a green leafy substance." She tested each of these substances, and the results were positive for marijuana, heroin, crack cocaine, and bath salts.

Bailey was charged with two counts of "possession or promoting of dangerous contraband" pursuant to CPP 15.2(II)(C)(VI)(3), which relates to the cell phone watch and heroin. He was also charged with "smuggling of contraband items into, out of or within the institution" pursuant to CPP 15.2(II)(C)(IV)(5). Bailey was sentenced to ninety days of disciplinary segregation for each of the charges of "possession or promoting of dangerous contraband" and forty-five days of disciplinary segregation for the charge of "smuggling of contraband items into, out of or within the institution."

On October 19, 2015, Bailey filed a petition for a declaration of rights to the Boyle Circuit Court. On February 10, 2016, the circuit court entered an order dismissing the action, finding that Bailey's convictions were supported by "some evidence." This appeal follows.

As a preliminary matter, we note that counsel for the appellees has elected not to file an appellee brief in this case. CR 76.12(8)(c) "provides the range of penalties that may be levied against an appellee for failing to file a timely brief." St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). As a matter of discretion, we have three possible options pursuant to CR 76.12(8)(c). We may:

"(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.

On appeal, Bailey argues: (1) that KRS 505.020 bars his convictions for two different prison disciplinary offenses; and (2) that the laboratory tests conducted with respect to the heroin were not reliable under Webb v. Sharp, 223 S.W.3d 113 (Ky. 2007).

In prison disciplinary proceedings, "the full panoply of rights due a [criminal] defendant ... does not apply." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Furthermore, the United States Supreme Court has announced the limited procedural due process requirements in this context:

(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.

Bailey first argues that his charges for smuggling dangerous contraband and possession of dangerous contraband violate KRS 505.020. That statute provides in relevant part as follows:

(1) When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. [] He may not, however, be convicted of more than one
(1) offense when:
(a) One offense is included in the other, as defined in subsection (2); or
(b) Inconsistent findings of fact are required to establish the commission of the offenses; or
(c) The offense is designed to prohibit a continuing course of conduct and the defendant's course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
(2) A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]

"Offense" means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state or by any law, order, rule, or regulation of any governmental instrumentality authorized by law to adopt the same[.]

Bailey was sentenced to a significant period of disciplinary segregation. Although clearly punitive in nature, disciplinary segregation is not "a sentence to a term of imprisonment or to a fine"; rather it is a correctional device within the framework of the term of imprisonment previously imposed by a court. See Sandin v. Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 2301, 132 L. Ed. 2d 418 (1995) (stating that the conditions of disciplinary segregation in that case "though concededly punitive, do[ ] not present a dramatic departure from the basic conditions of [the appellee]'s indeterminate sentence.") Because imposing disciplinary segregation does not constitute "a sentence to a term of imprisonment or to a fine" pursuant to KRS 500.080(11), KRS 505.020 is inapplicable and cannot be invoked in this case.

Bailey's second argument is that the laboratory testing concerning the substances found in the TV cable was not reliable. In Webb, supra, our Supreme Court examined the requirements concerning the utilization of drug test results in prison disciplinary cases. 223 S.W.3d at 119. Because the test results in the Webb record failed to provide a foundation for the evidence or to establish its reliability, the administrative officials were precluded from relying upon it during the prison disciplinary hearing. Id. However, our Supreme Court noted that "[t]his decision does not foreclose the admission of such tests in future cases where the proper evidentiary requirements are met." Id.

We shall analyze Webb in some detail. In Webb, the warden denied all of the inmates' administrative appeals. The circuit court reversed, finding that the testing relied upon by the Administrative Officer (the AO) had not been shown to be reliable and that, therefore, there was insufficient evidence in the record upon which to sustain the inmates' convictions under the "some evidence" standard. Id. at 114. This Court affirmed the circuit court. Id. Our Supreme Court reversed this Court as to one conviction, but it affirmed for the remaining three convictions. Id. at 115.

As to the incident requiring reversal in Webb, the officers discovered a white substance wrapped in toilet paper lying on the floor. Id. at 115-16. There was no indication that it was within the control of the inmate. Nor did he attempt to conceal it.

Sharp's second incident occurred on June 8, 2003. During a routine cell search, Officer Hope discovered a white substance wrapped in toilet paper lying on the floor. Sergeant Rich, standing at the door with Sharp, took pictures of the substance and where it was found. Officer Hope secured the substance. Lieutenants J. Elliott and M. Morris brought over a Marquis Reagent test kit. When the substance was tested by Sergeant Rich, the result was positive for amphetamines.

In a follow-up investigation, Lieutenant B. Cooney interviewed the officers involved and confirmed the information in their reports. When Lieutenant Cooney interviewed Sharp, he stated that the officers had kicked the paper, which had been laying [sic] outside his cell, into his cell when they came in to search.

Rather than review the facts underlying the three incidents involving marijuana, we will set out a general summary of circumstances common to each incident. In each case, officers observed and reported their first hand impressions of the substance recovered; including odor,

texture, and color. As noted in Cooper v. Commonwealth, "It is a fundamental principle that a policeman may "observe" with any of his five senses[.]" 577 S.W.2d 34, 36 (Ky. App. 1979). See also Commonwealth v. Hagan, 464 S.W.2d 261, 264 (Ky. 1971), wherein this Court recognized that an officer could base his opinion on what he see or hears. In addition to the officers' impressions as to the nature of the substance recovered, the hearing officer heard evidence as to the way the inmate reacted when the substance was discovered. In each case the inmate attempted to conceal the substance. In all three of the incidents, the inmates went to great lengths to destroy the substance either by flushing it down the toilet or by swallowing it. In fact, in two of the incidents the inmates openly scuffled with the officers in an attempt to prevent the officers from recovering the substance. Finally, in each of the three incidents involving marijuana, the inmates elected not to testify or assert that the substance was not what the officers believed it to be. As a result, the inmates neither denied ownership nor challenged the nature of the substance recovered.

In the case before us, it is true that none of the tests performed was shown to be reliable. However, we note that a completed chain of custody form for the heroin was included in the record, arguably creating a foundation for the entry of the evidence. More significantly, the officers discovered several baggies of substances that "appeared to be drugs" concealed inside Bailey's television RF modulator. We are persuaded that the fact of concealment of the drugs inside one of Bailey's possessions (although he disclaimed ownership) was sufficient under the circumstances of this case to support a finding of guilty under the "some evidence" standard. See generally Smith v. O'Dea, 939 S.W.2d 353, 357 (Ky. App. 1997) ("Although the evidence of Smith's involvement in the attempted smuggling is not compelling, the inference is reasonable that he, at some time, communicated to his daughters a willingness to receive such contraband."). Because there was indeed "some evidence" of Bailey's guilt, he is not entitled to relief as to this issue.

We affirm the order of the Boyle Circuit Court dismissing Appellant's prison disciplinary action.

ALL CONCUR. BRIEF FOR APPELLANT: Quincy Bailey, Pro Se
Eddyville, Kentucky BRIEF FOR APPELLEE: No brief filed for the appellee