Opinion
NO. 2015-CA-000065-MR
03-18-2016
RANDY CLARK APPELLANT v. STEVE HANEY, WARDEN; ERIC SIZEMORE, CAPTAIN; AND DUNCAN KENDALL, ADJUSTMENT OFFICER, ALL WITH THE KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES
BRIEF FOR APPELLANT: Randy Clark, Pro Se LaGrange, Kentucky BRIEF FOR APPELLEE: Charles D. Aaron, Jr. Justice & Public Safety Cabinet Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE PHILLIP J. SHEPHERD, JUDGE
ACTION NO. 14-CI-00964 OPINION
VACATING AND REMANDING BEFORE: ACREE, CHIEF JUDGE; J. LAMBERT AND MAZE, JUDGES. LAMBERT, J., JUDGE: Randy Clark, proceeding pro se, has appealed from the order of the Franklin Circuit Court dismissing his petition for declaration of rights related to three prison disciplinary actions. Because we agree with Clark that he was not afforded an impartial hearing, we vacate the circuit court's order.
Clark is currently an inmate at Luther Luckett Correctional Complex. While he was an inmate at Blackburn Correctional Facility, Clark was charged with three disciplinary actions that occurred on July 16, 2013, at the Kentucky Horse Park (KHP), where Clark worked as an inmate.
The first incident report, BCC-2013-01337, involved the discovery of a cell phone and a cell phone charger at KHP. The report indicated that Captain Eric Sizemore, of Internal Affairs for Blackburn Corrections Complex, had obtained information from an informant that Clark had a cell phone at KHP. A search of the work area was performed, and Sergeant Joel Helmburg found a cell phone charger hidden on a top shelf in the landscape building. Captain Sizemore found a cell phone (an LG Boostmobile) that connected to the charger in another area of the building. Captain Sizemore explained that the charger was one that could be plugged in to the cigarette lighter in a vehicle, including the Gator that Clark occasionally drove.
James Ward investigated the incident and questioned Clark, who said that he did not have a cell phone at KHP and had not seen or used the cell phone, but that he had seen a charger belonging to KHP employee David Kane by the microwave. Based upon the investigation, Clark was charged with possession or promoting of dangerous contraband. Clark requested a hearing as well as witnesses to testify at the hearing, including KHP employee David Kane and inmate Michael Lindblad, and he was assigned a legal aide.
The second incident report, BCC-2013-01338, involved the discovery of tobacco, including tobacco found in a plastic baggie inside of a jersey glove, as well as baggies, a lighter, and rolling paper, all of which could be used to "keister" tobacco into the prison and to smoke while working at KHP. Captain Sizemore, Sergeant Helmburg, Deputy Warden Brandy Harm, Officer Marcus Christian, and Mike Daff found these items after searching the landscape area where Clark worked and the Gator that Clark would drive or ride in at KHP. During the investigation, Clark denied that the items belonged to him and said that fifteen people worked in the area, that KHP employee David Kane smoked rolled up cigarettes, that multiple people used the Gator, and that he was in the process of quitting smoking. He denied that he had ever brought contraband back to the facility from KHP. Based on the investigation, Clark was charged with smuggling contraband items into/out of/within the institution. Clark entered a plea of not guilty, was assigned a legal aide, and a hearing was scheduled.
The third incident report, BCC-2013-01339, arose from the discovery of items in Clark's work area at KHP that constituted institutional violations and that caused him to break his GSP Code of Conduct Agreement and be fired from KHP. During the investigation, Clark denied that he had broken the code of conduct agreement and that he was not aware that any items in that area were considered violations for him to be around. Clark was charged with violating a condition of any outside work detail. As with the other incidents, Clark entered a not guilty plea, a hearing was scheduled, and he was assigned a legal aide.
A hearing was held in all three actions on July 17, 2013, with Sergeant Duncan J. Kendall acting as the Adjustment Officer. At the beginning of the hearing, Clark decided to waive his right to a legal aide and changed his pleas to guilty. The Adjustment Officer noted that "Clark confirmed both of these statements during the hearing, and affirmed that he was doing such of his own free will." He was found guilty of all three offenses.
The record does not contain a recording of the hearing.
For the contraband charge, the Adjustment Officer noted that during the hearing, Clark admitted that he had access to a cell phone at KHP but that he had never used it. The findings were as follows:
A confidential packet containing information obtained from no less than 1 and no more than 5 different confidential witnesses or informants confirmed the information available in this write up. After conducting an independent review of the confidential information, I, Sgt. Duncan Kendall deemed the information to be reliable, and I do believe that based on the information provided that evidence supporting the charge exists.
Captain Sizemore stated in the report that he obtained information that inmate Clark had a cell phone at the K.H.P., and that while searching inmate Clarks [sic] work area, a cell phone charger was discovered in the landscape building, and a cell phone that connects to the charger wad [sic] discovered in another area of the same building. Captain Sizemore confirmed this information in the investigation as true and accurate.
Based on report from Captain Sizemore and his statement during the investigation that the report is true and
accurate, and the confidential information presented in support of the report, and inmate Clarks [sic] own admittance in the hearing, and inmate Clarks [sic] altering his plea to guilty, I do find inmate Clark guilty of the Category 6.04.Clark's punishment was 180 days of good time loss, 60 days of telephone restriction, and 90 days of disciplinary segregation suspended for 180 days.
For the smuggling contraband charge, Captain Sizemore confirmed the information from the initial report as correct and accurate. Based upon the report, Clark's admission that he smoked, and Clark's decision to change his plea to guilty, the Adjustment Officer found Clark guilty of the charge. His punishment was 60 days of good time loss.
For the violation of the GSP Code of Conduct agreement, the Adjustment Officer found him guilty based on Captain Sizemore's report and Clark's admission that he broke the code of conduct and violated the conditions of his outside work detail. His punishment was 60 days of good time loss.
Clark was transferred to Eastern Kentucky Correctional Complex, and he instituted a late appeal of the disciplinary actions taken against him. Regarding the dangerous contraband action, Clark stated that at the beginning of the hearing, before the recorder was turned on, he had a lengthy exchange with the Adjustment Officer, which including a warning that if he continued to insist upon his right to a legal aide, he would be found guilty of the charged offense and would definitely have segregation time imposed as part of his penalty. Clark stated that the Adjustment Officer told him that if he waived his right to a legal aide and changed his plea to guilty, he would not impose any segregation time. Due to this coercion and his desire to avoid segregation, Clark agreed to change his plea and waive his right to legal aide. The Adjustment Officer then told Clark that he was not to make any reference to the pre-hearing discussion or indicate that he had made any assurances to Clark.
In addition, Clark related an incident the day before the hearing when he ran into Sgt. Kendall. At that time, Clark did not know Sgt. Kendall would be sitting as the adjustment officer at his hearing. Sgt. Kendall told Clark that he knew all about the incident and that Clark was fired from his job at KHP. As Sgt. Kendall was the former supervisor of inmate work details at KHP, Clark did not have any reason to doubt him. Clark contended that his due process rights were violated based on Sgt. Kendall's prior knowledge. Clark also asserted that the chain of custody was violated, that the areas where the cell phone and charger were found were readily accessible by numerous inmates and KHP employees every day, and that there was no evidence he had used the phone because none of the numbers obtained from the phone could be associated with him.
Related to the offenses of smuggling and violating a condition of any outside work detail, Clark made the same arguments related to his decision to change his plea to guilty and his encounter with Sgt. Kendall the day before the hearing. He also argued that there was no evidence connecting him to the found tobacco, baggies, lighter, or rolling paper, and that those items had been arbitrarily attributed to him.
By letter dated October 21, 2013, Blackburn Correctional Complex Warden Steve Haney stated that he had considered the matter, but had not found any due process violations, and that there was no reason for him to alter his decision to uphold the Adjustment Officer's decisions.
In a letter dated July 15, 2014, Clark sought reconsideration of the warden's decision, arguing that he could not be charged with promoting contraband until he brought the items into the detention facility, that the incident did not occur within a detention facility, and that at the time of the incident, a cell phone was not considered to be dangerous contraband pursuant to Kentucky Revised Statutes (KRS) 520.010(3). Warden Haney denied his request by letter dated July 21, 2014.
Clark filed a petition for declaration of rights in Franklin Circuit Court on August 19, 2014, seeking review of and requesting that the circuit court void the three disciplinary actions detailed above. He named Warden Haney, Captain Sizemore, and Sgt. Kendall as respondents. Clark contended that he was denied his rights to due process, to equal protection, and to present a defense, and that he was therefore not provided with a fair disciplinary hearing pursuant to Kentucky law. He argued that he pled guilty as a result of intimidation and was not afforded minimal due process; that he was denied an impartial hearing; that the chain of evidence related to the cell phone was broken; that the "some evidence" burden was not satisfied; and that he was charged with and punished for an offense that was not statutorily authorized as it did not occur within a detention facility and because a cell phone was not listed as dangerous contraband. The respondents disputed Clark's allegations and moved to dismiss his petition, to which Clark responded.
By order entered November 18, 2014, the circuit court dismissed Clark's petition, agreeing with the respondents that Clark's arguments lacked merit. This appeal now follows.
On appeal, Clark raises issues related to his allegedly coerced guilty plea, his right to be tried before an impartial decision-maker, the circuit court's rejection of his claim based upon the "some evidence" standard and his use of an inapplicable case citation, and the misapplication of KRS 520.010(6). Clark opted not to challenge the chain of evidence ruling in this appeal.
In Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), the United States Supreme Court stated, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Citing Wolff, the Supreme Court in Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985), held:
Where a prison disciplinary hearing may result in the loss of good time credits, Wolff held that the inmate must receive: (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 defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary actions. (Internal citation omitted).Also citing Wolff, the Supreme Court of Kentucky recently held:
Accordingly, an inmate facing disciplinary proceedings must be given: a hearing before any deprivation of property occurs; advance notice of the claimed violation; an opportunity to call witnesses and present documentary evidence "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals"; and a written statement by the factfinder detailing the evidence relied on and the reasons for disciplinary action.Ramirez v. Nietzel, 424 S.W.3d 911, 916 (Ky. 2014) (footnote omitted). In addition, the Wolff Court mandated impartial fact finders. 418 U.S. at 564-65, 570-71.
The Hill Court went on to hold "that revocation of good time does not comport with the minimum requirements of procedural due process unless the findings of the prison disciplinary board are supported by some evidence in the record." Hill, 472 U.S. at 454, 105 S.Ct. at 2773 (internal citation and quotation marks omitted). In determining the existence of "some evidence," the Court stated, "[a]scertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id., 472 U.S. at 455-56, 105 S.Ct. at 2774 (citations omitted). See also Smith v. O'Dea, 939 S.W.2d 353 (Ky. App. 1997) (adopting the holding in Hill).
In Smith v. O'Dea, supra, this Court explained the process of review for prison disciplinary actions and specifically stated that the summary judgment standard applies:
[W]e believe summary judgment for the Corrections Department is proper if and only if the inmate's petition and any supporting materials, construed in light of the entire agency record (including, if submitted, administrators' affidavits describing the context of their acts or decisions), [do] not raise specific, genuine issues of material fact sufficient to overcome the presumption of agency propriety, and the Department is entitled to judgment as a matter of law. The court must be sensitive to the possibility of prison abuses and not dismiss legitimate petitions merely because of unskilled presentations.Smith v. O'Dea, 939 S.W.2d at 356 (internal citation omitted).
Clark's first argument addresses whether arguments related to his allegedly coerced guilty pleas are moot. The circuit court rejected Clark's argument that he was denied his procedural rights when the Adjustment Officer threatened to automatically find him guilty unless he waived his rights, holding that "[s]ince there was evidence [Clark] was in possession of a cell phone without [his] admission, this argument is moot."
At the outset, we note that Clark is precluded from challenging the punishment he received because he entered a guilty plea. See O'Dea v. Clark, 883 S.W.2d 888, 891 (Ky. App. 1994) ("The Clark case involved a guilty plea. Therefore, Clark waived his right to challenge the administrative punishment he received. The trial court erred in vacating Clark's administrative punishment."). While Clark argued that his pleas were invalid because he was coerced by the Adjustment Officer, the circuit court rested its decision (and the appellees' based their argument) on the fact that some evidence supported the administrative punishment. This evidence came from the confidential informant's tip that Clark had a cell phone and from the evidence uncovered in the search, including the cell phone and the cell phone charger. Therefore, Clark's decision to waive his rights and enter guilty pleas in the three actions did not affect the level of evidence against him prior to his plea. Accordingly, even without Clark's guilty pleas, some evidence existed to support the Adjustment Officer's punishment, which renders Clark's argument on this issue moot.
For his second argument, Clark contends that he was denied the right to an impartial decision-maker. The circuit court found this argument to be "unsubstantiated since inmates are not entitled to a hearing officer who has no knowledge of the charges against the inmate. The requirement to an impartial hearing would be essentially impossible, since hearing officers are required to listen to evidence provided by co-works [sic] and other inmates they interact with daily."
In his adjustment appeal, Clark stated as follows:
The day prior to the hearing, on 7/16/13, I encountered Sgt. Kendall in passing. At that time he informed me that he "knew all about" the incident which generated the disciplinary reports against me and that I was definitely fired from my job at the Horse Park. As the former supervisor of the inmate work details assigned to the Horse Park, he would certainly know, and I had no
reason to doubt him. At that time, he gave no hint that he would be sitting as Hearing Officer at the subsequent hearing in this case.
CPP 15.6, Section II.B.1. states as follows:
1. The Adjustment committee, Adjustment Officer, or Unit Hearing Officer shall:
a. Hear and decide a disciplinary report based solely on information obtained in the hearing process. . . .
In his appellate brief, Clark contends that Sgt. Kendall fired him from his job at KHP the day before the disciplinary hearing. In response, the appellees have merely argued that Clark was not entitled to a hearing officer who had no knowledge of the charges, as that would be "effectively impossible." They did not, however, address Clark's claims in his petition below or brief before this Court about Sgt. Kendall's actions prior to the hearing.
As per his own assertion of 7/16/13, although he was not personally involved in the subject incident, as supervisor of the Horse Park work details, he had full working knowledge of the facts and even decreed that I was fired from my job as a result.
In Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990), the Court of Appeals for the Second Circuit stated:
An inmate subject to a disciplinary hearing is entitled to, inter alia, an impartial hearing officer. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 570-71, 94 S.Ct. 2963, 2981-82, 41 L.Ed.2d 935 (1974). Our conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say, with the utter certainty advanced by these defendants, how he would assess evidence he has not yet seen. See, e.g., Francis v.
Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard").See also Smith v. O'Dea, 939 S.W.2d at 357 ("Section 2 of our Constitution provides that the Commonwealth shall be free of arbitrary state action. With respect to adjudications, whether judicial or administrative, this guarantee is generally understood as a due process provision whereby Kentucky citizens may be assured of fundamentally fair and unbiased procedures.").
Based upon Clark's unrebutted allegations related to Sgt. Kendall's actions prior to the hearing, including his apparent involvement in Clark being fired from his job at KHP and Sgt. Kendall's prior knowledge of the case, we must agree with Clark that he was not afforded an impartial decision-maker. We disagree with the appellees' argument that despite Sgt. Kendall's decision to fire Clark, "it does not necessarily follow that Kendall had made his mind up on the issue." On the contrary, assuming Clark's allegations are true, as we must under our standard of review, that does appear to be the result. Sgt. Kendall fired Clark, or was at least involved with his firing, based on the information he learned about the violations, and he went on to find him guilty in the disciplinary proceeding. Therefore, we must reverse the circuit court's order on this issue and remand this matter for a new disciplinary hearing before an appropriately impartial decision-maker.
Next, Clark argues that the circuit court held him to an inappropriately high standard for a pro se litigant based upon his reliance on a case that did not support his position. Our review of the circuit court's order establishes that the court was simply stating that the case Clark cited was not on point. It was not holding Clark to an inappropriately high standard.
Finally, Clark argues that the circuit court incorrectly interpreted KRS 520.010(6) in finding that KHP qualified as a penitentiary/detention facility. The circuit court rejected Clark's argument, concluding that the statute "identifies work details as part of detention facilities, as both Respondents and [Clark] recognize, and, therefore, this argument is moot." Our standard of review on the interpretation of a statute is well-settled in the Commonwealth: "The construction and application of statutes is a matter of law and may be reviewed de novo." Bob Hook Chevrolet Isuzu, Inc. v. Com. Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998).
Clark has not sought review of the portion of the circuit court's ruling that a cell phone is dangerous contraband. --------
KRS 520.010(6) defines a "penitentiary" as "any facility operated by the Department of Corrections and the confines of any work detail or other detail, whether under guard or not, under the custody and control of the Department of Corrections."
Clark contends that KHP is not under the custody and control of the Department of Corrections and therefore KRS 520.010(6) does not apply. We disagree with this argument. Rather, we agree with the appellees' and the circuit court's interpretation of the statute. As the appellees argue, the statute does not require that both the facility and the work detail be under the custody and control of the Department of Corrections in order to be considered a penitentiary. Rather, the statute provides for two situations that meet the definition of penitentiary: 1) any facility operated by the Department of Corrections; and 2) any work detail under the custody and control of the Department of Corrections. In the present case, while KHP is not a Department of Corrections facility, any work detail at KPH certainly comes under the custody and control of the Department of Corrections. Therefore, Clark's work detail at KPH came under the statutory definition of penitentiary. Accordingly, we hold that the circuit court did not commit any error in so holding.
For the foregoing reasons, the order of the Franklin Circuit Court is vacated and this matter is remanded for a new disciplinary hearing before an impartial hearing officer.
ALL CONCUR. BRIEF FOR APPELLANT: Randy Clark, Pro Se
LaGrange, Kentucky BRIEF FOR APPELLEE: Charles D. Aaron, Jr.
Justice & Public Safety Cabinet
Frankfort, Kentucky