Opinion
No. 111,606.
2014-11-21
Milo A. JONES, Appellant, v. Raymond ROBERTS (Secretary of Corrections), Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.Milo A. Jones, appellant pro se.Sherri Price, legal counsel, of Lansing Correctional Facility, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Milo A. Jones, appellant pro se. Sherri Price, legal counsel, of Lansing Correctional Facility, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Milo A. Jones, appeals the denial of his K.S.A. 60–1501 petition. Jones raises procedural and substantive challenges to his prison disciplinary proceeding. We affirm the district court's ruling.
Factual and Procedural Background
Jones is an inmate at the Lansing Correctional Facility (LCF). On April 3, 2013, a correctional officer found a cell phone inside a typewriter belonging to Jones. In prison, a cell phone is considered contraband. Jones was using the typewriter at the time of the cell phone's seizure, and a photograph of Jones was retrieved from the cell phone.
The correctional officer prepared a disciplinary report, and on April 29, 2013, a hearing officer convened the hearing. Jones refused to answer the hearing officer's questions concerning his understanding of his rights, and Jones refused to enter a plea when requested. Instead, Jones asked repeated questions of the hearing officer. The hearing officer answered Jones questions, but Jones then warned him that if the hearing officer violated his oath, he “could bring about civil litigation and ‘take all of [the hearing officer's] property.’ “ The hearing officer advised Jones that his statement “sounded suspiciously like an attempt to intimidate” and that he would not tolerate such behavior in the hearing room.
The hearing officer informed Jones that if he did not enter a plea, the hearing officer would enter a plea for him “and do the hearing without him for refusal to participate.” Jones asked a question about the plea process, and the hearing officer explained the options of guilty, not guilty, and no contest. But Jones then continued to pose questions, asking about matters already discussed and eventually interrupting the hearing officer with yet more questions as the officer attempted to answer.
Finally, the hearing officer instructed Jones to “enter a plea or to leave the office.” Jones simply continued asking questions on matters already discussed. As a result, the hearing officer dismissed Jones and held the hearing in absentia “[d]ue to his refusal to participate and his statements meant as a means of intimidation.”
The hearing officer entered a plea of not guilty on Jones' behalf and assigned a proxy for Jones, who questioned the correctional officer. The correctional officer testified the cell phone was found in a section of Jones' typewriter which had been screwed shut. According to the officer, the cell phone was wrapped in a sock, which inmates use “so that you can't hear it slide back and forth.”
The correctional officer also testified about “written materials” which apparently showed “who was paying the bills and additional information on the phone.” The hearing officer viewed these written materials, but they are omitted from the record on appeal. The hearing officer also viewed the photograph of Jones found on the cell phone and stated it “appear[ed] to be taken by ... Jones.” The photograph is omitted from the record as well.
Jones proffered testimony from a cellmate that correctional officers “never asked who the [cell phone] belonged to.” The hearing officer declined to receive the testimony, stating the lack of such a question was “irrelevant per K.A.R. 44–13–405a(7).” The hearing officer then found “it is more likely true than not that [Jones] was in possession of [the cell phone], which makes him the last hands on a device that was illegally introduced into a correctional facility as stated in K.S.A. [2013 Supp.] 21–5914(a)(3) .” Given this violation of statute, the hearing officer ruled that Jones had violated K.A.R. 44–12–1001, which treats statutory violations as administrative offenses. In addition, the hearing officer held Jones had violated K.A.R. 44–12–211(b), which prohibits the use or possession of a cell phone without permission of the warden or the warden's designee. The hearing officer imposed $40 in fines and other sanctions.
On July 22, 2013, Jones filed his pro se K.S.A.2013 Supp. 60–1501 petition. On August 8, 2013, the district court issued a writ of habeas corpus to Raymond Roberts, the Secretary of Corrections. On October 1, 2013, the district court held a hearing at which Jones rested on the contents of his petition. On January 3, 2014, the district court remanded the case to the hearing officer for findings because the court file did “not include a summary of the evidence relied upon” or “even ... a specific finding of guilt.” In response, on January 6, 2014, Roberts filed the hearing officer's written statement of the factual findings and the reasons for the decision. On February 25, 2014, the district court filed its order denying Jones' petition.
Discussion
On appeal, Jones reprises his arguments from the district court. First, he contends the district court erred in remanding the case to the hearing officer for additional findings. Jones also argues that he was denied due process in various ways at the disciplinary hearing. He complains that he “kept receiving nonresponsive answers” from the hearing officer. We consider whether the district court's factual findings are supported by substantial competent evidence and we review its conclusions of law de novo. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
Beginning with the district court's decision to remand, it is unknown why the district court was not initially provided with the written statement. As the district court pointed out, K.A.R. 44–13–502a directs “[a] complete written record shall be made of the disciplinary hearing by the hearing officer who conducted the hearing.” In any event, we believe the district court had authority to remand the matter when the written statement was not included among the materials initially provided to the court. See K .S.A.2013 Supp. 60–1503(a) (permitting the judge to “order the person to whom the writ is directed ... to take such other action as the judge deems appropriate”).
Jones alleges on appeal that the hearing officer actually held the hearing “off the record” and then created a “new” record “after the fact.” We see no evidence supporting this allegation. The written statement is dated April 29, 2013, the same date as the hearing. Even if the written statement was created after the hearing, the administrative regulation does not require its contemporaneous memorialization. And because Jones did not assert and establish below that the written statement is inaccurate, we may take it as a fair representation of the proceedings before the hearing officer. See Fletcher v. Nelson, 253 Kan. 389, 392, 855 P.2d 940 (1993) (party claiming error must designate record affirmatively showing the error).
Turning now to the merits, “the full panoply of rights due a defendant in a criminal proceeding does not apply” in prison disciplinary proceedings. Swafford v. McKune, 46 Kan.App.2d 325, Syl. ¶ 3, 263 P.3d 791 (2011), rev. denied 294 Kan. 948 (2012). But “prison officials must follow certain due process procedures, including a written notice of the charges to enable inmates to prepare a defense, an impartial hearing, the opportunity to call witnesses and present ... evidence, and a written statement from the hearing officer as to the findings and the reasons for the decision.” 46 Kan.App.2d 325, Syl. ¶ 4. We have already addressed the written statement from the hearing officer.
With regard to written notice, Jones contends he lacked “an advance notice of the charges” because “the initial disciplinary report ... does not state where the cell phone was found.” Without the “essential fact of establishing where the cell phone was found,” Jones argues, he “couldn't defend against the charge.” Jones makes a similar argument with regard to his photograph shown on the cell phone.
The disciplinary report stated Jones was “sitting at a table with his typewriter,” and the cell phone was discovered “upon searching the room and all items within it.” The disciplinary report did not specify that the cell phone was found inside the typewriter, and it did not mention Jones' photograph was displayed on the phone. This latter fact was apparently established by the correctional officer's investigation after preparation of the disciplinary report.
The district court rejected Jones' contention that “the charges in the disciplinary report did not provide ... enough information to prepare a defense.” In making this ruling, the district court relied on K.A.R. 44–13–201(d), which states the disciplinary report constitutes “a formal statement of the charge.” In part, the regulation requires “a brief description of the circumstances and facts of the violation.” K.A.R. 44–13–201(d)(10). The district court found the disciplinary report stated Jones “was charged with possession of a cell phone” and that “[t]he cell phone was found in [Jones'] cell, while [Jones] was located in the cell.” The district court concluded: “Although not every fact asserting possession is alleged, for example, that the phone was found in the typewriter, or that the phone had pictures of [Jones], the charging document was sufficient to assert possession by [Jones] and to apprise [Jones] of the charges.”
We agree with the district court. A disciplinary report does not need to detail the evidence against an inmate but only “afford adequate notice of the nature of the charges.” Swafford, 46 Kan.App.2d at 329. The charge here was possession of a cell phone, and facts concerning the precise location and contents of the cell phone were not necessary to prepare a defense. See 46 Kan.App.2d at 326–29 (disciplinary report stating inmate had reached into a visitor's sleeve “ ‘to fondle’ “ her breast was sufficient even though the evidence showed he reached into the sleeve and “ ‘was fondling’ “ her breast). Jones received a brief description of the circumstances and facts of the violation as required by K.A.R. 44–13–201(d)(10).
Regarding the hearing itself, the district court held Jones was properly excluded under K.A.R. 44–13–403(d), which allows a hearing to “proceed in absentia” when an inmate is “disruptive.” “[T]he right to be present at the hearing is not absolute and may be limited by the competing concerns of maintaining institutional safety and other correctional goals.” Hogue v. Bruce, 279 Kan. 848, 852, 113 P.3d 234 (2005). “The burden of persuasion as to the existence and sufficiency of institutional concerns is borne by the prison officials, not by the inmate.” 279 Kan. 848, Syl. ¶ 3.
We find substantial evidence that Jones was disruptive. It was Jones, not the hearing officer, who was nonresponsive to questions asked. The district court considered whether Jones' repeated questions could reflect ignorance of the proceedings, but it found from both the quality of the briefing and “the Court's observation of [Jones] in the hearing” that Jones was “very knowledgeable about the process.” In addition, a letter Jones attached to his petition from a “Unit Team Manager” stated that despite Jones' claim “to not understand the disciplinary process,” Jones “has a very lengthy disciplinary history, which would lead one to believe that he knows the process very well.” The evidence, therefore, supported the district court's conclusion that Jones had not repeatedly questioned the hearing officer due to genuine ignorance but “to make a mockery out of the disciplinary hearing.”
Jones further made a “statement of intimidation,” as the district court put it, threatening to sue the hearing officer and take all of his property. We hold under these circumstances that such a threat at a disciplinary hearing may constitute “disruptive” conduct under K.A.R. 44–I3–403(d). Considering the facts of the present case, there was “a factual basis to support the reasons given by the prison officials which satisfies the prison officials' burden of persuasion as to the sufficiency of the concern .” Hogue, 279 Kan. at 854.
Finally, with respect to calling witnesses, Jones argues the hearing officer erred by refusing to hear the testimony of his cellmate. Jones' specific proffer was that the cellmate would testify: “ ‘Not one officer present [asked] ... who did the cell phone belong to.’ “
In making its ruling, the district court relied on K.A.R. 44–13–405a(a), which states: “In determining whether to allow the inmate to call a witness from the facility population ..., the hearing officer shall balance the inmate's interest in avoiding loss of good time and assessment of a fine or placement in disciplinary segregation against the needs of the facility.” The “needs of the facility” are defined to include, “the need to avoid irrelevant, immaterial, or unnecessary testimony and evidence.” K.A.R. 44–13–405a(a)(7).
We agree with the district court that it was irrelevant, immaterial, or unnecessary for the hearing officer to know whether correctional officers had asked about possession of the cell phone. As the district court pointed out, Jones did not proffer testimony that “the phone belonged to a particular person,” but only “that the officers didn't ask.” Since the existence of such a question would neither prove nor disprove possession, it was of little evidentiary weight. The prison officials met their burden of persuasion that there was “a reasonable basis for overriding the inmate's right to call witnesses.” Sauls v. McKune, 45 Kan. App 2d 915, 920, 260 P.3d 95 (2011).
In conclusion, we have considered the remaining assertions in Jones' pro se brief and conclude they are without merit. A thorough examination of the record shows Jones received due process before the hearing officer. The district court correctly denied the K.S.A.2013 Supp. 60–1501 petition.
Affirmed.