Opinion
No. 108,592.
2013-08-29
Jeffrey SPERRY, Appellant, v. David McKUNE, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Jeffrey J. Sperry, appellant pro se. Matthew J. Donnelly, legal counsel, of Lansing Correctional Facility, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Jeffrey J. Sperry, appellant pro se. Matthew J. Donnelly, legal counsel, of Lansing Correctional Facility, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jeffrey Sperry appeals from a judgment of the trial court denying his K.S.A. 60–1501 petition. On appeal, Sperry argues that the trial court erroneously found that there was some evidence to support his disciplinary conviction under K.A.R. 44–12–901. Because the record contains some evidence to support Sperry's disciplinary conviction, we affirm the trial court's denial of Sperry's K.S.A. 60–1501 petition.
Sperry is an inmate at Lansing Correctional Facility. When officers conducted a search of Sperry's person, they found three hand-rolled cigarettes which contained a green leafy substance. Sperry was issued a disciplinary report alleging that he had violated K.A.R. 44–12–901 by possessing dangerous contraband.
At the disciplinary hearing, Sperry testified that the substance in the cigarettes was merely vegetable flakes and that he did not possess any dangerous contraband. Sperry admitted that he had rolled the cigarettes up in an attempt to determine whether another inmate was an informant. Sperry stated, “Apparently, it worked.” The hearing officer held that even though the cigarettes did not contain dangerous contraband, they were packaged to look like dangerous contraband which could have created a dangerous situation should Sperry have tried to pass them off as a controlled substance. As a result, the hearing officer found Sperry guilty.
Sperry appealed to the trial court arguing that there was insufficient evidence to support the hearing officer's finding. The trial court held a hearing on Sperry's motion on February 14,2012.
At the hearing, Sperry testified that another inmate had asked him multiple times if he knew where to get some marijuana. Sperry told the inmate that he did not know where to get any marijuana. Sperry then testified that “just for my own edification, I let him see me look like I was rolling something up to see if he would tell.” Sperry further testified that he was aware that there was a market for tobacco and illegal drugs inside the Lansing Correctional Facility and that some inmates would sell these items.
After hearing the evidence, the trial court took the matter under advisement. In issuing an order denying Sperry's petition for relief, the trial court held that there was clearly evidence of a potential danger created by the fake cigarettes. Moreover, the trial court held that, at the very least, there was some evidence to support the hearing officer's decision that the fake cigarettes were likely to precipitate a dangerous situation of conflict.
Sperry moved to alter or amend judgment which the trial court denied. Did the trial court err by ruling that there was some evidence to support Sperry's disciplinary conviction? Standard of Review
In a habeas corpus proceeding brought by a prison inmate challenging the prison officials' disciplinary action against that inmate on the basis of insufficient evidence, a trial court is required to uphold such disciplinary action if there was “some evidence” to support the prison hearing officer's determination that such a violation occurred. Anderson v. McKune, 23 Kan.App.2d 803, Syl. ¶ 5, 937 P.2d 16,rev. denied 262 Kan. 959, cert denied522 U.S. 958 (1997). We do not reweigh the evidence or assess the credibility of the witnesses. We simply examine the record to determine if the evidence that supports the hearing officer's conclusion met this minimal evidentiary standard. Anderson, 23 Kan.App.2d at 807–08.
Whether some evidence supported Sperry's conviction.
Sperry contends that there was insufficient evidence that he contained dangerous contraband or that he intended on passing off the fake cigarettes to other inmates. Sperry concedes that the some evidence standard is a very minimal standard, but he argues that it requires something more than speculation and conjecture.
As stated earlier, the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary officer to sanction a prisoner. Sammons v. Simmons, 267 Kan. 155, Syl. ¶ 3, 976 P.2d 505 (1999).
Here, the record contains some evidence that the violation occurred. K.A.R. 44–12–901 states:
“(a) Dangerous contraband shall be defined as any of the following:
(1) Any item, or any ingredient or part of or instructions on the creation of an item, that is inherently capable of causing damage or injury to persons or property, or is capable or likely to produce or precipitate dangerous situations or conflict, and that is not issued by the department of corrections or the facilities, sold through the canteen, or specifically authorized or permitted by order of the secretary of corrections or warden for use or possession in designated areas of the facility;
(2) any item that can be the basis for a charge of felony for its possession under the laws of Kansas or the United States; or
(3) any item that, although authorized, is misused if the item in its misused form has the characteristics of being able to cause damage or injury to persons or property or being likely to precipitate dangerous situations or conflicts.”
Sperry was charged with possession of dangerous contraband in violation of K.A.R. 44–12–901 even though it was determined that the cigarettes he possessed were made with vegetable flakes purchased through the prison canteen. Under K.A.R. 44–12–901(a)(3) any item, although authorized, is misused if the item in its misused form has the characteristics of being able to cause damage or injury to persons or property or being likely to precipitate dangerous situations or conflicts. This subsection is applicable to this case.
Here, Sperry used paper and vegetable flakes, both items which are authorized, to make several fake cigarettes to resemble marijuana cigarettes. In doing so, Sperry was attempting to determine whether another inmate was an informant. It is common knowledge that once it is discovered that someone is an informant, especially in a prison setting, that person can be in danger. Other inmates may confront the informant or try and harm the informant. Moreover, if Sperry did not have anything to hide, why did he need to know whether this other inmate was an informant?
Based on the evidence presented, it is readily apparent that there was some evidence to support Sperry's disciplinary conviction in violation of K.A.R. 44–12–901. Because the evidence supports the hearing officer's finding that Sperry had violated K.A.R. 44–12–901, the trial court properly dismissed Sperry's K.S.A. 60–1501 petition.
Is K.A.R. 44–12–901 unconstitutionally vague and overbroad?
Finally, Sperry argues that K.A.R. 44–12–901 is unconstitutionally vague and overbroad. Sperry maintains that K.A.R. 44–12–901 is arbitrary because it punishes inmates for possessing authorized items in a misused form. Sperry contends that this allows officers to “simply manufacture any scenario [the officer] desires to sustain a disciplinary conviction for merely possessing an item sold to the inmate [at] the prison canteen.” Sperry further argues that that is what happened in this case.
Sperry argues that K.A.R. 44–12–901 is unconstitutionally overbroad because it prohibits the possession of “authorized items.” An overbroad statute makes conduct punishable that under some circumstances is constitutionally protected. State v. Whitesell, 270 Kan. 259, Syl. ¶ 6, 13 P.3d 887 (2000). The overbreadth doctrine should be applied sparingly and only as a last resort. Smith v. Martens, 279 Kan. 242, 253, 106 P.3d 28 (2005). “A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing the law's constitutional from its unconstitutional applications.” State ex rel. Murray v. Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982).
Sperry's argument that K.A.R. 44–12–901 arbitrarily applies to authorized items is a red herring. Possession of authorized items is not a significant part of the regulation's target. The regulation was created to prevent inmates from misusing authorized items which could create a dangerous situation. The regulation is not aimed at prohibiting the possession of vegetable leaves.
Moreover, Sperry's argument must also fail because there was sufficient evidence presented at Sperry's disciplinary hearing to establish that he knowingly possessed an authorized item in an unauthorized form. Sperry testified that he knowingly rolled up vegetable leaves to make fake marijuana cigarettes. Significantly, Sperry did not simply possess a container of vegetable leaves in the form that he had bought them in at the prison canteen when the officers searched him. Sperry knowingly misused the vegetable leaves to further his attempt at discovering a prison informant. Based on the evidence presented, Sperry's argument that this regulation was arbitrarily applied to him fails. Thus, Sperry's argument that the officer's conjured up this charge against him must also fail.
Affirmed.