Opinion
NO. 2013-CA-001047-MR
03-21-2014
AVERY GRAVES APPELLANT v. COMMONWEALTH OF KENTUCKY AND CLARK TAYLOR, WARDEN OF THE KENTUCKY STATE REFORMATORY APPELLEE
BRIEFS FOR APPELLANT: Avery D. Graves, Pro Se Burgin, Kentucky BRIEF FOR APPELLEE: Angela E. Cordery Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 13-CI-00148
OPINION
AFFIRMING
BEFORE: DIXON, LAMBERT AND NICKELL, JUDGES. DIXON, JUDGE: Appellant, Avery Graves, appeals pro se from the dismissal of his petition for a declaration of rights under KRS 418.040. Finding no error, we affirm.
At all times relevant herein, Appellant was confined at the Northpoint Training Center. Appellant claims his procedural due process rights were violated when he was found guilty of possession of promoting dangerous contraband following an Adjustment Committee hearing that occurred on November 27, 2012. The adjustment hearing officer stated that her finding of guilt was based upon the following facts: (1) Officer Krystal Woods stated that during a November 11, 2012 search of Appellant's cell, she discovered a plastic baggie under Appellant's pillow and that such smelled of marijuana; (2) Officer Matthew Sisco confirmed that he was present and turned the baggie over to Lieutenant Darin Wilder, who in turn delivered it to the captain's office for testing; (3) the baggie tested positive for marijuana residue; and (4) Appellant was present during the search and acknowledged that the baggie was found in his cell. As a result, Appellant received 90 days of disciplinary segregation for the infraction. He suffered no other consequence or loss of good time credit.
Appellant thereafter appealed the finding to Warden Clark Taylor, challenging the chain of custody and reliability of the drug test. Warden Taylor determined that the decision was supported by the evidence and that the penalty was appropriate.
On February 22, 2013, Appellant petitioned the Oldham Circuit Court for a declaration of rights pursuant to KRS 418.040, arguing that he was denied due process during the adjustment committee hearing. Specifically, Appellant claimed because Officer Woods found the baggie, she was the officer required to prepare the written statement and turn the baggie over to Lieutenant Wilder. Because Officer Sisco prepared the statement and physically handed the baggie to Lieutenant Wilder, the chain of custody was broken and "all integrity was lost." Further, Appellant argued that because no actual substance was found in the baggie, there was no way to confirm that the baggie tested was the one discovered in his cell or that the testing performed on the baggie was reliable. On May 1, 2013, the trial court dismissed the petition finding that the adjustment officer's decision was supported by "some evidence." This appeal ensued.
It is well-settled that prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights afforded to a criminal defendant are not afforded to an incarcerated inmate facing prison disciplinary charges. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). Our courts have long held that in order to prevail on a Fourteenth Amendment procedural due process claim, an inmate petitioning for a declaration of rights must establish: "(1) that he enjoyed a protected 'liberty' or 'property' interest" and "(2) that he was denied the process due him under the circumstances." Marksberry v. Chandler, 126 S.W.3d 747, 749 (Ky. App. 2004). Significantly, disciplinary segregation, where no loss of good time credit is involved, does not in itself implicate a protected liberty interest under the Due Process Clause. Id. at 749-750. See also Sandin v. Conner, 515 U.S.472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
However, while segregation does not typically implicate due process, a petitioner is entitled to due process where the segregation "imposes an atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. In order to determine whether an instance of segregation is "atypical and significant," courts must look to factors such as: (1) the effect of the segregation on the length of prison confinement under the original sentence, (2) the extent to which the conditions of segregation differ from other prison conditions, and (3) the duration of segregation imposed. Marksberry, 126 S.W.3d at 750 (Citing Sandin, 515 U.S. at 486).
In the present case, Appellant was given 90 days of segregation. He makes no argument that the segregation was atypical compared to normal prison conditions or that it imposed any significant hardship upon him. Accordingly, having been offered no argument to the contrary, we find that it did not. As no liberty interest of Appellant was at stake which would implicate the Due Process Clause, we need not further address the procedural due process arguments raised on appeal.
Appellant also argues, however, that the evidence against him was insufficient to support the adjustment officer's finding of an institutional infraction. In prison disciplinary matters, we only review the record for whether "some evidence" exists to support the adjustment committee's decision. Webb v. Sharp, 223 S.W.3d 113 (Ky. 2007); Smith v. O'Dea, 939 S.W.2d 353, 358 (Ky. App. 1997). In layman's terms, the "some evidence" standard is a standard that requires a very low threshold of evidence. In Superintendent, Mass. Correctional Institution, Walpole v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 (1985), the United States Supreme Court held that when determining whether there was "some evidence," the analysis "does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of 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.
The record establishes that Officer Woods discovered a baggie under Appellant's pillow that emitted an odor of marijuana. Contrary to Appellant's claim, it is irrelevant that the baggie no longer contained the drug or that any testing may have been unreliable as Officer Woods was permitted to base her opinion on her first hand impression of what she observed, which included what she smelled. Webb v. Sharp, 223 S.W.3d 113, 120 (Ky. 2007); See also Cooper v. Commonwealth, 577 S.W.2d 34, 36 (Ky. 1979) ("It is a fundamental principle that a policeman may "observe" with any of his five senses[.]"), reversed on other grounds in Mash v. Commonwealth, 769 S.W.2d 42 (Ky. 1989)). Furthermore, we find no merit in Appellant's argument that because Officer Sisco instead of Officer Woods handed the baggie to Lieutenant Wilder that the chain of custody was broken. Officer Woods and Officer Sisco both testified they were present in Appellant's cell. There is no claim that Lieutenant Wilder somehow mishandled the baggie so we find it irrelevant whether he received it from Officer Woods or Officer Sisco.
The some evidence standard does not require that the evidence preclude any conclusion other than that reached by the adjustment officer. Webb, 223 S.W.3d at 121. We believe that the fact that the baggie tested positive for marijuana, that it was in Appellant's cell under his pillow, and that Officer Woods personally observed that it emitted an odor of marijuana clearly met the low threshold of "some evidence" standard espoused in O'Dea, 939 S.W.2d at 358. As such, the circuit court did not err in dismissing Appellant's petition.
In light of the foregoing, we affirm the Oldham Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Avery D. Graves, Pro Se
Burgin, Kentucky
BRIEF FOR APPELLEE: Angela E. Cordery
Frankfort, Kentucky