Opinion
112,342.
07-17-2015
Shawn SMITH, Appellant, v. Ray ROBERTS (Secretary of Corrections), Appellee.
Shawn D. Smith, appellant pro se. Sherri Price, special assistant attorney general and legal counsel, Lansing Correctional Facility, for appellee.
Shawn D. Smith, appellant pro se.
Sherri Price, special assistant attorney general and legal counsel, Lansing Correctional Facility, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shawn Smith appeals from the decision of the district court to deny his petition for writ of habeas corpus filed pursuant to K.S.A.2014 Supp. 60–1501. For the reasons stated below, we affirm the district court's decision.
Facts
In May 2013, Smith was an inmate at the Lansing Correctional Facility. In conjunction with a search of Smith's cell conducted by a correctional officer on May 25, 2013, Smith handed the officer a cell phone containing a picture of a woman's genital area. The correctional officer filed a disciplinary report formally documenting these facts and alleging Smith violated K.A.R. 44–12–211(b) by possessing a telephone without proper authorization and K.A.R. 44–12–313 by possessing sexually explicit materials.
Smith's disciplinary hearing began on June 21, 2013. On that date, Smith requested the charges against him be dismissed on grounds that his hearing had not been held within 7 days after he was served with a notice of the charges, a time period which is required by K.A.R. 44–13–401. Hearing Officer Shanks denied Smith's request, finding that Smith properly had been issued a summons to appear within the 7–day period after he received notice of the charges, but the case had to be continued because the hearing officer was not available. Shanks also noted that Smith submitted an identical request to dismiss when he made his first appearance before a different hearing officer on June 14, 2013. When Smith's request was denied, he asked the hearing officer to continue the hearing in order to secure witnesses.
Prior to hearing any testimony at the June 21, 2013, hearing, Shanks reviewed Smith's list of potential witnesses. Shanks noted that two of the witnesses, inmate Bryon Kirtdoll and inmate Nathan Simpson, had submitted affidavits. Shanks ruled that although both affidavits would be considered, only Kirtdoll would be allowed to testify at the hearing. Shanks disallowed Simpson's testimony because Simpson's affidavit reflected that Simpson was going to testify that there might have been something that did not belong to Smith in Smith's cooler. Given Simpson's affidavit failed to establish Simpson's personal knowledge, Shanks considered this anticipated testimony to be hearsay and noted that it would not be considered.
After deciding these preliminary matters, the hearing began when the facility called the reporting officer as its first witness. The reporting officer testified that the cell phone was discovered when Smith handed both the phone and its charger over as the reporting officer was conducting a search of Smith's cell.
Next, Smith testified. Smith readily admitted he had physical possession of the cell phone but denied being the owner of the phone. Smith asserted that the phone was placed in his cooler by mistake and when he discovered it he was shocked. After Smith discovered the phone, Simpson advised him that “the blacksuits were coming,” so Smith handed the phone over to the reporting officer. After Smith testified, the hearing was continued in order for Shanks to obtain a picture of the evidence and for Smith to call witnesses to testify on his behalf.
When the hearing resumed on September 6, 2013, Kirtdoll testified that he was the one who placed the cell phone in Smith's cooler. In his testimony, however, Kirtdoll incorrectly identified the phone as a flip phone when, in fact, it was a smart phone. On cross-examination, Kirtdoll testified that he “just threw an answer out there” because he did not remember the type of cell phone it was. Kirtdoll also testified that it was wrapped in either a doo-rag or a sock, but he could not recall which one. Kirtdoll then explained that he was attempting to pass the phone to his partner, who asked him to move the phone because officers were present.
After Kirtdoll testified, the hearing was continued to September 10, 2013, because the special agent who worked on the case was unavailable. When the hearing resumed on that date, Smith requested permission to call inmate Kent Walker as a witness. In support of this request, it appears Smith offered an affidavit from Walker averring that Walker witnessed Kirtdoll placing the phone in a cooler next to Walker's belongings. Although the hearing officer stated that the information provided by Walker would be considered, there is no evidence that Walker actually testified. The record on appeal, however, does include Walker's affidavit.
After considering all of the evidence presented, Shanks found Smith guilty of both charges. Smith appealed the decision to the Secretary of Corrections. The Secretary's designee ultimately approved the hearing officer's decision.
After exhausting his administrative remedies, Smith filed a K.S.A.2014 Supp. 60–1501 petition for relief with the district court. In his petition, Smith claimed there was insufficient evidence presented at the disciplinary hearing to find him guilty, that he was unlawfully denied the right to call two witnesses, and that the hearing officer was not impartial.
The State filed a motion to dismiss. Smith responded to that motion in writing and also filed a motion to object to the State's pleading due to a conflict of interest. In his motion to object, Smith claimed Sherri Price, the attorney defending the State in the K.S.A.2014 Supp. 60–1501 action, had a conflict of interest that disqualified her from representing the State. Before the start of the March 4, 2014, hearing on Smith's petition, the district court heard evidence and argument related to Smith's request to disqualify Price. After Price admitted she provided legal counsel to Shanks during the disciplinary hearing, Smith argued it was a conflict of interest for Price to provide legal counsel to Shanks and also represent the State in his K.S.A.2014 Supp. 60–1501 action. The district court took the motion under advisement.
The district court moved to the merits of Smith's K.S.A.2014 Supp. 60–1501 petition. After hearing arguments from both parties, the district court took the matter under advisement and eventually issued a written decision denying Smith's K.S.A.2014 Supp. 60–1501 petition and finding that Price did not have a conflict of interest with the State. Smith filed a motion to alter or amend the judgment, but the district court also denied that motion. Smith now appeals from the district court's decision.
ANALYSIS
1. Sufficiency of the evidence
This court typically reviews a district court's decision on a K.S . A.2014 Supp. 60–1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. The district court's conclusions of law are reviewed de novo. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). Further, whether due process has been afforded presents a question of law over which an appellate court has unlimited review. In re Habeas Corpus Application of Pierpont, 271 Kan. 620, 627, 24 P.3d 128 (2001).
Smith argues that because the evidence presented at the disciplinary hearing was insufficient to support a finding that he violated K.S.A. 44–12–211(b) and K.A.R. 44–12–313, the sanctions imposed upon him for those violations deprive him of his right to due process of the law. “[T]he full panoply of rights due a defendant in a criminal proceeding does not apply” in a prison disciplinary proceeding. Swafford v. McKune, 46 Kan.App.2d 325, 328–29, 263 P.3d 791 (2011), rev. denied 294 Kan. 948 (2012). Nevertheless, prison officials must follow certain due process procedures. These include “a written notice of the charges to enable inmates to prepare a defense, an impartial hearing, the opportunity to call witnesses and present documentary evidence, and a written statement from the hearing officer as to the findings and the reasons for the decision.” 46 Kan.App.2d at 329, 263 P.3d 791. Further, in the context of the sufficiency of evidence in a disciplinary proceeding, the requirements of due process are satisfied if “ ‘some evidence’ “ supports the decision to sanction a prisoner. Sammons v. Simmons, 267 Kan. 155, 158–59, 976 P.2d 505 (1999).
a. Possession of cell phone
Smith argues that in order to establish a violation of K.A.R. 44–12–211(b), the State is required to establish that an inmate knowingly possessed a cell phone. Based on his testimony denying any knowledge that the phone was in his possession, Smith contends the evidence was insufficient to support a finding that he violated the regulation. Smith's claim requires us to interpret an administrative regulation, which is a question of law subject to unlimited review. Hall v. Knoll Building Maintenance, Inc., 48 Kan.App.2d 145, 150, 285 P.3d 383 (2012).
K.A.R. 44–12–211(b) states: “[T]he use or possession of any telephone or any communication device by an inmate without the permission of the warden or warden's designee shall be prohibited.” Although in the context of a different regulation, a panel of this court in Frost v. McKune, 44 Kan.App.2d 661, 662–63, 239 P.3d 900 (2010), rev. denied 292 Kan. 964 (2011), rejected the argument that an inmate must actually know he or she is in possession of contraband in order to violate the regulation. In Frost, the court determined that actual knowledge was not necessary to prove a violation of K.A.R. 44–12–903(b), which prohibited the possession of tobacco in prison. 44 Kan.App.2d at 662, 239 P.3d 900. Significantly, the court stated: “We decline to read words into this regulation that would so greatly change its meaning given the obvious difficulties inherent in controlling contraband in a prison setting.” 44 Kan.App.2d at 662–63, 239 P.3d 900. We similarly decline to read a knowledge requirement into K.A.R. 44–12–211(b). Because Smith's admission that he physically possessed the cell phone readily qualifies as “some evidence” to support the sanctions imposed upon him for violating K.A.R. 44–12–211(b), the requirements of due process were satisfied as they relate to this issue.
b. Permission
Smith argues there was insufficient evidence to find he violated K.A.R. 44–12–211(b) based on the State's failure to present evidence at the disciplinary hearing that he possessed the phone without permission from the warden. In its findings, the district court stated: “[T]here was no evidence that [Smith] had express permission to possess the cell phone. Therefore, possession of the cell phone was prohibited.” Based on this statement, it appears the district court viewed the permission element to be a defense that must be raised by the inmate. On appeal, Smith asserts the burden was on the State to provide evidence that he lacked permission to possess the cell phone.
Whether the district court properly interpreted the statute is irrelevant because Smith's argument on appeal is without merit. Some evidence supported a finding that Smith did not have permission to possess the cell phone. At the hearing, Smith submitted an affidavit from inmate Simpson. The affidavit stated that Smith was surprised to find the cell phone in his cooler. Simpson went on to state that after Smith found the cell phone, he stated: “ ‘Somebody [is] trying to set me up.’ “ A reasonable person readily could infer from these facts that Smith was not authorized to possess the phone. Albeit circumstantial, these facts and the reasonable inferences drawn from them constitute “some evidence” to support the sanctions imposed upon him for violating K .A.R. 44–12–211(b). As such, the requirements of due process were satisfied as they relate to this issue as well.
c. Photograph
Smith next argues that his due process rights were violated because the sexual explicit picture he was found guilty of possessing was not introduced into evidence at the disciplinary proceeding. Because the picture was not introduced into evidence, Smith alleges he was unable to adequately prepare a defense. K.A.R. 44–12–313(a) provides: “No inmate shall have in possession or under control any sexually explicit materials, including drawings, paintings, writing, pictures, items, and devices.” This court's task is merely to review the finding of the district court to determine if it was supported by some evidence. See Sammons, 267 Kan. at 158–59, 976 P.2d 505.
K.A.R. 44–12–313(b) states that material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and it contains nudity. The original disciplinary report regarding the incident specifically documented: “On the cell phone that ... Smith ... handed to [the correctional officer] was a picture of a woman's genital area.” It can be reasonably inferred that because this statement identifies the picture as being of a “genital area,” it contained nudity and was intended for sexual arousal or gratification. Although the picture itself was never entered into evidence, these facts sufficiently establish there was some evidence to support the district court's finding that Smith possessed sexually explicit materials.
2. Witnesses
Smith argues the State deprived him of his right to due process when the disciplinary hearing officer denied his request to have inmate Simpson and inmate Walker testify on his behalf. Smith does have a due process right to call witnesses. See Swafford, 46 Kan.App.2d at 329, 263 P.3d 791. However, that right is not absolute. When determining whether to allow an inmate to call a witness, a hearing officer is permitted to balance the inmate's need to have the witness testify against prison interests. “But prison officials bear a burden of persuasion to show that there is a reasonable basis for overriding the inmate's right to call witnesses. [Citations omitted.]” Sauls v. McKune, 45 Kan.App.2d 915, 920, 260 P.3d 95 (2011) ; see K.A.R. 44–13–405a.
Given the information contained in the record on appeal, however, we are unable to determine whether Walker actually was prohibited from testifying. Although the record submitted on appeal does not reflect Walker was called as a witness, the record expressly reflects that Shanks told Smith that Walker's testimony would be considered. And Walker submitted an affidavit, which also is included in the record on appeal. The burden is on the party making a claim of error to designate facts in the record to support that claim; without such a record, the claim of error fails. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644–45, 294 P.3d 287 (2013). Here, Smith has failed to designate facts in the record to support his claim that Shanks denied Smith's request to have Walker testify.
Next, Smith challenges Shanks' decision to deny his request to have Simpson testify. In support of his decision to prohibit Simpson from testifying, Shank explained Simpson's affidavit failed to establish Simpson's anticipated testimony would be based on personal knowledge and, as hearsay, would not be considered. On appeal, Smith claims the anticipated testimony from Simpson did not constitute hearsay and thus should have been considered. In disciplinary proceedings, “[s]trict rules of evidence, as used in a court of law, shall not be required, but the hearing officer shall exercise diligence to admit reliable and relevant evidence and to refuse to admit irrelevant or unreliable evidence.” K.A.R. 44–13–403(j). Generally, hearsay is defined in Kansas as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated” and excludes any statements previously made by a person present at the hearing and available for cross-examination. K.S.A.2014 Supp. 60–460(a). Simpson's notarized affidavit indicated that he was going to testify about a conversation he had with Smith about what Simpson observed at the time Smith discovered the cell phone. This was not hearsay under the Kansas statutory definition.
The only other information provided by the hearing officer in support of his decision to prohibit Simpson from testifying was a citation, without explanation, to K.A.R. 44–13–405(a)(2). This appears to have been a typo, as that law was revoked. 11 Kan. Reg. 331 (1992). A similarly numbered regulation, K.A.R. 44–13–405a(a)(2), provides that one of the needs of the facility to be considered when deciding whether a witness should be permitted to testify is “the need to prevent the creation of a risk of retaliation and reprisal.” Although it appears this is the provision upon which Shanks relied in denying Smith's request to have Simpson testify, Shanks failed to provide any explanation related to this provision.
In denying Smith's petition for relief under K.S.A.2014 Supp. 60–1501 on this issue, the district determined the hearing officer's decision to deny other witnesses at the disciplinary hearing was not erroneous because permitting Simpson to testify to the information in his affidavit would not have changed the result of the proceedings. But it is the prison officials that bear the burden of showing that the hearing officer had a reasonable basis for overriding the inmate's right to call witnesses. See Sauls, 45 Kan.App. at 920. Shanks did not assert that Simpson's testimony was irrelevant or unnecessary—only that it was hearsay. Because the prison officials failed to show that the hearing officer had a reasonable basis to bar Simpson's testimony, Smith's due process rights were violated.
However, even when an error infringes on a person's constitutional rights, that error may be declared harmless if the party benefitting from the error persuades the court “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e ., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.3d 705, reh. denied 386 U.S. 987 [1967] ), cert. denied 132 S.Ct. 1594 (2012). As discussed above, Smith admitted he physically possessed the cell phone, which readily qualified as “some evidence” to support the sanctions imposed upon him for violating K.A.R. 44–12–211(b). Given Smith does not assert, and Simpson's affidavit does not reflect, that Simpson was going to testify that the warden gave Smith permission to possess the phone or that the phone was devoid of any sexually explicit pictures, there was no reasonable possibility that Simpson's testimony would have affected Shanks' finding that Smith violated K.A.R. 44–12–211(b) by possessing a phone without proper authorization and K.A.R. 44–12–313 by possessing sexually explicit materials.
3. Impartial hearing
a. Continuance
Smith argues that he was deprived of an impartial hearing in violation of his constitutional right to due process. First, he argues Shanks lied about the reason for continuing the disciplinary hearing. Specifically, Smith asserts that the real reason for continuing the hearing was to deprive him of his constitutional rights. It appears, however, that Smith failed to raise this issue before the district court and has not explained why the issue is properly before this court, having failed to do so as required by Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40). Moreover, Smith fails to cite to any fact in the record to support his assertion, which is required by Supreme Court Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 40). Notwithstanding his failure to comply with the rules, we assume Smith is reiterating the argument from his original petition, which refers to a portion of the record of the disciplinary proceeding stating that the case was continued pursuant to K.A.R. 44–13–402(b)(2). K.A.R. 44–13–402(b)(2) states that a hearing officer may continue a case if “[t]here is a delay to await determination of whether the case will go to trial in a court of law or to await the outcome of a trial.” But the record indicates that the case was continued because a special agent was not available to forward a picture of the evidence to the hearing officer.
Clearly, the cited regulation does not match the reason stated in the record for continuing the case. Regardless, under K.A.R. 44–13–402(a), a hearing officer may grant a continuance of reasonable length at his or her own request “for cause shown.” The fact that the hearing officer cited the wrong regulation in recording the reason for a continuance does not establish impartiality.
b. Change in hearing officer
Before any evidence was admitted or testimony was heard in the disciplinary hearing, there apparently was a change in hearing officer. It appears that a hearing officer referred to as “CSI Ugwuegbu” originally was assigned to the case. However, Shanks took over before any evidence was presented and presided over the remainder of the hearing. In framing the issue presented by Smith here, the district court stated in its written decision that “[Smith] asserts that Shanks heard this case in retaliation for [Smith] essentially complaining in a Form 9 about Shanks' delay.” Smith argues the district court misconstrued his argument regarding a change in the hearing officer assigned to his case. We agree. Smith actually alleged in his petition that Shanks took over the case in retaliation against Smith for filing a different case against him in district court.
While the district court's factual finding was erroneous, it is irrelevant to Smith's due process argument. Smith argues that Shanks was retaliating because of the previous civil action Smith filed against him. In Bloom v. Arnold, 45 Kan.App.2d 225, 233, 248 P.3d 752 (2011), this court held an inmate alleges the necessary facts to sufficiently state a claim for retaliation where he or she alleges:
“(1) the plaintiff was engaged in a constitutionally protected activity; (2) the defendant's actions caused the plaintiff to suffer an injury sufficient to chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendant's adverse action was substantially based on the plaintiff's exercise of a constitutionally protected right. [Citation omitted.]”
Smith fails to establish that there was any connection between the previous civil case against Shanks and this case. Other than a conclusory allegation of retaliation, Smith cites no evidence below or on appeal to establish any connection between his previous lawsuit and Shanks' assignment as the hearing officer or the outcome in this disciplinary proceeding. In fact, there is nothing in the record that establishes it was even Shanks' choice to serve as the hearing officer in this case. As a result, Smith's claim of impartiality based on alleged retaliation fails.
c. Falsifying the record
Smith reiterates his argument that Shanks was not impartial because Shanks “falsified the record” by citing an incorrect statute. This issue was addressed above under the subheading “Continuance.” In the context of a criminal case, a typographical error concerning a statutory citation in a charging document will not render the charge defective when the document sets forth all the elements of the crime charged. See State v. Wright, 221 Kan. 132, 140, 557 P.2d 1267 (1976). Similar reasoning compels a finding that there was no error here. Smith asserts that the wrong statute was cited to justify the continuance. He also asserted that the date of the continuance was September 6, 2013, instead of June 21, 2013, as the record indicates. Even assuming these allegations were true, the record explicitly states that the continuance was necessary in order to obtain a picture of the evidence that was not yet available. Inadvertently citing to an incorrect statute or date does not amount to falsification of the record, nor does it establish that Smith failed to receive an impartial hearing.
d. Communication with attorney
Smith next claims that Shanks was not impartial because Shanks communicated with Price in her capacity as the facility's legal counsel during the pendency of his hearing. However, Smith fails to cite any legal authority to support his claim that a hearing officer cannot remain impartial if he or she communicates with legal counsel for the prison during a hearing. Failure to support an argument with pertinent authority or show why it is sound despite a lack of supporting authority is akin to failing to brief an issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed on appeal is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). In addition, Smith failed to cite any evidence to establish that the communication between Price and Shanks prevented Shanks from acting impartially. For these reasons, Smith's claim on this issue fails.
4. Counsel's alleged conflict of interest
Finally, Smith asserts that Price has a conflict of interest in defending the State against his allegations because she is a special assistant attorney general who has contemporaneous prosecutorial duties. However, Smith cites no authority to support such a conflict; therefore, this issue should be deemed waived and abandoned. Tague, 296 Kan. at 1001, 298 P.3d 273 ; Superior Boiler Works, Inc., 292 Kan. at 889, 259 P.3d 676. In addition, however, we have reviewed the record on appeal and find no facts to support Smith's claim that a conflict of interest existed with respect to Price representing the State in this matter.
Affirmed.