ORDERS:
ORDER
STATEMENT OF CASE
This matter is before the Administrative Law Judge Division (ALJD or Division) pursuant
to the appeal of Lorie B. Cascio, an inmate incarcerated with the Department of Corrections
(DOC or Department). Cascio was convicted of violating SCDC Disciplinary Code § 1.01,
Escape or Escape Attempt or Aiding and Abetting Escape with/without Force (Escape). As a
result of that conviction, Cascio lost 1,460 days of “good-time” credit. Cascio filed a grievance
with the Department and received the Department’s final decision on December 18, 2001. On
January 14, 2002, Cascio filed this appeal with the Division.
BACKGROUND
The evidence established that on October 6, 2001, the Department conducted a formal
count at the Moncrief State Park Institution. The Appellant was not present in her room. After
checking the building and the Emergency Action Center and conducting a roll count, Lieutenant
Johnson determined that the Appellant was not at the facility. The Appellant was eventually
apprehended in West Columbia.
Following the incident, Lieutenant Johnson completed an Incident Report and submitted it
to her supervisor. The Appellant was charged with violating SCDC Disciplinary Code § 1.01,
Escape. The Appellant received written notice of the charges on October 7, 2001.
On October 10, 2001, a Major Disciplinary Hearing was held before a DOC Disciplinary
Hearing Officer (DHO) concerning the Escape charge. Though the Appellant indicated she did
not want counsel substitute, she was nevertheless provided one because she was in “lock-up.”
Additionally, Lieutenant Johnson was also present at the hearing as requested by the Appellant.
During the hearing, the DHO read a narrative of Lieutenant Johnson’s Incident Report into the
Record. The Appellant subsequently made a statement in which she apologized for the trouble
she caused, pled guilty to Escape, and requested that the DHO be lenient in light of the events in
her life that prompted her escape. At the conclusion of the hearing, the DHO found the Appellant
guilty of Escape and sanctioned her with the loss of 1,460 days of good time credit. After the
hearing, the DHO completed a Major Disciplinary Report and Hearing Record which documented
the DHO’s findings.
The Appellant filed a grievance on October 10, 2001, appealing her conviction of violating
SCDC §1.01. After reviewing her allegations, the Warden denied the Appellant’s grievance on
November 2, 2001. The Appellant then appealed the Warden’s decision asking that the
Department reverse her loss of “good time” credits because the counsel substitute did not
properly evaluate the evidence and failed to adequately perform her duties. The Department
denied her grievance, stating that the evidence supported the conviction and that the sanction
imposed was appropriate for the violation that the Appellant committed. This appeal followed.
In her Appeal Brief, the Appellant alleges that:
1.Her counsel substitute ineffectively assisted her in this case;
2.Her SCDC Step 1 was not returned to her within the proper time period and set
forth inaccurate SCDC Code sections;
3.She was mentally unstable during the last few years of her incarceration; and
4.She would not have pleaded guilty had she known the SCDC Policy and
Procedure.
STANDARD OF REVIEW
The Division’s jurisdiction to hear this matter is derived from the decision of the South
Carolina Supreme Court in Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). In
McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001)
the Division issued an En Banc Order interpreting the breadth of its jurisdiction pursuant to Al-Shabazz. The decision holds that the Division’s appellate jurisdiction in inmate appeals is limited
to two types of cases: (1) cases in which an inmate contends that prison officials have erroneously
calculated his sentence, sentence-related credits, or custody status; and (2) cases in which the
Department has taken an inmate’s created liberty interest as punishment in a major disciplinary
hearing.
In this case, the Appellant alleges that the Department excessively revoked 1,460 days of
good time. Inmates have a protected liberty interest in their earned statutory good-time credits
under the Fourteenth Amendment. Therefore, when, as here, the Department revokes an inmate’s
good-time credits as punishment in a “major disciplinary hearing” involving “more serious rule
violations,” prison officials must provide that inmate with “minimal due process.” Al-Shabazz,
338 S.C. at 370, 527 S.E.2d at 750. Consequently, specific administrative procedures must be
followed before depriving an inmate of statutorily granted earned credit, including adequate
advance notice of the charges, adequate opportunity for a hearing in which the inmate can present
witnesses and documentary evidence, and an impartial hearing officer who prepares a written
statement of all the evidence presented and the reasons for his decision. Al-Shabazz, 527 S.E.2d
at 751, citing Wolff v. McDonnell, 418 U.S. 539, 563-72, 94 S. Ct. 2963, 2978-82 (1974).
In Al-Shabazz, the Court held that inmates may seek review before this Division to ensure
that the Department’s revocation of good-time credits as punishment in a “major disciplinary
hearing” involving “more serious rule violations” comports with “minimal due process.” The
ALJD inquiry into these matters is primarily concerned with ensuring that the Department has
granted aggrieved inmates the process they are due when their constitutional rights are implicated.
Id. When reviewing the Department’s decisions in inmate grievance matters, the ALJD sits in an
appellate capacity. Al-Shabazz. Consequently, the review in these inmate grievance cases is
limited to the record presented. Furthermore, an Administrative Law Judge may not substitute his
judgment for that of an agency unless the agency’s determination is arbitrary, affected by error of
law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole
record. S.C. Code Ann. § 1-23-380(A)(6) (1986 & Supp. 2001); Al-Shabazz, 338 S.C. at 380,
527 S.E.2d at 756. “‘Substantial evidence’ is not a mere scintilla of evidence nor the evidence
viewed blindly from one side of the case, but is evidence which, considering the record as a
whole, would allow reasonable minds to reach the conclusion that the administrative agency
reached or must have reached in order to justify its action.” Lark v. Bi-Lo, 276 S.C. 130, 276
S.E.2d 304 (1981). Further, the possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency's finding from being supported by substantial
evidence. Grant v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
Additionally, in Superintendent, Massachusetts Correctional Institution, Walpole v. Hill,
472 U.S. 445, 105 S. Ct. 2768 (1985), the U.S. Supreme Court held that “the relevant question is
whether there is any evidence in the record that could support the conclusion reached by the
disciplinary board.” Moreover, in Al-Shabazz, the Court underscored that since prison officials
are in the best position to decide inmate disciplinary matters, the Courts and therefore this
Division adhere to a “hands off” approach to internal prison disciplinary policies and procedures
when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757;
see also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional “hands off”
approach of South Carolina courts regarding internal prison discipline and policy).
DISCUSSION
I find that the Appellant was afforded all process due her pursuant to Wolff and Al-Shabazz. The Record indicates that the Appellant received written notice of the charges against
her in excess of twenty-four (24) hours prior to a hearing that was held before an impartial
Disciplinary Hearing Officer. At the hearing, the Appellant was given the opportunity to offer
evidence, call witnesses, and confront her accuser. Rather than offer evidence, the Appellant pled
guilty. After the DHO determined that the Appellant was guilty of the charged offense, he
prepared a written report detailing the evidence he relied upon and the penalty assessed in finding
the Appellant guilty of the disciplinary infraction. Finally, the Appellant was permitted to appeal
the DHO’s decision through the inmate grievance process.
Counsel Substitute
In challenging her conviction, the Appellant contends that her counsel substitute did not:
•Obtain statements from her as to “exactly what took place;”
•Obtain “the names of the employees and inmates” she wished to call as witnesses;
and
•Obtain documentary evidence relevant to her case.
The Appellant also contends that her counsel substitute forged her name on SCDC Form 19-69.
In Wolff, supra., the U.S. Supreme Court did not require that an inmate must be provided
a counsel substitute. Rather, the Court held that: “Where an illiterate inmate is involved,
however, or whether the complexity of the issue makes it unlikely that the inmate will be able to
collect and present the evidence necessary for an adequate comprehension of the case, he should
be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in
the form of help from the staff or from a sufficiently competent inmate designated by the staff.”
Wolff, at 94 S.Ct. 2982. Here, the Appellant did not allege or establish that she was either
illiterate or that this case was of sufficient complexity to necessitate assistance in presenting her
case. Therefore, the Department was not constitutionally required to afford a counsel substitute
to assist the Appellant in her defense. In fact, the Appellant indicated she did not wish to have a
counsel substitute. Furthermore, at the Disciplinary Hearing, the Appellant did not object to her
counsel substitute’s representation or investigation of her case nor did she offer any specific
shortcomings of her counsel substitute. To the contrary, the Record reflects the counsel
substitute competently investigated this case.
Guilty Plea
The Appellant contends that she would not have pleaded guilty had she known the SCDC
Policy and Procedure. The South Carolina Supreme Court has held a valid guilty plea in the
State’s criminal Courts must be “knowing and voluntary.” Rollison v. State, 346 S.C. 506, 552
S.E.2d 290 (2001). Furthermore, “[i]n order for a guilty plea to be knowing and voluntary, a
defendant must be aware of the nature and crucial elements of the offense, the maximum and any
mandatory minimum penalty, and the nature of the constitutional rights being waived.” Id. at 512.
In disciplinary proceedings, the inmate is not entitled to the panoply of constitutional protections
in a criminal proceeding. Nevertheless, the basic elements of a “knowing and voluntary” plea
must exist. Therefore, I find that in order for a plea to be knowing and voluntary in a disciplinary
proceeding, the inmate must be made aware of the offense they are charged with, that they face
the loss of good-time credits, and that they are entitled to a disciplinary hearing to determine their
guilt or innocence of the charge. Furthermore, the record must establish a factual basis for the
plea.
Here, the Record reflects that the Appellant was well aware she was charged with Escape,
and that she was entitled to a disciplinary hearing to determine her guilt or innocence of that
charge. Additionally, the Appellant was not only aware that she faced the loss of earned “good-time” credits, she was specifically informed that if she was found guilty she would lose all of her
accrued “good-time” credits. Moreover, I find that there is substantial evidence to support the
Appellant's conviction of violating SCDC Disciplinary Code §1.01 (Escape). A Code 1.01
violation is: “The act of any inmate who by force or threat of force escapes, attempts to escape, or
aids another person to escape or attempt to escape from the confines of the institution; from state,
federal, county or city property; or from official custody or supervision with or without force
beyond the confines of the institution; to include actual or constructive possession of tools or
items which are intended to be used to facilitate an escape.” The Record clearly supports the
facts recited in the “Background” portion of this Order. Those facts establish substantial evidence
to support the finding that the Appellant committed the offense of escape. Thus, the DHO’s
finding that the Appellant was guilty did not constitute an arbitrary exercise of his discretionary
function sufficient to give rise to a claim of a constitutional violation.
ORDER
IT IS THEREFORE ORDERED that the appeal of the Appellant is DISMISSED and
the Final Decision of the Department is AFFIRMED;
AND IT IS SO ORDERED.
_________________________________
Ralph K. Anderson, III
Administrative Law Judge
July 2, 2003
Columbia, South Carolina |
