ORDERS:
ORDER OF DISMISSAL
I. STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of George Hawkins, an
inmate incarcerated with the Department of Corrections ("Department") since October 5 ,1996. On December 27, 2000,
Hawkins made a Request to Staff Member to recalculate Hawkins' sentence based on the Department's alleged
misapplication of the law. In response, an employee of the Department informed Hawkins that his sentence was calculated
correctly and that his prior conviction had nothing to do with his current sentence. On January 10, 2001, Hawkins filed a
grievance with the Department and received the Department's denial of his grievance on February 15, 2001. On February
21, 2001, Hawkins filed this appeal with the Division.
II. BACKGROUND
In 1980, Hawkins was convicted of simple possession of marijuana, for which he received one year of probation, which
was terminated by an Order of Termination filed on September 16, 1980. In 1997, Hawkins pleaded guilty to and was
convicted of one count of Conspiracy to Distribute Marijuana and one count of Distribution of Marijuana. On the count of
Distribution, Judge Henry Floyd sentenced Hawkins to twenty years. On the count of Conspiracy, Judge Floyd sentenced
Hawkins to five years, to be served consecutively to the Distribution sentence. Based on his combined sentence total of
twenty-five years, taking into account all good time credit earned and forfeited, the Department calculated Hawkins' max-out date to be February 5, 2010.
In December 2000, Hawkins made a Request to Staff Member, in which he contended that his current sentence was
increased by ten years based on his 1980 Simple Possession offense. In his Request, Hawkins stated that,
[i]n 1997, the sentencing court increased my sentence based on this prior offense. I contend that the portion of my sentence
that was increased directly based upon my prior 1980 offense can not be included in any SCDC calculations, and ask that
my sentence be re-calculated without consideration of the additional ten years imposed based upon my prior 1980 offense.
In response, Classification Officer Ogunsile informed Hawkins that he received a twenty year sentence for Marijuana
Distribution, which had nothing to do with his prior offense.
Dissatisfied, Hawkins filed a grievance, alleging that the only way he could have received a twenty year sentence was by
counting his prior offense, which would violate S.C. Code Ann. § 44-53-450(a). The Department responded by offering to
explain his sentence calculation again. On January 24, 2001, Hawkins filed a Step 2 Grievance, reiterating his Step 1
allegations and asserting that the Department was violating S.C. Code Ann. § 44-53-450(a). On February 2, 2001, the
Department denied Hawkins' grievance and gave him his appeal rights. This appeal followed.
South Carolina Code Annotated § 44-53-450 states, in pertinent part,
whenever a person who has not previously been convicted of any offense under this article or any offense under any State
or Federal statute relating to marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty or is found guilty of
possession of a controlled substance...the court, without entering a judgment of guilt and with the consent of the accused,
may defer further proceedings and place him on probation upon terms and conditions as it requires... .[] Upon fulfillment
of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and
dismissal under this section shall be without court adjudication of guilt and is not a conviction for purposes of this section
or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional
penalties imposed for a second or subsequent convictions.
S.C. Code Ann. § 44-53-450(a)(emphasis added.).
III. ANALYSIS
The Division's jurisdiction to hear this matter is derived entirely from the decision of the South Carolina Supreme Court in
Al-Shabazz v. State, 338 S.C. 354, 527 S.E.2d 742 (2000). On September 5, 2001, the Division issued an En Banc Order
in McNeil v. South Carolina Department of Corrections, 00-ALJ-04-00336-AP (September 5, 2001), 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, Hawkins alleges that the Department miscalculated his sentence when it considered his 1980 conviction. As
such, I find that this tribunal has jurisdiction to hear Hawkins' appeal.
In its appellate capacity, the Division is concerned with ensuring that the appellants receive all procedural process they are
due when the constitutional rights of the appellants are implicated. 338 S.C. at 369, 527 S.E.2d at 750. Because statutory
right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment, an inmate is entitled to
minimal due process before those credits may be taken away. Id. While due process is "flexible and calls for such
procedural protections as the particular situation demands," Stono River Envtl. Protection Ass'n v. S.C. Dept. Of Health
and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 30, 341 (1991), certain elements must be satisfied in order for procedural
due process requirements to be met, 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).
As in all cases subject to appellate review by the Division, the standard of review in these inmate grievance cases is limited
to the record presented. An Administrative Law Judge may not substitute his judgment for that of an agency unless the
agency's determination is 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) (Supp. 1999); Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at
756; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Moreover, to afford "meaningful judicial review," the
Administrative Law Judge must "adequately explain" his decision by "documenting the findings of fact" and basing his
decision on "reliable, probative, and substantial evidence on the whole record." Al-Shabazz, 338 S.C. at 380, 527 S.E.2d at
756. In a miscalculated sentence case, the grievance procedure established by the Department, in which an inmate has the
opportunity to raise the matter to prison officials and in which a reviewable record is created, satisfies the requirements of
due process. Al-Shabazz, 338 S.C. at 375, 527 S.E.2d at 753. I find that the Department afforded Hawkins all process that
was due in these circumstances. Hawkins raised the issue of his sentence calculation by filing a grievance, in which he
stated his belief that the Department had wrongly considered his 1980 conviction in calculating his sentence. In response to
Hawkins' grievance, the Inmate Grievance Coordinator (IGC) explained that the Department did not enter his sentence
into the computer and suggested that Hawkins allow a Classification staff member to explain how his time was calculated.
The warden agreed with the IGC, and Hawkins filed a Step 2 grievance. Hawkins was then permitted to appeal the
Warden's decision to the Department level. In response to Hawkins' appeal, the Department stated that Hawkins'
sentencing had nothing to do with his prior offense and informed him of his right to appeal to the Division. As such, I find
that the Department complied with the minimal due process required in this case.
Moreover, I find that there is substantial evidence that the Department correctly calculated Hawkins' sentence. Although
Hawkins may have been sentenced in violation of S.C. Code Ann. § 44-53-450(a) (1), the Department is without the
authority to modify the sentence imposed by Judge Floyd. See Mention v. Dept. of Corrections, unpublished Order of the
Supreme Court of South Carolina (October 29, 1999) ("the Department of Corrections' authority to run the state's prison
system does not give it the power to change a sentence imposed by a trial court." (citing Sanders v. MacDougall, 244, S.C.
160, 135 S.E.2d 839 (1964). There is ample evidence that the Department has correctly calculated Hawkins' sentence of
twenty-five years imposed by Judge Floyd; indeed, while Hawkins argues that the sentence itself is wrong, he does not
assert that the Department has miscalculated his max-out date based on that twenty-five year sentence. Because Hawkins
is actually challenging the validity of his conviction or sentence, this tribunal is not the proper forum to provide the relief
Hawkins seeks. See Al-Shabazz, 338 S.C. at 373, 527 S.E.2d at 752. Accordingly, the Final Decision of the Department is
AFFIRMED.
IV. ORDERIT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED;
IT IS FURTHER ORDERED that Hawkins'appeal is DISMISSED.
AND IT IS SO ORDERED.
__________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 29, 2001
Columbia, South Carolina
1. This tribunal is without opinion regarding the propriety of Judge Floyd's sentence. Instead, this tribunal merely
acknowledges that Hawkins sufficiently raises the issue of a statutory violation in his sentencing. |
