ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Val Ostrander, an
inmate incarcerated with the Department of Corrections ("Department") off and on since 1973. After he was returned to
the custody of the Department following revocation of his parole, Ostrander filed a grievance challenging the calculation of
his sentence on December 10, 2001. On March 13, 2002, Ostrander received the Department's Final Decision denying his
grievance. On March 14, 2002, Ostrander filed this appeal. For the reasons set forth below, the Department's Final
Decision is affirmed.
II. BACKGROUND
In April 1973, Ostrander was convicted by a jury in Missouri of assault with intent to do great bodily harm with malice
aforethought. Before being sentenced, Ostrander fled to South Carolina, where he was arrested on a fugitive warrant from
Missouri in late 1973. Subsequently, Ostrander was arrested on South Carolina charges as well. In January 1974,
Ostrander pleaded guilty to rape, robbery and larceny in the Court of General Sessions in Horry County. As a result of his
plea, Ostrander received two 25-year prison sentences "concurrent to all other sentences." Upon his extradition to Missouri
in April 1974, Ostrander was sentenced on the Missouri charges to a 25-year sentence. In 1982, Ostrander was paroled by
the State of Missouri and extradited back to South Carolina, where he continued to serve his sentences until August 1984.
At that time, Ostrander was paroled to the state of Texas with the special condition that he could not return to South
Carolina. However, in May 1985, Texas authorities notified South Carolina that Ostrander had absconded from parole and
had criminal charges pending against him. On May 29, 1985, South Carolina authorities issued a Warrant for Parole
Violation, at which time Ostrander ceased receiving day-to-day credit for time served while on parole ( the period between
issuance and service of a warrant is known as "dead time"). In 1987, Ostrander was arrested in Missouri on the Texas
warrant and resumed serving his Missouri sentence; however, the State of South Carolina was never notified regarding
Ostrander's whereabouts. On July 27, 2001, Ostrander was arrested in South Carolina pursuant to the Warrant for Parole
Violation. His parole was revoked on September 26 that same year.
On December 10, 2001, Ostrander filed a grievance, alleging that he was entitled to earned work and education credits
while in a Missouri prison serving concurrent Missouri and South Carolina sentences. Secondly, Ostrander alleges he
should receive sentence credit for time served in Missouri after South Carolina issued the May 29, 1984 warrant but before
the warrant was served. On January 23, 2002, the warden responded to Ostrander's grievance, stating that his max-out date
was correct and that all earned credits were properly applied. Ostrander appealed the warden's decision in a Step 2
grievance, alleging that he was serving his South Carolina sentences in Missouri after he was arrested for parole violations
in 1987. On February 20, 2002, the Department denied his grievance. In this appeal, Ostrander argues that although the
Department alleges that it was unaware of his location until he was arrested in South Carolina on July 27, 2001, the State of
South Carolina was obligated to take steps to locate Ostrander to serve the May 29, 1984 warrant. Additionally, Ostrander
argues that he is entitled to receive earned work and education credits for the time he was incarcerated in Missouri. 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, Ostrander alleges that he is entitled to credit for service of his South Carolina sentence after he was re-incarcerated in Missouri for violating the terms of his parole by Missouri. In addition, Ostrander alleges he is entitled to
earned work and education credits for time served in Missouri. As such, I find that this tribunal has jurisdiction to hear
Ostrander's appeal.
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. 2001); 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 Ostrander all process that was due in these circumstances. Ostrander raised the issues
of his sentence calculation and sentence credits by filing a grievance, in which he stated his belief that he should be given
credit for serving time in Missouri. After verifying Ostrander's sentence calculation, the Warden responded by informing
Ostrander that his max-out day was correct and all appropriate credits were properly applied. Ostrander was then permitted
to appeal the Warden's decision to the Department level. In its Final Decision denying Ostrander's grievance, the
Department informed Ostrander that he could appeal the Department's final decision 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 Ostrander's sentence when it
refused to give him credit for service of his South Carolina sentences while incarcerated in Missouri for parole violations
during the period between the issuance of the May 29, 1984 warrant and its service in July 2001. In his brief, Ostrander
argues that the Supreme Court's decision in Blakeney v. State, 339 S.C. 86, 529 S.E.2d 9 (2000), supports his position. In
Blakeney, a PCR applicant sought jail-house credit from the date Beaufort County issued, but not served, a warrant for his
arrest after placing a "hold" on him while he was in the custody of Berkeley County. In this case, however, Ostrander's
location, unlike that of Blakeney's, was not known to the Department between issuance and service of the warrant.
In his Brief, Ostrander alleges that the Department had some duty to locate him in order to serve the warrant. However, the
Supreme Court's decision in Robinson v. State, 329 S.C. 65, 495 S.E.2d 433 (1998), suggests that the responsibility lay
not with the Department, but with Ostrander himself.
In Robinson, a convicted felon out on appeal bond left the state and, after his conviction was affirmed, was arrested and
convicted of gang-related federal charges in Chicago, his federal sentence to run concurrently with his state sentence.
While incarcerated in federal prison, Robinson filed a PCR application seeking credit in South Carolina for time served in
federal custody. The Court held that, for purposes of calculating credit for time served, persons released on appeal bond
commence service of their sentences when they submit to the custody of the Department. In addition, the Robinson Court
also stated:
[a] convict may also receive credit for time served in another jurisdiction by notifying the [Department] that he is unable to
personally submit to South Carolina custody to commence the service
of his sentence. Upon such notification, the [Department] will place a detainer on the convict. While the convict is subject
to a South Carolina detainer, he is constructively in South Carolina custody. As a result, a convict will receive credit for
time spent in another jurisdiction while subject to a South Carolina detainer.
329 S.C. at 71, 495 S.E.2d at 436-37.
According to Robinson, therefore, if Ostrander wished to receive credit for time served in Missouri, it was incumbent upon
him to notify the Department that he was unable to personally submit to South Carolina to serve the remainder of his
sentences. This Ostrander did not do. Consequently, Ostrander is not entitled to any credit during the period in which the
Warrant for Parole Violation was issued but not served.
In addition, Ostrander is not entitled to any earned work or education credits for time served in Missouri. First, Ostrander
failed to provide any evidence that he actually earned any work or education credits while incarcerated in Missouri.
Second, unlike "good time" credits, which an inmate is entitled to pursuant to state law, earned work credits are awarded at
the discretion of the Department Director. See S.C. Code Ann. 24-13-230(A)("[t]he Director of the Department of
Corrections may allow any prisoner in the custody of the department...who is assigned to a productive duty assignment...a
reduction from term of his sentence of zero to one day for every two days he is employed...")(emphasis added); 461 U.S.
238, 249 (1983)(unless state law places "substantive limitations" on official discretion, no liberty interest is created).
Therefore, because the loss of earned work credits would not "impose an atypical and significant hardship" on the inmate,
no due process is required before the Department places restrictions on an inmate's ability to earn such credits. See Sandin
v. Conner, 515 U.S. 472 (1995). Third, and most important, Ostrander cannot receive work or education credits earned in
Missouri when he is not entitled to credit on his South Carolina sentences for time served in Missouri after the issuance,
but before the service, of the May 29 1984 Warrant for Violation of Parole.
IV. ORDER
For the reasons set forth above,
IT IS THEREFORE ORDERED that the Final Decision of the Department is AFFIRMED;
IT IS FURTHER ORDERED that Ostrander's appeal is DISMISSED.
AND IT IS SO ORDERED.
____________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
June 26, 2002
Columbia, South Carolina |
