ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Larry Delesline, an
inmate incarcerated with the Department of Corrections ("Department"). On January 30, 2002, Delesline was convicted of
violating SCDC Disciplinary Code 1.06, Possession of a Weapon, after a shakedown occuring on January 25, 2002. As a
result of his conviction, Delesline lost 30 days of "good-time" credit. Delesline filed a grievance with the Department and
received the Department's final decision on March 20, 2002. On March 28, 2002 Deslesline filed this appeal.
II. BACKGROUND
On January 25, 2002, Delesline and several other inmates assigned to work detail with the Department of Public Safety
reported to shakedown after returning from duty. Prior to the guard calling Delesline, another inmate, Willie Felder, asked
Delesline to carry in two pens for him because Felder had four. Knowing that each inmate can only carry in three pens,
Delesline agreed. After he was called for his search, Delesline emptied his pockets, laying the two pens that Felder gave
him on the table. Officer Agim examined the pens and discovered that one of the pens contained a homemade shank.
Delesline told the officer that Willie Felder had given him the pens to carry in.
After the incident, Officer Agim completed an Incident Report and submitted it to his supervisor. Delesline was charged
with violating SCDC Code 1.06, Possession of a Weapon and was placed in PHD on January 25, 2002, and received
written notice of the charge that same day. The hearing was held on January 30, 2002, before a Disciplinary Hearing
Officer ("DHO"), who read into the Record Officer Agim's Incident Report. In response to the DHO's request for his plea
to the charge 1.06, Delesline, accompanied by his counsel substitute, admitted that he had possession of the pen, but denied
having knowledge of the shank contained inside the pen. The DHO then took Delesline's statement, in which Delesline
admitted carrying in the two pens belonging to Inmate Felder. However, Delesline denied any knowledge that one of the
pens contained the shank. Delesline's counsel substitute then informed the DHO that many of the inmates on work detail
with Delesline observed Felder hand Delesline the pens before Delesline was shaken down. The DHO asked Delesline if
he knew that he was breaking a rule by helping Felder take into the prison more pens than he was allowed to possess.
Delesline answered affirmatively. At the conclusion of the hearing, the DHO informed Delesline that he had been found
guilty based on his own admission of guilt and on the statements of inmates that another inmate gave him the pen prior to
shakedown. Additionally, the DHO informed Delesline that he would be sanctioned with the loss of 30 days of good time
credit.
After the hearing, the DHO completed a Major Disciplinary Report and Hearing Record ("Hearing Record"), which
documented the DHO's findings based on Delesline's admission of guilt and the other inmates' statements that another
inmate had given Delesline the shank. In addition, the Hearing Record reflects that Delesline lost only 30 days of good-time credit because it was his first offense of this charge.
Delesline filed a grievance on February 3, 2002, appealing his conviction of violating SCDC 1.06 because he did not know
about the shank being inside the pen. On February 25, 2002, the Warden denied his grievance, finding no procedural due
process violations. On March 11, 2002, Delesline appealed the warden's decision, alleging that his counsel substitute
coerced him into pleading guilty. The Department denied his grievance, stating that no reason was found to reverse the
DHO's decision. This appeal followed. In his Appeal and other assorted Briefs, Delesline alleges that his counsel
substitute coerced him into pleading guilty and was ineffective, that the Department violated procedure when it charged
him with violating 1.6 instead of 1.06; and that his punishment, including his transfer from a minimum security prison to a
maximum security prison, was excessive.
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, Delesline lost 30 days of good time after he pleaded guilty to a prison disciplinary infraction. As such, I find
that this tribunal has jurisdiction to hear Deslesline's appeal.
The statutory right to sentence-related credits is a protected liberty interest under the Fourteenth Amendment. Al-Shabazz,
338 S.C. at 369-370, 527 S.E.2d at 750. An inmate facing the loss of sentence related credits is entitled to minimal due
process to ensure that the state-created right is not arbitrarily abrogated. 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 this case, Delesline argues that his counsel substitute coerced him into pleading guilty. Ordinarily, a guilty plea resulting
in a conviction is not appealable unless the inmate can demonstrate that he was coerced into pleading guilty. See Wykoff v.
Resig, 613 F.Supp. 1504, 1507-08 (N.D. Ind. 1985), citing Brewer v. Williams, 430 U.S. 387 (1977); Marby v. Johnson,
104 S. Ct. 2543, 2547 (1984). However, it is unclear from the Record whether Delesline actually pleaded guilty to the
charge of Possession of a Weapon. Early in the hearing, when the DHO asked for his plea, Delesline replied, "I plead not
guilty, not as being mine, but guilty for having it at the time, yes sir." At this point, the DHO failed to ascertain whether
Delesline was voluntarily and knowingly pleading guilty to Possession of a Weapon. Because the transcript is unclear, I
cannot find that Delesline knowingly and voluntarily waived his right to due process.
Notwithstanding the issue of whether Delesline was afforded all process due him pursuant to Al-Shabazz, I find that the
Department's determination of guilt in this case is clearly erroneous in light of the substantial evidence in the Record.
SCDC Disciplinary Code 1.06, Possession of a Weapon, states, "[t]he actual or constructive possession by an inmate of any
instrument intended to be used to inflict physical injury on another person." Possession of contraband may be established
by evidence of the power and intent to control its disposition or use. See State v. Ellis, 263 S.C. 12, 22, 207 S.E.2d 408,
413 (1974). Proof of possession requires more than the mere presence of the contraband. See State v. Tabory, 260 S.C.
355, 364, 196 S.E.2d 111, 113 (1973). Instead, actual knowledge of the presence of the contraband is required. State v.
Brown, 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976). Although actual knowledge may be inferred from the presence of
contraband, the burden of proof does not shift to the defendant to disprove actual knowledge. See State v. Adams, 291 S.C.
132, 135, 352 S.E.2d 483, 486 (1987).
In this case, there is no substantial evidence in the Record that Delesline had actual knowledge of the presence of the
shank. The DHO made no finding that Delesline knew he had the shank. Instead, there is unrebutted evidence abound
that Delesline received what he believed to be a pen from another inmate, who later admitted that he had given Delesline
the pen, which, unbeknownst to Delesline, contained the shank. While it is probable that Delesline conspired with Felder
to violate a prohibition against contraband, there is no substantial evidence that Delesline possessed the requisite
knowledge to commit the offense of Possession of a Weapon. Consequently, the Department's Final Decision is
REVERSED.
All other issues raised by Appellant during the Grievance process and Appeal are mooted by this Order. IV. ORDER
IT IS THEREFORE ORDERED that the Final Decision of the Department is REVERSED;
IT IS FURTHER ORDERED that the Department credit Delesline with the 30 days of "good-time" credits lost as a
result of his conviction;
IT IS FURTHER ORDERED that the Department credit Delesline with any good-time credit he failed to earn as a result
of his conviction.
AND IT IS SO ORDERED.
_________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
June 11, 2002
Columbia, South Carolina |
