ORDERS:
ORDER
I. STATEMENT OF CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to the appeal of Kenneth L. Young, an
inmate incarcerated with the Department of Corrections ("Department"). On April 29, 2002, Young was convicted of
violating SCDC Disciplinary Code 2.04, Possession of Contraband, after a shakedown occuring on April 17, 2002. As a
result of his conviction, Young lost 30 days of "good-time" credit and received 20 hours extra duty. Young filed a
grievance with the Department and received the Department's final decision on or about June 28, 2002. On July 19,
Young filed this appeal.
II. BACKGROUND
On April 17, 2002, Young and several other inmates assigned to litter duty reported to shakedown after returning from
duty. Young went first, stepping out of his boots in one room and entered the shakedown room for a strip search. After all
of the inmates were strip searched by Sgt. Rhodes in the shakedown room, Sgt. Rhodes went into the other room where all
of the inmates' boots were located and shook down the boots. In one pair of boots, Sgt. Rhodes found two fifty dollar
bills. The bills were clearly visible to Sgt. Rhodes when he looked in the boots. After Sgt. Rhodes brought the boots into
the shakedown room, Young admitted ownership of the boots but denied possessing or even knowing about the bills.
After the incident, Young was placed in PHD. Sgt. Rhodes completed an Incident Report and submitted it to his
supervisor. Young was charged with violating SCDC Code 2.04, Possession of Contraband, and received written notice of
the charge on April 22, 2002. The hearing was held on April 29, 2002, before a Disciplinary Hearing Officer ("DHO"),
who read into the Record Sgt. Rhodes' Incident Report. Young was represented by counsel substitute, who informed the
DHO that Young had requested several witnesses, but upon meeting with the proposed witnesses, counsel substitute had
determined that their testimony was not relevant. The DHO also took Young's statement. Young testified that, while on
litter duty, several inmates found a wallet containing some money. Young and another inmate walked away from the group
inspecting the wallet. When Young realized the group of inmates were going to throw the wallet down, Young took it to
Officer Sims. At that time, the wallet contained a driver's license and credit cards, but no cash. Young also testified that,
after the wallet was found, he and a buddy or two took off their boots while eating lunch under an oak tree because their
boots and socks had become wet. Later, when the inmates returned from duty, a shakedown was announced, and Young
got in line first. Young testified that he always goes first in shakedowns. As a result, Young asked the DHO why he would
volunteer to go first if he knew he possessed contraband. At the conclusion of the hearing, the DHO informed Young that
he had been found guilty based on Sgt. Rhodes written report and Young's testimony that the boots were his. Additionally,
the DHO informed Young that he would be sanctioned with the loss of 30 days of good time credit and would receive 20
hours' extra duty at his new institution. After the hearing, the DHO completed a Major Disciplinary Report and Hearing
Record ("Hearing Record"), which documented the DHO's findings based on Sgt. Rhodes' report and Young's testimony
that he saw the bills in his boots when Sgt. Rhodes brought them into the shakedown room. In addition, the Hearing
Record reflects that Young lost only 30 days of good-time credit and was given extra duty because it was his first offense.
Young filed a grievance that same day, appealing his conviction of violating SCDC 2.04 because he never had possession
of the contraband bills. On May 16, 2002, the Warden denied his grievance, finding no procedural due process violations.
On May 21, 2002, Young appealed the warden's decision, alleging the DHO had made five procedural errors. The
Department denied his grievance, stating that no reason was found to reverse the DHO's decision and that Young had failed
to request his proposed witnesses prior to the hearing. This appeal followed.
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, Young 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 Young'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.
Notwithstanding the issue of whether Young 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 2.04, Possession of Contraband, defines the offense as "[t]he possession of any unauthorized
property, including money,... ." 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 Young possessed the money in his boots because there was
a substantial period of time in which Young did not possess or have control over his boots. Likewise, even if Young
brought the bills into the prison in his boots, there is no substantial evidence that Young possessed the requisite knowledge
that the bills were in his boots. There was ample opportunity for another to place the bills in his boots either inside or
outside of the prison without Young's knowledge or consent. Young's boots were off and removed from his control during
lunch and again while inside the prison, when Young was in the other room being strip-searched. 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 Young with the 30 days of "good-time" credits lost as a result
of his conviction;
IT IS FURTHER ORDERED that the Department credit Young 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
September 16, 2002
Columbia, South Carolina |
