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Administrative Law Court
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SC Administrative Law Court Decisions

Walter L. Durham, #258320 vs. DOC,

South Carolina Department of Corrections,

Walter L. Durham, #258320

South Carolina Department of Corrections,




This matter comes before the Administrative Law Judge Division (“ALJD”) pursuant to the appeal of Walter L. Durham, an inmate incarcerated with the Department of Corrections (“Department”). In his appeal, Durham challenges the Department’s classification decision and complains that the Department has violated the prohibition against ex post facto laws by reclassifying an old conviction as a category 4 offense, thereby excluding him from programs available to non-violent offenders.ANALYSIS

The Division’s jurisdiction to review final decisions of the Department 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 which the Court created a new avenue for inmates to appeal non-collateral challenges to final decisions of the Department. In Al-Shabazz, the Court recognized that the administrative matters entitled to review by the ALJD “typically arise in two ways: (1) when an inmate is disciplined and punishment is imposed and (2) when an inmate believes prison officials have erroneously calculated his sentence, sentence-related credits, or custody status.” Id. at 369, 527 S.E.2d at 750. In Sullivan v. South Carolina Department of Corrections, Op. No. 25704 (S.C. filed Aug. 25, 2003) (Shearouse Adv. Sh. No. 32 at 29), the Court held that for the Division to have jurisdiction over an inmate’s claim it must implicate a state-created liberty interest.

The Court has held that an ex post facto claim is considered a non-collateral claim, and that an inmate may seek review of the Department’s final decision regarding an ex post facto claim under the APA. Jernigan v. State, 340 S.C. 256, 531 S.E.2d 507 (2000); see also Furtick.v. S.C. Dep’t of Probation, Parole and Pardon Servs., 352 S.C. 594, 576 S.E.2d 146 (2003).

In this case, Durham challenges the change in the Department’s classification of his 1976 conviction of assault on a police officer, which he alleges was considered a misdemeanor at the time of the conviction. Durham apparently believes that the reclassification of this offense resulted in a change in his categorization level from that of a nonviolent to a violent offender, thereby depriving him of eligibility for work release and other programs.

In response to Durham’s Step 1 Grievance in this case, the Department explained to Durham that, although he is classified as a category 2 offender, a nonviolent offender, under his current commitment, the classification system utilized by the Department is designed to take into consideration an inmate’s prior criminal history when screening for labor crew/work release programs. Because Durham’s 1976 conviction of assault on a police officer is classified as a category 4 offense, the Department explained, Durham is not eligible for work release.

In his Step 2 Grievance, Durham stated that he understands the procedure for classification and the use of prior convictions in determining classification. He explained that his challenge to his classification had to do with the fact that his 1976 conviction in magistrate court was for a misdemeanor, and that the same conviction today would be considered a felony. He wonders why the 1976 conviction is being treated by the Department as a felony in categorizing him as a category 4 offender, rather than treating it like a misdemeanor, which he apparently believes would result in his placement in a different category level. In response to his Step 2 Grievance, the Department merely affirmed its prior response and stated that the correctional institution in which Durham is housed is in compliance with Department policy. The Department failed to address Durham’s real issue, the change in the way the Department categorized his 1976 conviction.

In his Notice of Appeal, Durham argues that taking the 1976 misdemeanor conviction and enhancing it as a serious or violent offense, thereby denying him eligibility in work release and other programs, violates the ex post facto prohibition. However, as stated above, the Department failed to address this issue in its final order in response to Durham’s Step 2 grievance. Pursuant to the South Carolina Supreme Court’s decision in Porter v. South Carolina Public Service Commission, 333 S.C. 12, 21, 507 S.E.2d 328, 332 (1998), the findings of an administrative body must be “sufficiently detailed to enable [the reviewing body] to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings.” In this case, the final order of the Department does not contain sufficient findings of fact and conclusions of law regarding Durham’s ex post facto claim to enable this tribunal to properly review the decision. Therefore, this case should be remanded to the Department for the issuance of a final order containing detailed findings of fact and conclusions of law addressing Durham’s ex post facto claim.

IT IS THEREFORE ORDERED that this case is remanded to the Department for the issuance of a final order containing detailed findings of fact and conclusions of law in conformance with the principles set forth herein within ninety (90) days of the date of this Order.

IT IS FURTHER ORDERED that this docket is closed; when the Department issues its final order, if Appellant feels he is aggrieved by that order he needs to address it through a new grievance.





September 25, 2003

Columbia, South Carolina

Brown Bldg.






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