ORDERS:
ORDER OF REMAND
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.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
September 25, 2003
Columbia, South Carolina |
