SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division (Division) pursuant to the Appellant’s Notice of Appeal filed on June 8, 2001, in which the Appellant appealed a final decision issued by the Department of Corrections (Department). The Appellant contends that the Department has incorrectly calculated his sentence. The Department’s position is that the sentence is correct as stated in the Department’s computer system. This Appeal followed. Having reviewed the record submitted by the Department, the copies of the sentencing sheets from the various counties where the Appellant has been convicted, the applicable law and the briefs submitted by the parties, it is clear that the Appellant is correct and that his sentence should be reduced in the Department’s computer system.

BACKGROUND

The case numbers, crimes, dates and sentences of this Appellant are summarized in the following chart with all information taken from the copies of the county sentence reports:

Case No.TypeDateSentenceCounty Origin

82-GS-12-519 Armed Robbery10/25/198223 yrs, consecutiveChester

82-GS-12-496 Robbery and Gr. Larceny10/25/198210 yrs, consecutiveChester

82-GS-12-521Armed Robbery10/25/198223 yrs, concurrent Chester

82-GS-12-495Armed Robbery10/25/198223 yrs, concurrent Chester

82-GS-12- 475Armed Robbery10/25/198223 yrs, concurrent Chester

87-GS-23-193Asslt on Officer03/03/19875 yrs, consecutiveGreenville

91-GS-23-4848 Not specified on copy12/10/1991 6 mos, consecutive Greenville

92-GS-35-0205Asslt/Bttry–06/05/19925 yrs, consecutiveMcCormick

High & Aggr. Nature (HAAN)

TOTAL TIME CALCULATED:43 YRS, 6 MOS.

As of July 28, 1999, the Department’s Offender Summary sheet shows the following under commitment information:

Offense No.TypeDate*SentenceCounty Originating

S00008Asslt/Bttry-HAAN5 yrsMarlboro

S00007Asslt/Bttry-HAAN12/10/19916 mos.Greenville

S00006Asslt on Officer12/10/19915 yrsGreenville

S00005Asslt on Officer03/03/19875 yrsGreenville

S00004 Armed Robbery10/25/198223 yrsChester

S00003Grand Larceny10/25/198210 yrsChester

S00002Robbery10/25/198210 yrsChester

S00001Armed Robbery10/25/198223 yrsChester

* The dates shown are taken from the County records shown above. The Department printout submitted to this court does not include sentencing dates.

TOTAL TIME SHOWN ON SUMMARY

AS CURRENT SENTENCE:66 YRS, 6 MOS

The Appellant filed his Step 1 grievance in February, 2001. The warden’s response was that the time was correctly calculated. The Step 2 grievance was filed and denied in May 2001. This appeal followed.

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). In Al-Shabazz, the South Carolina Supreme Court held that inmates may seek review of final decisions of the Department in certain “non-collateral” or administrative matters (i.e., those matters in which an inmate does not challenge the validity of a conviction or sentence) by appealing those decisions to the ALJD pursuant to the South Carolina Administrative Procedures Act (APA). Al-Shabazz, 338 S.C. at 376, 527 S.E.2d at 754. In McNeil v. South Carolina Department of Corrections, a majority of the judges of the ALJD, sitting en banc, held that this tribunal’s jurisdiction to hear inmate appeals under Al-Shabazz is limited to: (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. McNeil v. S.C. Dep’t of Corrections, No. 00-ALJ-04-00336-AP, slip op. at 4-5 (S.C. Admin. Law Judge. Div. Sept. 5, 2001) (en banc).

When reviewing the Department’s decisions in inmate grievance matters, the ALJD sits in an appellate capacity. Al-Shabazz, 338 S.C. at 377, 527 S.E.2d at 754. Consequently, this tribunal’s review of inmate appeals is confined to the record presented, id., and its inquiry into these matters is primarily concerned with ensuring that the Department has granted aggrieved inmates the process they are due when their constitutional rights are implicated. Id. at 369, 527 S.E.2d at 750; McNeil, No. 00-ALJ-04-00336-AP, at 5 (“[O]ur review is limited solely to the determination of whether the Department granted ‘minimal due process’ in reaching [its] decisions . . . .”). Further, recognizing that prison officials are in the best position to decide inmate disciplinary matters, this tribunal will adhere to the traditional “hands off” approach to internal prison disciplinary policies and procedures when reviewing inmate appeals under the APA. Al-Shabazz, 338 S.C. at 382, 527 S.E.2d at 757; see also Pruitt v. State, 274 S.C. 565, 266 S.E.2d 779 (1980) (stating the traditional “hands off” approach of South Carolina courts regarding internal prison discipline and policy).

However, notwithstanding the deferential standard of review, this tribunal must conduct meaningful review of the Department’s actions to ensure that inmate grievances are addressed in a fair, reasonable, and efficient manner. Al-Shabazz, 338 S.C. at 383, 527 S.E.2d at 757. Recently, in Sullivan, the South Carolina Supreme Court affirmed that the ALJD’s subject matter jurisdiction is limited to those cases in which Appellants claim the Department has deprived them of “state created liberty interests.” Sullivan v. S.C. Department of Corrections (Opinion No. 25704, filed August 25, 2003).

Accordingly, this court may address the Appellant’s claims within these parameters. It is clear that the best evidence of the Appellant’s convictions and sentences is the record sentencing sheet from the various counties involved. The dispute appears to arise from the Chester county sentences. As shown above, the Appellant was charged with and pled guilty to numerous crimes in Chester county. There were five separate cases filed in Chester, and the Appellant pled guilty and was sentenced in each case. The primary issue is the four armed robbery cases which resulted in twenty-three year sentences. In one case, 82-GS-12-519, the twenty-three year sentence was listed as “consecutive”, the remaining three cases show the sentences as running concurrently. I find that this should be read as one twenty-three year sentence. The Department erroneously shows two twenty-three year sentences from Chester, with the twenty-three year sentence for “S00004 Armed Robbery” running consecutively to the twenty-three year sentence for “S00001 Armed Robbery.”

In addition, case number 82-GS-12-496, also in Chester county, dealt with “Robbery and Grand Larceny.” After the Appellant pled guilty, the sentence report states, “The sentence of the Court is that the Defendant Kaizel Jr. Mosley shall be placed in the custody of the Board of Corrections of the State of South Carolina for a term of Ten (10) years-consecutive.” Apparently the Department must enter this sentence separately, which implies two ten-year terms, because their summary sheet shows for S00002 Robbery a ten year sentence and for S00003 Grand Larceny another ten year sentence. The issue of whether this sentence imposed one ten year sentence or two ten year sentences was not resolved until July 28, 1999. Prior to that date, as explained below, the Department showed these sentences running consecutively to each other.

The Department alleges that the initial sentence in Chester was fifty-six years. I find that it is thirty-three years.

Finally, the Department’s summary sheet shows that the Appellant has a record in Marlboro county for Assault and Battery of a High and Aggravated Nature. The Appellant pled guilty in McCormick county to this charge and was sentenced to the time shown on the summary as from Marlboro. I find that these errors call the accuracy of the Department’s records into question.

In 1992, the Department’s summary sheet showed the following information on the Appellant:

Offense No.TypeDate*SentenceCounty Originating

S00004 Asslt/Bttry-HAAN12/10/19916 mos.Greenville

S00003Agr.Asslt-ID Weapon 06/05/19925 yrsGreenville

S00002Robbery10/25/198210 yrsChester

S00001Armed Robbery10/25/198223 yrsChester

TOTAL TIME SHOWN ON SUMMARY:38 YRS, 6 MOS

*Dates taken from county sentencing records/clerk of court documents

The Department had generally the correct information. (The only error appears to be the type of assault identified in S00003 from Greenville as Aggravated Assault instead of Assault on an Officer.) The sentences from Chester are shown as one twenty-three year sentence and one ten-year sentence. Beginning in June 1999, someone identified as “EER” on the Offender Summary Sheets entered the following notation, “On 6/23/99 entered missing charged [sic] #4 Grand Larceny and restack all charges and modified the consecutive structure. . .EER.” The “missing charge #4" apparently refers to the additional twenty three year sentence from Chester. Even if it was necessary to enter this charge to show the additional cases from Chester, then the sentence should be shown as concurrent, not consecutive. The effect of “restacking” gave the Appellant a total sentence of seventy-six years, six months.

On July 28, 1999, the notation reads, “Modified the CS structure on #3 per commitment order. . .EER.” This note seems to indicate the change in the consecutive sentence listing which now makes the ten year sentence for Grand Larceny from Chester consecutive only to the twenty three year sentence for Armed Robbery, not the other ten year sentence for Robbery from Chester. This change dropped the total sentence time to sixty-six years, six months.

Finally, there are two charges shown from Greenville county for Assault on a Police Officer. The copy of the sentencing sheet from Greenville only shows one count.

The net effect of these changes is that the Department is changing the Appellant’s sentence structure without proper judicial authority. In addition, the Appellant’s counsel has stated that the modifications were done without advance written notice to the Appellant. These actions by the Department have increased the Appellant’s sentence unnecessarily and unlawfully.

Based on the foregoing, I FIND AND ORDER that the Department has violated the Appellant’s Due Process rights. The Department’s records shall be corrected within ten (10) days of the date of this order to reflect the Appellant’s proper sentence as of June 1992 as forty three years, six months, as shown above from the county records.