Alexander v. Oregon State Penitentiary

• Decision Date: 13 December 1989
• Docket Number: A-5-88-091
• Citation: 99 Or.App. 659,783 P.2d 1034
• Parties: Willie ALEXANDER, Petitioner, v. OREGON STATE PENITENTIARY, Corrections Division, Respondent. ; CA A49303.
• Court: Oregon Court of Appeals

Page 1034

783 P.2d 1034

99 Or.App. 659

Willie ALEXANDER, Petitioner, v. OREGON STATE PENITENTIARY, Corrections Division, Respondent.

A-5-88-091; CA A49303.

Court of Appeals of Oregon In Banc.

Argued and Submitted July 24, 1989.

Resubmitted In Banc Nov. 8, 1989.

Decided Dec. 13, 1989.

Steven H. Gorham, Salem, argued the cause and filed the brief, for petitioner.

John A. Reuling, Jr., Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

EDMONDS, Judge.

Petitioner seeks review of an order of the Superintendent of the Oregon State Penitentiary finding him guilty of violations of disciplinary rules. OAR 291-105-015. He makes several assignments of error. ¹ We reverse and remand.

Petitioner, an inmate of OSP, was assigned to the Prison Farm Annex. With another inmate, he left the prison without authorization and held up a convenience store. The two assaulted the store clerk and stole money, beer and the clerk's personal possessions. After petitioner was arrested and returned to OSP, a hearings officer made findings and determined that petitioner had violated certain disciplinary rules. ² As a result of the violations, the Superintendent imposed sanctions. Petitioner argues that, because his conduct occurred while he was on escape status, the Superintendent did not have the authority to impose sanctions.

ORS 421.180 provides:

"The Department of Corrections by rule shall adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the department."

Pursuant to the authority of that statute, the Department of Corrections promulgated OAR 291-105-005 et seq. Those rules provide, in relevant part:

OAR 291-105-005:

"(2) Purpose. The purpose of this rule is to define the rules of conduct covering inmates and outline the procedures to be followed in processing disciplinary action.

"(3) Policy. It is the policy of the Department of Corrections that specific rules of conduct describing acceptable behavior standards will be established and precise procedural processes will be outlined to insure [sic ] that both staff and inmates understand what behavior is unacceptable, how misconduct reports will be processed and what sanctions can legitimately be imposed. Staff are required to be thoroughly familiar with the disciplinary process."

OAR 291-105-010:

"(9) 'Inmate': Any person under the supervision of the Department of Corrections who is not on parole or probation status."

OAR 291-105-015:

"(3) Unauthorized Area: No inmate shall be in any location not designated by assignment, programmed activity, call-out or staff directive.

" * * * * *

"(5) Unauthorized Possession of Property: No inmate shall knowingly possess property without staff authorization, in accordance with the Department of Corrections rules on Personal Property (Inmate) (OAR 291-117-005 to 291-117-020).

" * * * * *

"(7) Possession, Manufacture, or Use of Dangerous Contraband: Except as may be authorized by other rules, no inmate shall knowingly possess, manufacture or use:

" * * * * *

"(f) Money including negotiable instruments and uncancelled stamps;

"(g) Intoxicants[.]"

The issue is whether those rules apply to the actions of a person while on escape status. The requirement in ORS 421.180 that the Department adopt procedures to use in disciplining persons "committed to the physical and legal custody of the department" appears to provide a broad definition of those to whom the rules apply. However, that statute authorizes the adoption of rules regulating Department procedure, not inmate conduct.

Whether or not the Department could adopt rules that would permit disciplining an inmate for conduct while on escape status, we conclude that it has not done so. The statements of purpose and policy in OAR 291-105-005, show that the Department's intent is to protect inmates from each other and to promote the safe internal operation of the state's correctional facilities. The rules cover persons who "are under the supervision of the Department of Corrections" other than on parole or probation status. OAR 291-105-010(9). Nothing in them expresses an intent to govern conduct that occurs outside of the Department's supervision. ³

The state argues that "custody," as intended by ORS 421.180, means more than mere physical control and that prisoners temporarily outside their usual place of confinement for limited purposes are still in the custody of the penal institution in which they were previously confined. It relies on Shobe v. OWCC, 28 Or.App. 657, 560 P.2d 676, rev.den. 278 Or. 393 (1977), where an inmate of the Women's Correctional Center sought review of a finding that she had violated a disciplinary rule. At the time of the alleged violation, she had been administratively transferred to the Oregon State Hospital without statutory authorization. She argued that the lack of authorization deprived OWCC of authority to impose a sanction for a violation that occurred at the hospital. We disagreed, holding that the unauthorized transfer to the hospital did not terminate the Department's authority over the inmate. Unlike petitioner, Shobe did not leave the Department's supervision while she was at the hospital.

The dissent would hold that petitioner continued to be "under the supervision of the Department of Corrections" while on escape status. Actual supervision of the petitioner at that time was a physical impossibility. By their terms, OAR 291-105-005 et seq. do not purport to govern inmate conduct by constructive supervision. ⁴

We reverse the findings that petitioner violated Rules 5, 7(f) and (g), because the conduct on which those findings are based occurred after he left the Department's supervision. We remand for further findings on whether petitioner violated Rules 3 and 13(4). The hearings officer's findings do not show whether the conspiracy to commit the assault and robbery occurred while petitioner was under the Department's supervision. If it occurred before his escape, the Superintendent had authority to impose sanctions for it, but he did not, if it occurred afterwards. Petitioner could be guilty of a Rule 3 violation while in the process of escaping, but the hearings officer's findings suggest that he found petitioner guilty only because he was in an unauthorized area after he had left the Department's supervision. ⁵

Reversed as to violations of Rules 5, 7(f) and (g); remanded for reconsideration of alleged Rule 3 and 13(4) violations and for reconsideration of sanctions.

ROSSMAN, Judge, dissenting.

The majority concludes that, if an escaped prisoner violates the Department's rules of conduct while he is outside the walls of the institution, he cannot be punished for those violations. By so holding, the majority permits this inmate to author his own justice. Because I believe that the rules do cover petitioner's misconduct, I respectfully dissent.

This court previously has addressed the circumstances under which an individual is subject to the Correction Division's rules of conduct. In Shobe v. OWCC, 28 Or.App. 657, 660, 560 P.2d 676, rev.den. 278 Or. 393 (1977), we stated the rule:

"The Corrections Division is authorized to adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the division. ORS 421.180. The Corrections Division and OWCC have adopted Major Rules of Conduct pursuant to ORS 421.180 and unless the petitioner can establish that she was not in the legal custody of the Corrections Division or OWCC, she is subject to the rules." (Emphasis supplied.)

We noted:

" 'The word "custody" does not always mean the same thing. An officer or agency may have physical custody separate and apart from, or in combination with, the legal custody of a different officer or agency. The term is elastic and may mean actual imprisonment or other physical detention, or it may refer to mere power, legal or physical, of imprisoning or of taking manual possession. * * *.' Kneefe v. Sullivan, 2 OrApp 152, 155, 465 P2d 741, Sup Ct review denied (1970)." 28 Or.App. at 660.

Despite his escape, petitioner remained in the legal custody of the Department. It follows that he was subject to its disciplinary rules.

Contrary to the majority's suggestion, the rules do express an intent to govern conduct that occurs outside the institution. OAR 291-105-005(2) states: "The purpose of this rule is to define the rules of conduct governing inmates * * *." (Emphasis supplied.) OAR 291-105-010(9) specifically defines an "inmate" as "[a]ny person under the supervision of the Department of Corrections who is not on parole or probation status." Thus, if petitioner continued to be under the Department's supervision, either actually or constructively, the rules covered his conduct, despite his escape.

The majority concludes, without explanation, that "OAR 291-105-005 et seq do not purport to govern inmate conduct outside the Department's actual supervision by constructive supervision." 99 Or.App. at 664, 783 P.2d at 1036. ¹ That simply is not the case. By their terms, the rules apply to inmates on "Short-Term Temporary Leave." See OAR 291-105-010(14). They also apply to persons in the work release program. See ORS 144.490(2); ² State v. Hutcheson, 251 Or. 589, 592, 447 P.2d 92 (1968). Because inmates in those situations are not always under the actual supervision of the Department, the term "supervision" within the meaning of OAR 291-105-005 et seq must include constructive supervision.

Following the majority's analysis to its logical conclusion, a prisoner who breaks a disciplinary rule while on work release and returns on time is subject to the disciplinary rules, while one who commits the same misconduct and never returns on his own is not. Neither the statutes nor the rules require that result. ³ " '[A]n inmate is considered confined within a "correctional...