Bradford v. State

• Decision Date: 08 September 1993
• Docket Number: No. 20343,20343
• Parties: Robert W. BRADFORD, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 626

864 P.2d 626

124 Idaho 788

Robert W. BRADFORD, Plaintiff-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 20343.

Court of Appeals of Idaho.

Sept. 8, 1993.

Knowlton, Miles, Merica & Brudie, P.A., Lewiston, Jeff M. Brudie, for appellant.

Larry EchoHawk, Atty. Gen., Thomas P. Watkins, Deputy Atty. Gen., Boise, for respondent.

LANSING, Judge.

Robert Bradford appeals an order of the district court summarily dismissing his petition for post-conviction relief. His petition alleged that Bradford was denied due process while incarcerated at the North Idaho Correctional Institution ("NICI") during a period of retained jurisdiction. The district court summarily dismissed the petition. For the reasons stated below we affirm.

Bradford pled guilty to grand theft, I.C. §§ 18-2403, 18-2407(1) and on July 31, 1991, was given an aggregate sentence of seven years with a minimum period of incarceration of three years. The district court retained jurisdiction for 180 days pursuant to I.C. § 19-2601 and ordered that Bradford be incarcerated at NICI during this period. On January 22, 1992, the district court, following the recommendation of the NICI jurisdictional review committee, relinquished jurisdiction and remanded Bradford to the custody of the Board of Correction.

On April 3, 1992, Bradford filed a verified petition for post-conviction relief pursuant to I.C. § 19-4901. The state responded by filing a motion to dismiss. Following submission of affidavits by both parties, the district court summarily dismissed the petition. Bradford appeals that order of dismissal.

A petition for post-conviction relief initiates a proceeding which is civil in nature. State v. Bearshield, 104 Idaho 676, 662 P.2d 548 (1983). Like a civil plaintiff, the petitioner must prove by a preponderance of evidence the allegations upon which the request for relief is based. Russell v. State, 118 Idaho 65, 794 P.2d 654 (Ct.App.1990). A summary dismissal of a petition pursuant to I.C. § 19-4906 is functionally equivalent to entering summary judgment pursuant to I.R.C.P. 56. Nellsch v. State, 122 Idaho 426, 430, 835 P.2d 661, 665 (Ct.App.1992); Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct.App.1987). Where it appears from the pleadings and any affidavits filed by the parties that no genuine issue of material fact exists, the trial court may summarily dispose of the application. However, where genuine factual issues are raised, an evidentiary hearing must be conducted as provided in I.C. § 19-4906. Nellsch v. State, supra.

On appeal we review the entire record to determine if a genuine issue of material fact exists which, if resolved in favor of the petitioner, would entitle the petitioner to the requested relief. The facts and inferences to be drawn from the evidence are construed liberally in favor of the petitioner. We are not required, however, to accept the legal conclusions which petitioner draws from the facts. We freely review the district court's application of law. Id. at 431, 434, 835 P.2d at 666.

The purpose of the retained jurisdiction procedure is to provide a period for evaluation of the offender's potential for rehabilitation and suitability for probation. State v. Wolfe, 99 Idaho 382, 582 P.2d 728 (1978). With the benefit of a report from the correctional facility, the sentencing court may modify the sentence. A favorable report may lead the court to suspend the sentence and place the defendant on probation. Wolfe, 99 Idaho at 385, 582 P.2d at 731; McDonald v. State, 124 Idaho 103, 856, P.2d 893 (Ct.App.1992).

In Wolfe, the Supreme Court ruled that when NICI develops its report to the sentencing court following a period of retained jurisdiction, the inmate possesses a liberty interest in the proceedings sufficient to invoke minimal due process safeguards.

Before a report is sent back to the sentencing judge (pursuant to the retained jurisdiction of I.C. § 19-2601), certain procedures must be followed. The prisoner must be given adequate notice before the hearing, including notice of the substance of all matters that will be considered. The prisoner must be given an opportunity to explain or rebut any testimony or recommendations. In addition, the prisoner must be free to call witnesses in his behalf from among the employees and other prisoners at NICI. This information should be included in the report sent back to the sentencing judge.

99 Idaho at 389, 582 P.2d at 735.

Bradford alleges that he was denied due process in his jurisdictional review proceedings at NICI in that: (1) he was neither given notice of, nor allowed to be present at, the initial meeting where the jurisdictional review committee arrived at its tentative recommendation that the court relinquish jurisdiction; (2) he was not allowed to speak to desired witnesses prior to his hearing; (3) he was told by a staff member that he could not call live witnesses at his hearing but could only present witnesses' written statements; (4) he was not allowed to confront the staff members who had given him negative evaluations; (5) he was given inadequate time to prepare his rebuttal; and, (6) the jurisdictional review hearing was premature, taking place 43 days before expiration of the retained jurisdiction period. Construing Bradford's allegations as true, and with reference to the uncontroverted evidence offered by the State, we will address each of his claimed violations of Wolfe standards.

I

Bradford contends that he was denied due process because he was not present at an initial meeting on December 15, 1991 where the NICI committee first conferred and arrived at a tentative recommendation against probation. Bradford concedes that he was taken before the committee on the same day and informed of the substance of both the recommendation and the information upon which the committee relied.

Bradford's contention that he had a right to be present at the initial committee conference is without merit. In Wolfe the Supreme Court held that inmates are entitled to comment upon or rebut the information relied upon, or the recommendation made by, the committee. 99 Idaho at 389, 582 P.2d at 735. However, Wolfe does not mandate that the inmate be present during the entire process by which a decision is reached by the committee. Although the initial meeting of the NICI committee is often referred to as a "hearing," it is in fact merely a conference where the committee reviews the inmate's record, considers staff evaluations, and develops a tentative recommendation as to whether the inmate should be placed on probation. An inmate does not have a right to be present during this meeting. So long as the inmate is provided the information upon which the committee bases its tentative decision, the committee does not rely upon secret information and the inmate is thereafter given an opportunity to present rebuttal evidence to the committee, the due process standards mandated by Wolfe have been met.

II

Bradford next asserts that after being informed of the committee's preliminary recommendation he was placed in administrative segregation and was thereby deprived of the ability to speak to witnesses prior to the rebuttal hearing. The record supports this assertion that he was precluded from speaking to potential witnesses.

In analyzing this claim, we again return to the language in Wolfe: "In addition, the prisoner must be free to call witnesses in his behalf from among the employees and other prisoners at NICI." 99 Idaho at 389, 582 P.2d at 735. Clearly, Bradford's right to due process included the right to present the testimony of witnesses from within the populace and staff at NICI. He asks that we expand the right to call witnesses to include the right to personally interview those witnesses prior to his hearing. We decline to do so. The procedural due process protections afforded by Wolfe are substantially less than the full panoply to which a criminal defendant would be entitled at trial or sentencing. The customary procedure of placing inmates at NICI in administrative segregation after they have been informed of an adverse tentative recommendation of the committee does create a significant hurdle for the inmate who must decide what witnesses to call on his behalf. The inmate is prevented from personally ascertaining whether a witness will be favorable or not. Without any mechanism to ameliorate this result, the administrative segregation procedure might be deemed a denial of the inmate's right to call witnesses mandated by Wolfe.

We find, however, that the procedures utilized by NICI in Bradford's case adequately compensate for this impediment. A staff representative appointed to assist Bradford contacted those witnesses whom Bradford identified. The representative collected from those witnesses willing to participate, written statements that outlined the substance of their testimony. Bradford was, therefore, adequately apprised of what they would say and able to anticipate the testimony they would give if called to testify.

We interpret the prisoner's right to call witnesses under Wolfe to include a right to contact the witnesses in advance of the hearing in order to request their appearance and to ascertain the substance of their potential testimony. This contact need not be in person, however, but may be conducted through a third party such as the staff representative who assisted Bradford. So long as the procedures at NICI accomplish this goal of communication between the inmate and his witnesses, the inmate's right to present witnesses has not been unconstitutionally impaired. Therefore, we find that the administrative segregation procedure did not deprive Bradford of due process.

III

Bradford next contends that he was told by his staff representative that he would not be allowed to call witnesses to testify in person at his rebuttal hearing and that only written statements could be presented. Assuming the truth of this assertion, as...