In re Krier, 45490-1-I.

• Decision Date: 20 August 2001
• Docket Number: No. 45490-1-I.,45490-1-I.
• Parties: In re the Personal Restraint Petition of S.J. KRIER, Petitioner.
• Court: Washington Court of Appeals

29 P.3d 720

108 Wash. App. 31

108 Wn. App. 31

In re the Personal Restraint Petition of S.J. KRIER, Petitioner.

No. 45490-1-I.

Court of Appeals of Washington, Division 1.

August 20, 2001.

Christopher Gibson, Nielsen Broman and Assoc., Seattle, for appellant.

Michael G. Ballnik, John S. Blonien, Wm. Andrew Meyers, Asst. Atty. Gen., Olympia, for respondent.

KENNEDY, J.

Due process requires fair notice of what conduct is prohibited before an inmate charged with a serious infraction can be deprived of good time in a prison disciplinary proceeding. Where an inmate claims lack of fair notice and is nevertheless found guilty of committing a serious infraction, "some evidence" in the record of the hearing must support a finding that the inmate did receive fair notice of the prohibited conduct, despite his protests to the contrary. Where such evidence cannot be found in the record, it cannot be supplied post hoc, during judicial review. Accordingly, we grant S.J. Krier's personal restraint petition, vacate the hearing officer's finding that Krier committed a serious infraction on April 11, 1999, and remand with instructions that Krier's forfeited good time be restored.

FACTS

On March 28, 1999, Corrections Officer David Tworzydlo observed inmate S.J. Krier smoking in his cell. Officer Tworzydlo prepared a general infraction report alleging that Krier had violated WAC 137-28-220(251) (smoking in a prohibited area) and WAC 137-28-310 (refusing to obey a staff member). Krier was notified that an infraction hearing would occur on March 31, 1999. The hearing took place as scheduled; however Krier did not attend the hearing.¹

Sergeant Rodian Salinas conducted the general infraction hearing in Krier's absence, reviewed Officer Tworzydlo's general infraction report, found Krier guilty on the basis of the report, and imposed a sanction of 10 days of cell confinement, starting at 6 a.m. on April 2, 1999, and ending at 6 a.m., on April 12, 1999.

On April 11, 1999, Officer Tworzydlo performed a routine tier check and noticed that Krier was not in his cell. Tworzydlo issued an initial serious infraction report charging Krier with a serious infraction for "[f]ailing to comply with any administrative or posthearing sanction imposed for committing any general or serious infraction" contrary to WAC 137-28-260(658) and with a general infraction for "[r]efusing or failing to obey an order, oral or written, of any staff member" contrary to WAC 137-28-220(103). Krier pleaded not guilty to both charges, and the matter proceeded to a hearing before Lieutenant Lonny Earles on April 14, 1999. Krier attended the hearing and claimed that he had never been notified that he was on cell confinement as a result of the previous general infraction, consequently it would be unfair to convict him of the serious infraction. Lieutenant Earles found Krier guilty of the violations, based on the written report of Corrections Officer Tworzydlo and a copy of the March 31 general infraction report imposing the cell-confinement sanction. Lieutenant Earls made no written finding regarding Krier's claim that he had never been notified of the cell-confinement sanction.

A general infraction report serves as both a charging document and a disposition document. The charge is filled in at the top and signed by the reporting officer and by an additional reviewing staff member. At mid-page is a section notifying the inmate of the date, time and place of the hearing, and there is a space for the inmate to sign, acknowledging that he has received a copy of the document. Krier signed this acknowledgment on March 29, 1999. The lower portion of the page contains an "Action" section that the hearing officer fills in at the time of the hearing. This section has lines for the date and time of the hearing, the inmate's plea to the charge(s), a summary of the inmate's statement if any (the report before us indicates that the matter was heard in Krier's absence), the hearing officer's findings, and the sanction imposed. Below that is a notification to the inmate that any appeal must be addressed to the Disciplinary Hearing Officer within 24 hours and the inmate is asked: "Do you wish to appeal the above decision and/or sanction? Yes______ No______[.]" Neither response is checked off on Krier's report. The report also states, "Notification has been received[,]" followed by a signature line for the inmate and a staff witness, and a place to indicate the date and time of the notification. This portion of Krier's report is also blank. Finally, the document contains instructions for distribution of various copies: The original goes to the unit file, the pink copy goes to the inmate when he is notified of the date and time of the hearing, and, after the hearing has taken place, the yellow copy goes "to inmate after review has been conducted and signature obtained." The inmate is instructed to attach his yellow copy to his appeal.

After reviewing the initial serious infraction report and the general infraction report above described, Lieutenant Earle found Krier guilty of both charges, and imposed sanctions forfeiting 10 days of Krier's good time and giving him 10 days of disciplinary segregation.

Krier appealed the serious infraction sanction to the prison superintendent, who denied the appeal, and who responded to Krier's claim that he had not received notice of the cell-confinement sanction with the following: "Copy of infraction delivered in unit mail." Krier subsequently filed the personal restraint petition that is now before us.

In response to the personal restraint petition, the Department of Corrections (Department) submitted affidavits signed by Sergeant Salinas, the hearing officer for the March 31 general infraction, and Lieutenant Earle, the hearing officer for the serious infraction. Sergeant Salinas stated in his affidavit that although he has no recollection of the specific general infraction hearing,² immediately after conducting an informal disciplinary hearing in the absence of the inmate, he writes his findings and the sanctions imposed on the general infraction report, and sends a copy to the absent inmate via unit mail. According to Officer Salinas, a document placed in unit mail during the day is delivered to the inmate that same evening. When an inmate is sanctioned with the loss of privileges, such as cell confinement for a period of time, this information is recorded in the unit sergeant's office so that all staff members on duty in the unit can become aware of the loss of privileges.

Lieutenant Earle stated in his affidavit that although he has no recollection of the specific details of the serious infraction hearing held on April 14, 1999, he has an intimate knowledge of the prison disciplinary process and was aware on the date of the hearing that after a unit sergeant conducts an informal disciplinary hearing for a general infraction in the absence of the inmate, the sergeant indicates his findings and any sanctions on the general infraction report, which is then provided to the inmate by unit mail. Lieutenant Earle added that "unit mail is a safe, reliable, and efficient means of notifying inmates of disciplinary sanctions imposed[.]" According to Lieutenant Earle, unit mail is never delivered to the wrong inmate.

After this court ruled that Krier's personal restraint petition was not frivolous on its face and appointed counsel to represent him, we requested counsel for both parties to respond to the following inquiries by way of supplemental briefing: (1) May this court consider evidence that was not presented to the hearing officer who found Krier guilty of the serious infraction; and (2) if so, is the affidavit of Sergeant Salinas "some evidence" that Krier was given actual notice of the sanctions imposed by Sergeant Salinas as a result of the general infraction hearing.³

DISCUSSION⁴

Standard of Review of Personal Restraint Petitions

In order to obtain relief, a personal restraint petitioner must show that he is under restraint within the meaning of RAP 16.4(b), which provides in part:

A petitioner is under a "restraint" if the petitioner has limited freedom because of a court decision in a civil or criminal proceeding, the petitioner is confined, the petitioner is subject to imminent confinement, or the petitioner is under some other disability resulting from a judgment or sentence in a criminal case.

It is undisputed that Krier is under a restraint as a result of the serious infraction decision because he lost 10 days of good time credits.

Krier is entitled to relief from the restraint arising out of the serious infraction hearing if he can prove actual and substantial prejudice as a result of constitutional error or, if he can prove nonconstitutional error that inherently results in a "complete miscarriage of justice." In re Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990); In re Reismiller, 101 Wash.2d 291, 293, 678 P.2d 323 (1984). See also RAP 16.4(c)(5) (a petitioner's restraint is unlawful if the conditions or manner of the restraint are in violation of the Constitution of the United States or this state, or in violation of the laws of this state).⁵ In reviewing prison disciplinary proceedings, this court determines whether the action taken was "so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding ." Reismiller, 101 Wash.2d at 294,678 P.2d 323; In re Personal Restraint of Burton, 80 Wash.App. 573, 582, 910 P.2d 1295 (1996). Action is so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding if the petitioner is not afforded the minimum due process protections applicable in prison disciplinary hearings or if the decision is not supported by at least some evidence. In re Anderson, 112 Wash.2d 546, 548-49, 772 P.2d 510 (1989); Burton,80 Wash.App. at 585,910 P.2d 1295.

Due process requires that an inmate facing a prison disciplinary hearing: "(1) receive notice of...