Macomber v. Cline

• Decision Date: 02 April 2021
• Docket Number: 781,122
• Court: Kansas Court of Appeals
• Parties: Stephen A. Macomber, Appellant, v. Sam Cline, Warden, Appellee.

Stephen A. Macomber, Appellant, v. Sam Cline, Warden, Appellee.

No. 122, 781

Court of Appeals of Kansas

April 2, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Butler District Court; John E. Sanders, judge.

Kristen B. Patty, of Wichita, for appellant.

Joni Cole, legal counsel, El Dorado Correctional Facility, for appellee.

Before Bruns, P.J., Buser, J., and Walker, S.J.

MEMORANDUM OPINION

PER CURIAM:

Stephen A. Macomber appeals the summary dismissal of his K.S.A 60-1501 petition. He asserts that the hearing officer at his prison disciplinary hearing violated certain Kansas Department of Corrections (KDOC) regulations by not providing him notice before amending his fighting charge to battery. According to Macomber, the hearing officer's failure to provide him proper notice of this amendment resulted in him unknowingly pleading guilty to battery contrary to his due process rights under the Fourteenth Amendment to the United States Constitution. He therefore asks this court to either grant his K.S.A. 60-1501 petition or remand to the district court for an evidentiary hearing on his underlying argument. Because we believe the record of this case does not conclusively show that Macomber is not entitled to relief under K.S.A. 60-1501, we find it was error for the district court to summarily dismiss his petition. Therefore, we reverse and remand the case to the district court for an evidentiary hearing on Macomber's K.S.A. 60-1501 petition.

Facts

In December 2017, Macomber was an inmate at Lansing Correctional Facility in Leavenworth County. On December 23, 2017, a corrections officer filed a disciplinary report alleging that Macomber and another inmate were fighting earlier that day. Based on this altercation, the corrections officer charged Macomber with possessing dangerous contraband, a class one disciplinary offense in violation of K.A.R. 44-12-901, and with fighting, a class one disciplinary offense in violation of K.A.R. 44-12-301. The corrections officer alleged that during the fight, Macomber had a "handmade ice pick type weapon."

Shortly after receiving his disciplinary report, a different corrections officer, whose first name is not in the record but whose last name was Hunt, held a hearing on Macomber's alleged violations. The form documenting Macomber's disciplinary hearing indicated that Macomber pled guilty after waiving his right to an evidentiary hearing on his charges. The form also indicated that Hunt amended Macomber's original charges. Although Macomber remained charged with dangerous contraband, he was no longer charged with fighting contrary to K.A.R. 44-12-301. Instead, in the blank labeled "rule violations," Hunt listed the numbers "901" and "324." Evidently, while the number 901 continued to represent Macomber's dangerous contraband charge in violation of K.A.R. 44-12-901 the number 324 represented Macomber's new battery charge, which was a class one disciplinary offense in violation of K.A.R. 44-12-324.

Thus, from the face of the form, which contained handwritten notations which are somewhat hard to read, it appears Macomber pled guilty to battery and dangerous contraband. For his dangerous contraband and battery offenses, Hunt imposed a $20 fine upon Macomber.

Macomber appealed his apparent battery guilty plea to the Warden of Lansing Correctional Facility and ultimately to the Secretary of Corrections. In his pro se appeal, Macomber alleged that Hunt amended his fighting charge to battery without providing him notice of this amendment. Macomber asserted that at the outset of his disciplinary hearing, Hunt showed him his disciplinary report, asked him if the report was about him, and then asked him to sign and initial the form requiring him to admit his guilt and waive his right to an evidentiary hearing. Macomber alleged that after Hunt asked him to do these things, Hunt said nothing else to him before he confirmed that the disciplinary report was about him and signed and initialed the form. In his appeal Macomber asserted that immediately after signing this form, however, Hunt announced that he had amended the fighting charge to battery. Macomber argued that when he signed and initialed the form admitting his guilt and waiving his right to an evidentiary hearing, he believed that he was pleading guilty to his original dangerous contraband and fighting charges.

Based on these contentions, Macomber argued that Hunt's conduct constituted a substantial error contrary to K.A.R. 44-13-202(a)-a provision that requires "notice [be] given to the inmate" upon a hearing officer's amendment of the inmate's charges. Macomber asserted that, had he known Hunt planned on amending his fighting charge to battery, he would not have pled guilty but would have instead challenged his battery charge by alleging self-defense. In consequence, Macomber asked that the Secretary reverse his battery conviction and remand for a new disciplinary hearing where he could defend himself against the amended battery charge.

The Secretary rejected Macomber's argument, finding that no substantial error entitled Macomber to appeal his battery guilty plea. As a result, Macomber moved for relief under K.S.A. 60-1501 in Leavenworth County District Court. On April 27, 2018, the district court clerk issued a writ of habeas corpus to the Warden, requiring an answer within 20 days. After obtaining an extension of time, the Warden filed an answer denying the petition.

Since the Warden's answer to Macomber's petition was not verified, as required by law, Macomber filed a motion for default judgment on his petition. After holding a hearing, the district court denied Macomber's motion for default judgment. But before any further proceedings could occur on the petition in Leavenworth County, the Secretary transferred Macomber from Lansing to El Dorado Correctional Facility. Subsequently venue for Macomber's petition was changed to Butler County District Court.

In his K.S.A. 60-1501 petition, Macomber repeated the arguments within his appeal to the Secretary. He added that his battery conviction was not supported by his disciplinary report, which did not explicitly state that he made improper physical contact with the other inmate during their fight. Additionally, he asserted that if given the opportunity to present evidence on his K.S.A. 60-1501 petition, two inmates as well as a corrections officer would testify on his behalf. Sam Cline, the Warden of the prison in which Macomber resided at that time, responded that Macomber's "claims [were] not credible and . . . should be dismissed."

Ultimately the district court in Butler County agreed with Warden Cline and summarily dismissed Macomber's K.S.A. 60-1501 petition. In doing so, the district court made the following findings against Macomber:

"To sign a document without reading is no excuse and not a defense absent willful fraud or deliberate misrepresentation. Macomber's claim that he failed to understand what he was signing lacks credibility. He carefully initialed the eight separate boxes and the form indicates that seven of the eight statements were read out loud to him.

"When all is said and done, Macomber's objection is really an after-the-fact claim that he inadvertently pleaded guilty to what turned out to be a battery charge to which he thought he would have a defense. Put another way, he believed self-defense would not be available to a fighting charge.

"The differences that Macomber attempts to make between the prison offenses of Battery and Fighting are distinctions without a significant difference. Both involve violent conduct. Battery is the unlawful touching of another person done in a rude or angry manner. Fighting is brawling, exchanging blows or engaging in hitting or punching each other. Both are Class One prison offenses and carry identical penalties. Contrary to Macomber's argument, a claim of self-defense could have been made to either. As an aside, asserting such a defense, practically speaking, could well have been an exercise in futility given the sworn disciplinary report indicating that the reporting officer observed Macomber 'fighting [another inmate] with a homemade weapon in his hand.' Macomber fails [to] show that he was disadvantaged by pleading guilty to one rather than the other."

Macomber timely appealed the summary dismissal of his K.S.A. 60-1501 petition. After he filed his appeal, the district court appointed appellate counsel to represent Macomber.

Analysis

On appeal, Macomber continues to make the same argument that he did below. He first contends that Hunt had him sign and initial the form admitting his guilt and waiving his right to an evidentiary hearing before telling him that he had decided to amend his fighting charge to battery. He then argues that Hunt's conduct constituted "substantial error" as meant under K.A.R. 44-13-703(d) because under K.A.R 44-13-202, a hearing officer must provide notice of any amendment before making such an amendment. He therefore asks this court to either grant his K.S.A. 60-1501 petition or remand to the district court for an evidentiary hearing on his K.S.A. 60-1501 petition because Hunt's conduct (1) resulted in a violation of his due process rights and (2) resulted in him not knowingly entering his battery guilty plea.

In his brief, Warden Cline has essentially adopted the district court's reasoning for summarily dismissing Macomber's K.S.A. 60-1501 petition. He argues that Macomber cannot claim error based on his failure to read the form that he signed and initialed and that resulted in his battery guilty plea. Alternatively, he argues that even if Hunt violated certain KDOC regulations by amending Macomber's fighting charge to battery, any error from the amendment was harmless because ...