Worthen v. State

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: CHAPEL; LANE; JOHNSON; LANE; JOHNSON
• Citation: Worthen v. State, 964 P.2d 904, 1998 OK CR 37 (Okla. Crim. App. 1998)
• Decision Date: 11 August 1998
• Docket Number: No. F-97-607,F-97-607
• Parties: 1998 OK CR 37 Sidney Allen WORTHEN, Appellant, v. STATE of Oklahoma, Appellee.

Page 904

964 P.2d 904

1998 OK CR 37

Sidney Allen WORTHEN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-97-607.

Court of Criminal Appeals of Oklahoma.

Aug. 11, 1998.

Rehearing Denied Sept. 10, 1998.

Robert G. Perine, Norman, for Defendant at trial.

R. Richard Sitzman, Ronald E. Christensen, Asst. Dist. Attys., Cleveland County Dist. Atty.'s Office, Norman, for State at trial.

Allen Smith, Appellate Defense Counsel, Norman, for Appellant on appeal.

W.A. Drew Edmondson, Atty. Gen., Jennifer A. Blakeney, Asst. Attys. Gen., Oklahoma City, for Appellee on appeal.

CHAPEL, Presiding Judge.

¶1 Sidney Allen Worthen was tried before a court and convicted of Escape from a Penal Institution in violation of 21 O.S.Supp.1994, § 443(B), in the District Court of Cleveland County, Case No. CRF-93-1738. The Honorable Tom A. Lucas sentenced Worthen to four (4) years imprisonment. Worthen appeals from this Judgment and Sentence.

¶2 Worthen raises the following two propositions of error in support of his appeal: ¹

I. Worthen's conviction for escape from a penal institution should be reversed because his incarceration was in violation of law; and

II. Worthen's criminal prosecution for escape, following his prison disciplinary sanction arising from the same conduct, violates the Fifth Amendment's double jeopardy prohibition.

¶3 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that neither reversal nor modification is required under the law and evidence and affirm. In reaching our decision, we find in Proposition I that the necessary authority was present for Worthen's confinement. ² However, we take this opportunity to clarify the law regarding the double jeopardy issue raised in Proposition II.

¶4 Worthen claims in Proposition II that he cannot be criminally prosecuted for escape after being punished in a prison disciplinary proceeding for the same conduct. The United States Supreme Court recently restated the appropriate double jeopardy analysis in Hudson v. United States. ³ While the holding in Hudson does not apply here because that case involved civil penalties rather than prison disciplinary sanctions, we apply the Court's reasoning. Using the Hudson test, we conclude that criminal prosecution for escape following prison disciplinary proceedings does not violate double jeopardy where prison authorities do not substantively alter the conditions of a defendant's original sentence.

¶5 Under Hudson, the threshold question is one of statutory interpretation. Initially we must decide whether the Legislature intended specifically or by implication to establish a civil remedy or a criminal penalty. ⁴ Then, we determine whether the statutory scheme is so punitive in purpose or effect as to transform a civil remedy into a criminal penalty. ⁵ The Hudson Court outlined seven factors to use in making the latter determination: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play on a finding of scienter; (4) whether its operation promotes the traditional aims of punishment (retribution and deterrence); (5) whether the behavior to which it applies is already a crime; (6) whether one may assign to it an alternative purpose other than punishment; and (7) whether it appears excessive in relation to the alternative purpose assigned. ⁶ These factors must be considered in light of the relevant statute, and are only relevant if we determine the Legislature intended a sanction to be civil in nature. ⁷

¶6 The sanctions imposed against Worthen by the prison authorities were authorized by 21 O.S.1991, 443a, which provides that escaped prisoners who have been recaptured "shall be punishable by the prison authorities ... provided that such punishment shall not be cruel or unusual." ⁸ In determining whether the legislature intended this statute to be civil or criminal, we look first at the statute itself. The cited language indicates the legislature intended sanctions under this statute to be a form of punishment. The statute is included in the Oklahoma Penal Code, and immediately follows the provision criminalizing escape from a penal institution. The Legislature clearly intended punishment under this section to be criminal in nature. This determination ends the analysis, and we need not proceed to the second step of Hudson or apply the seven factors above. In Hudson, the sanction in question was civil in nature. Hudson implies that, where a statute is determined to be criminal, traditional double jeopardy analysis should apply.

¶7 Oklahoma generally uses the same transaction test when an accused is subjected to multiple trials for the same offense and the same evidence test where a series of acts are involved and the accused is charged with several counts in a single information. ⁹ The Supreme Court has expanded double jeopardy to include sanctions imposed in proceedings other than criminal trials. ¹⁰ Here, after conducting a prison disciplinary proceeding, prison authorities punished Worthen under Section 443a for the act of escape by imposing 30 days of disciplinary segregation and revoking his earned credits. The State subsequently imposed an additional penalty in a criminal prosecution for the same act of escape. The issue is whether the subsequent criminal prosecution violated double jeopardy.

¶8 The same transaction test appears appropriate here. Although there were not multiple trials, Worthen was subjected to criminal prosecution after punishment was imposed in a prison disciplinary proceeding. The disciplinary punishment was imposed pursuant to a criminal statute in which the Legislature intended to impose criminal punishment. Worthen's subsequent criminal prosecution does not violate double jeopardy because the disciplinary punishment was no more than a mere alteration of the conditions under which his sentence is being served. Prison authorities may punish Worthen for escaping by altering the conditions of his original sentence by changing his level of confinement or revoking his good-time credits. ¹¹ Worthen's criminal prosecution for escape following disciplinary punishment does not violate double jeopardy, and this proposition is denied.

DECISION

¶9 The Judgment and Sentence of the trial court is AFFIRMED.

STRUBHAR, V.P.J., concurs.

LUMPKIN, J., concurs in part/dissents in part.

LANE, J., concurs in results.

JOHNSON, J., specially concurs.

LUMPKIN, Judge, concurs in part/dissents in part.

¶1 I can concur only in the result reached in this case and must dissent to the Court's aberrant reasoning.

¶2 In its attempt to find a way to apply Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), to a situation to which it does not apply the Court has attempted to fit the proverbial square peg into a round hole. In doing so, the Court becomes the first court in the history of the United States to find there are any double jeopardy implications related to prison disciplinary proceedings.

¶3 Upon review of applicable caselaw, I find the reasoning in this opinion inherently wrong for two reasons: (1) double jeopardy does not apply to prison disciplinary proceedings; and (2) even if Hudson implicates application of its holding to prison disciplinary proceedings, the opinion wrongly applies it and disregards facts of Hudson, i.e. the administrative proceedings by the office of the comptroller of the currency were deemed by the Court to be civil in nature, even if a fine was imposed.

¶4 It is recognized within the federal circuit courts that double jeopardy does not apply to prison disciplinary proceedings. See United States v. Galan, 82 F.3d 639 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 179, 136 L.Ed.2d 119 (1996). In arriving at this consensus, the courts have determined that the "bar against double jeopardy does not preclude criminal prosecution for conduct for which prison authorities have already imposed administrative discipline". United States v. Brown, 59 F.3d 102, 103 (9th Cir.1995), citing to United States v. Apker, 419 F.2d 388 (9th Cir.1969). In discussing the Halper argument, which was addressed in Hudson, the Court in Brown stated:

we conclude that these problems do not arise, because the prohibition against double jeopardy does not bar criminal prosecution for conduct that has been the subject of prison disciplinary sanctions for two independent reasons: 1) even if the sanctions were 'punishment,' they were integral parts of Brown's single punishment for armed robbery; and 2) the sanctions are not punishment for purposes of double jeopardy because they are solely remedial.

The court in Brown focused on the remedial nature of prison disciplinary proceedings and stated further, "in the prison context, such sanctions can still be explained solely as serving the government's remedial purpose of maintaining institutional order--they are designed to punish only insofar as such sanctions enable the government to fulfill its remedial goals". Brown, 59 F.3d at 105. As referenced in Brown, the Court in Garrity v. Fiedler, 41 F.3d 1150 (7th Cir.1994), cert. denied, 514 U.S. 1044, 115 S.Ct. 1420, 131 L.Ed.2d 303 (1995), addressed the impracticalities of prison disciplinary proceedings implicating double jeopardy concerns. The Court stated:

Prison administrators must have the ability to discipline a prisoner for violating institutional regulations, and the State must have the ability to prosecute the prisoner for the same conduct at a later date; combining the two proceedings would not be feasible. The prison disciplinary process determines whether the defendant has violated the conditions of his incarceration and is designed to maintain institutional security and order. A criminal prosecution is designed to punish the defendant for a violation of the criminal...