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COURT OF APPEALS DECISION DATED AND FILED |
NOTICE |
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February 5, 1998 |
This opinion is subject to further
editing. If published, the official version will appear in the bound volume
of the Official Reports. |
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Marilyn L. Graves Clerk, Court of Appeals of Wisconsin |
A party may file with the Supreme Court
a petition to review an adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62, Stats. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS DISTRICT IV |
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State
of Wisconsin ex rel. Berrell Freeman,
Petitioner-Appellant, v. Gary
R. McCaughtry,
Respondent-Respondent. |
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APPEAL from an order of the circuit court for Dodge County: joseph e. schultz, Judge. Affirmed.
Before Eich, C.J., Dykman, P.J., and Deininger, J.
PER CURIAM. Berrell Freeman appeals from an order quashing his petition for a writ
of certiorari. The issue is whether the
hearing officer violated Freeman’s due process rights because he: (1) processed the conduct report as a
major violation of the disciplinary code; and (2) failed to consider the
code’s dispositional guidelines. We
conclude that Freeman’s due process rights were not violated. Therefore, we affirm.
Freeman was charged with violating Wis. Adm. Code §§ DOC 303.35 (alteration of property) and 303.47 (possession of contraband) following the search of his cell, in which a set of broken headphones and a cassette tape were found with Freeman’s inmate numbers scratched onto them. The security director decided to process the conduct report as a major violation of the disciplinary code. The hearing officer found that Freeman “knowingly and intentionally had altered cassette tapes in his possession and he also had an altered headset.” Freeman was found guilty of both offenses and was placed in adjustment segregation for three days and program segregation for ninety days.
The warden affirmed the decision, and Freeman filed a petition for a writ of certiorari with the circuit court. The circuit court quashed the petition and ruled that Freeman’s failure to exhaust his administrative remedies compelled dismissal under § 801.02(7), Stats. Freeman appeals.[1]
Freeman contends that
he was denied due process of law because his conduct report was processed as a
major violation of the disciplinary code.
See Wis. Adm. Code § DOC
303.76. However, Freeman waived this
objection because he waived his right to a formal due process hearing and
failed to raise this issue until he challenged the decision in circuit
court. See Saenz v. Murphy,
162 Wis.2d 54, 63-64, 469 N.W.2d 611, 615-16 (1991).
Freeman also contends
that the disposition imposed was unduly harsh and that the hearing officer
failed to consider the dispositional guidelines of Wis. Adm. Code §§ DOC 303.83 and 303.84. Because he had not been charged with any
major disciplinary violations during the preceding year, Freeman contends that
the only explanation for such an allegedly harsh disposition is that the
hearing officer disliked him.
Certiorari review of a
prison disciplinary decision focuses on whether there was substantial evidence
to support the decision,[2] and allows reversal if: (1) there was a denial of due process;
(2) the decision was arbitrary, oppressive or unreasonable; or
(3) the violation was not processed in compliance with the applicable
rules. See State ex rel. Staples
v. DHSS, 128 Wis.2d 531, 534, 384 N.W.2d 363, 364 (Ct.
App. 1986).
We conclude that the
decision was supported by substantial evidence and that there was no denial of
Freeman’s due process rights. The
maximum disposition for the alteration of property is eight days of adjustment
segregation and 180 days of program segregation, and for possession of
contraband, six days of adjustment segregation and 120 days of program segregation. Wis.
Adm. Code § DOC 303.84.
For both violations, Freeman received a total of three days adjustment
segregation and ninety days program segregation. Because this disposition was less than one-third of the
collective maximum permissible disposition, we are not persuaded by Freeman’s
contentions that the disposition was arbitrary, oppressive or unreasonable, or
that the dispositional guidelines were ignored.
By the Court.—Order affirmed.
This opinion will not be published. See Rule 809.23(1)(b)5, Stats.