|
COURT OF APPEALS DECISION DATED AND RELEASED November 27, 1996 |
NOTICE |
|
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. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2843
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
STATE OF WISCONSIN ex
rel.
RICHARD D. WINTERS,
JR.,
Petitioner-Appellant,
v.
MARIANNE COOKE,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Sheboygan County:
JOHN B. MURPHY, Judge. Affirmed
in part; reversed in part and cause remanded.
Before Anderson, P.J.,
Brown and Nettesheim, JJ.
PER
CURIAM. Richard D. Winters, Jr. has appealed from a trial
court order dismissing his petition for a writ of certiorari and affirming a
prison disciplinary committee's decision finding him guilty of battery of
another inmate in violation of Wis. Adm.
Code § DOC 303.12 and "group resistance and petitions" in violation
of Wis. Adm. Code § DOC 303.20.[1] The finding that Winters violated the rule
against "group resistance and petitions" constituted a determination
that he committed the battery at the direction of a gang leader. As a result of the findings, Winters was
given eight days of adjustment segregation, 360 days of program segregation and
was ordered to pay $313 in restitution for the battered inmate's medical
expenses.
We reverse the portion
of the trial court's order affirming the restitution award and direct that the
matter be remanded to the disciplinary committee to supplement its decision to
show the basis in the record for the restitution award. If no basis exists in the record for the
award, it must be set aside. We affirm
the portion of the trial court's order upholding the remainder of the
committee's decision.
On appeal of a trial
court order sustaining a prison disciplinary decision, we review the decision of
the disciplinary committee independently of the trial court. State ex rel. Whiting v. Kolb,
158 Wis.2d 226, 233, 461 N.W.2d 816, 819 (Ct. App. 1990). Our review of the committee's decision is
limited to the record created before the committee. Id. We
determine: (1) whether the committee
stayed within its jurisdiction; (2) whether it acted according to law; (3)
whether its decision was arbitrary, oppressive or unreasonable and represented
its will rather than its judgment; and (4) whether the evidence was such that
it might reasonably make the decision it did.
Id.
Winters' first
contention is that he was never given a copy of the "Notice of Major
Disciplinary Hearing Rights" form.
However, the record contains such a notice. It includes Winters' signature certifying that he had read the
notice, or had it read to him, and understood it. The notice clearly stated that the hearing would be held not
sooner than two days and not more than 21 days after the date he was given a
copy of the conduct report, which was May 25, 1995. This notice satisfied both Wis.
Adm. Code § DOC 303.81(9) and Winters' due process rights. Saenz v. Murphy, 153 Wis.2d
660, 680-81, 451 N.W.2d 780, 788 (Ct. App. 1989), rev'd on other grounds,
162 Wis.2d 54, 469 N.W.2d 611 (1991).
Winters' claim that he was not given a copy of the notice or adequate
notice of the hearing is therefore not supported by the record, and provides no
basis for relief.
Winters next argues that
he was denied his right to select an advocate from a list of three as required
by Wis. Adm. Code § DOC
303.78(1)(b). However, while the record
does not show the manner in which he received an advocate, it is clear that he
received one. Since he has not shown
that the fairness of the proceeding was affected by the procedure used in
appointing the advocate, the failure to comply with Wis. Adm. Code § DOC 303.78(1)(b), even if true, must be
deemed harmless and does not entitle him to relief. See Wis. Adm. Code §
DOC 303.87.
In reaching this
conclusion, we have considered Winters' argument that his advocate failed to
fulfill her responsibilities by interviewing all necessary witnesses prior to
the disciplinary committee hearing.
Initially, we point out to Winters that there is no right to counsel,
either retained or appointed, in disciplinary proceedings. Wolff v. McDonnell, 418 U.S.
539, 570 (1974). While Department of
Corrections rules provide for the appointment of an advocate, the advocate's
purpose is merely to help the accused understand the charges and in the
preparation and presentation of his or her defense. Wis. Adm. Code §
DOC 303.78(2). The advocate's
responsibilities do not rise to the level of counsel's duties or permit the
inmate to challenge the adequacy of the advocate's assistance under the
standards applicable to effective assistance of counsel.
The record indicates
that Winters' advocate interviewed various witnesses before the hearing. She obtained written statements from
Sergeant Gallert and Lieutenant Harper, two witnesses requested by Winters, and
presented their statements at the hearing.
Two other witnesses requested by Winters appeared in person and
testified at the hearing. Nothing in
the record permits this court to conclude that the advocate was required to
conduct more interviews to assist Winters.
Cf. State ex rel. Meeks v. Gagnon, 95 Wis.2d 115,
126, 289 N.W.2d 357, 364 (Ct. App. 1980) (the failure of an inmate's advocate
to interview every witness with potential information related to a prison fight
does not deny due process).
We also reject Winters'
argument that the findings of guilt should be reversed because Harper, the
staff member who wrote the conduct report, did not appear at the disciplinary
hearing. Winters' request for Harper's
attendance was made more than two days after the notice of disciplinary hearing
and was thus untimely under Wis. Adm.
Code § DOC 303.81(1).[2] Moreover, confrontation and
cross-examination are not due process requirements at a prison disciplinary
hearing, Wolff, 418 U.S. at 568, and an inmate has no
constitutional right to have the preparer of the conduct report appear to
testify in every case. Wisconsin Adm. Code § DOC 303.81(4)
provides that if the officer who reported the rule violation is unavailable at
the time of the hearing, his or her signed statement may be used at the
hearing.[3] In this case, Winters' advocate interviewed
Harper prior to the hearing and recorded the questions and answers in
writing. The questions and answers were
made part of the evidence at the hearing.[4]
Winters next objects to
the use at the hearing of statements from two confidential witnesses who
implicated him in this case. However, Wis. Adm. Code § DOC 303.86(4) provides
that if a witness refuses to testify in person and if the committee finds that
testifying would pose a significant risk of bodily harm to the witness, the
committee may consider a corroborated, signed statement made under oath by the
witness without revealing the witness's identity. It further provides that two anonymous statements by different
persons may be used to corroborate each other.
The disciplinary
committee found that testifying would pose a great risk of bodily harm to the
confidential informants in this case.
In addition, the confidential statements implicating Winters corroborate
each other. As summarized in the
statements given to Winters, each witness who implicated Winters indicated that
he heard Winters say that he hit the victim.
One witness indicated that Winters told him that he had to hit the
victim because the victim had made disrespectful remarks about a gang that
Winters was in and that Winters was ordered to hit the victim by another inmate
known as "New York" (Felix Cuevas).
The other witness indicated that he overheard Winters confront the
victim about statements he had made concerning Cuevas and that Winters said the
victim made disrespectful remarks about a particular gang and would be dealt
with later. This witness also indicated
that he later saw the victim with a black eye and that Winters stated that he
hit him. These statements thus
corroborate each other and were properly relied upon by the disciplinary
committee.
Winters also claims that
the disciplinary committee failed to adequately set forth the reasons for its findings
of guilt and the penalty imposed. We
disagree. In its decision, the
committee stated that it relied upon the statement in the conduct report, the
confidential witness statements and the remaining testimony in finding Winters
guilty of the offenses. In a section
labeled "Reason for Decision," the committee concluded that Winters
was a gang member and that despite his contentions to the contrary his gang was
affiliated with the gang led by Cuevas.
It relied on Winters' admission that he hit the victim as alleged by the
confidential informants and expressly found credible that Winters committed the
battery on Cuevas' orders. It also
delineated the specific sentencing considerations it relied upon in Wis. Adm. Code § DOC 303.83 and
expressly based the penalty imposed by it on the injury that resulted from the
gang activity and battery. These
explanations adequately set forth the reasons for the committee's findings and
disposition.
Winters also challenges
the sufficiency of the evidence to support the findings of guilt. The test on review by certiorari is the
substantial evidence test, under which we determine whether reasonable minds
could arrive at the same conclusion that the committee reached. Whiting, 158 Wis.2d at 233,
461 N.W.2d at 819. That test is
satisfied here. Two confidential
statements indicated that Winters admitted hitting the victim. One of those statements also indicated that
Winters was seen running from the area where the battery occurred. The statements also indicated that Winters
said he committed the battery because of a gang-related disagreement and
because he was ordered to do so by an inmate in the gang. The evidence was thus sufficient to find
Winters guilty of both battery and group resistance and petitions under Wis. Adm. Code §§ DOC 303.12 and
303.20.
While we affirm the
trial court's order upholding the disciplinary committee's findings of guilt
and the adjustment and program segregation ordered by it, we reverse the
portion of the trial court's order affirming the $313 restitution award for
medical expenses. Winters argues that
the restitution award must be reversed because the medical bill for which
restitution was ordered was never entered into evidence at the hearing.
In making its decision,
the disciplinary committee is permitted to consider only the evidence presented
to it and the inmate's records. Wis. Adm. Code § DOC 303.76(6). While the record indicates that the battered
inmate was sent to a hospital for treatment, the State concedes that the record
transmitted on appeal does not show the basis for the disciplinary committee's
selection of $313 as the amount to be awarded for those expenses. The matter therefore must be remanded to the
trial court for remand to the disciplinary committee to designate the evidence
upon which it relied in fixing the amount of restitution.
On remand, the
disciplinary committee must supplement its decision to show the basis in the
record for the restitution award.
However, a remand order in a prison disciplinary proceeding may not
direct the taking of additional evidence if doing so would offend
considerations of due process and fair play.
State ex rel. Lomax v. Leik, 154 Wis.2d 735, 741, 454
N.W.2d 18, 21 (Ct. App. 1990).
Consequently, if no basis exists for the restitution award in the
evidence presented to the committee at the hearing or in the inmate's records,
the award must be set aside. Cf.
Snajder v. State, 74 Wis.2d 312-13, 246 N.W.2d 665, 669 (1976)
(due process does not permit supplementing the record on remand to shore up the
evidence to support a finding of a violation of parole).
By the Court.—Order
affirmed in part; reversed in part and cause remanded.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Winters was initially also found guilty of conspiracy in violation of Wis. Adm. Code § DOC 303.21. However, the record indicates that the finding of conspiracy was subsequently expunged by the Department of Corrections on the ground that it was a lesser-included offense of the "group resistance and petitions" charge.
[2] Winters appears to argue that if a list of advocates had been timely presented to him pursuant to Wis. Adm. Code § DOC 303.78(1)(b), he would have made his selection and known who his advocate was, and then could have timely requested his witnesses through the advocate pursuant to Wis. Adm. Code § DOC 303.81(1). However, Wis. Adm. Code § DOC 303.81(1) provides that if an inmate does not have an advocate, his or her request for witnesses must be sent directly to the security office, and it must be done within two days of the service of notice. If Winters did not have an advocate within two days of service of the notice of hearing, he should have sent his request for witnesses directly to the security office.