Buenabenta v. Neet

160 P.3d 290, 2007 Colo. App. LEXIS 188, 2007 WL 416294
CourtColorado Court of Appeals
DecidedFebruary 8, 2007
DocketNo. 05CA1090
StatusPublished
Cited by4 cases

This text of 160 P.3d 290 (Buenabenta v. Neet) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buenabenta v. Neet, 160 P.3d 290, 2007 Colo. App. LEXIS 188, 2007 WL 416294 (Colo. Ct. App. 2007).

Opinion

Opinion by

Judge TERRY.

Inmate, Louis Buenabenta, appeals from the district court's judgment rejecting his challenges to the prison disciplinary actions taken by defendants, Gary Neet, Gloria Mas-terson, Robert Allen, Lisa Lehn, Richard Martinez, and Whitman West, all of whom are prison officials. We affirm.

I.

On May 2, 2008, inmate, who was confined at the Fremont Correctional Facility in Cafi-on City, Colorado, was involved in two incidents that resulted in Colorado Department of Corrections (DOC) convictions. The first conviction was for possession of a syringe or drug paraphernalia, for which he was sentenced to seventeen days punitive segregation with a seven-day credit for time served. The second conviction was for a charge of tattooing or possession of tattooing paraphernalia, for which he received twenty days punitive segregation. The sentences were to run consecutively.

Shortly thereafter, inmate received a letter from the warden informing him that his visitation privileges were suspended for three years because he had been convicted of three drug-related offenses during his incarceration.

Inmate later received a Notice for Administrative Segregation (Notice). As grounds for imposing administrative segregation, the Notice referenced inmate's DOC convictions for drug-related offenses, and alleged that inmate presented a security threat to the

general population of the facility. At the close of the administrative segregation hearing, a determination was made to place inmate in administrative segregation. After an intra-facility appeal initiated by inmate, the administrative segregation classification was upheld.

This action was initiated in the Fremont County District Court under C.R.C.P. 106. In its detailed and thorough ruling on inmate's C.R.C.P. 106 complaint, the district court rejected inmate's challenges to his convictions arising from the events of May 2, 2008; to the suspension of his visitation privileges; and to the decision assigning him to maximum security administrative segregation.

IL.

Inmate first contends that his convie-tions for possession of syringe or drug paraphernalia, on the one hand, and tattooing or possession of tattooing paraphernalia, on the other hand, arose out of the same incident, and thus that the sentences imposed for each violation should run concurrently. We disagree.

A disciplinary hearing is a quasi-judicial activity that may be reviewed pursuant to C.R.C.P. 106(a)(4). Kodama v. Johnson, 786 P.2d 417 (Colo.1990); Villa v. Gunter, 862 P.2d 1033 (Colo.App.1993). Our review of the quasi-judicial actions of the prison disciplinary board, like that of the district court, is limited to determining whether the board exceeded its jurisdiction or abused its discretion, based on the evidence in the ree-ord available to the board. - C.R.CP. 106(a)(4)(I); Kodama, supra. The decisions of the prison disciplinary board will be upheld if some evidence in the record supports its conclusion. Kodama, 786 P.2d at 420 (citing Superintendent v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985)).

In two separate hearings, the prison disciplinary board determined that inmate violated the following two sections of DOC Code of Penal Discipline (COPD), Admin. Reg. 150-Ol:

Class II Offenses

[293]*293(11) Possession of Syringe or Drug Paraphernalia-an offender commits this offense when he possesses a syringe or other implement capable of injecting a substance under the skin of any individual, including himself, and/or possesses an article, equipment, or apparatus capable of administering a dangerous drug or volatile substance.
[[Image here]]
(20) Tattooing and/or Possession of Tattooing Paraphernalia-an offender commits this offense when he receives or gives a tattoo or has in his possession any tattooing paraphernalia to include but not limited to patterns, ink, needles, or altered electrical appliances.

The Code also states: "Sanctions should be imposed concurrently for cumulative offenses arising out of the same act and/or incident." COPD § IV(E)@B)(p)(10).

Inmate claims that the two convictions arose out of the same incident because the search of his cell, which resulted in the discovery of tattoo paraphernalia, was performed as a direct result of the discovery earlier that evening of his possession of drug paraphernalia. In support of this claim, inmate relies on the "same criminal episode" test articulated in Jeffrey v. District Court, 626 P.2d 631 (Colo.1981), and People v. Dalton, 70 P.3d 517 (Colo.App.2002). Under that test, " 'a series of acts arising from the same criminal episode' would include physical acts that are committed simultaneously or in close sequence, that occur in the same place or closely related places, and that form part of a schematic whole." Jeffrey, 626 P.2d at 639; see Dalton, 70 P.3d at 522.

Although the "same criminal episode" test was applied in Jeffrey and Dalton to determine the appropriateness of the joinder of offenses under Crim. P. 8, we find it instructive in analyzing inmate's claim, especially because the language of Crim. P. 8(a)(1) and 8(b) (referencing separate counts based on "the same act or series of acts arising from the same eriminal episode") bears similarity to the language of COPD § IV(E)(®8)(p)(10) (referencing "cumulative offenses arising out of the same act and/or incident").

Here, the events that led to inmate's drug paraphernalia conviction arose on May 2, 2008, when a corrections officer observed him tampering with an electrical box in the janitor's closet. The electrical box was searched by a corrections officer, who found an altered medical syringe inside. As a result, inmate was placed in segregation.

The events leading to the tattoo conviction occurred later that same evening, when a search of inmate's cell revealed that he had hidden a tattooing device and related materials among his personal effects.

Inmates are subject to having their cells searched at any time, with or without cause. DOC Admin. Reg. 300-06. While the search of inmate's cell may have been prompted in part by the drug paraphernalia discovery earlier that evening, that fact in itself does not render the two offenses part of the same act or incident under COPD § IV(E)(B)(p)(10).

The board could reasonably conclude that the offenses in issue were two separate offenses. The items giving rise to the offenses were secreted in separate locations. The syringe was found in a janitor's closet, and the tattoo materials were found in inmate's cell, The two offenses did not necessarily involve related activities: one set of materials was for the purpose of injecting drugs, and the other for the purpose of tattooing. Under the factors articulated in Jeffrey, supra, and Dalton, supra, they were properly treated as separate offenses. See also People v. Matheson, 671 P.2d 968

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Cite This Page — Counsel Stack

Bluebook (online)
160 P.3d 290, 2007 Colo. App. LEXIS 188, 2007 WL 416294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buenabenta-v-neet-coloctapp-2007.