Dawson v. Bruce

138 P.3d 1234, 36 Kan. App. 2d 221, 2006 Kan. App. LEXIS 660
CourtCourt of Appeals of Kansas
DecidedMay 19, 2006
DocketNo. 95,032
StatusPublished
Cited by2 cases

This text of 138 P.3d 1234 (Dawson v. Bruce) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawson v. Bruce, 138 P.3d 1234, 36 Kan. App. 2d 221, 2006 Kan. App. LEXIS 660 (kanctapp 2006).

Opinion

McAnany, J.:

Justin L. Dawson appeals the district court’s summary denial of his K.S.A. 60-1501 petition in which he alleged violations of his constitutional rights in a prison disciplinary hearing. We affirm.

A prison official found a plastic bag inside a trash can in a parking lot at the Hutchinson Correctional Facility. The bag contained tobacco, snuff, lighters, and a set of binoculars. The items were marked with invisible ink and florescent dust and returned to a trash can near the prison’s pedestrian gate. It was inmate Dawson’s job to empty trash cans at the prison. Dawson and Ramonne Kirksey, another inmate, were observed emptying the trash can, taking the contents into one of the prison buildings, and locking the door to the building.

Prison officials gained access to the building and examined a number of inmates using a black light which illuminates florescent dust. Eight inmates were found to have the dust on their hands. Inmates Dawson, Kirksey, and Jan Kilboume had the most. The officers concluded that the dust on the hands of the first five came from incidental contact and that Dawson, Kirksey, and Kilbourne had direct contact with the contraband. The officers searched the building and recovered the contraband.

Dawson was accused of violating K.A.R. 44-12-1001, which makes a violation of any state or federal felony statute a class I offense. Dawson was accused of violating K.S.A. 2005 Supp. 21-3826, having unauthorized possession of contraband in a correctional institution, a felony. Dawson was found guilty following the prison disciplinary hearing and was sentenced to 45 days of disciplinaiy segregation, 60 days of restriction, 6 months’ loss of good time credit, and a $20 fine. After his conviction was affirmed by the Secretary of Corrections, he filed a K.S.A. 60-1501 petition in the district court. The district court summarily denied Dawson’s petition, finding that his conviction was supported by some evi[223]*223dence and the minimal due process rights required at a disciplinary hearing were met. Dawson now appeals.

Dawson claims he was denied due process when prison authorities refused his request to call a certain witness and when he was denied the assistance of counsel. He also claims there was insufficient evidence against him and that prison officials failed to follow the Kansas Administrative Regulations.

Whether Dawson was afforded due process is a question of law over which our review is unlimited. Anderson v. McKune, 23 Kan. App. 2d 803, 807, 937 P.2d 16 (1997). The due process rights of a prisoner in a disciplinary hearing are not as extensive as the rights of a defendant in a criminal proceeding. Hogue v. Bruce, 279 Kan. 848, 851, 113 P.3d 234 (2005). The due process rights which apply in prison disciplinary proceedings are the rights to an impartial hearing, to receive a written notice of the charges to enable the inmate to prepare a defense, to call witnesses and present documentary evidence, and to receive a written statement of the findings of fact and the reasons for the decision. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 24 P.3d 128 (2001).

Refusal to Call Witness

Dawson filed an “Inmate Request For Witness” form, requesting that he be permitted to call Sgt. Rosiere as a witness. He indicated that Rosiere could testify that Dawson’s job was to pick up trash and to empty trash barrels. Dawson’s request was denied on the grounds that this testimony would be irrelevant under K.A.R. 44-13-405a(a)(7).

Hearing officers have broad discretion in considering witness requests. K.A.R. 44-13-405a(b). Courts will not interfere with the activities of prison officials absent an abuse of their discretion. Levier v. State, 209 Kan. 442, 450-51, 497 P.2d 265 (1972).

The regulation cited by the hearing officer, K.A.R. 44-13-405a(a)(7), permits the hearing officer to exercise broad discretion in considering an inmate’s request to call a prison employee as a witness. The hearing officer must balance the prison’s need to avoid unnecessary testimony against the inmate’s interest in avoiding sanctions that may result from the hearing.

[224]*224The testimony from Dawson s proposed witness was unnecessary. Dawsons own testimony on this issue was uncontroverted. Corroborating testimony from Sgt. Rosiere was unnecessary. The hearing officer did not abuse his discretion in denying Dawson’s witness request.

Assistance of Counsel

Dawson asked the hearing officer for staff assistance, and his request was denied. The hearing officer determined that, pursuant to K.A.R. 44-13-408, there was no need for assistance. This regulation requires the hearing officer to appoint a staff member to assist an inmate at the disciplinary hearing if, at any stage of the hearing, the hearing officer finds that the inmate is incapable of self-representation.

Dawson relies upon dicta from In re Habeas Corpus Application of Pierpoint to support this claim. In that case, the court commented:

“It is only in the exceptional case, where the inmate is completely unable to represent his interests or the inmate faces possible felony charges as a result of the disciplinary violation, that due process requires an attorney to represent the interests of such inmates.” 271 Kan. at 634.

While the general rule is that we are duty bound to follow Supreme Court precedent, that duty does not extend to dicta in a Supreme Court opinion. Accordingly, we must consider the reference to the right to counsel in light of the issue involved at the time. “ ‘What is said in an opinion or the syllabus thereof always is to be read and interpreted in the light of the facts and questions presented in the case. [Citations omitted].’ ” Dallam v. Hedrick, 16 Kan. App. 2d 258, 263, 826 P.2d 511 (1990). Although dicta is respected, it does not govern a judgment in a subsequent controversy. U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 527, 802 P.2d 516 (1990).

Pierpoint, a prison inmate who claimed he was minimally educated and could not present an effective defense on his own behalf, claimed he was entitled to counsel based upon Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), and Baxter v. Palmigiano, 425 U.S. 308, 47 L. Ed. 2d 810, 96 S. Ct. 1551 [225]*225(1976). Wolff and Baxter

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Bluebook (online)
138 P.3d 1234, 36 Kan. App. 2d 221, 2006 Kan. App. LEXIS 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawson-v-bruce-kanctapp-2006.