GARY THURMAN v. CAROLINE MUDD
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RENDERED:
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001713-MR
GARY THURMAN
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 02-CI-00187
v.
CAROLINE MUDD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
McANULTY, JUDGE:
Appellant Gary Thurman, an inmate at
Northpoint Training Center, brings this appeal from the denial
of his petition for declaration of rights in the Marion Circuit
Court.
Appellant alleged below that he was illegally penalized
following a prison disciplinary hearing.
We affirm because we
believe the Marion Circuit Court correctly interpreted the
governing administrative rules.
Our standard of review of prison disciplinary actions
is whether some evidence supports the decision of the prison
disciplinary body.
Superintendent, Mass. Corr. Inst., Walpole
v. Hill, 472 U.S. 445, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985);
Smith v. O'Dea, Ky. App., 939 S.W.2d 353 (1997).
The facts of
this case briefly are as follows:
Appellant was an inmate at the Marion Adjustment
Center.
Corrections Officer Stephen Epperson was in charge of
checking inmate mail.
He came across a letter from appellant to
a person named Travis Wolfe in which appellant made inquiries
about purchasing drugs.
Corrections Officer Jerry Hayden
investigated the incident on May 8, 2002, and as a result
charged appellant with using mail to obtain money, goods or
services by fraud.
This infraction is a Category V, item 8,
offense under Corrections Policy and Procedures (CPP).
The
write-up was “sent back for more appropriate charge” by the
Marion Adjustment Committee, however, and investigated a second
time on May 11, 2002.
The second investigation resulted in a
charge of conspiring with another to commit the offense of
possession or promoting contraband, a Category VI, item 4,
inchoate C offense.
Thurman had a hearing on the latter charge before the
Marion Adjustment Committee on May 22, 2002.
The Committee
reduced the offense to possession of drug paraphernalia, a
Category IV, item 22 offense.
The Committee found appellant
guilty of the amended offense and recommended punishment of 30
-2-
days loss of good time credit, suspended for 60 days.
appealed the result to the Warden.
Appellant
Appellee, Warden Caroline
Mudd, ordered the case retried.
An additional investigation was conducted by Officer
Forrest on or about June 12, 2002, which resulted in the same
charge as the second investigation, a Category VI, item 4,
inchoate C offense.
On June 16, 2002, appellant appeared on the
charge before an Adjustment Committee composed of different
personnel.
The Committee found appellant guilty of a Category
VI, item 4, inchoate C offense and penalized him 120 days
forfeiture of good time credit.
Appellant again appealed to
Warden Mudd, who concurred with the Adjustment Committee and
denied the appeal.
On July 26, 2002, appellant filed a declaratory
judgment action in the Marion Circuit Court alleging that the
adjustment decision violated his rights to due process and equal
protection of law.
2003.
The court conducted a hearing on July 1,
The court entered an order on July 25, 2002, and denied
appellant the restoration of good time credits.
The court found
that the warden proceeded properly and that there was evidence
to support the conclusion of the administrative tribunal.
It is
from this decision that appellant appeals.
Appellant alleges that his adjustment decision was
unauthorized because the language of Corrections Policy and
-3-
Procedure (CPP) 15.6, states that an offense or penalty cannot
be raised on a retrial.
Appellant specifically refers to
subsection (F) of that rule, at 6 (c):
The warden or his designee shall not during
his administrative or appellate review:
(c) order a rehearing on a new charge which
carries a higher penalty.
Since appellant received a higher penalty after his appeal, he
alleges that the Warden did what is expressly forbidden by that
rule.
However, we agree with the trial court’s construction
of this rule as applied to appellant’s case.
The court below
stated:
The higher punishment set at the re-trial by
the Adjustment Committee is not in violation
of CPP 15.6(VI)(F)(6). That provision
prohibits the warden from raising the
penalty during administrative or appellate
review. The higher punishment was the
result of a new trial before the Adjustment
Committee, not the actions of the warden.
We agree that the CPP provision in question prevents the warden
from reviewing a case and instituting a higher charge as a
result of the review.
But we concur that it establishes no
prohibition on the warden to order a new trial on the same
charge, as was done in this case.
CPP 15.6 (VI)(F)(5)(f) states
that the warden may “remand the charge for a new hearing before
a different Adjustment Committee[.]”
-4-
CPP 15.6(VI)F)(8) also
gives the warden the “authority at any time to order the
disciplinary report to be vacated upon justification and may
allow it to be re-investigated or reheard[.]”
The warden’s order of a retrial in this case in fact
resulted in appellant being retried on the same charge.
Because
we agree that the warden acted properly under the applicable
regulations, we find no error.
For the foregoing reasons, we affirm the order of the
Marion Circuit Court which denied appellant’s petition for
declaration of rights.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gary Thurman, Pro Se
Burgin, Kentucky
C. Mike Moulton
Moulton & Long, PLLC
Elizabethtown, Kentucky
-5-
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