Snavely v. Heimgartner

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NOT DESIGNATED FOR PUBLICATION

No. 117,329

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILLIAM H. SNAVELY,
Appellant,

v.

JAMES HEIMGARTNER,
Appellee.


MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed December 29,
2017. Affirmed.

Troy A. Unruh, of Wilbert and Towner, P.A., of Pittsburg, for appellant.

Joni Cole, legal counsel, El Dorado Correctional Facility, for appellee.

Before BRUNS, P.J., SCHROEDER, J., and HEBERT, S.J.

PER CURIAM: William H. Snavely, an inmate of the El Dorado Correctional
Facility (EDCF), was discovered to be in possession of sharpened crochet hooks. After a
prison disciplinary hearing, Snavely was found guilty of violating K.A.R. 44-12-208
relating to the alteration or misuse of state property. Snavely challenged the finding by
filing a K.S.A. 60-1501 habeas corpus petition in district court. After holding an
evidentiary hearing, the district court dismissed Snavely's petition.

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Snavely appeals the dismissal of his petition, claiming that the denial of his
request for witness testimony at the disciplinary hearing violated his due process rights
and that he was wrongfully convicted of violating K.A.R. 44-12-208.

We find no due process violation and further find that some evidence would
support the finding that Snavely violated K.A.R. 44-12-208. The judgment of the district
court dismissing the K.S.A. 60-1501 habeas corpus petition is affirmed.

Factual and Procedural Background

As noted above, Snavely is an inmate at EDCF. On June 22, 2014, a corrections
officer discovered Snavely in possession of several crochet hooks which had been altered
by sharpening them to a point. Two of the crochet hooks were approximately six inches
long and several were broken. Snavely was also in possession of four plastic needles that
had also been sharpened to a point. Snavely initially received a disciplinary report
alleging that he possessed dangerous contraband in violation of K.A.R. 44-12-901.
However, after it was determined that he was using the altered hooks for knitting and not
as a weapon, the charge was amended to a violation of K.A.R. 44-12-208 which pertains
to alteration or misuse of state property.

During the disciplinary hearing, Snavely denied personally altering the crochet
hooks and testified that his bunkmate had sharpened the hooks in a pencil sharpener.
Snavely further testified that he had shown the crochet hooks to EDCF staff member
Mental Health Activities Specialist Hines after his bunkmate had altered them. Hines,
however, testified that she had never seen the altered hooks until they were shown to her
after being confiscated from Snavely. Snavely then claimed that he did not realize that
the hooks could not be altered or modified.

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In finding Snavely guilty of violating K.A.R. 44-12-208, the hearing officer noted:
"Due to Snavely being in possession of altered crochet hooks which were assigned to him
and in his control and his admitting to having them, I find Snavely guilty of being in
possession of altered state property that was altered while in his possession and his
control." Snavely was sentenced to seven days in disciplinary segregation, which was
suspended, and assessed a $5 fine. Snavely appealed his conviction to the Secretary of
Corrections who upheld the hearing officer's judgment.

Snavely thereafter filed petitions for a writ of habeas corpus pursuant to K.S.A.
60-1501, first on November 26, 2014, and again on March 6, 2015. The district court
determined that Snavely's petitions asserted four claims: (1) the hearing officer was
biased; (2) he was improperly denied witnesses during his disciplinary hearing; (3) his
property was seized or destroyed; and (4) he was wrongfully convicted of altering or
misusing state property. The district court consolidated the petitions for an evidentiary
hearing which was commenced on January 6, 2016.

The district court first determined that Snavely failed to show that the hearing
officer was biased or his property was wrongfully seized. (These issues are not included
in Snavely's appeal to this court.) The court directed the parties to address the issue of
denial of Snavely's requested witnesses. Snavely testified that he made a written request
for four witnesses to testify at the disciplinary hearing: staff members ASI Jeffrey and
CSII Farmer, and two inmates, Douglas and Derrit. The hearing officer determined that
the proposed testimony of Jeffrey and Farmer would be irrelevant and so notified
Snavely. Snavely had requested the two inmates testify in writing but received no
response from the hearing officer. At the district court hearing, the hearing officer
confirmed the reason for denial of the inmate testimony was not included in the record of
the hearing but testified the proposed testimony that inmate Douglas had permission to
have sharpened crochet hooks was not relevant to the question of whether Snavely
possessed or altered hooks.
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The district court denied the relief requested by Snavely's petition for habeas
corpus, noting in the journal entry:

"The hearing officer may have erred by not noting the denial of a requested
witness in the record, but it is the Court's determination that the expected testimony of the
witness was not relevant to the charge and the denial was based upon the sound judgment
of the hearing officer. The omission was harmless. The facts supported and some
evidence supporting the conviction. Any error referencing the appropriate Kansas
Administrative Regulation number was harmless."

Snavely timely appealed from the district court's judgment and raises two basic
issues.

Denial of Requests for Witness Testimony

Snavely first contends his due process rights under the Fourteenth Amendment to
the United States Constitution were violated when he was improperly denied the right to
call witnesses at his disciplinary hearing.

The issue of whether a petitioner under K.S.A. 60-1501 has been denied due
process is a question of law over which we exercise unlimited review. Hogue v. Bruce,
279 Kan. 848, 850, 113 P.3d 234 (2005). We first note that Snavely was assessed a $5
fine in the instant case which, even though a minimal amount, constitutes a deprivation of
property, thereby implicating examination under the Due Process Clause. See
Washington v. Roberts, 37 Kan. App. 2d 237, 240-41, 152 P.3d 660 (2007). Our next task
is then to determine the extent and nature of the process due. Hogue, 279 Kan. at 851.




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The Kansas Supreme Court has determined:

"Due process procedures in prison disciplinary hearings include an impartial
hearing, a written notice of the charges to enable inmates to prepare a defense, a written
statement of the findings by the factfinders as to the evidence and the reasons for the
decision, and the opportunity to call witnesses and present documentary evidence." In re
Habeas Corpus Application of Pierpoint, 271 Kan. 620, Syl. ¶ 6, 24 P.3d 128 (2001).

The right of an inmate to call witnesses is critical because most disciplinary
hearings turn on issues of fact. Washington, 37 Kan. App. 2d at 245; see Wolff v.
McDonnell, 418 U.S. 539, 566, 94 S. Ct 2963, 41 L. Ed. 2d 935 (1974).

Under K.A.R. 44-13-101(c)(5), an inmate is entitled to have witnesses called to
testify on his or her behalf at a disciplinary hearing subject to certain limitations. When
determining whether to allow an inmate to call another inmate or prison employee to
testify, the hearing officer must "balance the inmate's interest in avoiding loss of good
time and assessment of a fine or placement in disciplinary segregation against the needs
of the facility." K.A.R. 44-13-405a(a). The hearing officer has broad discretion in
determining whether to grant or deny an inmate's witness request. K.A.R. 44-13-405a(b).
The hearing officer can deny the request if the testimony would be irrelevant, immaterial,
or repetitious. K.A.R. 44-13-307(b).

The United States Supreme Court has held the "Due Process Clause of the
Fourteenth Amendment requires that prison officials at some point state their reason for
refusing to call witnesses requested by an inmate at a disciplinary hearing." Ponte v. Real,
471 U.S. 491, 492, 105 S. Ct. 2192, 85 L. Ed. 2d 553 (1985). However, to comply with
due process the reasons are not required to be "placed in writing or otherwise exist as a
part of the administrative record at the disciplinary hearing." Ponte, 471 U.S. at 492. The
explanation may be made through testimony presented in court when the decision is
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challenged: "In other words, the prison officials may choose to explain their decision at
the hearing, or they may choose to explain it 'later.'" Ponte, 471 U.S. at 497.

K.A.R. 44-13-307(c) provides the "denial of a request for witness shall be
documented, including the reason or reasons for the denial, either on the request form or
in the disciplinary case record." Here, the record reveals the hearing officer complied
with K.A.R. 44-13-307(c) with regard to Snavely's request for the testimony of staff
members Jeffrey and Farmer by recording the reasons for denial on the witness request
form. However, the hearing officer did not document the reasons for denying the request
for testimony from inmates Douglas and Derrit on either the witness request form or in
the disciplinary case record.

The deviation from an administrative regulation does not constitute a per se due
process violation. Hogue, 279 Kan. at 855. Here, Snavely's due process right to have
reasons for denial of his requested witnesses was preserved by the hearing officer's
testimony during the district court hearing explaining why the proposed testimony of the
two inmates was irrelevant. Ponte, 471 U.S. at 497. Thus, the failure to comply with the
letter of K.A.R. 44-13-307(c) did not rise to a due process violation.

This does not get the hearing officer completely off the hook—we must still
examine "whether the hearing officer acted within his or her discretion in refusing to call
a witness whose testimony would not be relevant or material." Jones v. Heimgartner, No.
113,129, 2015 WL 5036977, at *4 (Kan. App. 2015) (unpublished opinion). "[T]here
must be a factual basis to support the reasons given by prison officials which satisfies the
prison officials' burden of persuasion." Hogue, 279 Kan. at 854; see Frost v. McCune, 44
Kan. App. 2d 661, 664, 239 P.3d 900 (2010).

The testimony of the four witnesses Snavely requested was not relevant to
Snavely's disciplinary proceeding. First, Snavely requested to have inmates Douglas and
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Derrit testify because they were present when inmate Douglas obtained permission to
keep a sharpened crochet hook a week after Snavely received the disciplinary report.
Snavely was charged under K.A.R. 44-12-208, which states: "No inmate shall destroy,
damage, deface, alter, misuse, or fail to return when due any article of property owned by
the state." Whether another inmate was allowed to keep altered state property is not
relevant to whether Snavely in fact altered state property in violation of K.A.R. 44-12-
208. As such, the hearing officer correctly determined the two inmates' testimonies were
irrelevant.

Similarly, the testimony Snavely wished to obtain from staff member Jeffrey was
irrelevant. In his witness request form, Snavely requested staff member Jeffrey to testify
because he sent her the forms requesting certain knitting supplies. The hearing officer
provided the written explanation that the testimony was denied because it was irrelevant
to the alleged violation of altering state property. Then at the district court hearing on
Snavely's habeas corpus petition, Snavely further explained that he wanted Jeffrey to
testify because she initiated the investigation which resulted in the discovery of the
altered crochet hooks. However, what knitting supplies Snavely was allowed to have or
how the search of Snavely was instigated has no relevance to whether Snavely altered or
misused state property. Therefore, the hearing officer was again correct to conclude that
Jeffrey's testimony would be irrelevant.

Finally, Snavely requested staff member Farmer to testify because she signed the
disciplinary report. On his request form to present Farmer's testimony, Snavely states her
testimony was relevant because he was "denied due process of K.A.R. 44-13-201(c)(1)."
The hearing officer denied the request for Farmer's testimony after finding the testimony
was irrelevant because "Snavely was not denied due process."

Snavely's claim here is that the disciplinary report completed by Farmer was
untimely because staff member Hines had prior knowledge of the altered hooks and had
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not filed a disciplinary report. But the record shows, and it is uncontroverted, the
disciplinary report made by Farmer was written and timely served on Snavely on the
same day the hooks were discovered and confiscated. Hines testified that the first time
she saw the altered hooks was after they were confiscated from Snavely.

The hearing officer, by his written responses and his testimony in district court,
satisfied the burden to show that the reasons the witness requests were denied were not
arbitrary and existed at the time of the disciplinary hearing. Snavely has failed to
establish his claimed due process violation.

Violation of K.A.R. 44-12-208

Snavely also contends he was denied due process because the hearing officer
wrongfully found him guilty of violating K.A.R. 44-12-208. Although couched in terms
of a claimed constitutional violation, this claim more properly raises an issue of the
sufficiency of the evidence and a question of interpretation of the administrative
regulation.

In the context of a disciplinary proceeding, judicial review of the evidence
supporting a disciplinary sanction is limited.

"[D]ue process is satisfied in the context of an inmate disciplinary proceeding if there is
any evidence in the record, even evidence which could be characterized as meager, that
could support the conclusion of the disciplinary authority. Due process does not require
that the evidence preclude other possible outcomes or conclusions, only that the evidence
provides some support for the conclusion reached by the disciplinary authority such that
the decision is not arbitrary." May v. Cline, 304 Kan. 671, 674-75, 372 P.3d 1242 (2016).

Snavely admitted he possessed the altered crochet hooks. Although he denied
personally altering the hooks, he does not deny that he allowed and observed his
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bunkmate altering the hooks by sharpening them in a pencil sharpener. Thus, the
evidence the hooks were altered while in his possession and he remained in possession of
the altered hooks constitutes some evidence he violated K.A.R. 44-12-208 by altering the
crochet hooks. Although this is circumstantial evidence, "[i]t is well established that a
conviction of even the gravest offense may be sustained by circumstantial evidence."
Starr v. Bruce, 35 Kan. App. 2d 11, 14, 129 P.3d 583 (2005).

Snavely argues the hearing officer's findings are inadequate as a matter of law
since K.A.R. 44-12-208 does not preclude possession of altered property and only
prohibits the actual alteration of the property. He argues that neither the hearing officer's
decision nor the district court's opinion specifically found Snavely personally altered the
crochet hooks.

We reject Snavely's contention that he was wrongfully convicted. Granted that
K.A.R. 44-12-208 does not specifically refer to "possession" as a violation, a common
sense reading of the regulation would logically imply that if it is a violation to alter state
property, it is also a violation to possess and control such altered property.

More pertinent to the instant inquiry, acceptance of Snavely's argument would
require us to ignore or negate the principles of "aiding and abetting" or "procuring" upon
which a person is deemed equally responsible for the actual offense committed by
another. Here, some evidence, including Snavely's own admissions, would support the
conclusion that Snavely, at the very least, procured or aided and abetted the sharpening of
the crochet hooks by his bunkmate. The hearing officer's conclusion focuses on the key
phrase "altered while being in his possession and control," not simply on Snavely's
subsequent possession. Thus, the findings of the hearing officer can be reconciled to
support "by some evidence" a violation of K.A.R. 44-12-208, and Snavely was not
wrongly convicted nor denied due process.

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Snavely failed to establish grounds for the relief requested in his K.S.A. 60-1501
petition and the district court properly dismissed the action.

Affirmed.