Allison v. Schnurr ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,269
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CHRISTOPHER ALLISON,
Appellant,
v.
DAN SCHNURR, WARDEN,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed April 8, 2022.
Affirmed.
Shannon S. Crane, of Hutchinson, for appellant.
Jon D. Graves, legal counsel, of Kansas Department of Corrections, of Hutchinson, for appellee.
Before HURST, P.J., GARDNER, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Christopher Allison, an inmate at the Hutchinson Correctional
Facility, was charged with disciplinary infractions for possessing a telephone in violation
of K.A.R. 44-12-211(b) and for trafficking in contraband in a correctional facility in
violation of K.A.R. 44-12-1001. The charges arose when the prison authorities conducted
a sweep of Allison's cell and found a package containing an unauthorized cell phone.
In advance of the hearing on these charges, Allison submitted a witness request,
asking that inmate Clancy Nelson be called as a witness. Allison expected Nelson to
testify that
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"he sent a wrapped up package to me in the middle of the night. That he never told me
what it was, and was supposed to have picked it back up way earlier. That the thing he
sent never even worked. He was being forced to hold it for someone else."
Allison also claimed he had notes from Nelson, which he considered to be exculpatory.
Allison sent the notes to his lawyer for safekeeping.
Allison's witness request was initially approved. But at the hearing on these
charges the hearing officer denied Allison's witness request because Allison conceded
that he had possessed the cell phone. The hearing officer denied Allison's request for a
continuance on these same grounds.
Allison stated at the hearing that he "'had the container'" but "'didn't know the
phone was in there.'" When asked to clarify Allison said, "'I didn't know it was in there. A
guy down the run gave it to me. He needed somebody to hold it I guess.'"
Allison was found guilty of possession of the unauthorized cell phone but not
guilty of the trafficking contraband charge. He was fined $10 and sentenced to 45 days of
disciplinary segregation and 60 days of restriction from privileges, with the sentence
suspended for a period of 90 days.
Allison's administrative appeal to the Secretary of Corrections was denied. The
Secretary explained that "[w]here the cell phone originated is irrelevant to the factual
basis of the charge/conviction being that you admitted to accepting, and keeping in your
possession, an unauthorized cell phone."
Allison then petitioned the district court for relief under K.S.A. 60-1501. He
claimed that there was insufficient evidence to support his conviction and he was denied
due process by being denied a continuance and by not being allowed to call witness
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Nelson to testify at the hearing. Allison also claimed that that K.A.R. 44-12-211(b) was
unconstitutionally vague because it did not contain a scienter requirement.
The district court conducted a hearing on the State's motion to dismiss. The State's
motion was predicated on the uncontested facts set forth in the pleadings. The hearing
consisted of the arguments of counsel and no evidence was introduced and no witness
testimony was presented. Allison appeared by Zoom with his counsel. The court
ultimately sustained the State's motion to dismiss, finding that Allison had failed to plead
facts upon which relief could be granted. In doing so, the district court determined that
K.A.R. 44-12-211(b) was not unconstitutionally vague and declined to read into K.A.R.
44-12-211(b) a scienter element as a predicate to any conviction under this regulation,
thereby rendering immaterial Allison's claim that he did not know that there was a cell
phone in the wrapped package that Nelson gave him.
Allison appealed to us, arguing that (1) K.A.R. 44-12-211(b) is unconstitutionally
vague and overbroad, (2) the evidence was insufficient to support a finding that he
violated this regulation, and (3) the denial of his request for a continuance and his request
to call Nelson as a witness denied him his right to due process.
The constitutionality of the regulation
Allison's constitutional challenge to K.A.R. 44-12-211(b)—that it is
unconstitutionally vague—is an issue of law over which we have unlimited review. We
presume the challenged regulation is constitutionally valid and it is Allison's burden to
prove otherwise. See Mitchell v. Petsmart, Inc., 291 Kan. 153, 168, 239 P.3d 51 (2010).
We apply the rules of statutory interpretation in determining whether a regulation is
constitutional. Village Villa v. Kansas Health Policy Authority, 296 Kan 315, 323, 291
P.3d 1056 (2013).
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A party challenging a regulation as unconstitutionally vague must show that (1)
the regulation does not convey a sufficient definite warning and fair notice of the
prohibited conduct in light of common understanding and practice, and (2) it is subject to
arbitrary and discriminatory enforcement. Steffes v. City of Lawrence, 284 Kan. 380, 389,
160 P.3d 843 (2007).
Allison contends that the word "possession" is ambiguous and is "often the subject
of controversy in criminal cases involving drugs and weapons." According to Allison, the
word "possession" in the regulation could mean the person has knowledge of the item and
the ability to control it as is the case in criminal law, or it could mean merely that the item
was in the person's presence, with or without the person's knowledge which is the case
with this administrative regulation. Allison contends that these differing notions of
"possession" provide "too much leeway" in use of the word "possession" in the regulation
"to make sure it is not being used for arbitrary and discriminatory enforcement."
Black's Law Dictionary 1408 (11th ed 2019) defines "possession" as "[t]he fact of
having or holding property in one's power; the exercise or dominion over property."
"Dominion" is defined as "[c]ontrol" or "possession." Black's Law Dictionary 615 (11th
ed. 2019).
Allison is correct, as he argues, that there is often a controversy in criminal cases
involving drugs and weapons over whether the defendant "possessed" the drugs or
weapons. But K.A.R. 44-12-211(b)—with its lack of a scienter element—never arises in
any criminal case. Rather, we must consider this regulation and the term "possession" in
the proper context—in an administrative regulation that applies only to Kansas prison
inmates.
The regulation at issue here—K.A.R. 44-12-211(b)—was authorized by K.S.A.
75-5210(f), which directs the Secretary of Corrections to "adopt rules and regulations for
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the maintenance of good order and discipline in the correctional institutions, including
procedures for dealing with violations." Allison was put on notice of all the prison
regulations. Under subsection (g) of the statute, "[a] copy of the rules and regulations
adopted pursuant to subsection (f) shall be provided to each inmate." K.S.A. 75-5210(g).
Moreover, he was specifically put on notice of this charge when he was served with the
disciplinary report of this incident. Allison was aware of the regulatory infraction with
which he was charged.
The proceedings on Allison's claimed violation of a prison administrative
regulation were not criminal proceedings, calling forth all the statutory and constitutional
protections afforded an accused. For example, the "beyond a reasonable doubt" standard
of a criminal case does not apply. A claimed violation of a prison regulation results in an
administrative disciplinary action which requires "some evidence" to support a finding of
a violation. The concept of "possession" as used in K.A.R. 44-12-211(b) only applies to
inmates confined in a prison managed by the Kansas Department of Corrections.
Frost v. McKune, 44 Kan. App. 2d 661, 662, 239 P.3d 900 (2010), involved a
prisoner who received a disciplinary sanction for possessing tobacco in violation of
K.A.R. 44-12-903(b), though there was no evidence that the prisoner knew the substance
he possessed was tobacco. The Frost court stated:
"Prison officials need to control various types of contraband to maintain discipline and
security, and proof that an inmate has knowingly possessed contraband can be difficult.
So some states and prisons have chosen to outlaw mere possession of contraband,
whether knowing possession can be proved or not. See, e.g., People v. Ramsdell, 230
Mich. App. 386, 391-99, 585 N.W. 2d 1 (1998). The Kansas Secretary of Corrections
obviously made that choice when K.A.R. 44-12-903(b) was adopted as written. If the
Secretary had meant only to prohibit knowingly possessing contraband, the regulation
could easily have said, 'No person shall knowingly possess tobacco.' We decline to read
words into this regulation that would so greatly change its meaning given the obvious
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difficulties inherent in controlling contraband in a prison setting." 44 Kan. App. 2d at
662-63.
In the only context in which K.A.R. 44-12-211(b) applies, we find no ambiguity or
vagueness about the meaning of this regulation. We are satisfied that prisoners charged
with violating this regulation know and understand the common, everyday meaning of
"possession" which is consistent with the Black's Law Dictionary definition of the term.
Possessing a cell phone without the warden's permission means "having or holding" a cell
phone and exercising dominion—i.e., control—over it. We conclude that this regulation
conveys a sufficient definite warning and fair notice of the regulation's prohibited
conduct in light of common understanding and practice in the only setting where the
regulation applies—in the maintenance of discipline and order in a Kansas state prison.
Allison asked the district court to read into the regulation the word "knowingly" to avoid
unconstitutional vagueness. But inserting the word "knowingly" in the regulation does
not turn an unconstitutional regulation into a constitutional one, but rather changes an
already constitutional regulation into an altogether different one.
Allison also contends this regulation fails to "adequately guard against arbitrary
and discriminatory enforcement." See Steffes, 284 Kan. at 389. But he fails to explain
how, other than to say that there is "too much leeway" in the word "possession" to avoid
arbitrary and discriminatory enforcement. Allison does not explain what this "leeway" is.
There is, of course, an inherent difference between "possession" in some criminal statutes
versus "possession" in administrative, noncriminal proceedings to enforce some prison
regulations. Obviously, the more expansive notion of "possession" in K.A.R. 44-12-
211(b) never finds its way into a criminal prosecution. In terms of "leeway" in prison
administrative proceedings, we see none. The notion of "possession" in K.A.R. 44-12-
211(b) is consistent with the statutory mandate to adopt regulations designed to maintain
"good order and discipline in the correctional institutions." Moreover, it facilitates the
reasonable goal of eliminating contraband from prisons. Allison fails to demonstrate that
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there is a danger of arbitrary and discriminatory enforcement in relying on K.A.R. 44-12-
211(b) in prison administrative proceedings.
Finally, Allison claims K.A.R. 44-12-211(b) is overbroad. To successfully
challenge this regulation as overbroad, Allison must show that (1) a protected activity is a
significant part of the regulation's target, and (2) there is no satisfactory method of
severing the regulation's constitutional form from its unconstitutional applications. See
Dissmeyer v. State, 292 Kan. 37, 40-41, 249 P.3d 444 (2011). On appeal, Allison sets
forth these requirements. But he then simply states his conclusion—that the regulation is
unconstitutionally overbroad—without any argument or authority whatsoever to support
it. Accordingly, this issue has been abandoned. State v. Arnett, 307 Kan. 648, 650, 413
P.3d 787 (2018).
The Sufficiency of the Evidence
"In an appeal from proceedings involving a prison inmate before a prison
disciplinary board, an appellate court applies the 'some evidence' review standard." Speed
v. McKune, 43 Kan. App. 2d 444, Syl. ¶ 1, 225 P.3d 1199 (2010). The "some evidence"
standard requires the appellate court to examine the record to determine whether there is
"any evidence that supports the conclusion reached by the disciplinary board." 43 Kan.
App. 2d 444, Syl. ¶ 1.
Allison argues that the disciplinary board could not find that he possessed a cell
phone—an essential element—because there is no evidence that he knew there was a cell
phone present in the wrapped package. He cites K.S.A. 2020 Supp. 21-5111(v) for the
definition of "possession" which includes "control over an item with knowledge of or
intent to have such control." First, there clearly is some evidence that Allison had control
over the package containing the cell phone and that he intended to have control over it.
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But equally important, this is a criminal statute that does not apply to the administrative
regulation that is the subject of this appeal.
Allison bootstraps into his sufficiency of the evidence argument a separate and
distinct contention that his due process rights were violated because (1) he was denied the
right to call Nelson as a witness and (2) he was denied a continuance of the hearing so he
could obtain Nelson's notes. These arguments are predicated on the notion that to prove a
violation of the regulation there had to be evidence that Allison knew that a cell phone
was contained in the package he possessed. But, as we have demonstrated, that is not the
case. Allison does not contest that he was in possession of the cell phone. K.A.R. 44-12-
211(b) does not require that the inmate have knowledge that he or she possesses the
prohibited item. Thus, the testimony of Nelson was immaterial and a continuance to
obtain Nelson's notes was not justified.
There was sufficient evidence to support the disciplinary board's conclusion, and
the district court did not err in dismissing Allison's petition.
Affirmed.
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