Fowler v. Oregon State Correctional Institution

THOBNTON, J.

This is an appeal from a disciplinary order of the Superintendent of the Oregon State Correctional Institution (OSCI).

Petitioner was found guilty by an OSCI disciplinary committee of disobeying a direct order of a correctional officer (Bule 12), and, as part of the incident, urging another inmate not to give his name to the officer and menacing the officer.

The committee entered its order that petitioner be disciplined by requiring him to serve seven days in segregation, and to forfeit 30 days’ statutory good time. Petitioner appealed to the superintendent, who affirmed the order of the disciplinary committee.

Petitioner contends that the order is invalid for the following reasons:

(1) The officer’s preliminary misconduct report allegedly was not submitted to the superintendent during the same working day as the alleged violation, as required by Article III (2) (a) of the “Procedures for Disciplinary Action”;

(2) The disciplinary committee failed to follow the applicable rules of the Corrections Division relative to (a) notice and (b) advice as to the right to representation and to pose questions in such proceeding;

(3) The committee failed to make findings of fact and conclusions of law as required by ORS 183.470; and

(4) The committee failed to provide him a fair hearing as required by ORS 421.180 to 421.195.

As we understand the procedure, when an alleged infraction of the disciplinary rules occurs, the correctional officer must file a report of misconduct with the superintendent of the institution. This report must be filed during the same working day as the infraction, and might be termed the preliminary report of misconduct. Thereafter a second document entitled “Resident Misconduct Report” is prepared, a copy of which is delivered to the inmate.

The preliminary misconduct report, which appears to be the document on which petitioner’s first contention is based, is not one of the documents which is a part of the record required to be transmitted to this court under Article VI (4) of the above rules. We recognize that petitioner was not represented by an attorney at his disciplinary hearing before the committee; accordingly, he would not be estopped from raising this contention in this court for the first time by his failure to raise this contention below. However, petitioner is now represented by an attorney on this appeal. If petitioner, through his attorney, wishes to raise this issue in this court, it is incumbent upon him to make certain that the record is sufficiently complete to enable this court to review. See, Terry v. Layman, 12 Or App 283, 287, 505 P2d 930, Sup Ct review denied (1973). Without competent supporting evidence in the record to substantiate petitioner’s version of the matter, the statutory presumption of regularity is controlling (ORS 41.360 (15)), and this court has nothing to review. Terry v. Layman, supra.

Petitioner’s second contention is that the hearing record contains no evidence that he was given notice prior to the hearing or advised of his rights. Unlike in Moore v. OSP, 16 Or App 536, 519 P2d 389 (1974), upon which petitioner relies, the “Resident Misconduct Report” involved in the present case, and which is part of the record, contains this information. This statement of the charge and advice as to the inmate’s rights in connection with the hearing constitutes legal and sufficient notice. Furthermore, absent a showing by petitioner that he was in some way prejudiced in his defense by the fact that only 26 hours elapsed between notice and the hearing, we conclude that petitioner was not prejudiced thereby. See, Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974), where the court held, inter alia, that 24 hours’ written advance notice of a prison disciplinary hearing was sufficient notice to meet minimum due process.

Petitioner’s third contention concerns the necessity for findings of fact and conclusions of law. Contrary to petitioner’s argument, the recommendation of the disciplinary committee and the order of the superintendent are not subject to the procedural requirements of ORS 183.470, since ORS 183.315 (4) expressly provides:

“The provisions of ORS 183.415 to 183.500 do not apply to orders issued to persons who have been committed pursuant to ORS 137.124 to the custody of the Corrections Division.”

Since the order challenged here was issued to a person committed pursuant to ORS 137.124, ORS 183.470 is not applicable. However, while respondent was not required to comply with the provisions of ORS 183.470, there must be a.written statement by the fact-finders of the evidence relied on and reasons for the disciplinary action. Wolff v. McDonnell, supra; Morrissey v. Brewer, 408 US 471, 92 S Ct 2593, 33 L Ed 2d 484 (1972). We can find no such written statement in the record. We conclude therefore that this was reversible error and that this proceeding must be reversed and remanded.

On petitioner’s fourth point, these contentions (right of confrontation and cross-examination) were resolved against petitioner in Bonney v. OSP, 16 Or App 509, 519 P2d 383 (1974). Accord, Wolff v. McDonnell, supra.

Reversed and remanded for further proceedings not inconsistent with this opinion.