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Harmer v. Turney Center Disciplinary Board

Court of Appeals of Tennessee, Nashville

March 2, 2017

GRENDA HARMER
v.
TURNEY CENTER DISCIPLINARY BOARD, ET AL.

          Session Assigned on Briefs January 4, 2017

         Direct Appeal from the Chancery Court for Hickman County No. 16-CV-5667 Joseph Woodruff, Judge.

         This appeal involves review of prison disciplinary proceedings. The prisoner pled guilty to the possession of contraband and waived his right to a formal disciplinary hearing. He later attempted to appeal his conviction and have it set aside. The chancery court affirmed the conviction by the prison disciplinary board. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Grenda Harmer, Hartsville, Tennessee, Pro se.

          Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor General, Charlotte Montiel Davis, Assistant Attorney General, Nashville, Tennessee, for the appellees, Commissioner, TN. Dept. of Correction, D. Epley, Tennessee Department of Correction, Turney Center Disciplinary Board, and Warden, Turney Center Industrial Complex-Main.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Richard H. Dinkins and Thomas R. Frierson, II, JJ., joined.

          MEMORANDUM OPINION[1]

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         Grenda Harmer is an inmate in the custody of the Tennessee Department of Correction ("TDOC"). On October 3, 2015, while housed at the Turney Center Industrial Complex ("TCIX"), he received a disciplinary report for the possession of contraband. Harmer was using a computer in the prison library, and an officer allegedly confiscated a USB storage device from the computer containing pornographic material. The disciplinary report states:

On the above date at approximately 3:20 PM, I [the officer] did find Inmate [Harmer] attempting to cover the computer screen watching a video. At this time I did confiscate a flash drive in the computer he was using. The flash drive was reviewed at operatio[ns] and there were dozens of files of pornographic videos and pictures. Due to the fact that this inmate was the sole operator o[f] the computer and was observed viewing the movies, [Harmer] is written up for pos[s]ession of contraband.

         Harmer signed the disciplinary report, acknowledging, "I have been given a copy of this report and have been told about my limited right to remain silent and to be represented by an offender advisor."

         The record before us contains a "Disciplinary Report Hearing Summary" dated October 9, 2015. It indicates that Harmer pled guilty to the offense of possession of contraband. Under the section entitled "Preliminary Inquiry, " the Hearing Summary contains Harmer's signature and the date of October 9 beside each of the following statements:

I agree to waive the right to 24-hour notice.
I agree to waive the right to have the reporting official present.
I agree to waive the right to call witness(es) on my behalf.

         Harmer also signed and dated the next page beneath the following statement: "I fully understand that by entering a plea of guilty to the aforementioned charge(s), I am waiving my right to call witness(es) and present evidence on my behalf, must accept whatever punishment is imposed, and will not be allowed to appeal." Below his signature, the Hearing Summary contains the pre-printed statement, "Attach CR3171 Agreement to Plead Guilty and Waiver of Disciplinary Hearing and Due Process Rights, " but no such document was attached. The Hearing Summary reflects that Harmer was represented by an inmate advisor. The disciplinary board chairman signed the Hearing Summary indicating that Harmer was guilty of possession of contraband based on his guilty plea and the written report. Harmer's punishment consisted of a written warning, a $4 fine, and a nine-month package restriction.

         On October 14, 2015, Harmer filed an appeal to the prison warden, alleging that his due process rights were violated in connection with his guilty plea. He claimed that TDOC regulations require an inmate's written waiver of a disciplinary hearing to be signed in the presence of a staff witness, and Harmer claimed that he never appeared before the disciplinary hearing officer or any other staff member on the date of his waiver. Harmer claimed that the disciplinary hearing officer failed to speak with him to ensure that he understood the ramifications of executing the waiver. As a result, Harmer requested that his guilty plea be reversed and vacated. The prison warden affirmed Harmer's conviction upon finding no violation of the disciplinary procedures. The warden also noted that Harmer's signature appeared on the documentation and that he pled guilty to the charge, so he had no appeal rights.

         Harmer then filed an appeal to the commissioner of the TDOC. He again argued that his guilty plea was not signed in the presence of a staff member and that the disciplinary board chairman did not attempt to discern whether his plea was voluntary and fully understood. He also argued that the board chairman failed to provide sufficient reasons for the decision on the written hearing summary. The commissioner concurred with the warden's decision and affirmed the conviction upon finding sufficient documentation that Harmer entered a plea of guilty. The commissioner also noted that pursuant to TDOC procedures, only a plea of not guilty can be appealed.

         Harmer then filed a petition for common law writ of certiorari in chancery court, alleging that his disciplinary proceeding was conducted in an arbitrary and illegal manner and in violation of his due process rights. Harmer alleged that on October 9, 2015, he was "called to the disciplinary board building" where he "was met by an inmate advisor who advised him that he should plead guilty." According to the petition, Harmer "was then presented with some paperwork by the inmate and told to 'sign here.'" Harmer alleged that this procedure violated TDOC policies because the guilty plea was not signed in the presence of a TDOC staff member but another inmate. Harmer alleged that he did not appear before the disciplinary board hearing officer to discuss the rights he was forfeiting by entering a guilty plea. He also maintained that the disciplinary board hearing officer failed to include sufficient findings of fact and reasons for his decision on the hearing summary. Harmer also filed a brief in which he argued that he was not provided with a fair appeal process because the warden and commissioner "rubber stamped" the disciplinary board chairman's decision without investigating the merits of his arguments.

         The respondents filed a notice that they did not oppose the granting of the writ. On February 17, 2016, the chancery court issued the writ and directed the respondents to prepare and certify the record of the disciplinary proceeding. The respondents also submitted the affidavit of the disciplinary board chairman who manages all disciplinary hearings at TCIX. The board chairman stated that he "personally read Grenda Harmer [] his rights before he [pled] guilty to possession of contraband [] on October 9, 2015." He stated that Harmer then "signed the CR-1834 [Hearing Summary] form in front of me." In response, Harmer filed an unsworn declaration pursuant to Tennessee Rule of Civil Procedure 72 claiming that the board chairman made false statements in his affidavit. The board chairman filed another affidavit stating, again, that he was present when Harmer pled guilty to possession of contraband on October 9, 2015. The chairman also stated that he "had him sign the CR-1834 [Hearing Summary] form, but not the CR-3171" form that should have been attached to the Hearing Summary form. In response, Harmer argued that his guilty plea was not valid in the absence of a CR-3171 form.

         On May 18, 2016, the chancery court entered an order denying the relief requested by Harmer and dismissing the petition. The trial court found that Harmer's punishment, consisting of a written warning, a $4 fine, and a nine-month package restriction, did not implicate due process protection. The court found that the TDOC policies Harmer cited were inapplicable to the particular type of waiver form he signed but that he signed the Hearing Summary form expressly acknowledging that he was waiving his rights. Accordingly, the chancery court concluded that Harmer was not entitled to relief. Harmer timely filed a notice of appeal.

         II. Issues Presented

         Harmer presents the following issues, as we perceive them, for review on appeal:

1. Whether the disciplinary board chairman violated Harmer's due process rights or acted illegally or arbitrarily by failing to question Harmer about his guilty plea in accordance with TDOC policies;
2. Whether the disciplinary board chairman violated Harmer's due process rights or acted illegally or arbitrarily due to the participation of the inmate advisor;
3. Whether the disciplinary board chairman violated Harmer's due process rights or acted illegally or arbitrarily by failing to include on the Hearing Summary specific findings regarding the evidence or specific reasons for the decision;
4. Whether the prison warden and commissioner of the TDOC failed to provide Harmer with a fair and impartial appeal process in violation of Harmer's due process rights ...

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