×
You have 1 more free article available this month. Subscribe today.
Expungement, Not Rehearing, Mandated in Colorado Disciplinary Reversals
In an unpublished opinion, the Colorado Court of Appeals has held that expungement of a prisoner?s disciplinary record, not a rehearing, is an appropriate remedy when reversed on administrative or judicial review.
Colorado prisoner Lewis Simpson was convicted of Code of Penal Discipline (COPD) violations for assault and advocating a facility disruption. The only evidence was a confidential informant (CI). After exhausting administrative remedies (a disciplinary appeal), Simpson filed for judicial review pursuant to Colorado Rules of Civil Procedure Rule 106.
Crowley County District Court Judge Jon Kolomitz, known for lambasting the Colorado Department of Corrections (CDOC) in their insistence on rehearing all disciplinary reversals until a conviction sticks, found that a biased CDOC hearing board improperly handled the confidential information; also, a waiver of right to remain silent was not found in the record. The district court further found insufficient evidence to convict Simpson under the ?some evidence? standard. The court ordered Simpson?s conviction vacated and his record expunged, restored 45 days of withheld good time credits, and awarded an additional 50 days good time credits for the 30 days Simpson had spent in punitive segregation.
On appeal, the Court agreed with Judge Kolomitz?s findings on the use of CIs, citing the oft-used Mariani v. CDOC, 956 P.2d 625 (Colo.App. 1997), in that both confidential testimony and confidential documents are subject to the same standards of reliability and procedures used.
Most importantly regarding remedies, the Court sided with Judge Kolomitz in that the CDOC does not get ?another bite at the apple? (quoted from his earlier district court rulings in other similar cases) when it violates prisoners? disciplinary rights. The appellate panel concluded that the specific COPD language, which reads ?when a conviction is reversed on an appeal, or for administrative reasons, an expungement order shall be completed,? mandates expungement and leaves no room for a permissive rehearing. Reversal, expungement and restoration of lost good time credits were all proper.
Awarding additional good time credits, however, was found to be improper. The appeals court held that prisoners are eligible for, but not entitled to, good time credits and the CDOC may withdraw them at any time. (Note: this is true only for crimes committed on or after July 1, 1985. See: § 17-22.5-303, C.R.S). Courts, therefore, cannot override the statutory authority of the CDOC in determining good time awards. The credit of additional good time for punitive segregation was therefore reversed. With his conviction reversed in state court, Simpson may now seek further relief under 42 U.S.C. § 1983. See: Simpson v. Hijar, (Colo.App. Jan. 12, 2006) 2006 WL 60776 (unpublished).
For those prisoners seeking expungement after reversal of administrative hearings for S4 ratings (sex offenders without current sex offense convictions) or ad seg hearings, this expungement mandate is based in part on COPD-specific language and thus not directly applicable.
Colorado prisoner Lewis Simpson was convicted of Code of Penal Discipline (COPD) violations for assault and advocating a facility disruption. The only evidence was a confidential informant (CI). After exhausting administrative remedies (a disciplinary appeal), Simpson filed for judicial review pursuant to Colorado Rules of Civil Procedure Rule 106.
Crowley County District Court Judge Jon Kolomitz, known for lambasting the Colorado Department of Corrections (CDOC) in their insistence on rehearing all disciplinary reversals until a conviction sticks, found that a biased CDOC hearing board improperly handled the confidential information; also, a waiver of right to remain silent was not found in the record. The district court further found insufficient evidence to convict Simpson under the ?some evidence? standard. The court ordered Simpson?s conviction vacated and his record expunged, restored 45 days of withheld good time credits, and awarded an additional 50 days good time credits for the 30 days Simpson had spent in punitive segregation.
On appeal, the Court agreed with Judge Kolomitz?s findings on the use of CIs, citing the oft-used Mariani v. CDOC, 956 P.2d 625 (Colo.App. 1997), in that both confidential testimony and confidential documents are subject to the same standards of reliability and procedures used.
Most importantly regarding remedies, the Court sided with Judge Kolomitz in that the CDOC does not get ?another bite at the apple? (quoted from his earlier district court rulings in other similar cases) when it violates prisoners? disciplinary rights. The appellate panel concluded that the specific COPD language, which reads ?when a conviction is reversed on an appeal, or for administrative reasons, an expungement order shall be completed,? mandates expungement and leaves no room for a permissive rehearing. Reversal, expungement and restoration of lost good time credits were all proper.
Awarding additional good time credits, however, was found to be improper. The appeals court held that prisoners are eligible for, but not entitled to, good time credits and the CDOC may withdraw them at any time. (Note: this is true only for crimes committed on or after July 1, 1985. See: § 17-22.5-303, C.R.S). Courts, therefore, cannot override the statutory authority of the CDOC in determining good time awards. The credit of additional good time for punitive segregation was therefore reversed. With his conviction reversed in state court, Simpson may now seek further relief under 42 U.S.C. § 1983. See: Simpson v. Hijar, (Colo.App. Jan. 12, 2006) 2006 WL 60776 (unpublished).
For those prisoners seeking expungement after reversal of administrative hearings for S4 ratings (sex offenders without current sex offense convictions) or ad seg hearings, this expungement mandate is based in part on COPD-specific language and thus not directly applicable.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Simpson v. Hijar
| Year | 2006 |
|---|---|
| Cite | (Colo.App. Jan. 12, 2006) 2006 WL 60776 |
| Level | State Court of Appeals |
| Injunction Status | N/A |