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No Rehearing For Disciplinary Actions Vacated On Substantive Grounds

By Bob Williams

In another unpublished decision, a unanimous Colorado Court of Appeals has held that if a prisoner's administrative disciplinary conviction is vacated on district court review, expungement and not a rehearing is mandatory if the reversal is on substantive and not procedurals grounds.

Mark Garcia was using the phone at the private Crowley County Correction Facility operated by Corrections Corporation of America (CCA) when the July 20, 2004, riot erupted. (See PLN, January 2005) Guards reviewing the telephone recording heard Garcia tell another prisoner to get him a soda from the machine that had just been broken and that he was going to put on his shoes "because it is about to really pop off in here."

Based on these statements, Garcia was convicted of engaging in a riot. Twenty days of punitive segregation and 45 days loss of good time were imposed as sanctions. The conviction was upheld on administrative appeal and Garcia filed for judicial review pursuant to C.R.C.P. Rule 106(a)(4) (now 106.5).

The Crowley County District Court vacated Garcia 's conviction and ordered his record expunged and his lost 45 days of good time restored plus unspecified costs. The court also awarded an additional two days of good time for every day Garcia spent in punitive segregation — a message judge Jon Kolomitz has sent the Colorado Department of Corrections before trying to curb their abuses. (See PLN, April 2007, p. 42).

On Appeal, the Colorado Court of Appeals upheld the lower court's order in all respect except the awarding of extra good time. First, expungement and not a rehearing (a "second bite at the apple" in Judge Kolomitz’s words) is appropriate when, as here, the evidence did not establish the elements of the charged offense. No evidence suggested Garcia "participated in conduct that created danger of damage or injury to property or persons and obstructed the performance of facility functions" and did so "with two or more persons."--Code of Penal Discipline/Administrative Regulation 150 1(IV)(D)(7) (07/15/04). At a minimum, no evidence established the "two or more persons" element. (Note that in Colorado, the Court of Appeals has held that had the error been only procedural, a remand for rehearing would be appropriate. See Gallegos v. Garcia, 15 P. 3d 405 (Colo. App. 2006)). The COPD further mandates both expungement and restoration of lost good time and other sanctions if unpaid. See 150 l(IV)(E)(3)(t).

Because the Colorado General Assembly has made awarding good time within the sole providence of the CDOC since July 1, 1985, the district court was without jurisdiction to order an award of two days of good time for each day spent in punitive segregation. The Court noted that the law did thus allow the CDOC to make the award on their own, an action this writer has not observed in nearly 30 years of CDOC observations. See: Garcia v. Martinez, Case No. 05CA2587, Colo. App. 2007.

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Related legal case

Garcia v. Martinez