This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-653

 

Tywon T. Beasley, petitioner,

Appellant,

 

vs.

 

Connie Roehrich, et al.,

Respondents.

 

Filed June 26, 2001

Affirmed in part, reversed in part

Toussaint, Chief Judge

 

Rice County District Court
File No. C9001683

 

Bradford William Colbert, Legal Assistance to Minnesota Prisoners, Room 254, 875 Summit Avenue, St. Paul, MN  55155 (for appellant)

 

Mike Hatch, Attorney General, Kari Josephine Ferguson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

This appeal is from an order denying appellant’s petition for a writ of habeas corpus challenging his disciplinary sanction for a rules violation while in the Challenge Incarceration Program (CIP), and the denial of “good time” credit for his time spent in the program.  We affirm in part and reverse in part.

FACTS

            Appellant Tywon Beasley was accepted into the CIP program two months after he entered prison.  Beasley successfully completed the first two phases of the three-phase CIP program.  He was released into the community to serve Phase III in April 1999.  While living in the community, Beasley tested positive for alcohol in a routine breathalyzer test, resulting in further restrictions, including more frequent testing.

             On October 24, 1999, Beasley’s supervising agent (the agent), appeared at Beasley’s door in the early morning hours and informed him he would have to take a breathalyzer test.  When Beasley tested positive for alcohol, the agent told him that he would have to be taken to jail.  Beasley convinced the agent to allow him to let his dogs in first.  He then disappeared, apparently out the back door.  A warrant was issued for Beasley’s arrest.  He was arrested on December 8, 1999, and returned to Stillwater prison on December 10.

            On December 13, 1999, prison authorities charged Beasley with a disciplinary violation for having escaped from the agent’s custody.  Beasley pleaded guilty to the violation and was given 90 days in administrative segregation.  This resulted in 30 days being added to his term of imprisonment.

            In February 2000, apparently after Beasley had completed his 90 days in segregation, he was given a notice that he was charged with violating the terms of his CIP agreement and informed that he was entitled to a hearing on the charge.  Beasley signed an admission to the CIP violation the same day. 

            Beasley filed a petition for a writ of habeas corpus, and later an amended petition.  The district court denied relief, concluding Beasley was properly charged with the disciplinary violation of escape, that he was not prejudiced by the delayed notice of his right to a CIP revocation hearing, and that he was not entitled to “good time” for his time in the CIP program.

D E C I S I O N

            In reviewing an order denying a petition for a writ of habeas corpus, this court will uphold the district court’s findings if they are reasonably supported by the evidence.  State v. Morse, 398 N.W.2d 673, 680 (Minn. App. 1987), review denied (Minn. Feb. 18, 1987).  The court reviews questions of law de novo.  State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

            Beasley was charged with violating the Offender Discipline Regulations (ODR) for fleeing from the agent, who had come to his residence to administer a breathalyzer test.  Beasley argues that, as an offender who had been released into the community, he was not subject to the ODR.

            The ODR applies to

An individual who is housed in a Minnesota Correctional Facility, or who is committed to the care and/or custody of the Commissioner of Corrections and is temporarily absent * * * pursuant to a court order or while being transported from one facility to another while on furlough, special duty, work release status, housed at a county/local jail, medical facility or program facility or prison diversion facility.

 

The provisions of the offender discipline plan also apply to and govern violations committed by an offender whose parole or supervised release has been revoked and he/she is in custody awaiting return to the appropriate facility.

 

           Beasley had been released from a correctional facility into the community at the time he fled from the agent.  Although it might be argued he was in the “care and custody” of the commissioner by virtue of his unexpired sentence, he was not “temporarily absent” from a corrections facility, nor in transit from one facility to another.

           Respondents argue, and the district court concluded, that Beasley was on “institutional status,” and therefore subject to the ODR, because he had not served the mandatory two-thirds of his sentence.  But the ODR does not define the scope of its application with reference to either “institutional status” or time remaining on the offender’s sentence.  Given the plain language of the ODR, we give no deference to this administrative interpretation.  See Richview Nursing Home v. Minnesota Dep’t. of Pub. Welfare, 354 N.W.2d 445, 450 (Minn. App. 1984) (holding court will not defer to agency interpretation when language of rule is clear), review denied (Minn. Oct. 31, 1984).  No more persuasive is respondents’ argument that Beasley could be charged with escape because  the agent was a “supervising person,” a term used in the ODR’s escape rule.  If the ODR itself does not apply to Beasley, it is irrelevant that one of its rules might cover his conduct.

           We conclude that Beasley was not properly charged with escape under the ODR.  Accordingly, he is entitled to have deducted from his sentence, the 30 days that were added to his prison term as a result of that violation.

           Beasley also argues that he was denied timely notice of his right to a CIP revocation hearing within 12 days of his being available to corrections authorities.  See Minn. R. 2940.3500, subp. 2 (1999).  Respondents appear to concede that Beasley was not notified of his right to a hearing until February 2000, three months after the violation.  Respondents contend, however, that Beasley was not available for a hearing until his release from administrative segregation.  We need not address that issue because Beasley has shown no prejudice from the delayed notice.  He points to no evidence that would have been produced at an earlier hearing, nor the possibility of more favorable result from such a hearing.  Beasley’s own plea of guilty to the ODR escape violation, entered well before the 12-day period expired, indicates Beasley realized he had no effective defense, and it virtually precluded any.

Finally, Beasley contends that he is entitled to have his sentence reduced by “good time” earned under Minn. Stat. § 244.04.  Respondents point out, and we agree, that Beasley is not entitled to “good time,” or any reduction in sentence, for the time he spent in the CIP program.  See Minn. Stat. § 244.173, subd. 3.  Beasley, however, is entitled to a reduction in sentence for his time in prison before his entry into the CIP program and after his termination from that program.  See Minn. Stat. § 244.173, subd. 4 (noting, “term of imprisonment,” reinstated following revocation of CIP status, means two-thirds of sentence).  The district court concluded likewise.  Accordingly, respondent’s calculation of Beasley’s sentence, showing his supervised release date to be the same as his expiration date, appears to be in error.  Our determination that 30 days were erroneously added to Beasley’s sentence for the escape also requires a recalculation of Beasley’s supervised release date.

            Affirmed in part and reversed in part.