1998 OKCR 37 - Worthen v. State

CHAPEL, Presiding Judge.

¶1¶ 1 Sidney Allen Worthen was tried before a court and convicted of Escape from a Penal Institution in violation of 21 O.S.Supp. 1994, § 443(B), in the District Court of Cleveland County, Case No. CRF-93-1738. The Honorable Tom A. Lucas sentenced Worthen to four (4) years imprisonment. Worthen appeals from this Judgment and Sentence.

¶2¶ 2 Worthen raises the following two propositions of error in support of his appeal: 1

*906I. Worthen’s conviction for escape from a penal institution should be reversed because his incarceration was in violation of law; and

II. Worthen’s criminal prosecution for escape, following his prison disciplinary sanction arising from the same conduct, violates the Fifth Amendment’s double jeopardy prohibition.

¶3¶3 After thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we find that neither reversal nor modification is required under the law .and evidence and affirm.. In reaching our decisión, we find in Proposition I that the necessary authority was present for Worthen’s confinement.2 However, we take this opportunity to clarify the law regarding the double jeopardy issue raised in Proposition II.

¶4¶ 4 Worthen claims in Proposition II that he cannot be criminally prosecuted for escape after being punished in a prison disciplinary proceeding for the same conduct. The United States Supreme Court recently restated the appropriate double jeopardy analysis in Hudson v. United States.3 While the holding in Hudson does not apply here because that case involved civil penalties rather than prison disciplinary sanctions, we apply the Court’s reasoning. Using the Hudson test, we conclude that criminal prosecution for escape following prison disciplinary proceedings does not violate double .jeopardy where prison authorities do not substantively alter the conditions of a defendant’s original sentence.

¶5¶ 5 Under Hudson, the threshold question is one of statutory interpretation. Initially we must decide whether the Legislature intended specifically or by implication to establish a civil remedy or a criminal penalty.4 Then, we determine whether the statutory scheme is so punitive in purpose or effect as to transform a civil remedy into a criminal penalty.5 The Hudson Court outlined seven factors to use in making the latter determination: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play on a finding of scienter; (4) whether its operation promotes the traditional aims of punishment (retribution and deterrence); (5) whether the behavior to which it applies is already a crime; (6) whether one may assign to it an alternative purpose other than punishment; and (7) whether it appears excessive in relation to the alternative purpose assigned.6 These factors must be considered in light of the relevant statute, and are only relevant if we determine the Legislature intended a sanction to be civil in nature.7

¶6 *907¶ 6 The sanctions imposed against Worthen by the prison authorities were authorized by 21 O.S.1991, 443a, which provides that escaped prisoners who have been recaptured “shall be punishable by the prison authorities ... provided that such punishment shall not be cruel or unusual.”8In determining whether the legislature intended this statute to be civil or criminal, we look first at the statute itself. The cited language indicates the legislature intended sanctions under this statute to be a form of punishment. The statute is included in the Oklahoma Penal Code, and immediately follows the provision criminalizing escape from a penal institution. The Legislature clearly intended punishment under this section to be criminal in nature. This determination ends the analysis, and we need not proceed to the second step of Hudson or apply the seven factors above. In Hudson, the sanction in question was civil in nature. Hudson implies that, where a statute is determined to be criminal, traditional double jeopardy analysis should apply.

¶7¶ 7 Oklahoma generally uses the same transaction test when an accused is subjected to multiple trials for the same offense and the same evidence test where a series of acts are involved and the accused is charged with several counts in a single information.9 The Supreme Court has expanded double jeopardy to include sanctions imposed in proceedings other than criminal trials.10 Here, after conducting a prison disciplinary proceeding, prison authorities punished Worthen under Section 443a for the act of escape by imposing 30 days of disciplinary segregation and revoking his earned credits. The State subsequently imposed an additional penalty in a criminal prosecution for the same act of escape. The issue is whether the subsequent criminal prosecution violated double jeopardy.

¶8¶ 8 The same transaction test appears appropriate here. Although there were not multiple trials, Worthen was subjected to criminal prosecution after punishment was imposed in a prison disciplinary proceeding. The disciplinary punishment was imposed pursuant to a criminal statute in which the Legislature intended to impose criminal punishment. Worthen’s subsequent criminal prosecution does not violate double jeopardy because the disciplinary punishment was no more than a mere alteration of the conditions under which his sentence is being served. Prison authorities may punish Worthen for escaping by altering the conditions of his original sentence by changing his level of confinement or revoking his good-time credits.11 Worthen’s criminal prosecution for escape following disciplinary punishment does not violate double jeopardy, and this proposition is denied.

¶9 *908DECISION

¶10¶ 9 The Judgment and Sentence of the trial court is AFFIRMED.

STRUBHAR, V.P.J., concurs.■ LUMPKIN, J., concurs in part/dissents in part.LANE, J., concurs in results.JOHNSON, J., specially concurs.

¶11. Worthen also tendered for filing a pro se brief containing six propositions of error. Worthen has not complied with Rule 3.4(E), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.(1997). We deny his request to file a *906brief pro se, and do not consider the pro se brief or its propositions of error.

¶12. Phillips v. State, 1980 OK CR 112, 622 P.2d 719, 720.

¶13. 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997).

¶14. Hudson, 522 U.S. at -, 118 S.Ct. at 493; United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980). The cases alternate in their use of the terms "sanction,” "punishment,” and "penalty”.

¶15. Hudson, 522 U.S. at -, 118 S.Ct. at 493.

¶16. Hudson, 522 U.S. at -, 118 S.Ct. at 493; Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963).

¶17. Hudson, 522 U.S. at -, 118 S.Ct. at 493; United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 2143-45, 135 L.Ed.2d 549 (1996); Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 777-78, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994); United States v. Halper, 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989); Kennedy, 372 U.S. at 169, 83 S.Ct. at 568. Previous Oklahoma and U.S. Court of Appeals cases have held that criminal proceedings which occur subsequent to prison disciplinary sanctions for the same conduct do not violate double jeopardy. The law has advanced since these decisions were written, and their reasoning is now unpersuasive. The Oklahoma cases rest on law suggesting that double jeopardy only applies where a defendant is subjected to more than one criminal trial for the same offense. Ketcher v. State, 1988 OK CR 6, 748 P.2d 536, 538; Green v. State, 1987 OK CR 225, 744 P.2d 565, 567; Caffey v. State, 1987 OK CR 153, 739 P.2d 546, 547; Hall v. State, 1987 OK CR 171, 741 P.2d 880, 881; DeRonde v. State, 1986 OK CR 29, 715 P.2d 84. Since these cases were decided, the U.S. Supreme Court has refined the concept of double jeopardy. It is now settled that some civil sanctions may violate *907double jeopardy without successive criminal trials. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (state marijuana tax); United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (distinguishing between civil penalties and civil forfeitures); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (Medicare fraud). The circuit courts base their reasoning on the U.S. Supreme Court’s decision in Halper, 490 U.S. at 441, 109 S.Ct. at 1898. United States v. Brown, 59 F.3d 102, 104 (9th Cir.1995); United States v. Hernandez-Fundora, 58 F.3d 802, 807 (2nd Cir.1995); United States v. Newby, 11 F.3d 1143, 1145 (3d Cir.1993); see also Garrity v. Fiedler, 41 F.3d 1150, 1152-53 (7th Cir.1994) (stating Hal-per does not apply to prison disciplinary proceedings). In Halper, the Court focused on whether a particular sanction constituted "punishment”, holding that a court should evaluate the purposes served by the sanction and determine whether it was remedial or punitive in nature. The Hudson Court disavowed this reasoning, and we do not rely on these cases. Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir.1994), did not involve a criminal prosecution It is distinguishable and neither its holding nor its reasoning apply here.

¶18. 21 O.S.1991, 443a (emphasis added).

¶19. Salyer v. State, 1988 OK CR 184, 761 P.2d 890, 893.

¶20. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (state marijuana tax); United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (distinguishing between civil penalties and civil forfeitures); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989) (Medicare fraud).

¶21. United States v. Brown, 59 F.3d 102, 105 (9th Cir.1995) (not relying on the discredited language in Halper).

LANE, Judge,

¶22concurs in results.

¶23¶ 1 I agree with the majority that the prosecution by the State for escape is not barred by jeopardy. However, I do so using different reasoning than that employed by the majority.

¶24¶2 Like the majority, I find Appellant was punished twice for his escape. First, *911when the prison authorities imposed 30 days of disciplinary segregation (thus restricting his movement and activities) and revoking his earned credits (thus requiring him to serve more time before he is released from the penitentiary). Second, he was further punished in the court criminal prosecution by being sentenced to serve another four years in the custody of the Department of Corrections. The majority contends that this is not jeopardy, because the punishment prescribed by DOC is merely an alteration of the conditions under which Appellant’s sentence is being served. I do not think this is the proper approach. I would find that both sanctions are punishment and neither is remedial in nature. I would then look to Ellis v. State, 1992 OK CR 35, 834 P.2d 985, 991 where we found that if the Legislature explicitly authorized multiple punishment the judicial inquiry is at an end. The legislature intended multiple punishment. Section 443 defines the crime of escape from a penal institution and sets the limits of punishment for the crime, which is then followed by § 443a which states:

In addition, all prisoners who escape from either of the aforesaid prisons either while confined therein, or while at large as a trusty, when apprehended and returned to the prison, shall be punishable by the prison authorities in such manner as may be prescribed by the rules and regulations of the prison provided that such punishment shall not be cruel or unusual.

¶25(Emphasis added.)

¶26The use of the word “shall” indicates to me that the Legislature wants the escapee prosecuted under § 443 and punished under § 443a. Since there is no question that the Legislature intended” additional punishment, our inquiry must end.