Current through Register Vol. 43, No. 39, September 26, 2024
(a) In class I and
II cases, each offender shall have the right to appeal on the record to the
commissioner from a final decision made by the disciplinary hearing officer,
after the superintendent's review pursuant to K.A.R. 123-13-701. The offender
shall be notified of the right of appeal before or immediately following the
superintendent's review.
(b) Any
offender may, on forms provided by the program team, prepare the offender's own
appeal. The program team shall ensure that all data necessary to identify and
properly log the appeal is provided and forwarded to the disciplinary
administrator.
(c) The offender
shall submit the appeal within 15 days of the date of receiving notice of the
final action pursuant to K.A.R. 123-13-701(b).
(d) If the offender pleaded guilty or no
contest at the disciplinary hearing, an appeal of the penalty imposed may be
brought, but no appeal of a finding of guilt shall be permitted unless the
offender alleges and shows any of the following:
(1) The offender was under duress at the time
of the plea.
(2) Fraud or
substantial error was involved in the offender's plea of guilty or no contest.
(3) The offender was not advised
of the nature of the hearing and the rights that the offender would waive by
that plea.
(e)
(1) In an appeal, each side may submit a
written argument and shall serve a copy of the argument on the opposing side.
(2) The offender shall serve a
copy of the argument on the program team, with the appeal papers, and the
argument shall be made part of the appeal record. Within two working days, the
program team shall forward a copy to the institution's disciplinary
administrator so that a responsive argument can be made.
(3)
(A) The
offender's appeal papers and arguments shall be promptly forwarded to the
designated facility's legal counsel for review and, as deemed necessary by
legal counsel, preparation of a responsive argument on behalf of the facility.
Each responsive argument so prepared shall be made a part of the record and
shall be forwarded by the disciplinary administrator to the commissioner within
15 working days after the offender's notice of appeal. A copy of the responsive
argument shall be served upon the offender within five working days after
receipt by the disciplinary administrator.
(B) If no responsive argument is submitted by
the facility, the appeal may be returned to the facility by the commissioner
with the direction that a responsive argument be prepared and submitted. The
disciplinary administrator, in collaboration with the superintendent, shall
arrange for a responsive argument to be prepared and a copy served on the
commissioner and the offender within five calendar days of the imposition of
the requirement for a responsive argument. This requirement for a responsive
argument shall not alter the time limits for the commissioner's review on
appeal established in K.A.R. 123-13-704.
(4) Each argument shall identify, on its
face, the disciplinary case and number to which the argument is to be attached.
This regulation shall be effective on and after April 8, 2005.
