DONALD ALAN WELKY V DEPARTMENT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD ALAN WELKY,
UNPUBLISHED
October 22, 2009
Petitioner-Appellee,
v
No. 287032
Ingham Circuit Court
LC No. 08-000029-AA
DEPARTMENT OF CORRECTIONS,
Respondent-Appellant.
Before: Fort Hood, P.J., and Sawyer and Donofrio, JJ.
PER CURIAM.
Respondent appeals by delayed leave granted a circuit court order vacating the decision
of the hearing officer that found petitioner guilty of the major misconduct “accomplice to
escape.” We affirm.
The MDOC Policy Directive 03.03.105A defines “Accomplice,” as “A prisoner who
assists another to commit a specific misconduct or, after it is committed, conceals the violation
from the authorities.” The major misconduct of “Escape” is defined by Directive 03.03.105B as:
Leaving or failing to return to lawful custody without authorization;
failure to remain within authorized time or location limits (a) while on a public
works crew; (b) while under electronic monitoring; or (c) during an authorized
absence from work, school, or other activity while residing in a community
corrections center.
The hearing officer found petitioner guilty of accomplice to escape because he failed to report to
the authorities information concerning a planned escape attempt:
On 3-28-07 while interviewing prisoner Welky 186974 he admitted to
Inspector [H]arwood and Inspector Newland that he was aware that other
prisoners had removed floor ties [sic] from a cell room, broke through th [sic]
concrete floor and were digging a tunnel toward the perimeter fence. He states
that three or four months ago prisoner Murphy 183248 asked him if he knew how
they could get a car. Prisoner Welky at no time did report this to authorities until
after the tunnel was discovered[] and was confronted. I find that prisoner Welk[y]
did assist others to commit a specific misconduct [escaping] from a secure facility
by leaving through a tunnel and concealed the violation from the authorities
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becasue [sic] the tunnel was through the outer fence. Inspector Harwood and
inspector Newland are clear and detailed in their statements and found credible.
Petitioner appealed, and the circuit court reversed and vacated the hearing officer’s
decision.
Respondent’s decision is REVERSED, however, with respect to the
accomplice to escape citation. That determination by the agency is hereby
VACATED as unsupported by competent, material and substantial evidence on
the whole record. The evidence reveals no active involvement on Petitioner’s part
in any escape. At most he is guilty of passive concealment of information relating
to an escape. However, his claimed defense of duress is established indisputably.
Record, 8.
Respondent’s Hearings Handbook, at 43, requires that, “In deciding
whether a prisoner has a valid defense of duress, the hearing officer must examine
all the evidence to determine whether the facts show that the prisoner was
threatened, was so fearful of harm that his or her free will was overcome, and
committed the misconduct because of that fear.” Further, “If a prisoner presents
the defense of duress and is found guilty of misconduct, the hearing officer must
give reasons for rejecting that defense in the ‘Reasons’ portion of the hearing
report.” Id. Here the hearing officer never addressed the issue. Record, 1.
Neither did the hearings administrator in the request for hearing. Record, 3. In
sum, the accomplice charge is not supported by substantial evidence.
On appeal, respondent notes that this Court’s review of the circuit court’s decision is to
determine whether the court “applied correct legal principles and whether it misapprehended or
grossly misapplied the substantial evidence test to the agency’s factual findings.” Boyd v Civil
Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). The standard “is
indistinguishable from the clearly erroneous standard of review.” Id. at 234-235. Respondent
then argues that the circuit court misapplied the substantial evidence test and substituted its
discretion for that of the agency.
Petitioner’s actions do not satisfy the definitions of “Accomplice” to “Escape.” There is
no indication that petitioner was involved in the other prisoners’ escape efforts. Petitioner’s
awareness of the plans does not show that he “assist[ed]” them in the commission of escape.
There is also no indication that he “conceal[ed] the violation from the authorities” “after it [was]
committed.” Respondent fails to offer a cogent explanation for how failure to inform authorities
of other prisoners’ plans or activities in preparation for escape satisfies the requisite definitions
of “Accomplice” to “Escape.” Therefore, we do not agree with respondent’s contention that the
circuit court misapplied the substantial evidence test when it concluded that the evidence did not
satisfy that standard.
Respondent also argues that, although the agency’s decision did not discuss the duress
defense proffered by petitioner, the circuit court abused its discretion by vacating the decision,
rather than remanding for the agency to make a determination.
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However, the court vacated the agency determination “as unsupported by competent,
material and substantial evidence on the whole record,” not because the agency failed to address
duress. The court’s discussion of duress follows its statement, “At most he is guilty of passive
concealment of information relating to an escape.” The discussion of the defense is significant
only if that conduct would meet the definition of “accomplice” to “escape.” For the reasons
previously stated, the conduct does not meet those definitions. Therefore, the court’s discussion
of duress was dicta, and this Court declines to further analyze its significance.
Affirmed.
/s/ Karen M. Fort Hood
/s/ David H. Sawyer
/s/ Pat M. Donofrio
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