In re Covino

IN_RE_COVINO.94-286; 163 Vt 639; 660 A.2d 299

[Filed 11-Apr-1995]

[Motion for Reargument Denied 9-May-1995]


                                  ENTRY ORDER

                        SUPREME COURT DOCKET NO. 94-286

                                MARCH TERM, 1995


In re Robert Covino                 }         APPEALED FROM:
                                    }
                                    }
                                    }         Franklin Superior Court
                                    }                               
                                    }
                                    }         DOCKET NO. S291-89Fc
    


               In the above entitled cause the Clerk will enter:

    Petitioner, an inmate at the Northwest State Correctional Facility
(NWSCF), brought an action contesting the validity of a disciplinary report
filed against him, and appeals an order of the Franklin Superior Court
granting the State's motion for summary judgment.  We affirm.

    In August 1989, petitioner approached an administrative assistant at the
NWSCF concerning his pay account, which he believed was in error.  The State
charged in a disciplinary report that in the course of the ensuing discussion
he became verbally combative and directed abusive language at the assistant,
causing other inmates in the unit to become unruly as well, in violation of
an NWSCF rule against agitating or provoking staff. 

    After a disciplinary hearing at which petitioner was present, a hearing
officer found that reports from the assistant in question and an additional
staff member "clearly show that Covino argued about [the pay account] issue,
used foul language and called [the assistant] derogatory names."  He added
that "I believe that Covino did agitate [and] provoke [the assistant] . . .
and is guilty."  The hearing officer's decision was affirmed by a two-person
disciplinary committee and reviewed and affirmed by the facility
Superintendent and the Commissioner of Corrections.

    Petitioner contends on appeal that the court should not have affirmed an
administrative finding on the basis that it was supported by "some evidence." 
In LaFaso v. Patrissi, 161 Vt. 46, 51, 633 A.2d 695, 698 (1993), we held that
"due process requires prison authorities to prove inmate disciplinary
infractions by a preponderance of the evidence."  

    In the present case the fact-finder -- the hearing officer --
effectively applied the preponderance-of-evidence standard, though the word
"preponderance" was not used.  His finding that the complaint reports
"clearly show" that petitioner violated the facility rules meets the
preponderance standard.  Olson v. Union Oil Co., 78 P.2d 446, 447 (Cal. 1938)
(words "clearly proved" are understood to mean proved by a preponderance of
the evidence).  At trial and again in his brief here, petitioner seeks to 
revisit the facts generally.  The scope of review of the superior court was
narrow, and while petitioner recognizes the distinction between the
preponderance-of-the-evidence rule and the standard of "some evidence," as
explained in LaFaso, he assumes, without supportive argument, that the
hearing officer used the wrong standard, when that does not appear to be the
case.

    Finally, petitioner complains about the slow pace of this litigation,
which lay dormant for about three years following the superior court's denial
of a dismissal motion by the State.  

 

However, the present proceeding is not governed by the speedy trial
provisions of the Sixth Amendment, and in any event petitioner has not
demonstrated how he has been harmed by the delay or that he took any steps to
call the matter to the court's attention during the long hiatus. 

    Affirmed. 



    BY THE COURT:



    _______________________________________
    Frederic W. Allen, Chief Justice

    _______________________________________
    Ernest W. Gibson III, Associate Justice

    _______________________________________
    John A. Dooley, Associate Justice
  
    _______________________________________
    James L. Morse, Associate Justice

    _______________________________________
    Denise R. Johnson, Associate Justice