Kan. Admin. Regs. § 123-13-703

Current through Register Vol. 43, No. 49, December 5, 2024

Section 123-13-703 - Appeal on the record to commissioner in class I and II offense cases

(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.

Kan. Admin. Regs. § 123-13-703

Authorized by and implementing K.S.A. 38-16,130, K.S.A. 2004 Supp. 75-7024, and K.S.A. 76-3203; effective April 8, 2005.