In re Crowder

• Decision Date: 16 August 1999
• Docket Number: No. 41843-2-I.,41843-2-I.
• Citation: 985 P.2d 944,97 Wash.App. 598
• Court: Washington Court of Appeals
• Parties: In re the Personal Restraint Petition of Matthew S. CROWDER, Petitioner.

985 P.2d 944

97 Wash.App. 598

In re the Personal Restraint Petition of Matthew S. CROWDER, Petitioner.

No. 41843-2-I.

Court of Appeals of Washington, Division 1.

August 16, 1999.

Publication Ordered October 11, 1999.

Christopher Gibson, Nielsen Broman & Associates, Seattle, for Appellant.

Donna H. Mullen, Assistant Attorney General, Olympia, for Respondent.

GROSSE, J.

Matthew Crowder has a limited liberty interest in early release into a community custody program but we do not agree with his assertion that the Washington State Department of Corrections (DOC) deprived him of this liberty interest by denying him 101 days of earned early release credits. The grant or denial of community custody placement upon the earning of early release credits requires minimal due process but, contrary to Crowder's claim, he was afforded due process in his attempts to find suitable community placement.

On an Alford¹ plea, Crowder was convicted of two counts of third degree rape of a child. He was sentenced to two concurrent terms of 60 months' confinement. Crowder was eligible for placement in community custody² on October 24, 1997. However, he was not released into community custody until February 2, 1998, 101 days after his earned early release date for community custody. Before his release he filed this personal restraint petition and asserted that although he had been granted earned early release credits, they were being arbitrarily denied without due process.³

The State concedes that Crowder was eligible for transfer into community custody on October 24, 1997 due to earned early release credits. However, the State does not agree that Crowder was therefore entitled to release.

The State maintains that due to Crowder's own noncompliance with sexual predator release factors or other DOC program factors, Crowder could not be released.

The statutory right to earned early release credit creates a limited liberty interest requiring minimal due process.⁴ Initially the State argues that Crowder no longer possesses a limited liberty interest after the U.S. Supreme Court decision in Sandin v. Conner.⁵ While the argument may have some appeal and potential merit, the final determination of the effect of Sandin is left to our State Supreme Court.

It is important to note that unlike other offenders in the Sentencing Reform Act of 1981(SRA), offenders like Crowder, who are subject to statutory community custody or placement restrictions, are "excluded" from the program allowing general release based on earned early release credits. RCW 9.94A.150(2). Instead of general release, the Legislature specified that community placement offenders may only become eligible for transfer to community custody status. This transfer is "in lieu of" early release. Thus, the DOC is prohibited from a general release based on earned early release credits, but it has discretion to consider the offender for transfer to community custody.

Community custody is the intense monitoring of an offender in the community for a period of at least one year after release or transfer from confinement. Although it has other purposes, community custody continues in the nature of punishment,⁶ and is not equivalent to general release. This custody and placement begins upon completion of the term of confinement or at such time as the offender is transferred to community custody in lieu of earned early release awarded pursuant to RCW 9.94A.150(1) and (2).⁷ As noted in RCW 9.94A.120(9)(b), for sex offenders who committed their offenses after July 1, 1990, but before June 6, 1996, the mandatory period of community placement is two years, or up to the period of earned early release credits awarded, whichever is longer.⁸

The DOC followed its program, and Crowder was eventually released into community custody, albeit some 101 days after he could have been placed had the requisite prior approvals been in place.

With DOC's assistance, Crowder was pre-approved for early release into a proper community custody placement before the possible release date. However, the day before the scheduled timely release, the "sponsor" or person with whom he was to share housing was charged with fourth degree assault and evicted from her apartment. Placement with this person would have been a violation...