In re Dutcher

• Decision Date: 30 December 2002
• Docket Number: No. 49968-8-I.,49968-8-I.
• Parties: In re the Personal Restraint Petition of William G. DUTCHER, Petitioner.
• Court: Washington Court of Appeals

60 P.3d 635

114 Wash.App. 755

In re the Personal Restraint Petition of William G. DUTCHER, Petitioner.

No. 49968-8-I.

Court of Appeals of Washington, Division 1.

December 30, 2002.

Eric Nielsen, Nielsen, Broman & Koch, Seattle, WA, for Petitioner.

Gregory Joseph Rosen, Assistant Attorney General, Olympia, WA, for Respondent.

ELLINGTON, J.

The legislature has provided that an inmate may earn early release credits and become eligible for early release into community custody, and that eligibility for community custody depends upon the merits of the offender's release plan. The fact that the Department of Corrections (DOC) has decided to refer the offender for a civil commitment hearing does not change the department's obligation, under the statute, to consider the inmate's plan for community custody. The DOC thus had no authority to adopt a policy preventing William Dutcher from submitting a release plan and preventing its staff from investigating the plan. We grant Dutcher's personal restraint petition, and direct DOC to permit Dutcher to submit a community custody plan for investigation.

FACTS

William Dutcher was convicted of communicating with a minor for immoral purposes, a crime he committed in September, 1998. The court sentenced him to the high end of the standard range (which was also the statutory maximum), 60 months, and imposed 36 months of community custody. Dutcher has earned 20 months of early release credits, making him eligible for community custody in lieu of earned early release as of January 16, 2002.¹ On January 19, 2002, the Department of Corrections informed Dutcher he would not be permitted to submit a plan for community custody, because the End of Sentence Review Committee (ESRC) had voted to refer him for civil commitment as a sexually violent predator, and under amended DOC Policy 350.200, the referral precludes community custody. Dutcher filed this personal restraint petition, asserting that the policy violates the governing statute, due process, and the ex post facto clause.

DISCUSSION

An inmate's interest in his earned early release credits is a limited, but protected, liberty interest.² Likewise, the department's compliance with requirements of statute affecting his release is a protected liberty interest.³ When an inmate challenges a decision from which he has had "no previous or alternative avenue for obtaining state judicial review," RAP 16.4(a) requires that he show that he has been restrained, and that the restraint is unlawful.⁴ A decision by the DOC that, in essence, deprives an inmate of earned early release into community custody is such a decision.⁵

The DOC is required by statute to establish an incentive program allowing inmates to earn early release days for good behavior.⁶ For sex offenders, early release is available only by way of a transfer to community custody status: "[a] person convicted of a sex offense ... may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned early release time[.]"⁷ Community custody is "the intense monitoring of an offender in the community."⁸

At the time Dutcher committed his crime in 1998, the program developed pursuant to this statute was embodied in former DOC Policy 350.200. The 1996 policy required DOC staff to help inmates put together viable plans for release into community custody:

Institution counselors/work release community corrections officers (CCOs) are to work with an offender to develop the most appropriate release plan that will not violate conditions of the J & S, nor place the offender in a situation where she/he is likely to re-offend, and enter the results on OBTS DT37. Institution counselors/designees or work release/pre-release CCOs shall establish a community release residence with the offender and obtain confirmation from the sponsor after advising the sponsor that local law enforcement may conduct community notification (if the offender will be subject of a Special Bulletin or Law Enforcement Notification Bulletin as noted on DT07).⁹

Four months before the inmate's early release date, this policy required DOC staff to refer the release plan for investigation by a community corrections officer in the proposed county of release.¹⁰ If the investigation showed the plan was viable, did not place the offender at a likely risk to reoffend, and did not violate court imposed conditions, the offender was transferred to community custody on his early release date unless a sexually violent predator petition was filed.¹¹

In May 2001, DOC Policy 350.200 was amended to prevent DOC staff from investigating or approving the release plans of inmates who have been referred for civil commitment as sexually violent predators:

Staff will not refer the plan [for investigation] if the End of Sentence Review Committee has determined that the offender appears to meet the definition of a sexually violent predator and s/he has been referred for Civil Commitment under RCW 71.09.

....

The CCO will deny plans if the End of Sentence Review Committee has determined that the offender appears to meet the definition of a sexually violent predator and s/he has been referred for Civil Commitment under RCW 71.09.¹²

Under the amended policy, DOC refused to permit Dutcher to submit a plan. But while ESRC has "voted" to refer Dutcher for civil commitment, it has not in fact done so. DOC's refusal to accept or investigate a community custody plan before Dutcher's early release date therefore violates the department's own policy.

Despite the policy language stating DOC will deny plans only after an actual referral, ESRC does not forward a commitment referral to prosecuting authorities until three months before an inmate's final release date. All such offenders therefore effectively lose all earned early release credits. DOC contends that RCW 71.09.025(1) "appears to prevent" a referral from occurring earlier.¹³ We disagree. The statute requires the referral be made three months before the offender's "anticipated release from total confinement."¹⁴ The statute is titled "Notice to prosecuting attorney prior to release." Nothing in the statute specifies notice only at the final release date, as opposed to the earned early release date. The clear purpose of this section is simply to provide adequate notice to prosecutors so petitions can be filed before inmates are released.

DOC contends that even if it has violated its own policy, Dutcher cannot show prejudice because the ESRC has voted to refer him, so he will be referred in the near future before his final release date.¹⁵ We reject this argument. First, Dutcher is not required to show prejudice;¹⁶ rather, he need show only that his restraint is unlawful.¹⁷ DOC failed to follow its own procedures, and Dutcher has therefore made the requisite showing.¹⁸ Second, the department's leisurely approach to referral means that even if the referral is rejected by the prosecutor, Dutcher will have lost the benefit of his earned release credits. Dutcher has therefore shown prejudice.

Even if the department had followed its own procedures, the amendments to DOC Policy 350.200 conflict with the statutes governing eligibility for community custody in lieu of earned early release. Under the amended policy, sex offenders who have been referred for a civil commitment hearing by the ESRC can never become eligible for community custody status in lieu of earned early release. But under the plain language of former RCW 9.94A.150(2), all sex offenders have the opportunity to become eligible for community custody:

A person convicted of a sex offense ... may become eligible, in accordance with a program developed by the department, for transfer to community custody status in lieu of earned early release time pursuant to subsection (1) of this section[.]¹⁹

DOC contends its authority to develop an eligibility program gives it the authority to categorically exclude offenders who have been referred for civil commitment. The statute, however, applies to all sex offenders, and does not exempt—or authorize DOC to exempt—those referred for a civil commitment hearing.²⁰

Former RCW 9.94A.150(2) was amended effective March 14, 2002. New subsections expressly direct the DOC to make decisions about eligibility for early release based on the merits of an offender's release plan:

(c) The department shall, as a part of its program for release to the community in lieu of earned release, require the offender to propose a release plan that includes an approved residence and living arrangement. All offenders with community placement or community custody terms eligible for release to community custody status in lieu of earned release shall provide an approved residence and living arrangement prior to release to the community;

(d) The department may deny transfer to community custody status in lieu of earned release time pursuant to subsection (1) of this section if the department determines an offender's release plan, including proposed residence location and living arrangements, may violate the conditions of the sentence or conditions of supervision, place the offender at risk to violate the conditions of the sentence, place the offender at risk to reoffend, or present a risk to victim safety or community safety....²¹

While this statute does not apply here because of its effective date, we find it instructive because nothing in its language suggests that an ESRC referral to civil commitment changes the mandatory duty of the department to require a release plan, or permits denial of transfer to community custody simply because of the referral. Rather, the statute compels DOC to require offenders to develop a release plan, and requires DOC to base its community custody eligibility decisions on the merits of the release plan.

We recognize that an offender identified by the ESRC as meeting the definition of a sexually violent predator may have a slim...