In re Gronquist

• Decision Date: 08 November 2018
• Docket Number: No. 94971-9,94971-9
• Citation: 429 P.3d 804
• Parties: In the MATTER OF the Personal Restraint of Derek E. GRONQUIST, Petitioner.
• Court: Washington Supreme Court

429 P.3d 804

In the MATTER OF the Personal Restraint of Derek E. GRONQUIST, Petitioner.

No. 94971-9

Supreme Court of Washington.

Argued September 18, 2018

Filed: November 08, 2018

Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 SW Morrison Street, Suite 1025, Portland, OR 97205-3813, for Petitioner.

Mandy Lynn Rose, John Joseph Samson, Attorney General of Washington, 1125 Washington Street SE, P.O. Box 40116, Olympia, WA 98504-0116, for Respondent.

YU, J.

¶ 1 This case asks how a release date is calculated for a person serving consecutive sentences for felony sex offenses. In 1995, Derek Gronquist was sentenced to three consecutive, 114-month terms of total confinement for three counts of attempted first degree kidnapping with a special finding of sexual motivation. In this personal restraint petition (PRP), Gronquist claims that his sentence expired in 2016, so his continued total confinement is unlawful. The Department of Corrections (DOC) maintains that Gronquist's sentence will not expire until 2022 and that Gronquist must remain in total confinement until his sentence expires or he gets approval for a release plan, whichever comes first. The parties' dispute arises from the way DOC tracks time served on consecutive, determinate sentences for felony sex offenses.

¶ 2 Rather than tracking all consecutive terms as a single sentence, DOC tracks each term separately. According to DOC's tracking system, when Gronquist had only earned release time (ERT) remaining on a term of confinement, he reached his early release date (ERD) for that term. On each term's ERD, DOC's tracking system "stopped" that term, "tolled" the remaining ERT on that term, and started Gronquist's next consecutive term. When Gronquist reached the ERD for his third and final term, the tolled ERT periods for each of his prior terms became available and started running again. Therefore, according to DOC's tracking system, Gronquist's sentence is structured like this:

¶ 3 Gronquist, however, reasons that because each term of confinement is for 114 months, each one expired 114 months after the date it began. He contends his final term began in 2007 and therefore expired 114 months later, in 2016. Gronquist thus argues his sentence must be structured like this:¹

¶ 4 Gronquist's PRP is not frivolous. DOC's tracking system is complicated, its explanations have been confusing and contradictory, and it has not pointed to clear legal authority directly supporting its position. However, Gronquist has not shown that his continued total confinement is unlawful. He was sentenced to three consecutive, 114-month terms, adding up to 342 months. DOC has no authority to change the length of Gronquist's sentence or to run any portion of his consecutive terms concurrently. Gronquist's proposed sentence structure, however, would require it to do so. We therefore deny relief on Gronquist's PRP.

BACKGROUND

A. Terminology

¶ 5 To provide clarity for the factual background, procedural history, and legal analysis below, we first define the specific terminology used in this context.

1. "Community custody" and "community placement"

¶ 6 Pursuant to the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, at the time of Gronquist's offenses, "community custody" referred to "that portion of an inmate's sentence of confinement in lieu of earned early release time served in the community subject to controls placed on the inmate's movement and activities by the department of corrections."² Former RCW 9.94A.030(4) ( LAWS OF 1993, ch. 338, § 2). "Community placement" referred to all periods of community custody and postrelease supervision. Id. at (5).

2. "Earned release time," or "ERT"

¶ 7 "The SRA contemplates that an offender may be released from total confinement before serving the full sentence imposed by the court. This is accomplished through ‘earned release time.’ " In re Pers. Restraint of Stuhr, 186 Wash.2d 49, 52, 375 P.3d 1031 (2016). An offender in custody may accumulate ERT "for good behavior and good performance, as determined by the correctional agency having jurisdiction." Former RCW 9.94A.150(1) ( LAWS OF 1992, ch. 145, § 8). The total amount of ERT a person may accumulate is capped by statute as a percentage of his or her total sentence. Id. The applicable percentage depends on the nature of the underlying offense. Gronquist's ERT is capped at 33 percent.

In re Pers. Restraint of Smith, 139 Wash.2d 199, 201, 208-09, 986 P.2d 131 (1999).

¶ 8 DOC calculates the maximum amount of ERT a person may accumulate when the person first enters DOC custody. Stuhr, 186 Wash.2d at 54, 375 P.3d 1031. However, the amount of ERT actually accumulated will fluctuate throughout the course of a person's sentence. For instance, the person may lose ERT for disciplinary infractions. Id. at 53, 375 P.3d 1031. ERT may be lost on a prospective basis, and ERT that was previously lost can be restored in accordance with DOC policy. Id.

¶ 9 Some offenders are entitled to early general release based on accumulated ERT. Former RCW 9.94A.150(1). However, that is not true for felony sex offenders such as Gronquist. Id. at (2). "Instead of general release, the Legislature specified that [such individuals] may only become eligible for transfer to community custody status." In re Pers. Restraint of Crowder, 97 Wash. App. 598, 600, 985 P.2d 944 (1999).

¶ 10 Sex offenders thus have no "protected liberty interest in early release to community custody." In re Pers. Restraint of Mattson, 166 Wash.2d 730, 733, 214 P.3d 141 (2009). They may only become eligible for transfer to community custody in lieu of earned release, and "[the legislature granted DOC the authority to develop a program structuring the guidelines for eligibility and release of sex offenders into the community before expiration of their sentences." Id. at 743, 214 P.3d 141.

¶ 11 Pursuant to this authority, DOC has adopted Policy 350.200 (rev. Aug. 2, 2010), which requires sex offenders to submit a release plan for approval before the offender can be transferred to community custody. Without an approved release plan, the offender must serve his or her ERT in total confinement. In re Pers. Restraint of Capello, 106 Wash. App. 576, 579, 24 P.3d 1074 (2001).

3. "Early release date," or "ERD"

¶ 12 ERD is a term DOC uses to refer to the date when all that remains on a term of confinement is ERT. When a person serving a single term of confinement reaches the ERD, the person either is generally released or may become eligible for transfer to community custody, as discussed above.

¶ 13 Gronquist, however, is serving three consecutive terms. He could not be transferred to community custody until he had served all periods of total confinement on all three terms. Former RCW 9.94A.400(5) ( LAWS OF 1990, ch. 3, § 704). Therefore, on the ERD for Gronquist's first term, DOC started his second term. Likewise, on the ERD for Gronquist's second term, DOC started his third term. On the ERD for Gronquist's third and final term of confinement, he became eligible for transfer to community custody.

4. "Maximum expiration date"

¶ 14 DOC's internal tracking system and the parties' briefing use the phrase "maximum expiration date" to refer to the date on which Gronquist can no longer be held in total confinement pursuant to his judgment and sentence. The parties' disagreement focuses on what this date is.

¶ 15 The phrase "maximum expiration date" does not appear in the SRA, and it has not been used consistently in case law. For indeterminate sentences predating the SRA, we have used "maximum expiration date" to refer to the last day of the maximum prison term set by the sentencing court. E.g. , In re Pers. Restraint of Knapp, 102 Wash.2d 466, 468, 687 P.2d 1145 (1984). However, in later appellate cases considering determinate, SRA-based sentences, "maximum expiration date" has been used to refer to the last day a person may be kept in prison on his or her judgment and sentence if no ERT is accumulated. E.g. , Blick v. State , 182 Wash. App. 24, 27, 328 P.3d 952 (2014).

¶ 16 Applying this later usage, DOC is correct in its assertion that the maximum expiration date of Gronquist's sentences is on the last day of his three consecutive sentences without any adjustment for ERT. But that is not what the parties actually dispute. They agree that without ERT, Gronquist would have to stay in total confinement until 2022. They dispute whether with ERT, Gronquist's continued total confinement is unlawful.

B. Factual background and procedural history

¶ 17 On December 6 and 7, 1993, Gronquist tried to force three different teenagers into his car. State v. Gronquist, noted at 82 Wash. App. 1066, 1996 WL 1093993, at * 1. He was ultimately convicted of three counts of attempted first degree kidnapping with special findings of sexual motivation. Id. The special findings of sexual motivation make each attempted kidnapping a sex offense. Former 9.94A.030(29)(b).

¶ 18 Gronquist was given an exceptional sentence above the standard range of three consecutive, 114-month terms of total confinement. He was also sentenced to community placement "for two years or up to the period of earned release awarded pursuant to [former] RCW 9.94A. 150(1) and (2) whichever is longer."³ PRP, Attach. A, Ex. 1 (J. & Sentence, App. H).

¶ 19 Gronquist was taken into DOC custody on February 28, 1995. At that time, DOC calculated his potential ERD as occurring in 2018 and his maximum expiration date as occurring in 2022. These were hand-done calculations.

¶ 20 When DOC initially calculated Gronquist's ERD, it capped his potential ERT at 15 percent of his sentence. However, in 1999, this court held that Gronquist was statutorily entitled to accumulate ERT at a rate of 33 percent. Smith, 139 Wash.2d at 208-09, 986 P.2d 131. DOC therefore recalculated Gronquist's ERD, this time using computer software, to August 9, 2013.

¶ 21 The new software also recalculated the maximum expiration date by adding 114 months to the date Gronquist...