In re Personal Restraint of Stewart

Decision Date03 February 2003
Docket Number No. 49443-1-I, No. 49573-9-I.
Citation75 P.3d 521,115 Wash.App. 319
CourtWashington Court of Appeals
PartiesIn the Matter of the PERSONAL RESTRAINT OF Darrell W. STEWART, Petitioner.

David Donnan, Washington Appellate Project, Seattle, WA, for Appellant.

Donna Mullen, Attorney General Office, Olympia, WA, for Respondent.

SCHINDLER, J.

At the time petitioner Darrell Stewart was sentenced following his 1989 conviction of two counts of first degree attempted kidnapping, two counts of second degree assault, and one count of violation of the Uniform Firearms Act, the requirement that an offender submit a preapproved residence and living arrangement was a condition of community placement the trial court had the discretion to impose, but was not required to impose. The trial court did not impose this condition on Stewart's community placement. When DOC later attempted to impose this requirement, Stewart filed a personal restraint petition (PRP) pro se, challenging DOC's authority to do so. Based on In re Personal Restraint of Capello,1 we agreed that DOC did not have the authority to impose this condition and granted his PRP.2 DOC moved for reconsideration, arguing that the March 14, 2002 amendments to RCW 9.94A.728 explicitly overrule Capello and clarify that DOC has had the authority since 1988, when the Community Custody Act was enacted, to impose this condition and that the legislation has retroactive application. We disagree. The amendments are not clarifying and, because they expressly contravene this court's construction of the statute in Capello, the separation of powers doctrine prevents the amendments from being retroactively applied to Stewart. Accordingly, we deny DOC's motion for reconsideration of our decision granting Stewart's PRP.

BACKGROUND

Statutory scheme for the community placement of sex offenders and serious violent offenders: 1988 to 1992

Both petitioner Stewart and the petitioner in Capello were sentenced under the version of the Sentencing Reform Act (SRA) in effect in 1988 and both were sentenced to terms of community placement under RCW 9.94A.120(8).

Under RCW 9.94A.120(8) (1988), an offender convicted of a serious violent offense or a sex offense was statutorily required to serve a term of community placement following release from prison.3 The SRA contained five conditions of community placement that were mandatory unless waived by the court: (1) report to and be available for contact with the assigned community corrections officer as directed; (2) work at DOC-approved education, employment, and/or community service; (3) not consume controlled substances except pursuant to lawfully issued prescriptions; (4) while in community custody not unlawfully possess controlled substances; and (5) pay community placement fees as determined by DOC.4

In addition to the five mandatory conditions, there were six optional special conditions of community placement within the sentencing court's discretion to impose.5 One of these optional special conditions was: "[t]he residence location and living arrangements of a sex offender shall be subject to the prior approval of the department of corrections".6

In 1992, RCW 9.94A.120 was amended to make preapproval of residence location and living arrangement a mandatory, rather than optional, condition of community placement applicable to offenders convicted of an offense categorized as a sex offense or serious violent offense unless the sentencing court waived it.7

Also under the SRA (both the 1988 and 1992 versions), offenders subject to community placement were not entitled to participate in the program allowing early release from prison based on earned early release credits. Instead, such offenders could become eligible for transfer to community custody status by accumulating earned early release credits for good conduct.8 An offender could not be transferred to community custody status until DOC approved the offender's proposed release plan.9

In re Personal Restraint of Capello

In In re Personal Restraint of Capello,10 the petitioner, Capello, had entered an Alford11 plea to first degree kidnapping with sexual motivation. The crime was defined as both a serious violent offense and a sex offense, and, accordingly, the trial court sentenced him to the statutorily-required term of community placement following his release from prison.12

The sentencing court declined to impose what was, at the time Capello was sentenced, the optional special condition of community placement that he provide a preapproved residence location and living arrangement. Later, when Capello sought transfer to community custody in lieu of earned early release, DOC informed him that before he could be transferred, he would have to obtain a preapproved residence location and living arrangement. Capello filed a PRP and challenged DOC's authority to impose this requirement as a condition of his transfer to community custody because the sentencing court specifically declined to impose it as a condition of his community placement.

In response, DOC argued that it had the inherent authority to require an offender to obtain a preapproved residence location and living arrangement, even where the trial court declined to impose it, because former RCW 9.94A.150(2) authorized DOC to develop a program for the transfer of offenders to community custody in lieu of earned early release. According to DOC, the preapproved residence location and living arrangement requirement is not an additional condition of an offender's sentence, but rather a part of DOC's community custody program. In support of this contention, DOC cited to Policy 350.200, which had been in effect since 1989, and under which if a release address cannot be established, an offender will remain in prison until an acceptable address is established or until the maximum release date. DOC also relied on the 1992 amended version of former RCW 9.94A.120, which made the preapproved residence location and living arrangement a mandatory, rather than optional, condition of community placement unless the sentencing court expressly waived it.13

Capello argued that DOC's authority to develop an eligibility program for community custody under former RCW 9.94A.150 did not give it the authority to impose a requirement that the trial court under former RCW 9.94A.120 specifically declined to impose. He also argued that legislative history did not support DOC's position.

This court rejected DOC's argument because it was inconsistent with the structure of the SRA in effect when Capello was sentenced and inconsistent with the legislative history. This court agreed with Capello that DOC did not have the authority to impose the preapproved residence and living arrangement requirement as a condition of community custody under former RCW 9.94A.150, where, under former RCW 9.94A.120, the sentencing court specifically declined to impose the condition. Former RCW 9.94A.120(8)(c) provided that "the court" could order special conditions of community placement. This court interpreted the statutory scheme and concluded that nothing in the SRA specifically authorized DOC to independently impose any of the special conditions set out in the statute. The court concluded:

The statutory framework of RCW 9.94A.120 evinces a legislative intent that the trial court, not DOC, has exclusive discretion to decide whether or not to waive the standard conditions enumerated in RCW 9.94A.120(8)(b), and whether or not to impose the special conditions enumerated in RCW 9.94A.120(8)(c).[14]

The court also found that the legislative history of the 1996 amendments to former RCW 9.94A.120, which authorized DOC to impose any appropriate conditions on sex offenders during their community custody terms, further undermined DOC's position. Specifically, the final legislative report for the bill amending the statute15 stated that under the then-current law, all conditions of supervision had to be imposed at the time of sentencing by the court, and could be subsequently altered only to make them less restrictive. The report also stated that DOC did not have the authority to impose additional conditions of supervision based on information it may learn about the offender while he is incarcerated.

Further, in rejecting DOC's argument that it had the inherent authority to impose the preapproved residence and living arrangement requirement as part of its community custody program, the decision noted that DOC's own directors had stated that requiring a preapproved residence and living arrangement was not part of DOC's community custody program developed pursuant to former RCW 9.94A.150(2).

Accordingly, this court granted Capello's PRP and directed DOC to transfer him to community custody when he was eligible, without the need for a preapproved residence location and living arrangement.16 DOC sought review of this court's opinion, and the Supreme Court denied review.17

DOC subsequently took the position that this court's opinion in Capello was applicable only to Capello and that all offenders affected by the Capello decision were required to file individual PRPs and obtain a court order directing their release. Petitioner Darrell Stewart is one of these offenders.

Stewart's PRP

Stewart was convicted in 1989 following an Alford18 plea of two counts of first degree attempted kidnapping, two counts of second degree assault, and one count of violation of the Uniform Firearms Act. The trial court imposed an exceptional sentence of 300 months, which included a deadly weapon enhancement, and entered findings of fact and conclusions of law in support of the exceptional sentence.19 Because first degree kidnapping is a serious violent offense,20 Stewart was statutorily required to serve a term of community placement following his release from confinement.21

The trial court sentenced Stewart to a mandatory one-year term of community placement, to begin either upon completion...

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