In re Personal Restraint of Adams

• Decision Date: 01 May 2006
• Docket Number: No. 54389-0-I.,54389-0-I.
• Citation: 134 P.3d 1176,132 Wn. App. 640
• Parties: In re the Matter of the PERSONAL RESTRAINT OF Dion Xavier ADAMS, Petitioner.
• Court: Washington Court of Appeals

Page 1176

134 P.3d 1176

In re the Matter of the PERSONAL RESTRAINT OF Dion Xavier ADAMS, Petitioner.

No. 54389-0-I.

Court of Appeals of Washington, Division 1.

May 1, 2006.

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

Alex Kostin, Attorney General's Office, Olympia, for Respondent.

SCHINDLER, A.C.J.

¶ 1 Dion Xavier Adams filed a personal restraint petition challenging the Department of Corrections' (DOC) determination that he is not eligible for the enhanced early release under a program in RCW 9.94A.728(1). As directed by the Legislature, DOC evaluated Adams in 2003 and determined he was eligible to earn early release under RCW 9.9A.728 (1)(b) for 50 percent of his sentence instead of the 33 percent maximum previously available. Three weeks before Adams' scheduled release in August 2004, DOC reviewed Adams' risk assessment and decided it did not adequately consider his long-time drug addiction, criminal and prison history and a number of other factors. DOC decided Adams was not eligible for early release under RCW 9.94A.728 and changed his release date from August 14, 2005 to January 5, 2006. Adams contends DOC's decision to review the previous risk assessment was not authorized by RCW 9.94A.728(1)(b). Adams also contends he was entitled to minimal due process before DOC changed its determination that he was eligible to earn early release under RCW 9.94A.728 and cancel his scheduled release date. Pro se, Adams argues DOC unlawfully retaliated against him because he exercised his constitutional right to access the courts. We conclude DOC has discretion to conduct more than one risk assessment under RCW 9.94A.728(1)(b) but before DOC cancels the release date for an inmate who DOC previously determined was eligible for early release under RCW 9.94A.728(1)(b), the inmate is entitled to minimal due process including notice and the opportunity to address any erroneous information that was the basis for the decision. We grant Adams' Personal Restraint Petition.¹

FACTS

¶ 2 In 2000, Dion Xavier Adams was sentenced to 108 months for delivery of cocaine and conspiracy to deliver cocaine in violation of RCW 69.50.401A.² Prior to July 2003, inmates could receive at most, a 33 percent early release reduction in their sentence for good conduct, former RCW 9.94A.728 (2002). In 2003, the Legislature enacted Engrossed Substitute Senate Bill 5990 amending former RCW 9.94A.728.³ RCW 9.94A.728(1)(b) allows an inmate, who DOC classifies in the two lowest risk categories, to qualify for earned early release at 50 percent of the sentence instead of the previous 33 percent. Whether an inmate is classified in the two lowest risk categories and qualifies for early release at 50 percent of his sentence, depends on the inmate's criminal history and DOC's risk assessment. There are four classification levels: RM-A, RM-B, RM-C, and RM-D. Only inmates whose DOC scores fall within classifications RM-C and RM-D qualify to earn early release time at 50 percent. RCW 9.94A.728(1)(b) requires DOC to perform a risk assessment on every eligible inmate to determine eligibility for the enhanced early release program.

¶ 3 DOC uses the Level of Service Inventory-Revised (LSI-R) as the risk assessment instrument for classifying inmates under RCW 9.94A.728(1)(b). Based on the answers an inmate gives to the questions in the LSI-R together with the inmate's criminal history, and other information in the inmate's file, DOC calculates a risk assessment score. The score, in turn, determines the inmate's classification and whether the inmate is eligible for the enhanced early release program.

¶ 4 DOC performed a risk assessment of Adams in 2003 and decided he was qualified for the enhanced early release program under RCW 9.94A.728(1)(b).⁴ In March 2004, DOC's Classification Review Committee reviewed the risk assessment and confirmed Adams was qualified for enhanced early release.

¶ 5 On June 14, 2004, Adams filed a personal restraint petition (PRP) asserting DOC miscalculated earned early release credits for the first year of his sentence by using 33 percent rather than 50 percent. In DOC's Response to Adams' PRP, DOC conceded it miscalculated Adams' earned early release credits. DOC stated the error had been corrected and Adams' scheduled early release date was August 14, 2004.

¶ 6 Three weeks before Adams' release date, DOC decided to review Adams' risk assessment as part of an on-going audit. DOC concluded Adams' previous risk assessment did not adequately take into account a number of factors including his criminal history and prison infraction record.⁵ According to DOC, the following other factors were also not given appropriate weight: "`family history (absence of stable residence arrangements); absence of contact with pro-social individuals, and Adams' severe long-standing drug addiction starting in the early teens.'"⁶ DOC changed Adams' LSI-R score making him ineligible to earn early release credits under RCW 9.94A.728(1)(b). DOC cancelled Adams' scheduled August 14, 2004 release date and set a new release date of January 5, 2006.

¶ 7 DOC then filed a Supplemental Response informing this court that after an audit of Adams' risk assessment, he was no longer qualified for early release under RCW 9.94A.728. Adams replied claiming DOC's decision to audit his risk assessment was in retaliation for his exercising his legal right to file a PRP.⁷

¶ 8 This court ordered counsel appointed to represent Adams and referred Adams' PRP to a panel.

ANALYSIS

¶ 9 When, as here, an inmate in a PRP 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 he has been unlawfully restrained.⁸ A restraint is unlawful if the challenged action is unconstitutional or violates the laws of the State of Washington. Liptrap, 127 Wash.App. 463, 469, 111 P.3d 1227 (2005); In re Personal Restraint of Dutcher, 114 Wash.App. 755, 758, 60 P.3d 635 (2002); RAP 16.4(c)(2), (6).

Risk Assessment

¶ 10 Adams asserts that the plain language in RCW 9.94A.728(1)(b)(iii) and (b)(iv) allows DOC to do a risk assessment only one time to determine whether an inmate qualifies for enhanced early release. Adams argues DOC's decision to review his previous risk assessment and reclassify him, is inconsistent with the statute. Adams also argues DOC's decision to use the LSI-R as a risk assessment instrument is inconsistent with the statute because it was designed as an on-going measure to assess risk over time.

¶ 11 The primary objective in construing a statute is to give effect to legislative intent. In re Personal Restraint of Smith, 139 Wash.2d 199, 203-04, 986 P.2d 131 (1999). Legislative intent is determined from the statutory language viewed "`in the context of the overall legislative scheme.'" Schrom v. Bd. for Volunteer Firefighters, 117 Wash.App. 542, 546, 72 P.3d 239 (2003) (quoting Subcontractors Suppliers Collection Servs. v. McConnachie, 106 Wash.App. 738, 741, 24 P.3d 1112 (2001)). In construing the statute, we avoid interpretations that are "forced, unlikely, or strained." Smith, 139 Wash.2d at 204, 986 P.2d 131. We also recognize that DOC must exercise its "delegated authority under the restraints of the statutes delegating the authority." State v. Brown, 142 Wash.2d 57, 62, 11 P.3d 818 (2000); see also McGuire v. State, 58 Wash.App. 195, 198, 791 P.2d 929 (1990) ("The power and authority of an administrative agency is limited to that which is expressly granted by statute or necessarily implied therein.").

RCW 9.94A.728(1)(b)(iii) and (iv) provide in pertinent part:

(iii) For purposes of determining an offender's eligibility under this subsection (1)(b), the department shall perform a risk assessment of every offender committed to a correctional facility operated by the department who has no current or prior conviction for a sex offense, a violent offense, a crime against persons as defined in RCW 9.94A.411, a felony that is domestic violence as defined in RCW 10.99.020, a violation of RCW 9A.52.025 (residential burglary), a violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.401 by manufacture or delivery or possession with intent to deliver methamphetamine, or a violation of, or an attempt, solicitation, or conspiracy to violate, RCW 69.50.406 (delivery of a controlled substance to a minor). The department must classify each assessed offender in one of four risk categories between highest and lowest risk.

(iv) The department shall recalculate the earned release time and reschedule the expected release dates for each qualified offender under this subsection (1)(b).

(v) This subsection (1)(b) applies retroactively to eligible offenders serving terms of total confinement in a state correctional facility as of July 1, 2003.⁹

¶ 12 Subsection (b)(iii) requires DOC to conduct "a" risk assessment of every eligible offender in a correctional facility. Use of "a," an indefinite article, rather than a definite article such as "the" indicates legislative intent that DOC conduct "at least" one risk assessment and does not limit DOC from conducting more than one risk assessment. State ex rel. Becker v. Wiley, 16 Wash.2d 340, 352, 133 P.2d 507 (1943). The other language Adams cites from RCW 9.94A.728(1)(b)(iv) that DOC "recalculate the earned release time and reschedule the expected release dates for each qualified offender," also does not mean DOC is limited to an initial risk assessment and classification. We conclude RCW 9.94A.728(1)(b) contains no language indicating the Legislature intended to limit DOC's discretion to perform only one risk assessment. Other language in the statute also supports our conclusion. RCW 9.94A.7281 states that "the changes to the maximum percentages of earned release time in chapter 379, Laws of 2003 do not create any expectation that the percentage of earned release time cannot be revised."

¶ 13 On...