In re Roach, 73374-1.

• Decision Date: 14 August 2003
• Docket Number: No. 73374-1.,73374-1.
• Citation: 150 Wash.2d 29,74 P.3d 134
• Parties: In re the Personal Restraint Petition of Michael W. ROACH.
• Court: Washington Supreme Court

74 P.3d 134

150 Wash.2d 29

In re the Personal Restraint Petition of Michael W. ROACH.

No. 73374-1.

Supreme Court of Washington, En Banc.

Argued May 13, 2003.

Decided August 14, 2003.

James Foley, Olympia, for Petitioner/Appellant.

Christine Gregoire, Attorney General, Gregory Rosen, Assistant Attorney General, for Appellee/Respondent.

MADSEN, J.

Petitioner Michael W. Roach seeks review of an unpublished Court of Appeals opinion dismissing his personal restraint petition. Roach contends that he is entitled to credit against his sentence for time he spent at liberty due to the negligence of the Washington State Department of Corrections (DOC) in releasing him prior to the completion of his sentence. We agree and adopt an equitable doctrine of relief for a prisoner released from state custody due to the State's negligence. An erroneously released prisoner will be granted day-for-day credit against his sentence for time spent at liberty, provided that he did not contribute to his erroneous release and while at liberty, he did not abscond any remaining legal obligations and had no criminal convictions.

On the record in this case, we find Roach is entitled to day-for-day credit against his remaining sentence. Accordingly, we reverse the Court of Appeals.

FACTS

On September 18, 1998, Roach was sentenced in Thurston County Superior Court, receiving a 13 month sentence in Cause No. 98-1-00950-4 for trafficking in stolen property in the first degree and a 31 month sentence in Cause No. 98-1-01540-7 for burglary in the first degree, theft of a firearm, and trafficking in the first degree. The judgments and sentences in both cases indicated that Roach was to serve the sentences concurrently. However, on May 3, 1999, after Roach completed his 13 month sentence and before he completed the remaining 18 months of his 31 month sentence, the DOC released him from its custody. According to the record,¹ Roach reported to the Washington Corrections Center (WCC) the day following his release, but the record does not indicate the nature of that contact. Based on the documents submitted to this court, it appears that Roach was released without further legal obligations.

On May 13, 1999, 10 days after Roach's release, the DOC realized its mistake in prematurely releasing Roach on Cause No. 98-1-01540-7. Authorities issued a warrant for his arrest, and officers attempted to locate him at his listed residence. Officers did not find Roach at home and left a card directing that he report to the DOC immediately. The Yelm and Lacey Police Departments were notified of Roach's erroneous release, as well. The DOC, however, was unsuccessful in contacting Roach. Apparently Roach moved to Indiana sometime between the day of his release and the day the DOC recognized its mistake.

In April 2002, almost three years later, Roach was stopped for a traffic violation in Indiana and then arrested on a Thurston County warrant dated May 13, 1999. It appears that Indiana released Roach after this initial arrest, and on June 10, 2002, Washington responded with the issuance of a Governor's Warrant for Roach's arrest. Before the warrant was served, Roach surrendered to Indiana authorities for extradition to Washington.

After extradition, the Thurston County Sheriff's Office investigated the circumstances surrounding Roach's erroneous release. DOC concluded that the Thurston County Jail's intake area likely never received the court documents to properly process and transition Roach to the DOC under Cause No. 98-1-01540-7. The jail's records indicated only that Roach was held on Cause No. 98-1-00950-4 "along with a criminal matter out of the Thurston County District Court."² Thus, DOC concluded that it never received notice of the 31 month sentence.

In addition, Roach's "Offender Based Tracking System Report" only referenced his incarceration in Cause No. 98-1-950-4. Roach's "Offender Chrono Report" dated August 9, 2002, however, does indicate that the judgments and sentences under both cause numbers were forwarded to the WCC on October 29, 1998.

After his return to Washington, Roach moved for review of his sentence in Thurston County Superior Court. The court held that it no longer had jurisdiction and ordered that the matter be transferred to the Court of Appeals. Roach filed a personal restraint petition in the Court of Appeals on September 11, 2002, arguing for application of the equitable doctrine of credit for time spent at liberty as recognized by the Ninth Circuit in United States v. Martinez, 837 F.2d 861 (9th Cir.1988). He additionally claimed that his erroneous release and subsequent re-incarceration violated due process. The Court of Appeals dismissed the petition. In re Pers. Restraint of Roach, No. 29305-6-II (Wash. Ct.App. Nov. 21, 2002). The court found that no Washington court has adopted the federal common law doctrine of credit for time at liberty. The court also held that Roach failed to show that the DOC acted with gross negligence, as required to prove a due process violation. Id. slip op. at 2 (citing Green v. Christiansen, 732 F.2d 1397, 1399 (9th Cir.1984); Johnson v. Williford, 682 F.2d 868, 873 (9th Cir.1982)).

This court granted review.³

ANALYSIS

Whether to adopt the equitable doctrine of credit for time at liberty presents an issue of first impression in Washington. However, many federal and state courts have addressed whether principles of equity require that the sentence of a mistakenly released prisoner be credited with time spent out of custody. E.g., Clark v. Floyd, 80 F.3d 371 (9th Cir.1996)

; Dunne v. Keohane, 14 F.3d 335 (7th Cir.1994); Martinez, 837 F.2d 861; Kiendra v. Hadden, 763 F.2d 69 (2d Cir. 1985); Green, 732 F.2d 1397; Smith v. Swope, 91 F.2d 260 (9th Cir.1937); White v. Pearlman, 42 F.2d 788 (10th Cir.1930); McCall v. State, 594 So.2d 733 (Ala.Crim. App.1992); McKellar v. Ariz. State Dep't of Corrections, 115 Ariz. 591, 566 P.2d 1337 (1977); see also Gabriel J. Chin, Getting Out of Jail Free: Sentence Credit for Periods of Mistaken Liberty, 45 Cath. U.L.Rev. 403 (1996). In these decisions, courts have moved away from a strict application of the traditional rule requiring a released prisoner to serve his full sentence no matter the circumstances of his release, e.g., United States v. Loisel, 25 F.2d 300 (5th Cir.1928) (denying credit for delay in execution of sentence); Leonard v. Rodda, 5 App. D.C. 256 (1895) (denying credit for time erroneously released), and have granted an erroneously released prisoner relief based on principles of equity and fairness.

The Tenth Circuit in Pearlman, 42 F.2d at 789, was the first court to credit a released prisoner's sentence for time erroneously spent at liberty. In Pearlman, the court held "that where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, that his sentence continues to run while he is at liberty." Id. The court reasoned:

A prisoner has some rights. A sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or some fault of the prisoner, and he cannot be required to serve it in installments. Certainly a prisoner should have his chance to re-establish himself and live down his past. Yet, under a strict rule ... a prisoner sentenced to five years might be released in a year, picked up a year later to serve three months, and so on ad libitum, with the result that he is left without even a hope of beating his way back.

Id.

Courts have examined the governing principles of Pearlman and have identified two bases for granting relief to an erroneously released prisoner; one is rooted in equity, the other in the due process clause. Courts granting equitable relief grant day-for-day credit against a sentence for time spent at liberty where the government mistakenly released a prisoner through inadvertence or mere negligence. E.g., Clark, 80 F.3d at 374

; Dunne, 14 F.3d at 336 (credit not granted on facts); Martinez, 837 F.2d at 865; Kiendra, 763 F.2d at 73; Green, 732 F.2d at 1400; Swope, 91 F.2d at 262; Pearlman, 42 F.2d at 789; McCall, 594 So.2d 733; McKellar, 115 Ariz. at 593-94,

566 P.2d 1337.

Courts granting relief as a matter of due process clause analyze whether reincarceration after an erroneous release violates the convicted person's due process rights. The remedy is a complete exoneration of the remainder of the sentence. Courts have found due process violations where the government's conduct in releasing the prisoner amounted to gross negligence and the prisoner was at liberty for a long period of time. E.g., Johnson, 682 F.2d at 873

; United States v. Merritt, 478 F.Supp. 804, 807-08 (D.D.C.1979); Piper v. Estelle, 485 F.2d 245, 246-47 (5th Cir.1973); Shields v. Beto, 370 F.2d 1003, 1005 (5th Cir.1967); Derrer v. Anthony, 265 Ga. 892, 463 S.E.2d 690, 693-94 (1995); Brown v. Brittain, 773 P.2d 570, 575 (Colo.1989); In re Messerschmidt, 104 Cal.App.3d 514, 163 Cal.Rptr. 580, 581 (1980).

In this case, Roach argues for the adoption and application of the equitable doctrine as constructed by the Ninth Circuit. Martinez, 837 F.2d at 865 (citing Green, 732 F.2d at 1400; Swope, 91 F.2d at 262; Pearlman, 42 F.2d at 789). Under "the doctrine of credit for time at liberty," the Ninth Circuit grants a convicted person credit against his sentence for time spent at liberty due to "simple or mere negligence on behalf of the government" and "provided the delay in execution of sentence was through no fault of [the convicted person]." Martinez, 837 F.2d at 865. Roach argues that the doctrine applies here because the DOC acted negligently in releasing him before the completion of his sentence, and he did not contribute to the erroneous release. Roach was at liberty from May 3, 1999 until April 2002, approximately 35 months. To credit his sentence with this time at liberty would complete his service; thus, rendering his...