In re Schley

• Decision Date: 26 July 2018
• Docket Number: No. 94280-3,94280-3
• Citation: 421 P.3d 951
• Court: Washington Supreme Court
• Parties: IN RE Personal Restraint Petition of Matthew Ray Douglas SCHLEY, Petitioner.

421 P.3d 951

IN RE Personal Restraint Petition of Matthew Ray Douglas SCHLEY, Petitioner.

No. 94280-3

Supreme Court of Washington.

Argued January 16, 2018

Filed July 26, 2018

John Joseph Samson, Corrections Division, 1125 Washington Street SE, P.O. Box 40116 Olympia, WA 98504-0116, for Petitioner.

Maria Leslie Zink, The Law Office of Maria Zink PLLC, 1037 NE, 65th Street, #80840, Seattle, WA 98115, Gregory Charles Link, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-3647, for Respondent.

Nicholas Brian Allen, Kimherlee L. Gunning, Attorney at Law, 101 Yesler Way, Suite 300, Seattle, WA 98104-2528, for Amicus Curiae(Columbia Legal Services).

Rachael Elizabeth Seevers, Disability Rights Washington, 315 5th Avenue S, Suite 850, Seattle, WA 98104-2691, for Amicus Curiae(Disability Rights of Washington).

Robert Charles Boruchowitz, Seattle University School of Law, 901 12th Avenue, Seattle, WA 98122-4411, for Amicus Curiae(The Defender Initiative).

OWENS, J.

¶1This case properly presents one issue: after a trial court imposes a drug offender sentencing alternative (DOSA), what evidentiary standard does due process impose on the Department of Corrections(Department) when revoking that sentence?Our legislature enacted the DOSA statute as a "treatment-oriented" alternative to a standard range sentence of confinement.LAWS OF 1995, ch. 108 pmbl.If a trial court finds that the sentencing alternative is "appropriate" for an individual, half of the sentence is suspended and the person is provided with substance abuse treatment, within available resources.RCW 9.94A.660(3), .662(2).This special sentencing alternative has been found to "significantly lower[ ] recidivism rates for drug offenders" and provides benefits of $7 to $10 for every dollar the state spends on drug offenders given a DOSA sentence.ELIZABETH DRAKE, WASH. STATE INST .FOR PUB. POLICY, WASHINGTON’S DRUG OFFENDER SENTENCING ALTERNATIVE: AN UPDATE ON RECIDIVISM FINDINGS 1, 4 (Dec. 2006)(boldface omitted).Matthew Schley’s DOSA was revoked by the Department based on a fighting infraction that was proved only by the some evidence standard.Schley filed a personal restraint petition alleging that the DOSA revocation hearing violated his right to due process because the Department failed to prove the fighting infraction by the higher proof standard required at revocation hearings, preponderance of the evidence.The Court of Appeals granted relief, holding that a fact that necessarily results in DOSA revocation must be proved by a preponderance of the evidence.We affirm the Court of Appeals.

PROCEDURAL AND FACTUAL HISTORY

¶2Matthew Schley was sentenced under the DOSA statute after pleading guilty to first degree theft and second degree burglary.RCW 9.94A.660.This special sentencing alternative allows the court to waive half of the midpoint of the standard sentence range and instead impose a term of community custody.RCW 9.94A.662(1).Accordingly, Schley was sentenced to 29.75 months of incarceration with chemical dependency treatment services and 29.75 months of community custody that included a substance abuse treatment program.The DOSA statute provides that if a DOSA recipient fails to complete the treatment program or is administratively terminated from the program, then the Department shall revoke the DOSA.RCW 9.94A.662(3).If the DOSA is revoked, then the term of community custody is struck and the offender will serve the remainder of his or her sentence in prison.Id.

¶3 Just a week into his prison-based chemical dependency treatment, Schley received a fighting infraction.According to the Department, Schley argued with another offender, attempted to punch him but missed, and then grabbed his throat and arm.The other offender admitted to punching and kicking Schley after Schley grabbed his throat and arm.At the prison disciplinary hearing, Schley denied the allegations and submitted witness statements from five other DOSA recipients stating they did not see any altercation between him and the other offender.Nonetheless, the hearing officer found him guilty under the some evidence standard and sentenced him to 15 days in segregation and a loss of 15 days of good conduct time.

¶4 The fighting infraction set the stage for swift revocation of Schley’s DOSA.The day after the prison disciplinary hearing, the clinical staff terminated Schley from the treatment program for the fighting infraction.The Department then held a hearing to determine whether Schley’s DOSA should be revoked.At the DOSA revocation hearing, the Department hearing officer found Schley guilty of infraction 762: "[f]ailing to complete or administrative termination from a DOSA substance abuse treatment program."WAC 137-25-030.Schley, representing himself, argued that he had a right to challenge the fighting infraction before his DOSA could be revoked.The hearing officer stated that the only issue before her was whether he had been administratively terminated from treatment.

¶5 The hearing officer found by a preponderance of the evidence that the clinical staff had indeed terminated Schley from treatment and consequently revoked Schley’s DOSA.By revoking his DOSA, Schley lost access to treatment and was sentenced to serve the remainder of his 5-year sentence in prison.This meant that his 29.75 months of community custody was converted to time in prison without substance abuse treatment.An appeals panel affirmed the revocation, holding it lacked jurisdiction to review the fighting infraction issue.This decision was affirmed by a risk management director.

¶6 Schley filed a personal restraint petition in the Court of Appeals, challenging the DOSA revocation on three grounds: (1) the Department did not meet the correct burden of proof, (2)he was denied the right to counsel, and (3) the Department exceeded its authority by imposing three sanctions for a single incident and by revoking a DOSA for conduct unrelated to chemical dependency.The Court of Appeals granted relief based only on the first issue and remanded for a new DOSA revocation hearing, holding that the Department violated Schley’s due process rights when it failed to prove the prison infraction by a preponderance of the evidence.In re Pers. Restraint of Schley , 197 Wash. App. 862, 870-74, 392 P.3d 1099(2017).The court held that a fact that necessarily results in revoking a person’s DOSA must be proved by a preponderance of the evidence.Id.The court rejected Schley’s challenge to the Department’s authority and declined to decide whether Schley’s hearing warranted counsel, noting that the Department should do so on remand.Id. at 872, 392 P.3d 1099.

¶7 The Department moved for discretionary review, arguing that it needed to prove only that Schley’s treatment was terminated, not the fighting infraction, by a preponderance of the evidence and that the Court of Appeals wrongly held Schley’s hearing warranted appointing him counsel.We granted review of these issues and denied review of the issues raised in Schley’s cross motion for discretionary review.In re Pers. Restraint of Schley,189 Wash.2d 1001, 403 P.3d 38(2017).After oral argument, Schley’s counsel notified this court that Schley had been released from custody, having served the full term of the revoked sentence, and was not subject to any term of community custody.

ISSUES

¶8 1.Must the Department prove a prison infraction by a preponderance of the evidence if it serves as the only basis for revoking a DOSA?

¶9 2.Was Schley entitled to counsel at his DOSA revocation hearing?

STANDARD OF REVIEW

¶10 A petitioner bringing a personal restraint petition is "entitled to full collateral review of a conviction or sentence if the petitioner proves actual prejudice from a constitutional error."In re Pers. Restraint of Gronquist,138 Wash.2d 388, 396, 978 P.2d 1083(1999).When reviewing a Court of Appeals’ decision on a personal restraint petition, "we review pure questions of law de novo and the question of deference to the Court of Appeals does not arise."In re Pers. Restraint of Coats , 173 Wash.2d 123, 133, 267 P.3d 324(2011)."Statutory interpretation is a question of law, subject to de novo review."City of Spokane v .Spokane County , 158 Wash.2d 661, 672, 146 P.3d 893(2006).

ANALYSIS

¶11We must first address the court’s authority to decide this appeal in light of Schley being released from custody without conditions.While the expiration of Schley’s sentence technically renders this case moot, we may retain and decide the appeal if it "involves matters of continuing and substantial public interest."State v . Hunley,175 Wash.2d 901, 907, 287 P.3d 584(2012).To determine whether the appeal presents issues of continuing and substantial public interest, we consider three factors: " ‘the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.’ "Sorenson v . City of Bellingham,80 Wash.2d 547, 558, 496 P.2d 512(1972)(quoting People ex rel. Wallace v . Labrenz,411 Ill. 618, 622, 104 N.E.2d 769(1952)).Deciding whether the Department’s interpretation of evidence standards at DOSA revocation hearings violates due process rights presents an issue of public interest.Our ruling on this matter will provide helpful guidance for the Department staff and hearing officers and for individuals serving a DOSA.Because DOSA revocation hearings are not a rare occurrence, the legal questions brought by Schley would undoubtedly reoccur.All three considerations weigh in favor of review here, and thus, we will decide this appeal.

¶12 The only issue properly before us is whether due process requires the Department to prove an infraction underlying a treatment termination decision by a preponderance of the evidence in order to revoke a DOSA.

I.The Department Must Prove an Infraction by Preponderance...