Personal Restraint of Gronquist, In re

Decision Date24 June 1999
Docket NumberNo. 66271-1,66271-1
Citation978 P.2d 1083,138 Wn.2d 388
CourtWashington Supreme Court
PartiesIn the Matter of the PERSONAL RESTRAINT OF Derek E. GRONQUIST, Respondent.

Christine Gregoire, Attorney General, John Blonien, Nancy Krier, Martin Wyckoff, Eric Mentzer, Assistants Attorney General, Olympia, for Petitioner.

Derek Gronquist, Airway Heights, Sheryl G. McCloud, Seattle, for Respondent.


We are asked to determine if an inmate who is disciplined by the Department of Corrections (Department), pursuant to a regulation making it a serious infraction if the inmate commits four underlying minor infractions within a specified period, may relitigate those minor infractions in the hearing on the serious infraction. We hold the inmate may not relitigate the underlying infractions and, therefore, we reverse the Court of Appeals and deny the personal restraint petition (PRP) of Derek E. Gronquist.


Was Gronquist entitled to relitigate the validity of the four general infractions 1 that constituted his serious infraction under WAC 137-28-260(657)?


Derek Gronquist is presently incarcerated, serving a 342-month sentence imposed upon his conviction in the King County Superior Court of three counts of attempted first degree kidnapping. Between October 1996 and February 1997, Gronquist was cited by prison officials at the Clallam Bay Corrections Center for four general infractions. Only one of the four general infractions charged against Gronquist is at issue in this case. 2

The disputed infraction involved unauthorized exchange of a pouch of tobacco with another prisoner. As Gronquist was leaving his cell, another prisoner offered him some tobacco. Gronquist claims he told the inmate he did not want the tobacco and asked the inmate not to give it to him. As he was closing his cell door, he claims the inmate threw the pouch of tobacco into the cell, but Gronquist could not retrieve it because the door locked behind him. A corrections officer observed the brief encounter between Gronquist and the other inmate and instructed another corrections officer to enter Gronquist's cell and identify the object thrown into it. The officer found an unopened pouch of tobacco on the cell floor. The officer then issued a general infraction notice to Gronquist based on the tobacco incident. On November 6, 1996, an officer served Gronquist with a written notice of the infraction, and a disciplinary hearing was subsequently scheduled for the morning of November 9, 1996.

Gronquist acknowledges he was properly notified of the scheduled hearing, but he did not attend the infraction hearing allegedly because his call-out button 3 malfunctioned, resulting in the attending corrections officer being unaware of his desire to leave his cell for the hearing. Gronquist claims he repeatedly pressed his call-out button, but was not released from his cell for the hearing.

The general infraction hearing on the tobacco incident proceeded as scheduled before Sergeant McGarvey, who found the absent Gronquist guilty of the tobacco infraction as charged and imposed a sanction of cell confinement for six days. Gronquist claims he only discovered the call-out button was malfunctioning after the hearing and two corrections officers could verify the fact the button was malfunctioning.

Pursuant to WAC 137-28-250, Gronquist appealed Sergeant McGarvey's decision, claiming he was innocent of the tobacco infraction and he was improperly denied his right to be present at the November 9 hearing. Gronquist's appeal was denied on the merits by a Lieutenant Long on November 18, 1996, who wrote Gronquist stating:

I have reviewed your appeal and the General Infraction Report ... Where you were at the point in time is not the issue. Another was observed putting tobacco into your cell, and there must have been some reason for him to do it, and if it was a legitimate exchange[,] staff would have be[en] aware of [the] transaction.... I concur with the Hearings Officer's decision.... Appeal denied.

Gronquist's PRP in Court of Appeals at Ex. D. By a letter dated November 27, 1996, Gronquist attempted to appeal the tobacco infraction to Robert Wright, Superintendent of the Clallam Bay Corrections Center, but Superintendent Wright never responded. 4

On February 27, 1997, Corrections Officer Vance Adamire issued a serious infraction notice to Gronquist charging him with violation of WAC 137-28-260(657) by having committed four general infractions within a six-month period. Hearings with respect to such serious infractions are commonly referred to as "657 hearings." The offense is defined as:

Being found guilty of four or more general infractions which have been reported in writing arising out of separate incidents, all of which occur within a six-month period.

WAC 137-28-260(657).

On March 31, 1997, Lieutenant Schneider held a 657 hearing at which Gronquist appeared and asserted the following defenses: (1) the unauthorized communication infraction was a general infraction that resulted in an on-site adjustment and therefore could not be considered a general infraction for purposes of a 657 serious infraction, 5 (2) he was unconstitutionally denied the right to appear at his November 9 general infraction hearing, and (3) Lieutenant Schneider could not find him guilty of a 657 serious infraction because he was denied his due process right at the 657 hearing. 6

At the 657 hearing, Lieutenant Schneider denied Gronquist's request to call various corrections officers to testify concerning the tobacco incident, or to have those corrections officers provide written statements. Lieutenant Schneider refused to call the witnesses because, as he stated, he was "not going to get back into the issue of what happened during the minors," 3-31-97 Hearing Transcript at 4, which he considered irrelevant to the serious infraction. He stated "[w]hat is relevant, [is] did you receive four general infractions in a six-month period? And were you found guilty of those infractions." Id. at 5. Upon conclusion of the 657 hearing, Lieutenant Schneider found Gronquist guilty of the serious infraction and stated:

He [Gronquist] did receive four general infractions in a six-month period. He was found guilty of the four general infractions. Due process has been completed. No infraction is overturned of the appeal. Sanction's going to be 5 days deseg [disciplinary segregation], 10 days loss of good time. It's a lesser sanction for a 657 this reporting period. Do you wish to appeal?

Id. at 6-7.

Gronquist subsequently appealed the 657 hearing decision to Superintendent Robert Wright. Superintendent Wright denied Gronquist's appeal by letter, stating:

You [Gronquist] state ... [the unauthorized communication infraction] is a Double Jeopardy. When an officer confronts an inmate's behavior of breaking unit and institutional policies, then issues an infraction accordingly, it is not considered "Double Jeopardy". You also state you missed a scheduled hearing. These are posted at least 24 hours in advance and are on the daily call-out. You further claim the call-light to your cell was malfunctioning at the only precise time you attempted to leave your cell and attend your hearing. No work order has been submitted.... I fully support the recommendation of the hearing officer. Appeal denied.

Gronquist's PRP, Ex. H at 6.

Gronquist filed this PRP in the Court of Appeals, Division One, challenging his conviction for the serious infraction, and the sanction of 5 days' disciplinary segregation and 10 days' loss of good time credits. The Court of Appeals, in a per curiam opinion, granted Gronquist's PRP in part remanding for a new hearing because the Department violated Gronquist's constitutional right to present witnesses at his 657 hearing. The court indicated Gronquist had a due process right to challenge the validity of the underlying general infractions at the 657 disciplinary hearing to determine whether he had four or more infractions in a six-month period, holding "[b]ecause Gronquist's due process rights did not attach until the 657 hearing, it was only there that he could meaningfully challenge his general infraction by presenting witnesses and other evidence to support his defense." See Gronquist, 89 Wash.App. at 603, 950 P.2d 492. The Department then sought review by this Court, which we granted.


With respect to PRPs, a petitioner is entitled to full collateral review of a conviction or sentence if the petitioner proves actual prejudice from a constitutional error, or nonconstitutional error which inherently results in a complete miscarriage of justice. In re Personal Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990). A personal restraint petition must be supported by facts or evidence upon which the petitioner's claim of unlawful restraint is based and not solely upon conclusory allegations. Id. at 813-14, 792 P.2d 506. A petitioner must present evidence that is more than speculation, conjecture, or inadmissible hearsay. In re Personal Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992).

Moreover, in a PRP challenging a prison disciplinary sanction, we further note such decision is reviewable only if the action taken was "so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding." In re Personal Restraint of Reismiller, 101 Wash.2d 291, 294, 678 P.2d 323 (1984). A prison disciplinary proceeding is not arbitrary and capricious if the petitioner was afforded minimum due process protections applicable in such cases. In re Personal Restraint of Burton, 80 Wash.App. 573, 585, 910 P.2d 1295 (1996); In re Personal Restraint of Anderson, 112 Wash.2d 546, 548-49, 772 P.2d 510 (1989), cert. denied, 493 U.S. 1004, 110 S.Ct. 565, 107 L.Ed.2d 559 (1989). Minimum due process in these cases means the prisoner must (1)...

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