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STATE OF
1018 ItPR 23 Ali II:50
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
IN RE THE PERSONAL RESTRAINT
No. 76249-4-1
OF
DIVISION ONE
FRED STEPHENS, UNPUBLISHED OPINION
Petitioner FILED: April 23, 2018
SPEARMAN, J. — Fred Stephens filed a personal restraint petition (PRP)arguing
that the Washington State Department of Corrections(DOG) miscalculated his earned
release time based on a methodology that is contrary to its own policies. He further
contends that DOG violated the constitutional prohibition on ex post facto laws by
calculating his early release date based on a policy it enacted in 2014, rather than the
1996 version of the policy. We conclude that DOC's methodology for calculating
Stephens' earned release date was within the agency's discretion, and that changes in
DOC's policy do not raise ex post facto concerns. Accordingly, we deny the petition.
FACTS
Fred Stephens was convicted of first degree murder while armed with a deadly
weapon. The crime occurred in March 1995. The high end of the range for this crime
was 320 months of incarceration. At that time, a finding that an offender committed a
violent offense while armed with a deadly weapon required the sentencing court to
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add 12 months to the standard range. See former RCW 9.94A.310(3)(1995)1.
Accordingly, on February 5, 1996, Stephens was sentenced to 332 months.
In April 2015, Stephens learned for the first time that DOC had calculated his
early release date as October 26, 2018. Stephens asserted that his early release date
should be September 18, 2018.
At issue is DOC Policy No. 350.100(Earned Release Time), which establishes
rules under which DOC awards earned release time to incarcerated offenders. Earned
release time may be granted for "good behavior and good performance" while the
offender is incarcerated. RCW 9.94A.729(1)(a). At the time Stephens was sentenced
in 1996,former RCW 9.94A.150(1)(1996)2 capped earned early release time awards
for serious violent offenses, including that committed by Stephens, at fifteen percent.
The fifteen percent cap for inmates sentenced at the time Stephens committed his
crime remains in effect today. RCW 9.94A.729(3)(b). This fifteen percent cap is
reflected in the 1996 and 2014 versions of DOC Policy 350.100.
DOC informed Stephens that it calculated his release date as follows based on
the 2014 version of Policy 350.100. On February 6, 1996, Stephens was sentenced to
332 months of confinement, which equals 10,104 days. DOC then subtracted 330
days for jail time served, and 58 days for good conduct, leaving 9,716 days remaining
on his sentence. Next, based on the fifteen percent cap on earned release time, DOC
determined that if Stephens were to earn all potential early release credits he would
be required to serve eighty-five percent of the 9,716 days remaining on his sentence,
1 Recodified as RCW 9.94A.510, Laws of 2001, Ch. 10, §6.
2 Recodified as RCW 9.94A.728, Laws of 2001, Ch. 10, §6
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equaling 8,258 days. This would yield an early release date of September 16, 2018.
However, DOC determined that Stephens lost 39.47 days of earned release time due
to "[n]ot programming or [w]orking" from March 1, 1997 to January 1, 1999. DOC
therefore added 39.47 days to the original early release date of September 16, 2018,
yielding an early release date of October 26, 2018. Petitioner's Opening Brief,
Appendix 7.
On December 21, 2016, Stephens filed a pro se personal restraint petition
alleging that the retroactive application of the 2014 version of DOC Policy 350.100
changed the methodology for calculating earned release time credits, thereby
extending his early release date in violation of the ex post facto clause of the
Washington Constitution and DOC's own policies. This court assigned counsel to
Stephens and referred his petition to a panel for consideration on the merits.
DISCUSSION
"A PRP challenging a decision from which the offender has had no previous or
alternative avenue for obtaining judicial review does not require the same heightened
threshold showing as other PRPs. To be entitled to relief, the petitioner need only
show he or she has been restrained and the restraint was unlawful." In re Personal
Restraint Petition of Silas, 135 Wn. App. 564, 569, 145 P.3d 1219 (2006),(citing In re
Pers. Restraint of Stewart, 115 Wn. App. 319, 332, 75 P.3d 521 (2003)). Stephens
challenges his restraint on two separate grounds: DOC's application of its early
release policy, and the constitutional prohibition on ex post facto laws.
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Application of Policy
Stephens challenges the methodology DOC used to arrive at an earned early
release date of October 26, 2018, based on the 2014 version of DOC Policy 350.100.
He contends that DOC's calculation method is contrary to its own policies. According
to Stephens, his early release date should be September 16, 2018 regardless of
whether the 1996 or 2014 version of the policy is applied.3
Stephens acknowledges that under RCW 9.94A.729(3)(b) and both the 1996
and the 2014 versions of Policy 350.100, earned early release time cannot exceed
fifteen percent of the sentence imposed for a serious violent offense committed after
July 1, 1990. But he points out that both policies also allow earned time and good
conduct time may be accumulated on a specified pro-rata basis.4 And for model
inmates serving lengthy sentences for class A felony crimes, it was theoretically
possible to earn early release time credits equivalent to a sentence reduction of
eighteen percent. Indeed, as applied to Stephens, the accrual rates under both the
1996 and 2014 policies would accomplish that result.
Stephens contends that in calculating his release date, to the extent there is
any applicable loss for failure to earn early release time, it should be deducted from
3 At the time Stephens committed his crime and was sentenced, DOC was operating under
the 1990 version of Policy 350.100. See Pet. Opening Br., App. 48. Stephens acknowledges this,
but nevertheless relies on the 1996 version of the policy because it provides specific rates by which
to calculate earned release time. See Pet. Opening Br. at 4, n.2. Although it appears to us that the
1990 policy is applicable here, apparently DOC concurs in Stephens' approach, so we do not
address it.
4 The 1996 version as applied to Stephens provided that good conduct time is accrued at
the rate of 3.65 days per 30-day period and earned time is accrued at the rate of 1.77 days per 30-
day period. The 2014 version as applied to Stephens provided that good conduct time is earned at
a flat rate of 10 percent, and that earned time is calculated at a rate of 1.76 days per calendar
month.
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the eighteen percent sentence reduction he claims to have accrued under the accrual
rates set forth in the policies. Using that methodology, Stephens would still have
earned early release time in excess of fifteen percent. Thus, when the statutory cap is
applied, Stephens is still entitled to the full fifteen percent reduction despite his failure
to participate in programming. Under Stephens' analysis, the resulting release date is
September 16, 2018.
Regardless of the accrual rates set forth in either the 1996 or 2014 versions of
Policy 350.100, DOC asserts that neither RCW 9.94A.729(3)(b) nor the policies permit
an inmate convicted of a class A serious violent offense to earn in excess of fifteen
percent earned early release time. Accordingly, DOC's calculation methodology uses
the fifteen percent statutory cap as a baseline. In the event that an inmate forfeits or
fails to earn early release time, DOC extends the actual early release date by the
amount of lost or unearned time according to the pro-rata formula. Using DOC's
methodology, Stephens' release date is October 26, 2018.
We agree with DOC. DOC has the statutory authority to reduce an offender's
term of incarceration by earned release time based on procedures developed and
adopted by the agency having jurisdiction over the offender. RCW 9.94A.729(1)
(formerly RCW 9.94A.150(1)). Similarly, under RCW 72.09.130, DOC is authorized to
"adopt, by rule, a system that clearly links an inmate's behavior and participation in
available education and work programs with the receipt or denial of earned early
release days and other privileges." DOC has "broad discretion to determine and
enforce the procedures by which an offender will be allowed to earn a reduction in his
sentence." In re Pers. Restraint of Stuhr, 186 Wn.2d 49, 56, 375 P.3d 1031 (2016)
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(quoting In re Pers. Restraint of Pullman, 167 Wn.2d 205, 214, 218 P.3d 913(2009)).
This system allows inmates to earn sentence reductions in accordance with DOC
policies and legislative restrictions, such as the fifteen percent cap on aggregate
earned early release time for inmates such as Stephens. The statute does not create
a right to a specific method for calculating early release credit. See In re Pers.
Restraint Petition of Foqle, 128 Wn.2d 56, 61, 904 P.2d 722(1995)(interpreting
former RCW 9.94A.150(1).
Stephens asserts that DOC's methodology for calculating his early release date
was not based on a fair reading of its own policies. He notes that Policy 350.100 does
not specify that lost time will be added onto the earliest possible release date allowed
by statute. However, there is nothing in the policy or authorizing statutes mandating
Stephens' preferred method. Rather, the legislature granted DOC the discretion to
develop a policy for granting early release credits, limited by a maximum allowable
sentence reduction. DOC's methodology falls within this permissible exercise of
discretion. "Correctional agencies are not required to grant the maximum allowable
earned release time." Stuhr, 186 Wn.2d at 53 (citing Pullman, 167 Wn.2d at 214).
Nor does DOC's methodology render the Policy's system of accumulating
credits on a pro-rata basis superfluous. DOC's methodology does not disregard the
pro-rata calculation of early release time, as Stephens claims it does. Rather, it gives
inmates the opportunity to earn credits on a pro-r6ta basis up to the statutory
maximum amount of early release time, with that amount reduced on the same pro-
rata basis by the amount of credits not earned. DOC's methodology incentivizes good
behavior in prison by rewarding ideal inmates with the opportunity to be released at
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No. 76249-4-1/7
the earliest possible opportunity determined by the legislature, and penalizing those
who decline to fully utilize this opportunity.
Stephens further argues that Policy 350.100 is ambiguous and, under the rule
of lenity, the ambiguity should be construed against DOC. But statutes authorizing
earned early release credits do not create a right to a specific calculation
methodology. Fople, 128 Wn.2d at 61. We decline Stephens' invitation to apply the
rule of lenity where the maximum early release time is unambiguously capped by
statute at fifteen percent, and DOC's Policy reflects the cap. Former RCW
9.94A.150(1); RCW 9.94A.729(3)(b). "That there are multiple ways to comply with a
statute does not make the statute ambiguous." In re Pers. Restraint Pet. of King, 146
Wn.2d 658, 665-66, 49 P.3d 854(2002).
Ex Post Facto.
Stephens argues that DOC violated the constitutional prohibition on ex post
facto laws by applying the 2014 version of Policy 350.100 to a crime he committed in
1995. U.S. Const. art. 1 §10; Wash. Const. art. I, §23. The ex post facto clause
"prohibits the State from enacting laws that retroactively increase the punishment
associated with a crime after its commission." In re Personal Restraint of Dyer, 164
Wn.2d 274, 292, 189 P.3d 759(2008)(citing State v. Pillatos, 159 Wn.2d 459, 475,
150 P.3d 1130 (2007)). A law is unconstitutionally ex post facto if it is (1) retrospective
and (2) disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 28,
101 S. Ct. 960,67 L. Ed. 2d 17(1981). "[T]he sole determination of whether a law is
'disadvantageous' is whether the law alters the standard of punishment which existed
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under prior law." State v. Ward, 123 Wn.2d 488, 498, 869 P.2d 1062(1994)(citing In
re Powell, 117 Wn.2d 175, 188, 814 P.2d 635 (1991)).
Stephens first argues that the 2014 Policy violates ex post facto because it
lessens the amount of good conduct time and earned time he could earn on a pro-rata
basis as compared with the 1996 Policy. But the fifteen percent cap on early release
time continues to apply to inmates in Stephens' position, just as it did when he
committed the crime in 1995. He could not earn early release credits beyond this Oap,
which is why the methodology that Stephens advocates results in the same early
release date under the 1996 and the 2014 versions of the Policy. The 2014 Policy
does not retrospectively disadvantage Stephens.
Stephens also argues that DOC violated ex post facto by penalizing him 40
days of earned time for failure to program or work in 1997 and 1998. At the time
Stephens was sentenced, Initiative 593, the Persistent Offender Accountability Act
(known as the "three strikes law") made offenders in his position ineligible for early
release from prison during the mandatory minimum sentence term. Former RCW
9.94A.120 (1996). Accordingly, DOC's 1996 Policy provided that offenders serving
the mandatory minimum term of their sentence "are not eligible to earn earned time
credits and therefore may not lose earned time credits." In State v. Cloud, 95 Wn. App.
606, 617-18, 976 P.2d 649(1999), this court held that Initiative 593 was
unconstitutional on procedural grounds, and directed the trial court to credit the
defendant, who was not a persistent offender, with good time credit he had already
earned.
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No. 76249-4-1/9
Pursuant to Cloud, DOC reinstated the ability of inmates to earn or lose early
release credits during the mandatory minimum portion of their sentence. Accordingly,
when calculating Stephens' early release date based on the 2014 Policy, DOC
granted Stephens the earned time he earned during the mandatory minimum portion
of his sentence, as well as increasing his early release date by 40 days for failure to
program.
Stephens argues that penalizing him with 40 days lost earned time violates ex
post facto because he was statutorily barred from losing earned time when he made
the decision not to program or work. However, the ex post facto clause is a limitation
on the power of the legislative branch, and does not apply to the judicial branch.
Rogers v. Tennessee, 532 U.S. 451, 456, 121 S. Ct. 1693, 149 L. Ed. 2d 697(2001).
A judicial decision, not a legislative action, restored Stephens' ability to earn early
release credits. Ex post facto analysis does not apply to this claim.5
Even if ex post facto applied, Stephens has not shown that he was
disadvantaged. At the time Stephens committed the crime and was sentenced, he was
statutorily ineligible to earn or lose early release credits during the mandatory
minimum portion of his sentence. He is now eligible to reap the potential benefits of
this change by claiming the credits that he earned during this time. At the same time,
Stephens wants to avoid the consequences of his failure to program or work in 1997
and 1998. Stephens cannot receive credit for time that he did not earn.
5 DOC also advances a novel argument that the ex post facto rule does not apply to any of
its policies because they do not have the force of law. But the Washington Supreme Court applied
ex post facto analysis to an inmate's challenge to a DOC policy regarding early release. In re Pers.
Restraint Pet. of Forbis, 150 Wn.2d 91, 74 P.3d 1189(2003). DOC cites no cases contrary to this
established precedent.
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In sum, DOC's methodology of calculating Stephens' early release date was
not contrary to its policies and did not violate the ex post facto clause. Stephens'
petition is denied.
et Nv•,0,,..,.., •
WE CONCUR
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