COURT OF APPEALS DIV 1
STATE OF VIASHIrizTO:!
2011 FEB 21 All 6:15
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
IN RE PERSONAL RESTRAINT OF No. 73872-1-1
DIVISION ONE
MATTHEW RAY DOUGLAS SCHLEY,
PUBLISHED OPINION
Petitioner. FILED: February 21, 2017
SPEARMAN, J. — An offender facing revocation of a sentence imposed
pursuant to the drug offender sentencing alternative(DOSA) has a due process
right to have an alleged violation of a condition of the sentence proved by a
preponderance of the evidence. In this case, Matthew Schley's DOSA sentence
was revoked when the State proved by a preponderance of the evidence that he
had been terminated from the required substance abuse treatment program. But
the basis for the termination from the treatment program was a determination in a
prior proceeding that Schley had been involved in a fight, which was a violation of
program rules. That finding was proved using the "some evidence" standard
applicable to proceedings involving alleged infractions of prison rules. Though
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these very same facts established the basis for Schley's DOSA revocation they
were not proved by a preponderance of the evidence. We agree with Schley that
the failure to do so denied him due process and grant his personal restraint
petition.
FACTS
Matthew Schley pleaded guilty to first degree theft and second degree
burglary. The court imposed two concurrent DOSA sentences of 50 and 59.5
months, half to be served in prison and half in community custody. After the
sentence, Schley signed a "DOSA agreement" and a chemical dependency
treatment form. The DOSA agreement stated that Schley "may be
'administratively' terminated from the DOSA chemical dependency treatment
program"for "[a]ny major infraction that causes a change in custody level or the
violation of condition(s) outlined in the CD [chemical dependency]Treatment
Participation Requirements DOC 14-039. . . ." Br. of Appellant, App. at 23.
Chemical dependency treatment form DOG 14-039 notified Schley that "[t]he
following behaviors WILL result in termination from the Department's CD
treatment program: 1. Any threat or act of violence toward staff or another
patient." Br. of Appellant, App. at 25 (formatting omitted).
Schley entered the chemical dependency treatment program at the
Olympic Corrections Center on January 22, 2015. According to anonymous
reports, Schley taunted another prisoner in the treatment program by calling him
"Mr. DOSA." Br. of Appellant, App. at 27. After the other prisoner responded,
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Schley swung at him and missed. He grabbed the other prisoner's throat and
arm, and the two fought. Schley received minor injuries, including cuts, scrapes,
and red marks. He was charged with fighting and placed in segregation for 15
days.
At his prison infraction hearing, Schley contended that there was no fight.
He supplied five witness statements corroborating that there was no fight. He
explained that the marks on his body were minor injuries from exiting his bunk.
Under the "some evidence" burden of proof, Schley was found guilty of fighting
based on confidential witness reports and physical marks on his body. The
disciplinary findings were affirmed on appeal.
On February 10, 2015, Schley was administratively terminated from the
chemical dependency treatment program due to the fighting infraction. The
Department of Corrections (Department)then sought to revoke Schley's DOSA
because he had been terminated from chemical dependency treatment.
At his DOSA revocation hearing, Schley again argued that no fight had
occurred. He also argued that to revoke his DOSA,the fighting offense must be
reevaluated under a preponderance of the evidence standard. The hearing
officer did not reevaluate the evidence of fighting. Schley's DOSA was revoked
because he had been terminated from the chemical dependency treatment
program. As a result, Schley had to serve the remainder of his sentence in
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custody.1 The DOSA revocation was affirmed by an appeals panel and the risk
management director.
Schley filed a personal restraint petition to reinstate his DOSA sentence.
This court appointed counsel to submit additional briefing.
DISCUSSION
Burden of Proof
Schley argues that the Department violated his due process rights by
using facts proved by "some evidence" at his fighting infraction hearing to
establish a DOSA violation by a preponderance of the evidence.
To obtain relief in a personal restraint petition, a petitioner must prove that
he is being restrained and that the restraint is unlawful. RAP 16.4(a). A
petitioner's restraint is unlawful if his sentence violates the United States or
Washington Constitution. RAP 16.4(c)(2).
The legislature enacted the drug offender sentencing alternative to provide
a treatment-oriented alternative to the standard sentence. State v. Kane, 101
Wn. App. 607, 609, 5 P.3d 741 (2000). Under the DOSA program, an offender
serves less time in prison and more time in community custody while undergoing
substance abuse treatment. RCW 9.94A.660(5)(a),(b); State v. Grayson, 154
Wn.2d 333, 337-38, 111 P.3d 1183(2005). DOSA is conditioned on successful
1 Schley's judgment and sentence states that Ty the defendant fails to complete the
Department's special drug offender sentencing alternative program or is administratively
terminated from the program, he/she shall be reclassified by the Department to serve the balance
of the unexpired term of sentence." Br. of Appellant, App. at 4.
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participation in chemical dependency treatment. An offender who fails to
complete or is administratively terminated from the program must serve the
unexpired term of his or her sentence in custody. RCW 9.94A.662(3). The
Department may revoke a DOSA for administrative termination from a substance
abuse treatment program. WAC 137-25-030. An offender will be terminated from
substance abuse treatment if he or she is found guilty of a fighting infraction
under WAG 137-25-030 505. In an infraction hearing, the Department reviews
allegations under a "some evidence" burden of proof. In re Pers. Restraint of
Grantham, 168 Wn.2d 204, 216, 227 P.3d 285 (2010). But a DOSA revocation
must be proved by a preponderance of the evidence. In re Pers. Restraint of
McKay, 127 Wn. App. 165, 170, 110 P.3d 856(2005).
In McKay, the offender was in a chemical dependency treatment program
while serving the prison-based portion of her DOSA sentence. She was charged
with two infractions. In a single hearing, the hearing examiner applied a "some
evidence" standard of proof, found McKay guilty of both infractions, and revoked
her DOSA. Id. at 167-68. This court found that "the serious nature of a
proceeding resulting in revocation of a DOSA sentence requires a
preponderance of the evidence standard of proof." Id. at 168.
Here, the Department bifurcated Schley's hearings process, considering
the infraction at one hearing and the DOSA revocation at a later hearing. But the
inevitable result of a finding of guilt at Schley's infraction hearing was revocation
of his DOSA. First, Schley was found guilty of a fighting infraction based on a
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"some evidence" burden of proof. The inescapable result of that finding was
Schley's termination from his chemical dependency treatment program.
Termination from the chemical dependency treatment program led to a DOSA
revocation hearing at which revocation of Schley's DOSA sentence was the only
possible outcome. The hearing officer described the issue at the hearing:"What
was proven to me is that the program terminated you, and you being terminated,
that qualifies for a DOSA revocation." Verbatim Report of Proceedings at 37.
Thus, Schley's DOSA was revoked.
The DOSA revocation hearing did not resolve any genuine issue of fact by
a preponderance of the evidence. The DOSA hearing officer limited her finding to
whether chemical dependency treatment was terminated. The essential fact for
DOSA revocation was resolved at the infraction hearing for fighting. Schley's
DOSA was functionally revoked once he was found guilty of fighting by "some
evidence" at the infraction hearing.
Citing In re Personal Restraint of Gronquist, 138 Wn.2d 388, 978 P.2d
1083(1999), the Department argues that Schley's fighting infraction cannot be
reevaluated with a heightened burden of proof in his DOSA revocation hearing.
In Gronquist, an offender was found guilty of four "minor" infractions and was
subsequently charged with the "serious" infraction of collecting four minor
infractions. Id. at 390-91. The court held that Gronquist could not challenge prior
minor infractions in the serious infraction hearing. Id. at 403. But Gronquist is not
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controlling because, here, Schley's liberty interest is significantly greater and,
thus, so too are the due process rights that attach to the proceeding.
We determine what process is due in a particular situation by l examining
(1)the individual's liberty interest,(2)the value of the proposed procedural
safeguard to protect against erroneous deprivation of that interest, and (3)the
State's interest, including administrative and financial burdens of the proposed
procedure. In re Pers. Restraint of Bush, 164 Wn.2d 697, 705, 193 P.3d 103
(2008)(citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L.
Ed. 2d 18 (1976)). In Gronquist, the liberty interest at stake in the hearing for the
serious infraction was 10 days' loss of good time and 5 days' segregation. A
prisoner has a liberty interest in earning good time credits such that minimum
due process rights attach. Gronquist, 138 Wn.2d at 397. Minimum due process
requires that the Department review allegations under a "some evidence" burden
of proof. Grantham, 168 Wn.2d at 216.
By contrast, at stake at Schley's DOSA revocation hearing was the loss of
over two and one half years in the community. In addition, while Gronquist
enjoyed the possibility of earning back some or all of his lost good time credits,
the deprivation for Schley was irrevocable. Thus, Schley enjoys greater due
process protections, including a hearing structured to assure that the fighting
finding is based on verified facts and accurate knowledge. McKay, 127 Wn. App.
at 168-69 (citing Morrissey v. Brewer, 408 U.S. 471, 92S. Ct. 2593, 33 L. Ed. 2d
484(1972) and quoting In re Pers. Restraint of McNeal, 99 Wn. App. 617,628,
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994 P.2d 890(2000)). We conclude that due to the different liberty interests at
stake, revocation of Schley's DOSA sentence is subject to greater due process
protections than the prisoner was entitled to in Gronquist.
An additional concern in Gronquist was the substantial administrative
burden and practical ability to rehear four general infractions occurring over a six-
month period for each of the many serious infraction hearings conducted by the
Department. Those concerns are not present in this case. Here, the Department
was well aware that once Schley was charged with the single incident of fighting,
the inexorable result, if he was found to have committed the infraction, would be
termination from the treatment program and revocation of his DOSA sentence.
Given the inevitability of this process, there is minimal additional burden on the
Department to apply the appropriate burden of proof at the initial infraction
hearing.
We conclude that the Department violated Schley's due process rights by
using facts proved by "some evidence" at his infraction hearing to establish his
DOSA revocation by a preponderance of the evidence. While bifurcating the
infraction and DOSA revocation hearings appears to comply with our holding in
McKay, in fact it turns the DOSA revocation proceeding into a mere formality. At
that hearing, the Department bore the burden of proving by a preponderance of
the evidence a fact that was utterly indisputable: that Schley had been terminated
from treatment. It is a pretense to suggest that such a hearing provides the due
process protections that attach to the liberty interest at risk in a DOSA revocation
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No. 73872-1-1/9
proceeding. We hold that under McKay, proof of a fact that necessarily results in
revocation of a DOSA sentence must be by a preponderance of the evidence.
Right to Counsel
Schley contends that the Department violated his due process rights by
failing to inform him, prior to the DOSA revocation hearing, that he could request
the appointment of counsel, and that the Department had a duty to determine on
a case-by-case basis whether the request should be granted. He argues that had
he been so informed, he would have requested counsel and that the request
should have been granted. In support of this argument, Schley relies on Grisby v.
Herzog, 190 Wn. App. 786, 362 P.3d 763(2015). In that case, we held that under
the due process clause of the United States Constitution, the Department has "a
clear duty to consider the right to counsel on a case-by-case basis in community
custody violation hearings ...."2 Id. at 811; U.S. CONST. amends. V, XIV,§ 1.
The Department does not appear to dispute Schley's argument that under
Grisby, he had a right to be informed that he could request legal representation
at the hearing. The Department's primary argument appears to be that "because
Schley never requested counsel for the hearing, the Department was not
required to determine whether counsel should be appointed for Schley in the
hearing." Br. of Resp't at 14. We reject this argument because, as Schley points
2 We note that at the time of his alleged violation, Grisby was serving the out of custody
portion of his DOSA sentence. However, neither party addresses whether this is a material
distinction from the circumstances here, where, at the time of his alleged violation, Schley was
still serving the in-custody portion of his sentence. Accordingly, we assume,for purposes of this
case, that the distinction is immaterial.
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No. 73872-1-1/10
out, we will not presume waiver of a constitutional right where the State cannot
show it was made knowingly, intelligently, and voluntarily. See e.o., Miranda v.
Arizona, 384 U.S. 436, 470-71, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Here,
the evidence is virtually indisputable that Schley was advised before the hearing
that he did not have the right to request counsel. The Department has not shown
that Schley knowingly waived that right.3
The Department also argues that even if the notice was deficient, any
error was harmless because if Schley had requested counsel, the request would
have properly been denied. The Department contends that because the only
issue at Schley's revocation hearing was whether he had been terminated from
the treatment program, the issue was not sufficiently complex to warrant the
appointment of counsel.
The Department is correct that as conducted below, the only issue was
whether Schley had been terminated from the treatment program. As we have
3The Department's claim that the notice it gave to Schley was sufficient to apprise him of
the right to request counsel is meritless. The only notice Schley received on that issue was as
follows:
You have the following rights:
• To present your case to the Hearing Officer. ... However, no other
person may represent you in presenting your case. There is no
statutory right to an attorney or counsel and without prior written
approval from the Hearings Program Administrator, no attorney will be
permitted to represent you.
Br. of Appellant, App. at 31-32. The thrust of the notice, under any reasonable reading, is that in a
DOSA revocation hearing, neither an attorney nor any other persons are permitted to provide
assistance to an inmate. We reject the Department's argument that the notice may be read to
imply otherwise.
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discussed, the evidence supporting that allegation was irrefutable and the
presence of a lawyer, no matter how skillful, would have made no difference. But
Schley is entitled to a new revocation hearing at which the factual issues
underlying the fighting allegation will be determined under the proper standard of
proof. Those issues are more complex than the limited issue of whether Schley
was terminated from treatment.4
Finally, we note that at oral argument, counsel for the Department
conceded that if this case was remanded for a new hearing, it would advise
Schley that he had a right to request counsel. In light of that concession, we
assume that the Department will do so. Then, if counsel is requested, the
Department must decide, in the first instance, whether an appointment is
warranted based on the issues presented at the new hearing. We need not and
do not decide that issue here.
Scope of the Department's Authority
Schley argues that the Department exceeded its authority by imposing
three sanctions for a single incident of fighting. He contends that WAC 137-28-
350 authorizes the Department to impose only one sanction for multiple
violations arising out of a single incident. Schley counts three sanctions for
fighting: 15 days' segregation, termination from chemical dependency treatment,
4 To the extent the Department relies on In re Personal Restraint of Price, 157 Wn. App.
889, 240 P.3d 188(2010), to suggest that an allegation of fighting is insufficiently complex to
warrant appointment of counsel, we note that the nature of the allegation is not the determinative
factor. The particular facts of each case must be taken into account.
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and DOSA revocation that caused additional incarceration. While precipitated by
fighting, each sanction arose out of a distinct incident: fighting, change in custody
status, and termination from chemical dependency treatment. We find that the
Department acted within its authority under WAC 137-28-350(2) because
Schley's sanctions arose from distinct incidents.
Schley further argues that the Department's authority to revoke a DOSA
under RCW 9.94A.662(3) does not give it the discretion to revoke a DOSA for
conduct that is unrelated to chemical dependency. The Department must
exercise delegated authority under the restraints of the statutes delegating the
authority. State v. Brown, 142 Wn.2d 57, 62, 11 P.3d 818(2000). The
Department may revoke a DOSA if an offender "fails to complete the program or
is administratively terminated from the program . . ." RCW 9.94A.662(3). The
grounds for administrative termination are not defined, but the Department has a
broad grant of authority to administer its prisons. This includes a system that
rewards good behavior with "increases or decreases in the degree of liberty
granted the inmate within the programs operated by the department. ." RCW
72.09.130(1). The Department has authority to manage participation in chemical
dependency treatment with rules about prisoner behavior. This authority is
encompassed by the legislature's grant of authority for the Department to
"administratively terminate[ ]1" a prisoner from DOSA. We conclude that the
Department did not exceed its statutory authority to administratively terminate
Schley from chemical dependency treatment and thereby revoke his, DOSA.
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We grant Schley's personal restraint petition. On remand, Schley is
entitled to a new DOSA violation hearing at which the Department shall apply a
preponderance of the evidence standard to the fighting allegation.
Remanded.
WE CONCUR:
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Personal Restraint Petition Of Matthew Ray Douglas Schley
Court: Court of Appeals of Washington
Date filed: 2017-02-21
Citations: 197 Wash. App. 862
Copy CitationsCombined Opinion