Opinion
No. 30052-8-III No. 30053-6-III No. 30063-3-III No. 30116-8-III No. 30296-2-III
11-22-2011
In the Matter of the Personal Restraint of CHRISTOPHER BRADY HOWARD, Petitioner.
UNPUBLISHED OPINION
PER CURIAM — Christopher Howard pleaded guilty to domestic violence felonies of second degree kidnapping, second degree assault, and harassment on July 22, 2002. Amended Felony Judgment and Sentence, State v. Howard, Grant Co. Cause No. 01100548-3 (Feb. 28, 2006). The court sentenced him to 68 months of confinement and 18 months of community custody. He was released to community custody on April 17, 2006. Response of Dep't of Corr. (Resp.) at 2. Mr. Howard then violated the conditions of his community custody a number of times and committed other crimes—all of which served to toll his term of community custody under former RCW 9.94A.171 (2008). Significantly, his violations included his threat to kill his former girl friend and her current boyfriend. His former girl friend was the victim of his original crimes. Resp. Ex. 9. The Department of Corrections (DOC) sanctioned him with 240 days of incarceration for these most recent violations and tolled his community custody term. Resp. Ex. 15. The sanction was ultimately upheld by the DOC regional appeals panel. Resp. Ex. 17. His current early release date from the sanction is December 4, 2011. Resp. Ex. 2, at 1.
Mr. Howard now petitions for immediate release from restraint based on Engrossed Substitute Senate Bill (ESSB) 5891. That bill amended former RCW 9.94A.171 and requires, among other things, that the DOC credit the community custody terms of non-sex offenders with periods of time previously tolled while the offender served sanctions for violating the conditions of the community custody. ESSB 5891 § 1(3). To prevail in his petition, Mr. Howard must show that he is unlawfully restrained. RAP 16.4(b), (c); In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212-13, 227 P.3d 285 (2010).
The interpretation, meaning, and application of ESSB 5891 are questions of law that we will review de novo. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). Our objective is to determine the legislature's intent. Id. We begin with the plain meaning of the statute's words in the context of the entire statutory scheme. Id. If the statute's meaning is plain, then we must give effect to that plain meaning. Id.
Here, the plain language of ESSB § 1(3)(a) eliminates tolling of the term of community custody while the offender is serving a sanction for violation of the conditions of that community custody:
For offenders other than sex offenders serving a sentence for a sex offense . . . , any period of community custody shall be tolled during any period of time the offender is in confinement for any reason unless the offender is detained pursuant to RCW 9.94A.740 or 9.94A.631 for the period of time prior to the hearing or for confinement pursuant to sanctions imposed for violation of sentence conditions, in which case, the period of community custody shall not toll.And the statute clearly applies retroactively: "Except as otherwise provided in this section, the provisions of this act apply to persons convicted before, on, or after the effective date of this section." ESSB 5891 § 42(1). Section 1 of the act took effect immediately (on June 15, 2011) "for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions." ESSB 5891 § 44.
RCW 9.94A.740 and RCW 9.94A.631 relate to arrests of offenders for violations of the conditions of the sentence or of the terms of community custody.
The DOC admits that, with application of ESSB 5891 § 1(3)(a), Mr. Howard had no remaining days of community custody to serve at the time he began to serve his current 240-day sanction on June 27, 2011. Second Suppl. Resp. of Dep't of Corr., at 10. But the DOC contends it is lawfully detaining Mr. Howard under another provision of the amended statute that provides the DOC a compliance period for recalculating the terms of community custody affected by the amendment:
By January 1, 2012, consistent with RCW 9.94A.171, 9.94A.501 and
section 3 of this act, the department of corrections shall recalculate the term of community custody for offenders currently in confinement or serving a term of community custody. The department of corrections shall reset the date that community custody will end for those offenders. The recalculation shall not extend a term of community custody beyond that to which an offender is currently subject.ESSB 5891 § 42(2). Because January 1, 2012 has not passed, the DOC argues, it has not violated the law and Mr. Howard fails to prove that he is unlawfully restrained. RAP 16.4(c).
Whether or not the DOC has lawfully complied with the directives of ESSB 5891, the record shows that under ESSB 5891 § 1(3)(a) Mr. Howard is being unlawfully held beyond the term of his community custody. He therefore is unlawfully restrained in violation of state law. RAP 16.4(c)(6).
Mr. Howard is, by all accounts, including his own, a dangerous man who, based on even a cursory review of this record, is likely to reoffend. His community custody violations include, as we have mentioned, threats to murder his former girl friend and her companion. The summary of his most recent assessment by the community corrections experts confirm the obvious (obvious from his lengthy and violent criminal history): "He has not adjusted to living a pro-social life in the community and has proven time and time again he poses a serious threat to the community. . . . He is a danger regardless of his settings and is still committing violations while incarcerated. It is apparent by the behavior he displays he has no interest in acclimating into [a] crime free lifestyle." Resp. Ex. 9, at 9.
For these reasons, DOC is understandably reluctant to release Mr. Howard any sooner than required by the provisions of the newly enacted ESSB 5891. But under the plain language of ESSB 5891 § 1(3)(a), Mr. Howard had already served the entire term of his community custody when he began serving the most recent sanction for violations of the conditions of that community custody. We then conclude that he is unlawfully restrained in violation of state statute and that he is entitled to immediate release as a matter of law. RAP 16.4(c)(6); RAP 16.11(b).
In light of this decision, Mr. Howard's consolidated petitions moving for recalculation of his community custody served (No. 30063-3-III) and challenging the DOC's requirement that he file an approved offender release plan (No. 30296-2-III) are dismissed as moot. Additionally, the court grants Mr. Howard's motions for accelerated review (Nos. 30052-8-III; 30053-6-III; 30116-8-III), denies his RAP 16.15(b) motions for release pending the decision on the petitions (Nos. 30052-8-III; 30116-8-III), and denies his request for appointed counsel (RCW 10.73.150). Otherwise, the petitions for relief are granted and Mr. Howard is entitled to immediate release. RAP 16.11(b).
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.