Opinion
No. 39505-7-III
03-19-2024
In the MATTER OF the Personal Restraint of Steven C. ALLGOEWER, Petitioner.
Steven C. Allgoewer (Appearing Pro Se), #847375, Monroe Correctional Complex-Tru, P.O. Box 888, Monroe, WA 98272, for Petitioner. Timothy Norman Lang, Gregory Kennedy Ziser, Office of the Attorney General of Washington, 1125 Washington St. Se., Olympia, WA, 98501-2283, for Respondent.
Steven C. Allgoewer (Appearing Pro Se), #847375, Monroe Correctional Complex-Tru, P.O. Box 888, Monroe, WA 98272, for Petitioner.
Timothy Norman Lang, Gregory Kennedy Ziser, Office of the Attorney General of Washington, 1125 Washington St. Se., Olympia, WA, 98501-2283, for Respondent.
OPINION PUBLISHED IN PART
Staab, J.
¶1 Steven C. Allgoewer was convicted in Spokane County in 2008 on one count of indecent liberties by forcible compulsion and one count of second degree assault with sexual motivation. The trial court imposed an indeterminate sentence with a minimum term of 80 months. The Indeterminate Sentence Review Board (ISRB or Board) released Allgoewer to community custody in June 2020, and in February 2022 he was arrested for suspected violation of his community custody conditions. He was charged with nine violations, and pleaded guilty to five of the violations. Following a hearing, the hearing officer found he was guilty on all nine violations and revoked Allgoewer’s community custody.
¶2 Allgoewer filed this personal restraint petition (PRP) raising several issues. He challenges the validity of certain conditions, the procedures employed before and during the hearing, and the revocation decision itself. Specifically, Allgoewer asserts that several conditions are not statutorily authorized and are unconstitutional on various grounds. Procedurally, he contends his community corrections officer (CCO) conducted an illegal search, his statements to his CCO should have been suppressed, that misconduct by the assistant attorney general and the CCO violated his right to a fair hearing, and the ISRB failed to follow its own procedural rules. Finally, he contends the ISRB abused its discretion on a number of grounds. He asks this court to reverse the revocation decision and order the ISRB to release him back to community custody.
¶3 In the published portion of our opinion we agree with the ISRB that most of Allgoewer’s challenges to the validity of his community custody conditions are untimely. In the unpublished portion of the opinion we deny relief on Allgoewer’s remaining issues and dismiss Allgoewer’s PRP.
The facts regarding Allgoewer’s underlying crime are taken largely from this court’s unpublished opinion in Allgoewer’s direct appeal, see State v. Allgoewer, noted at 148 Wash. App. 1033 (2009).
¶4 In 2008, Steven Allgoewer was convicted in Spokane County Superior Court of one count of indecent liberties by forcible compulsion and one count of second degree assault with sexual motivation. His convictions arose from an attack on an adult woman who was unknown to Allgoewer while she was walking down the sidewalk. The victim alleged that Allgoewer tackled her to the ground, lifted her skirt, and sexually assaulted her. During the struggle, Allgoewer choked her so that she could not breathe or scream, then jumped up and ran away. Although Allgoewer denied that he had touched, or tried to touch, her vagina, and he denied intending to rape her, he admitted that he attacked the victim for a sexual purpose. The presentence investigation report (PSI) indicates that when speaking to police, Allgoewer admitted to similarly attacking two or three other women.
¶5 Allgoewer filed a direct appeal successfully arguing that the crimes constituted the same criminal conduct. On remand, the trial court resentenced Allgoewer under former RCW 9.94A.712 (currently RCW 9.94A.507) to an indeterminate sentence with an 80-month minimum term of confinement and a maximum term of life. The court did not impose any of the community custody conditions at issue in this petition.
¶6 After Allgoewer served his minimum term in this matter and his term of confinement in another matter, he petitioned the ISRB for release to community custody. The ISRB denied release several times and extended Allgoewer’s minimum sentence by 72 months total. The ISRB found Allgoewer releasable on February 19, 2020.
¶7 On April 22, 2020, the ISRB ordered Allgoewer’s release subject to various release conditions imposed pursuant to RCW 9.95.420. Allgoewer agreed to his conditions. The form Allgoewer signed also informed him of his right to appeal the conditions to the ISRB. Allgoewer administratively appealed several of the ISRB-imposed conditions, and the ISRB denied the appeal on June 1, 2020.
¶8 The Department of Corrections (DOC) released Allgoewer to community custody on June 1, 2020.
¶9 On February 8, 2022, a CCO arrested Allgoewer for violating the conditions of his community custody. He subsequently pleaded guilty to five violations and was found to have committed an additional four violations after a hearing. On March 28, 2022, the ISRB revoked Allgoewer’s conditional release and ordered Allgoewer to serve a new minimum term of 30 months before he would be eligible to petition the ISRB for release.
¶10 Additional facts relevant to Allgoewer’s challenges to this hearing are set forth below.
¶11 Allgoewer filed this PRP on February 2, 2023, challenging several of the ISRB-imposed community custody conditions imposed upon his release in 2020 and challenging the ISRB’s revocation decision on multiple grounds. After receiving the DOC’s response and Allgoewer’s reply, this court transferred the petition to a panel of this court for review. Allgoewer’s current conditional release review date is May 9, 2024.
Allgoewer filed a motion to accelerate this matter based on his anticipated review date. The motion was referred to the panel, and we grant accelerated review.
STATUTE OF LIMITATIONS
¶12 Allgoewer raises a number of statutory and constitutional challenges to the validity of various community custody conditions. The ISRB responds that these challenges are time-barred because the two-year statute of limitations began to run on these challenges in April 2020 when the conditions were imposed by the ISRB. Allgoewer concedes that the two-year statute of limitations period applies, but argues that the statute of limitations period should be tolled under the circumstances. In addition, he suggests that the statute of limitations period for those conditions that he was found to have violated commenced or recommenced after the violation hearing. Finally, he makes a fleeting comment that some of the conditions are exempt from the statute of limitations period because they are facially invalid. After the parties submitted their briefs in this case, Division One of the Court of Appeals issued an unpublished decision holding that the two-year statute of limitations period begins to run from the enforcement of a condition, even if the condition is invalid. In re Pers. Restraint of Thompson, No. 83298-1-I, slip op. at 5, 2023 WL 8369997 (Wash. Ct. App. Dec. 4, 2023) (unpublished), https://www.courts.wa.gov /opinions/pdf/832981.pdf.
¶13 We conclude that Allgoewer has not demonstrated grounds for equitable tolling. We also disagree with the holding in Thompson and conclude that since most of Allgoewer’s challenges to his community custody conditions accrued more than two years ago, these challenges are now time-barred. Allgoewer’s grounds for challenging the validity of his community custody conditions remained the same before and after these conditions were enforced and the limitations period did not recommence when Allgoewer was found in violation of those conditions. Finally, we decline to address whether the court should create an exception to the two-year statute of limitations applicable here because the issue has not been adequately briefed.
¶14 To properly address this issue, we consider the distinction between a PRP filed under chapter 10.73 RCW and those governed solely by RAP 16.4.
[1] ¶15 PRPs that challenge an underlying judgment and sentence are limited in time and manner under chapter 10.73 RCW. For example, obtaining relief in a PRP filed under chapter 10.73 RCW requires a threshold showing of actual and substantial prejudice for constitutional issues or "‘a fundamental defect which inherently results in a complete miscarriage of justice,’" for non-constitutional issues. In re Pers. Restraint of Cook, 114 Wash.2d 802, 811, 792 P.2d 506 (1990) (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)). In addition, challenges under this chapter have a shortened one-year statute of limitations. RCW 10.73.090(1). These limitations recognize that a defendant filing a PRP under this chapter has already had an opportunity for a direct appeal, and balance the need for finality with the interest in providing review for prejudicial errors. See Cook, 114 Wash.2d at 809, 792 P.2d 506.
[2, 3] ¶16 The policy reasons behind these limitations do not apply "when the challenge is to a decision … from which the inmate generally has had no previous or alternative avenue for obtaining state judicial review." In re Pers. Restraint of Cashaw, 123 Wash.2d 138, 148-49, 866 P.2d 8 (1994). Thus, when an inmate files a PRP that challenges a Board decision, the restrictions do not apply and the petitioner is required to meet only the requirements of RAP 16.4 by demonstrating unlawful restraint. See id. at 149, 866 P.2d 8. In addition, since a PRP outside of chapter 10.73 RCW is an original action that is civil in nature, the two-year "catchall" statute of limitations period of RCW 4.16.130 applies. See In re Pers. Restraint of Heck, 14 Wash. App. 2d 335, 340-41, 470 P.3d 539 (2020).
Tolling
¶17 Allgoewer concedes that the two-year statute of limitations period generally applies, but contends that it should not apply to his case for several reasons.
[4] ¶18 First, he contends that equitable tolling should apply under the circumstances. Historically, equitable tolling required the party seeking to extend the statute of limitations to demonstrate "bad faith, deception, or false assurances" by the other party. In re Pers. Restraint of Haghighi, 178 Wash.2d 435, 448, 309 P.3d 459 (2013). Under the recent decision in Fowler, a petitioner may still be entitled to equitable tolling in the absence of bad faith, deception, or false assurances by the State if he demonstrates "that [he] diligently pursued [his] rights and [ ] that an extraordinary circumstance prevented a timely filing." In re Pers. Restraint of Fowler, 197 Wash.2d 46, 54, 479 P.3d 1164 (2021) (extraordinary circumstances presented by offender’s counsel’s failure to file timely petition).
[5] ¶19 Allgoewer fails to demonstrate how equitable tolling should apply here. Allgoewer contends that an extraordinary circumstance existed in the form of the COVID- 19 (pandemic) that resulted in the closure of the law library and instituted stay-at-home orders that prevented him from conducting the necessary research to challenge his conditions. He also appears to argue that the closures prevented him from electronically filing his PRP. However, the record indicates he had a personal laptop in June 2020, when he signed the Department of Corrections Internet Monitoring Agreement, Allgoewer provides few details demonstrating that the pandemic actually prevented him from filing the PRP during the entire two-year statute of limitations. Notably, he managed to appeal the conditions to the ISRB in May or June 2020, which was during the pandemic. Even if Allgoewer is correct that the pandemic and resulting closures constituted an extraordinary circumstance, the limited facts he provided fail to demonstrate that Allgoewer exercised due diligence but was unable to file his PRP within the two-year statute of limitations.
Coronavirus disease 2019.
Enforcement
[6–8] ¶20 Next, Allgoewer suggests that the limitations period for the community custody conditions that Allgoewer was found to have violated did not commence until the violation hearing. The timeliness of a challenge to community custody conditions depends on several factors including the nature of the challenge, whether the record is sufficiently developed, and the timing of the challenge. A person who has been released "‘from total confinement to community custody …’ is under restraint for purposes of RAP 16.4(b)." In re Pers. Restraint of Ansell, 1 Wash.3d 882, 892, 533 P.3d 875 (2023) (quoting In re Pers. Restraint of Winton, 196 Wash.2d 270, 275, 474 P.3d 532 (2020)). "A person subject to such community custody conditions may raise a challenge to the conditions through a PRP, where they must show that they are restrained and that the restraint is unlawful." Id. at 892, 533 P.3d 875 (citing RAP 16.4(a)-(c)).
[9, 10] ¶21 "Preenforcement challenges to community custody conditions [are routinely considered and] are ripe for review when the issue raised is primarily legal, further factual development is not required, and the challenged action is final." State v. McWilliams, 177 Wash. App. 139, 153, 311 P.3d 584 (2013). However, not all community custody conditions are ripe for review when imposed. Some require further factual development. Once community custody conditions become ripe for review, the statute of limitations begins to accrue. See In re Pers. Restraint of Barnes, No. 54322-2-II, 2021 WL 1759240 (Wash. Ct. App. May 4, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/D254322-2-IIÜnpublishedÖpinion.pdf (personal restraint petition challenging the validity of community custody conditions imposed by the ISRB was untimely when filed more than two years after denial of the petitioner’s administrative appeal of the conditions).
See McWilliams, 177 Wash. App. at 153, 311 P.3d 584 (some conditions like those imposing financial obligations or allowing for the search of a residence may not be ripe if they require further factual development demonstrating actual harm); State v. Autrey, 136 Wash. App. 460, 470-71, 150 P.3d 580 (2006) (constitutionality of community custody condition allowing compliance monitoring of the defendant not ripe for review, because no search had occurred).
¶22 In this case, Allgoewer contends that his PRP is timely because it was filed within two years of his violation hearing. In Thompson, Division One addressed a similar scenario where the inmate challenged the validity of the community custody conditions after he was found to have violated those conditions and his release was revoked. In re Pers. Restraint of Thompson, No. 83298-1-I, slip op. at 4, 2023 WL 8369997 (Wash. Ct. App. Dec. 4, 2023) (unpublished), https://courts.wa.gov/opinions/pdf/832981.pdf. The ISRB similarly argued that because the conditions had been imposed more than two years prior, the statute of limitations on challenging the validity of those conditions had expired. Id. at 5.
¶23 Division One disagreed with the ISRB and found Thompson’s challenge timely. The court reasoned that the limitations period "begins to run when the government action subsequently challenged on collateral attack occurs." Id. The court noted that when a petitioner asserts unlawful restraint due to the imposition of community custody conditions, the petitioner is seeking relief from the requirement to conform to the conditions. Id. On the other hand, restraint in the form of revocation of release is a separate restraint. Id. Noting that Thompson was alleging unlawful restraint "not because he was subject to those conditions, but because the ISRB revoked his conditional release based on violations of the conditions," the court concluded that "[r]estraint resulting from the enforcement of an invalid condition of supervision remains unlawful restraint," under RAP 16.4(c)(6). Id. at 4, 5. This is true, the court reasoned, even though Thompson was asserting that the revocation was improper because the underlying condition was invalid. Id. at 5. Since Thompson filed his petition within two years of enforcement of the invalid condition, the court concluded that his petition was timely. Id. Other than RAP 16.4(c)(6), the court did not cite any authority for this conclusion.
¶24 To the extent that Thompson holds that the statute of limitations on challenges to the validity of a community custody condition accrues or recommences because the type of a defendant’s restraint changed due to a violation, we decline to follow it. Under RAP 16.4(c)(6), a defendant must show that the restraint is unlawful because "[t]he conditions or manner of the restraint of petitioner are in violation of the Constitution of the United States or the Constitution or laws of the State of Washington." For purposes of this issue, Allgoewer is not challenging the manner of his restraint, he is challenging the conditions of his restraint; conditions that were imposed in April 2020 and remain in place today. While enforcement of these conditions may change the nature of the restraint and the type of relief sought, it does not change the grounds for relief.
The Thompson decision focused on the change in type of restraint as recommencing the statute of limitations. It is not clear whether Thompson would reach the same result if a defendant were found to have violated a condition, but his release was not revoked.
¶25 This case demonstrates the problems with focusing on a change in the type of restraint as opposed to the grounds for relief. Here, Allgoewer is not only challenging conditions that he violated but also conditions that he has not violated. And yet, under the holding in Thompson, only Allgoewer’s challenges to the validity of those conditions that he has violated are timely even though the fact of enforcement has not changed his grounds for relief.
¶26 The holding in Thompson does not address policies of finality or ripeness. Allgoewer raises primarily legal challenges to the validity of his community custody conditions. For the most part, these challenges were ripe when the conditions were imposed. Allgoewer exercised his right to challenge some of the conditions through an administrative appeal. He could have filed a PRP as well. See McWilliams, 177 Wash. App. at 153, 311 P.3d 584 (rejecting State’s argument that defendant’s legal challenges to community custody conditions were not ripe for review until enforced). If the statute of limitations is to have any effect, the limitations period needs to start and it needs to end.
[11] ¶27 We hold that most of Allgoewer’s constitutional and statutory challenges to his community custody conditions became ripe and actionable when the conditions were imposed. The challenges Allgoewer raises are purely legal, do not require further factual development, and the challenged action was final when the conditions were imposed. Id. at 153, 311 P.3d 584. When the claims became ripe, they became actionable and the statute of limitations began to run.
¶28 Our decision here does not affect Allgoewer’s ability to timely challenge decisions made during the violation hearing, i.e., challenges to the manner of his restraint, and we address those issues below. But Allgoewer cannot use the violation hearing as a gateway to raise an untimely collateral attack on the underlying conditions. See In re Pers. Restraint of Adams, 178 Wash.2d 417, 424-25, 309 P.3d 451 (2013) ("raising a claim under one of the exceptions in RCW 10.73.090 does not open the door to other time-barred claims").
[12] ¶29 We also agree that when grounds for challenging a community custody condition do not ripen until enforcement, then the statute of limitations does not accrue on these restraints until that point. See RAP 16.4(c)(3) (providing grounds for relief when "[m]aterial facts exist which have not been previously presented and heard"). For example, Allgoewer argues that a portion of condition O, requiring him to disclose unadjudicated victims, violates his Fifth Amendment right to the United States Constitution against self-incrimination. Unlike Allgoewer’s other constitutional challenges, this argument is not ripe for review.
[13] ¶30 The constitutionality of a community custody condition "is not ripe for review unless the person is harmfully affected by the part of the [condition] alleged to be unconstitutional." State v. Massey, 81 Wash. App. 198, 200, 913 P.2d 424 (1996). Allgoewer does not allege that he has been harmfully affected by this condition. This is not one of the provisions that Allgoewer was found to have violated and he does not assert that he has changed his actions to conform to this particular provision. Because this challenge is not ripe for review, we decline to consider it.
[14] ¶31 Allgoewer also challenges the Board’s release and supervision condition No. 6, which requires him to submit to a search of his "person, residence, vehicle and/or possessions when requested by a CCO." Resp’t Br., Ex. 1, Attach. B. He contends that the condition is vague and overbroad because it does not specify that the search must be based on reasonable suspicion. In Massey, we held that this challenge to this condition was not ripe for review until the defendant was subjected to a search according to this condition. 81 Wash. App. at 200, 913 P.2d 424. Since Allgoewer challenges the CCO’s search of his person and property under condition No. 6, his challenge is ripe and timely, and we thus address it below.
[15] ¶32 Otherwise, we conclude that Allgoewer’s challenges, alleging that certain conditions are not crime-related or are unconstitutionally vague or overbroad, are untimely. These conditions were imposed in April 2020. Allgoewer filed this PRP on February 2, 2023. Our review indicates that these challenges were ripe when the conditions were imposed. Thus, his vagueness and crime-related challenges to the following conditions are time-barred: A, B, D, E, F, G, H, I, J, K, L, ?, N, ?, P, Q, and condition No. 3.
Facially Invalid
[16] ¶33 Finally, Allgoewer suggests that regardless of any time-bar, several of his community custody conditions are facially invalid and exempt from the limitations period. As we have discussed above, the two-year catchall statute of limitations applies to decisions of the ISRB. RCW 4.16.130. This generalized statute of limitations does not include any exemptions or exceptions. In contrast, the one-year statute of limitations period under RCW 10.73.090(1) exempts facially invalid judgment and sentences. While Allgoewer mentions the issue, he does not provide any briefing or argument to support the issue. ISRB does not provide a response to the issue. Whether the court should create an exemption to the two-year limitations period for facially invalid community custody conditions imposed by the ISRB is an important question that requires adequate briefing. Because the issue is not adequately briefed, we decline to address it here.
¶34 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder, having no precedential value, shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Fearing, C.J.
Cooney, J.