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In re Lain

Supreme Court of Washington, En Banc

November 7, 2013

In the Matter of the Personal Restraint of Jerry LAIN, Petitioner.

Argued March 21, 2013.

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Richard Alan Linn, Law Office of Richard Linn, PLLC, Bellevue, WA, for Petitioner.

Jerry Dale Lain, Monroe, WA, pro se.

John Joseph Samson, Attorney at Law, Olympia, WA, Noah Guzzo Purcell, Washington Attorney General's Office, Olympia, WA, for Respondent.

GONZÁLEZ, J.

[179 Wn.2d 7] ¶ 1 Jerry Lain was sentenced to a maximum of life imprisonment under Washington's former indeterminate sentencing scheme. In 2010, the Indeterminate Sentencing Review Board (board) found Lain parolable, approved his release plan, ordered parole with supervision conditions, and fixed a date for release to Iowa. Four days before that set release date, the governor canceled Lain's parole under RCW 9.95.160, which provides that " the governor may cancel or revoke the parole granted to any convicted person by the board." In response, the board added 36 months to Lain's minimum term of confinement. Lain brings both an as-applied and a facial challenge to the statute, arguing that it violates due process because it does not outline procedures for the governor to provide the inmate notice and an opportunity to be heard before the governor acts. We hold that RCW 9.95.160 is constitutional both on its face and as applied to Lain. Although Lain was entitled to due process protections regarding cancellation of his parole, he was not entitled to a separate hearing before the governor. Due process requirements were met when he had a parolability hearing before the board and received written reasons for the governor's decision to cancel parole.

¶ 2 Lain argues on various other grounds that the governor's cancellation was unlawful, and he contends that the board abused its discretion in extending his minimum term. We reject Lain's other arguments and dismiss his personal restraint petition.

FACTS/PROCEDURAL HISTORY

¶ 3 In 1982, Lain, an offender who had absconded from Iowa, stabbed Richland police officer Mike Fitzpatrick, then seized the officer's handgun and shot him in the abdomen and face. Officer Fitzpatrick survived the attack and is still a law enforcement officer. Lain was convicted in Benton County Superior Court of first degree assault and was given an indeterminate sentence with a maximum of [179 Wn.2d 8] life. The Court of Appeals affirmed the judgment and sentence in 1984.

¶ 4 The board initially set a minimum sentence of 240 months. Lain was considered for parole and denied in 1999, 2002, and 2006.

¶ 5 During his incarceration Lain had a total of 23 infractions arising from 18 incidents, mostly nonviolent. His last infraction for fighting was in 1985. He was disciplined for inciting a demonstration in 1987, and he was infraction free from 1996 to 2003, when he was disciplined for threatening correctional staff, apparently in response to his then-recent denial of parole. His most recent three infractions were in 2004 for possession of an unauthorized tool, possession of tattoo paraphernalia, and bartering. He has been infraction free since then. By 2009 Lain had successfully completed a number of rehabilitative and employment skills programs.

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¶ 6 A psychological evaluation in 2004 found Lain had a medium-to-high risk to reoffend. A 2005 evaluation found him a medium risk for violence and noted factors that would reduce the risk, including avoidance of alcohol and drugs and full-time employment. His 2009 evaluation was equivocal as to his risk of recidivism, and it raised questions about the accuracy of previously applied evaluation tools. That report estimated that Lain had a better than even chance to reoffend, but it was otherwise positive about his prospects. Lain has been consistently remorseful about his 1982 crime, although he disputes some of the surrounding facts, particularly the manner in which he shot the officer. The 2009 evaluation attributed the factual disputes to Lain's long-term memory of the crime being clouded by his intoxicated state at the time of the crime.

¶ 7 In August 2009, after Lain had served 318 months, the board found him conditionally parolable and added 24 months to his minimum term to allow for reentry programming. Lain preferred more immediate parole. The board noted the disagreement and commented that Lain was rigid [179 Wn.2d 9] in his thinking and expressed a sense of entitlement to parole. The board otherwise commended him for his considerable rehabilitative progress.

¶ 8 The board held another parolability hearing and decided in May 2010 that Lain was conditionally parolable to a reentry program without additional time in prison. He was expected to cooperate with the board in developing a transition plan that would eventually allow him to relocate to his mother and stepfather's rural home in Iowa. In late June 2010, the board amended its decision to find Lain parolable pending a parole plan for Iowa only. The board based its amended decision on the difficulty of finding work release approval for King or Pierce Counties " due to current tension surrounding high profile cases." Pers. Restraint Pet. (PRP), Ex. 5.

¶ 9 The " high profile cases" to which the board referred likely included the murders of four police officers in Lakewood. Meanwhile, Lain submitted a release plan that would relocate him to his mother and stepfather's home during his parole. Family and neighbors in Iowa promised him employment, and Lain was making arrangements to attend a chemical dependency aftercare program. The State of Iowa agreed to allow Lain to be paroled there.

¶ 10 The board approved Lain's release plan on November 15, 2010, noting that his projected early release date was January 8, 2011. Lain was directed to report to a designated Iowa correctional officer upon his relocation. On November 17, 2010, the board ordered Lain paroled effective December 20, 2010.

¶ 11 Upon learning of Lain's imminent parole, Officer Fitzpatrick lodged a complaint with " The Problem Solvers" at KOMO news in Seattle. KOMO ran a story on December 13, 2010 about Officer Fitzpatrick's opposition to Lain's parole. Noting that the governor could cancel or revoke parole, the report said that the news station had contacted the governor's office and asked her to review the case. KOMO ran a follow-up story on December 15, quoting [179 Wn.2d 10] objections from the president of the Lakewood Police Guild and quoting the governor's statement of concern over the controversy. The governor's office and the board received considerable correspondence from law enforcement support organizations and individuals objecting to Lain's parole.

¶ 12 On December 16, 2010, the governor canceled Lain's parole and ordered the Department of Corrections not to release him, concluding that he was not sufficiently rehabilitated and was not a fit subject for parole. The governor remanded the case back to the board for further proceedings. Lain subsequently asked the governor for a hearing before her, submitting around two dozen supporting letters. She refused. On June 9, 2011, after a hearing before the board, the board set a new minimum term of 36 months (retroactive to January 8, 2011), noting that the board was constrained by the governor's order that canceled Lain's parole. Commending Lain for his cooperative and mature response to the governor's decision, the board recommended low security placement, such as camp.

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[179 Wn.2d 11] ¶ 13 Lain filed a personal restraint petition in the Court of Appeals, which the acting chief judge certified to this court. We granted review.

STANDARD OF REVIEW

¶ 14 To obtain relief, Lain must show that he is restrained under RAP 16.4(b) and that his restraint is unlawful under RAP 16.4(c). See In re Pers. Restraint of Isadore,151 Wash.2d 294, 298-300, 88 P.3d 390 (2004) (noting that petitioners who have had no prior opportunity for judicial review are relieved of the heightened standards of review generally applied in personal restraint petitions); In re Pers. Restraint of Grantham, 168 Wash.2d 204, 208, 212-14, 227 P.3d 285 (2010); In re Pers. Restraint of Cashaw, 123 Wash.2d 138, 148-49, 866 P.2d 8 (1994). But see In re Pers. Restraint of Bush, ...


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