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In re Personal Restraint of Schley

Court of Appeals of Washington, Division 1

February 21, 2017

IN RE PERSONAL RESTRAINT OF MATTHEW RAY DOUGLAS SCHLEY, Petitioner.

          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 In this case, Matthew Schley's DOSA sentence was revoked when the State proved by a preponderance of the evidence that he had been terminated from the required substance abuse treatment program.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 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 DOC 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, 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 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 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 WAC 137-25-030 505. In an infraction hearing, the Department reviews allegations under a "some ...


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