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Mock v. State

Court of Appeals of Washington, Division 1

October 2, 2017

JAMES D. MOCK, a single person, DANELLE BAME on behalf of minor child J.B. (DOB 06/09/01), a single person, and LINDA and TOM RYAN, a married couple, Appellants,
v.
THE STATE OF WASHINGTON, by and through its DEPARTMENT OF CORRECTIONS, STATE OF WASHINGTON (DOC), Respondent.

          Becker, J.

         Plaintiffs were injured in an armed attack by an offender who was serving a term of community custody under supervision by the Department of Corrections. The issue is whether the department can be held liable for failing to report the offender's previous community custody violations to the court. Summary judgment was properly granted to the department. Under applicable statutes, sanctions for community custody violations are imposed by the department in an administrative process, not by the court.

          This case was dismissed on summary judgment. Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). We make the same inquiry as the trial court. Hertog, 138 Wn.2d at 275. The facts and reasonable inferences are considered in the light most favorable to the nonmoving party. Hertog, 138 Wn.2d at 275. Questions of law are reviewed de novo. Hertog, 138 Wn.2d at 275.

         FACTS

         John McKay was in his forties when he was convicted of felony harassment for threatening to kill his wife. It was his first criminal conviction. After serving several months in jail, he was released in June 2012 to begin serving a 12-month term of community custody under the supervision of the Department of Corrections. Community corrections officer Mark Deabler was assigned to supervise McKay.

         McKay was ordered to have no contact with his wife. On June 27, 2012, the first day of supervision, Deabler and other officers contacted McKay's wife to make sure McKay was not violating the no-contact order. The chronological entries in McKay's case file include a note from that day documenting "lots of red flags" disclosed by McKay's wife. She reported they were ending a 20-year marriage, McKay was a long-time alcohol user, he was on disability and not working, he had "burned all his bridges" with family, he was asking third parties about her and making threats to kill her and to commit suicide, he talked about "'shooting cops, '" he was trained in martial arts, and he had access to firearms through family. He had been to treatment twice, but it "sounds like he drinks all day."

         On July 9, 2012, McKay committed a new offense. Intoxicated, he drove to the home of family friends and demanded to know where his wife was. When they did not tell him, he repeatedly rammed his van through their garage doors, causing extensive damage to the cars inside. Police arrested McKay for investigation of malicious mischief and booked him into jail.

         The garage-ramming incident was not only a criminal offense, it was also a violation of the terms of McKay's community custody sentence. In 2009, the legislature made the administrative process outlined in RCW 9.94A.737 the exclusive enforcement mechanism for violations in cases like McKay's, with exceptions not relevant here. RCW 9.94A.6332(7) ("if the offender is being supervised by the department, any sanctions shall be imposed by the department pursuant to RCW 9.94A.737"). Reporting violations to the court is not part of the administrative process that is currently in effect.

         If an offender is accused of committing a high level violation of a condition or requirement of community custody, the department may sanction the offender to not more than 30 days in total confinement after an administrative hearing. RCW 9.94A.737(4). Deabler considered the garage-ramming incident to be a high level violation. He described McKay's adjustment to supervision as "nonexistent." At Deabler's request, a hearing officer imposed the maximum 30 days of confinement.

          While McKay was in jail for the 30-day sanction, his wife tried to serve him with divorce papers. McKay reportedly tried to call his wife, in violation of the no contact order. Deabler wrote in an internal e-mail that he hoped the prosecutor would file charges against McKay "and not let him out."

         On July 12, 2012, the King County prosecutor filed a felony charge of malicious mischief against McKay for the garage-ramming incident. A high bail was set. McKay was unable to pay it, and he remained incarcerated.

         The standard sentence range for the malicious mischief charge was three to nine months. McKay negotiated a plea bargain that allowed him to request a drug offender sentencing alternative. The sentencing court accepted the guilty plea on September 18, 2012. By order of the court pursuant to RCW 9.94A.660, the department provided the summary of a chemical dependency examination report on McKay. McKay was assessed as alcohol and drug dependent and likely to continue committing crimes while under the influence. He admitted he had hit "rock bottom" and needed treatment. According to the report, a certified residential treatment provider in Chehalis could make a bed available for McKay beginning on November 5, 2012. McKay's parents agreed to provide a clean and sober living environment for him until that date.

         On September 28, 2012, the court sentenced McKay to a treatment-based residential sentence of three to six months. See RCW 9.94A.660 (drug offender sentencing alternative). As a condition of sentence, McKay was to reside with his parents and report for supervision by the department until he entered treatment.

          Deabler was not informed of the guilty plea and did not know that McKay was requesting a treatment sentence. After the judgment and sentence was entered, Deabler received an e-mail advising him that McKay had been released ...


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