In Re Albritton

180 P.3d 790
CourtCourt of Appeals of Washington
DecidedMarch 24, 2008
Docket58832-0-I
StatusPublished
Cited by5 cases

This text of 180 P.3d 790 (In Re Albritton) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Albritton, 180 P.3d 790 (Wash. Ct. App. 2008).

Opinion

180 P.3d 790 (2008)

In re Personal Restraint Petition of Joseph Frank ALBRITTON, Petitioner.

No. 58832-0-I.

Court of Appeals of Washington, Division 1.

March 24, 2008.

*791 Nancy Collins, Seattle, for Appellant.

Ann Summers, King County Prosecutor's Office, Seattle, Alex Kostin, Olympia, for Respondent.

SCHINDLER, A.C.J.

¶ 1 A defendant sentenced under the Drug Offender Sentencing Alternative (DOSA) serves one half of the sentence in prison and the other half of the sentence in a substance abuse treatment program while on community custody. An offender who is terminated from the DOSA program while on community custody must serve the unexpired portion of the sentence in prison. Joseph Frank Albritton challenges the Department of Corrections' (DOC) calculation of his earned early release date. Albritton contends that when DOC revoked his DOSA sentence, he was entitled to receive credit for the community custody portion of the sentence, including the time he spent in jail for violating the conditions of community custody. Relying on the tolling statute in the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, former RCW 9.94A.625 (2003),[1] DOC argues that Albritton is not entitled to credit of the credit time that he was either absent from supervision or was incarcerated for any reason. We agree that Albritton is not entitled to receive credit for the periods of time when he was either absent from supervision or was incarcerated on unrelated charges. But under the DOSA statute, we conclude that an offender who fails to complete or is administratively terminated from the DOSA program while serving the community custody portion of the DOSA sentence is entitled to credit for the time spent in confinement for violating the conditions of that sentence. We grant Albritton's personal restraint petition in part and remand to DOC to calculate the credit Albritton is entitled to receive in accordance with this opinion.

FACTS

¶ 2 In March 2004, Joseph Frank Albritton pleaded guilty to committing theft in the second degree and malicious mischief. With an offender score of more than nine and a seriousness level of one, the standard sentence range was 22 to 29 months. At the sentencing hearing on March 12, the court allowed Albritton to take advantage of a DOSA sentence and imposed a 25.5 month sentence with 12.75 months in prison and the remaining 12.75 months in a substance abuse treatment program while on community custody. As mandatory conditions for the community custody portion of the sentence, the *792 court ordered Albritton to complete an approved substance abuse treatment program, submit to testing to monitor compliance, comply with DOC rules and regulations, and obey all laws. In accordance with former RCW 9.94A.660(5), the judgment and sentence also states that if Albritton fails to complete or is terminated from the DOSA program, he shall be reclassified to serve "the balance of the unexpired term of sentence." If terminated from the DOSA program, under the terms of the judgment and sentence an additional term of community custody is imposed of 9 to 18 months for any crime against a person, 9 to 12 months "for any violation of RCW 69.50/52" or "the entire period of earned early release, whichever is longer."

¶ 3 After serving the first part of his DOSA sentence, Albritton was released from prison on July 8, 2004, and began serving the community custody portion of his sentence. While on community custody, Albritton violated the conditions of his sentence by not reporting to the DOC Community Corrections Officer (CCO), not participating in or successfully completing substance abuse treatment, and committing new crimes.

¶ 4 From July 26 to October 9, 2004, Albritton did not report to his CCO.[2] On October 9, Albritton was arrested on a warrant for violating the conditions of his DOSA sentence. While in custody, Albritton entered into a stipulated agreement with DOC. Albritton waived his right to a hearing and admitted that he violated the terms of his sentence by not reporting to the CCO and not participating in the mandatory DOSA treatment program. Albritton was released on October 12.

¶ 5 After his release, Albritton did not report to his CCO or enroll in a treatment program. On December 14, the Seattle police arrested Albritton for robbery and theft. While incarcerated, DOC provided Albritton with notice of a hearing to address violations of the conditions of his DOSA sentence. Albritton waived his right to the hearing and agreed to a negotiated sanction of credit for time served. Albritton agreed to enroll in a treatment program within ten days of his release. Upon release, Albritton did not report as directed or enroll in a treatment program.

¶ 6 On March 8, 2005, Seattle police arrested Albritton on unrelated misdemeanor charges. Following his arrest, DOC scheduled a violation hearing for March 21. Because the CCO did not attend the hearing, DOC determined that "all allegations that would have been addressed at this hearing are now null and void." Albritton was released on March 21, and given credit for the time he was in jail from March 8.[3]

¶ 7 Albritton concedes that he did not report to DOC from March 21 to July 21, 2005. On July 21, Seattle police arrested Albritton on two burglary charges and on an outstanding DOC warrant for violating the conditions of his DOSA sentence. At the violation hearing, Albritton admitted that he violated the conditions of his DOSA sentence by failing to report from March 21 to July 21. Albritton received a 30-day sanction with credit for time served since his arrest on July 21, 2005. Albritton was in jail pending trial on the two burglary charges from July 21, 2005 to January 27, 2006.

¶ 8 On January 27, 2006, Albritton pleaded guilty to committing burglary in the second degree on October 25 and November 11, 2004. The court imposed a DOSA sentence on the burglary convictions to be served consecutively to his other DOSA sentence. On January 31, DOC terminated Albritton from the DOSA program on his 2004 DOSA sentence for failure to participate in the substance abuse treatment program, not reporting to DOC, and committing new crimes. DOC reclassified Albritton to serve the balance of the unexpired term of his 2004 DOSA sentence in prison. After Albritton was reincarcerated, DOC calculated an early release date. In a letter dated July 21, DOC set *793 forth the number of days Albritton received credit for while serving the community custody portion of his DOSA sentence and the number of days he did not receive credit for because he was unavailable for supervision or incarcerated. On September 21, Albritton filed a personal restraint petition (PRP) challenging DOC's calculation of his earned early release date and the credit he was entitled to receive while serving the community custody portion of his DOSA sentence.

ANALYSIS

¶ 9 Where, as here, an inmate in a PRP challenges a decision from which he has had "no previous or alternative avenue for obtaining state judicial review," RAP 16.4(a) requires the petitioner to show he has been unlawfully restrained. A restraint is unlawful if the challenged action is unconstitutional or violates the laws of the State of Washington. In re Pers. Restraint of Reifschneider,

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Bluebook (online)
180 P.3d 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-albritton-washctapp-2008.