In re the Personal Restraint of Blackburn

168 Wash. 2d 881
CourtWashington Supreme Court
DecidedMay 27, 2010
DocketNo. 82329-4
StatusPublished
Cited by13 cases

This text of 168 Wash. 2d 881 (In re the Personal Restraint of Blackburn) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Personal Restraint of Blackburn, 168 Wash. 2d 881 (Wash. 2010).

Opinion

Fairhurst, J.

¶1 The issue we decide in this case is the level of specificity that due process requires for a notice of an alleged community custody violation that is punishable by reclassification and transfer to total confinement.

I. STATEMENT OF THE CASE

¶2 Douglas Louis Blackburn pleaded guilty in 2004 to two drug crimes. The sentencing court found Blackburn [883]*883was eligible for a drug offender sentencing alternative, former RCW 9.94A.660 (2002), and gave him a sentence split into a term of total confinement and a term of community custody, along with a substance abuse treatment program. One of the conditions of community custody required Blackburn to “obey all laws.”1 Suppl. Br. of Resp’t Department of Corrections (DOC), App. A at 9. After Blackburn was released from total confinement in October 2006, DOC transferred him to community custody. Upon finding that Blackburn willfully violated a condition of community custody, DOC had discretion to reclassify him and return him to total confinement “to serve the remaining balance of the original sentence.” Former RCW 9.94A.660(3)(a).

¶3 On May 15, 2008, DOC sent Blackburn a notice alleging the following violation of his community custody conditions: “FAILURE TO OBEY ALL LAWS: SPECIFICALLY, THREATENING TO KILL SHELLY BLACKBURN [his sister-in-law] ON OR ABOUT 5/14/08.” Suppl. Br. of Resp’t DOC, App. D at 1. The notice also listed the documents and witnesses that DOC intended to present at a violation hearing. The sixth item on the list was RCW 9A.46.020, the harassment statute. A hearing officer found Blackburn violated RCW 9A.46.020, and he entered an order reclassifying Blackburn to serve the remainder of his sentence as a term of total confinement. The DOC administrative appeals panel affirmed. Blackburn filed a personal restraint petition directly in this court, and we retained it for a decision on the merits.

II. ANALYSIS

¶4 When a person seeks relief by personal restraint petition and has not had a prior opportunity for judicial review of the grievance, the petitioner must establish, in [884]*884order to prevail on the merits of his claim, “that he is restrained under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c).” In re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004). Blackburn, at an administrative DOC hearing, was reclassified to serve the remainder of his sentence in prison. His only opportunity for review of this reclassification decision was before a DOC appeals board. Because he has not “already had an opportunity to appeal to a disinterested judge,” his burden is to show the restraint is unlawful for one of the reasons listed in RAP 16.4(c). In re Pers. Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d 285 (2010).

A

¶5 The Fourteenth Amendment provides that “[n]o state shall... deprive any person of life, liberty, or property, without due process of law.” Under Morrissey v. Brewer, 408 U.S. 471, 488-89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), “the minimum requirements of due process” for a revocation of parole are a final hearing preceded by “written notice of the claimed violations of parole,” as well as advance disclosure of the State’s evidence, an “opportunity to be heard in person and to present witnesses and documentary evidence,” “the right to confront and cross-examine adverse witnesses,” a “ ‘neutral and detached’ ” adjudicator, and a written statement by the fact finder of the evidence relied on and the reasons for the final decision. These due process requirements apply with equal force to a revocation of probation, Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), and to the imposition of a sentence that had been suspended under the special sex offender sentencing alternative. State v. Dahl, 139 Wn.2d 678, 684, 990 P.2d 396 (1999). We think they also apply to a DOC reclassification of an offender serving a sentence in community custody. A person in community custody “can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life.” [885]*885Morrissey, 408 U.S. at 482. An end to this liberty is surely a “ ‘grievous loss,’ ” and “the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment.” Id.

¶6 In Morrissey, the Court did not describe with particularity what the substance of a notice should be, only that there be “written notice of the claimed violations.” Id. at 489. Elaborating on this requirement, we have said a Morrissey notice must “inform the offender of the specific violations alleged and the facts that the State will rely on to prove those violations.” Dahl, 139 Wn.2d at 685. This is a straightforward task when the alleged violation is simple, such as a drug offender’s failure to submit to urinalysis testing. But this is a more problematic endeavor when the condition of community custody is broadly stated as “obey all laws,” given the sheer number of laws in this country. In this context, and with particular sensitivity to the gravity of the potential punishment — reclassification and imprisonment — we must decide the level of specificity required to inform the offender of the violation alleged.

¶7 Although the Fourteenth Amendment does not establish a detailed “code of procedure,” Morrissey, 408 U.S. at 488, the contents of a notice must be sufficient to satisfy the core concerns of due process. Several such concerns are manifested here. First, when a potential sanction is the offender’s return to total confinement, “many of the core values of unqualified liberty” are in jeopardy. Id. at 482. Second, the offender needs enough information about the charges to prepare a meaningful defense. See Dahl, 139 Wn.2d at 684. Third, “[s]ociety has a stake in whatever may be the chance of restoring him to normal and useful life within the law.” Morrissey, 408 U.S. at 484. Fourth, “an effective but informal hearing” is necessary to ensure that DOC’s “exercise of discretion will be informed by an accurate knowledge of the [offender’s] behavior.” Id. Finally, and most fundamentally, a government deprivation of liberty must abide by “prevailing notions of fundamental fairness.” State v. Lord, 117 Wn.2d 829, 867, 822 P.2d 177 (1991).

[886]*886¶8 With these concerns in mind, we note the dangers that could arise if a notice says too little about the law that the offender allegedly fails to obey.

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168 Wash. 2d 881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-personal-restraint-of-blackburn-wash-2010.