In re the Personal Restraint of Dalluge

162 Wash. 2d 814

• Court: Washington Supreme Court
• Decided: January 17, 2008
• Docket: No. 79841-9
• Status: Published

Opinions

¶1

Chambers, J.

Criminal sentences often include a period of community custody. By design, the whole “period” of community custody must be served in the community. With an exception that is not relevant to us today, any time an offender spends in jail does not count toward serving a community custody sentence. In the language of the statute, the “period” is “tolled.” RCW 9.94A.625(3).

¶2 Amel Dalluge was serving a year of community custody when he was arrested and taken to jail, where there was an altercation. The Department of Corrections found this altercation violated the terms of Dalluge’s community custody and, after a hearing, sanctioned him. Dalluge argues that, since his “period” of community custody was tolled at the time of the altercation, the department’s power to discipline him must also have been tolled. We disagree and hold that the department had the statutory power to sanction Dalluge for his jailhouse misconduct.

Facts •

¶3 Dalluge is no stranger to this court. See, e.g., In re Pers. Restraint of Dalluge, 152 Wn.2d 772, 100 P.3d 279 (2004). We recently considered whether he was properly declined from juvenile court into adult court on two rape charges. Id. at 776. Not long after our opinion was published, Dalluge was released from prison to community custody. Community custody has not gone smoothly for him. In 2005, Dalluge was taken to the Grant County Jail where, it appears, he threatened officers with pieces of a broken telephone. Based on what happened that day, Dalluge was convicted on assault, malicious mischief, and weapons charges.

¶4 Not satisfied with the criminal convictions for Dalluge’s jailhouse misconduct, the department also sought to discipline him for violating the “obey all laws” condition of his community custody. The hearing officer, Kimberly Allen, found Dalluge “guilty” of two counts of violating the conditions of community custody (malicious mischief and assault on a law enforcement officer) and sanctioned him with 60 days’ total confinement, beginning February 28, 2006. See RCW 9.94A.737(1) (authorizing the department to confine offenders who violate custody terms). The department asserts (without contradiction from Dalluge) that he served those 60 days concurrently with time he spent in pretrial confinement on other charges.

¶5 After an unsuccessful internal appeal, Dalluge filed this personal restraint petition, claiming that the department singled him out in violation of his equal protection rights, that the notice of violation did not specify what policy he was alleged to have violated, and that the department lacked the power to discipline him for misconduct committed while he was in jail. Chief Judge Sweeney dismissed his petition, noting:

tolling is an administrative procedure which prevents the offender from getting credit against community custody at the same time he is being held on a separate offense. Mr. Dalluge cites no authority for the proposition that tolling means the offender is not subject to the conditions of community custody. And, such an argument would lead to the absurd result that an offender who was subject to a no-contact order as a condition of his community custody, could contact his victims while he was in jail.

Order Dismissing Pers. Restraint Pet., In re Pers. Restraint of Dalluge, No. 25432-1-III (Wash. Ct. App. Feb. 21, 2007). We granted review.

Analysis

¶6 Personal restraint petitions are not a substitute for direct review. Petitioners challenging a court judgment and sentence must do more than show legal error; they must show either constitutional error that caused actual and substantial prejudice or nonconstitutional error that inherently caused a complete miscarriage of justice. In re Pers. Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2004) (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990)). But when, as here, direct review is not available, we apply a more lenient standard. Dalluge can prevail if he can show he is under “unlawful” (as meant by RAP 16.4(c)) “restraint” (as meant in RAP 16.4(b)). In re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004) (citing In re Pers. Restraint of Garcia, 106 Wn. App. 625, 628, 24 P.3d 1091, 33 P.3d 750 (2001)). Petitioners are restrained if, among other things, they are confined or are “under some other disability resulting from a judgment or sentence in a criminal case.” RAP 16.4(b); see also In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 149, 866 P.2d 8 (1994).

¶7 We granted review primarily to decide whether the department’s power to enforce the conditions of community custody is suspended while the offender is confined. This is a question of statutory interpretation. Our review is de novo, and our goal is to determine the intent of the legislature. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).

¶8 Community custody “means that portion of an offender’s sentence . . . served in the community subject to controls placed on the offender’s movement and activities by the department.” RCW 9.94A.030(5) (emphasis added).¹ A “period of community custody .. . shall be tolled during any period of time the offender is in confinement for any reason.” RCW 9.94A.625(3). Dalluge contends that since the “period” was tolled while he was in jail, the department’s power to enforce custody conditions must be tolled as well. The department disagrees.

¶9 While the plain language of RCW 9.94A.030(5) and RCW 9.94A.625(3) arguably supports either party’s interpretations, looking at the sentencing scheme as a whole, we agree with the department. Cf. Campbell & Gwinn, LLC, 146 Wn.2d at 11 (court may consider related statutes when divining the plain meaning of the statute). The legislature has explicitly and broadly given the department the power and responsibility to supervise offenders while on various types of community custody. RCW 9.94A.720. The Sentencing Reform Act of 1981, chapter 9.94A RCW, says nothing about the department’s power and responsibility being tolled while offenders are confined and instead uses sweeping language. E.g., RCW 9.94A.720(1)(a) (“[A]ll offenders sentenced to terms involving . . . community custody shall be under the supervision of the department and shall follow explicitly the instructions and conditions of the department.” (emphasis added)). It would be peculiar, to say the least, if an offender could evade the requirements of subsection .720(1)(a) by committing an offense that results in confinement. It also seems very unlikely to us that the legislature intended that community custody conditions, such as no contact orders, would be suspended while an offender is in jail. Cf. United States v. Camarata, 828 F.2d 974, 981 (3d Cir. 1987) (parole could be revoked before it began based on offender violation of laws); see also State v. Keller, 98 Wn.2d 725, 728, 657 P.2d 1384 (1983) (court will not read statutes in an absurd or strained way).

¶10 The department’s reading is consistent with the legislature’s uncodified statement of purpose:

The legislature intends that all terms and conditions of an offender’s supervision in the community, including the length of supervision and payment of legal financial obligations, not he curtailed by an offender’s absence from supervision for any reason including confinement in any correctional institution.

Laws of 2000, ch. 226, § 1. Based on all these statutes, we conclude that the legislature intended the department to retain supervisory power and responsibility while offenders on community supervision are confined.²

111 We turn briefly to the remaining issues. First, we deny the department’s motion to dismiss this case as moot. Even assuming this case is moot (which, given that Dalluge will be subject to more stringent conditions in the future, is in doubt), we have the power to decide a moot case to resolve issues of “continuing and substantial public interest” if guidance would be helpful to public officers and the issue is likely to recur. Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512 (1972) (citing State ex rel. Yakima Amusement Co. v. Yakima County, 192 Wash. 179, 73 P.2d 759 (1937)). We conclude that this case qualifies. E.g., Cashaw, 123 Wn.2d 138; In re Pers. Restraint of Myers, 105 Wn.2d 257, 261, 714 P.2d 303 (1986).

¶12 Finally, Dalluge alleged below that his equal protection rights were violated because the department treated him differently from other offenders and because the notice of violation did not cite a particular policy Dalluge allegedly violated. But Dalluge does not support either claim with argument or citation and appears to have abandoned them. We decline to disturb the chief judge’s dismissal of these claims. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992) (declining to reach an issue not well argued or cited).

Conclusion

¶[13 We conclude that the department had the statutory authority to sanction Dalluge for violating the terms of community custody while he was confined. We affirm the dismissal of his personal restraint petition.

C. Johnson, Owens, Fairhurst, and J.M. Johnson, JJ., and Bridge, J. Pro Tem., concur.

1 RCW 9.94A.030 is the definition section of Washington’s Sentencing Reform Act of 1981 (SRA), chapter 9.94ARCW. The SRA is traditionally amended several times annually. See In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 7, 100 P.3d 805 (2004) (noting that the SRA had been amended 181 times between 1981 and 2004). The definition section .030 has itself been amended nearly every year. E.g., Laws of 2006, ch. 139, § 5; Laws of 2006, ch. 124, § 1; Laws of 2005, ch. 436, § 1; Laws of 2003, ch. 53, § 55. None of the amendments appear relevant to our analysis.

2 Dalluge contends that it is impossible to perform many conditions of community custody while confined, such as participating in drug and alcohol treatment programs and reporting to corrections officers. He suggests that this is evidence that the legislature intended to suspend community custody conditions while an offender is confined. We find it unlikely that the legislature intended to suspend the offender’s obligation to obey custody conditions, especially given that no contact orders are frequently included. We also note that Dalluge does not argue that it was impossible for him to comply with the specific “obey all laws” condition of custody at issue today or to refrain from committing assault and malicious mischief.