FILED AUGUST 1, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of Personal Restraint of: ) ) No. 39079-9-III Brandon Riley Creech. ) ) ) UNPUBLISHED OPINION )
FEARING, C.J. — We review petitioner Brandon Creech’s personal restraint
petition (PRP) arising from the Washington State Department of Corrections’ (DOC)
termination of his drug offender sentencing alternative (DOSA) sentence due to his
failure to participate in treatment. We deny the petition because Creech fails to
demonstrate an unlawful restraint, let alone prejudice.
FACTS
We begin with the State of Washington’s prosecution of Brandon Creech in 2019.
The State charged Creech with one count of first degree unlawful possession of a firearm
and one count of third degree theft. Creech pled guilty to both charges.
On December 23, 2019, the superior court sentenced Brandon Creech to a prison-
based DOSA sentence pursuant to RCW 9.94A.662. The court ordered Creech to serve
39 months in confinement and 39 months in community custody. That same day, the No. 39079-9-III PRP of Creech
superior court approved Creech’s transfer from the Grant County Jail to the custody of
DOC.
DOC conducted a substance abuse assessment of Brandon Creech to identify the
level of treatment he required. The assessment recommended that Creech receive
treatment care at American Society of Addiction Medicine Level 3.3. Level 3.3 affords
clinically managed high-intensity services targeted to the addict’s individual needs. A
Level 3.3 program offers a slow pace program designed for individuals with cognitive
impairments.
The facility, in which DOC housed Brandon Creech, did not offer Level 3.3
treatment. DOC offers this level of treatment only in minimum security prisons. The
highest level of treatment available to Creech at his facility was Level 2.5. Level 2.5
treatment entails twenty hours of outpatient services without any help for cognitive
impairment.
DOC issued Brandon Creech numerous prison infractions during his time in
confinement, most of which lack relevance to the personal restraint petition. We list
those that bear relevance to Creech’s argument that evidence presented to the DOC
hearing officer biased the officer against him.
Brandon Creech received four serious infractions between January 2020 and
August 2020, while serving the confinement portion of his DOSA sentence. As a result
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of the behavior, DOC classified Creech at a medium custody level for the rest of his time
in confinement. We list the infractions below:
January 28, 2020: Violation Code 663 - Using physical force, intimidation, or coercion against any person.
June 11, 2020: Violation Code 710 - Acquiring an unauthorized tattoo/piercing/scar, tattooing/piercing/scarring another, or possessing tattoo/piercing/scarring paraphernalia.
July 30, 2020: Violation Code 752 - Possessing, or receiving a positive test for use of, an unauthorized drug, alcohol, or intoxicating substance.
July 30, 2020: Violation Code 896 - Harassing, using abusive language, or engaging in other offensive behavior directed to or in the presence of another person(s) or group(s) based upon race, creed, color, age, sex, national origin, religion, sexual orientation, marital status or status as a state registered domestic partner, disability, veteran’s status, or genetic information.
Response of Department of Corrections (Resp.) Ex. 1, Att. A at 59; WAC Handbook 400-
HA001.pdf (wa.gov).
On August 20, 2020, the substance abuse unit, in which Brandon Creech was
housed, initiated a DOSA revocation violation against Creech due to the multiple
violations he committed up to that point. A DOC hearing officer found Creech’s DOSA
termination to be valid. Under WAC 137-24-060, an offender may appeal the decision of
a hearing officer to the DOC appeals panel. Creech appealed the decision to the panel on
September 20, 2020. The panel upheld the decision. The substance abuse unit,
nevertheless, moved forward with a code 762 serious violation it had issued Creech
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August 19, 2020 due to his failure to complete the DOSA treatment program. The record
offers no explanation for the substance abuse unit’s decision to proceed with the code 762
violation. Administrative termination from the DOSA treatment program occurs under
violation code 762. WAC 137-24-030 provides that offenders accused of committing a
code 762 violation are entitled to a DOC hearing on the violation before their
administrative termination from DOSA treatment becomes effective. On December 22,
2020, a DOC hearing officer found Creech not guilty of committing a code 762 violation
and permitted him to return to his DOSA treatment.
Thereafter, Brandon Creech committed three more serious infractions between
October 2020 and July 2021.
October 20, 2020: Violation Code 728 - Possessing any sexually explicit material(s), as defined in WAC 137-48-020.
October 21, 2020: Violation Code 506 - Threatening another with bodily harm or with any offense against any person or property.
June 26, 2021: Violation Code 558 - Interfering with staff members, medical personnel, firefighters, or law enforcement personnel in the performance of their duties.
Resp. Ex. 1, Att. A at 59; WAC Handbook 400-HA001.pdf (wa.gov).
On August 17, 2021, Brandon Creech met with April Byrd and Jason Lewis, two
DOC substance use disorder professionals, to discuss his DOSA treatment. Byrd
recorded the details of this meeting in a serious infraction report. Lewis left the room
during the meeting. After Lewis exited, Creech explained to Byrd that he was not
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refusing treatment, but he wanted Level 3.3 treatment, not the Level 2.5 treatment DOC
afforded him at the time. After Creech expressed his desire for Level 3.3 treatment,
Creech’s body language, according to Byrd, turned intimidating, and he moved his body
erratically. Creech remarked to Byrd:
It [my anger] would have nothing to do with you. I just won’t be able to stop myself. If I get angry in group, I will fight and hurt someone. I can’t even stop myself in the unit.
Resp. Ex. 2, Att. B at 90. Creech added that something clicks in his head. He later
calmed down and apologized.
As a result of Brandon Creech’s confrontation with April Byrd on August 17,
2021, DOC issued Creech a serious infraction, under violation code 663, for using
physical force, intimidation, or coercion against April Byrd. DOC issued two more
serious infraction notices to Creech before the end of August 2021:
August 22, 2021: Violation Code 710 - Acquiring an unauthorized tattoo/piercing/scar, tattooing/piercing/scarring another, or possessing tattoo/piercing/scarring paraphernalia.
August 31, 2021: Violation Code 710 - Acquiring an unauthorized tattoo/piercing/scar, tattooing/piercing/scarring another, or possessing tattoo/piercing/scarring paraphernalia.
Resp. Ex. 1, Att. A at 59-60; WAC Handbook 400-HA001.pdf (wa.gov).
On September 1, 2021, a hearing officer conducted a hearing on the August 17
infraction. Brandon Creech testified at the hearing that he wanted to receive a higher
level of treatment than what DOC offered or else he wanted to delay treatment until his
5 No. 39079-9-III PRP of Creech
release from incarceration. He added that he told Byrd that DOC’s continued provision
of a lower level of treatment would cause him to fight in treatment classes. Creech
explained that, during the August 17 meeting with Byrd, he did not seek to intimidate
Byrd. Instead, he “was trying to manipulate the treatment process.” Resp. Ex. 2, Att. B
at 90. The DOC hearing officer found Creech guilty of a code 663 serious violation
based on the infraction report and his own testimony.
On October 5, 2021, DOC again administratively terminated Brandon Creech from
the DOSA treatment program for failing to participate in the program. Heidi Moran, the
DOC officer who signed Creech’s DOSA treatment termination report, wrote in the
notice that, while serving his time in confinement, DOC repeatedly afforded Creech
opportunities to participate in Level 2.5 treatment, but Creech repeatedly chose not to
participate in such treatment. Instead, Creech insisted on Level 3.3 treatment. The
termination notice identified the following reasons for Creech’s termination from the
DOSA program:
Violation of the DOSA agreement. Violation of the Treatment Participation Requirements. Willful noncompliance with the DOSA program by removing himself from the ability to receive assessed level of treatment due to his behaviors. Safety and security risk for the community.
Resp. Ex. 2, Att. C at 95. Moran further wrote in the notice:
Mr. Creech has spent many years in a cycle of the same behaviors. Looking at his history in OMNI it is apparent there have been very few
6 No. 39079-9-III PRP of Creech
changes in his behavior. It is recommended that he do long term treatment in a residential facility and he receive the 3.3 or 3.5 (in the community) treatment that he was originally assessed at when it is available and when he is amenable to attend. Mr. Creech needs to understand that “long term” does not mean a couple of weeks and know that he needs the treatment that is recommended not what he may want.
Resp. Ex. 2, Att. C at 95. PROCEDURE
As a result of Brandon Creech’s termination from the prison DOSA treatment
program, DOC sought to revoke Creech’s DOSA sentence. On November 1, 2021,
Creech received and signed a notice of allegations, hearing, rights, and waiver for the
revocation. His signature on this form indicated he read and understood the allegations
against him, the hearing notice, and his rights as outlined in the form. He requested a
hearing.
A DOC hearing officer conducted a DOSA revocation hearing on November 3,
2021. The DOC hearing officer affirmed the revocation. In its written ruling, the hearing
officer noted reliance on the following evidence to find Brandon Creech guilty for failing
to comply with DOSA requirements: “J & S,” “Notice of Allegation, Hearing, Rights,
and Waiver form,” “Report of Alleged Violations,” “Conditions, Requirements, and
Instructions form,” “CCO [community correction officer] Testimony,” and “Offender
Testimony.” Resp. Ex. 2, Att. E at 101.
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On November 16, 2021, Brandon Creech appealed the DOC hearing officer’s
decision to the DOC appeals panel. The DOC appeals panel affirmed the hearing officer.
The panel wrote:
Mr. Creech, the Appeals Panel has reviewed the contents of your appeal, evidence and audio recording of the administrative hearing conducted on November 3, 2021. . . . While your appeal was extensive and context listed, the focus of the finding was simply, were you compliant with your DOSA. The answer is no. The record reflected the discovery packet was properly served and there was no issue raised or communicated regarding a lack of preparation. As noted on the record, the presiding Hearing Officer did not consider infractions from a prior process. The Hearing Officer considered only the evidence provided in evidence as well as the documents you provided thus was appropriate for all parties to respond appropriately. The record supported there were infractions preceding this current process however the presiding Hearing Officer clearly stated his decision was based solely on your behavior since your last 762 hearing process. The record also supports the presiding authority did not reference nor use any infraction behavior preceding the last process. The process was also void of prejudice. . . . Again, the record supported proper service in advance of the hearing without raised issues at the time of the hearing. The Appeals Panel does not know the process in preparation of an appeal however it was clear you submitted a timely appeal which contained an articulated defense. The Appeals Panel will note your appeal contained information from prior and current processes however neither party may add or supplement the record post hearing. The presiding authority appropriately made a decision based on the evidence and testimony provided at your hearing. The record supports your recommended Level of Care was 3.3. The record revealed the Prison DOSA Agreement was again signed August 12, 2021, you subscribed your request to be placed in 3.3 treatment however you were not refusing treatment. The substance abuse disorder individual service document signed August 17, 2021 reiterates you subscribed you were not refusing any treatment that is being offered. You indicated you were not willing to substitute 3.3 treatment with a lesser level of treatment, but you would comply with any treatment only because it was explained
8 No. 39079-9-III PRP of Creech
that if you did not, you could face possible revocation. While you contend your willingness to enter any level of treatment, you also indicate you were not willing to substitute level 3.3 treatment. The record as well as your testimony also reveal you have other issues which contribute to your level of care. There was no debate you have had a lesser level of treatment in the past which has had negligible results based on your current sentence where substance abuse was the foundation for your current sentence. The record showed your unwillingness to comply with facility rules since your last process resulting in closed custody and medium level of custody which has removed any opportunity to access the 3.3 level of care. At no time has your custody suited the minimum level of custody to enter a level 3.3 treatment. You state a willingness to comply with treatment however your actions demonstrated a different narrative. As the presiding Hearing Officer inferred, your actions spoke louder than your words. You have knowingly made efforts to dictate your treatment expectations, yet your behavior has continually removed your ability to reach that goal. Even on this last occasion, while you stated your willingness to enter any form of treatment, your actions showed a different path. Your disposition and communicated displeasure in your conversation on August 17, 2021, was so threatening, the substance abuse counselor questioned if she would continue her career path. You demonstrated a clear inability to maintain your composure and the presiding Hearing Officer determined a preponderance of the evidence was met regarding your underlying behaviors based on the evidence and corroborating testimony provided in this hearing. In considering the totality of the evidence, it is clear there have been five new infractions resulting in custody level changes and over the last year, no treatment, as well as the continued behaviors is concerning. In summary, the Appeals Panel affirms the presiding Hearing Officers sanction as the evidence supports you were in noncompliant with your DOSA.
Resp. Ex. 2, Att. G at 144.
Brandon Creech brings a personal restraint petition before this court. He seeks to
be restored to a prison-based DOSA sentence.
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LAW AND ANALYSIS
To prevail in his personal restraint petition, Brandon Creech must demonstrate that
his restraint is unlawful. RAP 16.4(a). To establish an unlawful restraint the petitioner
must demonstrate either a constitutional violation or violation of state law.
RAP 16.4(c)(2); In re Personal Restraint of Cashaw, 123 Wn.2d 138, 148, 866 P.2d 8
(1994). In turn, a petition alleging a constitutional error must also show “actual and
substantial prejudice,” while a petition alleging nonconstitutional error must also show “a
fundamental defect which inherently results in a complete miscarriage of justice.” In re
Personal Restraint of Cashaw, 123 Wn.2d 138, 148 (1994) (quoting In re Personal
Restraint of Cook, 114 Wn.2d 802, 812, 792 P.2d 506 (1990)) (internal citations omitted).
Under RAP 16.7(a)(2), a petitioner must list grounds for relief by including the
facts on which he bases his claim of unlawful restraint, the evidence available to support
those factual allegations, and the reasons why the restraint is unlawful. Bare allegations
unsupported by citation to authority, references to the record, or persuasive reasoning do
not support a personal restraint petition. In re Personal Restraint of Rice, 118 Wn.2d
876, 886, 828 P.2d 1086 (1992); State v. Brune, 45 Wn. App. 354, 363, 725 P.2d 454
(1986). For this court to reverse the outcome of a prison discipline hearing, the petitioner
must show that the proceeding was so arbitrary and capricious as to deny the petitioner a
fundamentally fair proceeding. In re Personal Restraint of Wilson, 17 Wn. App. 2d 72,
82, 484 P.3d 1 (2021).
10 No. 39079-9-III PRP of Creech
Brandon Creech contends DOC violated numerous constitutional due process
rights and violated state law with regard to prisons. We address all of the due process
contentions before analyzing state law.
Due Process
Brandon Creech contends DOC violated his due process rights because (1) DOC
failed to prove each infraction, on which it relied at the DOSA revocation hearing, by a
preponderance of the evidence, (2) he lacked access to evidence needed to prepare for the
DOSA revocation hearing and his DOC appeal, (3) evidence presented by DOC about
Creech’s nondrug related infractions biased the hearing officer, and (4) DOC never
advised him of his right to appeal infractions for the earlier nondrug related violations.
Prisoners facing discipline are not entitled to the full panoply of due process
protections afforded defendants facing criminal charges. In re Personal Restraint of
Wilson, 17 Wn. App. 2d 72, 82 (2021). An individual facing possible revocation of
community custody is entitled to the minimum due process protections established in
Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2953, 33 L. Ed. 2d 484 (1972) for parole
revocation hearings. In re Personal Restraint of McNeal, 99 Wn. App. 617, 619, 994
P.2d 890 (2000). The United States Supreme Court listed such protections as:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer
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specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Morrissey v. Brewer, 408 U.S. 471, 489 (1972); In re Personal Restraint of Bufalini, 4
Wn. App. 2d 392, 403, 423 P.3d 262 (2018). In addition to the minimum due process
protections established in Morrissey v. Brewer, at a hearing to revoke a DOSA sentence
following administrative termination from the DOSA treatment program, due process
requires that both the administrative termination and the facts that served as a basis for
terminating treatment be proved by a preponderance of the evidence. In re Personal
Restraint of Schley, 191 Wn.2d 278, 287-90, 421 P.3d 951 (2018) (plurality opinion); In
re Personal Restraint of Wilson, 17 Wn. App. 2d 72, 82 (2021).
WAC 137-104-050(6) also demands that DOC prove each alleged violation by a
preponderance of the evidence. The preponderance of the evidence standard requires that
the evidence establish the proposition at issue is probably more true than not true. In re
Dependency of H.W., 92 Wn. App. 420, 425, 961 P.2d 963, 969 P.2d 1082 (1998).
Brandon Creech argues that DOC violated his due process rights when it failed to
prove each infraction by a preponderance of the evidence at his DOSA revocation
hearing. He maintains that the hearing officer simply reviewed the infraction reports, did
not review the hearings regarding the infractions, and did not review any related reports,
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video evidence, photo evidence, or witness statements. The record indicates otherwise.
The record establishes that DOC hearing officer relied on Creech’s judgment and
sentence, the notice of allegation, hearing, rights, and waiver form he signed, the report
of alleged violations, conditions, requirements, and instructions form, CCO testimony,
and Creech’s testimony. These sources of facts supplied sufficient evidence to support
the hearing officer’s termination of the DOSA sentence.
To comply with due process requirements at Brandon Creech’s DOSA treatment
revocation hearing, DOC also needed to show by a preponderance of the evidence the
fact of Creech’s administrative termination and those facts that supported the termination.
Creech does not argue that DOC failed to prove his administrative termination from the
DOSA treatment program. The record confirms the administrative termination.
The DOC appeals panel also relied on sufficient evidence when affirming the
termination. The panel reviewed the contents of the records supplied by Brandon Creech
for his appeal, evidence submitted at the administrative hearing, and the audio recording
of the administrative hearing.
Brandon Creech next argues that DOC denied him due process when it prevented
him from reviewing or retaining his own copy of the documents and evidence to be used
against him at his DOSA revocation hearing. He maintains that, due to having
insufficient access to such materials, he could not adequately prepare for his DOSA
revocation hearing. We disagree.
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The record reveals that the DOSA notice of allegations, hearing, rights and waiver
form Brandon Creech signed on November 1, 2021 outlined the evidence to be used
against him at his DOSA revocation hearing. The appeals panel also found DOC
administration properly served the discovery packet. At the time of the hearing, Creech
did not suggest any lack of preparation. In his personal restraint petition, Creech does not
identify any specific information denied to him that prejudiced his ability to contest the
termination.
Brandon Creech further argues that DOC violated due process when its hearing
officer relied on nondrug related infractions as evidence at his DOSA revocation hearing,
and, when doing so, the hearing officer became biased against him. Therefore, according
to Creech, he lacked a neutral and detached hearing officer.
The record establishes that the DOC hearing officer referenced, but did not rely
on, infractions other than Brandon Creech’s second code 762 serious violation when
affirming the revocation of his DOSA sentence. The appeals panel confirmed such.
We note that RCW 9.94A.662(4) requires that a DOC hearing officer revoke an
offender’s DOSA sentence when the offender has been administratively terminated from
the program. The statute affords the hearing officer no discretion to continue an
offender’s DOSA sentence on his administrative termination from the program. The
record indisputably shows that Creech was administratively terminated from the DOSA
program. Thus, Creech could not have suffered prejudice.
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Finally, Brandon Creech argues that DOC violated due process when the DOC
hearing officer relied on prior nondrug-related infractions he committed as evidence
supporting revocation of his DOSA sentence because he was never advised of his right to
appeal those infractions. We decline to address this contention since the record
establishes that the hearing officer did not rely on the other infractions when affirming
the revocation of Creech’s DOSA sentence. Thus, Creech suffered no prejudice.
DOSA Policies
Brandon Creech asserts, in his personal restraint petition, that DOC twice failed to
follow its own policies. First, Creech contends DOC failed to follow its own hearing
officer’s prior decision to offer him Level 3.3 treatment when it placed him in Level 2.5
treatment. Second, Creech argues that DOC terminated his DOSA sentence for nondrug
related infractions.
A showing that a government agency failed to comply with the agency’s own rules
or regulations shows an unlawful restraint. In re Personal Restraint of Wilson, 17 Wn.
App. 2d 72, 82 (2021). But, in addition, for relief under a personal restraint petition, the
petitioner must show a fundamental defect that inherently results in a complete
miscarriage of justice. In re Personal Restraint of Cashaw, 123 Wn.2d 138, 148 (1994).
Brandon Creech does not specify which policy or policies he believes DOC
violated. Bare allegations unsupported by citation to authority, references to the record,
or persuasive reasoning do not support a personal restraint petition. In re Personal
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Restraint of Rice, 118 Wn.2d 876, 886 (1992). While Creech provides two quotes from
two cases to support this argument in his personal restraint petition, the language of the
quotes does not assist in analyzing the arguments he asserts.
Brandon Creech first cites In re Personal Restraint of Wilson, 17 Wn. App. 2d 72
(2021) when declaring: “The DOC must accept its own hearings officers [sic] own
decision and cannot continue to retry a hearing until it obtains its desired outcome.” PRP
at 8. Wilson does not articulate such a rule. Instead, the Wilson court wrote that “DOC
cannot retry infractions on the same record until it gets the outcome it wants.” In re
Personal Restraint of Wilson, 17 Wn. App. 2d 72, 88 (2021). DOC did not retry the same
infractions against Creech. Creech’s most recent DOSA revocation hearing resulted from
the August 17 infraction. It did not result from DOC retrying the code 762 serious
infraction heard by the DOC hearing officer in 2020.
Brandon Creech next cites In re Personal Restraint of Cashaw, 123 Wn.2d 138,
149 (1994). He provides the following quote from Cashaw: “A showing that a decision
by a government agency failed to comply with the agency’s own rules or regulations is
sufficient to show the unlawfulness of the restraint.” PRP at 8. This language is not
found in Cashaw, but can be found verbatim in Wilson, as cited above. To repeat, Creech
does not identify any regulation violated. DOC reasonably supplied Level 2.5 treatment
when Creech’s security risk placed him in a facility that did not offer Level 3.3 treatment.
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CONCLUSION
We deny Brandon Creech’s personal restraint petition.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________ Fearing, C.J.
WE CONCUR:
______________________________ Siddoway, J.
______________________________ Lawrence-Berrey, J.