Filed Washington State Court of Appeals Division Two
April 16, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 58157-4-II
CHARLES FRANCIS ROARK,
Petitioner. UNPUBLISHED OPINION
VELJACIC, A.C.J. — Charles Roark seeks relief from personal restraint imposed following
a guilty finding for a Department of Corrections (DOC) WAC 137-25-030(1) category A, 603
serious infraction (603 serious infraction) for introducing or transferring unauthorized drugs or
paraphernalia while incarcerated. Roark argues that insufficient evidence supported a guilty
finding and that he was denied a fair proceeding. We hold that sufficient evidence supported the
guilty finding, and that Roark has not shown that the disciplinary decision was so arbitrary and
capricious that it denied him a fundamentally fair proceeding or that he was prejudiced by the
process he received. We dismiss the petition.
FACTS
On May 8, 2022, former DOC inmate Max Fiest and his girlfriend Nikki Schab were on
their way to Cedar Creek Corrections Center (CCCC) to collect property belonging to Fiest. Their
vehicle broke down near the facility on Bordeaux Road. Schab walked to the perimeter control
office for help while Fiest remained in the car with their dogs. When Schab reached the office,
she asked Investigator Colin Crouthamel for assistance and he went to inspect the vehicle. 58157-4-II
Crouthamel noted a strong odor of marijuana inside the car. The vehicle was towed later that
evening.
That same evening, CCCC Officer John Gurley ended his shift and left the facility via
Bordeaux Road. He noticed a man and a woman walking a dog, and noted that the woman was
carrying a dark colored backpack with “reddish coloring on what looked like the edges.” Pers.
Restraint Pet. (PRP) Ex. 4. The next morning, in the same location off the side of the road, Officer
Carl Wilson found a black backpack with red straps containing tobacco. CCCC Investigator
Heather Luck further inspected the contents of the bag. It contained two glass pipes, four syringes,
one lighter, three packs of rolling papers, and 92.4 grams of methamphetamine.
Prior to the car breaking down and the discovery of the bag, Fiest and Roark had been in
contact, exchanging JPAY messages. In those messages, they discussed dinner plans with their
girlfriends, Schab and Brenda Bauman1, scheduled for May 8. During the investigation, no other
correspondence was found between Roark and another female discussing dinner plans. On May
8, a conversation was overheard where Fiest states, “I’m chillin, getting into town right now.
About to go to my storage unit in a couple hours you know.” Br. of Resp’t at Ex. 2. These
conversations led Crouthamel to believe that Roark and Fiest were conspiring to introduce
contraband into the CCCC.
1 Brenda Bauman is Roark’s ex-girlfriend. She resides in Baccoda, near the CCCC. Fiest explains the May 8 events as follows: “[Roark] said that a friend of his, Brenda Bauman, had a trailer on her property that she wanted removed. Mr. Roark asked me if I would be willing to remove it and store it for him, so he could live in it upon his release in 2024.” PRP at Ex. 18. Bauman also submitted a declaration in which she explains that Roark arranged for a friend of his, Fiest, to remove the trailer and take it somewhere. Bauman explains that she believes they came to her residence for dinner on the date in question, May 8, 2022.
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On May 10, Crouthamel interviewed Roark about the recovered backpack. According to
the infraction report completed by Crouthamel, in that interview Roark admitted to conspiring to
introduce the contents of the backpack into the CCCC.
Roark was accused of a “603” serious infraction, “introducing or transferring any
unauthorized drug or drug paraphernalia.” At the hearing, Roark entered a plea of not guilty. He
argued that in his conversations with Fiest, he was making genuine dinner plans, and that he did
not confess to Crouthamel in the interview. Roark did not request any witnesses at the hearing.
Roark was found guilty of the serious infraction. The sanctions he received included: 90
days of urinalysis testing, 180 days interruption of telephone and electronic communication
privileges, 75 days loss of good conduct time, and 17 days segregation with credit for time served.
Roark appealed, and the infraction was affirmed. Roark then filed this personal restraint petition
(PRP).
ANALYSIS
I. LEGAL PRINCIPLES
To be entitled to relief via PRP, a petitioner needs to show that they are restrained under
RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of
Grantham, 168 Wn.2d 204, 212-13, 227 P.3d 285 (2010). A personal restraint petitioner is entitled
to full collateral review of a conviction or sentence if the petitioner proves actual prejudice from a
constitutional error, or nonconstitutional error which inherently results in a complete miscarriage
of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). Specifically,
in a PRP challenging a prison disciplinary sanction, such a decision is reviewable only if the action
taken was “so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.”
In re Pers. Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984). “‘Arbitrary and
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capricious action has been defined as willful and unreasoning action, without consideration and in
disregard of facts and circumstances. Where there is room for two opinions, action is not arbitrary
and capricious even though one may believe an erroneous conclusion has been reached.’” Id. at
296 (quoting Pierce County Sheriff v. Civil Serv. Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648
(1983)).
A prison disciplinary proceeding is not arbitrary and capricious if the petitioner was
afforded minimum due process protections applicable in such cases. In re Pers. Restraint of
Anderson, 112 Wn.2d 546, 548-49, 772 P.2d 510 (1989). A prisoner enjoys more limited due
process rights than a criminal defendant. Reismiller, 101 Wn.2d at 296-97.
Minimum due process in these cases means the prisoner must (1) receive notice of the alleged violation; (2) be provided an opportunity to present documentary evidence and call witnesses when not unduly hazardous to institutional safety and correctional goals; and (3) receive a written statement of the evidence relied upon and the reasons for the disciplinary action.
In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 397, 978 P.2d 1083 (1999).
When challenging a prison disciplinary decision under this standard, the offender must
present evidence that is more than speculation or conjecture. Id. at 396. A PRP must be supported
by facts or evidence underlying the claim of unlawful restraint. In re Pers. Restraint of Rice, 118
Wn.2d 876, 885-86, 828 P.2d 1086 (1992); Cook, 114 Wn.2d at 813-14. When a petitioner relies
exclusively on conclusory allegations, a court should decline to determine the validity of the
petition. Cook, 114 Wn.2d at 813-14.
Further, we do not impose the same evidentiary requirements on prison disciplinary
proceedings as are imposed on criminal trials; rather, when a prison disciplinary committee finds
an inmate guilty of an infraction, the requirements of due process are satisfied if “some evidence”
supports the decision. Reismiller, 101 Wn.2d at 296-97; Anderson, 112 Wn.2d at 548. In order to
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satisfy the “some evidence” test, there must be some reasonable connection between the evidence
and the inmate. Anderson, 112 Wn.2d at 549.
For example, in Anderson, the court reviewed a PRP based on a prison disciplinary
proceeding finding the petitioner guilty of an infraction of possession of a knife. Id. at 548. The
knife was found in the petitioner’s cell, which he shared with three other inmates. Id. at 550. In
dismissing the petition, the court held that a sufficient connection did exist between the petitioner
and the knife to satisfy the limited nature of due process available to incarcerated felons. Id. at
549. The court reasoned that the fact that there was a knife found in the cell is some evidence that
any one of the four cellmates, or all four of the cellmates, either possessed the knife, placed the
knife in the cell, or at least knew of its presence in the cell. Id. at 550. The court also noted that
“[w]hile such evidence may be insufficient to satisfy due process in a nonprison setting, because
a lesser standard is required to satisfy the rights of prison inmates, due process in this case was
satisfied.” Id.
These fundamental due process protections apply only to disciplinary actions that implicate
a protected liberty interest. Kozol v. Dep’t of Corr., 185 Wn.2d 405, 409-10, 379 P.3d 72 (2016).
In serious infraction hearings where sanctions include loss of good time credits, as is the case here,
Washington prisoners are entitled to minimum due process. Gronquist, 138 Wn.2d at 397. But
even where no liberty interest is implicated, a disciplinary action may be challenged by a PRP on
other grounds, such as violation of regulations governing disciplinary proceedings. Kozol, 185
Wn.2d at 410-11.
II. ROARK WAS AFFORDED DUE PROCESS
In examining Roark’s petition under this standard, we hold that he received the requisite
due process. As previously stated, a prisoner enjoys more limited due process rights than a
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criminal defendant, requiring only that he: (1) receive notice of the alleged violation, (2) be
provided an opportunity to present documentary evidence and call witnesses, and (3) receive a
written statement of the evidence relied on and the reasons for the disciplinary action. Gronquist,
138 Wn.2d at 396-97; Reismiller, 101 Wn.2d at 296-97. Roark was afforded all three of these
requirements: he received a copy of the written notice of the serious infraction more than 24 hours
before the hearing took place; he was provided the opportunity to present evidence and call
witnesses at the hearing, which he did not do; and he was issued a copy of the minutes of the
disciplinary hearing and the findings form after the hearing.
Roark primarily argues that his due process rights were violated because there is no
recording of the interview in which Crouthamel claims that Roark confessed. Roark appears to
assert that because an infraction hearing is normally where a confession would occur, and the
interview was closely related to the soon-to-follow infraction hearing, the interview should be seen
as part of the infraction hearing process, which would require it to be recorded. See DOC Policy
460.000. But the interview Roark is referring to was not an infraction hearing. Roark points to no
authority that would obligate DOC to record the interview, and the actual infraction hearing was
recorded pursuant to DOC policy. See DOC Policy 460.000. Failure to record this interview does
not violate Roark’s due process rights or demonstrate that the disciplinary process was so
“arbitrary and capricious” as to deny Roark a fundamentally fair proceeding.
Roark also argues that multiple violations of DOC policy occurred when investigating
officers brought methamphetamine into a DOC facility, which by itself should establish the
unlawfulness of the infraction. Presumably, Roark is arguing that a violation of DOC policy
establishes he was denied due process. See In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 141-
42, 866 P.2d 8 (1994).
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Noncompliance with certain regulations can be a basis for relief. In Cashaw, the petitioner
challenged the actions of the Indeterminate Sentence Review Board (ISRB) in setting his minimum
prison term to coincide with the remainder of his court-imposed maximum sentence. Id. at 140.
This was in violation of the ISRB’s own procedural rules for parolability hearings. Id. at 147. The
court explained that where the petitioner had no previous or alternative avenue for obtaining
review, and the restraint was only accomplished through a violation of the ISRB’s own regulations,
the petitioner was entitled to relief. Id. at 149.
However, a petitioner does not establish a basis for relief if the alleged noncompliance did
not prevent a prisoner from mounting a defense at a previous venue for obtaining review. For
example, in Grantham, the petitioner argued that the infraction report against him did not comply
with certain prison regulations and therefore he was denied due process. 168 Wn.2d at 216. The
alleged violation was the failure of the investigating officer to include the time and place of the
incident with specificity, and a required time stamp in the report was missing. Id. The petitioner
asserted that this entitled him to relief under Cashaw, 123 Wn.2d at 140. Id. The court dismissed
the petition, reasoning that any error in the infraction report did not prevent Grantham from
mounting a defense because he was still informed of the charges against him, the factual basis for
those charges, and given an opportunity to defend himself. Id. at 217. In other words, despite the
violation of internal policy, it was sufficient that the petitioner had a previous opportunity to obtain
review and present his case, and the violation did not impact his ability to do so.
We reject Roark’s argument for the same reasons as discussed by the court in Grantham.
Even if a violation of DOC policy occurred, this alleged violation did not prevent Roark from
mounting a defense at his hearing: he was informed of the charges against him, the factual basis
for those charges, and given an opportunity to defend himself. This alleged violation based on
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bringing methamphetamine into a DOC facility does not result in Roark being denied a
fundamentally fair proceeding nor does it follow that he was prejudiced by the process he received,
especially where he was previously afforded an avenue to obtain review. See Grantham, 168
Wn.2d at 218.
We hold that Roark was afforded the requisite due process.
III. THE GUILTY FINDING WAS BASED ON “SOME EVIDENCE”
Roark asserts that the “some evidence” standard was not met here, because the evidence
against him was circumstantial and inconsistent. We disagree.
In order to satisfy the “some evidence” test, there must be some reasonable connection
between the evidence and the inmate. Anderson, 112 Wn.2d at 549. In the case of conspiracy to
introduce or transfer any unauthorized drug or drug paraphernalia, as is alleged here, the general
rule is that “there need be no evidence of a formally expressed agreement between the alleged
conspirators.” State v. McGonigle, 144 Wash. 252, 257, 258 P. 16 (1927); see WAC 137-25-
030(1) category A, 603. Circumstantial evidence of a “meeting of the minds and unity of design
and of co-operative conduct which could only mean that there was such an agreement” is sufficient.
Id.
Roark reasons that there is no evidence of any such connection between him and any CCCC
staff member, he has no drug history, he has been “major infraction-free” for nearly a decade, and
there is also no evidence of his realizing financial gain. PRP at 16. Roark raised these points at
his hearing. However, where there is room for two opinions, a disciplinary action is not arbitrary
and capricious even though one may believe an erroneous conclusion has been reached.
Reismiller, 101 Wn.2d at 296. Based on the record before us, there is room for two opinions. The
hearing officer reviewed the initial serious infraction report and the incident report, both of which
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describe how Roark was in communication with Fiest as to dinner plans on May 8, 2022 and Fiest
was seen outside of the CCCC with Schab on May 8. Additionally, Fiest and Schab were spotted
walking down Bordeaux Road with a red and black backpack. The next day, a red and black
backpack containing contraband was discovered on Bordeaux Road outside of CCCC. The initial
serious infraction report from Crouthamel, supported by photo evidence curated by Luck, details
how the circumstantial evidence shows that Fiest intended to transmit contraband to Roark.
Roark would like us to reexamine the entire record, when the standard is only “some
evidence.” Based on the evidence listed above, all of which was considered by the hearing officer,
there is certainly “some evidence” to support the guilty finding as well as room for two opinions.
See Reismiller, 101 Wn.2d at 296. This is true even if some of the evidence is circumstantial and
Roark believes the conclusion to be erroneous. See id. Circumstantial evidence is sufficient where
conspiracy is alleged and, while this evidence may be insufficient to satisfy due process in a
nonprison setting, because a lesser standard is required to satisfy the rights of prison inmates, due
process in this case was satisfied. See Anderson, 112 Wn.2d at 550; McGonigle, 144 Wash. at
257.
Roark argues that the “some evidence” standard is not met because the disciplinary
decision relied entirely on Crouthamel’s report that Roark confessed. But an infraction report from
a staff member is sufficient to meet the “some evidence” standard required here. In re Pers.
Restraint of Leland, 115 Wn. App. 517, 537, 61 P.3d 357 (2003) (“For example, the hearsay report
of a prison official who did not witness an infraction can constitute ‘some evidence’ to support the
conclusion of guilt for the infraction.”), abrogated on other grounds by In re Pers. Restraint of
Higgins, 152 Wn.2d 155, 95 P.3d 330 (2004). Crouthamel’s report is a valid form of evidence
supporting the guilty finding.
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Roark also argues that Crouthamel’s report should not be relied on. He alleges that
Crouthamel is not credible because he “has a notorious reputation for dishonesty and poorly
founded infractions among DOC offenders” and has a “less than sterling record as an investigator.”
PRP at 12. Roark speculates as to why Crouthamel would be dishonest about his confession,
saying that “Crouthamel would have appeared quite the failure at his new job, if he did not do
whatever was necessary to justify his infraction and make it stick,” and “[o]nly by infracting []
Roark, and bolstering the otherwise all but baseless infraction with a fabricated confession, could
[] Crouthamel save face, salvage his first day on the job, and his first big investigation at CCCC.”
PRP at 13, 17. According to Roark, because Crouthamel is not credible and the guilty finding was
based on his report alone, the report should not be relied on, and the “some evidence” standard is
not met.
Roark does not offer any concrete evidence to support his allegation that Crouthamel is
lying. Roark merely makes conclusory allegations and speculates as to why Crouthamel would be
dishonest. Cook, 114 Wn.2d at 813-14 (“Where the record does not provide any facts or evidence
on which to decide the issue and the petition instead relies solely on conclusory allegations, a court
should decline to determine the validity of a [PRP].”). But again, as we concluded above, there is
some evidence supporting the decision. We are not required to view the evidence in Roark’s favor.
Further, Crouthamel’s report was accompanied by other evidence supporting the guilty
finding: Roark had prior communication with Fiest; Fiest was present outside the CCCC on May
8, 2022, the date they discussed; and multiple witnesses who saw Fiest and Schab in possession a
black and red backpack which was found the next day containing contraband. The guilty finding
was based on “[s]taff written testimony,” not solely Crouthamel’s report. Br. of Resp’t at Ex. 1,
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Att. F. The aforementioned qualifies as some evidence connecting Roark to the offense. See
Anderson, 112 Wn.2d at 549.
Based on the aforementioned, we hold that the “some evidence” standard was met here.
CONCLUSION
Roark was afforded minimum due process. Roark has not shown that the disciplinary
decision was so arbitrary and capricious that it denied him a fundamentally fair proceeding or that
he was prejudiced by the process he received. The decision was based on some evidence. We
dismiss the petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, A.C.J.
We concur:
Maxa, J.
Che, J.