IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint ) No. 83282-4-I Petition of ) ) DONALD BETTS, ) PUBLISHED OPINION ) Petitioner. )
BOWMAN, J. — Donald Betts seeks relief through a personal restraint
petition (PRP) from the decision of the Indeterminate Sentence Review Board
(ISRB) denying him conditional release and extending his minimum term of
confinement by 48 months. We dismiss his petition as time barred under RCW
4.16.130.
FACTS
A jury convicted Betts of two counts of second degree rape and one count
of first degree burglary in 2010. The trial court imposed concurrent indeterminate
sentences of 194 months to life for each second degree rape conviction.1 The
Department of Corrections (DOC) calculated Betts’ minimum term of confinement
to expire on November 25, 2018.
1 Betts received a concurrent 54-month determinate sentence for first degree burglary.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 83282-4-I/2
On July 10, 2018, the ISRB held a hearing to consider conditional release
for Betts when his minimum term of confinement expired.2 Betts attended the
hearing, and a DOC classification counselor and a sex-offender treatment
supervisor testified. The ISRB determined that Betts was not fit for conditional
release, extended his minimum term of confinement by 48 months, and issued its
final written decision on July 20, 2018. More than two years later, on November
16, 2020, Betts filed this PRP challenging the ISRB decision.
ANALYSIS
Betts claims he is unlawfully restrained because the ISRB abused its
discretion when it found him unfit for conditional release and set a new minimum
term of confinement. The ISRB argues Betts’ PRP is time barred by the two-year
statute of limitations under RCW 4.16.130. Betts insists there is no “limitation on
the timeliness of PRPs attacking parole denials.” He argues that “[b]ecause the
Legislature did not set a corresponding limitation [in RCW 10.73.090] on the
timeliness of PRPs attacking parole denials, [we] should conclude that no
limitation exists.” We agree with the ISRB.3
A PRP is a form of “collateral attack” for postconviction relief. RCW
10.73.090(2). It is “a specialized form” of “an original action established by the
Supreme Court,” and as a result, civil in nature. In re Pers. Restraint of Heck, 14
Wn. App. 2d 335, 340-41, 470 P.3d 539 (2020), review denied, 196 Wn.2d 1047,
2 RCW 9.95.011(2)(a) requires the ISRB to review an offender for conditional release “not less than ninety days prior to the expiration of the minimum term.” 3The ISRB also argues a preponderance of the evidence supported its decision that Betts was more likely than not to commit a future sex offense if released. Because we conclude Betts’ PRP is time barred, we do not reach that issue.
2 No. 83282-4-I/3
481 P.3d 1096 (2021); In re Pers. Restraint Petition of Gentry, 137 Wn.2d 378,
409, 972 P.2d 1250 (1999).
Whether a statute of limitations applies to a cause of action is a question
of law we review de novo. Bennett v. Computer Task Grp., Inc., 112 Wn. App.
102, 106, 47 P.3d 594 (2002). Under RCW 10.73.090(1),
[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
But a decision by the ISRB denying conditional release is not a “judgment and
sentence in a criminal case.” RCW 10.73.090(1); see Heck, 14 Wn. App. 2d at
340.
Decisions about conditional release do not arise until “after the end of the
criminal prosecution, including imposition of sentence.” Morrissey v. Brewer, 408
U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). So “the setting of a
minimum term is not part of a criminal prosecution.” In re Pers. Restraint Petition
of Sinka, 92 Wn.2d 555, 566, 599 P.2d 1275 (1979); State v. King, 130 Wn.2d
517, 525, 925 P.2d 606 (1996). Further, the ISRB is not a judicial body; it is an
executive agency taking administrative action. See Taggart v. State, 118 Wn.2d
195, 204, 207, 822 P.2d 243 (1992) (parole board granted quasi-judicial
immunity as a governmental agency taking administrative action); see also In re
Pers. Restraint of Lain, 179 Wn.2d 1, 16, 315 P.3d 455 (2013) (parole is an
administrative decision); State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360
(1937) (“execution” of a sentence is not judicial; it is a power “administrative in
character,” vested in the administrative body according to the manner prescribed
3 No. 83282-4-I/4
by the legislature). As a result, denial of conditional release is “an administrative
act which follows sentencing.” King, 130 Wn.2d at 526-27 (citing In re Pers.
Restraint Petition of Ayers, 105 Wn.2d 161, 164, 713 P.2d 88 (1986)).
And the ISRB’s decision does not modify or amend the judgment and
sentence.4 See In re Pers. Restraint of Addleman, 151 Wn.2d 769, 775, 92 P.3d
221 (2004) (While the ISRB exercises its discretion in determining whether to
grant conditional release, “prisoners serving indeterminate sentences are not
resentenced under the [Sentencing Reform Act of 1981, chapter 9.94A RCW].”).
As a result, Betts’ collateral attack on the ISRB decision denying conditional
release is not an “attack on a judgment and sentence in a criminal case” as
contemplated by RCW 10.73.090, and the one-year time bar under that statute
does not apply.
Betts argues that because RCW 10.73.090 does not apply to a collateral
attack of an ISRB decision, there is no time limit on his PRP. We addressed a
similar issue in Heck. In that case, we determined that the time bar for collateral
attack on a criminal judgment under RCW 10.73.090 does not apply to a PRP
challenging prison disciplinary decisions by DOC. Heck, 14 Wn. App. 2d at 340-
41.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Personal Restraint ) No. 83282-4-I Petition of ) ) DONALD BETTS, ) PUBLISHED OPINION ) Petitioner. )
BOWMAN, J. — Donald Betts seeks relief through a personal restraint
petition (PRP) from the decision of the Indeterminate Sentence Review Board
(ISRB) denying him conditional release and extending his minimum term of
confinement by 48 months. We dismiss his petition as time barred under RCW
4.16.130.
FACTS
A jury convicted Betts of two counts of second degree rape and one count
of first degree burglary in 2010. The trial court imposed concurrent indeterminate
sentences of 194 months to life for each second degree rape conviction.1 The
Department of Corrections (DOC) calculated Betts’ minimum term of confinement
to expire on November 25, 2018.
1 Betts received a concurrent 54-month determinate sentence for first degree burglary.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 83282-4-I/2
On July 10, 2018, the ISRB held a hearing to consider conditional release
for Betts when his minimum term of confinement expired.2 Betts attended the
hearing, and a DOC classification counselor and a sex-offender treatment
supervisor testified. The ISRB determined that Betts was not fit for conditional
release, extended his minimum term of confinement by 48 months, and issued its
final written decision on July 20, 2018. More than two years later, on November
16, 2020, Betts filed this PRP challenging the ISRB decision.
ANALYSIS
Betts claims he is unlawfully restrained because the ISRB abused its
discretion when it found him unfit for conditional release and set a new minimum
term of confinement. The ISRB argues Betts’ PRP is time barred by the two-year
statute of limitations under RCW 4.16.130. Betts insists there is no “limitation on
the timeliness of PRPs attacking parole denials.” He argues that “[b]ecause the
Legislature did not set a corresponding limitation [in RCW 10.73.090] on the
timeliness of PRPs attacking parole denials, [we] should conclude that no
limitation exists.” We agree with the ISRB.3
A PRP is a form of “collateral attack” for postconviction relief. RCW
10.73.090(2). It is “a specialized form” of “an original action established by the
Supreme Court,” and as a result, civil in nature. In re Pers. Restraint of Heck, 14
Wn. App. 2d 335, 340-41, 470 P.3d 539 (2020), review denied, 196 Wn.2d 1047,
2 RCW 9.95.011(2)(a) requires the ISRB to review an offender for conditional release “not less than ninety days prior to the expiration of the minimum term.” 3The ISRB also argues a preponderance of the evidence supported its decision that Betts was more likely than not to commit a future sex offense if released. Because we conclude Betts’ PRP is time barred, we do not reach that issue.
2 No. 83282-4-I/3
481 P.3d 1096 (2021); In re Pers. Restraint Petition of Gentry, 137 Wn.2d 378,
409, 972 P.2d 1250 (1999).
Whether a statute of limitations applies to a cause of action is a question
of law we review de novo. Bennett v. Computer Task Grp., Inc., 112 Wn. App.
102, 106, 47 P.3d 594 (2002). Under RCW 10.73.090(1),
[n]o petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.
But a decision by the ISRB denying conditional release is not a “judgment and
sentence in a criminal case.” RCW 10.73.090(1); see Heck, 14 Wn. App. 2d at
340.
Decisions about conditional release do not arise until “after the end of the
criminal prosecution, including imposition of sentence.” Morrissey v. Brewer, 408
U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). So “the setting of a
minimum term is not part of a criminal prosecution.” In re Pers. Restraint Petition
of Sinka, 92 Wn.2d 555, 566, 599 P.2d 1275 (1979); State v. King, 130 Wn.2d
517, 525, 925 P.2d 606 (1996). Further, the ISRB is not a judicial body; it is an
executive agency taking administrative action. See Taggart v. State, 118 Wn.2d
195, 204, 207, 822 P.2d 243 (1992) (parole board granted quasi-judicial
immunity as a governmental agency taking administrative action); see also In re
Pers. Restraint of Lain, 179 Wn.2d 1, 16, 315 P.3d 455 (2013) (parole is an
administrative decision); State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360
(1937) (“execution” of a sentence is not judicial; it is a power “administrative in
character,” vested in the administrative body according to the manner prescribed
3 No. 83282-4-I/4
by the legislature). As a result, denial of conditional release is “an administrative
act which follows sentencing.” King, 130 Wn.2d at 526-27 (citing In re Pers.
Restraint Petition of Ayers, 105 Wn.2d 161, 164, 713 P.2d 88 (1986)).
And the ISRB’s decision does not modify or amend the judgment and
sentence.4 See In re Pers. Restraint of Addleman, 151 Wn.2d 769, 775, 92 P.3d
221 (2004) (While the ISRB exercises its discretion in determining whether to
grant conditional release, “prisoners serving indeterminate sentences are not
resentenced under the [Sentencing Reform Act of 1981, chapter 9.94A RCW].”).
As a result, Betts’ collateral attack on the ISRB decision denying conditional
release is not an “attack on a judgment and sentence in a criminal case” as
contemplated by RCW 10.73.090, and the one-year time bar under that statute
does not apply.
Betts argues that because RCW 10.73.090 does not apply to a collateral
attack of an ISRB decision, there is no time limit on his PRP. We addressed a
similar issue in Heck. In that case, we determined that the time bar for collateral
attack on a criminal judgment under RCW 10.73.090 does not apply to a PRP
challenging prison disciplinary decisions by DOC. Heck, 14 Wn. App. 2d at 340-
41. But we also concluded that since the PRP was civil in nature, “and no other
statute or court rule expressly addresses time limits on filing in this context,” the
4 While the judgment and sentence informed Betts that the ISRB “may increase the minimum term of confinement,” that language served merely to notify Betts of the ISRB’s authority under RCW 9.95.011(1). It did not empower the ISRB to change the court’s sentence.
4 No. 83282-4-I/5
two-year “ ‘catch all’ ” statute of limitations in RCW 4.16.1305 applies. Heck, 14
Wn. App. 2d at 340-41.6
We see no reason to distinguish the collateral attack of a DOC disciplinary
decision in Heck from Betts’ collateral attack of an ISRB decision denying early
release. Both are civil in nature, and neither involves an attack on a criminal
judgment. Indeed, it would be an absurd result to contemplate that in light of two
arguably applicable statutes of limitation, the legislature intended no time
limitation at all. See Johnson v. Dep’t of Corr., 164 Wn. App. 769, 777-78, 265
P.3d 216 (2011) (absurd to conclude legislature intended no time limit for actions
under the Public Records Act (PRA), chapter 42.56 RCW, when either the PRA
or RCW 4.16.130 arguably applied); Gronquist v. Dep’t of Corr., 196 Wn.2d 564,
571, 475 P.3d 497 (2020) (when interpreting statutes, we presume the legislature
did not intend absurd results).
We conclude that the two-year statute of limitations under RCW 4.16.130
applies to Betts’ collateral attack of the ISRB decision denying his conditional
RCW 4.16.130 provides, “An action for relief not hereinbefore provided for, shall be 5
commenced within two years after the cause of action shall have accrued.” 6 During oral argument, Betts cited for the first time In re Personal Restraint Petition of
Runyan, 121 Wn.2d 432, 853 P.2d 424 (1993), in support of his argument that RCW 4.16.130 does not apply to his PRP. In that case, our Supreme Court acknowledged that before the enactment of RCW 10.73.090 in 1989, there was no time limit for habeas corpus petitions. Runyan, 121 Wn.2d at 443-44; LAWS OF 1989, ch. 395, § 2. According to Betts, the court’s acknowledgment shows it rejected applying RCW 4.16.130 to PRPs because that statute was in effect when it decided Runyan. But Runyan addressed only petitions for a writ of habeas corpus challenging a criminal judgment and sentence. Runyan, 121 Wn.2d at 436-39. The Supreme Court did not consider whether RCW 4.16.130 applies to a collateral attack of an administrative decision. “ ‘Statements in a case that do not relate to an issue before the court and are unnecessary to decide the case constitute obiter dictum, and need not be followed.’ ” In re Pers. Restraint of Domingo, 155 Wn.2d 356, 366, 119 P.3d 816 (2005) (internal quotation marks omitted) (quoting Malted Mousse, Inc. v. Steinmetz, 150 Wn.2d 518, 531, 79 P.3d 1154 (2003)).
5 No. 83282-4-I/6
release. Because Betts did not file his PRP within two years of the ISRB’s final
written decision, we dismiss it as time barred.
WE CONCUR: