Personal Restraint Petition Of: Marlow Todd Eggum

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter of the Personal ) Restraint of: ) No. 81005-7-I (consol. with ) No. 81071-5-I) MARLOW TODD EGGUM, ) ) Petitioner. ) UNPUBLISHED OPINION ) ________________________________ )

PER CURIAM — A jury convicted Marlow Eggum of multiple crimes,

including two counts of felony harassment, in Whatcom County Superior Court

Cause No. 09-1-00486-5. In these consolidated personal restraint petitions,

Eggum challenges, among other things, the 9-18 month term of community

supervision imposed on one count of felony harassment.1 To be entitled to relief

by means of a personal restraint petition, Eggum bears the burden to

demonstrate that he is under restraint and that the restraint is unlawful. RAP

16.4; see also In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866

P.2d 8 (1994); In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506

(1990).

Contrary to the language of Eggum’s judgment and sentence, felony

harassment is not included in the list of offenses designated as “crimes against

persons.” RCW 9.94A.411(2). And as the Department observes, its

supervision is not required under RCW 9.94A.501(4). As the State

1 The Acting Chief Judge previously dismissed the other issue Eggum raised as frivolous. No. 81005-7-I (consol. w/81071-5-I)/2

appropriately concedes, the conviction does not fall within any category of

eligibility for community custody under RCW 9.94A.701(1)-(3).

Accordingly, we grant Eggum’s petition and remand the matter to the

sentencing court to strike the term of community custody imposed on the

conviction of felony harassment (Count V).2

For the court:

2 We note that the federal district court recently vacated Eggum’s convictions of

intimidation of a public servant and granted a certificate of appealability, see 28 U.S.C. § 2253 (c)(3), allowing his appeal of a final district court order, as to his stalking conviction. See Eggum v. Holbrook, No. 2:14-cv-1328-RAJ, 2020 WL 3303085 (W.D. Wash. June 18, 2020). This decision does not appear to affect the validity of the felony harassment conviction upon which the sentencing court imposed the challenged term of community supervision.

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