Personal Restraint Petition Of Robert Spencer Rose

• Court: Court of Appeals of Washington
• Decided: June 14, 2021
• Docket: 80083-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint DIVISION ONE Petition of: No. 80083-3-I ROBERT SPENCER ROSE, UNPUBLISHED OPINION

Petitioner.

DWYER, J. — Robert Rose filed a personal restraint petition challenging

the sanctions imposed following a prison disciplinary hearing. To obtain relief in

this setting, Rose must demonstrate that he is being “‘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, 213, 227 P.3d 285 (2010) (quoting In re

Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004)). Because

the Department of Corrections (DOC) expunged the challenged infraction from

Rose’s prison record, restored his good conduct time, and adjusted his early

release date, Rose is not under unlawful restraint on account of the challenged

infraction. We dismiss the petition as moot.

I

According to an October 2018 serious infraction report, a corrections

officer at Washington Corrections Center conducted a routine strip search of

Rose following a family visit. See DOC Policy 420.310(III)(3)(b) (requiring No. 80083-3-I/2

mandatory strip search at Security Level 3, 4, and 5 facilities upon return from

contact visit). When Rose removed his sock, a small folded paper fell out. The

paper contained three small, colored tabs with an imprinted marker that identified

them as Suboxone. 1

The Department of Corrections charged Rose with violating WAC

137-25-030 (603) (introducing or transferring any unauthorized drug or drug

paraphernalia). Prior to the hearing, Rose requested witness statements from

two correctional staff members. And although the Department’s preprinted

discipline hearing notice form advised Rose that he did not have a right to access

video taken within the prison facility, he requested “all video” evidence.

Rose was present at the October 23, 2018 hearing and argued that the

video surveillance footage from the visitation room would refute the allegation

that his spouse transferred contraband to him during the visit. He claimed that

the folded paper was already on the floor when he entered the search area.

Rose also claimed that the Department did not follow its own policy during the

strip search because only one corrections officer was present during the

search. See DOC Policy 420.310 (III)(F) (requiring the presence of two

Department employees during strip searches).

The hearing officer reviewed video footage from the search area and

determined that Rose was not visible but only one Department employee was

present during the search. The hearing officer also viewed video evidence from

1Suboxone is a narcotic and analgesic combination used in the treatment of opiate dependence.

2 No. 80083-3-I/3

the visit room and observed Rose’s visitor make a “quick but deliberate” motion

to reach down and slip an item into Rose’s right shoe or sock. Based on the

photographs of the physical evidence, video evidence, the infraction report, and

witness statements, the hearing officer found Rose guilty of the infraction. The

penalty included the deduction of 75 days of good conduct time. Rose appealed

and the superintendent’s designee denied the appeal.

Rose filed this personal restraint petition.

II

Rose claims that he had a due process right to personally examine the

video surveillance evidence, that the hearing officer failed to consider all of the

relevant and available video evidence, and that the Department failed to comply

with its own policy requiring the presence of two correctional staff members

during a strip search. In response to Rose’s petition, the Department expunged

the infraction from his prison record, restored the good time credit previously

deducted, and adjusted his early release date.

Expungement effectively and adequately addresses Rose’s challenge to

this infraction. See In re Pers. Restraint of Higgins, 152 Wn.2d 155, 162-63, 95

P.3d 330 (2004) (while the court has exclusive jurisdiction over a personal

restraint petition, court rules do not prevent the Department from providing an

alternative remedy and the court may only grant collateral relief under RAP 16.4

if other available remedies are inadequate). Thus, Rose’s claims of error with

respect to this infraction are now moot and need not be considered. In re Det. of

Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983) (“A case is moot if a court

3 No. 80083-3-I/4

can no longer provide effective relief.”); In re Pers. Restraint of White, 25 Wn.

App. 911, 912, 612 P.2d 10 (1980) (court need not consider moot issues).

Although Rose urges this court to address the merits of his petition despite its

mootness, we are unpersuaded that the circumstances warrant further review. In

re Pers. Restraint of Mines, 146 Wn.2d 279, 285, 45 P.3d 535 (2002) (court may

decide a technically moot petition that involves “matters of continuing and

substantial public interest.”).

Because Rose’s petition is moot, we dismiss the petition.

WE CONCUR: