Filed Washington State Court of Appeals Division Two
May 2, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In Re The No. 56813-6-II Personal Restraint Petition of:
THOMAS WILLIAM SINCLAIR RICHEY, ORDER GRANTING MOTION FOR CORRECTION OF OPINION AND AMENDING OPINION
Petitioner.
Petitioner Thomas Richey filed a motion seeking a correction of the court’s unpublished
opinion in this case filed on March 21, 2023. After consideration, the court grants the motion.
The court’s opinion is hereby amended as follows:
On page 2, footnote 1 is deleted.
IT IS SO ORDERED.
MAXA, P.J. We concur:
LEE, J.
CHE, J. Filed Washington State Court of Appeals Division Two
March 21, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In Re The No. 56813-6-II Personal Restraint Petition of:
THOMAS WILLIAM SINCLAIR RICHEY, UNPUBLISHED OPINION
MAXA, J. – In this personal restraint petition (PRP), Thomas Richey, an inmate in the
custody of the Department of Corrections (DOC), seeks relief from personal restraint following a
prison disciplinary hearing in which Richey was found guilty of an infraction of aiding and
abetting another offender to commit a violation of DOC regulations. The infraction arose out of
a situation in which Richey agreed to mail a greeting card for another offender, and the greeting
card was found to contain a hidden note discussing a plan to introduce a drug into the
correctional facility.
Richey argues that the evidence was insufficient to support the hearing officer’s guilty
finding. Specifically, he asserts that there was no evidence that he had any knowledge of the
hidden note or the other offender’s intentions and therefore there was no evidence that he aided
and abetted the offender. No. 56813-6-II
We conclude that no evidence supported the finding that Richey aided and abetted the
violation of a DOC regulation. Accordingly, we grant Richey’s PRP and remand to DOC to
vacate the infraction and for any further appropriate action.1
FACTS
On January 25, 2022, staff at the Airway Heights Corrections Center (AHCC) found a
suspicious envelope in the outgoing mail sent from Richey and addressed to Nichole Trichler.
The envelope contained a greeting card that appeared to be bulkier than a normal greeting card.
The staff discovered that the greeting card contained a note hidden behind a glued-in piece of
paper. This note described a plan for importing greeting cards saturated with a drug known as
“spice” into the AHCC to sell. There is nothing in the record regarding whether the note or the
greeting card was signed.
AHCC staff issued an initial serious violation2 report alleging that Richey had violated
WAC 137-25-030(603) by conspiring with Trichler to introduce or transfer an unauthorized drug
into the facility. A disciplinary hearing was scheduled before a hearing officer.
At the disciplinary hearing, DOC’s evidence consisted of the reporting staff member’s
written statement. The staff member’s statement set forth the background facts stated above.
The statement added a conclusory assertion that Richey committed a violation by conspiring
with Trichler to introduce spice-soaked cards into the AHCC. The staff member’s statement did
not state that anything in the card or the note identified Richey as the note’s writer.
1 We also deny Richey’s motion for appointment of counsel. 2 A “violation” is “[t]he act of failing to comply with a rule enumerated in” chapter 137-25 of the Washington Administrative Code (WAC). WAC 137-25-020(15).
3 No. 56813-6-II
Richey introduced handwritten witness statements from fellow inmates Charles Jones and
Marlowe Airhart-Bryon. Jones stated:
I didn’t have money on my postage account. I secreted a note inside a card and offered inmates four envelopes to send out my card. Inmate Richey took me up on my offer and I paid him four envelopes. He didn’t know what was in the card. I have nothing more to say on this matter.
Resp., Ex. 1, Attach. I at 2.
Airhart-Bryon stated:
Inmate C. Jones asked Richey to send a card out because he did not have money on his postage account[.] [H]e offered to pay Richey 4 envelopes to send the card out[.]
Resp., Ex. 1, Attach. H at 2.
Richey testified at the hearing. His testimony is not in the record, but the hearing officer
summarized Richey’s testimony as follows: “He was offering me 4 envelopes & 4 envelopes are
$1.50 a piece [sic]. The card he showed me didn’t seem to be that padded.” Resp., Ex. 1,
Attach. F at 1. The hearing officer also stated that Richey had “admit[ted] that he sent the card
out for another offender.” Resp., Ex. 1, Attach. F at 1.3
The hearing officer found Richey guilty of aiding and abetting another offender to
commit the violation. The hearing officer further stated that aiding and abetting was “considered
the same as committing the violation.” Resp., Ex. 1, Attach. F at 1. The hearing officer
sanctioned Richey with the loss of 75 days of good conduct time credit and with the loss of
various privileges.
3 Along with his PRP, Richey submitted a declaration drafted after the disciplinary hearing stating his version of the incident. However, we cannot consider this declaration because it was not part of the record before the hearing officer.
4 No. 56813-6-II
Richey appealed the hearing officer’s decision. The DOC assistant superintendent
affirmed the hearing officer’s decision, stating,
On behalf of the Superintendent, I have investigated your appeal and find that: You were paid in envelopes to send out a card that contained instructions and a plan to introduce spice papers and cards into a correctional facility. This was aiding another in an attempt to commit a WAC 603 [violation]. The evidence is that you sent this card out. Your witness statements confirm that you received a payment in the form of the pre-paid envelopes.
Resp., Ex. 1, Attach. J at 1.
Richey’s PRP challenges the hearings officer’s guilty finding.
ANALYSIS
A. LEGAL PRINCIPLES
To prevail on a PRP, a petitioner who lacked an earlier opportunity for judicial review
need only establish that he currently is under restraint and that the restraint is unlawful. RAP
16.4(b), (c); In re Pers. Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d 285 (2010).
Because Richey is incarcerated, he is under restraint for purposes of RAP 16.4. In re Pers.
Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031 (2016).
“[A] ‘serious’ infraction that results in a loss of earned early release credit implicates a
liberty interest subject to minimum due process protections.” Kozol v. Dep’t of Corr., 185
Wn.2d 405, 410, 379 P.3d 72 (2016). A restraint related to a prison disciplinary decision is
lawful as long as there is “at least some evidence” to support the decision. Grantham, 168
Wn.2d at 216. “In order to satisfy the ‘some or any evidence’ test . . . there essentially must be
some reasonable connection between the evidence and the inmate in order to support” the
infraction. In re Pers. Restraint of Anderson, 112 Wn.2d 546, 549, 772 P.2d 510 (1989).
5 No. 56813-6-II
B. EXISTENCE OF “SOME EVIDENCE”
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Filed Washington State Court of Appeals Division Two
May 2, 2023 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In Re The No. 56813-6-II Personal Restraint Petition of:
THOMAS WILLIAM SINCLAIR RICHEY, ORDER GRANTING MOTION FOR CORRECTION OF OPINION AND AMENDING OPINION
Petitioner.
Petitioner Thomas Richey filed a motion seeking a correction of the court’s unpublished
opinion in this case filed on March 21, 2023. After consideration, the court grants the motion.
The court’s opinion is hereby amended as follows:
On page 2, footnote 1 is deleted.
IT IS SO ORDERED.
MAXA, P.J. We concur:
LEE, J.
CHE, J. Filed Washington State Court of Appeals Division Two
March 21, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In Re The No. 56813-6-II Personal Restraint Petition of:
THOMAS WILLIAM SINCLAIR RICHEY, UNPUBLISHED OPINION
MAXA, J. – In this personal restraint petition (PRP), Thomas Richey, an inmate in the
custody of the Department of Corrections (DOC), seeks relief from personal restraint following a
prison disciplinary hearing in which Richey was found guilty of an infraction of aiding and
abetting another offender to commit a violation of DOC regulations. The infraction arose out of
a situation in which Richey agreed to mail a greeting card for another offender, and the greeting
card was found to contain a hidden note discussing a plan to introduce a drug into the
correctional facility.
Richey argues that the evidence was insufficient to support the hearing officer’s guilty
finding. Specifically, he asserts that there was no evidence that he had any knowledge of the
hidden note or the other offender’s intentions and therefore there was no evidence that he aided
and abetted the offender. No. 56813-6-II
We conclude that no evidence supported the finding that Richey aided and abetted the
violation of a DOC regulation. Accordingly, we grant Richey’s PRP and remand to DOC to
vacate the infraction and for any further appropriate action.1
FACTS
On January 25, 2022, staff at the Airway Heights Corrections Center (AHCC) found a
suspicious envelope in the outgoing mail sent from Richey and addressed to Nichole Trichler.
The envelope contained a greeting card that appeared to be bulkier than a normal greeting card.
The staff discovered that the greeting card contained a note hidden behind a glued-in piece of
paper. This note described a plan for importing greeting cards saturated with a drug known as
“spice” into the AHCC to sell. There is nothing in the record regarding whether the note or the
greeting card was signed.
AHCC staff issued an initial serious violation2 report alleging that Richey had violated
WAC 137-25-030(603) by conspiring with Trichler to introduce or transfer an unauthorized drug
into the facility. A disciplinary hearing was scheduled before a hearing officer.
At the disciplinary hearing, DOC’s evidence consisted of the reporting staff member’s
written statement. The staff member’s statement set forth the background facts stated above.
The statement added a conclusory assertion that Richey committed a violation by conspiring
with Trichler to introduce spice-soaked cards into the AHCC. The staff member’s statement did
not state that anything in the card or the note identified Richey as the note’s writer.
1 We also deny Richey’s motion for appointment of counsel. 2 A “violation” is “[t]he act of failing to comply with a rule enumerated in” chapter 137-25 of the Washington Administrative Code (WAC). WAC 137-25-020(15).
3 No. 56813-6-II
Richey introduced handwritten witness statements from fellow inmates Charles Jones and
Marlowe Airhart-Bryon. Jones stated:
I didn’t have money on my postage account. I secreted a note inside a card and offered inmates four envelopes to send out my card. Inmate Richey took me up on my offer and I paid him four envelopes. He didn’t know what was in the card. I have nothing more to say on this matter.
Resp., Ex. 1, Attach. I at 2.
Airhart-Bryon stated:
Inmate C. Jones asked Richey to send a card out because he did not have money on his postage account[.] [H]e offered to pay Richey 4 envelopes to send the card out[.]
Resp., Ex. 1, Attach. H at 2.
Richey testified at the hearing. His testimony is not in the record, but the hearing officer
summarized Richey’s testimony as follows: “He was offering me 4 envelopes & 4 envelopes are
$1.50 a piece [sic]. The card he showed me didn’t seem to be that padded.” Resp., Ex. 1,
Attach. F at 1. The hearing officer also stated that Richey had “admit[ted] that he sent the card
out for another offender.” Resp., Ex. 1, Attach. F at 1.3
The hearing officer found Richey guilty of aiding and abetting another offender to
commit the violation. The hearing officer further stated that aiding and abetting was “considered
the same as committing the violation.” Resp., Ex. 1, Attach. F at 1. The hearing officer
sanctioned Richey with the loss of 75 days of good conduct time credit and with the loss of
various privileges.
3 Along with his PRP, Richey submitted a declaration drafted after the disciplinary hearing stating his version of the incident. However, we cannot consider this declaration because it was not part of the record before the hearing officer.
4 No. 56813-6-II
Richey appealed the hearing officer’s decision. The DOC assistant superintendent
affirmed the hearing officer’s decision, stating,
On behalf of the Superintendent, I have investigated your appeal and find that: You were paid in envelopes to send out a card that contained instructions and a plan to introduce spice papers and cards into a correctional facility. This was aiding another in an attempt to commit a WAC 603 [violation]. The evidence is that you sent this card out. Your witness statements confirm that you received a payment in the form of the pre-paid envelopes.
Resp., Ex. 1, Attach. J at 1.
Richey’s PRP challenges the hearings officer’s guilty finding.
ANALYSIS
A. LEGAL PRINCIPLES
To prevail on a PRP, a petitioner who lacked an earlier opportunity for judicial review
need only establish that he currently is under restraint and that the restraint is unlawful. RAP
16.4(b), (c); In re Pers. Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d 285 (2010).
Because Richey is incarcerated, he is under restraint for purposes of RAP 16.4. In re Pers.
Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031 (2016).
“[A] ‘serious’ infraction that results in a loss of earned early release credit implicates a
liberty interest subject to minimum due process protections.” Kozol v. Dep’t of Corr., 185
Wn.2d 405, 410, 379 P.3d 72 (2016). A restraint related to a prison disciplinary decision is
lawful as long as there is “at least some evidence” to support the decision. Grantham, 168
Wn.2d at 216. “In order to satisfy the ‘some or any evidence’ test . . . there essentially must be
some reasonable connection between the evidence and the inmate in order to support” the
infraction. In re Pers. Restraint of Anderson, 112 Wn.2d 546, 549, 772 P.2d 510 (1989).
5 No. 56813-6-II
B. EXISTENCE OF “SOME EVIDENCE”
Richey argues that the evidence of the infraction was insufficient because there was no
evidence that he knew that the card he mailed contained an illicit note to Trichler. We agree.
Under DOC regulations, “[i]ntroducing or transferring any unauthorized drug or drug
paraphernalia” into the facility is a serious violation. WAC 137-25-030(603). “Attempting or
conspiring to commit [a serious violation], or aiding and abetting another to commit [a serious
violation], shall be considered the same as committing the violation.” WAC 137-25-030(1).
A person aids and abets another if the person in some way “associates himself with the
undertaking, participates in it as in something he desires to bring about, and seeks by his action
to make it succeed.” State v. J-R Distribs., Inc., 82 Wn.2d 584, 593, 512 P.2d 1049 (1973).
DOC concedes that in order to find Richey guilty of aiding or abetting another in the commission
of the 603 violation, it had to present some evidence that Richey had “actual knowledge of the
intended violation and share[d] the intent of the other person to commit the violation.” Resp. at
13.
The staff statement provided evidence that Richey sent the card in an envelope addressed
to Trichler and that the card was noticeably “bulkier than a normal greeting card.” Resp., Ex. 1,
Attach. A at 1. The fact the card was sent from Richey to Trichler is clearly some evidence that
Richey was the person who sent the card, which is an issue that is not in dispute. But DOC
presented no evidence that Richey knew about the hidden note inside the card. The only
evidence was the explanation from Jones, Airhart-Bryon, and Richey himself about how Richey
came to send the card. And the hearing officer found that Richey was sending the card for
another offender. We conclude that merely sending the card for someone else is not some
evidence that Richey knew about the note or what was in the note.
6 No. 56813-6-II
DOC suggests that there was some evidence that Richey actually authored the note in the
greeting card. But DOC presented no such evidence. The undisputed evidence was that Jones
authored the note, and that Richey merely agreed to mail the card in exchange for $6.00 worth of
envelopes. We conclude that there was no evidence that Richey authored the note.
DOC points out that Richey’s statement that the card did not seem padded showed that he
examined the card before he mailed it. DOC argues that this fact is evidence that Richey knew
about the note. But even if there was evidence that Richey knew that the card might have been
thicker than a normal card and even if Richey knew there was a note in the card, that evidence
does not show that Richey actually was aware of the contents of the note or of Jones’s intent to
introduce drugs into the AHCC. We conclude that there is no evidence that Richey knew the
content of the note in the card.
We conclude that there was no evidence that Richey had actual knowledge of the note or
that he shared an intent with Jones to introduce drugs into the AHCC. Therefore, there is no
evidence that Richey aided and abetted Jones’s violation of DOC regulations. Accordingly, we
hold that Richey’s infraction was not supported by any evidence and that Richey is entitled to
relief.
CONCLUSION
We grant Richey’s PRP and remand to DOC to vacate the infraction and for any further
appropriate action.
7 No. 56813-6-II
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.
MAXA, J.
We concur:
CHE, J.