State v. Nelson

281 P.3d 321, 169 Wash. App. 633
Court of Appeals of Washington·Decided July 24, 2012·No. No. 41401-5-II·Published·Cited by 9 cases

Opinion

Worswick, C.J.

¶1 William Schenck appeals a 2010 order finding that he violated the terms of his community placement by (1) residing in Cowlitz County instead of Thurston County and (2) failing to report to his community corrections officer in Thurston County; this order imposed 20 days’ confinement for Schenck’s violation. On appeal, Schenck argues that the 2007 statutory “county of origin”1 condition on community placement does not apply to him because it is not retroactive and, alternatively, if the 2007 statute is retroactive, it violates prohibitions on ex post facto laws.2 The State argues that Schenck’s appeal is collaterally estopped because our Supreme Court previously ruled on his case. Finding no error, we affirm.

FACTS

I. Schenck’s Crime and Sentence

¶2 Schenck was convicted in May 2002 in Cowlitz County for solicitation to commit first degree murder, committed in 2000. Schenck’s 2002 judgment and sentence imposed 120 months in custody, followed by 24 months of [638] community placement.3 The judgment and sentence placed several conditions on Schenck’s period of community placement, including, “The residence location and living arrangements are subject to the prior approval of [the Department of Corrections] while in community placement...” Clerk’s Papers (CP) at 55. Schenck began serving his sentence on May 5, 2002.4

¶3 In 2007, the legislature enacted a law requiring the Department of Corrections (Department) to place offenders in their “county of origin” for their community placement.5 RCW 72.09.270(8). The 2007 statute defines “county of origin” as “the county of the offender’s first felony conviction in Washington.” RCW 72.09.270(8)(c). But, under certain circumstances, the 2007 statute allows the Department to return an offender to a county other than the offender’s “county of origin” for his or her community placement. RCW 72.09.270(8)(a)-(b). Specifically, the Department may not release an offender to community placement to a county other than his

county of origin unless it is determined by the [Department that the offender’s return to his or her county of origin would be inappropriate considering any court-ordered condition of the offender’s sentence, victim safety concerns, negative influences on the offender in the community, or the location of family or other sponsoring persons or organizations that will support the offender.

RCW 72.09.270(8)(a) (emphasis added).

¶4 Schenck was convicted in Cowlitz County, but his “county of origin” as defined by the 2007 statute is Thurston [639] County.6 RCW 72.09.270(8)(c). Although Schenck’s 1991 victim still resides in Thurston County, she reported to department officials that she is comfortable with Schenck returning to the area. Conversely, the victim in Cowlitz County reported to department officials that she is concerned about Schenck returning there.

II. Schenck’s Postconviction Motions and Appeals

¶5 In 2008, while still incarcerated, Schenck filed a motion in Cowlitz County, requesting several types of relief, arguing, inter alia, that the 2007 statute’s “county of origin” requirement does not apply to him. The superior court transferred Schenck’s motion to us for consideration as a personal restraint petition (PRP).7 We dismissed Schenck’s PRP, holding that “[n]one of [his] claims ha[d] merit” and that we could not review Schenck’s claim that the 2007 statute did not apply to him because he was still incarcerated and had not proposed a postrelease supervision address to the Department. CP at 71-73. Thus, we dismissed his PRP on ripeness grounds.

¶6 Schenck sought discretionary review of our dismissal of his PRP. A commissioner of the Washington State Supreme Court denied review. That court’s commissioner further stated that Schenck had not been adversely affected by the 2007 statute because he had not proposed a specific post-release address and, thus, the Department had not rejected a proposed postrelease address. Further, the commissioner stated, “[P] reapproval of Mr. Schenck’s residence address has always been a condition of his release into community placement. Former RCW 9.94A.120(9)(b)(v) (1999). Requiring the residence to be in a particular county does not increase the quantum of punishment for the crime.” CP at 64.

[640] III. Schenck’s Release

¶7 The Department began working with Schenck on his release plan in early 2009. During this process, the Department noticed Schenck was interested in being released to Cowlitz County, but it informed Schenck that it had concerns for the safety of his victim there and, thus, it would not grant him an exception to the “county of origin” condition imposed by the 2007 statute. Schenck never submitted a proposed postrelease address for department approval, as required. Instead, Schenck refused to cooperate with the Department after it informed him that it would return him to Thurston County for community placement, and he refused to answer department inquiries about any alternatives.

¶8 Schenck completed his 120-month sentence in May 2010. Schenck’s assigned community corrections officer (CCO), Michael Boone, reviewed the conditions of his community placement with Schenck before his release from prison. Specifically, Boone informed Schenck that he needed to remain in Thurston County, get written permission from his CCO before leaving Thurston County, notify his CCO before changing residences or jobs, “perform affirmative acts necessary to monitor” his compliance with court orders and department conditions, and not consume controlled substances and alcohol. 1 Report of Proceedings (RP) at 14. On May 5, Boone picked Schenck up from prison and took him to Thurston County.

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State v. Nelson, 281 P.3d 321, 169 Wash. App. 633 (Wash. Ct. App. 2012).

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