                                                                         FILED 

                                                                      March 19,2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


KENNETH LeROY STEPHENS,                      )        No. 31162-7-111
                                             )
             Appellant,                      )
                                             )
             v.                              )
                                             )
STATE OF WASHINGTON,                         )        PUBLISHED OPINION
                                             )
             Respondent.                     )

       BROWN, J. - Kenneth Stephens appeals the trial court's order denying his motion

for directed verdict Oudgment as a matter of law) in his false imprisonment suit against

the state of Washington. He contends the court erred in denying his motion, and

additionally contends the evidence does not support the verdict. We disagree with Mr.

Stephens' contentions, and affirm.

                                         FACTS

      On September 3,2006, the State charged Mr. Stephens with, among other

things, second degree theft for removing a pay telephone coin box from a Yakima

parking lot (cause no. 06-1-02170-9). He was confined for three days before his father

posted bail. On October 28,2006, while on bail, Mr. Stephens was arrested and

charged with, among other things, second degree possession of stolen property for
No. 31162-7-111
Stephens v. State

shoplifting at a Yakima Shopko store (cause no. 06-1-02624-7). Mr. Stephens was held

in the Yakima County Jail following this arrest for several days and then transferred to

the Chelan County Jail due to outstanding warrants there. He was returned to Yakima

County on November 16, 2007 to deal with his two pending felony cases there.

       On February 6,2007, Mr. Stephens pleaded guilty to one count of second degree

theft in the ShopKo case. The court sentenced him to 17 months' imprisonment. The

judgment and sentence states the 17 months was "consecutive with prior sentences."

Clerk's Papers (CP) at 100. The court granted 15 days credit for jail time served in the

2007 judgment and sentence, the time between his October 28,2006 arrest, and

transfer to Chelan County to clear the other warrants.

       Mr. Stephens remained confined in the Yakima County Jail after the February 6,

2007 sentencing because the earlier coin box case remained unresolved. On February

6, 2008, Mr. Stephens pleaded guilty to one count of possession of stolen property on

the coin box case. The court sentenced him to 22 months. The judgment and sentence

states the 22 months was to be "served consecutive with prior sentences." CP at 106.

The court granted credit from November 16, 2008 plus three days (the three days he

served in jail immediately following his arrest for the coin box theft on September 3,

2006, before posting bail).

       On February 13, 2008, the Department of Corrections (DOC) transported Mr.

Stephens to a processing pOint. The Yakima County Jail sent DOC certifications for jail

time credit served and earned release time related to the jail time served on the two

cause numbers so DOC could set Mr. Stephens' release date. In its initial certifications,


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Stephens v. State

Yakima County granted Mr. Stephens 387 days credit for jail time served and 193 days

of earned release time ("good time" credits) for total credits of 580 days earned while

serving time on the 2007 ShopKo judgment and sentence. This resulted in him initially

receiving jail credit off both sentences for his entire jail confinement between November

16,2006 and February 13, 2008 when DOC received him into custody.

       Following Mr. Stephens' transfer from the Yakima County Jail to DOC custody,

DOC Auditor Wendy Stigall reviewed the two jail certifications for accuracy in order to

set Mr. Stephens' early release date. As part of her audit, she discovered the Yakima

County Jail had granted him credit for the entire amount of jail confinement between

September 2006 and February 13, 2008, off the sentences in both cause numbers.

This included the three days in September 2006, the 15 days served between October

28 and Mr. Stephens' return from Chelan County, and all jail time served after

November 16, 2006, up to the date of transfer to DOC custody on February 13, 2008.

      This double credit contradicted the consecutive provisions specified in the

judgment and sentences contrary to In re Personal Restraint of Costello, 131 Wn. App.

828,129 P.3d 827 (2006). DOC, therefore, eliminated all but 22 days credits on the

2007 sentence on the ShopKo case. The remaining 22 days represented credit for 15

days jail credit referenced in the judgment and sentence plus earned release time of 7

days for a total adjusted credit on this case of 22 days. Yakima issued an amended

certification which reduced the credit on the 2007 judgment and sentence to 22 days

from 580 days granted in the earlier certification. The elimination of the credits from the

ShopKo case resulted in a January 8, 2009 early release date.


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No. 31162-7-111
Stephens v. State

       Mr. Stephens objected to the January 2009 release date. He requested credit for

pretrial confinement and related good time off both sentences, arguing the sentencing

judge had the final authority on early release time. He requested review of the 2007

judgment and sentence on the ShopKo case because DOC had removed the

overlapping credits 'from that cause number even though the judge had specifically

granted him earned release time and credit. On July 21, 2008, the sentencing court

amended the February 6, 2007 judgment and sentence in the ShopKo case and granted

387 days of pretrial confinement credits, effectively restoring what DOC struck based on

Costello. Our record does not contain the report of proceedings explaining the court's

reasoning, but DOC notes state the court made the amendment because it intended

"concurrent" credit time. CP at 53.

       The court's amendment resulted in a retroactive release date of February 2008

(prior to Mr. Stephens' transfer to DOC custody). A copy of the sentencing court's order

amending the judgment and sentence was received by DOC on July 23,2008. Mr.

Stephens was released two days later on July 25, 2008.

       On February 4,2010, Mr. Stephens sued the State for false imprisonment. 1 A

jury trial followed. Both sides requested a directed verdict, arguing the issues were

purely legal. The State asked the court to rule as a matter of law that the confinement

was justified. Mr. Stephens asked the court to rule as a matter of law that he spent

more days incarcerated than he should have. The jury decided the State did not



       1He first unsuccessfully filed a claim with the State's risk management office as
required under RCW 4.92.100.

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No. 31162-7-111
Stephens v. State

"unjustifiably confine Kenneth Stephens, under the circumstances, beyond the period of

time that it was legally entitled to confine him." CP at 216. Mr. Stephens appealed.

                                        ANALYSIS

       The issue is whether the court erred in denying Mr. Stephens' directed verdict

request. Mr. Stephens contends he should have been released in February 2008 for

both offenses and keeping him confined until July 2008 was unlawful and thus, he

argues substantial evidence does not support the jury's verdict.

       We review a ruling on a motion for a directed verdict, using the same standard as

the trial court. Hizey v. Carpenter, 119 Wn.2d 251, 272, 830 P .2d 646 ( 1992) (citing

Indus. Indem. Co. of Nw. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990)). A

directed verdict is appropriate if, as a matter of law, no substantial evidence or

reasonable inference exists to sustain a verdict for the nonmoving party. Harris v.

Drake, 152 Wn.2d 480, 493,99 P.3d 872 (2004) (citing Moe v. Wise, 97 Wn. App. 950,

956,989 P.2d 1148 (1999)). To establish false imprisonment, the plaintiff must show

DOC acted without lawful authority and imprisonment was not enacted pursuant to a

valid legal process. Blick v. State, 182 Wn. App. 24,33,328 P.3d 952 (2014) (citing

Mundt v. United States, 611 F.2d 1257, 1259-60 (9th Cir. 1980)).

       Under RCW 9.94A.729(1) county jail administrators must certify to DOC time
                                                      I




spent in county jail custody and whether "good time" credits or earned release credit

(typically one third of time served) are to be added to the jail credits for use by DOC in

computing an offender's release date. In doing so, DOC auditors subtract jail time

served and jail good time credit from the total sentence and then reduce that number by


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No. 31162-7-111
Stephens v. State

one third. Id. Unless the sentence has been reduced, no person serving a sentence

and who is committed to DOC's custody "shall leave the confines of the correctional

facility or be released prior to the expiration of the sentence." RCW 9.94A. 728.

       In CosteI/o, Division One of this court decided DOC, not the county jail, is the

final arbiter of credit for pretrial confinement. 131 Wn. App. at 833. The Costello court

concluded an offender is not entitled to duplicate pretrial confinement credit when the

offender's sentences are ordered to be consecutive with other sentences. Mr. Costello

was sentenced in 2001 to an 87 -month sentence for eluding and a burglary (2001

sentence). He was sentenced in 2002 to a 57-month sentence for theft convictions, to

run consecutive to the 2001 sentence. In mid-2002, Mr. Costello was transferred from

the county jail to DOC. Before being transferred, he had spent a total of 472 days

confined in county jail. The county jail credited the entire 472 days against the 2001

sentence and credited 317 days against his 2002 sentence. DOC refused to give effect

to the county jail's application of time served against the 2002 sentence, choosing

instead to solely credit Mr. Costello for the 472 days served against the 2001 sentence.

The court denied his personal restraint petition, concluding he was not entitled to any

credit on his 2002 sentence under former RCW 9.94.120(14) and because "[a]n award

of credit for time served on the 2002 convictions that would credit Costello with any

days that are also credited to the sentence on his 2001 convictions would unlawfully

render the sentences partially concurrent." Costello, 131 Wn. App. at 834.

       In Mundt, a federal case cited by Division One in Blick, 182 Wn. App at 24, the

plaintiff was held in civil contempt and was later convicted of postal offenses in federal


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No. 31162-7-111
Stephens v. State
                                                                                            I
court and sentenced to a two year term for the postal felonies. The district court          I
ordered the sentences for the civil contempt and the felony offenses were to run            f
consecutively. The Court of Appeals later reversed the district court and concluded the

two year sentence for the felony convictions ran concurrently with the contempt

confinement rather than consecutively resulting in Mr. Mundt being held 78 days beyond

the two year sentence. The offender sued for false imprisonment after he was released.

The Ninth Circuit, applying Arizona common law, affirmed the dismissal of the tort claim

for false imprisonment holding the 78 days had occurred pursuant to valid legal process

and was not unlawful. 611 F.2d at 1259. "Because the Corrections officials who

continued to confine the offender 'were acting in good faith' and in the 'lawful

performance' of their duty, the offender did not have a claim for unlawful imprisonment

under these circumstances." Id.

       In Blick, a recent case concerning an inmate who was transferred to community

custody on his prison maximum expiration date rather than earned early release date 52

days earlier, Division One concluded, "As to his false imprisonment claim, Blick fails to

demonstrate that DOC acted without lawful authority. An imprisonment enacted

pursuant to a valid legal process and court sentence is not false imprisonment." 182

Wn. App. at 24.

       Here, DOC received separate judgment and sentences, ordering consecutive

sentences for Mr. Stephens and awarding ordered double credit, contradicting the

consecutive provisions in the judgment and sentences contrary to CosteI/o. DOC,

therefore, eliminated all but 22 days credits on the 2007 sentence on the ShopKo case,


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No. 31162-7-111
Stephens v. State

resulting in a December 30, 2008 early release date. The court then amended the 2007

judgment and sentence to specifically grant Mr. Stephens the credit. Mr. Stephens

claims this was error resulting in unlawful confinement.

       Considering Ms. Stigall's testimony regarding the sentencing corrections she

made based on the two facially valid sentences and CosteI/o, DOC properly set an early

release date of January 8, 2009. The sentencing court's later sentencing amendment

granting Mr. Stephen's request did not retroactively render DOC's initial calculations

unlawful. After receiving the amended judgment and sentence, DOC was under a duty

to release Mr. Stephens in a reasonable period of time, and did. See Tufte v. City of

Tacoma, 71 Wn.2d 866,870,431 P.2d 183 (1967) (an initially lawful imprisonment may

under some circumstances become unlawful when a jail "holds an individual for an

unreasonable time after it is under a duty to release the individual."). DOC released Mr.

Stephens within two days after the confinement became unlawful. See Kellogg v. State,

94 Wn.2d 851, 856,621 P.2d 133 (1980) (release within one day of discovering

mistaken identity was reasonable).

      Thus, given our analysis, we conclude sufficient evidence shows DOC did not

unlawfully confine Mr. Stephens because it acted reasonably under RCW 9.94A.729

and Costello to establish the offender's release date. Therefore, Mr. Stephens fails to

demonstrate DOC acted without lawful authority. Mr. Stephens' imprisonment under

valid legal processes is not false imprisonment. Accordingly, the court did not abuse its

discretion or legally err in denying Mr. Stephens' directed verdict request.




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No. 31162-7-111
Stephens v. State

      Any potential error at the trial level would be the court's denial of the State's

request for directed verdict; that potential error would be harmless though since the jury

came to the same conclusion. See Saldivar v. Momah, 145 Wn. App. 365,401, 186

P.3d 1117 (2008) (an error is harmless if no reasonable probability the outcome of the

trial would have been materially affected had the error not occurred).

      Affirmed.



                                                  Brown, J.
WE CONCUR:




                                                  Lawrence-Berrey, J.




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