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                                                        SUSAN L. CARLSON
                                                   SUPREME COURT CLERK




IN THE SUPREME COURT OF THE STATE OF WASHINGTON


In the Matter of the Personal                          No. 94971-9
Restraint of
                                                       EN BANC
DEREK E. GRONQUIST,

                      Petitioner.                      Filed;        NOV 0 8 2018


        YU,J. — This case asks how a release date is calculated for a person serving

consecutive sentences for felony sex offenses. In 1995, Derek Gronquist was

sentenced to three consecutive, 114-month terms oftotal confinement for three

counts of attempted first degree kidnapping with a special finding of sexual

 motivation. In this personal restraint petition (PRP), Gronquist claims that his

sentence expired in 2016, so his continued total confinement is unlawful. The
 Department of Corrections(DOC)maintains that Gronquist's sentence will not

 expire until 2022 and that Gronquist must remain in total confinement until his
 sentence expires or he gets approval for a release plan, whichever comes first. The
In re Pers. Restraint ofGronquist, No. 94971-9


parties' dispute arises from the way DOC tracks time served on consecutive,
determinate sentences for felony sex offenses.

       Rather than tracking all consecutive terms as a single sentence, DOC tracks

each term separately. According to DOC's tracking system, when Gronquist had

only earned release time(ERT)remaining on a term of confinement, he reached

his early release date(ERD)for that term. On each term's ERD,DOC's tracking

system "stopped" that term,"tolled" the remaining ERT on that term, and started

Gronquist's next consecutive term. When Gronquist reached the ERD for his third

and final term, the tolled ERT periods for each of his prior terms became available

and started running again. Therefore, according to DOC's tracking system,

Gronquist's sentence is structured like this:

        2/2^/95      8/10/00                 2/y07         6/14/13         5/31/22

                     r.oit a i c 0 n f i n e m e n t
           I            T                         I
          W                                                                     C/D
  p                                                                             CD
          S                                                                     S
  CD                 H 2-                                  W ci    CD           CD
  p
                                                             a- HI              3
                       ci. 3                   o       d     fD    B            O
          O             m    P                               c/a   ^            CD
          O                                                                     CD
  p
          O             ^
                        c/a s
                            ^                 "S             c/a   W            X
          o                                                                    "2.
          C                                    B O                              CD
          w                                                                     C/a

          o                                      <T)
                                               G.            a-
                        D.




       Gronquist, however, reasons that because each term of confinement is for

114 months, each one expired 114 months after the date it began. He contends that
In re Pers. Restraint ofGronquist, No. 94971-9


his final term began in 2007 and therefore expired 114 months later, in 2016.

Gronquist thus argues his sentence must be structured like this:^

              2/28/95       8/5/00 6/2/03

            Total confinement.                    5/20/07 2/3/10

                                     Total confinement    ERT             9/18/13 11/17/16

                                                              Total confinement ^BRT<

                                                                 to           U)    Lk)
       H                                                 to
                 W               w
                                                         3       3            t-t   •-1
       p                                                                      &-    o-
                S             o
                                                         D.                         <—K
       a>                                                                           O)
                •-t                                              o
       3        C/3

                O                W       fe                                         CD
                                                                 CD
       P        o                        X               w
                n                       "2.
                o                        fH                      t-i
                                                                 CD                 a>
                3                        w                                          C/3
                 M                                               w

                o
                 D.




       Gronquist's PRP is not frivolous. DOC's tracking system is complicated, its

explanations have been confusing and contradictory, and it has not pointed to clear

legal authority directly supporting its position. However, Gronquist has not shown

that his continued total confinement is unlawful. He was sentenced to three

consecutive, 114-month terms, adding up to 342 months. DOC has no authority to

change the length of Gronquist's sentence or to run any portion of his consecutive

terms concurrently. Gronquist's proposed sentence structure, however, would

require it to do so. We therefore deny relief on Gronquist's PRP.




       'These visual timelines are representational only and not drawn to scale. Additionally,
the parties' ERDs differ slightly, possibly due to adjustments made after DOC restored some
ERT that Gronquist had previously lost. The parties do not address this discrepancy in detail,
and it is not necessary to our resolution of the issue presented.
In re Pers. Restraint ofGronquist, No. 94971-9


                                     BACKGROUND


A.     Terminology

       To provide clarity for the factual background, procedural history, and legal

analysis below, we first define the specific terminology used in this context.

       1.     "Community custody" and "community placement"

       Pursuant to the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW,at

the time of Gronquisfs offenses,"community custody" referred to "that portion of

an inmate's sentence of confinement in lieu of earned early release time served in

the community subject to controls placed on the inmate's movement and activities

by the department of corrections."^ Former RCW 9.94A.030(4)(Laws OF 1993,

ch. 338, § 2). "Community placement" referred to all periods of community

custody and postrelease supervision. Id. at(5).

       2.     "Earned release time," or "ERT"

       "The SRA contemplates that an offender may be released from total

confinement before serving the full sentence imposed by the court. This is

accomplished through 'earned release time.'" In re Pers. Restraint ofStuhr, 186

Wn.2d 49, 52, 375 P.3d 1031 (2016). An offender in custody may accumulate

ERT "for good behavior and good performance, as determined by the correctional


      ^ We apply the SRA applicable at the time of Gronquist's offenses. RCW 9.94A.345.
However, we do not intend to imply that the result would be different pursuant to the current
version of the SRA.
In re Pers. Restraint ofGronquist, No. 94971-9


agency having jurisdiction." Former RCW 9.94A.150(1)(Laws OF 1992, ch. 145,

§ 8). The total amount ofERT a person may accumulate is capped by statute as a
percentage of his or her total sentence. Id. The applicable percentage depends on
the nature of the underlying offense. Gronquist's ERT is capped at 33 percent. In

re Pers. Restraint ofSmith, 139 Wn.2d 199, 201, 208-09, 986 P.2d 131 (1999).

       DOC calculates the maximum amount ofERT a person may accumulate

when the person first enters DOC custody. Stuhr, 186 Wn.2d at 54. However,the

amount ofERT actually accumulated will fluctuate throughout the course of a

person's sentence. For instance, the person may lose ERT for disciplinary

infractions. Id. at 53. ERT may be lost on a prospective basis, and ERT that was

previously lost can be restored in accordance with DOC policy. Id.

       Some offenders are entitled to early general release based on accumulated

ERT. Former RCW 9.94A.150(1). However, that is not true for felony sex

offenders such as Gronquist. Id. at(2). "Instead of general release, the Legislature

specified that [such individuals] may only become eligible for transfer to

community custody status." In re Pers. Restraint ofCrowder,97 Wn. App. 598,

600, 985P.2d 944(1999).

       Sex offenders thus have no "protected liberty interest in early release to

community custody." In re Pers. Restraint ofMattson, 166 Wn.2d 730, 733,214

P.3d 141 (2009). They may only become eligible for transfer to community
In re Pers. Restraint ofGronquist, No. 94971-9


custody in lieu of earned release, and "[t]he legislature granted DOC the authority

to develop a program structuring the guidelines for eligibility and release of sex

offenders into the community before expiration oftheir sentences." Id. at 743.

      Pursuant to this authority, DOC has adopted Policy 350.200 (rev. Aug. 2,

2010), which requires sex offenders to submit a release plan for approval before

the offender can be transferred to community custody. Without an approved

release plan, the offender must serve his or her ERT in total confinement. In re

Pers. Restraint ofCapello, 106 Wn. App. 576, 579, 24 P.3d 1074(2001).

       3.     "Early release date," or "ERD"

       ERD is a term DOC uses to refer to the date when all that remains on a term

of confinement is ERT. When a person serving a single term of confinement

reaches the ERD,the person either is generally released or may become eligible for

transfer to community custody, as discussed above.

       Gronquist, however, is serving three consecutive terms. He could not be

transferred to community custody until he had served all periods oftotal

confinement on all three terms. Former RCW 9.94A.400(5)(Laws OF 1990, ch. 3,

§ 704). Therefore, on the ERD for Gronquist's first term, DOC started his second

term. Likewise, on the ERD for Gronquist's second term, DOC started his third

term. On the ERD for Gronquist's third and final term of confinement, he became

eligible for transfer to community custody.
In re Pers. Restraint ofGronquist, No. 94971-9


       4.     "Maximum expiration date"

       DOC's internal tracking system and the parties' briefing use the phrase

"maximum expiration date" to refer to the date on which Gronquist can no longer

be held in total confinement pursuant to his judgment and sentence. The parties'

disagreement focuses on what this date is.

       The phrase "maximum expiration date" does not appear in the SRA,and it

has not been used consistently in case law. For indeterminate sentences predating

the SRA, we have used "maximum expiration date" to refer to the last day of the

maximum prison term set by the sentencing court. E.g.,In re Pers. Restraint of

Knapp, 102 Wn.2d 466, 468,687 P.2d 1145 (1984). However, in later appellate

cases considering determinate, SRA-based sentences,"maximum expiration date"

has been used to refer to the last day a person may be kept in prison on his or her

judgment and sentence if no ERT is accumulated. E.g., Blick v. State, 182 Wn.

App. 24, 27, 328 P.3d 952(2014).

       Applying this later usage, DOC is correct in its assertion that the maximum

expiration date of Gronquist's sentences is on the last day of his three consecutive

sentences without any adjustment for ERT. But that is not what the parties actually

dispute. They agree that without ERT, Gronquist would have to stay in total

confinement until 2022. They dispute whether with ERT, Gronquist's continued

total confinement is unlawful.
In re Pers. Restraint ofGronquist, No. 94971-9


B.     Factual background and procedural history

       On December 6 and 7, 1993, Gronquist tried to force three different

teenagers into his car. State v. Gronquist, noted at 82 Wn. App. 1066, 1996 WL

470607, at * 1. He was ultimately convicted of three counts of attempted first

degree kidnapping with special findings of sexual motivation. Id. The special

findings of sexual motivation make each attempted kidnapping a sex offense.

Former 9.94A.030(29)(b).

       Gronquist was given an exceptional sentence above the standard range of

three consecutive, 114-month terms of total confinement. He was also sentenced

to community placement "for two years or up to the period of earned release

awarded pursuant to [former] RCW 9.94A.150(1) and (2) whichever is longer."^
PRP, Attach. A, Ex. 1 (J. & Sentence, App. H).

       Gronquist was taken into DOC custody on February 28, 1995. At that time,

DOC calculated his potential ERD as occurring in 2018 and his maximum

expiration date as occurring in 2022. These were hand-done calculations.

       When DOC initially calculated Gronquist's ERD,it capped his potential

ERT at 15 percent of his sentence. However, in 1999, this court held that


       ^ Following In re Personal Restraint ofBrooks, 166 Wn.2d 664, 211 P.3d 1023 (2009),
the judgment and sentence was "amended to provide that the total term of confinement of 342
months plus the term of community custody may not exceed the statutory maximum of 360
months for the three consecutive sentences imposed in this case." Answer to Mot. for Discr.
Review, App. C(Order Amending J. & Sentence, Ex. 3).

                                                 8
In re Pers. Restraint ofGronquist, No. 94971-9


Gronquist was statutorily entitled to accumulate ERT at a rate of33 percent.
Smith, 139 Wn.2d at 208-09. DOC therefore recalculated Gronquist's ERD,this
time using computer software, to August 9, 2013.

       The new software also recalculated the maximum expiration date by adding

114 months to the date Gronquist was expected to begin serving his third and final

term of confinement. This resulted in a maximum expiration date of October 8,

2016. A classification referral completed in 2000 also reflects a maximum

expiration date in 2016, as does a calculation from July 2008.

       Gronquist contends that this 2016 maximum expiration date is correct. DOC

contends it was the result of a software error. DOC later updated its software and

recalculated Gronquist's sentence, resetting the maximum expiration date to 2022.

        Gronquist first learned of this recalculation around the time he reached his

ERD in 2013. He wrote multiple grievances and letters in protest, contending that

his final term of confinement expired in 2016, 114 months after he began serving

it. For support, Gronquist relied on In re Personal Restraint ofPaschke, 61 Wn.

App. 591, 811 P.2d 694(1991), and St. Peter v. Rhay, 56 Wn.2d 297, 352 P.2d 806
(1960). Over the next two-and-a-half years, DOC consistently asserted that the
2022 maximum expiration date was correct, but its explanations were unclear,

 inconsistent, and largely unsupported by relevant legal authority.
In re Pers. Restraint ofGronquist, No. 94971-9


       Eventually, Gronquist filed a PRP with the Court of Appeals, requesting an

order resetting the maximum expiration date to 2016 and prohibiting DOC from

confining him after that date. DOC filed a response but did not cite Paschke, St.

Peter, or any other case responsive to Gronquist's claim. The Court of Appeals

therefore requested a supplemental response from DOC. DOC's supplemental

response distinguished Paschke and St. Peter but also directly conflicted with its

original response regarding how a maximum expiration date is calculated.

       The acting chiefjudge for the Court of Appeals dismissed Gronquist's PRP,

and Gronquist sought discretionary review. DOC did not respond. Our

commissioner requested an answer because "[t]he department's shifting positions

have added to the conftision in calculating Mr. Gronquist's release date." Ruling,

In re Pers. Restraint ofGronquist, No. 94971-9, at 3(Wash. Nov. 17, 2017). After

DOC filed its answer, this court granted review.

                                          ISSUES


       A.     Should Gronquist's PRP have been referred to a panel ofjudges for a

decision on the merits?


       B.     Has Gronquist shown that he is being unlawfully restrained?

                                        ANALYSIS


       To obtain relief on his PRP, Gronquist has the burden of showing that he is

under an unlawful restraint. RAP 16.4(a); In re Pers. Restraint ofGrantham, 168


                                                 10
In re Pers. Restraint ofGronquist, No. 94971-9


Wn.2d 204, 205,227 P.3d 285 (2010). He has not had a prior opportunity to

judicially appeal the issues presented, so he is not required to make any threshold

showing of prejudice. Stuhr, 186 Wn.2d at 52. Gronquist's continued total

confinement is clearly a restraint, so our only question is whether Gronquist has

shown that it is unlawful. Id. We hold he has not.

A.     Gronquist's PRP should have been referred to a panel ofjudges

       Because the Court of Appeals' order dismissing Gronquist's PRP was

entered by the acting chiefjudge alone, we must infer that the acting chiefjudge

determined Gronquist's PRP to be frivolous. In re Pers. Restraint ofKhan, 184

Wn.2d 679, 685, 363 P.3d 577(2015)(plurality opinion); RAP 16.11(b). A

frivolous PRP is one which "fails to present an arguable basis for collateral relief

either in law or in fact, given the constraints ofthe personal restraint petition

vehicle." Khan, 184 Wn.2d at 686-87. Although Gronquist is not entitled to relief,

his PRP is not frivolous.


       From November 1999 until July 2008, DOC calculated the maximum

expiration date of Gronquist's sentences to be in 2016. When Gronquist

challenged DOC's recalculation ofthe maximum expiration date to 2022,DOC

repeatedly failed to provide a clear, legally supported explanation to him or to the

courts considering his claim. And as shown by the analysis below, resolving the




                                                 11
In re Pers. Restraint ofGronquist, No. 94971-9


merits requires parsing a complex system of sentencing statutes with no directly

controlling authority.

       Gronquist's PRP presents an arguable basis for relief and can be decided

solely on the record presented. It should therefore have been referred to a panel of

judges on the Court of Appeals for a decision on the merits. RAP 16.11(b).

However,the failure to do so was remedied by our consideration of Gronquist's

motion for discretionary review. Khan, 184 Wn.2d at 687. We now consider his

PRP on the merits and deny relief.

B.     Gronquist has not met his burden of showing that his restraint is unlawful

       Gronquist contends that DOC either(1) miscalculated his maximum

expiration date in violation of his judgment and sentence, and the SRA,or

(2)capped his ERT at 15 percent of his sentence in violation ofSmith and the

constitutional prohibition on double jeopardy. If Gronquist is correct on either

point, his continued total confinement is an unlawful restraint. RAP 16.4(c)(2).

To determine whether Gronquist is correct, we must interpret the SRA. Statutory

interpretation is a question of law reviewed de novo. State v. Jones, 172 Wn.2d

236, 242, 257 P.3d 616(2011).




                                                 12
In re Pers. Restraint ofGronquist, No. 94971-9


       1.     DOC'S tracking system lawfully tolled the ERT on Gronquist's terms
              of confinement


       There is no provision in the SKA that explicitly allows (or forbids)tolling

ERT on consecutive sentences. However, statutory interpretation requires us to

consider '"the statutory scheme as a whole.'" Id. (quoting State v. Jacobs, 154

Wn.2d 596, 600, 115 P.3d 281 (2005)). As a whole, the SRA makes it clear that

such tolling is lawful, while the sentence structure proposed by Gronquist is not.
              a.     Paschke does not apply

       Gronquist relies primarily on Paschke, which held that the time remaining

on one sentence continues to run when a person is paroled to begin serving a

subsequent consecutive sentence. 61 Wn. App. at 595. However,Paschke

considered an indeterminate, pre-SRA sentence and, therefore, does not apply here.

       In 1972, Paschke was "sentenced to consecutive maximum terms of 10 and

20 years" for "abduction and carnal knowledge," respectively. Id. at 592. In 1974,
he was paroled from the abduction sentence and began serving the carnal
knowledge sentence. Id. In 1978, he was paroled from the carnal knowledge

sentence but was convicted of rape the next year. Id. His parole was revoked,

"and his new minimum term was set at the maximum sentence expiration date.

The issue [was] when that date will be." Id. at 593.




                                                 13
In re Pers. Restraint ofGronquist, No. 94971-9


       The Court of Appeals held that Paschke's abduction sentence expired in

1982, 10 years from the date he began serving it. Id. at 594. Likewise, the carnal

knowledge sentence expired in 1994, 20 years from the date Paschke began serving

it. Id. "Thus,the latest date Mr. Paschke can be held is June 19, 1994." Id. at 595

(citing St. Peter, 56 Wn.2d 297). The 8 years remaining on Paschke's abduction

sentence did not toll while he was serving the carnal knowledge sentence because

"[h]is sentence continues to run notwithstanding his parole." Id. (citing State v.

Jennings, 45 Wn. App. 858, 860, 728 P.2d 1064 (1986)).

       If Gronquist were serving an indeterminate, pre-SRA sentence,Paschke

would control, and we would grant relief on his PRP. But Gronquist is serving a

determinate, SRA-based sentence, and parole does not apply to him. RCW

9.95.110,.115,.900. Instead of being released early from each of his terms of

confinement on parole, Gronquist began serving each consecutive term when all

that remained on the previous term was ERT. This is not just a difference in

wording. Parole and ERT are different concepts and subject to different laws.

       "[Pjarole is not a right but a mere privilege conferred as an act of grace by

the state through its own administrative agency." January v. Porter, 75 Wn.2d

768,11A, 453 P.2d 876(1969). "One on parole from a final judgment and

sentence of imprisonment is not a free man." Id. at 776. Instead,"[h]is status on

parole has been aptly described as that of one who is simply serving his time


                                                 14
In re Pers. Restraint ofGronquist, No. 94971-9


outside the prison walls." Id. Therefore, when the offender is paroled to begin

serving a subsequent consecutive sentence, the time on the underlying sentence

continues to run. Paschke, 61 Wn. App. at 595; Jennings, 45 Wn. App. at 860.

Meanwhile, as applied to felony sex offenders, ERT provides only that the

offender may become eligible to serve a portion of his or her sentence on

community custody, rather than in total confinement.

       Paschke relied on the fact that the offender was released early on parole.

Gronquist was not. Therefore, Paschke''s analysis does not apply here, nor do the

statutes and precedent it relied on.

              b.      Gronquist's proposed sentence structure is not permitted by law

       As shown by the visual timelines at the beginning of this opinion, Gronquist

argues that the ERT on his first term overlapped with the beginning of his second

term and the ERT on his second term overlapped with the beginning of his third

term. That sentence structure conflicts with Gronquist's judgment and sentence,

and the SRA. DOC is thus acting lawfully by refusing to apply it.

       First, the overlap in Gronquist's proposed sentence structure necessarily

means that parts of each of his terms would be served concurrently; that is, he

would receive credit for two terms of confinement at the same time. This is

prohibited by Gronquist's judgment and sentence, which clearly requires each 114-

month term to be served consecutively, that is, one at a time. DOC must follow


                                                 15
In re Pers. Restraint ofGronquist, No. 94971-9


this requirement because it "ha[s] no authority to either correct or ignore the final
judgment and sentence." Dress v. Dep't ofCorr., 168 Wn. App. 319, 329, 279

P.3d875 (2012).

       Second, Gronquist's sentence structure would mean that his ERT would

actually reduce the length of his first two terms of confinement and therefore

would reduce the length of his overall sentence. As discussed above, the SRA

does not allow those convicted offelony sex offenses to reduce the length oftheir

sentences with ERT. And no offender may be released from confinement early,

except in compliance with the SRA. Former RCW 9.94A.150.

       Third, in addition to reducing Gronquist's overall sentence, his proposed

sentence structure could reduce the amount oftime he must spend under

supervision in the community. As required by former RCW 9.94A.120(8)(b)

(Laws of 1993, ch. 31, § 3), Gronquist was sentenced to community placement

"for two years or up to the period of earned release awarded pursuant to [former]

RCW 9.94A.150(1) and (2) whichever is longer. PRP, Attach. A,Ex. 1 (J. &

Sentence, App. H)(emphasis added). Ifthe ERT on Gronquist's first two terms

expired while he was in total confinement, as he contends, then the longest amount

of time he might serve in the community would be less than the period ofERT he

actually accumulated. This conflicts with the explicit language of his judgment




                                                 16
In re Pers. Restraint ofGronquist, No. 94971-9


and sentence and the SRA. It also conflicts with the legislature's strong policy

favoring community custody for sex offenders. See Jones, 111 Wn.2d at 246.
       Because the sentence structure Gronquist advocates for is inconsistent with

his judgment and sentence and the SRA,DOC's refusal to apply it is lawful.
Gronquist therefore does not show that he is under an unlawful restraint.

              c.     DOC's tolling ofERT on Gronquist's consecutive sentences is
                     consistent with the SRA


       Despite the unlawfulness of his proposed sentence structure, Gronquist is

correct on one important point: there is no SRA provision that explicitly allows

DOC to toll ERT on consecutive terms of confinement. However, absent an

expressly controlling statutory provision,"we analyze the statutory scheme" in

order "to achieve a harmonious total statutory scheme maintaining the integrity of

the respective statutes." Id. at 243. Here, tolling ofERT is consistent with the

SRA as a whole.


       The closest thing to an on-point statute in the SRA is its provision that

"[a]ny period of supervision shall be tolled during any period oftime the offender

is in confinement for any reason." Former RCW 9.94A.170(3)(Laws of 1993, ch.

31, § 2). IfERT were a "period of supervision," this provision would easily

answer the question presented, but that is not necessarily the case.




                                                 17
In re Pers. Restraint ofGronquist, No. 94971-9


       Former RCW 9.94A.170(3) distinguishes between periods of supervision

and periods in confinement. Thus, time spent in total confinement cannot be a

period of supervision. However, as discussed above, a person convicted offelony

sex offenses must serve his or her ERT in total confinement unless he or she has an

approved release plan. Therefore, the provision that any period of supervision

must toll while the offender is in confinement does not explicitly require tolling of

ERT on consecutive terms imposed for felony sex offenses.

       Nevertheless, such tolling is implicitly allowed because "in the case of

consecutive sentences, all periods of total confinement shall be served before any

partial confinement, community service, community supervision, or any other

requirement or conditions of any of the sentences." Former RCW 9.94A.400(5).

Transfer to community custody is thus not possible until an offender has served all

of the total confinement time for every one of his or her consecutive terms.

       It would be absurd if part of a sentence could expire before it was even

possible to begin serving it. Tolling ERT avoids such a result, and where possible,

we always interpret statutes to avoid absurd results. State v. McDougal, 120

Wn.2d 334, 350, 841 P.2d 1232(1992). Thus, tolling of periods of eligibility for

community custody, in addition to actual periods of community custody, is entirely

consistent with the SRA as applied to Gronquist and is therefore lawful.




                                                 18
In re Pers. Restraint ofGronquist, No. 94971-9


       2.     Gronquist's additional arguments are without merit

       With the court's permission, Gronquist raised two additional arguments in

his supplemental brief. We reject them both on their merits.

       First, Gronquist contends that DOC's recalculation of his maximum

expiration date violated the constitutional prohibition on double jeopardy, which

protects "against sentence adjustments that upset a defendant's legitimate

'expectation of finality in his sentence.'" Warnickv. Booher,425 F.3d 842, 847

(10th Cir. 2005)(quoting United States v. DiFrancesco,449 U.S. 117, 136, 101

S. Ct. 426,66 L. Ed. 2d 328 (1980)); see U.S. Const, amend. V. We do not doubt

that Gronquist had a subjective expectation that his sentence would expire in 2016

and that he would be released at that time. However, as discussed above, DOC did

not have any lawful authority to generally release Gronquist in 2016. Correcting

Gronquist's sentence calculations did not actually adjust his sentence and was

therefore not a double jeopardy violation.

       Second, Gronquist raises a collateral estoppel argument based on In re

Personal Restraint ofJensen, an unpublished Court of Appeals opinion. Noted at

170 Wn. App. 1017, 2012 WL 3686270. He acknowledges Jensen cannot be cited

as precedent pursuant to GR 14.1(a), but contends that the same double jeopardy

issue was raised there and DOC lost on the merits, so DOC is collaterally estopped

from challenging Gronquist's double jeopardy argument here.


                                                 19
In re Pers. Restraint ofGronquist, No. 94971-9


       However, unlike Gronquist, the petitioner in Jensen was subjected to an

actual sentence adjustment. DOC revised Jensen's risk assessment and reduced his

ERT,"not only for the sentence he was then serving, but also for the three

sentences for which the department had certified his earned release time and

release dates."           2012 WL 3686270, at *1. This was unlawful because

former DOC policy applicable at the time provided that when a person was

transferred from one consecutive sentence to the next, DOC could not revoke ERT

that the person had accumulated on the first sentence. Id. at *4.

       Gronquist's ERT was not retroactively revoked or reduced. Instead, DOC

recalculated the maximum expiration date of Gronquist's sentence based on lawful

tolling of his ERT. Jensen therefore did not consider an "identical" issue and

cannot be the basis for collateral estoppel here. Dot Foods, Inc. v. Dep't of

Revenue, 185 Wn.2d 239, 254, 372 P.3d 747(2016), cert, denied, 137 S. Ct. 2156

(2017).

                                      CONCLUSION


        Gronquist's PRP is not frivolous, but his sentence has not expired and he

does not otherwise show that he is being unlawfully restrained. We therefore deny

relief on his PRP.




                                                 20
In re Pers. Restraint ofGronquist, No. 94971-9




WE CONCUR:




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