/
 /FILE
  IN CLERKS OFFICE                                                          jr           j
iuPRB«E COURT. STATE OF vi'A-H-jaTOM                   Thls opinioo wss'filed for record


         CHtSFJUSTTCS


                                                           SUSAN L. CARLSON
                                                         SUPREME COURT CLERK




               IN THE SUPREME COURT OF THE STATE OF WASHINGTON

 In re Personal Restraint Petition of                    No. 94280-3


  MATTHEW RAY DOUGLAS SCHLEY,
                                                        Filed        JUL 2 6 2018
                        Petitioner.



            OWENS,J. — This case properly presents one issue: after a trial court imposes

  a drug offender sentencing alternative(DOSA), what evidentiary standard does due

  process impose on the Department of Corrections(Department) when revoking that

  sentence? Our legislature enacted the DOSA statute as a "treatment-oriented"

  alternative to a standard range sentence of confinement. LAWS OF 1995, ch. 108

  pmbl. If a trial court finds that the sentencing alternative is "appropriate" for an

  individual, half ofthe sentence is suspended and the person is provided with substance

  abuse treatment, within available resources. ROW 9.94A.660(3), .662(2). This

  special sentencing alternative has been found to "significantly lower[] recidivism rates

  for drug offenders" and provides benefits of$7 to $10 for every dollar the state spends

  on drug offenders given a DOSA sentence. ELIZABETH DRAKE,WASH.STATE INST.
In re Pers. Restraint ofMatthew Schley
No. 94280-3



FOR Pub.Policy, Washington's Drug Offender Sentencing Alternative: An

Update on Recidivism Findings 1,4(Dec.2006)(boldface omitted). Matthew

Schley's DOSA was revoked by the Department based on a fighting infraction that

was proved only by the some evidence standard. Schley filed a personal restraint

petition alleging that the DOSA revocation hearing violated his right to due process

because the Department failed to prove the fighting infraction by the higher proof

standard required at revocation hearings, preponderance ofthe evidence. The Court

of Appeals granted relief, holding that a fact that necessarily results in DOSA

revocation must be proved by a preponderance ofthe evidence. We affirm the Court

of Appeals.

                     PROCEDURAL AND FACTUAL fflSTORY


       Matthew Schley was sentenced under the DOSA statute after pleading guilty to

first degree theft and second degree burglary. RCW 9.94A.660. This special

sentencing alternative allows the court to waive half ofthe midpoint ofthe standard

sentence range and instead impose a term of community custody. RCW

9.94A.662(1). Accordingly, Schley was sentenced to 29.75 months of incarceration

with chemical dependency treatment services and 29.75 months of community

custody that included a substance abuse treatment program. The DOSA statute

provides that if a DOSA recipient fails to complete the treatment program or is

administratively terminated from the program, then the Department shall revoke the
In re Pers. Restraint ofMatthew Schley
No. 94280-3



DOSA. RCW 9.94A.662(3). If the DOSA is revoked, then the term of community

custody is struck and the offender will serve the remainder of his or her sentence in

prison. Id.

       Just a week into his prison-based chemical dependency treatment, Schley

received a fighting infraction. According to the Department, Schley argued with

another offender, attempted to punch him but missed, and then grabbed his throat and

arm. The other offender admitted to punching and kicking Schley after Schley

grabbed his throat and arm. At the prison disciplinary hearing, Schley denied the

allegations and submitted witness statements from five other DOSA recipients stating

they did not see any altercation between him and the other offender. Nonetheless, the

hearing officer found him guilty under the some evidence standard and sentenced him

to 15 days in segregation and a loss of 15 days of good conduct time.

       The fighting infraction set the stage for swifl revocation of Schley's DOSA.

The day after the prison disciplinary hearing, the clinical staff terminated Schley from

the treatment program for the fighting infraction. The Department then held a hearing

to determine whether Schley's DOSA should be revoked. At the DOSA revocation

hearing, the Department hearing officer found Schley guilty of infraction 762:

"[f]ailing to complete or administrative termination from a DOSA substance abuse

treatment program." WAC 137-25-030. Schley, representing himself, argued that he

had a right to challenge the fighting infraction before his DOSA could be revoked.
In re Pers. Restraint ofMatthew Schley
No. 94280-3



The hearing officer stated that the only issue before her was whether he had been

administratively terminated from treatment.

       The hearing officer found by a preponderance ofthe evidence that the clinical

staff had indeed terminated Schley from treatment and consequently revoked Schley's

DOSA. By revoking his DOSA,Schley lost access to treatment and was sentenced to

serve the remainder of his 5-year sentence in prison. This meant that his 29.75

months of community custody was converted to time in prison without substance

abuse treatment. An appeals panel affirmed the revocation, holding it lacked

jurisdiction to review the fighting infraction issue. This decision was affirmed by a

risk management director.

       Schley filed a personal restraint petition in the Court of Appeals, challenging

the DOSA revocation on three grounds:(1)the Department did not meet the correct

burden of proof,(2) he was denied the right to counsel, and(3)the Department

exceeded its authority by imposing three sanctions for a single incident and by

revoking a DOSA for conduct unrelated to chemical dependency. The Court of

Appeals granted relief based only on the first issue and remanded for a new DOSA

revocation hearing, holding that the Department violated Schley's due process rights

when it failed to prove the prison infraction by a preponderance ofthe evidence. In re

Pers. Restraint ofSchley, 197 Wn. App. 862, 870-74, 392 P.3d 1099(2017). The

court held that a fact that necessarily results in revoking a person's DOSA must be
In re Pers. Restraint ofMatthew Schley
No. 94280-3



proved by a preponderance ofthe evidence. Id. The court rejected Schley's challenge

to the Department's authority and declined to decide whether Schley's hearing

warranted counsel, noting that the Department should do so on remand. Id. at 872.

       The Department moved for discretionary review, arguing that it needed to

prove only that Schley's treatment was terminated, not the fighting infraction, by a

preponderance ofthe evidence and that the Court of Appeals wrongly held Schley's

hearing warranted appointing him counsel. We granted review ofthese issues and

denied review ofthe issues raised in Schley's cross motion for discretionary review.

In re Pers. Restraint ofSchley, 189 Wn.2d 1001,403 P.3d 38(2017). After oral

argument, Schley's counsel notified this court that Schley had been released from

custody, having served the full term ofthe revoked sentence, and was not subject to

any term of community custody.

                                         ISSUES


       1.     Must the Department prove a prison infi*action by a preponderance of the

evidence if it serves as the only basis for revoking a DOSA?

       2.     Was Schley entitled to counsel at his DOSA revocation hearing?

                               STANDARD OF REVIEW


       A petitioner bringing a personal restraint petition is "entitled to full collateral

review of a conviction or sentence if the petitioner proves actual prejudice from a

constitutional error." In re Pers. Restraint ofGronquist, 138 Wn.2d 388, 396,978
In re Pers. Restraint ofMatthew Schley
No. 94280-3



P.2d 1083 (1999). When reviewing a Court of Appeals' decision on a personal

restraint petition,"we review pure questions of law de novo and the question of

deference to the Court of Appeals does not arise." In re Pers. Restraint ofCoats, 173

Wn.2d 123, 133, 267 P.3d 324(2011). "Statutory interpretation is a question of law,

subject to de novo review." City ofSpokane v. Spokane County, 158 Wn.2d 661,672,

146P.3d893 (2006).

                                         ANALYSIS


       We must first address the court's authority to decide this appeal in light of

Schley being released from custody without conditions. While the expiration of

Schley's sentence technically renders this case moot, we may retain and decide the

appeal if it "involves matters of continuing and substantial public interest." State v.

Hunley, 175 Wn.2d 901, 907, 287 P.3d 584(2012). To determine whether the appeal

presents issues of continuing and substantial public interest, we consider three factors:

'"the public or private nature ofthe question presented, the desirability of an

authoritative determination for the future guidance of public officers, and the

likelihood of future recurrence of the question.'" Sorenson v. City ofBellingham, 80

Wn.2d 547, 558, 496 P.2d 512(1972)(quoting People ex rel. Wallace v. Labrenz,411

111. 618, 622, 104 N.E.2d 769 (1952)). Deciding whether the Department's

interpretation of evidence standards at DOSA revocation hearings violates due process

rights presents an issue of public interest. Our ruling on this matter will provide
In re Pers. Restraint ofMatthew Schley
No. 94280-3



helpful guidance for the Department staff and hearing officers and for individuals

serving a DOSA. Because DOSA revocation hearings are not a rare occurrence, the

legal questions brought by Schley would undoubtedly reoccur. All three

considerations weigh in favor ofreview here, and thus, we will decide this appeal.

       The only issue properly before us is whether due process requires the

Department to prove an infraction underlying a treatment termination decision by a

preponderance ofthe evidence in order to revoke a DOSA.

       I.     The Department Must Prove an Infraction by Preponderance ofthe
              Evidence IfIt Necessarily Results in Revoking a DOSA

       The Court of Appeals held that "the Department violated Schley's due process

rights by using facts proved by 'some evidence' at his inlhaction hearing to establish

his DOSA revocation by a preponderance ofthe evidence." Schley, 197 Wn. App. at

870. The court held that to satisfy due process requirements, the DOSA revocation

hearing must be "structured to assure that the fighting finding is based on verified

facts and accurate knowledge," aligning the Department's burden with the

preponderance ofthe evidence standard. Id. at 869. The Department argues this

holding is in conflict with the plain language ofthe statute and our precedent.

            A. The Evidentiary Standard at DOSA Revocation Hearings Is
              Preponderance ofthe Evidence

       Because DOSA is a special sentencing alternative, we must understand the

impact that revoking a DOSA has on an individual. When the Department revokes an
In re Pers. Restraint ofMatthew Schley
No. 94280-3



individual's DOSA,two key liberty interests are taken away. First, the portion ofthe

sentence that was suspended is converted back into a prison sentence. Thus, instead

of being released from prison and placed on community custody for the second half of

the sentence, that individual must serve that time in prison. Second, that individual is

no longer eligible for the DOSA substance abuse treatment programs while in prison.

So while the trial court found him or her appropriate for this treatment-oriented

sentencing alternative, he or she will not have the opportunity to participate in the

DOSA and community custody substance abuse treatment programs. ROW

9.94A.660. As the Court of Appeals has noted, a person facing a DOSA revocation

"has a significant liberty interest in the expectation of community custody as opposed

to incarceration, including the ability to be with family and friends, be employed or

attend school, and to live a relatively normal life." In re Pers. Restraint ofMcKay,

127 Wn. App. 165, 170, 110 P.3d 856 (2005).

       A person "facing revocation of a suspended sentence has only minimal due

process rights." State v. Dahl, 139 Wn.2d 678,683,990 P.2d 396(1999). A person

who faces DOSA revocation is entitled to the same minimal due process rights that

the United States Supreme Court established for people facing revocation of probation

or parole in the Morrissey decision. See id. at 683 (holding that offenders facing

SSOSA (special sex offender sentencing alternative) revocation are entitled to the due

process rights established for parolees in Morrissey v. Brewer,408 U.S. 471,92 S. Ct.


                                            8
In re Pers. Restraint ofMatthew Schley
No. 94280-3



2593, 33 L. Ed. 2d 484(1972));In re Pers. Restraint ofMcNeal,99 Wn. App. 617,

630-34,994 P.2d 890(2000)(holding that the procedural due process protections

established for parole revocation hearings in Morrissey apply to community custody

revocation hearings). These rights are enumerated in the Department's administrative

hearing procedures. WAC 137-24-030(procedures for DOSA revocation and

sanctions hearings); WAC 137-104-050(procedures for community custody violation

hearings). These due process requirements "exist to ensure that the finding of a

violation of a term of a suspended sentence will be based upon verified facts." Dahl,

139 Wn.2dat683.


       One ofthe due process requirements is that the Department has the burden to

prove each violation allegation by a preponderance ofthe evidence. WAC 137-24-

030(10); WAC 137-104-050(14); McKay, 127 Wn. App. at 170. That standard

requires "that the evidence establish the proposition at issue is more probably true

than not true." Mohr v. Grant, 153 Wn.2d 812, 822, 108 P.3d 768(2005). This is a

step up from the "some evidence" standard that is satisfied by "any evidence in the

record" to support a guilty finding in a prison disciplinary proceeding.

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86 L.

Ed. 2d 356(1985);In re Pers. Restraint ofGrantham, 168 Wn.2d 204, 216, 227 P.3d

285 (2010). Neither party disputes that this is the proper evidentiary standard.

However,they dispute which issues must be proved.


                                           9
In re Pers. Restraint ofMatthew Schley
No. 94280-3



          B. The Department Must Prove Facts That Serve as the Basisfor
             Administrative Terminationfrom Treatment by a Preponderance ofthe
              Evidence at DOSA Revocation Hearings

       Though the evidentiary standard is clear, we must interpret the statute to

determine which factual issues must be proved at DOSA revocation hearings. The

Department argues that it needs to prove only that the clinical staff terminated Schley

from treatment and the reasons underlying that termination decision are irrelevant.

Schley maintains that the fighting allegation must be proved because it necessarily

resulted in his DOSA being revoked. We agree with Schley and find that the

Department's interpretation would lead to absurd results and would violate due

process protections.

       When interpreting the DOSA statute, our duty is to "give effect to the

Legislature's intent." State v. Elgin, 118 Wn.2d 551, 555, 825 P.2d 314(1992).

"Where the meaning of statutory language is plain on its face, we must give effect to

that plain meaning as an expression of legislative intent." City ofSpokane, 158

Wn.2d at 673. However,"statutes should receive a sensible construction to [give]

effect [to] the legislative intent and, if possible, to avoid unjust and absurd

consequences." State v. Vela, 100 Wn.2d 636,641,673 P.2d 185 (1983).

       The Department is correct that the statute's plain language provides that a

person's DOSA shall be revoked if he or she "fails to complete the program or [he or

she] is administratively terminated from the program." ROW 9.94A.662(3). The

                                            10
In re Pers. Restraint ofMatthew Schley
No. 94280-3



Department argues that based on this language, after the Department s clinical staff
administratively terminate a person from the treatment program, it can revoke the
DOSA without proving any ofthe underlying conduct or behavior that led to the
clinical staffs decision. This interpretation erodes the due process protections to

which Schley was entitled and leads to absurd results.

       The due process protections in place for the DOSA revocation hearing, WAC
137-24-030, are rendered toothless if the Department needs to prove only whether
treatment was terminated. The fact oftreatment termination is undisputable; the

hearing officer need look only to the termination document signed by clinical staff to
make her decision. Treatment termination is a clinical decisionj there is no hearing or

opportunity for the DOSA recipient to dispute the facts. Thus, if the Department must
 prove only that treatment was terminated, not the underlying reasons for termination,
the revocation hearing serves as a rubber stamp for a clinical staff decision void of
 due process protections. There is nothing to suggest that the legislature s intent was
 for hearing officers to merely adopt a clinical decision to terminate treatment and
 revoke a DOSA without reviewing the underlying reasons for that decision.

        If we accept the Department's contention that treatment termination is the only
 fact at issue at revocation, then a serious prison infraction proved by the low standard
 of"some evidence" would create an unstoppable domino effect to revoke a DOSA.

 As the Court of Appeals noted,"Schley's DOSA was functionally revoked once he

                                            11
 In re Pers. Restraint ofMatthew Schley
 No. 94280-3



 was found guilty of fighting by 'some evidence' at the infraction hearing." Schley,

 197 Wn. App. at 868. The DOSA revocation hearing was not intended to be a "mere

 formality." Id. at 870. In order to effectuate the due process protections at the

 revocation hearing, the Department must prove the facts underlying the treatment

termination hearing by a preponderance ofthe evidence. This applies only to the use

 of infractions at the DOSA revocation hearing and does not disturb the "some

 evidence" standard applied to prison disciplinary hearings. Grantham, 168 Wn.2d at

 216.


        Further, adopting the Department's interpretation ofthe statute would lead to

 absurd results. Under the Department's reading, ifthe clinical staff administratively

terminated an individual from treatment for a completely irrational or biased reason,

 he or she could not address this issue at the DOSA revocation hearing.^ Amicus

Disability Rights Washington provides an example of a potentially absurd result:

treatment is terminated for disability-related reasons, but the individual cannot

challenge this issue at the revocation hearing because the only material issue is

 whether the clinical staff signed the paper terminating him or her from treatment. In




'The Department states that "[a]t least where no improper motive is alleged, and none is alleged
here, the reason why the offender was terminated from treatment does not matter." Suppl. Br. of
Dep't of Corr. at 4. While this appears to be a caveat to its argument, it is not a meaningful one
because the Department does not describe how a DOSA recipient could challenge an improper
 motive at the DOSA revocation hearing.
                                               12
In re Pers. Restraint ofMatthew Schley
No. 94280-3



order to protect against such an unjust and absurd result, we decline to adopt the

Department's interpretation ofthe statute.

       The Department argues that due process does not require proving the facts

necessarily resulting in DOSA revocation by a preponderance, relying on McCormick

and Gronquist. State v. McCormick, 166 Wn.2d 689, 213 P.3d 32(2009); Gronquist,

138 Wn.2d 388. The Department's reliance on McCormick is misplaced as it was a

decision regarding revocation of a SSOSA, a special sentencing alternative with

different revocation procedures than DOSA. McCormick, 166 Wn.2d at 698-705. A

SSOSA can be revoked only by a judge in superior court, whereas a DOSA can be

removed by a nonlawyer hearing officer in a Department of Corrections proceeding.

Id. at 698; ROW 9.94A.662(3). Because the procedures for revoking a DOSA and

SSOSA differ so greatly, McCormick does not guide our analysis.

       Gronquist does not guide our analysis in this case because a greater liberty is at

stake for individuals facing DOSA revocation than there was for Gronquist.

Gronquist, 138 Wn.2d at 397. Gronquist faced only segregation and the loss of good

time credits. Id. Additional months or years of incarceration and the loss oftreatment

are greater liberty interests than segregation and the loss of good time credit. See

Morrissey, 408 U.S. at 482.

       The Department also argues that it is not required to prove "willful

misbehavior" before revoking a DOSA. Suppl. Br. of Dep't of Corr. at 6-11. This


                                           13
In re Pers. Restraint ofMatthew Schley
No. 94280-3



position is irrelevant as neither the Court of Appeals' decision nor Schley's briefing
contends that the Department must prove willful misbehavior.

       In conclusion, we hold that in order to revoke a DOSA on the basis of being

administratively terminated from treatment, the facts that served as a basis for

terminating treatment must be proved by a preponderance ofthe evidence. This

interpretation of the DOSA statute ensures the due process protections at the

revocation hearing have effect and avoids absurd results.

           C. Ifthe Underlying Infraction Is Not Proved by a Preponderance ofthe
              Evidence, Then Treatment Must Be Reinstated

       The Department argues that once a DOSA recipient is terminated from

treatment, the purpose of a DOSA cannot be fulfilled and, thus, the DOSA must be

revoked. The purpose of a DOSA is to "increase the use of effective treatment for

substance abusing offenders, thereby reducing recidivism." DRAKE,supra, at 1.

Thus, treatment is a critical aspect of both the time in prison and the term of

community custody. Accordingly, there should not be a situation where a DOSA

recipient is terminated from treatment but is still serving a DOSA. Going forward, if

the Department fails to prove an infi-action underlying the treatment termination

decision by a preponderance ofthe evidence, then the treatment decision is invalid

and treatment should be reinstated. This does not stop the Department from moving

to revoke the DOSA again at a later date. It simply requires that it bring enough

testimony and other evidence to prove the underlying facts that led to treatment
                                           14
In re Pers. Restraint ofMatthew Schley
No. 94280-3



termination by a preponderance of evidence,just as it must to revoke a DOSA when a

DOSA recipient "fails to complete" the treatment program. RCW 9.94A.662(3).
       II.    We Need Not Decide Whether Schley Was Entitled to Counsel

       The Department argues that we should hold Schley's hearing did not warrant

appointment of counsel. However, we need not decide that issue here. The
Department argues that the Court of Appeals wrongly held that Schley had a right to
counsel at his DOSA revocation hearing. However,the Court of Appeals explicitly

declined to decide whether Schley had a right to counsel in that hearing. Schley, 197

Wn. App. at 872("We need not and do not decide that issue here."). The court went

only so far as holding that under its Grishy decision, Schley had a right to be informed
that he could request legal representation. Id. at 870-72(citing Grishy v. Herzog, 190

Wn. App. 786, 362 P.3d 763 (2015)). In Grishy, decided after Schley's DOSA

revocation hearing, the Court of Appeals held that due process required the

Department to decide on a case-hy-case basis whether representation is warranted at a
DOSA revocation hearing. Grishy, 190 Wn. App. at 806. Going forward, the

Department should follow Grishy and decide whether individuals facing DOSA

revocation should be appointed counsel on a case-by-case basis.

                                         CONCLUSION


        We hold that at DOSA revocation hearings, if revocation is based on the

clinical staff administratively terminating a person from treatment, the Department


                                             15
In re Pers. Restraint ofMatthew Schley
No. 94280-3



has the burden to prove the facts that served as a basis for that decision by a

preponderance ofthe evidence. This construction ofthe DOSA statute ensures the

due process protections at the revocation hearing have effect and avoids absurd

results. In the event that the Department fails to prove an infraction underlying the

treatment termination decision by a preponderance ofthe evidence, then the treatment

termination is invalid and treatment should be reinstated. Accordingly, we affirm the

Court of Appeals. We decline to decide the issue of whether Schley's case warranted

appointment of counsel as it was not a holding in the Court of Appeals' decision.




                                           16
In re Pers. Restraint ofMatthew Schley
No. 94280-3




WE CONCUR:




                                              Cidi




                                         17
In re Pers. Restraint ofSchley




                                     No. 94280-3



      GonzAlez,J.(concurring)—I concur with the lead opinion that

preponderance ofthe evidence is the appropriate standard at a drug offender

sentencing alternative(DOSA)revocation hearing. Lead opinion at 14. I write

separately, however, because I am concerned by the very low burden of proof used

in prison disciplinary cases and its effect on liberty interests. In the context of

serious prison infractions,justice and fairness require more than "some evidence."

      To date, we have maintained that the Department of Corrections(DOC)

satisfies due process if it presents "some evidence" that an infraction occurred. See

In re Pers. Restraint ofGrantham, 168 Wn.2d 204, 215-16, 227 P.3d 285 (2010);

see also In re Pers. Restraint ofReismiller, 101 Wn.2d 291, 293, 296,678 P.2d

323 (1984)(requiring "some connection"). Our attempts to distinguish and rank

liberty interests are not working. Due process requires more than "some evidence"

can offer. See Wolffv. McDonnell, 418 U.S. 539, 558, 568,94 S. Ct. 2963, 41 L.

Ed. 2d 935(1974)("Perhaps as the problems of penal institutions change and
In re Pers. Restraint ofSchley, No. 94280-3 (Gonzalez, J., concurring)

correctional goals arc reshaped, the balance of interests involved will require [a

different due process standard].").


      I am skeptical that the "some evidence" standard provides incarcerated

people with adequate due process protections in practice. The "some evidence"

standard is met if any evidence of guilt is presented. Superintendent, Mass. Corr.

Inst. V. Hill, 472 U.S. 445, 455-56, 105 S. Ct. 2768, 86, L. Ed. 2d 356(1985). For

instance, at Matthew Schley's DOSA revocation hearing he argued:

      [W]e have a big, large thing going on here at OCC [(Olympic Correctional
      Center)] . . . where inmates who don't like other inmates just X them out by
      writing .. . false statements, boom,they're gone, because they know,there's
      no way to win these revocation hearings.

Report ofProceedings(Apr. 2, 2015) at 37-38. Schley's concerns, whether

factually accurate in his case or merely hypothetical, are valid. Under the "some

evidence" standard, 1 inmate's lie would be sufficient to undermine the sworn

testimony of 10 inmates because there would exist a piece of evidence to support

the infraction. See Hill, 472 U.S. at 455. This low burden means, short of total

arbitrariness, DOC can always meet its burden, find a serious infraction took place,

and strip a prisoner of whatever liberty interest is at stake.

      It is neither useful nor appropriate to create a gradient of liberty interests

among incarcerated people. A DOSA recipient's liberty interest in substance

abuse treatment is not inherently greater than another inmate's liberty interest in
In re Pers. Restraint ofSchley, No. 94280-3 (Gonzalez, J., concurring)

staying out of solitary confinement, as the lead opinion implies. Lead opinion at

13 (citing In re Pers. Restraint ofGronquist, 138 Wn.2d 388, 397, 978 P.2d 1083

(1999)). I have found no principle in support of such a distinction, and diverge

jfrom the lead opinion only insofar as I believe the standard of proof should be

uniform.



      The very thing against which Justice Utter warned in his dissent in In re

Personal Restraint ofJohnston has come to fruition: the "some evidence" standard

equates to a "coin toss" and does not offer meaningful due process protection to

incarcerated people. 109 Wn.2d 493, 503, 745 P.2d 864(1987). I would hold that

all serious prison infractions must be proved by the preponderance ofthe evidence

if there is a liberty interest at stake. Because the lead opinion agrees, though in the

more limited context of a DOSA revocation hearing, I respectfully concur.
In re Pers. Restraint ofSchley, No. 94280-3 (Gonzalez, J., concurring)
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting




                                     No. 94280-3


      FAIRHURST, C.J. (dissenting)—I disagree with the lead opinion that due

process requires the Department of Corrections(DOC)to once again prove the facts

underlying a drug offender sentencing alternative (DOSA) treatment program

termination decision in a DOSA revocation hearing. The hearing to revoke an

alternative sentence is not part ofthe criminal proceedings, and the due process rights

afforded at the revocation hearing are not the same as those provided to a defendant in

a criminal trial. State v. Dahl, 139 Wn.2d 678, 683, 990 P.2d 396 (1999). "[A]n

offender facing a revocation of a suspended sentence has only minimal due process

rights because the trial has already occurred and the offender was found guilty beyond

a reasonable doubt." State v. McCormick, 166 Wn.2d 689, 700, 213 P.3d 32(2009).

      Inmates are entitled to minimum due process in serious infraction cases. In re

Pers. Restraint of Gronquist, 138 Wn.2d 388, 398, 978 P.2d 1083 (1999). Minimum

due process means the inmate must "(1) receive notice of the alleged violation;(2) be



                                         -1
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting


provided an opportunity to present documentary evidence and call witnesses when not

unduly hazardous to institutional safety and correctional goals; and(3)receive a written

statement of the evidence relied upon and the reasons for the disciplinary action." Id.

at 396-97 (citing Dawson v. Hr'g Comm.,92 Wn.2d 391, 397, 597 P.2d 1353 (1979)).

"Factual determinations of prison officials must stand ifthere is 'some evidence' in the

record     to   support   the     prison   disciplinary   decision."    Id.   at    397

n.7(quoting Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445,455-56,105 S. Ct.

2768, 86 L. Ed. 2d 356 (1985)).

      Inmates with a DOSA sentence must sign a DOSA agreement and comply with

the DOSA treatment program requirements. See Pet'r/Appellant's Br. (Pet'r's Br.),

App. at 23-26. An offender violates the DOSA agreement by being found guilty of

"[a]ny major infraction that causes a change in custody level." Id. at 23. An offender

violates the DOSA treatment program requirements by engaging in "[a]ny threat or act

of violence toward staff or another patient." Id. at 25. Offenders who violate the DOSA

agreement or treatment program requirements can be administratively terminated from

the DOSA treatment program. See id. at 23, 25; ROW 9.94A.662(3).

         Offenders terminated from the DOSA treatment program are given a serious

infraction and entitled to a DOSA revocation hearing at which "[DOC] has the

obligation of proving each of the allegations of violation by preponderance of the

evidence." WAG 137-24-030(10);In re Pers. Restraint ofMcKay, 127 Wn. App. 165,
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting


170, 110 P.3d 856 (2005). Under the plain language of the statute and regulation, at a

DOSA revocation hearing for administrative termination the only relevant question is

whether the offender was terminated from the treatment program. RCW 9.94A.662(3)

requires that a person terminated from the DOSA treatment program "shall be

reclassified to serve the unexpired term of his or her sentence as ordered by the

sentencing court."

      Matthew Schley arrived at Olympic Corrections Center (OCC) on January 7,

2015, to serve two King County DOSA sentences. See Pers. Restraing Pet. (PRP),

Pet'r's Br., App. at 35. On January 21, 2015, Schley reviewed and signed the DOSA

agreement and chemical dependency(CD)treatment requirements. Id. at 24-26. The

treatment requirements provided, "The following behaviors WILL result in

termination from the Department's CD treatment program; 1. Any threat or act of

violence toward staff or another patient." Id. at 25; Resp. ofDOC,Ex. 5. Schley began

programming in the OCC Therapeutic Community Long-Term Treatment CD Program

on January 22, 2015. Pet'r's Br., App. At 36; Resp. of DOC,Ex. 7, at 2.

      On January 26, 2015, Schley was charged with a serious infraction for fighting

with another inmate. Pet'r's Br., App. at 27; WAC 137-25-030(serious violation 505).

Schley was placed into administrative segregation the next day pending DOC's

investigation. DOC held an infraction hearing on February 9,2015. Pet'r's Br., App. at

61. The hearing officer found Schley guilty of a serious infraction under the some

                                        -3 -
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting


evidence standard—based on physical evidence of his injuries, the other inmate's

injuries, and witness information—and sanctioned Schley to 15 days of segregation

and 15 days of loss of good conduct time./J.at 27; Resp. of DOC,Ex. 13, at,3.

      On February 10, 2015, the treatment program administratively terminated

Schley for violating the program requirements by fighting with another patient. Pet'r's

Br., App. at 36; Resp. of DOC,Ex. 13, at 2. Schley was transferred to the Washington

Corrections Center on February 11, 2015. On February 13, 2015, Schley's infraction

was affirmed on appeal. Pet'r's Br., App. at 61.

      Schley's administrative termination from the DOSA treatment program

subjected him to a DOSA revocation hearing for committing a"762" serious infraction.

See WAC 137-25-030("762- Failing to complete or administrative termination from

a DOSA substance abuse treatment program."). At the DOSA revocation hearing on

April 2,2015,the hearing officer found by a preponderance ofthe evidence that Schley

had been terminated from the program and revoked the DOSA sentence pursuant to

ROW 9.94A.662(3). Pet'r's Br., App. at 38; Resp. of DOC,Ex. 13, at 4. The DOSA

statute provides,"An offender who ... is administratively terminated from the program

shall be reclassified to serve the unexpired term of his or her sentence as ordered by

the sentencing court." ROW 9.94A.662(3).

      Schley was afforded due process at every stage of this case. With regard to the

fighting infraction hearing (serious violation 505), DOC provided minimum due

                                         -4-
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting


process because Schley was provided notice, an opportunity to be heard, a written

statement of the evidence and reasons for the action, and the hearing officer found

Schley guilty of a serious infraction under the some evidence standard. See Pet'r's Br.,

App. at 38. With regard to the DOSA revocation hearing (serious violation 762), DOC

again provided minimum due process because Schley was provided notice, an

opportunity to be heard, a written statement ofthe evidence and reasons for the action,

and the hearing officer found Schley guilty by a preponderance of the evidence as

required by WAG 137-24-030(10). See Pet'r's Br., App. at 34. At no point during the

initial hearings or appeals was Schley denied minimum due process or the protections

afforded to him by prison regulations.

      The lead opinion's conclusion that due process requires DOC to again prove the

fighting infraction by a preponderance ofthe evidence at a subsequent hearing conflicts

with this court's holding in Gronquist, 138 Wn.2d 388. In Gronquist, the inmate was

charged and found guilty of a serious prison infraction of committing four general

prison infractions within a span of six months. Id. at 390-91. The inmate filed a PRP,

arguing that he had a due process right to relitigate the general infractions at his hearing

on the serious infraction under the higher some evidence standard applicable to serious

prison infractions.

      This court held that "[DOC]'s refusal to allow [the inmate] an opportunity to

relitigate collateral matters to his general infraction in a [serious infraction] hearing did
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting


not constitute a deprivation of minimum due process." Id. at 401. The court was

satisfied that the inmate was afforded sufficient process because DOC complied with

the regulations regarding general infractions and provided the inmate with notice and

an opportunity to be heard at the serious infraction hearing;

      [The inmate] was afforded an opportunity to contest the imposition of
      discipline in the tobacco incident and the other general infractions. That
      is all the law requires. He was afforded minimum due process in the
      [serious infraction] hearing; he had the opportunity to know the allegation
      against him and to appropriately contest whether he had actually been
      found culpable for four predicate minor infractions within six months. He
      has failed to prove a complete miscarriage ofjustice in this case.

Id. at 406-07(footnote omitted).

      The facts of this case are analogous to the facts of Gronquist and warrant the

same result. Just like in Gronquist, where the inmate sought to relitigate a prior general

infraction under the heightened standard of proof applicable at a serious infraction

hearing, Schley seeks to relitigate a serious infraction under the heightened standard of

proof applicable at a DOSA revocation hearing. We held in Gronquist that due process

does not allow an inmate to collaterally challenge his guilt of a prior infraction in a

subsequent hearing. Id. at 403. Therefore, Schley may not collaterally challenge his

guilt of a prior infraction at his DOSA revocation hearing. Because there is no

meaningful distinction between this case and Gronquist, I disagree with the lead

opinion's contention that due process requires that Schley be permitted to relitigate his

prior fighting infraction at a DOSA revocation hearing.
In re Pers. Restraint ofSchley, No. 94280-3
Fairhurst, C.J., dissenting


      I also disagree with the lead opinion's holding on this issue because it leads to

an absurd result. Under the lead opinion's holding, an inmate could be proved guilty of

a fighting infraction under the some evidence standard and consequently be terminated

from treatment—^but the inmate would retain his DOSA sentence if DOC could not


prove the facts underlying the fighting infraction by a preponderance of evidence. The

purpose of the DOSA statute is to provide substance abuse treatment. Allowing an

inmate to retain a DOSA sentence after being terminated from treatment runs counter

to the very purpose of the DOSA statute. Perhaps more importantly, it would be

fundamentally unfair to allow an offender to benefit from the shortened prison sentence

under DOSA ifthe core purpose ofthe statute is no longer served. I respectfully dissent.




                                         -7-
In re Pers. Restraint ofSchley, No, 94280-3
Fairhurst, C.J., dissenting




                                       -8-
