       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                                                    --ACD
In the Matter of the Personal Restraint of)      No. 76497-7-1                      74, 4
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KENNETH ALSTON,                           )      DIVISION ONE                   CO   -n
                                                                                 (ft         r
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                                          )
                      Petitioner.         )      PUBLISHED OPINION
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                                                 FILED: February 5, 2019               :-I
                                          )
                                          )

       SMITH, J. — In this petition, Kenneth Alston seeks relief from a 36-month

term of community custody imposed in accordance with a statute enacted after

he committed the crime. Alston claims that application of the statute to his

sentence violates the constitutional prohibition against ex post facto laws.

Because the law operates retroactively and increases the quantum of

punishment from the level to which Alston was subject on the date of the crime,

we agree and grant the petition.

                                      FACTS

      The facts are not in dispute. In 2008, a jury convicted Kenneth Alston of

assault in the first degree while armed with a firearm for an offense he committed

on September 30, 2007. In accordance with the law in effect at the time of the

crime, the court sentenced him to 153 months of confinement, to be followed by

a variable term of community custody of 24 to 48 months. See former RCW

9.94A.715(1)(2006)(requiring sentencing court to impose variable terms of
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community custody); former RCW 9.94A.850(5)(2005)(Sentencing Guidelines

Commission empowered to recommend ranges); former RCW 9.94A.030(41)

(2006)(classifying assault in the first degree as a serious violent offense); former

WAC 437-20-010 (2007)(designating community custody range of 24 to 48

months for serious violent offenses).

       Alston was serving his term of incarceration in 2009 when the Washington

State Legislature amended the law with regard to community custody.' The new

law replaced variable terms with fixed terms of 12, 18, or 36 months, depending on

the crime. See LAWS OF 2009, ch. 375,§ 5; former RCW 9.94A.701(1)-(3)(2009).

Under the new law, the community custody term for the crime of assault in the first

degree is 36 months. See RCW 9.94A.701(1)(b); RCW 9.94A.030(46)(a)(v).

       The legislature indicated its intent that the amendment should apply

retroactively to individuals, such as Alston, who were sentenced before 2009 and

still incarcerated or serving terms of community custody at the time the new law

was enacted:

       This act applies retroactively and prospectively regardless of
       whether the offender is currently on community custody or
       probation with the department, currently incarcerated with a term of
       community custody or probation with the department, or sentenced
       after the effective date of this section.

LAWS OF 2009, ch. 375,§ 20; see also LAWS OF 2008, ch. 231,§6. The

legislature also specifically charged the Department of Corrections (Department)

with recalculating terms of community custody for individuals in the Department's

custody to bring the sentences into compliance with the current law. See LAWS

       1 According to the documents supplied by the Department of Corrections,
Alston will be eligible for early release in March 2020.
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OF 2009, ch. 375,§ 9(The "department of corrections shall     recalculate the term

of community custody and reset the date that community custody will end . . . for

a crime specified in RCW 9.94A.701."); see State v. Franklin, 172 Wn.2d 831,

841-42, 263 P.3d 585 (2011). Accordingly, in July 2009, the Department

recalculated the length of Alston's community custody, replacing his variable

term with a fixed term of 36 months.

       In June 2017, Alston filed a "Petition For Contempt Of Court Pursuant To

RCW 7.21 et seq. For Remedial Sanctions" in King County Superior Court. That

court transferred the matter to this court for consideration as a personal restraint

petition. CrR 7.8(c)(2).2

                                    ANALYSIS

       Alston contends the application of RCW 9.94A.701 to his sentence runs

afoul of the prohibition on ex post facto laws because the law in effect in 2007

called for a range of community custody. He seeks reimposition of the variable

term of community custody, as provided for in his judgment and sentence.

       To prevail on a personal restraint petition, a petitioner must show that he

or she is under restraint as defined by RAP 16.4(b) and that the restraint is


       2 This court granted Alston's motion to file an amended petition,
superseding the petition he initially filed in superior court. This court also
appointed counsel to represent Alston when it referred his petition to a panel of
judges for a decision on the merits. RCW 10.73.150(4); RAP 16.11(b).
However, Alston waived his right to counsel and represents himself pro se.
Kevin A. Gilbert, a petitioner in another matter, subsequently filed what he
describes as an amicus curiae brief on Alston's behalf. However, because it
appears that Gilbert is not an attorney licensed to practice law in Washington or
in another jurisdiction as required by RAP 10.6(a), we decline to consider the
supplemental briefing.

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unlawful under RAP 16.4(c). In re Pers. Restraint of Dove, 196 Wn. App. 148,

153-54, 381 P.3d 1280(2016), review denied, 188 Wn.2d 1008 (2017). Restraint

is unlawful if the sentence imposed is unconstitutional. RAP 16.4(2).

       Generally, a petitioner seeking collateral review of a claimed constitutional

error must establish that the error resulted in actual and substantial prejudice. In

re Pers. Restraint of Isadore, 151 Wn.2d 294, 298, 88 P.3d 390(2004). But

where, as here, the petitioner has not had the opportunity to seek direct judicial

review of the claimed error, we do not apply the heightened threshold

requirements that ordinarily apply to a personal restraint petition. Isadore, 151

Wn.2d at 299. Instead, the petitioner must show only that he or she is under

unlawful restraint under RAP 16.4(b) and RAP 16.4(c). Isadore, 151 Wn.2d at

299.

       Both the United States and Washington Constitutions prohibit the passage

of ex post facto laws. U.S. CONST. art. I, § 10; WASH. CONST. art. I, § 23. The ex

post facto clause prohibits a state from enacting a law that retroactively increases

the punishment for a crime after it was committed. Collins v. Youngblood, 497

U.S. 37, 43, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990); In re Pers. Restraint of

Flint, 174 Wn.2d 539, 545, 277 P.3d 657(2012). "Retroactive changes in laws

governing parole of prisoners, in some instances, may be violative of this

precept." Garner v. Jones, 529 U.S. 244, 250, 120 S. Ct. 1362, 146 L. Ed. 2d

236 (2000). The "controlling inquiry" is "whether retroactive application of the

change in . . . law created 'a sufficient risk of increasing the measure of

punishment attached to the covered crimes." Garner, 529 U.S. at 250(quoting


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Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S. Ct. 1597, 131 L. Ed. 2d

588 (1995)). The risk of an adverse impact on a prisoner's expected term of

confinement must be more than merely "conceivable." Morales, 514 U.S. at 508.

Generally speaking, however, "[t]tle question when a change in law creates such

a risk is 'a matter of degree'; the test cannot be reduced to a 'single formula."

Peuqh v. United States, 569 U.S. 530, 539, 133 S. Ct. 2072, 186 L. Ed. 2d 84

(2013)(quoting Morales, 514 U.S. at 509).

       It is undisputed that RCW 9.94A.701 operates retroactively as to Alston

because he committed the offense before the legislature amended the law. The

issue is whether the amended community custody law increases the measure of

punishment.

      Alston relies on the decision of Division Three of this court in State v.

Coombes, 191 Wn. App. 241, 361 P.3d 270(2015), to argue that

RCW 9.94A.701 increased the quantum of punishment and therefore violates the

constitutional prohibition against ex post facto laws. Coombes pleaded guilty to

murder in the first degree in 2008. He later successfully collaterally challenged

his plea, withdrew the plea, and went to trial. Coombes, 191 Wn. App. at 246.

Following his subsequent jury conviction, the sentencing court imposed a

sentence that included a community custody term of 36 months. Coombes, 191

Wn. App. at 249.

      On appeal, Coombes claimed, and the State conceded, that imposition of

a 36-month fixed term of community custody violated the prohibition against ex

post facto laws. Coombes, 191 Wn. App. at 249. The court agreed. The court


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concluded that(1) the statute amending community custody terms operated

retroactively to Coombes, who committed his offense before the amendment of

the community custody law and (2)the new community custody law increased

Coombes's punishment because it replaced a previously discretionary term with

a mandatory term. Coombes, 191 Wn. App. at 251-53; see also Flint, 174 Wn.2d

at 554. Accordingly, the court vacated the community custody portion of

Coombes's sentence and remanded for imposition of a variable term consistent

with the law in 2007 at the time of Coombes's offense. Coombes, 191 Wn. App.

at 253. Recently, Division Two of this court followed the analysis of Coombes

reaching the same conclusion in a case involving the same relevant facts. State

v. Contreras-Rebollar, 4 Wn. App. 2d 222, 421 P.3d 509, review qranted, 430

P.3d 274 (2018).3

      The courts in both Coombes and Contreras-Rebollar relied on the United

States Supreme Court's decision in Lindsey v. Washington, 301 U.S. 397, 57 S.

Ct. 797, 81 L. Ed. 1182 (1937), to support the position that "the applicable

quantum of punishment increases when a statute makes a formerly discretionary

punishment mandatory." Coombes, 191 Wn. App. at 251-52; see also

Contreras-Rebollar, 4 Wn. App. 2d at 229. The defendants in Lindsey were

convicted of grand larceny. On the date of the crime, Washington law penalized

grand larceny with a sentence of imprisonment of no more than 15 years.

Lindsey, 301 U.S. at 398. The law permitted the sentencing court to set the

minimum term of imprisonment at any point between 6 months and 5 years, and

       3 The Supreme Court granted review only with regard to the issue of
imposition of a filing fee as a legal financial obligation.
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required the maximum sentence to be greater than the minimum term but less

than 15 years. Lindsey, 301 U.S. at 398. Before the court sentenced the

defendants, the legislature amended the statute to require courts to set only the

maximum term of incarceration at the statutory maximum of 15 years. Lindsey,

301 U.S. at 398. The parole board was then required to fix the duration of

confinement, which could not exceed the maximum term of incarceration as

determined by the court. Lindsey, 301 U.S. at 398-99. The defendants were

sentenced in accordance with the revised statute. The court imposed the

maximum sentence of 15 years and did not set a minimum term. Lindsey, 301

U.S. at 399.

      The Washington State Supreme Court upheld the sentence because a 15-

year maximum sentence was possible under both the prior and the revised

statute. Lindsey, 301 U.S. at 400. The United States Supreme Court reversed

because "[t]he effect of the new statute is to make mandatory what was before

only the maximum sentence." Lindsey, 301 U.S. at 400. Specifically, under the

terms of the new statute, the defendant necessarily remained subject to

correctional supervision for 15 years, whereas under the old statute, the duration

of supervision could have been less. Lindsey, 301 U.S. at 400-01. The Court

reasoned:

              Removal of the possibility of a sentence of less than fifteen
      years, at the end of which petitioners would be freed from further
      confinement and the tutelage of a parole revocable at will, operates
      to their detriment in the sense that the standard of punishment
      adopted by the new statute is more onerous than that of the old. It
      could hardly be thought that, if a punishment for murder of life
      imprisonment or death were changed to death alone, the latter
      penalty could be applied to homicide committed before the change.

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       Yet this is only a more striking instance of the detriment which
       ensues from the revision of a statute providing for a maximum and
       minimum punishment by making the maximum compulsory.

Lindsey, 310 U.S. 400 (citation omitted). Upon concluding that the new law was

detrimental to the defendants in comparison with the sentence the court could

have imposed under the former statute, the Court stated:

       We need not inquire whether this is technically an increase in the
       punishment annexed to the crime, see Calder v. Bull,[3 U.S.(3
       Da11.) 386], 390[, 1 L. Ed. 648 (1798)]. It is plainly to the substantial
       disadvantage of petitioners to be deprived of all opportunity to
       receive a sentence which would give them freedom from custody
       and control prior to the expiration of the 15-year term.

Lindsey, 301 U.S. at 401-02.

       Although the Supreme Court later discarded the "substantial

disadvantage" standard cited by the court, the holding of Lindsey remains in full

force. See Collins, 497 U.S. at 50 (overruling Krino v. Missouri, 107 U.S. 221, 2

S. Ct. 443, 27 L. Ed. 506 (1883)); Peuqh, 569 U.S. at 546. As the Court clarified

in Morales, the inquiry is not whether a law results in a disadvantage but whether

the retroactive statute "produces a sufficient risk of increasing the measure of

punishment attached to the covered crimes." Morales, 514 U.S. at 509; see also

Garner, 529 U.S. at 250; Peuqh, 569 U.S. at 539. Nevertheless, the result in

Lindsey is the same under either standard. Under the former law setting the

punishment for larceny, the duration of supervision could have been any amount

of time between 6 months and 15 years, whereas under the amended law, the




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duration of supervision could not be less than the maximum term of 15 years.4

Since the "measure of punishment prescribed by the later statute [was] more

severe than that of the earlier," the statutory amendment at issue produced a

"sufficient risk of increasing the measure of punishment" for larceny. Lindsey,

301 U.S. at 401; Morales, 514 U.S. at 509.

       This case is more difficult than Lindsey because the mandatory

punishment under the new statute is not the previously maximum allowable

punishment; the fixed term for Alston's offense is the midpoint of the previously

applicable variable range.5 So, the new law deprives those to whom it applies of

the previously available opportunity to serve a term of community custody of less

than three years, but at the same time eliminates the risk that the duration of

supervision will exceed three years.

       We cannot discount the risk of a higher sentence under the amended law

merely because the Department had broad discretion as to the timing of release


        4 Although Lindsey is instructive, we do not read that case as establishing
the broad proposition that any law that makes a formerly discretionary
punishment mandatory necessarily increases the quantum of punishment. The
court's ruling hinged upon the critical fact that the amendment made mandatory a
sentence that was the maximum permissible punishment under the old law. The
punishment under the new law must be more severe than under the former law,
even if the new penalty is not strictly mandatory. See Peuqh, 569 U.S. at 541
(applying amended sentencing guidelines that increase the recommended
sentence can violate the ex post facto clause notwithstanding the discretion of
sentencing courts to deviate from the guidelines); accord Miller v. Florida, 482
U.S. 423,435, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987).
        5 The legislature did not uniformly set the fixed terms at the midpoint of the
prior variable range. For instance, with respect to violent offenses, the fixed term
was set at 18 months, the minimum sentence under the previous variable range.
For felony offenses under RCW 69.50 and RCW 69.52, the fixed term was set at
12 months, the maximum sentence under the previous variable range. Compare
WAC 437-20-010 (2007) with former RCW 9.94A.701 (2009).
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from a variable term of community custody. "The presence of discretion does not

displace the protections of the Ex Post Facto Clause." Garner, 529 U.S. at 253

(italics omitted). Nor does the lack of absolute certainty that application of the

new law will result in a higher sentence foreclose an ex post facto claim. Both

our courts and the Supreme Court have considered the validity under the ex post

facto clause of laws altering the terms on which discretionary parole or early

release was available to prisoners. See Garner, 529 U.S. 244; Morales, 514

U.S. 499; Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L .Ed. 2d 17

(1981); In re Pers. Restraint of Powell, 117 Wn.2d 175, 814 P.2d 635 (1991). In

these analogous circumstances, courts have reached different conclusions as to

whether there was an ex post facto violation, but none have rejected the claim

merely because there was no guarantee that parole or early release would be

granted earlier under the former law. See Garner, 529 U.S. at 253; Morales, 514

U.S. at 508-10 & n.6; Weaver, 450 U.S. at 30-31. For instance, the Supreme

Court has held that a statute reducing the amount of good time credits that could

be earned by a prisoner violated the ex post facto clause when applied to a

person whose crime occurred before the more stringent statute was enacted.

Weaver, 450 U.S. at 35-36; see also Lvnce v. Mathis, 519 U.S. 433, 117 S. Ct.

891, 137 L. Ed. 2d 63(1997)(amendment removing accumulated provisional

early release credits was an impermissible ex post facto law as it lengthened a

period of incarceration for person sentenced under the old law).

       On balance, the change in the law that replaced a variable term of

community custody with a fixed term poses a sufficient risk of a higher sentence


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by entirely eliminating the opportunity to be free of custodial supervision before

36 months. Accordingly, application of RCW 9.94A.701, enacted after Alston's

conviction, violates the constitutional prohibition against ex post facto laws.

Alston is entitled to the relief he seeks—recalculation of his community custody

term in accordance with the law in effect at the time of the offense.6

       We grant the personal restraint petition.




WE CONCUR:
                                                   0114




      6 To the extent that Alston seeks contempt sanctions based on the
Department recalculation of his community custody term, this requested relief is
beyond the scope of relief available by means of a personal restraint petition.
See In re Pers. Restraint of Sappenfield, 138 Wn.2d 588, 595, 980 P.2d 1271
(1999)(In granting a personal restraint petition, this court may only order the
removal of the illegal restraint.).
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