     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Personal              )      No. 68245-8-1
Restraint of:                              )
                                           )      DIVISION ONE
ALLEN MICHAEL KNOLL,                       )
                                           )      UNPUBLISHED OPINION
                                           )
                     Petitioner.           )      FILED:     MAR 0 4 2013


       PER CURIAM -Allen Knoll filed a personal restraint petition claiming that he was

denied earned early release (good time) credit without adequate due process for time

served in the Skagit County Jail on his convictions for unlawful possession of a firearm

in the second degree and theft in the second degree in Skagit County No. 11-1-00203-

8. In order to obtain relief in this setting, Knoll must demonstrate that he is being

"restrained under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c)."         !n
re Pers. Restraint of Grantham, 168 Wn.2d 204, 227 P.3d 285, 290 (2010) (quoting            !n
re Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004)).

       Knoll was confined in the Skagit County jail for approximately six months

between his March 2011 arrest and August 2011 transfer to the custody of the

Department of Corrections (DOC). On August 29, 2011, the day before he was

transferred to prison, jail authorities informed Knoll that he would receive no good time

credit for time served in jail due to the cumulative effect of his numerous disciplinary

incidents and "continual disruption of [sic] jail operations and security .... " (State's

Resp. Appendix B). The notice stated that Knoll had been the subject of over 40
No. 68245-8-1/2


incident reports and had been disciplined 10 times for both major and minor rule

violations. Knoll was given the opportunity to accept the sanction or request a hearing.

He requested a hearing and interlineated: "I have not been Disciplined 10 Times." (ld.).

       A disciplinary hearing took place five hours later. The hearing officer upheld the

denial of good time credit, and indicated having reviewed all the incident reports

involving Knoll since his booking and confirmed that there were 43 reports, 10

disciplinary actions, and 2 instances of use of force. The Skagit County Jail prepared a

jail time certification indicating that Knoll earned no good time credit in jail.

       Knoll claims he was denied credit in violation of his right to due process. He

contends the notice was inadequate based on its timing and lack of specificity. The

State concedes that the notice did not meet the applicable due process requirements

because he was given less than 24 hours to prepare for the hearing. See Wolff v.

McDonnell, 418 U.S. 539, 564, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (a brief period,

no less than 24 hours, must be allowed for an inmate to prepare for a disciplinary

hearing). We accept the concession.

       Knoll also points out that the notice failed to specifically identify any jail rules

violated or disciplinary incidents. The purpose of notice is to inform the inmate of "the

charges and to enable him to marshal the facts and prepare a defense." Wolff, 418

U.S. at 564. In this case, the notice provided only the number of incident reports and

disciplinary actions. Without further identification or description of the disciplinary




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No. 68245-8-1/3


incidents at issue, the notice failed to provide sufficient information to enable Knoll to

defend against the allegations. 1

       Knoll seeks the remedy of restoration of good time. However, the hearing did not

result in the loss of previously earned good time earned that may now be restored. The

remedy he is entitled to is rehearing. In re Pers. Restraint of Atwood, 136 Wn. App. 23,

146 P.3d 1232 (2006), is instructive.

       In Atwood, the defendant was sentenced to prison upon his Ferry County

convictions. After he was transferred to DOC custody, Atwood inquired about earned

early release credit for time served in Ferry County Jail. He was informed that no credit

had been awarded to him because of his involvement in "several incidents." Atwood,

136 Wn. App. at 25. Atwood filed a personal restraint petition contending that he was

deprived of good time credit without due process. The Atwood court agreed:

       Wolff [v. McDonnell, 418 U.S. 539, 542, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974),]
       addressed the due process requirement for deprivation of good time credit at a
       prison. But due process is due process[,] whether the loss of good time credits
       follows a jail disciplinary procedure or a prison disciplinary procedure. Both have
       the potential of affecting an inmate's good time credits. Due process protects a
       liberty interest. And these Wolff requirements have been applied in a jail setting.
       Henderson v. Comm'rs of Barnstable County, 49 Mass. App. Ct. 455, 730 N.E.2d
       362 (2000).

               The county here held no hearing before it denied Mr. Atwood's good time
       credit. Nor did the county give prior written notice of any claim of misconduct that
       would result in the loss of good time. Mr. Atwood's first notice of the jail's
       decision was its response to his inquiry why the jail had not certified any good
       time credit to the Department of Corrections. The county then responded that he


       1
         Knoll fails, however, to demonstrate that he was denied due process because the jail
hearing officer's decision was predetermined. While an impartial decision-maker is a
fundamental requirement of due process in prison disciplinary proceedings, see Wolff, 418 U.S.
at 592 (Marshall, J., concurring), Knoll's conclusory assertion is insufficient to establish bias.


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No. 68245-8-1/4


       had "incidents." But it did not detail the evidence of those incidents. The State
       argues that the jail's decision not to award Mr. Atwood good time was made in
       the exercise of discretion. That may be correct, but it ignores the requirements of
       Wolff.

Atwood, 136 Wn. App. at 28.

       The case was remanded to Ferry County for proceedings to determine the

amount of good time credit, if any, Atwood was entitled to by procedures comporting

with the minimum due process protections set forth in Wolff.

       Likewise here, Knoll is entitled to a disciplinary rehearing which includes: (1)

adequate notice of the alleged violation, (2) an opportunity to present documentary

evidence and call witnesses when not unduly hazardous to institutional safety and

correctional goals, and (3) a written statement of the evidence relied upon and the

reasons for the disciplinary action. In re Pers. Restraint of Granquist, 138 Wn.2d 388,

396-97, 978 P.2d 1083 (1999). Due process will be satisfied if some evidence in the

record supports the decision. In re Pers. Restraint of Johnston, 109 Wn.2d 493, 497,

745 P.2d 864 (1987). While it is true that Knoll is not entitled to litigate the underlying

facts of his prior disciplinary incidents, the existence of those disciplinary incidents must

be established to support the denial of good time premised on the prior incidents. See

Granquist, 138 Wn.2d at 400.

       We remand for further proceedings.


                                        For the court:




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