                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 4, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 In the Matter of the                                                 No. 52822-3-II
 Personal Restraint of

 MICHAEL DENTON aka MICHAEL SIMS,

                                Petitioner.
                                                               UNPUBLISHED OPINION



       MAXA, C.J. – Michael Denton seeks relief from personal restraint imposed as a result of

two convictions: a 2016 conviction for custodial assault under Pierce County cause number 15-

1-04577-8, for which he was sentenced to 60 months of confinement; and a conviction for

custodial assault and felony harassment under Pierce County cause number 15-1-04621-9, for

which he was sentenced to 60 months of confinement consecutive to the sentence in cause

number 15-1-04577-8.

       Denton argues that (1) the trial court violated his Sixth Amendment right by imposing

consecutive sentences – which constitutes an exceptional sentence – without submitting the issue

to a jury, (2) the trial court erred in refusing to allow him to present a diminished capacity
No. 52822-3-II


defense, and (3) the Department of Corrections (DOC) is improperly confining him in solitary

confinement.1 We disagree.

       First, under RCW 9.94A.589(1)(a), when a trial court sentences a defendant for more

than one offense, it can order the sentences for those offenses run consecutively only under the

exceptional sentence provisions of RCW 9.94A.535. RCW 9.94A.535(2)(c) authorizes a trial

court to impose an exceptional sentence without a finding of fact by a jury when the defendant

“has committed multiple current offenses and the defendant’s high offender score results in some

of the current offenses going unpunished.” A trial court’s imposition of an exceptional sentence

under this statute without submission of the issue to a jury does not violate a defendant’s Sixth

Amendment right to a jury. State v. Alvarado, 164 Wn.2d 556, 567-69, 192 P.3d 345 (2008).

       Here, Denton’s offender scores for both sentences exceeded 9, so without consecutive

sentences one of his offenses would go unpunished. Therefore, the trial court did not err in

imposing consecutive sentences under RCW 9.94A.535(2)(c) and .589(1)(a).

       Second, Denton does not present any evidence that the trial court prevented him from

presenting a diminished capacity defense. Therefore, we reject Denton’s second argument.

       Third, Denton argues that DOC is denying him due process by keeping him in solitary

confinement.2 DOC has classified Denton as maximum custody. He does not have a protected




1
 This court issued the mandate of Denton’s appeal on March 19, 2018, making his December
13, 2018 petition timely filed. RCW 10.73.090(3)(b). Denton filed his petition with the
Supreme Court, which transferred his petition to us under RAP 16.5(c).
2
 In his reply brief, Denton also claims that DOC has improperly taken 1,086 days of good time
credits because those takings resulted from behaviors caused by his mental illnesses. But he did
not raise this issue in his petition, so therefore we do not address it. In re Pers. Restraint of
Rhem, 188 Wn.2d 321, 327, 394 P.3d 367 (2017).
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No. 52822-3-II


liberty interest in his classification. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987).

He only has a liberty interest in change of confinement to intensive management if that change

“imposes an ‘atypical and significant hardship . . . in relation to the ordinary incidents of prison

life.’” Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (alteration in original) (quoting

Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995)).

        Denton does not demonstrate that his conditions of confinement are an atypical hardship.

He receives classification reviews every 60 days. He has an opportunity to appeal the results of

those reviews. He has access to classes and programming. Therefore, Denton does not show

that he is being denied due process by being held in maximum custody.

        Denton does not demonstrate grounds for relief from restraint. Accordingly, we deny his

petition and deny his request for appointment of counsel.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, C.J.
 We concur:



 WORSWICK, J.




 GLASGOW, J.




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