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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II


In re the Personal Restraint of                                                      No. 44691 -0 -II


MARK LEE MILLER,
                                                                            UNPUBLISHED OPINION
                                          Petitioner.




         LEE, J. —          In January 2013, the Indeterminate Sentence Review Board ( ISRB) revoked

Mark Lee Miller' s parole and returned him to prison. Miller filed this personal restraint petition


 PRP) alleging that he is under unlawful restraint due to the ISRB' s order revoking his parole.

Miller alleges that the legislation repealing the sunset provision that would have abolished the

ISRB    violated        Wash. Const.       art.   II, §   19.   We reject Miller' s argument and hold that the


legislation is        constitutional.       Miller also raises several issues related to the ISRB' s order


rescinding his 2010 Conditional Discharge from Supervision ( CDFS), but Miller waived these


challenges by failing to file a PRP challenging the order rescinding his CDFS at the time the

ISRB    entered       it.   Finally, Miller argues that his parole revocation was improper because ( 1) the

ISRB failed to hold a parole revocation within 30 days of serving him with notice of the

violations, (    2) the Department of Corrections ( DOC) did not have the authority to perform an on-

site   drug   test,    and (   3) there was insufficient evidence to support the ISRB' s findings that he


violated   the   conditions of      his   parole.   We disagree    and   deny   Miller' s   petition.
No. 44691 -0 -II



                                                                  FACTS


        On November 9, 1979, Miller pleaded guilty to one count of first degree robbery and was

granted a        five    year   deferred   sentence.       After Miller committed a series of robberies in Oregon,


the Clark County Superior Court revoked his deferred sentence and sentenced him to a maximum

term   of    40    years      incarceration.     The ISRB         set a minimum     term   of   33   months.   In November


1993, the ISRB                released   Miller      on   parole.    Between     1993    and    2008, Miller violated the


conditions of       his    parole on several occasions.             In 2009, the ISRB again granted Miller parole and


released him to           a   CDFS.      In November 2010, Miller' s Community Corrections Officer ( CCO)

filed a notice of violation, alleging that Miller violated the conditions of his CDFS by stabbing

one person and            threatening      to kill   another person.       However, the victims and witnesses did not

cooperate with           law    enforcement, and          the   case was   dismissed.   On December 9, 2010, the ISRB


returned Miller to CDFS.


        On December 20, 2011, Miller' s CCO, Ronda Nielsen, filed a report with the ISRB


requesting that Miller' s CDFS be rescinded and that he be returned to active supervision.

Nielsen stated that, since being released on the CDFS, Miller had been arrested seven times:

            1.    July   2010 —first degree assault and harassment


            2.    January       2011 — violation      of a protection order



            3.    May     2011 — disorderly          conduct

            4.    July   2011 — third      degree driving while license suspended

            5. August 2011 — first           degree criminal trespass and disorderly conduct

            6. September 2011 — second                 degree burglary and third degree theft

            7. December 2011 — unlawfully                   harboring a minor

                                                                     2
No. 44691 -0 -II



ISRB Ex. 27         at   1.   Nielsen stated that after Miller' s arrest in December 2011, the local police


department      reported         Miller'   s   arrests   and   requested      that   the   ISRB   take   action.   Nielsen


recommended that the. ISRB rescind Miller' s CDFS and place him back on active supervision.


The ISRB rescinded Miller' s CDFS and placed him back on active supervision with the


following conditions:

         1.   You must not use, possess or control any mind or mood -
                                                                    altering substances,
         drugs, narcotics, controlled substances, or drug paraphernalia without a valid
         prescription from a licensed physician.
         2. You must not use, possess, or control any alcohol.
         3.  You must submit to periodic and random drug and /or alcohol monitoring
         through an agency approved by your CCO and sign a full release of information
         allowing the treatment or monitoring agency to release information to your CCO
         and the Indeterminate Sentence Review Board (ISRB).
         4.    You will not have contact with known felons without PRIOR permission of
         your CCO, and then only in the context of a treatment group or employment.

Pet' r' s. Ex. 2.


         On July 5, 2012, CCO Nielsen submitted a notice of parole violation based on Miller

using illegal drugs.            The ISRB ordered Miller' s parole reinstated with the additional condition


that he obtain a         drug   and alcohol evaluation and           comply   with all recommendations.        On July 25,

Nielsen submitted another notice of violation based on Miller possessing alcohol and failing to

report as     directed.       The ISRB again reinstated Miller' s parole with the conditions that Miller


obtain a drug and alcohol evaluation within 15 days and report weekly.

         On November, 9, 2012, CCO Nielsen submitted another notice of violation, alleging that

Miller failed to report as directed, failed to report a change of residence, and failed to obtain a


drug and alcohol evaluation as ordered. Nielsen also noted that Miller had recently been arrested




                                                                 3
No. 44691 -0 -II



for resisting   arrest and second          degree   possession of stolen          property.          On December 31, Nielsen


submitted a notice of two additional violations: using methamphetamines and using opiates.

         On January 8, 2013, the ISRB held a parole revocation hearing to address all five alleged

parole   violations.     Miller      was      represented     by    an    attorney    at   the   revocation         hearing.    Miller


pleaded guilty to the alleged violations that he failed to report and failed to obtain a drug and

alcohol evaluation.       The ISRB found Miller not guilty of the alleged violation that he failed to

report a change of address.              Miller' s attorney objected to the ISRB considering the allegations

regarding illegal drug use because the only evidence supporting the allegations was inadmissible

hearsay. The ISRB ruled that the allegations would be considered based on the testimony of the

CCOs     and    any   finding   would not        be based      on      inadmissible        hearsay.     The CCOs testified as


follows:


         CCO Nielson testified that Mr. Miller reported to the DOC office on December
         27, 2012      and   a urine      sample    was      collected.        CCO Conrad was present in the
         men' s   bathroom         and   he   witnessed      Mr. Miler      urinate   into the       sample    cup.     Both
         CCOs and Mr. Miller then went to the UA [urinalysis] room and observed that the
         sample indicated positive for the presence of Methamphetamine and Opiates. Mr.
         Miller requested that the sample cup be sent to a laboratory for confirmation.
         CCO Nielson spoke with her supervisor and it was determined that the necessary
         criteria for additional testing as required by new DOC policy had not been met.
         When asked, Mr. Miller denied using any illegal drugs, then said that it was
         possible the test was positive because he saw some white powdery substance in
         the bottom     of   his   purse and     that   he   stuck     his finger into it to        see what   it   was.   He
         indicated that it tasted bitter and that it could be Opiates but that it did not taste
         like Methamphetamine.                 Mr. Miller was arrested and has been in custody since
         this occurred.


         CCO Nathaniel Conrad                 was contacted     telephonically           and sworn      in. He testified
         that the UA sample cup was sealed when he accompanied Mr. Miller in the
         bathroom.       Mr. Miller took          off   his jacket       and   laid it     aside.    CCO Conrad then
         unsealed     the cup      and   Mr. Miller     urinated       into it. CCO Conrad took possession of

         the cup and it was in his control as they walked to the UA room. He observed the
         sample results to test positive for Methamphetamine and Opiates and negative for


                                                                   4
No. 44691 -0 -II



              4   other substances.         After it was decided that the sample cup would not be sent to
              the lab, it was discarded.


Pet'   r' s   Ex. 7    at   3.    The ISRB found that the CCOs' testimony was not hearsay because they

testified to "        first - and
                            h       observations."       Pet' r' s Ex. 7   at   4.    The ISRB found Miller guilty of using

illegal substances and, per agreement, combined the two alleged violations into one violation.

The ISRB revoked Miller' s parole stating:

              The [ ISRB] has tried repeatedly to work with Mr. Miller, recognizing the length
              of time he has served in prison and under supervision in the community.
              However, when paroled and especially while not under active supervision he has
              continually demonstrated an ongoing disregard for appropriate behavior and rule
              following. His attitude and actions clearly do not meet the statutory standard of
              being totally rehabilitated and as a result the Board has the responsibility to return
              him to prison.


Pet' r' s Ex. 7, at 5. Miller now files this PRP alleging that his current restraint is unlawful.

                                                               ANALYSIS


A. WASH. CONST.                  ART.   II, § 19


              Miller argues that the legislation repealing the sunset provision that would have abolished

the     ISRB         violates     Wash. Const.        art.   II, §   19.   Essentially, Miller argues that because the

legislation was unconstitutional, the ISRB ceased to exist, at least as to its authority to supervise

offenders           sentenced prior        to 1984, in 2008.         Miller is       mistaken.   The legislation repealing the

sunset provision            abolishing the ISRB does            not violate     Wash. Const.     art.   II, § 19.


              Former RCW 9. 95. 0011( 1) (             1997) stated that the ISRB would " cease to exist on June 30,

2008."            In 2001, the legislature         passed    Third Engrossed Substitute Senate Bill (S. B.) 6151,: " AN


ACT Relating to the management of sex offenders in the civil commitment and criminal justice




                                                                       5
No. 44691 -0 -II



systems."      S. B. 6151, LAWS        OF   2001, 2d Spec. Sess.,                ch.    12,   at   2196.     Among other things, the

act repealed    former RCW 9. 95. 0011. LAWS                    of   2001, 2d Spec. Sess.,             ch.   12, § 501.


          Wash. Const.       art.   II, § 19     states, "    No bill shall embrace more than one subject, and that


subject shall    be    expressed     in the title."          Wash. Const.        art.   II, § 19 established two specific rules:


 1) the   single subject rule, and ( 2)        the              in
                                                        subject -      -itle
                                                                       t       rule.'    State v. Stannard, 134 Wn. App. 828,

834, 142 P. 3d 641 ( 2006) (           citing Citizens for Responsible Wildlife Mgmt. v. State, 149 Wn.2d

622, 632, 71 P. 3d 644 ( 2003)). "                A party challenging the statute' s constitutionality bears the




1 To the extent that Miller argues that S. B. 6151 violates that subject -in -
                                                                             title rule, his argument is
meritless. "   The title satisfies the subject in title requirement ` if it gives notice that would lead to
an inquiry into the body of the act, or indicate to an inquiring mind the scope and purpose of the
law. '     Wash. State Grange         v.   Locke, 153 Wn.2d 475, 497, 105 P. 3d 9 ( 2005) ( quoting                           Young
Men' s Christian Ass 'n       v.    State, 62 Wn.2d 504, 506, 383 P. 2d 497 ( 1963)).                          Here, the full title of
the act reads:



                      AN ACT Relating to the management of sex offenders in the civil
           commitment         and      criminal          justice      systems;           amending          RCW       71. 09. 020,
           36. 70A. 103,      36. 70A.200,           9. 94A. 715,         9. 94A. 060,             9. 94A. 120,      9. 94A. 190,
           9. 94A. 390,    9. 94A.590,         9. 94A. 670,          9. 95. 005,        9. 95. 010,    9. 95. 011,    9. 95. 017,
           9. 95. 020, 9. 95. 032, 9. 95. 052, 9. 95. 055, 9. 95. 064, 9. 95. 070, 9. 95. 080,                        9. 95. 090,
           9. 95. 100, 9. 95. 110, 9. 95. 115, 9. 95. 120, 9. 95. 121, 9. 95. 122, 9. 95. 123,                        9. 95. 124,
           9. 95. 125, 9. 95. 126, 9. 95. 130, 9. 95. 140, 9. 95. 190, 9. 95.250, 9. 95. 280,                         9. 95. 290,
           9. 95. 300, 9. 95. 310, 9. 95. 320, 9. 95. 340, 9. 95. 350, 9. 95. 360, 9. 95. 370,                        9. 95. 900,
           9A.28. 020, 9A.36. 021, 9A.40. 030, 9A.44. 093, 9A.44. 096, 9A.44. 100,                                    9A.76.—
           and 72. 09. 370; reenacting and amending RCW 9. 94A.030, 9. 94A.320, 18. 155. 020
           and 18. 155. 030; adding new sections to chapter 71. 09 RCW; adding new sections
           to chapter 72. 09 RCW; adding new sections to chapter 9. 94A RCW; adding new
           sections to chapter 9. 95 RCW; adding a new section to chapter 4. 24 RCW;
           creating    new    sections;      repealing RCW 9. 95. 0011                        and     9. 95. 145; prescribing
           penalties; providing an effective date; providing expiration dates; and declaring an
           emergency.


LAWS      OF. 2001,   2d Spec. Sess.,      ch.    12,   at   2196 ( emphasis        added).         The subject at issue ( repeal of

former RCW 9. 95. 0011) is clearly expressed in the title of S. B. 6151.
                                                                      6
No. 44691 -0 -II




heavy      burden      of   establishing its unconstitutionality beyond                 a reasonable      doubt."       Amalgamated


Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P. 3d 762, 27 P. 3d 608 ( 2000).


           To determine whether legislation violates the single subject rule, this court must first

determine        whether       the title   is   general     or restrictive.      Stannard, 134 Wn.            App.   at   835.     Miller


argues that ESSB 6151 has a restrictive title because it specifically references sex offenders.

But, to be considered a general title, the title " need not contain a general statement of the subject


of an act; rather, `        a few well- chosen words, suggestive of the general subject stated, is all that is


necessary. '           Stannard, 134 Wn.             App.       at   836 (   quoting Amalgamated, 142 Wn.2d at 209)

 internal    quotations         omitted).       Here, the title of ESSB 6151 broadly references both the civil

commitment system and                the    criminal      justice    system.     Therefore, the title should be considered


general.      See Amalgamated, 142 Wn.2d                        at   193, 216 (   holding    title "[   s] hall voter approval be


required     for any tax increase, license tab fees be $ 30 per year for motor vehicles, and existing


vehicle taxes be repealed" was general because, read as a whole, the title embraced the general


topic    of vehicle      taxes);   City    of Burien      v.   Kiga, 144 Wn.2d 819, 825, 31 P. 3d 659 ( 2001) (                  holding

title "[   s] hall certain 199 tax and fee increases be nullified, vehicles exempted from property

taxes,     and   property tax increases (              except        new     construction)   limited to 2%           annually ?"      was




general     because the entirety           of   the title      encompassed      the   general subject of       tax   relief);    Citizens,


149 Wn.2d         at   632, 636 ( holding title "[ s] hall it be a gross misdemeanor to capture an animal with


certain     body -gripping         traps,       or to poison an animal with sodium fluoroacetate or sodium


cyanide ?"       was general because the specific topics referenced in the title were " merely incidental

to the     general     topic   reflected    in the title — ban
                                                          a            on methods of      trapping      and   killing   animals ").
No. 44691 -0 -II



          If the legislation has a general title, it does not violate the single subject rule provided


that " a rational unity" exists among the subjects addressed in the legislation. Stannard, 134 Wn.

App.     at    839 ( citing Kiga, 144 Wn.2d            at   825 -26).   Here, there is a rational unity between the

section       of   the S. B.    6151     repealing former RCW 9. 95. 0011                 and   its title.   The legislature


determined that it would use the ISRB as the vehicle for managing sex offenders in the criminal

justice       system.    Repealing former RCW 9. 95. 0011 was necessary to accomplish this purpose.

Accordingly, S. B. 6151 did              not violate    Wash. Const.      art.   II, §   19 because it included a section

repealing former RCW 9. 95. 0011.

              Miller also provides this court with a list of suggested ways in which the legislature could

have crafted the legislation in a way which he believes effectively complies with Wash. Const.

art.   II, § 19.        However, we do not evaluate what the legislature may have done; rather we

determine whether Miller has met his burden to prove what the legislature did . do was

unconstitutional.           Miller has failed to prove beyond a reasonable doubt that ES SB 6151 violated

Wash. Const.         art.   II, §   19. Accordingly, his argument must fail.

B. CHALLENGES To ORDER RESCINDING CDFS


              Miller challenges the ISRB' s administrative order rescinding his CDFS arguing that the

DOC did not have the authority to request that the ISRB rescind his CDFS and that he was

entitled to minimum due process protections ( notice and an opportunity to be heard) prior to the

ISRB rescinding his CDFS                  and   placing him back        on   active      supervision.    However, Miller' s


challenges to the order rescinding his CDFS are not properly before this court. Currently, Miller

is under restraint due to the ISRB' s order revoking his parole, he is not under restraint from the

 order    rescinding his CDFS.             Accordingly, his petition is a challenge to the order revoking his

                                                                  8
No. 44691 -0 -II



parole not   the   order   rescinding his CDFS.         Moreover, Miller waived his challenges to the order


rescinding his CDFS by failing to file a PRP challenging the order when the ISRB rescinded his
CDFS.      Because Miller failed to challenge the order rescinding his CDFS in a timely manner,

when this court could have effectively provided relief, he is not allowed to challenge an order

that is no longer the cause of his restraint.


C. VIOLATION OF THE 30 -DAY TIMELINE


        Miller argues that the ISRB improperly considered the first three alleged violations

 failure to report, failure to notify change of address, and failure to obtain drug and alcohol

evaluation) because the ISRB did not hold a hearing on the alleged violations within 30 days as

required   by   RCW 9. 95. 120.     But, under In re Personal Restraint of Knoke, 17 Wn. App. 874,

876, 565 P. 2d 1187 ( 1977),      failure to comply with the 30 -day timeline does not deprive the ISRB

of jurisdiction over the alleged violations and a hearing does not violate due process unless the

delay is unreasonable.

        RCW 9. 95. 120 provides, in relevant part:

                   Whenever a paroled prisoner is accused of a violation of his or her parole,
        other than a commission of, and conviction for, a felony or misdemeanor under
        the laws of this state or the laws of any state where he or she may then be, he or
        she shall be entitled to a fair and impartial hearing of such charges within thirty
        days from the time that he or she is served with charges of the violation of
        conditions     of parole   after   his   or   her   arrest and   detention.      The hearing shall be
        held before one or more members of the board at a place or places, within this
        state, reasonably near the site of the alleged violation or violations of parole.


In Knoke, the petitioner argued that the State' s failure to hold his parole revocation within the

30 -day timeline     of    RCW 9. 95. 120   required        dismissal   of   the   parole revocation proceedings.   17


Wn. App. at 876. Division Three of this court rejected his argument stating:

                                                               9
No. 44691 -0 -II



                The statutory right to a hearing within 30 days is enforceable by way of
           mandamus.   January v. Porter, 75 Wn.2d 768, 453 P. 2d 876 ( 1969). However,
           RCW 9. 95. 120 is not jurisdictional, and failure to hold the hearing within 30 days
           does not entitle the petitioner to dismissal of the parole revocation proceedings.



17 Wn.     App.    at   876.   Further, failure to hold a parole revocation within 30 days does not violate


the petitioner' s right to due process if the delay is reasonable. Knoke, 17 Wn. App. at 876 ( citing

Morrissey     v.   Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 ( 1972); Monohan v.


Burdman, 84 Wn.2d 922, 530 P. 3d 334 ( 1975)).                Here, the delay in holding the parole revocation

on   the   alleged violations       was     not unreasonable.      Miller was not in custody during the entire

period leading up to the parole revocation hearing; rather the ISRB granted him conditional

release pending the parole revocation hearing. Further, Miller had pending criminal charges that

may have been           relevant   to the    parole   revocation
                                                                   hearing. Therefore, any delay in the parole

revocation hearing should not be considered unreasonable and Miller is not entitled to relief

based on the ISRB' s failure to hold a hearing on the first three alleged parole violations within

30 days of Miller being provided notice of the alleged violations.

D. DOC AUTHORITY TO CONDUCT UA


           Miller asserts that, under the terms of his parole, the DOC did not have authority to

administer his UA.              One of the conditions imposed after Miller was returned to active


supervision stated:




           You must submit to periodic and random drug and /or alcohol monitoring through
           an agency approved by your CCO and sign a full release of information allowing
           the treatment or monitoring agency to release information to your CCO and the
           Indeterminate Sentence Review Board (ISRB).




                                                             10
No. 44691 -0 -II



Pet' r' s Ex. 2.        Miller relies on principles of civil contract law to argue that the stated condition


establishes a third party agency as the exclusive method of obtaining a UA and that, as a result,

the DOC          was    divested     of   legal authority to         conduct a    UA.      But, orders imposing conditions of

parole are not civil contracts. Nothing in the stated section prohibits the DOC from performing a

UA.     Moreover, by December 27, 2012, when Miller' s CCOs obtained the UA, Miller had

repeatedly failed to contact a third party agency to obtain monitoring or a drug and alcohol

evaluation as          previously        ordered.    Accordingly, we reject Miller' s assertion that the DOC could

not perform a UA as part of random drug and alcohol monitoring.

E. INADMISSIBLE HEARSAY


         Miller argues that the ISRB violated WAC 381 -70 -400 when it found him guilty of using

illegal drugs based exclusively                 on    inadmissible       hearsay.     Miller is incorrect. The ISRB did not


rely on any inadmissible hearsay when finding him guilty. Thus, there was no violation of WAC

381 -70 -400.


         WAC 381 -70 -400                 provides    that "[     i]f the sole evidence to support the allegation is hearsay

that would be inadmissible in a superior court proceeding and is not substantiated or

corroborated,           the   board      shall not enter a        finding    of guilt."   Hearsay is a " statement, other than

one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth   of   the   matter asserted."           ER 801(      c).    Here, CCOs Nielson and Conrad testified about their


own actions and           first - and
                                h          observations, which are not            hearsay. The sole " hearsay" contained in

Nielsen'     s    and    Conrad'     s   testimony     was    Miller' s      statements.    And, Miller' s statements are not


hearsay      in   an action     in   which    he is   a   party. ER 801( d)( 2)( i) ( admission      by party- opponent is not




                                                                        11
No. 44691 -0 -II




hearsay). Because Nielson' s and Conrad' s testimony did not contain inadmissible hearsay, the

ISRB did not violate WAC 381 -70 -400.


F. SUFFICIENCY OF THE EVIDENCE


          Finally, Miller states that there was insufficient evidence to support the ISRB' s finding

that he used illegal drugs. At a parole revocation hearing, an alleged violation must be proven by

a preponderance of      the evidence.        RCW 9. 95. 125; WAC 381 -70- 160( 6). "         Preponderance of the


evidence means evidence          that   is   more   probably true than   not   true."   In re Welfare of Sego, 82

Wn.2d 736, 739       n.2,   513 P. 2d 831 ( 1973) (    citing Presnell v. Safeway Stores, Inc., 60 Wn.2d 671,

374 P. 2d 939 ( 1962)).        Here, both CCO Nielson and CCO Conrad testified that they observed

Miller'   s urine   sample    test   positive   for   methamphetamines    and     opiates.   Therefore, there was


sufficient evidence to support the ISRB' s finding that the allegations Miller used illegal drugs

was proven by a preponderance of the evidence.




                                                           12
No. 44691 -0 -II




        We deny Miller' s petition.

        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 records in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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