                                                                COURT OF APPEALS DIV 1
                                                                 STATE OF VIASHIrizTO:!
                                                                2011 FEB 21 All 6:15




     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



IN RE PERSONAL RESTRAINT OF                     No. 73872-1-1


                                                DIVISION ONE

MATTHEW RAY DOUGLAS SCHLEY,
                                                PUBLISHED OPINION

                    Petitioner.                 FILED: February 21, 2017

      SPEARMAN, J. — An offender facing revocation of a sentence imposed
pursuant to the drug offender sentencing alternative(DOSA) has a due process

right to have an alleged violation of a condition of the sentence proved by a

preponderance of the evidence. In this case, Matthew Schley's DOSA sentence

was revoked when the State proved by a preponderance of the evidence that he

had been terminated from the required substance abuse treatment program. But

the basis for the termination from the treatment program was a determination in a

prior proceeding that Schley had been involved in a fight, which was a violation of

program rules. That finding was proved using the "some evidence" standard

applicable to proceedings involving alleged infractions of prison rules. Though
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these very same facts established the basis for Schley's DOSA revocation they

were not proved by a preponderance of the evidence. We agree with Schley that

the failure to do so denied him due process and grant his personal restraint

petition.

                                      FACTS

       Matthew Schley pleaded guilty to first degree theft and second degree

burglary. The court imposed two concurrent DOSA sentences of 50 and 59.5

months, half to be served in prison and half in community custody. After the

sentence, Schley signed a "DOSA agreement" and a chemical dependency

treatment form. The DOSA agreement stated that Schley "may be

'administratively' terminated from the DOSA chemical dependency treatment

program"for "[a]ny major infraction that causes a change in custody level or the

violation of condition(s) outlined in the CD [chemical dependency]Treatment

Participation Requirements DOC 14-039. . . ." Br. of Appellant, App. at 23.

Chemical dependency treatment form DOG 14-039 notified Schley that "[t]he

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." Br. of Appellant, App. at 25 (formatting omitted).

       Schley entered the chemical dependency treatment program at the

Olympic Corrections Center on January 22, 2015. According to anonymous

reports, Schley taunted another prisoner in the treatment program by calling him

"Mr. DOSA." Br. of Appellant, App. at 27. After the other prisoner responded,

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Schley swung at him and missed. He grabbed the other prisoner's throat and

arm, and the two fought. Schley received minor injuries, including cuts, scrapes,

and red marks. He was charged with fighting and placed in segregation for 15

days.

        At his prison infraction hearing, Schley contended that there was no fight.

He supplied five witness statements corroborating that there was no fight. He

explained that the marks on his body were minor injuries from exiting his bunk.

Under the "some evidence" burden of proof, Schley was found guilty of fighting

based on confidential witness reports and physical marks on his body. The

disciplinary findings were affirmed on appeal.

        On February 10, 2015, Schley was administratively terminated from the

chemical dependency treatment program due to the fighting infraction. The

Department of Corrections (Department)then sought to revoke Schley's DOSA

because he had been terminated from chemical dependency treatment.

        At his DOSA revocation hearing, Schley again argued that no fight had

occurred. He also argued that to revoke his DOSA,the fighting offense must be

reevaluated under a preponderance of the evidence standard. The hearing

officer did not reevaluate the evidence of fighting. Schley's DOSA was revoked

because he had been terminated from the chemical dependency treatment

program. As a result, Schley had to serve the remainder of his sentence in




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custody.1 The DOSA revocation was affirmed by an appeals panel and the risk

management director.

        Schley filed a personal restraint petition to reinstate his DOSA sentence.

This court appointed counsel to submit additional briefing.

                                       DISCUSSION

Burden of Proof

        Schley argues that the Department violated his due process rights by

using facts proved by "some evidence" at his fighting infraction hearing to

establish a DOSA violation by a preponderance of the evidence.

       To obtain relief in a personal restraint petition, a petitioner must prove that

he is being restrained and that the restraint is unlawful. RAP 16.4(a). A

petitioner's restraint is unlawful if his sentence violates the United States or

Washington Constitution. RAP 16.4(c)(2).

       The legislature enacted the drug offender sentencing alternative to provide

a treatment-oriented alternative to the standard sentence. State v. Kane, 101

Wn. App. 607, 609, 5 P.3d 741 (2000). Under the DOSA program, an offender

serves less time in prison and more time in community custody while undergoing

substance abuse treatment. RCW 9.94A.660(5)(a),(b); State v. Grayson, 154

Wn.2d 333, 337-38, 111 P.3d 1183(2005). DOSA is conditioned on successful


         1 Schley's judgment and sentence states that Ty the defendant fails to complete the
Department's special drug offender sentencing alternative program or is administratively
terminated from the program, he/she shall be reclassified by the Department to serve the balance
of the unexpired term of sentence." Br. of Appellant, App. at 4.


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No. 73872-1-1/5

participation in chemical dependency treatment. An offender who fails to

complete or is administratively terminated from the program must serve the

unexpired term of his or her sentence in custody. RCW 9.94A.662(3). The

Department may revoke a DOSA for administrative termination from a substance

abuse treatment program. WAC 137-25-030. An offender will be terminated from

substance abuse treatment if he or she is found guilty of a fighting infraction

under WAG 137-25-030 505. In an infraction hearing, the Department reviews

allegations under a "some evidence" burden of proof. In re Pers. Restraint of

Grantham, 168 Wn.2d 204, 216, 227 P.3d 285 (2010). But a DOSA revocation

must be proved by a preponderance of the evidence. In re Pers. Restraint of

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

       In McKay, the offender was in a chemical dependency treatment program

while serving the prison-based portion of her DOSA sentence. She was charged

with two infractions. In a single hearing, the hearing examiner applied a "some

evidence" standard of proof, found McKay guilty of both infractions, and revoked

her DOSA. Id. at 167-68. This court found that "the serious nature of a

proceeding resulting in revocation of a DOSA sentence requires a

preponderance of the evidence standard of proof." Id. at 168.

       Here, the Department bifurcated Schley's hearings process, considering

the infraction at one hearing and the DOSA revocation at a later hearing. But the

inevitable result of a finding of guilt at Schley's infraction hearing was revocation

of his DOSA. First, Schley was found guilty of a fighting infraction based on a

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No. 73872-1-1/6

"some evidence" burden of proof. The inescapable result of that finding was

Schley's termination from his chemical dependency treatment program.

Termination from the chemical dependency treatment program led to a DOSA

revocation hearing at which revocation of Schley's DOSA sentence was the only

possible outcome. The hearing officer described the issue at the hearing:"What

was proven to me is that the program terminated you, and you being terminated,

that qualifies for a DOSA revocation." Verbatim Report of Proceedings at 37.

Thus, Schley's DOSA was revoked.

      The DOSA revocation hearing did not resolve any genuine issue of fact by

a preponderance of the evidence. The DOSA hearing officer limited her finding to

whether chemical dependency treatment was terminated. The essential fact for

DOSA revocation was resolved at the infraction hearing for fighting. Schley's

DOSA was functionally revoked once he was found guilty of fighting by "some

evidence" at the infraction hearing.

       Citing In re Personal Restraint of Gronquist, 138 Wn.2d 388, 978 P.2d

1083(1999), the Department argues that Schley's fighting infraction cannot be

reevaluated with a heightened burden of proof in his DOSA revocation hearing.

In Gronquist, an offender was found guilty of four "minor" infractions and was

subsequently charged with the "serious" infraction of collecting four minor

infractions. Id. at 390-91. The court held that Gronquist could not challenge prior

minor infractions in the serious infraction hearing. Id. at 403. But Gronquist is not
No. 73872-1-1/7

controlling because, here, Schley's liberty interest is significantly greater and,

thus, so too are the due process rights that attach to the proceeding.

       We determine what process is due in a particular situation by l examining

(1)the individual's liberty interest,(2)the value of the proposed procedural

safeguard to protect against erroneous deprivation of that interest, and (3)the

State's interest, including administrative and financial burdens of the proposed

procedure. In re Pers. Restraint of Bush, 164 Wn.2d 697, 705, 193 P.3d 103

(2008)(citing Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 L.

Ed. 2d 18 (1976)). In Gronquist, the liberty interest at stake in the hearing for the

serious infraction was 10 days' loss of good time and 5 days' segregation. A

prisoner has a liberty interest in earning good time credits such that minimum

due process rights attach. Gronquist, 138 Wn.2d at 397. Minimum due process

requires that the Department review allegations under a "some evidence" burden

of proof. Grantham, 168 Wn.2d at 216.

       By contrast, at stake at Schley's DOSA revocation hearing was the loss of

over two and one half years in the community. In addition, while Gronquist

enjoyed the possibility of earning back some or all of his lost good time credits,

the deprivation for Schley was irrevocable. Thus, Schley enjoys greater due

process protections, including a hearing structured to assure that the fighting

finding is based on verified facts and accurate knowledge. McKay, 127 Wn. App.

at 168-69 (citing Morrissey v. Brewer, 408 U.S. 471, 92S. Ct. 2593, 33 L. Ed. 2d

484(1972) and quoting In re Pers. Restraint of McNeal, 99 Wn. App. 617,628,

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No. 73872-1-1/8

994 P.2d 890(2000)). We conclude that due to the different liberty interests at

stake, revocation of Schley's DOSA sentence is subject to greater due process

protections than the prisoner was entitled to in Gronquist.

       An additional concern in Gronquist was the substantial administrative

burden and practical ability to rehear four general infractions occurring over a six-

month period for each of the many serious infraction hearings conducted by the

Department. Those concerns are not present in this case. Here, the Department

was well aware that once Schley was charged with the single incident of fighting,

the inexorable result, if he was found to have committed the infraction, would be

termination from the treatment program and revocation of his DOSA sentence.

Given the inevitability of this process, there is minimal additional burden on the

Department to apply the appropriate burden of proof at the initial infraction

hearing.

       We conclude that the Department violated Schley's due process rights by

using facts proved by "some evidence" at his infraction hearing to establish his

DOSA revocation by a preponderance of the evidence. While bifurcating the

infraction and DOSA revocation hearings appears to comply with our holding in

McKay, in fact it turns the DOSA revocation proceeding into a mere formality. At

that hearing, the Department bore the burden of proving by a preponderance of

the evidence a fact that was utterly indisputable: that Schley had been terminated

from treatment. It is a pretense to suggest that such a hearing provides the due

process protections that attach to the liberty interest at risk in a DOSA revocation

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No. 73872-1-1/9

proceeding. We hold that under McKay, proof of a fact that necessarily results in

revocation of a DOSA sentence must be by a preponderance of the evidence.

Right to Counsel

        Schley contends that the Department violated his due process rights by

failing to inform him, prior to the DOSA revocation hearing, that he could request

the appointment of counsel, and that the Department had a duty to determine on

a case-by-case basis whether the request should be granted. He argues that had

he been so informed, he would have requested counsel and that the request

should have been granted. In support of this argument, Schley relies on Grisby v.

Herzog, 190 Wn. App. 786, 362 P.3d 763(2015). In that case, we held that under

the due process clause of the United States Constitution, the Department has "a

clear duty to consider the right to counsel on a case-by-case basis in community

custody violation hearings ...."2 Id. at 811; U.S. CONST. amends. V, XIV,§ 1.

        The Department does not appear to dispute Schley's argument that under

Grisby, he had a right to be informed that he could request legal representation

at the hearing. The Department's primary argument appears to be that "because

Schley never requested counsel for the hearing, the Department was not

required to determine whether counsel should be appointed for Schley in the

hearing." Br. of Resp't at 14. We reject this argument because, as Schley points


          2 We note that at the time of his alleged violation, Grisby was serving the out of custody
portion of his DOSA sentence. However, neither party addresses whether this is a material
distinction from the circumstances here, where, at the time of his alleged violation, Schley was
still serving the in-custody portion of his sentence. Accordingly, we assume,for purposes of this
case, that the distinction is immaterial.


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No. 73872-1-1/10

out, we will not presume waiver of a constitutional right where the State cannot

show it was made knowingly, intelligently, and voluntarily. See e.o., Miranda v.

Arizona, 384 U.S. 436, 470-71, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Here,

the evidence is virtually indisputable that Schley was advised before the hearing

that he did not have the right to request counsel. The Department has not shown

that Schley knowingly waived that right.3

        The Department also argues that even if the notice was deficient, any

error was harmless because if Schley had requested counsel, the request would

have properly been denied. The Department contends that because the only

issue at Schley's revocation hearing was whether he had been terminated from

the treatment program, the issue was not sufficiently complex to warrant the

appointment of counsel.

        The Department is correct that as conducted below, the only issue was

whether Schley had been terminated from the treatment program. As we have


         3The Department's claim that the notice it gave to Schley was sufficient to apprise him of
the right to request counsel is meritless. The only notice Schley received on that issue was as
follows:

        You have the following rights:


        • To present your case to the Hearing Officer. ... However, no other
          person may represent you in presenting your case. There is no
          statutory right to an attorney or counsel and without prior written
          approval from the Hearings Program Administrator, no attorney will be
          permitted to represent you.

Br. of Appellant, App. at 31-32. The thrust of the notice, under any reasonable reading, is that in a
DOSA revocation hearing, neither an attorney nor any other persons are permitted to provide
assistance to an inmate. We reject the Department's argument that the notice may be read to
imply otherwise.

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No. 73872-1-1/11

discussed, the evidence supporting that allegation was irrefutable and the

presence of a lawyer, no matter how skillful, would have made no difference. But

Schley is entitled to a new revocation hearing at which the factual issues

underlying the fighting allegation will be determined under the proper standard of

proof. Those issues are more complex than the limited issue of whether Schley

was terminated from treatment.4

        Finally, we note that at oral argument, counsel for the Department

conceded that if this case was remanded for a new hearing, it would advise

Schley that he had a right to request counsel. In light of that concession, we

assume that the Department will do so. Then, if counsel is requested, the

Department must decide, in the first instance, whether an appointment is

warranted based on the issues presented at the new hearing. We need not and

do not decide that issue here.

Scope of the Department's Authority

        Schley argues that the Department exceeded its authority by imposing

three sanctions for a single incident of fighting. He contends that WAC 137-28-

350 authorizes the Department to impose only one sanction for multiple

violations arising out of a single incident. Schley counts three sanctions for

fighting: 15 days' segregation, termination from chemical dependency treatment,


         4 To the extent the Department relies on In re Personal Restraint of Price, 157 Wn. App.
889, 240 P.3d 188(2010), to suggest that an allegation of fighting is insufficiently complex to
warrant appointment of counsel, we note that the nature of the allegation is not the determinative
factor. The particular facts of each case must be taken into account.


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No. 73872-1-1/12

and DOSA revocation that caused additional incarceration. While precipitated by

fighting, each sanction arose out of a distinct incident: fighting, change in custody

status, and termination from chemical dependency treatment. We find that the

Department acted within its authority under WAC 137-28-350(2) because

Schley's sanctions arose from distinct incidents.

       Schley further argues that the Department's authority to revoke a DOSA

under RCW 9.94A.662(3) does not give it the discretion to revoke a DOSA for

conduct that is unrelated to chemical dependency. The Department must

exercise delegated authority under the restraints of the statutes delegating the

authority. State v. Brown, 142 Wn.2d 57, 62, 11 P.3d 818(2000). The

Department may revoke a DOSA if an offender "fails to complete the program or

is administratively terminated from the program . . ." RCW 9.94A.662(3). The

grounds for administrative termination are not defined, but the Department has a

broad grant of authority to administer its prisons. This includes a system that

rewards good behavior with "increases or decreases in the degree of liberty

granted the inmate within the programs operated by the department.         ." RCW

72.09.130(1). The Department has authority to manage participation in chemical

dependency treatment with rules about prisoner behavior. This authority is

encompassed by the legislature's grant of authority for the Department to

"administratively terminate[ ]1" a prisoner from DOSA. We conclude that the

Department did not exceed its statutory authority to administratively terminate

Schley from chemical dependency treatment and thereby revoke his, DOSA.

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      We grant Schley's personal restraint petition. On remand, Schley is

entitled to a new DOSA violation hearing at which the Department shall apply a

preponderance of the evidence standard to the fighting allegation.

      Remanded.




WE CONCUR:




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