                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      November 3, 2015
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    IN RE THE PERSONAL RESTRAINT OF                                No. 45716-4-II

    JON ANDREW STEVENS,

                         Petitioner.

                                                              PUBLISHED OPINION



         SUTTON, J. — In this personal restraint petition (PRP), Jon Andrew Stevens asks us to

review the Department of Correction’s (DOC) denial of his request for earned early release credit

under RCW 9.94A.729(1)(a)1 for the time he served in an Idaho prison while his Washington

sentence ran concurrently with an Idaho sentence. The DOC’s asserted justification for denying

Stevens’s request is that he served his concurrent Washington sentence in Idaho pursuant to the

Interstate Agreement on Detainers (IAD).2 In contrast, the DOC awards earned early release credit

to inmates who serve Washington sentences out of state when he or she is transferred to that state




1
 RCW 9.94A.729 (1)(a) provides,
               The term of the sentence of an offender committed to a correctional facility
       operated by the [DOC] may be reduced by earned release time in accordance with
       procedures that shall be developed and adopted by the correctional agency having
       jurisdiction in which the offender is confined. The earned release time shall be for
       good behavior and good performance, as determined by the correctional agency
       having jurisdiction.
We refer to earned release time under RCW 9.94A.729(1)(a) as “earned early release credits” or
“good time credit.”
2
    Chapter 9.100 RCW.
No. 45716-4-II


under the Interstate Corrections Compact (ICC).3 Stevens argues that the DOC’s different

treatment of him violated his right to equal protection.

         Although Stevens has been released from the DOC’s custody and his case is moot, we

address the merits of Stevens’s PRP as a matter of continuing and substantial public interest. We

adopt the reasoning of Division Three of our Court of Appeals in In re Pers. Restraint of Salinas,

130 Wn. App. 772, 124 P.3d 665 (2005), and hold that the DOC violated Stevens’s right to equal

protection. We are not holding that the DOC must award earned early release credit to inmates

like Stevens regardless of the inmate’s behavior while serving time in an out-of-state prison.

Rather, the DOC must have at least requested the information from Idaho’s Department of

Corrections, evaluated that information, and applied it appropriately to Stevens’s award of earned

early release under RCW 9.94A.729(1)(a). By failing to request information from Idaho’s

Department of Corrections, the DOC violated Stevens’s right to equal protection. Therefore we

grant Stevens’s PRP, but we are restrained from ordering a remedy for Stevens’s petition because

he has already been released from the DOC’s custody.

                                              FACTS

         Stevens committed several identity theft crimes in Pierce County in January and February

2009. On March 30, 2011, Stevens entered Idaho custody to serve a sentence in that state. While

in Idaho’s custody, Stevens exercised his right pursuant to the IAD to be transferred to Pierce

County to resolve his outstanding charges in this state.




3
    Chapter 72.74 RCW.

                                                 2
No. 45716-4-II


         Stevens was transferred to the Pierce County jail on November 4, 2011, pursuant to the

IAD, and he pleaded guilty on March 12, 2012, to his Pierce County crimes. The trial court

sentenced Stevens to 63 months in prison and ordered that Stevens’s Washington sentence be

served concurrently with his Idaho sentence. The trial court vacated the commitment warrant

pursuant to the IAD and ordered the DOC to return Stevens back to Idaho’s custody to serve the

remainder of his Idaho sentence while his Washington sentence ran concurrently. Idaho paroled

Stevens and his Idaho sentence ended in April 2013. Stevens then spent another four days in the

Pierce County jail before being transferred to the DOC’s custody on May 3 to serve the remainder

of his Washington sentence.

         On September 30, 2013, Stevens filed a “Motion for Order of Good Time Credits” asking

the trial court to order the DOC to credit his Washington sentence with earned early release credit

from the time his Washington sentence ran concurrently while he was in Idaho’s custody.4 Stevens

had asked the DOC to give him such credit, but the DOC records manager replied that because the

Idaho Department of Corrections does not have an earned early release system, the DOC would

not apply any earned early release credits to his Washington sentence. The superior court ordered

that Stevens’s motion be transferred to this court as a PRP.5




4
  Stevens asked the trial court to order “which ever agency is appropriate” (the Pierce County Jail
or the DOC) to award him earned early release credit for the time he served in Idaho while his
Washington sentence ran concurrently with his Idaho sentence. Clerks Papers (CP) at 32. It is
clear to us that the Pierce County Jail had no role to play in this action and we do not address the
portion of Stevens’s petition directed at that agency.
5
    CrR 7.8(c)(2).

                                                 3
No. 45716-4-II


                                             ANALYSIS

                                   I. OPERATION OF IAD AND ICC

        The DOC’s asserted justification for denying Stevens’s request for good time credit is

based upon the differences between the operation and purposes of the IAD and the ICC. Thus, it

is necessary to first briefly explain each statute.

        The IAD sets out procedures to transfer an inmate who is incarcerated in one state to the

temporary custody of another state to resolve pending charges against the inmate in that second

state. State v. Welker, 127 Wn. App. 222, 226-27, 110 P.3d 1167 (2005), aff’d, 157 Wn.2d 557.

Forty-eight states, the District of Columbia, and the federal government are parties to the IAD, and

its purpose is to encourage states to dispose of untried charges expeditiously so that the inmate’s

rehabilitation is not hampered. Welker, 127 Wn. App. at 226-27.

        Under the IAD, either the inmate or an entity in the state with the pending charges, here

Washington, may initiate IAD procedures to resolve the inmate’s untried charges in that state.

RCW 9.100.010, art. III. The state with the pending charges files a request for temporary custody

of the inmate or the inmate may initiate the process; the state where the inmate is presently

incarcerated for a conviction in that state (in this case Idaho) must then deliver the inmate for

temporary custody to the state with the pending charges. RCW 9.100.010, arts. IV, V. Once the

pending charges are resolved, the state holding the inmate for temporary custody must return him

or her as soon as practicable to the state where the inmate is presently incarcerated.

RCW 9.100.010, art. V(e). While in the temporary custody of the state with the pending charges,

the inmate is deemed to remain in the custody of and subject to the jurisdiction of the state where

the inmate’s existing sentence is currently running (here Idaho). RCW 9.100.010, art. V(g). But


                                                      4
No. 45716-4-II


while the inmate is in the temporary custody of the state with the pending charges, he or she will

accrue earned early release credit to the extent allowed by that state. RCW 9.100.010, art. V(f).

The IAD is silent as to information sharing about the inmate between the two states during the

IAD procedures.

        In contrast to the IAD, states that are parties to the ICC make contracts with each other for

“the confinement . . . of offenders” to “fully utilize” and improve each state’s institutional facilities.

RCW 72.74.020(1), (3)(a). The purpose of the ICC is to provide a process to transfer inmates

between states “to provide for the mutual development and execution of such programs of

cooperation for the confinement, treatment, and rehabilitation of offenders with the most

economical use of human and material resources.” RCW 72.74.020(1). Under the ICC, the state

in which the inmate was convicted and serving a sentence transfers the inmate to another state to

serve his or her sentence, but the transferring state retains jurisdiction over the inmate at all times.

RCW 72.74.020(4)(c). Unlike the IAD, when serving his or her sentence in another state pursuant

to the ICC, the inmate is not necessarily serving a concurrent sentence of multiple convictions

from different states. Notably, the state to which the inmate is transferred must provide the state

in which the inmate was convicted with “regular reports . . . on the inmate[’]s . . . conduct record.”

RCW 72.74.020(4)(d). An inmate confined out of state pursuant to the ICC retains the same legal

rights as if the inmate had remained in the custody of the state that convicted him or her.

RCW 72.74.020(4)(e), (h).




                                                    5
No. 45716-4-II


                 II. MATTER OF CONTINUING AND SUBSTANTIAL PUBLIC INTEREST

        As a threshold matter, the DOC argues that we should dismiss this case because it is moot.

We agree that Stevens’s case is moot, but we nevertheless review the merits of his petition because

the issue raised is a matter of continuing and substantial public interest.

        An issue is moot if a court can no longer provide effective relief. In re Pers. Restraint of

Mines, 146 Wn.2d 279, 283, 45 P.3d 535 (2002). We may reach the merits of a “technically moot”

issue, however, if it involves a matter of continuing and substantial public interest. State v. Hunley,

175 Wn.2d 901, 907, 287 P.3d 584 (2012). We decide whether an issue involves a matter of

continuing and substantial public interest according to three factors: (1) the public or private nature

of the issue, (2) the need for a judicial decision to guide public officers in future cases, and (3) the

issue’s likelihood of reoccurrence. Hunley, 175 Wn.2d at 907.

        Here, Stevens is no longer under restraint because he has already completed his

Washington sentence and is no longer in the DOC’s custody. Therefore, we can no longer provide

relief to Stevens. But the issue Stevens presents in his PRP is a matter of continuing and substantial

public interest because it is likely to reoccur any time an inmate is brought to Washington to

dispose of unresolved charges and then returned to an out-of-state prison to serve the Washington

sentence concurrently with that other state’s sentence. Thus, to protect those inmates’ equal

protection rights, the DOC needs direction when it decides whether to award those inmates earned

early release credit for prison time served in an out-of-state prison. Therefore, we address the

merits of Stevens’s PRP even though he is no longer under restraint.




                                                   6
No. 45716-4-II


                           III. STEVENS’S RIGHT TO EQUAL PROTECTION

       Stevens argues that the DOC’s denial of his request for earned early release credit based

upon its different treatment of IAD and ICC inmates is not supported by any rational basis and

therefore violated his right to equal protection. We agree.

A. LEGAL PRINCIPLES

       Under RAP 16.4, we may grant a petitioner relief where direct review is unavailable if the

petitioner can show he or she is under unlawful restraint by showing a constitutional or state law

violation. RAP 16.4(c)(2), (6). Here, Stevens claims that the DOC violated his constitutional right

to equal protection. Ordinarily 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). Where a petitioner did not have an

opportunity to seek direct judicial review of a claimed error, however, we do not apply the usual

heightened threshold requirements that apply to our review of a PRP. Isadore, 151 Wn.2d at 299.6

Instead, the petitioner need only show that he or she is under unlawful restraint under RAP 16.4(b)

and RAP 16.4(c). Isadore, 151 Wn.2d at 299.

       The equal protection clauses of the United States Constitution and article 1, section 12 of

the Washington State Constitution guarantee similarly situated persons “like treatment” under the



6
  The DOC argues that, because Stevens challenges his earned early release calculation, he must
prove that the DOC’s actions “were so arbitrary and capricious as to deny [Stevens] a
fundamentally fair proceeding so as to work to the offender’s prejudice.” Br. of Resp’t DOC at 5.
The DOC misapprehends the law. The arbitrary and capricious rule applies to the process of prison
disciplinary proceedings. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 215, 227 P.3d 285
(2010). Because this case does not involve a prison disciplinary proceeding and Stevens has not
had the opportunity to seek direct judicial review of this claimed constitutional error, we evaluate
his claim under RAP 16.4(b), (c).

                                                  7
No. 45716-4-II


law. Salinas, 130 Wn. App. at 777. If a classification impacts a fundamental right or a suspect

class, we apply the strict scrutiny standard to determine if the equal protection clause has been

violated. Harris v. Charles, 171 Wn.2d 455, 462, 256 P.3d 328 (2011). If a classification impacts

a semi-suspect class, we use the intermediate scrutiny standard. Harris, 171 Wn.2d at 462. In all

other classifications, we use the rational basis test. Harris, 171 Wn.2d at 462. We will uphold

legislation under the rational basis test unless it is irrelevant to any legitimate state objectives.

Salinas, 130 Wn. App. at 777. The DOC’s classification of inmates in this case does not affect a

fundamental right nor does it involve a member of a suspect or semi-suspect class to warrant strict

or intermediate scrutiny. Thus, we apply the rational basis test. Salinas, 130 Wn. App. at 777.

       A state may treat similarly situated groups of people differently under the rational basis

test if (1) the state’s action applies alike to all members of the group in question, (2) reasonable

grounds exist to distinguish between people within and without the group, and (3) the state’s

different treatment is relevant and connected to a legitimate government purpose. Schatz v. Dept.

of Soc. & Health Servs., 178 Wn. App. 16, 24, 314 P.3d 406 (2013), review denied, 180 Wn.2d

1013 (2014). The party asserting unconstitutional discrimination must show that the state’s

differing treatment is purely arbitrary. Schatz, 178 Wn. App. at 24.

B. STEVENS IS SIMILARLY SITUATED        TO THE INMATES TO     WHOM     THE   DOC AWARDS EARNED
EARLY RELEASE CREDIT

       The DOC justifies its denial of Stevens’s request for earned early release credit for the time

his Washington sentence ran concurrently while confined in Idaho because (1) he resolved his

Washington charges pursuant to the IAD, (2) the DOC did not have control of or jurisdiction over




                                                 8
No. 45716-4-II


Stevens while he was confined in Idaho, and (3) Idaho uses a parole system, not an earned early

release credit system. The DOC argues that for these reasons Stevens is not similarly situated to

inmates to whom it will award earned early release credit for a Washington sentence served in an

out-of-state prison.

       The DOC creates two different classes of inmates to whom it will award earned early

release for Washington sentences served out of state if the inmate’s behavior so deserves:

(1) those who serve a concurrent sentence pursuant to the IAD in an out-of-state prison that itself

awards earned early release credit and (2) those who serve a Washington sentence in an out-of-

state prison pursuant to the ICC, regardless of whether that state awards earned early release credit.

Salinas, 130 Wn. App. at 776. The DOC carves out a single exception to awarding earned early

release credit for inmates who serve a Washington sentence out of state: inmates who serve a

concurrent Washington sentence pursuant to the IAD in a state that does not award earned early

release credit. Salinas, 130 Wn. App. at 777. The DOC argues that this third group of inmates,

those like Stevens, are not similarly situated to the first two groups of inmates because the ICC

requires the out-of-state prison to send the DOC reports on the inmates’ behavior while the

IAD does not. Thus, the DOC argues, it has no “jurisdiction” over inmates like Stevens. Br. of

Resp’t DOC at 12.

       Stevens served a portion of his Washington sentence in the custody of Idaho, a state that

does not use the earned early release credit system. Stevens is similarly situated to inmates who

serve a Washington sentence in an out-of-state prison pursuant to the ICC inmates and inmates

who serve Washington sentences pursuant to the IAD in a state that uses the earned early release

system. All three groups of inmates experience the same situation regardless of which inmate


                                                  9
No. 45716-4-II


transfer statute (the IAD or ICC) applies to them—all of them commit a crime in Washington, are

convicted and sentenced in a Washington court, and serve all or a portion of that Washington

sentence in another state. They are also alike with respect to the purpose of the earned early release

credit statute—to encourage an inmate’s good behavior while serving a Washington sentence to

preserve the public peace, health, and safety. RCW 9.94A.729(1)(a); In re Pers. Restraint of Silas,

135 Wn. App. 564, 571, 145 P.3d 1219 (2006).

C. THE DOC’S DIFFERENT TREATMENT OF STEVENS IS NOT RATIONALLY RELATED TO A
LEGITIMATE STATE INTEREST

       We next turn to whether the DOC’s denial of Stevens’s request for earned early release

credit is rationally related to a legitimate government purpose.7 Stevens argues that Division Three

of our Court of Appeals, in Salinas, has already answered this question in the negative.8 We agree

with Stevens and hold that no rational basis supports the DOC’s denial of Stevens’s request for




7
  The parties disagree on whether Stevens’s claim is subject to the four-factor Turner v. Safley test
for determining whether a prison regulation that constrains an inmate’s constitutional rights
satisfies the rational basis test. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987). But we do not apply Turner reflexively whenever a case involves an inmate challenging
a prison regulation. McNabb v. Dep’t of Corr., 163 Wn.2d 393, 404-405, 180 P.3d 1257 (2008).
Turner applies only when we decide a facial constitutional challenge to a prison regulation.
McNabb, 163 Wn.2d at 404 (adopting judicial deference to prison administrative decisions as a
factor in considering the petitioner’s as-applied constitutional challenge to forced artificial
nutrition). Stevens’s PRP challenges the constitutionality of the DOC’s rule as applied to him.
The Turner test is thus inapplicable.
8
  The DOC asks us not to follow Salinas and cites approvingly In re Pers. Restraint of Williams,
121 Wn.2d 655, 660-61, 853 P.2d 444 (1993) and In re Pers. Restraint of Fogle, 128 Wn.2d 56,
904 P.2d 722 (1995). Salinas has already distinguished these cases. See Salinas, 130 Wn. App.
at 780-81.

                                                 10
No. 45716-4-II


earned early release credit based solely on his transfer pursuant to the IAD and Idaho’s use of the

parole system.9

       The facts of Salinas are identical to the facts of this case. Salinas was incarcerated in South

Dakota when he was transferred to Washington to enter a guilty plea and be sentenced for a crime

he committed in this state. Salinas, 130 Wn. App. at 774. After sentencing in Washington, he was

returned to South Dakota to complete his South Dakota sentence while serving his Washington

sentence concurrently. Salinas, 130 Wn. App. at 774. South Dakota did not have an earned early

release credit system, but it mandated that the prison keep “‘a true record of the conduct of each

inmate specifying in the record each infraction of the rules of discipline.’” Salinas, 130 Wn. App.

at 774-75 (quoting S.D. Codified Laws § 24-15A-5). South Dakota paroled Salinas, which

Division Three of this court concluded must have meant that his conduct was satisfactory. Salinas,

130 Wn. App. at 776. The DOC rejected Salinas’s request to give him earned early release credit

for his time in South Dakota, arguing in part that it could not do so because it did not have control

or jurisdiction over him to know what his behavior was in South Dakota. Salinas, 130 Wn. App.

at 779-80.

       The Salinas court held that the DOC’s denial of Salinas’s request for earned early release

credit based upon the fact that South Dakota did not use the earned early release credit system

failed the rational basis test. Salinas, 130 Wn. App. at 780. Even though South Dakota had no



9
 The DOC argues that because it did not act with invidious discrimination it did not discriminate
against Stevens. The DOC misapprehends the law. A defendant need only prove that he or she
was treated differently because of membership in a particular group, “i.e., that there was intentional
or purposeful discrimination.” State v. Handley, 115 Wn.2d 275, 290-91, 796 P.2d 1266 (1990).
Here, the DOC’s decision to treat Stevens differently was purposeful and intentional because its
disparate treatment of Stevens was because of his membership in a particular group.

                                                 11
No. 45716-4-II


“obvious, and maybe no easy, method to quantify” Salinas’s good behavior because it did not use

the earned early release credit system, the Salinas court rejected the DOC’s argument that

administrative inconvenience justified its disparate treatment, which is the same logic the DOC

uses here. Salinas, 130 Wn. App. at 778. “[I]t is hard for us to accept administrative inconvenience

as a rational basis for discriminating against this inmate since programs like the [ICC] present the

same administrative inconvenience. And yet credit for earned early release is allowed there.”

Salinas, 130 Wn. App. at 778. The Salinas court thus disposed of the DOC’s control and

jurisdiction argument, concluding that the DOC could award Salinas earned early release credit

because it awards earned early release credit to ICC inmates who serve a Washington sentence in

a state that does not use the earned early release system. Salinas, 130 Wn. App. at 780.

       The DOC argues that although a state housing an inmate serving a Washington sentence

under the ICC must transmit to the DOC “regular reports” on the inmate’s conduct, a state housing

an inmate under the IAD is not required to transmit to the DOC any reports on the inmate’s

conduct, and thus records on Stevens’s conduct while in Idaho do not exist. Br. of Resp’t DOC

at 11. But the DOC concedes that it awards earned early release credit to inmates transferred to

an out-of-state prison under the ICC regardless of whether the state housing the inmate uses the

earned early release credit system. Wash. Court of Appeals oral argument, In re Pers. Restraint

of Stevens, No. 45716-4-II (May 18, 2015), at 26 min., 18 sec. to 26 min., 45 sec. (on file with

court). And the DOC also concedes that it will apply earned early release credit to an inmate’s

sentence if the concurrent sentence is served pursuant to the IAD in an out-of-state prison that

itself uses the earned early release system. Wash. Court of Appeals oral argument, supra,

at 20 min., 04 sec. to 20 min., 17 sec. The DOC maintains that Idaho did not have conduct reports


                                                12
No. 45716-4-II


on Stevens’s conduct while he was confined there, but the DOC concedes that it never inquired

with Idaho to verify that assertion. Wash. Court of Appeals oral argument, supra, at 33 min.,

28 sec. to 33 min., 52 sec. The DOC’s justifications for its different treatment of Stevens amounts

to administrative inconvenience and the Salinas court already rejected the same logic by the DOC.

       We agree with Salinas that administrative inconvenience is not a rational basis for treating

an inmate under the ICC differently from an inmate under the IAD. “[P]rograms like the [ICC]

present the same administrative inconvenience. And yet credit for earned early release is allowed

there. Inmates who serve their Washington sentences in an out-of-state institution pursuant to the

[ICC] receive sentence reduction credit—whether or not the out-of-state institution affords inmates

earned early release time.” Salinas, 130 Wn. App at 778.

       The DOC also asserts that its interest in maintaining a safe and secure prison environment

justifies treating Stevens differently. Maintaining prison safety and order are “essential goals” that

may limit prisoners’ constitutional rights. Bell v. Wolfish, 441 U.S. 520, 521, 99 S. Ct. 1861,

60 L. Ed. 2d 447 (1979). But under Salinas’s reasoning, the DOC’s interest in maintaining a safe

prison environment is not rationally related to denying Stevens earned early release credit for three

reasons.

       First, the DOC’s assertions that it could not have obtained records from Idaho because no

records exist is not an accurate reflection of Idaho law. Idaho requires the State Board of

Correction to “secure all pertinent available information regarding each prisoner, including . . . his

conduct, employment[,] and attitude in prison.” Idaho Code Ann. § 20-224(1) (emphasis added).

Thus, Idaho must have a system for its parole board to track inmates’ behavior in its prisons. Yet,

at oral argument, the DOC conceded that it had not asked Idaho for Stevens’s conduct records and


                                                 13
No. 45716-4-II


did not know if any records on Stevens’s conduct existed. Wash. Court of Appeals oral argument,

supra, at 33 min., 28 sec. to 33 min., 52 sec.

       Second, the DOC claims that it does not have a reliable system to award earned early

release credit for inmates like Stevens because the DOC does not have adequate communication

with the other state’s corrections facility about the inmate’s behavior. This argument amounts to

the same “administrative inconvenience” justification that our Court of Appeals has already

rejected. Salinas, 130 Wn. App. at 778. Like the Salinas court, we do not agree with the DOC’s

arguments that merely seeking conduct information from out-of-state prisons for inmates like

Stevens is prohibitively difficult or impossible because it already does so pursuant to the ICC.

       Lastly, the DOC presents no evidence that prison safety is compromised when it asks for

conduct records from another state for inmates who served a Washington sentence in that state.

Contrary to the DOC’s apparent concern, Stevens is not asking, and we are not holding, that the

DOC must award earned early release credit to inmates like Stevens regardless of the inmate’s

behavior while serving time in an out-of-state prison. Rather, the DOC must have at least requested

the information from Idaho’s Department of Corrections, evaluated that information, and applied

it appropriately to Stevens’s award of earned early release under RCW 9.94A.729(1)(a). The DOC

does not explain how asking for and evaluating this information would compromise prison safety.

                                          CONCLUSION

       We hold Stevens’s case is moot, but we address this issue as a matter of continuing and

substantial public interest, and we further hold that the DOC violated Stevens’s right to equal

protection when it denied him earned early release credit for the time he served his Washington

sentence in Idaho. We are not holding that the DOC must award earned early release credit to


                                                 14
No. 45716-4-II


inmates like Stevens regardless of the inmate’s behavior while serving time in an out-of-state

prison. Rather, the DOC must have at least requested the information from Idaho’s Department

of Corrections, evaluated that information, and applied it appropriately to Stevens’s award of

earned early release under RCW 9.94A.729(1)(a). Therefore, we grant Stevens’s PRP, but we are

restrained from ordering a remedy for Stevens’s petition because he has already been released from

the DOC’s custody.



                                                    SUTTON, J.
 We concur:



JOHANSON, C.J.




BJORGEN, J.




                                               15
