                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         January 29, 2019

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II
    In re the Personal Restraint Petition of:                       No. 50055-8-II

    ANTHONY RYAN PUGH,

                                   Petitioner.

                                                                PUBLISHED OPINION



          MELNICK, J. — Anthony Ryan Pugh seeks relief from personal restraint imposed following

his 1995 convictions for kidnapping in the first degree, robbery in the first degree, conspiracy to

commit kidnapping in the first degree, conspiracy to commit robbery in the first degree, and

conspiracy to commit murder in the first degree. Pugh committed these offenses while he was a

juvenile.

          Under RCW 9.94A.730(3), the Miller1 fix statute, a juvenile offender who commits a

crime, other than aggravated murder in the first degree, may petition the Indeterminate Sentencing

Review Board (ISRB) for release after serving 20 years of confinement. The ISRB is required to

release the individual unless it determines, by a preponderance of the evidence, that the individual

is more likely than not to commit new criminal law violations if released. RCW 9.94A.730(3).

          In 2015, Pugh requested release under RCW 9.94A.730(3). The ISRB found Pugh was not

likely to commit a crime if released, but delayed his release for 18 months so certain conditions

could be met. In 2017, the ISRB found Pugh did not meet the conditions imposed and found him


1
    Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
50055-8-II


more likely than not to commit criminal law violations if released. Pugh filed this personal

restraint petition (PRP), arguing that under RCW 9.94A.730(3), the ISRB was not permitted to

impose pre-release conditions in 2015 after finding that Pugh was unlikely to reoffend. Pugh

further argues the ISRB abused its discretion by not releasing him in 2015 and by finding him

likely to reoffend in 2017.

       We conclude that the ISRB lacked authority in 2015 to impose pre-release conditions and

delay Pugh’s release by 18 months after its finding that Pugh was not likely to reoffend. But

because the ISRB made a subsequent finding that Pugh was likely to commit new criminal

violations, we deny his PRP.

                                              FACTS

       In 1995, a jury convicted Pugh of kidnapping in the first degree, robbery in the first degree,

conspiracy to commit kidnapping in the first degree, conspiracy to commit robbery in the first

degree, and conspiracy to commit murder in the first degree. The sentencing court imposed 352.25

months. We affirmed Pugh’s convictions and sentence in an unpublished opinion. State v. Pugh,

noted at 87 Wn. App. 1053 (1997).

       In 2014, Pugh petitioned the ISRB for early release under RCW 9.94A.730(3). In July

2015, the ISRB entered its written decision. The ISRB stated that it was making a “Deferred

Decision,” but then found:

       Based on the burden of proof set out in RCW 9.94A.730(3) and the totality of
       evidence and information provided to the Board, the Board does not find by a
       preponderance of the evidence that Mr. Pugh is more likely than not to commit any
       new criminal law violations if released on conditions.

Supp. Br. of Resp’t at Ex. 2, at 1. The ISRB then deferred Pugh’s release for 18 months

conditioned upon “satisfactory completion of a transition through lower levels of custody that

preferably includes a period of time in work release.” Supp. Br. of Resp’t at Ex. 2, at 1. The ISRB


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50055-8-II


set Pugh’s release date as February 28, 2017, but stated that his “actual release date is contingent

upon the approval of the Offender Release Plan and any mandatory Law Enforcement

Notification.” Supp. Br. of Resp’t at Ex. 2, at 1.

        Soon after the ISRB’s decision, Pugh missed two college readiness classes. When Pugh

did attend class, he was argumentative and angry.

        Pugh transferred to Larch Corrections Center (LCC), a minimum security facility. While

at LCC, Pugh had several behavior management incidents. He was angry and disrespectful

towards his instructors. During one class, Pugh became “angry (red face, veins popping out of his

arms and forehead, balled fists, piercing eyes) stating ‘[t]his is all your fault! You caused this!

You are negative and I came to this class wanting to participate. I don’t even like you.’” Supp.

Br. of Resp’t at Ex. 5, at 3.

        In another occurrence, Pugh was asked by one of his instructors how his business class was

going. Pugh responded, “I will give you 100% Monday and Wednesday in class other than that

do not talk to me.”

        In June 2016, the ISRB received information that Pugh committed two infractions while at

LCC: strong-arming/intimidation and discriminatory harassment. Pugh was transferred to a

hospital for a mental health evaluation. Pugh’s release plan was suspended. The two infractions

were later dropped.

        In January 2017, the ISRB conducted another release hearing. The ISRB considered

Pugh’s ISRB file, the most recent Department of Corrections (DOC) plan, information regarding

institutional behavior and programing, letters directed to the ISRB at the presentence investigation,

and a psychological evaluation completed in April 2015. The ISRB also heard from Pugh, who

stated that it was difficult transferring to LCC where he did not know anyone and he



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50055-8-II


“underestimated the amount of stress and worry that [he] was going to be going though.” Report

of Proceedings (RP) at 76. The ISRB found that Pugh “is more likely than not to commit a new

crime if released” and denied his petition for early release.2 Supp. Br. of Resp’t at Ex. 4, at 6.

Pugh filed this PRP.

                                            ANALYSIS

         Pugh contends he was unlawfully restrained in 2015 because the ISRB failed to release

him after finding he was not likely to commit a crime if released. We agree.

A.       STANDARD OF REVIEW

         A petitioner who challenges a decision from which he has had no previous or alternative

avenue for obtaining state judicial review must show he is under restraint unlawfully under the

provisions of RAP 16.4(c). In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 149, 866 P.2d 8

(1994). Under RAP 16.4, Pugh may show either a constitutional or a state law violation to obtain

relief. RAP 16.4(c)(2), (6). Interpretation of a statute is a question of law that we review de novo.

State v. Scott, 190 Wn.2d 586, 591, 416 P.3d 1182 (2018).

B.       RCW 9.94.730–THE MILLER FIX STATUTE

         While Pugh has been incarcerated the law of juvenile sentencing has changed dramatically.

In 2012, the United States Supreme Court decided Miller, 567 U.S. at 465, which held that a

sentence imposed on a juvenile of mandatory life without parole violates the prohibition on cruel

and unusual punishment under the Eighth Amendment to the United States Constitution.

Following Miller, our legislature passed an act to allow inmates who are serving sentences for

crimes committed as a juvenile to petition for early release after serving 20 years. SEE LAWS OF

2014, ch. 130, § 10 (codified at RCW 9.94A.730).


2
    Pugh’s current earned release date is February 2020.


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50055-8-II


       Once an offender petitions for release, the ISRB is then required to conduct “an

examination of the person, incorporating methodologies that are recognized by experts in the

prediction of dangerousness, and including a prediction of the probability that the person will

engage in future criminal behavior if released on conditions to be set by the board.” RCW

9.94A.730(3). The ISRB “shall order the person released under such affirmative and other

conditions[3] as the board determines appropriate, unless the board determines by a preponderance

of the evidence that, despite such conditions, it is more likely than not that the person will commit

new criminal law violations if released.” RCW 9.94A.730(3). In short, RCW 9.94A.730 “provides

a specific right to petition and a presumption of early release, and imposes a standard for the ISRB

to apply.” Scott, 190 Wn.2d at 600-01.

C.     LEGISLATIVE INTENT

       Our first priority in statutory interpretation is to ascertain the legislative intent. State v.

Larson, 184 Wn.2d 843, 848, 365 P.3d 740 (2015). We first examine the plain language of the

statute “as ‘[t]he surest indication of legislative intent.’” Larson, 184 Wn.2d at 848(quoting State

v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010)). To interpret a statute’s plain language, we

examine the text of the statute, “as well as ‘the context of the statute in which that provision is

found, related provisions, and the statutory scheme as a whole.’” Ervin, 169 Wn.2d at 820 (quoting

State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005)). We may not interpret a statute in a

way that renders a portion of the statute meaningless or superfluous. State v. K.L.B., 180 Wn.2d

735, 742, 328 P.3d 886 (2014).



3
  The term “such affirmative and other conditions” relates to the statute’s prior sentence, which
requires DOC to conduct an examination of the juvenile offender and assess whether “the person
will engage in future criminal behavior if released on conditions to be set by the board.” RCW
9.94A.730(3).


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50055-8-II


       Under the plain meaning of RCW 9.94A.730(3), the ISRB is required to release a juvenile

offender unless it finds he is likely to reoffend. In 2015, Pugh petitioned for release after serving

20 years. Following a hearing, the ISRB “[did] not find” by a preponderance of the evidence that

Pugh was likely to commit any new criminal law violation. Supp. Br. of Resp’t at Ex. 2, at 1.

While the ISRB stated it was a “Deferred Decision,” the ISRB still made a finding following the

hearing that triggered the requirement of release. Supp. Br. of Resp’t at Ex. 2, at 1. Thus, based

on the plain language of RCW 9.94A.730(3), the ISRB was required to release Pugh in 2015 after

making the finding he was not likely to reoffend. “[W]e construe statutes assuming that the

legislature meant exactly what it said.” Umpqua Bank v. Shasta Apartments, LLC, 194 Wn. App.

685, 694, 378 P.3d 585, review denied, 186 Wn.2d 1026 (2016).

D.     PUBLIC SAFETY CONSIDERATIONS AND PREPARING OFFENDERS FOR RELEASE

       RCW 9.94A.730(3) states that the ISRB “shall give public safety considerations the highest

priority when making all discretionary decisions regarding the ability for release and conditions of

release.” The ISRB argues that conditioning Pugh’s release on a successful “step-down” approach

balances the ISRB’s responsibility to prepare him for release and to promote public safety. Supp.

Br. of Resp’t at 14.

       In drafting the Miller fix statute, our legislature contemplated an offender’s need to prepare

for release. Under RCW 9.94A.730(2), the DOC “shall conduct an assessment of the offender and

identify programming and services that would be appropriate to prepare the offender for return to

the community. To the extent possible, the [DOC] shall make programming available as identified

by the assessment.” This is to occur “[n]o later than five years prior to the date the offender will

be eligible to petition for release.” RCW 9.94A.730(2). In Pugh’s case, there was no time for the

assessment between the time period when the Miller fix statute went into effect and Pugh’s petition



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50055-8-II


for release. But the ISRB could have determined Pugh was not ready for release and ordered

further programming and services to prepare him for release. See In re Pers. Restraint Petition of

McCarthy, 134 Wn. App. 752, 758-59, 143 P.3d 599 (2006), rev’d on other grounds by In re Pers.

Restraint of McCarthy, 161 Wn.2d 234, 164 P.3d 1283 (2007) (under RCW 9.95.420–the sex

offender release statute–the ISRB has authority to determine that an inmate is not ready for release

and can order further treatment to help rehabilitate the offender prior to release).

        Problematic here is the ISRB’s imposition of pre-release conditions after finding that Pugh

was not likely to reoffend. This action is contrary to the plain language of RCW 9.94A.730(3).

“‘An agency may not legislate under the guise of rulemaking power. Rules must be written within

the framework and policy of the applicable statutes.’” Jeremiah Bourgeois, A Janus-Faced

Approach: Correctional Resistance to Washington State’s Miller Fix, 15 Ohio St. J. Crim. L. 451,

468 (2018) (quoting Kitsap-Mason Dairyman’s Ass’n v. Wash. State Tax Comm’n, 77 Wn.2d 812,

815, 467 P.2d 312 (1970)); see also Wash. State Hosp. Ass’n v. Dep’t of Health, 183 Wn.2d 590,

595, 353 P.3d 1285 (2015) (“Rules that are not consistent with the statutes that they implement are

invalid.”). “Unless the [ISRB] determines that a prisoner’s release would more likely than not

result in further law breaking he is, in the eyes of the legislature at least, ready to rejoin society.”

A Janus-Faced Approach: Correctional Resistance to Washington State’s Miller Fix, 15 Ohio St.

J. Crim. L. at 468. While public safety and the preparation of offenders for release are important

duties of the ISRB, the board may not promulgate rules to effectuate these duties that are contrary

to the mandates of our legislature.

        We conclude that the plain language of RCW 9.94A.730(3) did not grant the ISRB the

authority to impose pre-release conditions and delay Pugh’s release by 18 months after finding by




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50055-8-II


a preponderance of the evidence that he was not likely to commit new criminal law violations.

Accordingly, Pugh shows a state law violation to warrant relief under RAP 16.4(c)(6).4

       We would generally grant the PRP and remand for release. But this case presents the

unique fact that the ISRB made a subsequent finding that Pugh was likely to commit new criminal

law violations if released. We next address whether the ISRB abused its discretion in making this

finding and the effect of this finding on the disposition of this matter.

E.     2017 FINDING THAT PUGH IS LIKELY TO COMMIT NEW CRIMINAL LAW VIOLATIONS

       Pugh contends that the ISRB abused its discretion in 2017 by finding that he was likely to

commit new criminal law violations. We disagree.

       The burden rests with the petitioner to prove the ISRB abused its discretion. In re Pers.

Restraint of Addleman, 151 Wn.2d 769, 776, 92 P.3d 221 (2004). The ISRB abuses its discretion

when it acts without consideration of and in disregard of the facts. In re Pers. Restraint of Dyer,

157 Wn.2d 358, 363, 139 P.3d 320 (2006). “Reliance upon ‘speculation and conjecture’ with

disregard of the evidence also constitutes an abuse of discretion.” In re Pers. Restraint of Dyer,

164 Wn.2d 274, 285, 189 P.3d 759 (2008).

       As discussed above, the ISRB is required to release an offender under RCW 9.94A.730(3),

“unless the board determines by a preponderance of the evidence that, despite such conditions, it

is more likely than not that the person will commit new criminal law violations if released.”

“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).



4
  Accordingly, we need not reach Pugh’s additional argument that the ISRB abused its discretion
in failing to release him in 2015. See Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 165,
795 P.2d 1143 (1990) (a reviewing court is not obliged to decide all the issues raised by the
parties, but only those which are determinative).


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50055-8-II


        Here, Pugh missed two college readiness classes soon after the ISRB’s 2015 decision.

When Pugh did attend class, he was argumentative and angry. The ISRB then transferred Pugh to

a minimum security facility. While at the facility, Pugh had several behavior management

incidents. He was angry and disrespectful towards his instructors. During one class, Pugh became

“angry (red face, veins popping out of his arms and forehead, balled fists, piercing eyes) stating

‘[t]his is all your fault! You caused this! You are negative and I came to this class wanting to

participate. I don’t even like you.’” Supp. Br. of Resp’t at Ex. 5, at 3. In another occurrence,

Pugh was asked by one of his instructors how his business class was going. Pugh responded, “I

will give you 100% Monday and Wednesday in class other than that do not talk to me.” Supp. Br.

of Resp’t at Ex. 5, at 2.

        In July 2016, the ISRB received information that Pugh committed two infractions while at

the minimum security facility for strong-arming/intimidation and discriminatory harassment.

Pugh was transferred to a hospital for a mental health evaluation. The two infractions were later

dropped.

        In January 2017, the ISRB conducted a second release hearing. The ISRB considered

Pugh’s ISRB file, the most recent DOC plan, information regarding institutional behavior and

programing, letters directed to the ISRB at the presentence investigation, and a psychological

evaluation completed in April 2015. The ISRB also heard from Pugh, who stated that it was

difficult transferring to the minimum security facility where he did not know anyone and he

“underestimated the amount of stress and worry that [he] was going to be going through.” RP at

76.




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50055-8-II


       Based on the above, a preponderance of evidence supports the ISRB’s 2017 finding that

Pugh “is more likely than not to commit a new crime if released.” Supp. Br. of Resp’t at Ex. 4, at

6. Accordingly, there was no abuse of discretion.

                                        CONCLUSION

       We conclude that the plain language of RCW 9.94A.730 did not grant the ISRB the

authority to impose pre-release conditions and delay Pugh’s release by 18 months after finding by

a preponderance of the evidence that he was not likely to commit new criminal law violations.

However, given that this case presents the unique fact that the ISRB made a subsequent finding

that Pugh was likely to reoffend if released, and given that under RCW 9.94A.730(3), public safety

considerations must be given “the highest priority,” we conclude that remanding for release is not

the proper remedy. We, therefore, deny Pugh’s PRP.




                                                            Melnick, J.

I concur:



       Maxa, C.J.




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50055-8-II


       LEE, J. (dissenting) – The majority agrees that the Indeterminate Sentencing Review Board

(ISRB) violated “the plain language of RCW 9.94A.730(3)” in 2015 when it imposed pre-release

conditions after finding Pugh was not likely to reoffend.5 Majority at 8.. But because the ISRB

was allowed to make a subsequent determination in 2017 (after violating the law in 2015) that

Pugh is likely to reoffend, the majority denies Pugh’s personal restraint petition (PRP). Majority

Opinion at 10. I respectfully disagree with the majority’s position of further punishing Pugh by

denying Pugh’s PRP based on the ISRB’s 2017 decision after the ISRB clearly violated RCW

9.94A.730(3) in 2015.

       In his PRP, Pugh “contends he is unlawfully restrained in 2015 because the ISRB failed to

release him after finding he was not likely to commit a crime if released.” Majority at 4. The

majority, as do I, agree with Pugh that the ISRB erred in 2015. However, the majority concludes

Pugh is not unlawfully restrained because of the ISRB’s subsequent finding in 2017. That is where

the majority and I depart.

       Contrary to the majority’s position, Pugh remains unlawfully restrained because the ISRB

had no statutory authority to set pre-release conditions on Pugh after finding he was not likely to

commit a crime if released in 2015. If the ISRB had not violated RCW 9.94A.730(3) in 2015 and

had released Pugh as required by the statute, the ISRB would not have had the opportunity to make

its 2017 determination. Therefore, I respectfully disagree with the majority’s reliance on the

ISRB’s 2017 decision. I would grant Pugh’s PRP and remand for his release.



                                                              Lee, J.

5
 On October 26, 2016, Pugh filed a PRP in this court challenging the ISRB’s 2015 decision to set
pre-release conditions despite finding that Pugh was not likely to reoffend. However, we did not
waive the filing fee, and Pugh was required to pay a filing fee. Pugh did not pay the filing fee, and
his challenge was not reviewed.


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