In re Flint

174 Wash.2d 539

277 P.3d 657

In the Matter of the Personal Restraint of Eric Sheridan FLINT, Petitioner.

No. 83815–1.

Supreme Court of Washington, En Banc.

May 24, 2012.

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

Ronda Denise Larson, Assistant Attorney General–Corrections D, Olympia, WA, Anne Elizabeth Egeler, Office of the Attorney General, Olympia, WA, for Respondent.

MADSEN, C.J.

[174 Wash.2d 541]¶ 1 Personal restraint petitioner Eric Flint maintains that his return to total confinement pursuantto RCW 9.94A.737(2)¹ as a result of repeated violations of conditions of community custody violated the ex post facto clauses of the state and federal constitutions. He filed his personal restraint in the Court of Appeals, which dismissed the petition as frivolous, and we granted discretionary review. We conclude that application of the statute to Mr. Flint did not create an ex post facto problem and accordingly affirm the Court of Appeals' dismissal of Mr. Flint's petition, however, on different grounds.

FACTS

¶ 2 In 2002, Mr. Flint was convicted of first degree robbery and possession of a controlled substance, methamphetamine. He was sentenced to a prison term of 100 months to be followed by a term of community custody subject to specified terms and conditions. At the time that Mr. Flint committed his crimes, RCW 9.94A.737(1) (2005) provided that when an offender violated any condition or requirement of community custody, the department had discretion to transfer the offender to more restrictive confinement to serve up to the remainder of his sentence, less credit for time served in community custody.

¶ 3 On August 27, 2007, Flint was released into the community on earned early release to serve the term of community custody. Shortly before his release, the legislature amended RCW 9.94A.737 to provide that when an offender is released on earned early release and is subject to a third violation hearing for any violation of the conditions of community custody, the Department of Corrections (department) is to return the offender to total confinement to serve up to the rest of his sentence, with credit for the time served in community custody. Laws of 2007, ch. 483, § 305 (effective July 22, 2007); RCW 9.94A.737(2). The statute also provides that the offender will not be reincarcerated if the department in its discretion determines that returning the offender to total confinement would interfere with his ability to maintain community supports or participate in treatment or programming and would increase the likelihood of reoffending. RCW 9.94A.737(2).

¶ 4 After he was transferred to community custody, Mr. Flint repeatedly violated the terms of his community custody. In April and November 2008, and on February 12, 2009, hearings were held to address these violations. Each time, Flint was found guilty of multiple violations. At the third violation hearing, the hearing examiner considered whether to exercise discretion to continue Flint's community custody status rather than returning him to total confinement. Among other things, the hearing examiner considered Flint's risk of violence in light of his continued use of drugs, his failure to engage in drug treatment, and his failure to report as required. The hearing examiner concluded that Flint's behavior posed a risk to the community and that returning him to incarceration would not interfere with his adjustment into the community. Accordingly, Mr. Flint was returned to total confinement to serve the period of earned early release previously applied to his sentence, less the number of days he had served in community custody.

¶ 5 Flint filed a personal restraint petition in Division Two of the Court of Appeals, arguing that the department lacked authority to return him to prison. Among other things, he maintained that application of the 2007 amendment constituted an ex post facto violation because the statute's effective date occurred after he committed his crimes. The chief judge of Division Two of the Court of Appeals dismissed the petition as frivolous. SeeRAP 16.11(b). Flint then sought discretionary review in this court.

ANALYSIS

I. Mootness

¶ 6 Generally, where direct review of claimed error is not available, a more lenient standard of review applies than where a personal restraint petition follows an appeal from a judgment and sentence. In re Pers. Restraint of Cashaw, 123 Wash.2d 138, 148–49, 866 P.2d 8 (1994). The petitioner can prevail if he can show he is under unlawful restraint as meant by RAP 16.4(c) and (d). Here, however, since Mr. Flint has completed his full sentence, he is not under restraint in the usual sense and as his counsel conceded at oral argument his petition is moot.

¶ 7 Nevertheless, whether RCW 9.94A.737(2)² can be applied to offenders whose original crimes predate the amendment's effective date is a matter of continuing and substantial public interest. Indeed, after Mr. Flint filed his motion for discretionary review, and contrary to Division Two's decision in the present case, Division One of the Court of Appeals decided State v. Madsen, 153 Wash.App. 471, 228 P.3d 24 (2009), and held that applying the amendment to offenders whose crimes predate its effective date violates the ex post facto clause. Because of the importance of the question and despite the mootness of this case, we address the issue whether the statute's application to Mr. Flint is an ex post facto violation. See, e.g., In re Pers. Restraint of Mattson, 166 Wash.2d 730, 736–37, 214 P.3d 141 (2009) (although the case was technically moot because the offender's maximum term had expired, the court nevertheless interpreted a statute regarding earned early release and decided whether offenders have a protected liberty interest in early release to community custody).

II. Ex Post Facto Claim

¶ 8 A claim that application of a law violates the constitutional prohibition against ex post facto laws is a constitutional question that we review de novo. Ludvigsen v. City of Seattle, 162 Wash.2d 660, 668, 174 P.3d 43 (2007). There is no contention here that the state constitution's ex post facto clause gives rise to an independent state constitutional analysis, and we accordingly assume that it does not. State v. Pillatos, 159 Wash.2d 459, 475 n. 7, 150 P.3d 1130 (2007).

¶ 9 “A law that imposes punishment for an act that was not punishable when committed or increases the quantum of punishment violates the ex post facto prohibition.” In re Pers. Restraint of Hinton, 152 Wash.2d 853, 861, 100 P.3d 801 (2004); accord Carmell v. Texas, 529 U.S. 513, 522, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (quoting Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L.Ed. 648 (1798)); Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); In re Pers. Restraint of Dyer, 164 Wash.2d 274, 292, 189 P.3d 759 (2008); Pillatos, 159 Wash.2d at 475, 150 P.3d 1130. To prevail on this kind of ex post facto claim, the petitioner must show that the challenged law operates retroactively, i.e., it applies to conduct that was completed before the law was enacted, and that the challenged law increases the penalty over what it was at the time of the conduct. ³Johnson, 529 U.S. at 699, 120 S.Ct. 1795;see Dyer, 164 Wash.2d at 293, 189 P.3d 759.

A. Whether RCW 9.94A.737(2) Is Retroactive

¶ 10 Under our general analysis for determining whether RCW 9.94A.737(2) is retroactive, we conclude that the statute was not retroactively applied to Mr. Flint. The statute is not triggered until and unless an offender commits multiple violations of community custody conditions, it does not impair any vested rights, and it does not alter the consequences of prior events or conduct. Mr. Flint contends, however, that a contrary result is dictated by Johnson, 529 U.S. 694, 120 S.Ct. 1795*. We address these issues in turn.

1. Whether Legislature Intended Retroactive Application

¶ 11 We first turn to the question whether the statute is prospective or retroactive. We agree with Mr. Flint that the legislature did not intend that the statute apply retroactively. Statutory amendments are presumed to operate prospectively. Hale v. Wellpinit Sch. Dist. No. 49, 165 Wash.2d 494, 507–08, 198 P.3d 1021 (2009). The presumption is overcome only when the legislature explicitly provides for retroactive application or the amendment is curative or remedial. Densley v. Dep't of Ret. Sys., 162 Wash.2d 210, 223, 173 P.3d 885 (2007); State v. Cruz, 139 Wash.2d 186, 191, 985 P.2d 384 (1999). A curative amendment clarifies or makes a technical correction to an ambiguous statute. Cruz, 139 Wash.2d at 192, 985 P.2d 384. A remedial change relates to practices, procedures, or remedies without affecting substantive or vested rights. Id. The legislature has not expressly provided that RCW 9.94A.737(2) is retroactive, and the State has not shown that it is curative or remedial.

¶ 12 We find no basis for concluding that the 2007 amendment to RCW 9.94A.737 adding subsection 2 was intended to be applied retroactively

2. Whether RCW 9.94A.737(2) Was Retroactively Applied

¶ 13 Whether the legislature intended the statute to apply retroactively does not end the inquiry because it remains to be determined whether the statute was in fact applied retroactively to Mr. Flint. Prospective application of a statute occurs when the event that triggers or precipitates operation of the statute takes place after its enactment. Pillatos, 159 Wash.2d at 471, 150 P.3d 1130. Prospective application can be found even if the triggering event originates in a situation that existed before the statute was enacted. Id.; see In re Estate of Burns, 131 Wash.2d 104, 110–11, 928 P.2d 1094 (1997) (“[a] statute operates prospectively when the precipitating event for operation of the statute occurs after enactment, even when the precipitating event originated in a situation existing prior to enactment” (emphasis added)).

¶ 14 If a...