Personal Restraint Petition Of: Robert Recco Mcmurtry ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal Restraint ) No. 82141-5-I
of )
)
ROBERT RECCO MCMURTRY, ) PUBLISHED OPINION
)
Petitioner. )
BOWMAN, J. — In this personal restraint petition (PRP), Robert Recco
McMurtry claims he received ineffective assistance of counsel at a community
custody revocation hearing before the Indeterminate Sentence Review Board
(ISRB). He argues the conditions imposed at the hearing unlawfully restrain him
because his attorney’s deficient performance deprived him of his right to effective
representation under the Sixth Amendment to the United States Constitution.
Because the Sixth Amendment right to counsel does not apply at an
administrative hearing and McMurtry does not allege a procedural due process
violation, we deny McMurtry’s PRP.
FACTS
In 2002, McMurtry consumed alcohol and marijuana at a house party and
sexually assaulted a stranger. The State charged him with second degree rape.
A jury convicted McMurtry as charged, and the court sentenced him to a
“determinate-plus”1 sentence of 78 months to life in the custody of the
1 McMurtry’s determinate-plus sentence under former RCW 9.94A.712 (2001) equates to
an indeterminate sentence under RCW 9.94A.507.
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Department of Corrections (DOC). McMurtry served 73 months in confinement
before DOC released him. He then began serving a lifetime of community
custody under the supervision of the ISRB.
McMurtry’s release from DOC came with conditions. The conditions
included requirements that McMurtry stay each night at a residence approved by
his community corrections officer (CCO), notify his CCO of any change in
address, not possess firearms or ammunition, abstain from alcohol, and not enter
bars, taverns, or lounges. McMurtry was also required to register as a sex
offender.
In 2019, McMurtry’s CCO suspected that McMurtry was not living at his
approved residence. After investigating, the CCO charged McMurtry with seven
community custody violations and arrested him. The CCO alleged McMurtry (1)
changed his residence without CCO permission, (2) failed to register as a sex
offender at that new address, (3) possessed alcohol, (4) possessed a firearm, (5)
possessed ammunition, (6) visited bars, and (7) stayed overnight at an
unapproved residence.
The ISRB held a community custody revocation hearing on McMurtry’s
alleged violations on October 24, 2019. At the hearing, the ISRB allowed an
attorney to represent McMurtry. McMurtry pleaded guilty to four of the
allegations, and the ISRB found him guilty of the other three after considering
testimony and other evidence. The ISRB determined that it was appropriate to
reinstate McMurtry’s community custody rather than impose more jail time. It
released McMurtry but imposed several community custody conditions. It again
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ordered that McMurtry stay each night at a residence approved by his CCO. And
it imposed several new conditions, including 90 days of electronic home
monitoring (EHM), an 11:00 p.m. to 5:00 a.m. curfew, and 6 months of random
urinalysis (UA) testing.
McMurtry timely filed this PRP.
ANALYSIS
Grounds for Relief
The ISRB argues we should dismiss McMurtry’s PRP because he has no
grounds for relief. According to the ISRB, McMurtry is not under restraint
because the conditions it imposed based on McMurtry’s community custody
violations “either expired . . . or are largely redundant of unchallenged,
previously-imposed conditions.” We disagree in part.
Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173
Wn.2d 123, 132, 267 P.3d 324 (2011). To obtain relief, a petitioner must show
that he is currently under restraint and that the restraint is unlawful. RAP 16.4(a);
In re Pers. Restraint of Grantham, 168 Wn.2d 204, 213, 227 P.3d 285 (2010).
Under RAP 16.4(b), a petitioner is under restraint if he has limited freedom
because of a criminal or civil court decision, is confined, is subject to imminent
confinement, or is under some other disability from a judgment or sentence in a
criminal case. A petitioner who is subject to community custody conditions that
limit his freedom is under restraint. In re Pers. Restraint of Martinez, 2 Wn. App.
2d 904, 910, 413 P.3d 1043 (2018) (ISRB condition forbidding parolee from
entering Thurston County was a restraint), abrogated on other grounds by In re
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Pers. Restraint of Winton, 196 Wn.2d 270, 474 P.3d 532 (2020).
After finding that McMurtry violated his conditions of community custody,
the ISRB ordered that McMurtry spend every night at his approved residence
unless he obtains written permission from his CCO to stay somewhere else. This
requirement is the same as a previously imposed condition of release, so it does
not amount to new restraint. The ISRB also imposed several new conditions,
including 90 days of EHM and 6 months of random UA testing, beginning
November 4, 2019. Those conditions have been satisfied, so they do not
currently restrain McMurtry. But the ISRB also ordered that McMurtry “be
present in [his] ‘registered’ residence every night between the hours of 11 PM
and 5 AM.” That condition has not expired and restrains McMurtry beyond those
conditions previously imposed. As a result, McMurtry is under restraint and may
seek relief of the curfew condition through a PRP.2
Ineffective Assistance of Counsel
McMurtry contends that his restraint is unlawful because his attorney was
ineffective at his ISRB hearing. He urges us to evaluate his claim under the Sixth
Amendment Strickland3 test. Allegations of ineffective assistance of counsel
present mixed questions of fact and law that we review de novo. State v.
Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
2 In McMurtry’s reply, he asserts he is also under restraint because of the “severe impact
the [seven] different guilty findings will have on any future decisions made by his DOC officers
and the ISRB for the remainder of his lifetime supervision by the [ISRB].” He cites no cases in
support of that proposition, so we do not consider it. RAP 10.3(a)(6); Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (we do not consider argument
unsupported by citation to authority).
3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
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The Sixth Amendment and article I, section 22 of the Washington State
Constitution guarantee defendants the right to effective assistance of counsel in
a criminal prosecution. The focus of the Sixth Amendment right to counsel is
“whether the event for which the defendant argues counsel is necessary is a
‘critical stage’ of the criminal prosecution.” Grisby v. Herzog, 190 Wn. App. 786,
796, 362 P.3d 763 (2015). When a defendant alleges ineffective assistance of
counsel under the Sixth Amendment, we apply the two-part test established in
Strickland to analyze the claim. 466 U.S. at 687. That is, we consider whether
the defendant’s counsel was deficient, and if so, whether that deficient
performance prejudiced the defendant. Strickland, 466 U.S. at 687.
But revocation of a postconviction status like community custody is not a
critical stage of a criminal proceeding. A parole revocation hearing is
administrative, not criminal, and the Sixth Amendment right to counsel does not
attach. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656(1973); Grisby, 190 Wn. App. at 796. Because a parolee4 has no Sixth
Amendment right to counsel at an ISRB hearing, the Strickland test does not
apply. See State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (“In
Strickland, the United States Supreme Court set forth the prevailing standard
under the Sixth Amendment for reversal of criminal convictions based on
ineffective assistance of counsel.”).
4 Community custody in Washington amounts to parole. See Grisby, 190 Wn. App. at
800-01 (citing In re Pers. Restraint Petition of McNeal, 99 Wn. App. 617, 633, 994 P.2d 890(2000)).
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Even so, a postconviction revocation hearing can lead to a parolee’s loss
of liberty, so we have determined that a parolee may have a right to counsel at
such a hearing when necessary to protect procedural due process under the
Fourteenth Amendment to the United States Constitution and article I, section 3
of the Washington State Constitution. Grisby, 190 Wn. App. at 789 (the
procedural protection due to someone who faces revocation of community
custody status includes, in some cases, the right to counsel at the revocation
hearing). It is the responsibility of the correctional authority conducting the
community custody hearing to determine, case by case, whether appointment of
counsel is necessary to protect a parolee’s procedural due process rights.
Scarpelli, 411 U.S. at 790; Grisby, 190 Wn. App. at 798, 805-06. In doing so, the
correctional authority considers factors like whether the parolee requested
counsel, whether the parolee appears able to speak effectively for himself, and
whether the case is complex or difficult to develop or present. Scarpelli, 411 U.S.
at 790-91.
McMurtry asserts no due process claims in his PRP. Instead, he broadly
declares that a “parolee has a state and federal constitutional right to effective
assistance of counsel under the Sixth Amendment to the U.S. Const. and article
I, section 22 of the Washington State Constitution once the [ISRB] has deemed
that the parolee may have the assistance of counsel.” In support, he cites State
v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017); Scarpelli, 411 U.S. at 782;
and Grisby, 190 Wn. App. at 805. But none of those cases holds that a Sixth
Amendment right to counsel attaches at a postconviction hearing. Estes
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analyzes whether trial counsel was ineffective during the plea bargaining
process. 188 Wn.2d at 453-54. And the other two cases recognize that any right
to counsel at a postconviction hearing arises from the due process clause of the
Fourteenth Amendment, not the Sixth Amendment. Scarpelli, 411 U.S. at 781-
83; Grisby, 190 Wn. App. at 795-96.
Because the Sixth Amendment right to counsel does not attach to an
administrative hearing and McMurtry asserts no procedural due process claim,
we deny McMurtry’s PRP.
WE CONCUR:
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