Personal Restraint Petition Of Jeremiah Bourgeois ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal Restraint ) No. 79887-1-I
Petition of )
)
JEREMIAH BOURGEOIS, ) UNPUBLISHED OPINION
)
Petitioner. )
BOWMAN, J. — In this personal restraint petition (PRP), Jeremiah
Bourgeois challenges several community custody conditions imposed by the
Indeterminate Sentence Review Board (ISRB) upon his release from prison. We
strike the condition imposing geographical restrictions but dismiss Bourgeois’
remaining challenges.
FACTS
In 1993, a jury convicted Bourgeois of aggravated first degree murder and
first degree assault.1 He was 14 years old at the time of the crimes. The court
sentenced Bourgeois to a mandatory minimum sentence of life in prison without
parole.
In 2012, the United States Supreme Court issued Miller v. Alabama, 567
U.S. 460, 465, 132 S. Ct. 2455, 183 L. Ed. 2d 407, holding mandatory life
sentences without parole for juveniles unconstitutional. In response, the
1
Bourgeois’ older brother shot two Seattle store owners. The victims testified against the
brother, who was convicted of first degree assault. After his brother’s sentencing, Bourgeois
returned to the store and shot the victims in retaliation for their testimony against his brother,
killing one of them.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79887-1-I/2
Washington Legislature enacted the “Miller fix.” In re Pers. Restraint of McNeil,
181 Wn.2d 582, 588, 334 P.3d 548 (2014). The Miller fix requires courts to
“ ‘take into account mitigating factors that account for the diminished culpability of
youth’ ” when sentencing juvenile offenders convicted of aggravated first degree
murder. McNeil, 181 Wn.2d at 588-89 (quoting RCW 10.95.030(3)(b)).
The Miller fix entitled Bourgeois to resentencing under the new guidelines.
See McNeil, 181 Wn.2d at 589. His resentencing led to an indeterminate
sentence of a minimum term of 25 years in prison and a maximum term of life in
prison. See RCW 10.95.030(3)(a)(i). The sentence allowed Bourgeois to
petition the ISRB for early release after serving at least 20 years of confinement.
RCW 9.94A.730(1); see RCW 10.95.030(3)(d)-(i).
At first, Bourgeois “adjusted poorly to imprisonment” and spent much time
in solitary confinement. During that time, he was convicted of two custodial
assaults. But as he got older, “he gained behavioral control and pursued
intellectual growth.” Bourgeois graduated from college, earned a paralegal
certificate, and wrote law review and other articles for national publication.
In 2017, Bourgeois petitioned the ISRB for early release. The ISRB
denied the petition, finding “by a preponderance of the evidence that Mr.
Bourgeois is more likely than not to commit . . . new criminal law violations if
released on conditions.” It based its decision on (1) a psychological evaluation
assessing Bourgeois as “ ‘Moderate to High’ ” risk to reoffend, (2) Bourgeois’ two
felony assaults against corrections officers early in his prison stay, and (3) his
“particularly heinous” original offense. While the ISRB commended Bourgeois’
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completion of “a significant amount of programming,” it concluded he was “not
releasable” and added 30 months to his minimum term. Bourgeois filed this PRP
and three amendments contesting several aspects of the ISRB’s 2017 decision.
Bourgeois again petitioned the ISRB for release in August 2019. An
updated psychological evaluation rated his overall risk to reoffend as moderate.
The ISRB found Bourgeois releasable, reduced his minimum sentence by 7
months, and issued a release order. But the Department of Corrections (DOC)
did not release Bourgeois because he was still obligated to serve a determinate
10-month consecutive sentence imposed by Clallam County Superior Court for
one of his custodial assault convictions. The ISRB recommended Bourgeois
“start preparing for a successful reentry into the community” while serving that
sentence. “He should access any re-ent[ry] programs” and “should continue to
remain Serious Infraction free and maintain his positive influence on others.”
Soon after the ISRB’s decision, Bourgeois filed a fourth amendment to his PRP,
alleging the ISRB improperly placed preconditions on his release.
On April 9, 2019, the ISRB released Bourgeois from his aggravated first
degree murder sentence and he began serving his determinate sentence for
custodial assault. DOC released Bourgeois from that sentence on October 28,
2019. Upon his release, Bourgeois began serving his three-year term of
community custody imposed by the ISRB. Bourgeois filed more amendments to
his PRP, challenging several conditions of his community custody.
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ANALYSIS
To succeed on a PRP challenge of an ISRB decision, a petitioner must
show he is under unlawful restraint. In re Pers. Restraint of Dyer, 164 Wn.2d
274, 285, 189 P.3d 759 (2008). A petitioner is under restraint when
the petitioner has limited freedom because of a court decision in a
civil or criminal proceeding, the petitioner is confined, the petitioner
is subject to imminent confinement, or the petitioner is under some
other disability resulting from a judgment or sentence in a criminal
case.
RAP 16.4(b). A petitioner must show more than speculation, conjecture, or
conclusory allegations. In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396,
978 P.2d 1083 (1999).
Bourgeois raises several allegations of unlawful restraint pertaining to the
terms of his release from confinement and the community custody conditions the
ISRB imposed.2
Consecutive Sentence
A court twice convicted Bourgeois of custodial assault while in prison.
Bourgeois was 20 years old at the time of his second conviction. The trial court
issued a 10-month determinate sentence consecutive to his aggravated murder
sentence. When the ISRB released Bourgeois from his indeterminate sentence,
he began serving the 10-month sentence for custodial assault.
2
Bourgeois raises many issues related to the ISRB’s 2017 and 2019 decisions. He
challenges how the ISRB determined his eligibility for release and the lawfulness of conditions
imposed before his release. Those issues are now moot as he is no longer confined. Even so,
Bourgeois asks that we consider his claims because they are “matters of continuing and
substantial public interest” requiring an exception to mootness. See In re Pers. Restraint Petition
of Mines, 146 Wn.2d 279, 285, 45 P.3d 535 (2002) (court may decide a technically moot petition
that involves matters of continuing and substantial public interest). We decline to address the
issues for which Bourgeois is not currently under restraint.
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Bourgeois contends the ISRB “should have released [him] from [both]
sentences he was serving” and “should credit him for the additional time he spent
in prison [serving the consecutive determinate sentence] by reducing the
community custody term he is presently serving.” The State disagrees, arguing
the ISRB had no discretion to modify a determinate sentence imposed for an
unrelated crime several years after Bourgeois was sentenced for the aggravated
murder. We agree with the State.
We review a determination of the ISRB for abuse of discretion. In re Pers.
Restraint Petition of Pugh, 7 Wn. App. 2d 412, 421, 433 P.3d 872 (2019). A
failure to exercise discretion is an abuse of discretion. State v. O’Dell, 183
Wn.2d 680, 697, 358 P.3d 359 (2015).
Under RCW 9.94A.589(2)(a), whenever a person under sentence for
conviction of a felony commits another felony and is sentenced to another term of
confinement, the latter term of confinement shall not begin until expiration of all
prior terms of confinement. Citing State v Gilbert, 193 Wn.2d 169, 175-76, 438
P.3d 133 (2019), Bourgeois argues the Miller fix authorizes the ISRB to depart
from this statute because it “gives full discretion over the total sentence the
person is serving and does not require previously imposed consecutive
sentences to remain consecutive.”
In Gilbert, a jury convicted a juvenile defendant of aggravated murder, first
degree murder, and several other crimes based on a single incident. Gilbert, 193
Wn.2d at 171-72. The court sentenced the defendant to life without parole for
the aggravated murder and imposed a consecutive sentence for the first degree
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murder. Gilbert, 193 Wn.2d at 172. The Miller fix entitled the defendant to
resentencing. But the trial court concluded it had authority only to resentence for
the aggravated murder, leaving the consecutive sentence for the first degree
murder intact. Gilbert, 193 Wn.2d at 172. Our Supreme Court disagreed:
[E]ven if the resentencing court here was correct in its conclusion
that RCW 10.95.035, on its face, limits the scope of a resentencing
hearing to merely adjusting aggravated murder sentences—it was,
nevertheless, required to consider Gilbert’s youth as a mitigating
factor and had discretion to impose a downward sentence [on his
other convictions as well]. RCW 10.95.035 cannot act to limit that
discretion.
Gilbert, 193 Wn.2d at 176.
According to Bourgeois, Gilbert applies to his case because the Miller fix
directs the ISRB to make a release decision based on the personal
circumstances of the person as considered in their totality. It does
not require the ISRB to treat consecutive sentences as imposed
separately and apart from other terms.
But unlike the trial court in Gilbert, the ISRB did not have jurisdiction over both of
Bourgeois’ sentences. The ISRB attained jurisdiction to consider only Bourgeois’
petition for early release from his aggravated murder sentence. See RCW
10.95.030(3)(e). Bourgeois points to no statutory authority empowering the ISRB
to disturb an unrelated consecutive determinate sentence. And while Gilbert
makes clear that RCW 9.94A.589(2)(a) does not preclude a trial court from
issuing concurrent sentences when justified by an offender’s youth, it does not go
so far as to authorize a judicial officer or the ISRB to modify a sentence over
which it has no jurisdiction. The ISRB did not abuse its discretion by refusing to
modify Bourgeois’ consecutive determinate sentence.
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Community Custody Conditions
Bourgeois argues he is under unlawful restraint because of “onerous,
unconstitutional, and unauthorized conditions” of community custody. We review
community custody conditions imposed by the ISRB for abuse of discretion. In re
Pers. Restraint of Winton, 196 Wn.2d 270, 277-78, 474 P.3d 532 (2020).
Community custody is an extension of incarceration, so an individual’s
constitutional rights are subject to the infringements authorized by chapter 9.94A
RCW. Winton, 196 Wn.2d at 275. Under RCW 9.94A.704(10)(c), the ISRB may
impose community custody conditions that are reasonably related to the crime of
conviction, the offender’s risk of reoffending, or safety of the community. The
relevant inquiry is whether the condition is “crime-related,” which means
reasonably related to the crime, the risk of re-offense, and public safety. Winton,
196 Wn.2d at 278. If a community custody condition fails to meet any of these
requirements, “it is manifestly unreasonable and should be removed.” Winton,
196 Wn.2d at 278.3
1. First Amendment Rights
Bourgeois argues that “DOC imposed and enforced conditions that
unreasonably violate [his] right to free speech and freedom of the press.” U.S.
CONST. amend. I. According to Bourgeois, his community corrections officer
(CCO) (A) ordered him “to cease his present or future efforts to aid people in
3
Bourgeois argues that a community custody condition affecting a constitutional right
must be “ ‘reasonably necessary to accomplish the essential needs of the state’ ” and “narrowly
imposed.” (Quoting State v. Riles, 135 Wn.2d 326, 350, 957 P.2d 655 (1998), abrogated on other
grounds by State v. Valencia, 169 Wn.2d 782, 239 P.3d 1059 (2010).) As much as Bourgeois is
suggesting we must apply strict scrutiny when reviewing such conditions, we disagree. See
Winton, 196 Wn.2d at 275.
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prison by sending written materials to a prosecutor or attorney about their cases,”
(B) would not allow him to participate in a conference for lawyers “without
advance approval of ‘what exactly he would be doing [and] saying’ ” at the
conference, and (C) “accused him of engaging in unapproved ‘employment’ ”
after he spoke at a press conference. The record does not support Bourgeois’
allegations.
A. Advocacy of Cellmate’s Release Plan
Shortly after his release from prison, Bourgeois e-mailed both a deputy
prosecuting attorney and the attorney of his former cellmate’s victim advocating
for a change to the cellmate’s release plan. The victim contacted DOC,
expressing “fear and confusion” about Bourgeois’ e-mail.
The ISRB was concerned Bourgeois’ e-mail “could be considered as
threatening, given that he had been convicted of murdering the witness to a
crime and that his e[-]mail noted that he knew the whereabouts of his former
cellmate’s victim.” As a result, Bourgeois’ CCO explained to him that while he
violated no conditions of his community custody, the “optics” of his e-mail were
“concerning.” The CCO cautioned Bourgeois that
it was not a good idea to get involved in cases like this one . . .
where he advocates for personal friends from prison by contacting
their victim’s attorneys, unconnected to his professional goals of
being an advocate for young victims of discrimination, as this raises
offense cycle behavior concerns.[4]
The CCO’s warning to Bourgeois was not a directive to stop advocating on
behalf of individual prisoners. It was a communication urging Bourgeois to
4
The CCO also expressed concern that Bourgeois’ attempt to contact the victim on
behalf of his former cellmate could be viewed as the cellmate’s attempt to circumvent a no-
contact order prohibiting third-party contact between the two.
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No. 79887-1-I/9
consider how his contact with a former cellmate’s victim through her attorney
may be perceived. The communication did not impact Bourgeois’ free speech
and did not amount to an abuse of discretion.
B. Travel Pass
In another exchange with his CCO, Bourgeois requested a travel pass to
eastern Washington to speak at a conference for lawyers with a retired judge
who was his former defense attorney. The CCO reviewed a brochure about the
conference, asked Bourgeois about his role in the conference, and said he
“would need more information about this conference, who had invited him and
what exactly he would be doing/saying at this conference.” One of the
conference organizers called the CCO and explained that Bourgeois would not
“be acting in any type of legal authority or giving legal advice at the conference.”
Rather, Bourgeois would be speaking about his experience as a teenager in the
legal and prison systems, and he and the judge would “dialogue with each other
regarding topics such as the challenges of communication with a juvenile client,
and how issues of race and class impact the attorney-client relationship.” The
CCO granted the travel pass.
The record does not support Bourgeois’ suggestion that the CCO
conditioned Bourgeois’ travel pass on the content of his speech. Instead, the
CCO appropriately requested general information about the conference and
Bourgeois’ role as presenter to assess whether to approve the pass.
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C. Press Conference
Finally, Bourgeois asserts that his CCO threatened him in response to his
appearance at a televised press conference organized by Columbia Legal
Services. At the conference, Bourgeois “advocated for releasing all those who
no longer posed a risk to society, regardless of their crimes, as this was also
necessary to deal with the public health concerns posed by COVID-19.”5
According to Bourgeois, after his appearance at the press conference, the CCO
“accused him of engaging in unapproved ‘employment’ even though he was not
paid for his remarks.”
As much as Bourgeois is arguing that the ISRB may not retaliate against
him for exercising his free speech rights, he is correct. In re Pers. Restraint of
Addleman, 151 Wn.2d 769, 775, 92 P.3d 221 (2004). But to show retaliation,
Bourgeois must establish that the ISRB’s action was in fact retaliatory and that
the alleged retaliatory action advanced no legitimate supervisory goals.
Addleman, 151 Wn.2d at 776.
Here, Bourgeois’ CCO saw the press conference and called Bourgeois “to
inquire about his relationship to Columbia Legal Services” because his conditions
of release require preapproval of all employment. Bourgeois told his CCO that
“someone associated with Columbia Legal Services asked him to be on the
panel.” The CCO told Bourgeois he would “ask the ISRB for guidance on his
involvement in public events, public speaking, and offering opinions on legal
matters.” About a week later, Bourgeois’ CCO told him that the televised press
5
COVID-19 is the World Health Organization’s official name for “coronavirus disease
2019,” first discovered in December 2019 in Wuhan, China. COVID-19 is a severe respiratory
illness which is highly contagious and quickly spread throughout the world.
10
No. 79887-1-I/11
conference did not violate any condition. The CCO explained that “no one was
restricting his right to advocate on behalf of prisoners, to voice his opinions, to
publish on prisoner rights, and to travel to make his voice on behalf of others
heard” so long as it was “not done in a way that appears to threaten crime victims
with violence.” Bourgeois fails to show that his CCO acted in retaliation to his
exercise of free speech.
2. Geographical Restriction
As a condition of his community custody, Bourgeois “must not enter the
City of Seattle, Washington, South of [Interstate]-520/Elliot Bay/Salmon Bay/Lake
Union, without prior written approval of [his] CCO and the ISRB.”6 Bourgeois
argues this violates his right to travel “by placing unnecessary geographical
restrictions barring him from Seattle, and limiting any time spent in King County.”
The State contends this condition is necessary to address the “community
concerns” raised by the ISRB’s victim liaison.
“While the right to travel is recognized as a fundamental right of
citizenship, this right is affected by a criminal conviction.” Winton, 196 Wn.2d at
274. Infringement on an offender’s right to travel is authorized while serving
community custody. Winton, 196 Wn.2d at 275. “Because an individual who is
transferred from total confinement to community custody remains under the
continuing jurisdiction of the ISRB, the right to travel is not entirely restored.”
Winton, 196 Wn.2d at 275. The ISRB may impose geographical restrictions as
6
Bourgeois claims that while the ISRB decided to prohibit him from entering “downtown
Seattle southward,” his CCO “expanded that prohibition and ordered him not to take part in any
activities outside of Snohomish County without express permission.” The record does not
support his claim.
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“crime-related prohibitions” if they directly relate to the circumstances of the
crime of conviction. Winton, 196 Wn.2d at 276. Such conditions must “bear
a reasonable relation to the circumstances of the crime, the offender’s risk
of reoffense, and public safety.” Winton, 196 Wn.2d at 276; RCW
9.94A.704(10)(c)(i)-(iii).
In Winton, our Supreme Court determined that a restriction from entering
Clark County was sufficiently crime-related where “Winton’s victims reside, work,
and attend school within Clark County.” Winton, 196 Wn.2d at 279. And the
restriction “reasonably reduce[d] the risk of reoffense, ensure[d] public safety,
and notably, protect[ed] the victims and their families by preventing contact with
them.” Winton, 196 Wn.2d at 279. Here, the ISRB restricted Bourgeois from
entering a large area of Seattle because of “active community concerns for
survivors.” But the ISRB fails to explain the basis for the community concerns.
Because we cannot conclude from such a broad statement that the ISRB’s
geographical restriction bears a reasonable relationship to the circumstances of
Bourgeois’ crime, his risk of re-offense, or public safety, we grant Bourgeois’
PRP on this issue and strike the condition.
3. Routine Polygraphs
The ISRB imposed as a condition of community custody that Bourgeois
“submit to a polygraph examination . . . at the discretion of [his] CCO to verify
compliance with [his] release conditions.” It also declared that the results of any
polygraph are admissible in any violation hearing before the ISRB. Bourgeois
contends this condition violates DOC’s own policy governing the use of
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polygraph tests and allows for misuse of unreliable polygraph results. We
disagree.
Polygraphs are permitted as a condition of community custody to monitor
compliance with sentencing conditions. Riles, 135 Wn.2d at 342-43; State v.
Combs, 102 Wn. App. 949, 952, 10 P.3d 1101 (2000). Polygraph testing should
be used only to monitor compliance with community custody conditions and “not
as a fishing expedition to discover evidence of other crimes, past or present.”
Combs, 102 Wn. App. at 952-53.
Current DOC policy 400.360, directive IV(A), states that
“[m]aintenance/monitoring polygraph testing will be conducted periodically to
monitor compliance with treatment and/or identified restrictions.”7 Directive
IV(C)(1) of the policy allows for at least one monitoring test every six months as
ordered by the court or ISRB. Directive IV(E) allows “criminal issue” or “event
specific” testing “upon reasonable suspicion” of a violation of supervision.
Additionally, subsection II of policy 400.360 states that testing “will supplement,
not substitute, other forms of investigation. No adverse action will be taken
solely on the basis of a polygraph test that indicates deception.”
Bourgeois’ community custody condition lands squarely within the
confines of DOC policy. Indeed, while DOC policy calls for routine polygraphs
every six months, Bourgeois’ community custody condition allows for testing only
“to verify compliance with [his] release conditions.” According to Bourgeois’
7
According to the State, Bourgeois cites an old version of DOC policy 400.360 that
allowed polygraphs of a person on community custody who committed a “non-sex offense[ ]” only
when there is “reasonable suspicion” that the person has violated conditions of supervision. Only
sex offenders are subject to routine polygraphs.
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CCO, Bourgeois has not met the criteria for a polygraph and no examination is
imminent. While it is true that Bourgeois’ condition of community custody deems
his test results admissible at ISRB violation hearings, this would only deviate
from DOC policy if the results were the sole basis for adverse action. The ISRB
did not abuse its discretion in ordering Bourgeois to submit to polygraph testing
to verify compliance with his community custody conditions.
We grant Bourgeois’ PRP as to the ISRB’s geographical restrictions and
strike that condition of community custody. We dismiss his PRP as to his
remaining challenges.
WE CONCUR:
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