In the Matter of the Personal Restraint of: Shannon Bruce Morley ( 2022 )

FILED
MARCH 22, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Personal Restraint of )
) No. 37956-6-III
SHANNON BRUCE MORLEY, )
)
Petitioner. ) UNPUBLISHED OPINION
)
SIDDOWAY, C.J. — Shannon Bruce Morley seeks relief from restraint in the form
of the Department of Corrections (DOC’s) alleged failure to credit him for time spent in
community custody. Before this court could act on his personal restraint petition (PRP),
DOC independently conducted a review and determined that Mr. Morley was entitled to
much, but not all, of the credit he was seeking. Since DOC’s explanation of its
calculation is supported by evidence and applicable law, and Mr. Morley has not
contested it by reply, we deem most of Mr. Morley’s request for relief to be meritorious
but moot. We dismiss his request that we order DOC to credit him with community
custody served during the period from January 11, 2018 to February 21, 2018, as moot.
We deny his request that we order DOC to credit him with community custody allegedly
served between February 22, 2018 and March 1, 2018.
No. 37956-6-III
In re Pers. Restraint of Morley
FACTS AND PROCEDURAL BACKGROUND
In December 2011, while under DOC supervision for several drug offender
sentencing alternative (DOSA) sentences in Spokane and Cowlitz counties,1 Shannon
Morley committed a handful of motor vehicle-related crimes in Douglas County. In
February 2013, he pleaded guilty to eight counts, the most serious being two counts of
vehicular assault, and he was sentenced in March 2013. Although his offenses
constituted a violation of the DOSA community custody condition that he obey all laws,
no violation hearing was conducted at the time.
After satisfying the confinement portion of his 2013 Douglas County sentence,
Mr. Morley was transferred from DOC custody to Federal Bureau of Prisons custody to
serve time for a federal conviction. On January 11, 2018, he was released from federal
prison to a federal residential reentry center in Spokane (Mr. Morley refers to it as a
“halfway house.” PRP at 3) to begin his federal probation.
Not long after his release to federal supervision, Mr. Morley contacted his DOC
community corrections officer (CCO) and informed the CCO of his release and address.
The CCO contacted Mr. Morley’s federal probation officer, who confirmed that Mr.
Morley was released from prison on January 11 and would remain on federal supervision
for a year, until January 10, 2019.
1
These are causes AU (Spokane County Case No. 091023001) and AV and AW
(Cowlitz County Case No. 091011858) on Mr. Morley’s OMNI legal face sheet. See
Resp. of DOC, Ex. 2, Attach. B at 18, 20.
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In re Pers. Restraint of Morley
DOC personnel quickly recognized that Mr. Morley’s 2011 offenses in Douglas
County had never been sanctioned as a violation of the conditions of his DOSA
sentences, and on February 1, 2018, DOC asked the federal probation department to
notify it if Mr. Morley was discharged.2 Not long thereafter, on February 21, Mr.
Morley’s federal probation officer notified DOC that Mr. Morley was being discharged
from the reentry center effective immediately for having tested positive for
methamphetamine, a violation of his probation. Mr. Morley was ordered by DOC to
report to his CCO on February 22, 2018, but he failed to do so.
On March 1, 2018, Mr. Morley was arrested on a DOC warrant and was
transported to Benton County for a DOSA revocation hearing, at which his DOSA
sentences were revoked. The DOC used the date of Mr. Morley’s arrest, March 1, 2018,
as the start date of his remaining DOSA incarceration terms.
After some failed stints in work release and community custody, Mr. Morley’s
community custody in lieu of his earned release time for the DOSA sentences was
revoked following a violation hearing on October 23, 2020. As a result, he is presently
serving the remainder of his Douglas County sentence in total confinement.
2
DOC records reveal its conclusion that the conditions of Mr. Morley’s residency
at the federal reentry center amounted to partial confinement, so DOC could not actively
supervise him as long as he was living there and was in compliance with its policies.
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No. 37956-6-III
In re Pers. Restraint of Morley
Mr. Morley’s earned release date was established following the October 23
hearing as being May 22, 2022. Mr. Morley filed a personal restraint petition with this
court on January 19, 2021, contending the May 22, 2022 earned release date fails to give
him credit for the period from January 11, 2018 to March 1, 2018, when he characterizes
himself as successfully serving federal probation. The relief he requests is, “Credit me
my proper time.” PRP at 5. Having determined that the petition was not frivolous, this
court’s acting chief judge referred Mr. Morley’s PRP to a panel for decision.
DOC’s response demonstrates that before this court could address Mr. Morley’s
petition, DOC conducted a tolling unity review and agreed that Mr. Morley was entitled
to credit for much of the period at issue. DOC has revised its records to give Mr. Morley
credit for the period from January 11, 2018 to February 21, 2018, the period during which
it concedes he was in compliance with his federal probation and DOC community
custody. DOC takes the position that Mr. Morley is not entitled to credit for the period
from February 22, 2018 to March 1, 2018, because he was in violation of his federal
probation and DOC community custody during that time frame. It now calculates his
earned release date as April 4, 2022. Mr. Morley was notified of his right to reply to
DOC’s response, but has not done so.3
3
Mr. Morley filed another PRP on March 16, 2021, shortly after DOC conducted
its new unity tolling credit review on March 1, 2021. The issues raised by that PRP do
not bear on resolution of the instant PRP, and DOC’s response to that PRP is not yet due.
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In re Pers. Restraint of Morley
ANALYSIS
Since Mr. Morley is challenging a DOC decision for which he has had no previous
or alternative avenue for obtaining state judicial review, he must show that he is under
restraint and that the restraint is unlawful. See In re Pers. Restraint of Dalluge, 162
Wn.2d 814, 817, 177 P.3d 675 (2008); RAP 16.4(a)-(c). A petitioner is under restraint if
he or she has limited freedom because of a court decision in a civil or criminal
proceeding, the petitioner is confined, the petitioner is subject to immediate 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 may obtain relief by demonstrating either a
constitutional violation or a violation of state law. RAP 16.4(c)(2), (6); In re Pers.
Restraint of Costello, 131 Wn. App. 828, 832, 129 P.3d 827 (2006). A DOC action that
wrongfully denies an inmate credit for time served would result in an unlawful restraint.
Id.The DOC contends that the time frame it has refused to credit as community
custody served, from February 22, 2018 to March 1, 2018, was a time frame when Mr.
Morley’s community custody was tolled under RCW 9.94A.171(2) because he had
absented himself from supervision. The terms of a defendant’s sentence are governed by
the version of the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, in effect
when the crime was committed. State v. McClinton, 186 Wn. App. 826, 829, 347 P.3d
889 (2015) (citing State v. Medina, 180 Wn.2d 282, 287, 324 P.3d 682 (2014)). Mr.
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Morley’s crimes for which he received the DOSA sentences appear to have been
committed in 2009. Whatever the exact dates of those crimes, former RCW 9.94A.171
(1982) applies. As relevant, it remains unchanged, so we cite to the current version of the
statute.
“Any term of community custody shall be tolled by any period of time during
which the offender has absented himself or herself from supervision without prior
approval of the entity under whose supervision the offender has been placed.”
RCW 9.94A.171(2). “For terms of confinement or community custody, the date for the
tolling of the sentence shall be established by the entity responsible for the confinement
or supervision.” RCW 9.94A.171(4). Absent evidence to the contrary, it is presumed
that tolling begins on the date the offender fails to report, not the date of the offender’s
last contact with his CCO. In re Pers. Restraint of Albritton, 143 Wn. App. 584, 595, 180
P.3d 790 (2008). If a DOSA sentence is revoked and the offender is required to serve the
remainder of the DOSA sentence in prison, the offender is entitled to earned early release
credit. Id.With respect to the February 22, 2018 to March 1, 2018 time frame that remains at
issue, DOC has demonstrated that tolling applies. Mr. Morley has not replied with any
argument that it does not.
We dismiss Mr. Morley’s request that we order DOC to credit him with
community custody served during the period from January 11, 2018 to February 21,
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In re Pers. Restraint of Morley
2018, as moot. We deny his request that we order DOC to credit him with community
custody allegedly served between February 22, 2018 and March 1, 2018.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________
Siddoway, C.J.
WE CONCUR:
_____________________________
Lawrence-Berrey, J.
_____________________________
Pennell, J.
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