In the Matter of the Personal Restraint of: Perry T. Ashelman

FILED
JANUARY 27, 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. 37438-6-III
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PERRY T. ASHELMAN, ) UNPUBLISHED OPINION
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Petitioner. )
LAWRENCE-BERREY, J. — Perry Ashelman, an inmate in the custody of the
Washington State Department of Corrections (DOC), seeks relief from personal restraint
with respect to two infractions. DOC expunged one infraction in response to this
personal restraint petition (PRP) so the challenge to that infraction is now moot.
As to the other infraction, Ashelman argues DOC violated his right to due process
by refusing to provide information that would allow him to exercise his right to call
witnesses and to present video evidence at his infraction hearing. Because due process
does not require DOC to disclose information that does not exist nor does it require DOC
to always identify potential witnesses, we dismiss Ashelman’s petition.
No. 37438-6-III
PRP of Ashelman
FACTS
Perry Ashelman is an inmate serving a sentence for residential burglary in the
custody of the DOC. He challenges findings of guilt from two infractions received while
in prison.
Infraction Group Number 48
While Ashelman was in custody at Stafford Creek Corrections Center, mailroom
staff intercepted threatening letters from Ashelman to his estranged wife. After initiating
an investigation, corrections staff overheard Ashelman make additional threats in
telephone calls to his wife. On August 1, 2019, Ashelman was found guilty of three
infractions under WAC 137-25-030:
 (503), extorting or blackmailing, or demanding or receiving anything of value
in return for protection against others or under threat of informing;
 (506), threating another with bodily harm or with any offense against any
person or property; and
 (507), committing an act that would constitute a felony that is not otherwise
included in these rules, namely, extortion in the first degree in violation of
RCW 9A.56.120.
Suppl. Resp. of DOC, (Dec. 17, 2020), Ex. 1, Attach. F. His sanctions included the loss
of 150 days of good conduct time. He appealed the infraction through the DOC and did
not receive relief.
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PRP of Ashelman
Infraction Group Number 49
On August 28, 2019, Ashelman was transferred to Airway Heights Corrections
Center. Ashelman was transported to the medical unit for an urgent medical complaint.
Ashelman insisted he needed narcotics for his medical complaint. On the orders of the
on-call medical provider, the attending registered nurse (RN), C. Wallace, was unable to
give him anything stronger than Tylenol. After being informed he would not receive
narcotic medication, Ashelman became angry, made closed fist gestures at RN Wallace,
and began shouting and cursing at her with abusive language. RN Wallace feared for her
personal safety and that of other staff members who would need to care for him in the
medical unit and requested custody staff assistance. Sergeant Devin Cornell responded
and made the decision to move Ashelman to a medical segregation cell so the medical
assessment could continue in a more secure location. Once transferred to the medical
cell, Ashelman refused further medical attention.
RN Wallace filed a serious infraction report detailing the event, listing the
infraction as using physical force, intimidation, or coercion against any person in
violation of WAC 137-25-030(663). Corrections Officer Patrick Haire, who had escorted
Ashelman to the medical unit, and Sergeant Cornell also filed incident reports as
witnesses to the incident. A disciplinary hearing was scheduled for September 4, 2019.
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PRP of Ashelman
On August 30, 2019, Hearing Escort Officer Hall served Ashelman a notice of the
hearing. Included with the notice were the three reports from witnesses to the incident.
Ashelman demanded Officer Hall provide names of all the staff present at the time of the
incident so he could request witness statements from each of them. Officer Hall did not
have that information and could not obtain the information for Ashelman, but could
request witness statements from anyone for whom Ashelman supplied names. Ashelman
was told this, but insisted his rights were being violated and refused to sign any
paperwork for the hearing.
At the hearing, Hearing Officer Don DeShazer noted that Ashelman had not
requested witness statements and asked if Ashelman had determined the names of the
people from whom he wanted witness statements. Ashelman told the hearing officer he
had asked Officer Hall to review the camera footage to see what officers were available
and identify four nurses, asserting that “[p]er policy, [the hearing escort officer’s] job
duties [are] to go out and gather information.” Report of Proceedings (RP) at 5. The
hearing officer informed Ashelman that, contrary to Ashelman’s assertion, it was not the
job of either the hearing escort officer or the hearing officer to investigate the incident.
Ashelman then requested to review the video footage. The hearing officer asked
where the incident occurred, and Ashelman answered that the “incident was all the way
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from the unit all the way to here,” and asked to know what officers were on duty at the
time if the video was not available. RP at 6. After consulting the infraction report, which
indicated that Ashelman was not infracted for anything in the living unit or the walkway
to the medical unit, the hearing officer concluded it would not be appropriate to get
witness statements from all officers on duty. Additionally, there was no camera in the
medical area where the infraction occurred, so there was no footage to review. The
hearing officer told Ashelman he would not be able to get witness statements from the
entire shift, but reiterated that “[i]f you have names I can get you witness statements.
Without names I can’t get you witness statements.” RP at 6.
Ashelman insisted he had a right to the witness statements and told the hearing
officer he would file a PRP and overturn the proceeding. When the hearing officer tried
to proceed, Ashelman declined to participate further and walked away.
The hearing reconvened in the afternoon without Ashelman present. The hearing
officer found Ashelman guilty under WAC 137-25-030(663) of using physical force,
intimidation, or coercion against any person. He based his decision on the written
testimony in the incident reports, specifically the three staff witnesses’ account of
Ashelman “displaying behavior that was intimidating in nature in an effort to coerce
medical staff into giving into his demands for narcotics.” Resp. of DOC, Ex. 1, Attach. F.
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PRP of Ashelman
Ashelman was sanctioned with 7 days’ segregation with credit for time served and
10 days of cell confinement upon return to the general population. He appealed and was
denied relief on September 1, 2019.
Later Proceedings
Ashelman filed this PRP on April 20, 2020, challenging his guilty findings on
violations of WAC 137-25-030(507) and (663) in infraction group number (IGN) 48 and
49, respectively. After filing the petition, the Department reviewed the challenged
infraction in IGN 48 and expunged it on March 19, 2021. The loss of good conduct time
was reduced from a loss of 150 days to a loss of 45 days based on the remaining two
infractions.
ANALYSIS
CHALLENGE TO THE WAC 137-25-030(507) GUILTY FINDING
DOC contends the expungement of Ashelman’s WAC 137-25-030(507) infraction
in IGN 48 renders the challenge to that infraction moot. We agree.
DOC expunged this infraction on March 19, 2021. While the Court of Appeals
has exclusive jurisdiction of Ashelman’s PRP, court rules do not prevent DOC from
providing an alternative remedy. In re Pers. Restraint of Higgins, 152 Wn.2d 155, 162-
63, 95 P.3d 330 (2004). Expungement effectively and adequately addresses Ashelman’s
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challenge to this infraction. Id. This court can no longer provide effective relief and any
issue with respect to this infraction is now moot. In re Cross, 99 Wn.2d 373, 376-77,
662 P.2d 828 (1983). Accordingly, we dismiss Ashelman’s petition as to the
WAC 137-25-030(507) infraction in IGN 48.
CHALLENGE TO THE WAC 137-25-030(663) GUILTY FINDING
Ashelman contends he was denied his due process right to call witnesses and
present documentary evidence at the hearing for the WAC 137-25-030(663) infraction.
We disagree.
In a PRP, the petitioner must generally show he is restrained under RAP 16.4(b)
and that the restraint is unlawful under RAP 16.4(c). In re Pers. Restraint of Grantham,
168 Wn.2d 204, 212-13, 227 P.3d 285 (2010). A petitioner is under a “restraint” if he is
confined because of a judgment or sentence in a criminal case. RAP 16.4(b). The
restraint is unlawful if “[t]he conditions or manner of the restraint of petitioner are in
violation of the Constitution of the United States or the Constitution or laws of the State
of Washington” or if “[o]ther grounds exist to challenge the legality of the restraint of
petitioner.” RAP 16.4(c)(6)-(7). The petitioner bears the burden of proving, by a
preponderance of the evidence, that his restraint is unlawful. In re Pers. Restraint of
Cook, 114 Wn.2d 802, 814, 792 P.2d 506 (1990).
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PRP of Ashelman
Prison disciplinary hearings are governed by chapter 137-28 WAC. These
administrative regulations qualify as “laws of the State of Washington” under
RAP 16.4(c)(6). In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 149 n.6, 866 P.2d 8(1994). Under WAC 137-28-285(1), an offender has rights including a “fair and
impartial hearing” and to “[c]all witnesses and present documentary evidence, though the
hearing officer may exclude witnesses/evidence deemed irrelevant, duplicative, or
unnecessary.” Under WAC 137-28-300(1), “[t]he hearing officer shall ensure that the
offender’s rights are protected throughout the hearing.” However, under WAC 137-28-
300(5), “[i]f an offender’s behavior disrupts the hearing, he/she may be removed and the
hearing will continue on the record in the offender’s absence.”
When a petitioner seeks relief from discipline imposed as a result of a prison
disciplinary hearing, a court “will reverse a prison discipline decision only upon a
showing that it was so arbitrary and capricious as to deny the petitioner a fundamentally
fair proceeding so as to work to the offender’s prejudice.” Grantham, 168 Wn.2d at 215.
An arbitrary and capricious action is a “‘willful and unreasoning action, without
consideration and in disregard of facts and circumstances.’” In re Pers. Restraint of
Reismiller, 101 Wn.2d 291, 296, 678 P.2d 323 (1984) (quoting Pierce County Sheriff v.
Civil Serv. Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)).
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PRP of Ashelman
A prison disciplinary proceeding is not arbitrary and capricious if the inmate was
afforded the applicable minimum due process protections and the decision was supported
by at least some evidence. In re Pers. Restraint of Anderson, 112 Wn.2d 546, 549, 772
P.2d 510 (1989); In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d 1083(1999). Minimum due process requires that the inmate: “(1) receive notice of the alleged
violation; (2) be provided an opportunity to present documentary evidence and call
witnesses when not unduly hazardous to institutional safety and correctional goals; and
(3) receive a written statement of the evidence relied upon and the reasons for the
disciplinary action.” Gronquist, 138 Wn.2d at 396-97.
Here, Ashelman focuses on the second of these three requirements. He argues he
was denied the opportunity to present witness statements because DOC refused to identify
possible witnesses to the incident.
We first note that Ashelman was not denied the right to present witness statements.
Rather, he had no witness statement to present because DOC refused to identify possible
witnesses.
We do not view the minimal due process requirements outlined in Gronquist as
requiring DOC to always identify possible witnesses. Appointed counsel provides no
authority to support such a requirement. When a party cites no authority, we may assume
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that counsel, after diligent search, has found none. In re Disciplinary Proceeding Against
Jensen, 192 Wn.2d 427, 440, 430 P.3d 262 (2018); State v. Young, 89 Wn.2d 613, 625,
574 P.2d 1171 (1978); DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d
193 (1962).
Had Ashelman provided evidence that DOC’s witnesses had a motive to lie, could
not perceive the incident, or could not correctly recall the incident, our conclusion might
be different. Absent a plausible reason to believe that potential witnesses had exculpatory
evidence, Ashelman’s request for names of all nurses and officers working that shift was
a mere fishing expedition. See Lennear v. Wilson, 937 F.3d 257, 269-74 (4th Cir. 2019)
(discussing correctional facility’s responsibility to assist prisoner in obtaining evidence
“that is potentially exculpatory or otherwise likely to assist an inmate in mounting a
defense”).
Ashelman, acknowledging there to be no authority directly on point, argues that
requiring DOC to identify possible witnesses is a requirement that can be inferred from
In re Pers. Restraint of Malik, 152 Wn. App. 213, 215 P.3d 209 (2009). We disagree.
In Malik, an inmate received a serious infraction for introducing a controlled
substance into the facility through the mailroom. Id. at 215. The infraction report,
prepared by the investigating officer, described how the contraband was found in a
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package in the mailroom, and how she had heard Malik’s voice on the telephone asking
when his “‘get well package’” would arrive. Id. at 215-16. At the hearing, Malik
requested several items, including a copy of the recording of the telephone conversation
to review and witness statements he had requested the investigating officer to obtain.
The hearing officer, without explanation, denied Malik’s requests. The record indicated
that one inmate submitted an exculpatory statement to the investigating officer. We
concluded that Malik’s due process rights were violated, noting that minimum due
process required the hearing officer to state proper reasons for limiting the evidence,
“either at the time of the hearing or thereafter.” Id. at 220.
Malik is distinguishable. In Malik, there was identified evidence that Malik was
not permitted to review—the recording; and evidence that Malik was not permitted to
present—an inmate’s witness statement. The hearing officer presented no explanation for
its rulings. In contrast, here, the hearing officer did not deny Ashelman the right to
review evidence or to present a witness statement.
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PRP ofAshe/man
We conclude that Ashelman was afforded minimum due process in his prison
disciplinary hearing, and we dismiss his personal restraint petition.
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.
Lawrence-Berrey, J. ·,
j
WE CONCUR:
Q.
Pennell, C .J. Staab, J.
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