713871MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 71387-1
Title of Case: Personal Restraint Petition of
v.
Kenneth Mines
File Date: 05/02/2002
Oral Argument Date: 03/12/2002


SOURCE OF APPEAL
----------------


JUSTICES
--------
Authored by Bobbe J. Bridge
Concurring: Gerry L. Alexander
Charles Z. Smith
Charles W. Johnson
Barbara A. Madsen
Richard B. Sanders
Faith E Ireland
Tom Chambers
Susan J. Owens


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Kenneth Mines (Appearing Pro Se)
C/O H.O.M.E
817 - 32nd Avenue
Seattle, WA 98122

Thomas M. Kummerow
Washington Appellate Project
Cobb Bldg
1305 4th Ave Ste 802
Seattle, WA 98101

Counsel for Respondent(s)
Donna H. Mullen
Attorney General Office
PO Box 40116
Olympia, WA 98504-0116

Diana M. Sheythe
Attorney Generals Office Criminal Justice Division
P.O. Box 40116
Olympia, WA 98504-0116

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal
Restraint Petition of: NO. 71387-1

KENNETH MINES, EN BANC

Petitioner. Filed May 2, 2002

BRIDGE, J.--After finding Kenneth Mines guilty of two parole violations,
the Indeterminate Sentencing Review Board (Board) revoked his parole. In
order to appeal his parole revocation, Mines' attorney sought a copy of the
hearing tape. However, she was informed that the tape was blank. A
request for a new hearing was denied and this personal restraint petition
(PRP) followed. The Court of Appeals denied Mines' PRP, holding that
though the Board violated RCW 9.95.124 and WAC 381-70-410 by not producing
a record of the hearing, Mines had failed to show that he was prejudiced by
the absence of a recording.
We hold that neither In re Personal Restraint of Cashaw, 123 Wn.2d 138,
150, 866 P.2d 8 (1994) nor In re Personal Restraint of Shepard, 127 Wn.2d
185, 898 P.2d 828 (1995) requires Mines to demonstrate prejudice from the
Board's failure to record his parole revocation hearing in order to obtain
a new hearing.
I
Mines was convicted of second degree murder and found to be a habitual
criminal in 1981. He was sentenced to life in prison. The Board set his
minimum sentence at 20 years. Mines was paroled in May 1998. The
conditions of his parole required, in part, that Mines obey all laws and
'{e}nter into and successfully complete any drug and alcohol program'
deemed necessary by his community corrections officer (CCO).1 Pursuant to
these conditions, Mines' CCO, Suzann Braverman, required that he enroll in
a 26-week drug and alcohol out-patient program at Lakeside Milam Recovery
Center (Lakeside).
Approximately six months later, Mines was terminated from the Lakeside
program for allegedly making unwanted sexual advances toward several female
patients. Mines' CCO moved to revoke his parole, specifying three
violations: (1) failure to comply with the drug and alcohol treatment
required by his CCO; (2) failure to obey the law by harassing Lucy Lotto in
violation of RCW 10.14.020;2 and (3) failure to obey the law by harassing
Denise Devine in violation of RCW 10.14.020. Mines' parole was suspended
pending a hearing by the Board.
A parole revocation hearing was held before Board member Kathryn Bail on
November 23, 1998. Mines was present at the hearing and was represented by
appointed counsel. The Board heard testimony from Preston Hayes of
Lakeside, Lotto, Devine, Braverman, and Mines. Relying on the witnesses'
testimony as well as the violation report, the Board found Mines guilty of
counts one and two (failure to complete the drug and alcohol program and
harassing Lotto), but not guilty of count three (harassing Devine). The
Board revoked Mines' parole and fixed his new minimum sentence at 36
months.3
Intending to appeal the Board's decision, Mines retained counsel, Leta
Schattauer. Schattauer requested a copy of Mines' hearing tape. The Board
replied that it was unable to make a copy of the tape because the 'hearing
tape {was} blank.'4 Pursuant to WAC 381-70-410, which requires the Board
to tape record all parole revocation hearings, and Cashaw, Mines requested
a new hearing. The Board denied this request, stating that WAC 381-70-410
was only a procedural guideline and created no procedural or substantive
right.
Mines, acting pro se, then filed this PRP with the Court of Appeals.5 The
Court of Appeals subsequently appointed counsel to represent him. Relying
on Cashaw and Shepard, Mines argued that because the Board had not complied
with RCW 9.95.124 and WAC 381-70-410 by failing to record his parole
revocation hearing, he was entitled to a new hearing.
The Court of Appeals agreed that the Board had violated WAC 381-70-410 and
RCW 9.95.124 by failing to record Mines' hearing, but denied Mines'
petition because he had not shown that he was prejudiced by the violation.
Although acknowledging that the 'court in Cashaw and Shepard did not
expressly discuss a prejudice requirement, and evaluated those petitions by
examining only the requirements of RAP 16.4,' the court nonetheless held
that both cases had implicitly required the petitioners to demonstrate
prejudice in order to prevail.6 Concluding that Mines had failed to
demonstrate any prejudice, the Court of Appeals denied his PRP. This court
granted Mines' motion for discretionary review.7 Prior to oral argument,
the State moved to dismiss the case as moot because Mines had been paroled.
II
The Board first argues that this case should be dismissed as moot. 'A case
is moot if a court can no longer provide effective relief.' In re Cross,
99 Wn.2d 373, 376-77, 662 P.2d 828 (1983). The Board asserts that because
Mines has been paroled, there is no need to grant him a new parole
revocation hearing. Thus, this court cannot provide him with effective
relief. Mines responds that the case is not moot because collateral
consequences still exist. Alternatively, Mines asserts that even if the
case is moot, this court may still reach the merits of his claim because it
presents matters of continuing and substantial public interest.
In Monohan v. Burdman, 84 Wn.2d 922, 925, 530 P.2d 334 (1975), we noted
that 'the restrictions, limitations, and conditions attached to the usual
parole status constitute a form of 'custody' falling within the reach of
habeas corpus relief.' More importantly for Mines' case, this court stated
that the potential adverse effects of a parole date cancellation, including
the use of that violation when considering continued parole or possible
probation, may be sufficient to 'retrieve {the} petition from the 'limbo of
mootness.'' Id. (quoting Parker v. Ellis, 362 U.S. 574, 577, 80 S. Ct.
909, 4 L. Ed. 2d 963 (1960) (Warren, C.J., dissenting)). Because of these
considerations, the court in Monohan held that the petition was not
rendered moot by the petitioner's parole. Id.
Mines asserts that his parole revocation has collateral consequences
similar to those discussed in Monohan. He contends that because WAC 381-70-
030(4) requires the Board to consider its previous actions during the
period of parole when making decisions regarding parole revocation or
reinstatement, his prior parole revocation may affect his position should
his parole be revoked in the future.
Although Mines' case is arguably distinguishable from Monohan in that
Mines' basis for relief is not habeas corpus, but a PRP pursuant to RAP
16.4, the collateral consequences that he may suffer as a result of his
prior parole revocation are similar to those mentioned in Monohan.
However, we need not decide this question because we conclude that matters
of substantial and continuing public interest are presented, which require
us to decide the merits of the petition.
A court may decide a technically moot case if it involves ''matters of
continuing and substantial public interest.'' Cross, 99 Wn.2d at 377
(quoting Sorenson v. City of Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512
(1972)). When determining the ''requisite degree of public interest,''
courts should consider (1) ''the public or private nature of the question
presented,'' (2) ''the desirability of an authoritative determination for
the future guidance of public officers, and'' (3) ''the likelihood of
future recurrence of the question.'' Sorenson, 80 Wn.2d at 558 (quoting
People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622, 104 N.E.2d 769
(1952)).
In Hart v. Department of Social & Health Services, 111 Wn.2d 445, 449, 759
P.2d 1206 (1988), this court observed that most cases in which appellate
courts utilized the exception to the mootness doctrine involved issues of
constitutional or statutory interpretation. These types of issues, the
court stated, tended to be more public in nature, more likely to arise
again, and the decisions helped to guide public officials. Id. It further
noted that the exception had not been used in cases involving statutory or
regulatory interpretation limited to their facts. Id.
Considering the three requirements, we conclude that Mines' case involves
matters of continuing and substantial public interest. The Court of
Appeals opinion was not limited to the specific facts presented in this
case, but included an interpretation of this court's holdings in Cashaw and
Shepard. Although the rule enunciated by the Court of Appeals does not
address statutory interpretation, it does involve an interpretation of case
law. Whether case law has been properly interpreted is analogous to
questions of statutory interpretation, which, as we noted in Hart,
generally involve issues that are public in nature. Moreover, because the
Court of Appeals opinion arguably conflicts with the decisions in Cashaw
and Shepard, it is necessary to provide an authoritative determination on
the issue to guide both the appellate courts and the Board. Finally,
despite the Board's assertion that the specific violation in this case is
unlikely to reoccur, it is likely that other violations of state law or
regulation addressing parolability issues may occur in the future. Thus,
the need to clarify the standard of review in this area remains.
III
Mines asserts that the Court of Appeals decision conflicts with our
holdings in Cashaw and Shepard. He argues that neither Cashaw nor Shepard
require a showing of prejudice once a petitioner proves that the Board
violated the laws of Washington. We agree.
In Cashaw, this court examined whether a petitioner was entitled to relief
where the Board set his minimum term for incarceration so as to coincide
with the remainder of the petitioner's maximum sentence without providing
the petitioner with notice or an in-person hearing, which violated the
Board's own procedural rules. Cashaw, 123 Wn.2d at 140-41. Although the
court held that there was no due process liberty interest created by the
Board's regulations, id. at 147, it nonetheless concluded that 'an inmate
filing a PRP may be entitled to relief merely by showing that the Board
failed to follow its own procedural regulations in setting a minimum term.'
Id. at 147-48.
The court further stated that the threshold requirements that generally
apply to PRPs--that a petitioner show either an ''actual and substantial
prejudice'' from a constitutional error or ''a fundamental defect which
inherently results in a complete miscarriage of justice''--did not apply to
petitions 'challenging the Board's failure to follow its own procedures.'
Id. at 148 (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 810, 812,
792 P.2d 506 (1990)). It reasoned that the rationale for the threshold
requirements was not applicable in this situation because a petitioner
challenging a Board decision 'generally has had no previous or alternative
avenue for obtaining state judicial review.' Id. at 149. The court,
therefore, held that it would evaluate Cashaw's petition 'by examining only
the requirements of RAP 16.4.' Id. It concluded that Cashaw was entitled
to relief because he was restrained pursuant to RAP 16.4(b) and his
restraint was unlawful under RAP 16.4(c)(2), (6) because 'it was
accomplished in violation of the Board's regulations.' Id.
In Shepard, we reaffirmed the holding of Cashaw. We stated that '{t}his
court evaluates petitions that challenge parole decisions 'by examining
only the requirements of RAP 16.4.'' Shepard, 127 Wn.2d at 191 (quoting
Cashaw, 123 Wn.2d at 149). In doing so, the court rejected the Board's
contention that a petitioner must also show that the Board abused its
discretion once he or she has shown a procedural violation. Id. at 191-92.
It stated that the abuse of discretion requirement applied only to
challenges to the substance of the Board's decision and not to assertions
that the Board failed to adhere to its own procedures. Id. The court
concluded that because the facts in that case where identical to those in
Cashaw, the petitioner was entitled to a new hearing. Id.
Even though Cashaw and Shepard addressed procedural violations in setting a
new minimum sentence and this case involves a procedural violation in a
parole revocation hearing, the same considerations apply to both
situations. Parole revocation hearings, like parolability decisions, are
reviewable only by PRPs. Furthermore, in Mines' case the Board's decision
to revoke his parole was coupled with a decision to impose a new minimum
sentence. Thus, Cashaw and Shepard govern our analysis.
The Court of Appeals held that the Board had violated both RCW 9.95.1248
and WAC 381-70-4109 when it failed to record the parole revocation hearing.
In re Pers. Restraint of Mines, 107 Wn. App. 630, 635, 27 P.3d 691 (2001).
It rejected the Board's argument that there could be no violation because
the Board had acted in good faith in attempting to record the proceedings.
Id. The Board does not challenge this conclusion.
Although the Court of Appeals acknowledged that the court in Cashaw and
Shepard 'did not expressly discuss a prejudice requirement, and evaluated
those petitions by examining only the requirements of RAP 16.4,' it
nevertheless concluded that Mines must show that he was prejudiced by the
procedural violation in order to obtain a new hearing. Id. at 636.
We reject the Court of Appeals interpretation of Cashaw and Shepard.
Neither the Board nor the Court of Appeals cites to any language in Cashaw
or Shepard which supports this implied requirement. The plain language of
both cases clearly states that in reviewing a petition challenging a parole
decision, the court examines ''only the requirements of RAP 16.4.''
Shepard, 127 Wn.2d at 191 (quoting Cashaw, 123 Wn.2d at 149). Furthermore,
the court in Cashaw expressly rejected requiring petitioners challenging
parolability decisions to satisfy the threshold showing required of most
PRPs. Cashaw, 123 Wn.2d at 149. It would be inconsistent to eliminate the
threshold prejudice requirement ('actual and substantial prejudice' or 'a
fundamental defect'), but impose a subsequent prejudice requirement before
relief can be granted to a petitioner.
The only reference to Cashaw and Shepard made by the Court of Appeals was
its statement that 'it is clear that the petitioners in those cases were
seriously prejudiced by the Board's failure to provide notice and an in-
person hearing before setting the minimum term to equal the maximum
sentence.' Mines, 107 Wn. App. at 636. However, no showing was made in
either Cashaw or Shepard that the petitioners were prejudiced by the
violation--that the outcome would have been different had the petitioners
attended the hearings. Thus, the facts of Cashaw and Shepard do not
provide any support for the argument that prejudice was implicitly
required.
The Board asserts that the United States Supreme Court's holding in Sandin
v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995)
'undermines the principle that simply because a procedural violation
occurs, a petition should be granted.' Resp. of Board to Mot. for
Discretionary Review at 11. However, the Board's reliance on Sandin is
misplaced. First Sandin addressed the issue of whether a prisoner had a
liberty interest that could give rise to due process protections in
remaining free from segregated confinement. Sandin, 515 U.S. at 476. It
held that neither the state's prison regulation nor the Due Process Clause
afforded the prisoner 'a protected liberty interest that would entitle him
to procedural protections.' Id. at 487. In so holding, the Court
recognized that states 'may under certain circumstances create liberty
interests which are protected by the Due Process Clause,' but stated that
these interests 'will be generally limited to freedom from restraint which
. . . imposes atypical and significant hardships on the inmate in relation
to the ordinary incidents of prison life.' Id. at 484.
In the parolability context, we have already answered the question of
whether parole regulations create procedural due process rights in the
negative. See Cashaw, 123 Wn.2d at 144-47. In Cashaw, the court held that
the Board's regulations as to parolability did not create a liberty
interest under the Due Process Clause. Id. at 147. Instead, its decision
that a petitioner may be entitled to relief by showing that the Board
failed to follow its own regulations was based on state law. Id. at 147-
48.
Second, Sandin addressed the rights of prison inmates in disciplinary
matters. Sandin, 515 U.S. at 476. The Court of Appeals has already
rejected the application of Cashaw to prison disciplinary issues. See In
re Pers. Restraint of Burton, 80 Wn. App. 573, 585, 910 P.2d 1295 (1996)
(concluding that 'Cashaw did not eliminate the requirement that a
petitioner show actual and substantial prejudice in order to maintain a PRP
challenging a prison disciplinary action'). Thus, Sandin simply does not
affect the holding in Cashaw.
The Board makes several policy arguments to support its position that a
petitioner should be required to show prejudice resulting from the
violation. We find these arguments unpersuasive. First, the Board
contends that to presume prejudice from a procedural violation would be
contrary to the 'fundamental principle of appellate procedure that requires
a showing of prejudice as a predicate to relief on appeal.' Suppl. Br. of
Board at 7.10 Contrary to the Board's position, whether a showing of
prejudice is required generally depends on applicable law. In this case,
the controlling law is Cashaw, Shepard, and RAP 16.4, none of which
requires a showing of prejudice in order to obtain a new hearing.
Second, the Board asserts that the Court of Appeals correctly concluded
that a contrary holding would result in encouraging inmates ''to comb
through regulations in search of minor procedural flaws in hopes of
obtaining new hearings on the basis of harmless technical errors.'' Resp.
of Board to Mot. for Discretionary Review at 13 (quoting Mines, 107 Wn.
App. at 636).
It is arguable that the Board's failure to record the hearing was in fact a
minor procedural violation. In any event, the Board's concerns seem to be
unjustified. Although Cashaw was decided in 1994, only a handful of cases
have relied on it for the proposition that a personal restraint petitioner
need only meet the requirements of RAP 16.4 when he or she brings a
petition alleging error in a parolability decision. See In re Pers.
Restraint of Peterson, 99 Wn. App. 673, 677, 995 P.2d 83 (2000); In re
Pers. Restraint of Webster, 74 Wn. App. 832, 833, 875 P.2d 1244 (1994); In
re Pers. Restraint of Turner, 74 Wn. App. 596, 598, 875 P.2d 1219 (1994);
In re Pers. Restraint of Nelson, No. 45129-4-I, 2000 WL 350580, at *1
(Wash. Ct. App. Mar. 1, 2000); In re Pers. Restraint of Compton, No. 39942-
0-I, 1998 WL 141934 (Wash. Ct. App. Mar. 30, 1998). With the exception of
Mines, none of the cases applying the Cashaw rule raises the type of
procedural violation that was at issue in Cashaw and Shepard.
IV
We, therefore, hold that neither Cashaw nor Shepard requires a personal
restraint petitioner to show that he or she was prejudiced by a procedural
violation in a parole revocation hearing in order to obtain a new hearing
if the petitioner otherwise meets the requirements of RAP 16.4. Because
the revocation of Mines' parole placed him under restraint and because the
Board violated RCW 9.95.124 and WAC 381-70-410 when it failed to record
Mines' parole revocation hearing, Mines has satisfied the requirements of
RAP 16.4. The Court of Appeals decision denying Mines' PRP is reversed.

WE CONCUR:

1 Resp. of Board to Mot. for Discretionary Review at App. 3.
2 RCW 10.14.020 states in part,
(1) 'Unlawful harassment' means a knowing and willful course of conduct
directed at a specific person which seriously alarms, annoys, harasses, or
is detrimental to such person, and which serves no legitimate or lawful
purpose. The course of conduct shall be such as would cause a reasonable
person to suffer substantial emotional distress, and shall actually cause
substantial emotional distress to the petitioner, or, when the course of
conduct is contact by a person over age eighteen that would cause a
reasonable parent to fear for the well-being of their child.
(2) 'Course of conduct' means a pattern of conduct composed of a series of
acts over a period of time, however short, evidencing a continuity of
purpose. 'Course of conduct' includes, in addition to any other form of
communication, contact, or conduct, the sending of an electronic
communication.
3 Although the Board's findings of fact and conclusions indicate that it
relied on the witnesses' testimony and the violation report, it is clear
from its 'reasons for decision' that it also relied on Mines' criminal and
institutional records.
4 PRP at Ex. I.
5 In re Pers. Restraint of Mines, 107 Wn. App. 630, 27 P.3d 691 (2001).
6 Id. at 636.
7 In re Pers. Restraint of Mines, 145 Wn.2d 1020 (2002).
8 RCW 9.95.124 states in part that parole revocation 'hearings shall be
recorded either manually or by a mechanical recording device.'
9 WAC 381-70-410 states in part, '{t}here will be a recording made of all
hearings conducted under the provisions of this chapter. Such recordings
shall be preserved for not less than six months subsequent to the hearing
at the offices of the board in Olympia.'
10 The Board seems to misunderstand the question posed in this case. It is
not whether prejudice will be presumed, but whether it is required at all.
Thus, the Board's discussion in its supplemental brief focusing on the
definition of prejudice and harmless error has no bearing on this case.
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