Personal Restraint Petition Of John E. Fletcher ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
October 22, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the No. 52722-7-II
Personal Restraint of
JOHN EDWARD FLETCHER, JR.,
Petitioner.
UNPUBLISHED OPINION
LEE, J. — John Fletcher Jr. filed a personal restraint petition (PRP) seeking relief from
personal restraint imposed as a result of the December 2017 decision of the Indeterminate Sentence
Review Board (ISRB) that found him not releasable and added 60 months to his minimum term of
confinement. We deny Fletcher’s PRP.
I. FACTS
Fletcher pleaded guilty to first degree robbery in 1981, before the enactment of the
Sentencing Reform Act of 1981, ch. 9.94A RCW (SRA), and was sentenced to a maximum term
of confinement of life. The predecessor to the ISRB set his minimum term of confinement at 108
months. The ISRB then reset his minimum term at 102 months.
The ISRB paroled Fletcher in 1990, but it revoked his parole in 2007 for infractions
committed while serving a term of confinement for a first degree burglary and first degree assault
he committed after being paroled. After a 2013 parolability hearing, the ISRB found Fletcher
No. 52722-7-II
conditionally parolable and added 30 months to his minimum term to complete a mutual reentry
plan.
After Fletcher committed infractions while on work release, the ISRB conducted another
parolability hearing in 2016. The ISRB again found Fletcher conditionally parolable and added
24 months to his minimum term to complete his mutual reentry plan.
In October 2017, Fletcher received two serious infractions. The first was for violating
WAC 137-25-030(557) for refusing to participate in an available work, training, education, or
other mandatory programming assignment. The infraction report stated that Fletcher had missed
8 out of 10 of his assigned classes and completed 0 out of 13 assignments. At his hearing, Fletcher
stated that he could not attend class because of his bad shoulder and back and had an “HSR”
(Health Status Report) excusing him from class. Pet. at 6. The hearing examiner noted that staff
advised there was not an HSR on file for Fletcher. The hearing examiner found Fletcher guilty of
violating WAC 137-25-030(557).
The second infraction was for WAC 137-25-030(724) for refusing a cell or housing
assignment. The infraction report stated that Fletcher “refused numerous directives [to] return to
his cell.” Resp., Ex. 24 at 2. At his hearing, Fletcher told the hearing examiner he had mental
health problems and “was hearing voices telling [him] to leave the Evergreen Unit.” Resp., Ex.
24 at 2. The hearing examiner found Fletcher guilty of violating WAC 137-25-030(724).
Before his December 2017 parolability hearing, Fletcher underwent a psychological
evaluation with Deborah Wentworth, Ph.D. The evaluation determined that Fletcher “has a rather
passive or victim stance about obtaining necessary programming to enable him to transition to the
community.” Resp., Ex. 20 at 9. And Dr. Wentworth characterized Fletcher’s motivation to be
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released as “questionable.” Resp., Ex. 20 at 9. Dr. Wentworth determined that Fletcher was a
high risk level with only slight mitigation factors. The evaluation noted, “[Fletcher] states he
wants to release and obtain work, but has done nothing over the more than 30 years of incarceration
to improve his training and skill level.” Resp., Ex. 20 at 15. The evaluation did not recommend
release or transition to a less restrictive setting.
At Fletcher’s December 2017 parolability hearing, Fletcher’s classification counselor
testified that Fletcher had been transferred to “camp” as part of his release plan, but he had been
transferred back to prison in September because he felt threatened and asked to be removed from
camp. Resp., Ex. 2 at 3. The classification counselor also explained Fletcher had been signed up
for a building maintenance class but he failed to attend. And Fletcher failed to attend his scheduled
mental health appointments. Fletcher told the ISRB that he had a shoulder injury that prevented
him from attending class. And Fletcher explained he missed the mental health appointments
because nobody reminded him.
The ISRB noted that Fletcher “took little personal responsibility for himself.” Resp., Ex.
2 at 4. The Board also noted that Fletcher had incurred two serious infractions since his return
from camp. And “[Fletcher] denied responsibility for these though he was found guilty in a
disciplinary hearing.” Resp., Ex. 2 at 4. The ISRB’s decision did not contain any other reference
to Fletcher’s recent infractions.
The ISRB found,
Mr. Fletcher has shown little motivation for self-improvement. He presents as one
who believes everyone else is responsible for him. His psychological evaluation is
not positive. The descriptor for his probability to reoffend violently is considered
high based upon his [Violence Risk Appraisal Guide-Revised] VRAG-R score.
Overall, Mr. Fletcher presents as too unmotivated and too irresponsible to consider
for release at this time. He could be taking more positive steps to prepare for release
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No. 52722-7-II
and has failed to do so. The Board expects he will participate in recommended
programming and remain serious infraction free.
Resp., Ex. 2 at 5. The ISRB added 60 months to his minimum term. In this PRP, Fletcher raises
eight issues.
II. ANALYSIS
First, Fletcher argues that the Department of Corrections erred in finding that he had
violated WAC 137-25-030(724) (refusing a housing assignment) and WAC 137-25-030(557)
(refusing to participate in a mandatory programming assignment). He contends that as to the
former, the notice of infraction was insufficiently detailed, and as to the latter, the hearing officer
erred in not contacting the medical unit to confirm that he had an excuse for not attending. We
review prison disciplinary proceedings to determine whether the Department’s action was so
arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding. In re Pers.
Restraint of Reismiller, 101 Wash. 2d 291, 294, 678 P.2d 323 (1984). In doing so, we look to whether
petitioner received the due process protections afforded him under Wolff v. McDonnell, 418 U.S.
539, 563-65, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). These protections include (1) advance
written notice of the charged violations, (2) the opportunity to present documentary evidence and
call witnesses when not unduly hazardous to institutional safety and correctional goals, and (3) a
written statement of the evidence relied on and the reasons for the disciplinary action. Fletcher
received all of these protections. When there is “some evidence” in the record, we will affirm the
Department’s disciplinary decision. Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768,
86 L. Ed. 2d 356 (1985); In re Pers. Restraint of Johnston, 109 Wash. 2d 493, 497, 745 P.2d 864
(1987).
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Here, the Department presented some evidence to support the violation of WAC 137-25-
030(557) because the infraction report stated that Fletcher had not completed any class
assignments and had only attended two classes. And the Department presented some evidence to
support the violation of WAC 137-25-030(724) because the infraction report stated that Fletcher
refused to return to his cell. Fletcher even appeared to admit he refused to return to his cell because
of the voices he was hearing. Therefore, we affirm the Department’s decisions finding Fletcher
guilty of the two infractions.
Second, Fletcher argues that the ISRB abused its discretion in relying on the above
infractions as part of its reasons for finding him not parolable and adding to his minimum term.
He contends that the ISRB is required to redetermine whether the infractions were committed,
rather than relying on the Department’s decisions. But he does not show that there is any such
requirement. The ISRB did not abuse its discretion in considering the disciplinary infractions. In
re Pers. Restraint of Addleman, 151 Wash. 2d 769, 776-77, 92 P.3d 221 (2004).
Third, Fletcher argues that the ISRB abused its discretion in not giving him a copy of the
psychological evaluation report 30 days in advance of the parolability hearing. But when Fletcher
informed the ISRB at the parolability hearing that he had not had an opportunity to review his file,
the ISRB offered to continue the hearing to allow him time to do so. He declined that offer. The
ISRB did not abuse its discretion in considering the psychological evaluation.
Fourth, Fletcher argues that the ISRB abused its discretion in considering the psychological
evaluation because it contains inaccuracies. But the inaccuracies he claims relate to his
correctional history, and the ISRB gave him the opportunity to submit a written statement after the
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No. 52722-7-II
parolability hearing to contest the psychological evaluation. Fletcher did not submit such a
statement. The ISRB did not abuse its discretion in considering the psychological evaluation.
Fifth, Fletcher argues that the ISRB abused its discretion in basing its decisions on evidence
that was “erroneous or misleading or even petty.” Pet. at 4. Fletcher does not show that the ISRB
abused its discretion in finding that he was not rehabilitated and, therefore, in adding to his
minimum term of confinement. In re Pers. Restraint of Ecklund, 139 Wash. 2d 166, 176, 985 P.2d
342 (1999).
Sixth, Fletcher argues that the ISRB violated its duty to take into account the sentencing
recommendations of the trial court and the State. But he does not demonstrate any such violation.
Fletcher’s ISRB file, which the ISRB considered in its December 2017 decision, contains the
sentencing recommendations of 7.5 years from the sentencing court and 20 years from the State,
respectively. He also argues that the ISRB violated its duty under RCW 9.95.009(2) to make his
minimum term reasonably consistent with the SRA sentencing range for his crime. But the ISRB
must balance that duty with the duty to determine if the offender is fit for release on parole.
Addleman, 151 Wash. 2d at 775. Given the lack of progress that Fletcher had made toward becoming
fit for release on parole, the ISRB did not abuse its discretion in setting his minimum term.
Seventh, Fletcher argues that the ISRB abused its discretion when it did not give adequate
written reasons for adding 60 months to his minimum term. Again, given the lack of progress that
Fletcher had made toward becoming fit for release on parole, the ISRB did not abuse its discretion
in adding 60 months to his minimum term.
Finally, Fletcher argues that the ISRB gave him a disproportionate sentence when it added
60 months to his minimum term. But until it is satisfied that Fletcher is parolable, the ISRB is
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No. 52722-7-II
required to extend his minimum term of confinement. In re Pers. Restraint of Cashaw, 123 Wash. 2d
138, 143, 866 P.2d 8 (1994). Because the ISRB did not find Fletcher parolable, it did not abuse
its discretion in adding to his minimum term.
Fletcher’s challenges to the ISRB’s December 2017 parolability decision fail. Therefore,
we deny his PRP.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
LEE, J.
We concur:
MAXA, C.J.
MELNICK, J.
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