In the Matter of the Personal Restraint of: Ryan Daniel Corkery ( 2021 )

FILED
JULY 13, 2021
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 RE THE MATTER OF PERSONAL )
RESTRAINT OF ) No. 37547-1-III
)
RYAN DANIEL CORKERY. )
) UNPUBLISHED OPINION
)
)
FEARING, J. — By way of a personal restraint petition, Ryan Corkery challenges
prison discipline imposed on him based on an allegation that he conspired with others to
secrete a controlled substance into a corrections facility. Because no evidence supports
that Corkery agreed with another to commit the infraction, we grant Corkery relief. We
thereby decline to address additional contentions that the Department of Corrections
(DOC) violated his due process rights when conducting the infraction hearing.
FACTS
Ryan Corkery currently serves a sentence for second degree murder and first
degree arson committed in 2010. The question before this court is whether the State
Department of Corrections presented sufficient evidence to discipline Ryan Corkery for
No. 37547-1-III
In re Personal Restraint Petition of Corkery
conspiracy to introduce a controlled substance into prison. DOC captured the events
leading to the alleged infraction on video.
On the morning of October 13, 2019, Ryan Corkery and fellow Coyote Ridge
inmate David Tieken worked as dog handlers in the prison dog yard located near the
prison medical unit. On that morning, inmate Angelo Jaramillo received his release
medications from the prison medical unit. Jaramillo dropped a small baggie on the grass
outside the medical building and gave a signal toward Tieken and Corkery standing in the
dog yard. Jaramillo then left the area.
David Tieken left the dog yard and walked toward the grass where Angelo
Jaramillo dropped the baggie. Corkery pointed toward the grass where Jaramillo dropped
the baggie. Tieken then retrieved the bag. Less than two minutes after finding the
baggie, Tieken reentered the dog yard. Corkery closed a gate behind Tieken.
A confidential source informed DOC corrections officers of a drug transfer.
Correction officers discovered that the dropped package recovered by David Tieken
contained Suboxone. Suboxone is a prescription medication used to treat those addicted
to opioids.
DOC employee, James Rollins conducted an investigation into the transfer of the
Suboxone. We do not disclose most of the results of the investigation because of DOC’s
sealing the interviews with witnesses. Some of the interviews support a finding that
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Ryan Corkery knew that the package contained drugs. None of the information in the
sealed documents suggests that Corkery agreed to assist in the transfer.
PROCEDURE
On November 8, 2019, DOC prepared an initial serious infraction report.
Attachment A. The report alleged Ryan Corkery “conspired with another offender to
transfer an unauthorized drug which, is in violation of WAC 603.” Response of
Department of Corrections, Exhibit 1, Attachment A. WAC 603 is DOC argot for WAC
137-25-030(603). On November 15, 2019, DOC served a disciplinary hearing notice on
Corkery.
In response to the infraction notice, Corkery requested submission of a witness
statement from David Tieken. Tieken submitted a statement, in which he declared that
Corkery lacked knowledge of the reason for which Tieken left the dog yard and of the
contents of the bag.
On November 20, 2019, Ryan Corkery appeared before a DOC hearing officer.
Corkery testified at the hearing that he knew nothing about the dropping of Suboxone.
Instead he pointed to the bag dropped by Angelo Jaramillo in order to learn from David
Tieken as to the bag’s contents. According to Corkery, Tieken responded that Corkery
was not supposed to know of the nature of the contents.
The DOC hearing officer found Ryan Corkery guilty of the alleged infraction
pursuant to WAC 137-25-030(603). The officer relied on a supplemental witness
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statement, video footage, and confidential information, the source of which the DOC did
not disclose due to safety concerns. The hearing officer imposed the following sanctions:
180 days suspension of visitation applied
180 days inter/restrict/term corresp/tele/elect communication applied
180 days loss of fee-based recreation applied
75 days loss of good conduct time applied
180 days loss or limitation of store privileges applied
1 year denial of attendance at special events applied
ua/breath alcohol testing applied
Removal from waiting lists for work/other program assign applied
Loss of housing assignment applied
Frmt/review of custody classification applied
Response of the Department of Corrections, Exhibit 1, Attachment H.
Ryan Corkery appealed to the prison’s associate superintendent, who upheld the
hearing officer’s decision.
LAW AND ANALYSIS
In his personal restraint petition before this court, Ryan Corkery challenges his
disciplinary hearing’s process and result. He contends DOC conducted a disciplinary
proceeding, in which it failed to distinguish evidence. He argues he never received a
copy of any document that provided a summary of the submitted confidential
information. Corkery asserts that, because of these procedural irregularities, DOC
violated his due process rights. He also maintains that no evidence supports a finding
that he conspired to introduce a controlled substance into the prison facility. We agree no
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evidence supports the infraction finding. Therefore, we do not address Corkery’s due
process contentions.
In order to prevail on a collateral attack by way of personal restraint petition, the
petitioner must generally establish that a constitutional error resulted in actual and
substantial prejudice or a nonconstitutional error resulted in a fundamental defect which
inherently resulted in a complete miscarriage of justice. In re Personal Restraint of
Isadore, 151 Wn.2d 294, 298, 88 P.3d 390 (2004). Nevertheless, these high standards do
not apply to prison disciplinary actions when the petitioner lacked an earlier opportunity
for judicial review. In re Personal Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d
285 (2010); In re Isadore, 151 Wn.2d 294, 299 (2004). Instead, the petitioner must only
show a restraint under RAP 16.4(b) and an unlawful restraint under RAP 16.4(c). In re
Personal Restraint of Isadore, 151 Wn.2d at 299.
RAP 16.4(b) defines a restraint as:
[T]he 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.
Restraint is unlawful under RAP 16.4(c) if the conditions or the manner of restraint
violate the federal or Washington Constitution or other grounds exist on which to
challenge the legality of the restraint. RAP 16.4(c)(6)-(7).
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As a result of the infraction finding, Ryan Corkery lost good conduct credits. A
prisoner holds a protected liberty interest in earning good time credit. In re Personal
Restraint of Higgins, 152 Wn.2d 155, 164, 95 P.3d 330 (2004).
“Some evidence” must support the finding of a prison infraction for this court to
affirm the discipline. In re Personal Restraint of Grantham, 168 Wn.2d 204, 216 (2010).
Ascertaining whether “some evidence” exists does not require examination of the entire
record, independent assessment of the credibility of witnesses, or weighing of the
evidence. Superintendent, Massachusetts Correctional Institution, Walpole v. Hill, 472
U.S. 445, 455, 105 S. Ct. 2768, 86 L. Ed. 2d 356 (1985); In re Personal Restraint of
Johnston, 109 Wn.2d 493, 497, 745 P.2d 864 (1987). Instead, this court determines
whether any evidence in the record could support the conclusion reached by the
disciplinary board. Superintendent, Massachusetts Correctional Institution, Walpole v.
Hill, 472 U.S. 445, 455-56 (1985); In re Personal Restraint of Johnston, 109 Wn.2d 493,
497 (1987). The evidence must connect the petitioner to the infraction. In re Personal
Restraint of Reismiller, 101 Wn.2d 291, 297, 678 P.2d 323 (1984).
The hearing officer found Ryan Corker guilty pursuant to WAC 137-25-030(603).
This regulation declares:
Serious violations.
(1) Any of the following types of behavior may constitute a serious
violation. Attempting or conspiring to commit one of the following
violations, or aiding and abetting another to commit one of the following
violations, shall be considered the same as committing the violation. . . .
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Category A
....
603 – Introducing or transferring any unauthorized drug or drug
paraphernalia[.]
(Boldface in original.) The State limited its allegations in the serious infraction report
and notice to a conspiracy to introduce a drug.
The State argues that “some evidence” supported that Corkery conspired with
another offender. Although a criminal trial applies a different standard of proof than
applicable in the review of a prison disciplinary hearing, our high court has ruled that, in
order to convict a defendant of criminal conspiracy, the State must show that the
conspirators agreed to undertake a criminal scheme and they took a substantial step in
furtherance of the conspiracy. State v. Bobic, 140 Wn.2d 250, 265, 996 P.2d 610 (2000).
The State must show that an actual agreement existed. State v. Pacheco, 125 Wn.2d 150,
159, 882 P.2d 183 (1994); State v. Butler, 165 Wn. App. 820, 834, 269 P.3d 315 (2012).
When the State relies on circumstantial evidence, the circumstances must be consistent
with each other and inconsistent with innocence. State v. McGonigle, 144 Wash. 252,
258, 258 P. 16 (1927).
The video footage, in a light favorable to DOC, showed that Ryan Corkery pointed
toward a baggie and then closed the dog yard gate behind David Tieken once Tieken
retrieved the Suboxone bag. In addition, the sealed documents support that Corkery
knew what the package contained and that there would be a drug transfer. Nevertheless,
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the issue before the hearing officer was whether Ryan Corkery conspired to introduce or
transfer drugs. The question is whether “some evidence” shows that Corkery agreed with
another to introduce the Suboxone.
Confidential information from those involved in the planning of the transfer of a
controlled substance did not implicate Ryan Corkery. More importantly, DOC presented
no evidence that Corkery agreed with anyone in advance to assist in the transfer of the
controlled substance. The State focuses its argument in the brief to Corkery assisting
David Tieken by pointing to the location where Angelo Jaramillo dropped the bag and by
closing a gate. But one can assist without having reached an agreement to assist in
advance. The evidence is consistent with Corkery spontaneously pointing to the bag and
closing the gate. The State does not even argue in its brief that Corkery reached an
agreement with any coconspirator.
The State failed to present some evidence to support an infraction of conspiracy
under WAC 137-25-030(603).
CONCLUSION
We grant Ryan Corkery’s personal restraint petition. We remand to DOC to strike
the infraction and the discipline orders as a result of the alleged infraction.
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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.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Pennell, C.J.
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