STATE v. In re the Personal Restraint Petition of Michael T. Donery, Petitioner. (2006)

PART PUBLISHED OPINION

¶ 1 Michael Tranh Donery appeals his conviction for persistent prison misbehavior, which requires the State to prove that he had lost all potential earned early release time.  RCW 9.94.070(1).   We hold that the Department of Corrections cannot remove good time earned in county jail and it is therefore not potential earned early release time for the purposes of the persistent prison misbehavior statute.   We also hold that (1) he was properly restrained during his trial;  (2) he was not denied due process in previous prison disciplinary proceedings;  (3) that the trial court's instructions did not mislead the jury about their duty to convict;  and (4) that even if one of the jail infraction codes under which he was convicted was unconstitutionally vague, it would be immaterial because the jury found him guilty under two other unchallenged regulations.   We consolidated this appeal with Donery's Personal Restraint Petition.   We affirm Donery's conviction and deny his petition.

FACTS

¶ 2 Donery was serving a 27-month sentence for a second degree assault he committed on May 16, 2001, and for which he was convicted on November 16, 2001.   As a result of his misbehavior while in state prison, Donery lost all of his potential early release time for time served at Department of Corrections (DOC) facilities by January 23, 2002.   But Donery had 38 days of earned early release time from time he spent in county jail awaiting his trial and sentencing.   DOC did not take away the county jail time because it believed it did not have the authority to do so.

ANALYSIS

¶ 3 Donery argues that there was insufficient evidence to prove that he had lost “all potential earned early release time credit” as RCW 9.94.070(1) required because it is undisputed that he had 38 days of certified earned early release credit from the county jail.   The State argues that the statute only requires it to prove that Donery lost all potential earned early release time from his stay in state correctional facilities and not county jails.   Under the State's theory, there was sufficient evidence to convict Donery as Donery does not dispute that he had lost all early release time from the state system.

 ¶ 4 We therefore must determine the statutory meaning of “all potential earned early release time credit.”   We review questions of law, including statutory construction, de novo.  City of Pasco v. Pub. Employment Relations Comm'n, 119 Wash.2d 504, 507, 833 P.2d 381 (1992).   We look to the statute's plain language in order to give effect to legislative intent.   Lacey Nursing Ctr., Inc. v. Dep't of Revenue, 128 Wash.2d 40, 53, 905 P.2d 338 (1995).   When faced with an unambiguous statute, we derive the legislature's intent from the plain language alone.  Waste Mgmt. of Seattle, Inc. v. Util. Transp. Comm'n, 123 Wash.2d 621, 629, 869 P.2d 1034 (1994).   While the court may not look beyond the plain statutory language, the court must read the statute as a whole and harmonize each provision.  State v. Thorne, 129 Wash.2d 736, 761, 921 P.2d 514 (1996).

¶ 5 To convict Donery of persistent prison misbehavior, the State had to prove that (1) Donery knowingly committed (2) a serious infraction that did not constitute a class A or B felony, (3) “after losing all potential earned early release time credit.”  RCW 9.94.070(1).   The only issue is whether earned early release time from county jails is included in the phrase.

¶ 6 RCW 9.94.070(1) does not define “potential earned early release time credit.”   But the phrase is defined in the Sentencing Reform Act (SRA) and in the statute describing DOC's obligations.   The DOC statute defines it as “earned release as authorized by RCW 9.94A.728.” RCW 72.09.015(5).   The SRA provision defines it as “earned release from confinement as provided in RCW 9.94A.728.” RCW 9.94A.030(21).   Reading the DOC and SRA statutes as part of a statutory scheme, the legislature's apparent intent was to define “earned early release” by reference to RCW 9.94A.728.

¶ 7 Therefore, we turn to RCW 9.94A.728 to determine the meaning of “earned early release time.”   That statute provides:

the term of the sentence of an offender committed to a correctional facility operated by the department may be reduced by earned release time in accordance with the procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined.

RCW 9.94A.728(1).   The Washington Supreme Court has interpreted this provision to “give ․ both county jails and the state correctional system [ ] plenary authority over good-time awards for offenders under their jurisdiction.”  In re Pers. Restraint of Williams, 121 Wash.2d 655, 661, 853 P.2d 444 (1993).   The court emphasized that “[u]nder our reading of the statute, the county jail retains complete control over the good-time credits granted to offenders within its jurisdiction.”  Williams, 121 Wash.2d at 665, 853 P.2d 444.

¶ 8 RCW 9.94A.728(1) also provides that “[i]f an offender is transferred from a county jail to the department, the administrator of a county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned release time.”  RCW 9. 94A.728. The Williams court interpreted this sentence of the statute to mean that DOC must accept the county jail's calculation of good time unless it is based on an apparent or manifest error of law.  Williams, 121 Wash.2d at 664, 853 P.2d 444.   Interpreting the statute as a method of avoiding DOC oversight of county jails, the court also held that DOC is not required to review or approve good-time policies of county jails nor review the certification's accuracy.  Williams, 121 Wash.2d at 666, 853 P.2d 444.   Even when the certification is invalid, the remedy is not for DOC to correct the error, but it is to remand to the county jail for recertification.   Williams, 121 Wash.2d at 668, 853 P.2d 444 (Durham, J. concurring).   Williams's basic rationale is state penal institutions and county jails have separate authority for granting earned early release time.

 ¶ 9 Applying this rationale to the persistent prison misbehavior statute, earned early release time means the time Donery could earn in the state system.   The State correctly notes that RCW 9.94.070(1) applies only to “[a]n inmate of a state correctional institution.”   And RCW 9.94.070(3) incorporates the definition of “state correctional institution” from RCW 9.94.049, which provides that a state correctional institution is one under the supervision of DOC. RCW 9.94.049(2).   Significantly, this provision specifically distinguished a “state correctional institution” from a “correctional institution,” which includes both prisons and county jails.   RCW 9.94.049(1), (2).

¶ 10 Because RCW 9.94A.728 divides plenary authority between the county jails and state facilities and the persistent prison misbehavior statute applies only to state correctional facilities, we interpret the statute to require the State to prove that Donery had lost all time within the state system, not the county jail.

¶ 11 This interpretation, as the State notes, gives meaning to the word “potential” in the persistent prison misbehavior statute.  “Potential” means “existing in possibility.”   Webster' s Third International Dictionary 1775 (1969).   Because the state institutions do not have the authority to alter county jail good time awards, only the possible early release time that an inmate of a state institution can earn is time granted by DOC.

¶ 12 Donery argues that this interpretation is undercut by the DOC's administrative code which provides that “all awards of good conduct time shall be considered tentative and therefore all good conduct time credits earned or to be earned may be addressed under this rule.”  WAC 137-28-350(1)(l ) (iii).   But this WAC provision does not mean that the DOC has the authority to grant or revoke early release time the jail certified.   An administrative agency only has those powers the legislature specifically granted.  State v. Jackson, 137 Wash.2d 712, 724 n. 5, 976 P.2d 1229 (1999).   And RCW 9.94A.728 allocates the authority over good time credit to the agency having jurisdiction over the prisoner.   Thus, the WAC provisions can only govern early release time DOC awards.

¶ 13 Donery's next argument is that nothing in the WACs or RCWs prevents DOC from taking away early release time the county jail awarded.   Donery suggests that the court read the absence of a provision in the statute and regulations to mean that DOC could do so if it wished.   But this turns the rule that administrative agencies have only those powers the legislature granted on its head.   Unless the statute expressly or by necessary implication gives the power to oversee county jails' good time policies, DOC does not have that power.   See Ass'n of Wash. Bus. v. Dep't of Revenue, 155 Wash.2d 430, 437, 120 P.3d 46 (2005) (citing Tuerk v. Dep't of Licensing, 123 Wash.2d 120, 124-25, 864 P.2d 1382 (1994)) (holding agencies have only those powers expressly granted or necessarily implied).

¶ 14 Donery's last argument is that reading the statute to require DOC to take away all county time undercuts DOC's ability to control its prisoners.   The State responds that their interpretation of the statute actually facilitates the legislature's intent.   We agree.

 ¶ 15 We give substantial weight to an agency's interpretation of statutes and regulations when it falls within its expertise, but we retain our ultimate responsibility to see that rules and statutes are applied consistently with the legislature's policy.  Children's Hosp. & Med. Ctr. v. Dep't. of Health, 95 Wash.App. 858, 864, 975 P.2d 567 (1999).

¶ 16 Here, the Washington Supreme Court has interpreted at least one of the purposes behind the earned release time program as a method of maintaining discipline in prisons and county jails.  Williams, 121 Wash.2d at 664-65, 853 P.2d 444.   As Donery notes, the prison would have been able to give greater punishment, presumably gaining some level of additional discipline, if DOC could take away county jail time.

¶ 17 But there would be a corresponding loss of disciplinary power in the county jails.   Under the State's proposed interpretation, the county's good time certification is a more powerful reward for prisoners if the State cannot take it away.   As the time prisoners spend in county jail is usually much shorter than in DOC, and because the county cannot take away good credit time an inmate might earn in state prison, the county arguably needs to have a greater incentive to be able to improve discipline.   Therefore, holding that DOC does not have authority to take away county time furthers the legislature's purpose of allowing both county jails and state institutions to exercise plenary authority over good time awards.  Williams, 121 Wash.2d at 661, 853 P.2d 444.

¶ 18 Therefore, we hold that to convict Donery of persistent prison misbehavior, the State had to prove that he lost all earned early release time that he could potentially have earned in the state correctional facility.   Because there was adequate evidence in the record to support this conclusion, the statute was properly applied to Donery.

¶ 19 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2. 06.040, it is so ordered.

¶ 20 Having analyzed Donery's argument that he had not lost all potential earned early release time, we turn to his remaining issues in his direct appeal and his Personal Restraint Petition.   To address those issues, an additional recitation of facts is necessary.

ADDITIONAL FACTS

¶ 21 On May 22, 2003, near the end of his sentence, Donery was in the DOC facility in Clallam Bay. By that point, Donery had been through 24 disciplinary hearings for misbehavior.   On that date, at 12:15 p.m., a DOC officer saw Donery take an object from another prisoner.   The officer instructed Donery to give the object to Correctional Officer Thomas Eshom.

¶ 22 Officer Eshom instructed Donery to give him the object, a cigarette.   Donery refused and when Officer Eshom repeated the order, Donery threw the cigarette at Officer Eshom, striking him in the right shoulder.   At the time, Donery's face was red, his fists were clenched, and his voice was raised.   Officer Eshom ordered Donery to his cell, and Donery complied while muttering under his breath.

¶ 23 Based on this incident, Lieutenant Asin, the shift commander, ordered Donery restrained and escorted to the intensive management unit for administrative segregation.   Donery refused to comply with his directive.   Eventually, Lt. Asin ordered his officers to use pepper spray, which caused Donery to comply.   While being transported to the intensive management unit, Donery yelled, “rebel, rebel, rebel.”   3 Report of Proceedings (RP) (Apr. 7, 2004) at 21.   The prison officials videotaped Donery's resistance and extraction and the video tape was later introduced into evidence.

¶ 24 For his behavior on May 22, prison officials cited Donery for (1) throwing objects, material, substances, or spitting at staff, visitors, or other inmates;  (2) assaulting a staff member;  (3) causing a threat of injury to another person by resisting orders, resisting assisted movement or physical efforts to restrain;  (4) and inciting others to riot.   Each of these was a serious infraction under former WAC 137-28-260 (2003).

¶ 25 Donery had an infraction hearing for these offenses.   He was given written notice of the charges against him five days before his hearing.   He was given the right to request documentary evidence and request witnesses.   Despite these notices, Donery refused to attend the hearing.   The hearing officer, Lt. O'Neil, found that Donery committed the infractions and gave Donery written notice of his decision.   Donery was then referred to the Clallam County prosecutor for prosecution for persistent prison misbehavior under RCW 9.94.070.   The superior court decided the behavior leading to the first two infractions should be charged as a single infraction for throwing objects.

¶ 26 On August 15, 2003, the day he was to be released for the assault sentence, Donery had his first appearance on the persistent prison misbehavior charge.   The court set bail at $200,000, in part because Donery had threatened to “get a gun with a full banana clip, put it on auto and go into a building and start killing pop, pop, pop.”   RP (Aug. 15, 2003) at 12.   Throughout this proceeding, Donery kept interrupting the court and the attorneys.

¶ 27 Donery was often disruptive during various court sessions.   For example, at an October 10, 2003 motion hearing he was present via video conference.   He interrupted the trial court so frequently that the trial court decided to cut him off.   In one outburst, Donery told the court, “Fuck you.   You know what, how can (inaudible) you're prejudice.   I don't want you on anymore [sic] proceedings.”   RP (Oct. 20, 2004) at 9. At the pre-trial motion hearing, the trial court had to remonstrate Donery for yelling loudly in an attempt to influence the jury.   The prosecutor noted that Donery told her that morning that he had already caused mistrials and was going to cause a mistrial in this case.   Donery ended this hearing with the phrase, “God bless Timothy McVeigh.”   RP (Mar. 29, 2004) at 36.

¶ 28 On March 22, 2004, the trial court held a hearing to determine if Donery needed to be restrained.   At the hearing, Lt. O'Neil, the hearing officer at Clallam Bay, testified that Donery was often disruptive during hearings at the jail and that he frequently had to be removed.   Lt. O'Neil also indicated the Donery often tried to intimidate him in a threatening manner while he conducted the hearings.   In addition, Lt. O'Neil testified that Donery was often abusive to officers who escorted him to and from proceedings.   Lt. O'Neil testified that based on his experience with Donery, he believed that at the point that Donery believed he was going to lose, “he would physically act out, may even attempt to assault.”   RP (Mar. 22, 2004) at 29.   Accordingly, Lt. O'Neill recommended leg irons and waist restraints.

¶ 29 Donery also had a recent history of assaultive behavior.   For example, between the cigarette throwing incident and the trial, he assaulted a prison official.1  He also threatened to kill Patrick Brady, an investigator at the Clallam Bay facility.   Brady testified that based on his experience with Donery, “he's to be taken seriously with the threats he has made to include threats on court officials in the past.”   RP (Mar. 22, 2004) at 66.   Brady recommended full waist restraints and leg irons.

¶ 30 The trial court decided to use a stiff leg restraint based on its concern that Donery might try to escape, although the court conceded that there was no indication that Donery had ever tried to escape.   The court appeared to base its decision regarding the leg restraints on the seriousness of Donery's charge.

¶ 31 The trial court also decided to use an electric belt because the court was concerned that Donery might not be able to exercise control over his emotions and because of his history of assaultive behavior while at DOC. The court also noted there was no security in the courthouse and that the physical layout of the court put everyone in close proximity.   The trial court specifically noted that the leg brace would not show and that the jury would be excused while the defendant took the stand so they would not see him restrained.   He also indicated that the electric belt would not show. Concerned that Donery might still disrupt the proceedings, the trial court warned Donery that it would gag him if there were any outbursts.

¶ 32 Finally, based on the same concern that Donery might act out based on his history of assaultive behavior, the court allowed three DOC officers to sit around Donery while Donery was in court.   But the court ordered the officers to maintain enough distance so as to prevent the jury from seeing they were guarding Donery.

¶ 33 The trial court also took pains to ensure that the jury would not see the leg braces.   The court had the tables turned so as to block the jury's view of his legs.   And the court conducted voir dire so that the jury could not see any restraints.   The court also assured that Donery would have his hands free to assist his attorney in his defense.

¶ 34 At the trial, Donery was somewhat disruptive.   During a recess, he had an extended profane outburst about the quality of his pen.   He also attempted to hold up notes to the jury at points during the trial, but the court determined that the jury probably could not read them.   During the State's closing argument, Donery tried to interrupt the prosecutor.

¶ 35 In a special verdict form, the jury found Donery had committed all three infractions and found Donery guilty of persistent prison misbehavior.   The trial court sentenced Donery to 36 months incarceration.

ADDITIONAL ANALYSIS

I. Restraints

¶ 36 Donery argues that the trial court's decision to make him wear a still leg brace and an electric shock belt deprived him of a fair trial.   The State replies that Donery's record of disruptive behavior at prison disciplinary proceedings, his prior convictions for assault, and his assaultive behavior while in prison justified the use of restraints.   We agree.

¶ 37 A defendant in a criminal case is entitled to appear free from all bonds or shackles except in extraordinary circumstances.  State v. Finch, 137 Wash.2d 792, 842, 975 P.2d 967, cert. denied, 528 U.S. 922, 120 S.Ct. 285, 145 L.Ed.2d 239 (1999).   This ensures that the defendant receives a fair and impartial trial absent the prejudice of appearing shackled.  Finch, 137 Wash.2d at 844, 975 P.2d 967.   But the trial court has broad discretion to determine what security measures are necessary to maintain decorum in the courtroom and to protect the safety of its occupants.  State v. Damon, 144 Wash.2d 686, 691, 25 P.3d 418, 33 P.3d 735 (2001).   We apply “close judicial scrutiny” to the trial court's discretion in imposing restraints.  Finch, 137 Wash.2d at 846, 975 P.2d 967.

¶ 38 The trial court may only employ restraints when justified by an essential state interest specific to that trial.  In re Pers. Restraint of Davis, 152 Wash.2d 647, 694-95, 101 P.3d 1 (2004).   To this end, the trial court must conduct an individualized hearing to determine if restraints are necessary.   Damon, 144 Wash.2d at 691-92, 25 P.3d 418.   The trial court abuses its discretion unless it bases it decision to use restraints on:

evidence which indicates that the defendant poses an imminent risk of escape, that the defendant intends to injure someone in the courtroom, or that the defendant cannot behave in an orderly manner while in the courtroom.

Finch, 137 Wash.2d at 850, 975 P.2d 967.   The trial court may consider several factors in making its decision including,

[T]he seriousness of the present charge against the defendant;  defendant's temperament and character;  his age and physical attributes;  his past record;  past escapes or attempted escapes, and evidence of a present plan to escape;  threats to harm others or cause a disturbance;  self-destructive tendencies;  the risk of mob violence or of attempted revenge by others;  the possibility of rescue by other offenders still at large;  the size and the mood of the audience;  the nature and physical security of the courtroom;  and the adequacy and availability of alternative remedies.

Finch, 137 Wash.2d at 848, 975 P.2d 967 (quoting State v. Hartzog, 96 Wash.2d 383, 400, 635 P.2d 694 (1981)).   And, in making the decision to restrain a defendant, the trial court must also consider less restrictive methods.  Finch, 137 Wash.2d at 854, 975 P.2d 967.

¶ 39 Donery first contends that even though the trial court held a hearing, it based its decision on generalized concerns about safety rather than an individualized assessment of Donery's history.   But, at the hearing, the State presented evidence that Donery had a specific history of disrupting prison discipline proceedings.   In addition, Donery's behavior in various pre-trial proceedings displayed Donery's propensity for outbursts during court.   See e.g., RP (Oct. 10, 2004) at 9 (telling the trial judge, “Fuck you.”). Taken together, these incidents indicate that Donery was unable to “behave in an orderly manner while in the courtroom,” which is one of the legitimate reasons for imposing restraints.  Finch, 137 Wash.2d at 850, 975 P.2d 967.

¶ 40 The State also presented evidence suggesting that Donery was physically aggressive.   At the time of trial, he was facing two charges of custodial assault for assaults on prison officials.   Lt. O'Neil testified that Donery was often abusive to prison officials and that he often tried to physically intimidate him during disciplinary proceedings.   And Donery had a history of threatening court officials.   The trial court also noted that the layout of the courtroom made security difficult.   While these threats were mostly verbal, the trial court was entitled to take Donery's threats seriously.   Accordingly, the decision to impose restraints was not an abuse of discretion.

¶ 41 Donery next contends that even if some sort of restraint was necessary, the trial court failed to consider less restrictive alternatives.   We agree that the trial court failed to explicitly consider less restrictive alternatives, but the record reveals that the trial court did consider various options.   For example, the trial court considered gagging Donery but decided instead to give him a stern warning and use other restraints.   In addition, the trial court rejected the State's proposal to use waist and leg irons.   Based on this record, it is evident that the trial court attempted to minimize both the kind of restraints used and their potential prejudice to Donery.

¶ 42 Donery next argues that the trial court's finding that leg restraints should be used to prevent the possibility of his escape was improper.   The trial court conceded that Donery had no record of escape, but based its fear of escape solely on the seriousness of Donery's charge.   If that were the sole basis of the trial court's decision, Donery might be correct.  Hartzog, 96 Wash.2d at 400, 635 P.2d 694 (indicating that a broad general policy was a failure to exercise discretion)

¶ 43 But the trial court is allowed to consider the seriousness of the charge as one of the factors in determining to impose restraints.  Finch, 137 Wash.2d at 848, 975 P.2d 967.   Although the trial court indicated that the leg restraints were for the purpose of preventing escape, Donery's history of disruption and physical misbehavior justified using some sort of leg restraint in a courtroom in which the layout put everyone in close proximity.   We may affirm on any ground the record adequately supports.   See State v. Costich, 152 Wash.2d 463, 477, 98 P.3d 795 (2004).   Accordingly, even though the trial court appeared to base its decision to use leg restraints on grounds that might be, by themselves, impermissible, the entire record reveals that the trial court did not abuse its discretion.

¶ 44 Even if the use of a stiff leg restraint was an error, the error was harmless.   Although the use of restraints implicates Donery's constitutional rights, it is subject to harmless error analysis.  State v. Elmore, 139 Wash.2d 250, 274, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000).   Generally, an error that violates a constitutional right of the accused is presumed to be prejudicial.  Finch, 137 Wash.2d at 859, 975 P.2d 967.   But the State may overcome this presumption when it appears from an examination of the record that the error was harmless beyond a reasonable doubt.  State v. Clark, 143 Wash.2d 731, 775, 24 P.3d 1006, cert. denied, 534 U.S. 1000, 122 S.Ct. 475, 151 L.Ed.2d 389 (2001).   Where the record reveals that the jury never saw the defendant in shackles, the error is harmless.  State v. Hutchinson, 135 Wash.2d 863, 888, 959 P.2d 1061 (1998), cert. denied, 525 U.S. 1157, 119 S.Ct. 1065, 143 L.Ed.2d 69 (1999).

¶ 45 The only evidence in the record in this case is that the jury did not see the shackles or the electric belt.   The court finally settled on a stiff leg restraint and an electric belt after assuring that these restraints would not be visible to the jury.   And, during the trial, the court specifically noted that the jury could not see the restraints based on its courtroom reconfiguration.   Accordingly, even if there had been error, it was harmless.

II. Due Process

¶ 46 Donery next alleges that he was unconstitutionally deprived of early release credits because Lt. O'Neil testified that on a couple of occasions he did not allow Donery to present testimony at prison disciplinary proceedings.

¶ 47 Donery has a liberty interest in his good credit time.  In re Pers. Restraint of Gronquist, 138 Wash.2d 388, 397, 978 P.2d 1083, cert. denied, 528 U.S. 1009, 120 S.Ct. 507, 145 L.Ed.2d 392 (1999).   Thus, for serious infraction hearings, Donery is entitled to minimal due process including the right to present documentary evidence in his own defense.  Gronquist, 138 Wash.2d at 396-97, 978 P.2d 1083.

¶ 48 But Donery's argument fails.   First, Donery had lost all of his potential early release time by January 23, 2002, before coming to Clallam Bay. The record establishes that Lt. O'Neil did not preside over any of Donery's infraction hearings until 2003.   Therefore, the alleged violation of his due process could not have impacted his good time credits;  they were already lost.

¶ 49 Second, Lt. O'Neill's testimony establishes that he would not allow Donery to present testimony “not relevant” to the WAC violation at issue.   RP (Mar. 22, 2004) at 52.   And there is no right, constitutional or otherwise, to present irrelevant evidence.  State v. Darden, 145 Wash.2d 612, 624, 41 P.3d 1189 (2002).   Therefore, DOC did not abridge Donery's minimal due process in the infraction hearings.

III. Instructional error

¶ 50 Donery argues that the “to convict” instructions were erroneous because the court informed the jury that it had a duty to convict Donery if it found all of the elements of the crime beyond a reasonable doubt.   The State relies on State v. Meggyesy, 90 Wash.App. 693, 958 P.2d 319, review denied, 136 Wash.2d 1028, 972 P.2d 465 (1998), overruled on other grounds by State v. Recuenco, 154 Wash.2d 156, 110 P.3d 188 (2005), in which Division One upheld an instruction similar to the one here.

¶ 51 We review jury instructions de novo, and an instruction that contains an erroneous statement of the applicable law is reversible error when it prejudices a party.  Cox v. Spangler, 141 Wash.2d 431, 442, 5 P.3d 1265, 22 P.3d 791 (2000).   Jury instructions are sufficient when they allow counsel to argue their theories of the case, do not mislead the jury, and when taken as a whole, properly inform the jury of the law to be applied.  Cox, 141 Wash.2d at 442, 5 P.3d 1265.

¶ 52 Here, Donery did not object to the instruction.   But Donery argues that this instruction error was a manifest constitutional error that can be raised for the first time on appeal under RAP 2.5(a).   Even assuming Donery could invoke RAP 2.5(a), his argument has no merit.   This case is controlled by State v. Brown, 130 Wash.App. 767, 124 P.3d 663 (2005), in which this court rejected that argument that it was an error to instruct the jury that it has a duty to convict if it found all elements beyond a reasonable doubt.  Brown, 130 Wash.App. at 770-771, 124 P.3d 663,.  Following Brown, we hold the instruction in this case was not an error.

IV. Vagueness

¶ 53 Donery argues that the prison infraction “inciting others to riot” is unconstitutionally vague.   Donery concedes, however, that he was also found to have committed two other infractions sufficient to support his conviction for persistent prison misbehavior.   Br. of Appellant at 24.   Instead, Donery contends only that if we remand the case for new trial, we should find that this prison infraction is vague and order that he not be retried on that theory.

¶ 54 The State was only required to prove that Donery committed one serious infraction after losing all of his earned early release time.  RCW 9.94.070(1).   Here, the jury found in a special verdict that Donery had committed three serious infractions, one of which was “inciting others to riot”.   Br. of Appellant at 24. Assuming, without deciding, that this prison infraction was unconstitutionally vague, the other two infractions are each sufficient to uphold this conviction.   Therefore, we need not address his argument.

Personal Restraint Petition

V. Credit for Presentence Time

¶ 55 In his personal restraint petition, Donery alleges that DOC miscalculated his sentence by failing to credit him for the presentence time served before his conviction for persistent prison misbehavior.   He argues that such a miscalculation violates his equal protection rights by discriminating against him on the basis of his ability to afford bail and that it constitutes double jeopardy to make him serve the presentence months twice.2

¶ 56 To be entitled to relief, petitioner must establish a constitutional error resulting in actual and substantial prejudice or a nonconstitutional error constituting a fundamental defect that inherently results in a complete miscarriage of justice.  In re Pers. Restraint of Breedlove, 138 Wash.2d 298, 304 n. 1, 979 P.2d 417 (1999);  In re Pers. Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990).   Regardless of whether he bases his challenges on constitutional or nonconstitutional error, he must support his petition with facts or evidence on which his unlawful restraint claims are based and not solely on conclusory allegations.  Cook, 114 Wash.2d at 813-14, 792 P.2d 506.   He must present evidence that is more than speculation, conjecture, or inadmissible hearsay;  and, if his claimed evidence is based on knowledge in the possession of others, he may not simply state what he thinks those others would say but must present their affidavits or other corroborative evidence.  In re Pers. Restraint of Dyer, 143 Wash.2d 384, 20 P.3d 907 (2001) (citing In re Pers. Restraint of Rice, 118 Wash.2d 876, 886, 828 P.2d 1086 (1992)).

¶ 57 Washington requires the sentencing court to give an offender credit for “all confinement time served before the sentencing if that confinement was solely in regard to the offense for which the offender is being sentenced.”  RCW 9.94A.505(6).   If Donery's allegations are correct, he would be entitled to a recalculation of his sentence.

¶ 58 But they are not.   Donery's sentence for second degree assault expired on August 15, 2003.   On August 15, 2003, Donery was arraigned for the charge of persistent prison misbehavior and the trial court imposed bail.   Donery was unable to make bail and was remanded to the county for custody.   The charging authority, Clallam County, asked DOC to house Donery as a boarder for the county.

¶ 59 Donery was given credit for all of the time he served before his conviction for persistent prison misbehavior.   On September 11, 2004, after Donery's conviction, DOC issued Donery a certification for 311 days served for the time he served before his sentencing on that charge.   Donery potentially could have earned 155 days of earned early release time on this time served.   But due to various infractions, he lost 390 days of early release time during that period.   Accordingly, DOC did not credit Donery with any early release time, but it did give him full credit for the 311 days served.

¶ 60 Therefore, Donery received credit for the time served and DOC's calculation of his sentence is correct.

VI. Due Process at Prison Disciplinary Hearing

¶ 61 Donery also alleges that he was denied due process at the prison disciplinary hearing for the May 22, 2003 incident that gave rise to his conviction for persistent prison misbehavior.   Specifically, he alleges that Lt. O'Neil denied him the right to be present at the hearing and that the procedural safeguards were inadequate because Lt. O'Neil was “to [sic] closely connected to [the] chain of command.”   Personal Restraint Petition at 9.

¶ 62 At a disciplinary hearing for a serious infraction, Donery was entitled to minimal due process, including the right to:

(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 evidence relied upon and the reasons for the disciplinary action.

Gronquist, 138 Wash.2d at 396-97, 978 P.2d 1083.

¶ 63 Donery presents no evidence that DOC did not follow these procedural protections, nor that Lt. O'Neil was not an impartial hearing officer.   Because it is Donery's burden to present such evidence to be entitled to relief, his petition is denied.

¶ 64 Affirmed;  the Personal Restraint Petition is denied.

FOOTNOTES

1.   Donery was convicted of two counts of custodial assault and the judgment and sentence was entered on September 7, 2004.

2.   Donery also argues that he had 39 days of county jail earned early release time and that therefore his referral for prosecution was improper.   PRP at 8. Presumably, Donery is referring to the 38 days of county early release time discussed above.   As this is the same argument that he makes on direct appeal, we do not address it here.

BRIDGEWATER, J.