Personal Restraint Petition Of Candice R. Baughman

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Personal Restraint of: No. 54265-0-II
CANDICE BAUGHMAN,
Petitioner.
UNPUBLISHED OPINION
CRUSER, J. – In this timely personal restraint petition (PRP), Candice R. Baughman
challenges the revocation of her prison-based drug offender sentencing alternative1 (DOSA)
sentence. She argues that the revocation of her DOSA sentence violated her due process rights
because it was based on prison disciplinary infractions that were not proved by a preponderance
of the evidence. Because the hearing officer applied the preponderance of the evidence standard
to the infractions it considered, Baughman fails to establish unlawful restraint. Accordingly, we
deny this PRP.
1 Former RCW 9.94A.660 (2016).
Filed
Washington State
Court of Appeals
Division Two
January 5, 2021

No. 54265-0-II
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FACTS
I. BACKGROUND
A. DOSA SENTENCE AND ENTRY INTO DRUG TREATMENT PROGRAM
After entering guilty pleas under two separate cause numbers, Baughman was given two
concurrent prison-based DOSA sentences. On November 27, 2018, Baughman entered into a
prison-based drug treatment program.
Upon entering the treatment program, Baughman signed a chemical dependency DOSA
agreement and a treatment participation requirements form. The DOSA agreement notified
Baughman that she could be terminated from the treatment program and her DOSA revoked based
several grounds, including (1) “[a] continual pattern of behavioral issues and unsuccessful
responses to interventions,” (2) “[a] lack of progression towards the goals of a treatment plan,” or
(3) “[a]ny major infraction that causes a change in custody level.” Br. of Resp’t Ex. 6 at 1.
The treatment participation requirements form advised Baughman that she had to “[r]efrain
from any and all . . . behaviors that may result in an infraction.” Br. of Resp’t Ex. 7 at 1. This form
also advised Baughman that she could be terminated from treatment if she failed to comply with
the expectations stated in the form and that she would be terminated from treatment if she received
an infraction that resulted in a transfer or change in custody level.
B. CLINICAL INTERVENTION CONTRACT
Prior to entering the treatment program on November 27, 2018, Baughman had been found
guilty of four general infractions and one serous infraction. In the short time between her entry
into the program and January 4, 2019, Baughman was found guilty of four more general infractions
and five more serous infractions.

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As a result of the infractions based on violations between November 27, 2018 and January
4, 2019, Baughman was subject to a clinical intervention (CI).2 On January 4, as part of the CI,
Baughman signed a CI contract stating that if she did not remain “infraction free” her further
participation in the treatment program could be terminated and that any future violations of the
DOSA program rules could result in the revocation of her DOSA status. Br. of Resp’t Ex. 8 at 3.
C. ADDITIONAL INFRACTIONS AND TERMINATION FROM TREATMENT PROGRAM
Baughman was subsequently notified that she was being accused of two more serious
violations that occurred on January 10, six days after she had signed the CI contract. These
violations were for telephoning or sending written or electronic communications to an offender in
a correctional facility without permission and for using the facility’s phones or related equipment
without authorization. Baughman pleaded guilty to these violations, but she asserted that the
violation related to her passing notes to another prisoner occurred before January 4.
On January 31, Baughman was terminated from the treatment program. The treatment
termination report stated that: (1) Baughman had failed to “[r]efrain from . . . behaviors that may
result in an infraction,” (2) Baughman had failed to “[a]ttend all regularly scheduled individual
and group treatment sessions,” (3) Baughman engaged in “[a] continual pattern of behavioral
issues” and her responses to interventions were “unsuccessful,” (4) Baughman showed “[a] lack
of progression towards the goals of a treatment plan,” and (5) Baughman accrued “major
2 A “[c]linical [i]ntervention is the highest level of therapeutic intervention.” Resp’t Br. Ex. 5 at 4.
“Referral to a clinical intervention is the result of [a] failure to demonstrate progress” through the
normal treatment process or the result of a violation of program rules. Id.

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infraction[s] that cause[d] a change in custody level or the violation of conditions per [the]
agreement.” Br. of Resp’t Ex. 5 at 9.
II. 762 INFRACTION HEARING AND DOSA TERMINATION
A. 762 INFRACTION
After her termination from the treatment program, Baughman was infracted for being
terminated from the DOSA-required treatment program (the 762 infraction).3 The 762 infraction
report stated that Baughman had been terminated from treatment because she “demonstrated a
continual pattern of behavior issues after unsuccessful interventions and failed to make progress
toward her treatment goals.” Id. at 4. The infraction report further stated that Baughman had
violated the following program requirements: “Refrain from any and all criminal activity,
including behaviors that may result in an infraction; Attend all regularly scheduled individual and
group treatment sessions; failure to abide by the expectations outlined.” Id.
B. 762 INFRACTION AND DOSA TERMINATION HEARING
A hearing to consider the 762 infraction and to consider whether Baughman’s DOSA
sentence should be revoked was conducted before a Department of Corrections (DOC) hearings
officer (HO). RCW 9.94A.662(3) (“An offender who fails to complete the program or who is
administratively terminated from the program shall be reclassified to serve the unexpired term of
his or her sentence as ordered by the sentencing court.”); WAC 137-25-030(1)(762) (762
violations are “heard by a community corrections hearing officer in accordance with chapter 137-
24 WAC.” (Emphasis omitted)).
3 Former WAC 137-25-030(1)(762) (2016) allows for an inmate to be charged with a serious
infraction based on “[n]oncompliance with the DOSA program.”

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As to the January 10 violations, Baughman admitted that she had been in constant contact
with someone from the general prison population in violation of the rules and the CI contract, that
she had engaged in one or more three-way calls with this person, and that she had also been
communicating with this person by passing notes. Baughman asserted, however, that the note
passing had occurred before she entered into the CI contract. But Michelle Thrush, a correctional
unit supervisor, testified that in one of the notes Baughman referred to being under the CI contract,
so, although Baughman had asserted otherwise, the note passing occurred after January 10.
Throughout the hearing, the HO stated that the level of proof that applied to the 762
infraction was a preponderance of the evidence. The HO also emphasized that she was considering
only the “behavior” resulting in the infractions that led the treatment termination and that those
the infractions were proved by a preponderance of the evidence. Br. of Resp’t Ex. 9 at 38. The HO
further emphasized that she was not considering infractions or behavior that occurred before
Baughman entered into the CI contract because those infractions and behaviors were not the basis
for the treatment termination. The HO noted that the pre-CI contract “infractions were dealt with
when [Baughman] did the CI.” Br. of Resp’t Ex. 9 at 57.
The HO concluded that the evidence had proved by a preponderance of the evidence that
Baughman had engaged in behavior that violated the CI contract and revoked Baughman’s DOSA
sentence based on her treatment termination. Baughman subsequently filed this PRP.

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ANALYSIS
Baughman argues that the HO “did not base [her] decision to revoke [the] DOSA on a
preponderance of the evidence” because the new infractions and the infractions that were the basis
of the evaluation of her “overall behavior” were adjudicated under the some evidence standard.
PRP at 7. She argues that the use of this lesser standard violated her due process rights. We
disagree.
I. LEGAL PRINCIPLES
Because Baughman has not had a prior opportunity for judicial review, to obtain relief
through a PRP she must demonstrate unlawful restraint under RAP 16.4. In re Pers. Restraint of
Pierce, 173 Wn.2d 372, 377, 268 P.3d 907, 909 (2011). “Under [RAP 16.4(c)(2)], the [petitioner]
is entitled to relief if [the petitioner] can show that a decision ‘was imposed or entered in violation
of the Constitution of the United States or the Constitution or laws of the State of Washington.’”
In re Pers. Restraint of Lopez, 126 Wn. App. 891, 895, 110 P.3d 764 (2005) (quoting RAP
16.4(c)(2)).
In In re Personal Restraint of Schley, 191 Wn.2d 278, 292, 421 P.3d 951 (2018), our
Supreme Court held
. . . that at DOSA revocation hearings, if revocation is based on the clinical staff
administratively terminating a person from treatment, the [DOC] has the burden to
prove the facts that served as a basis for that decision by a preponderance of the
evidence. This construction of the DOSA statute ensures the due process
protections at the revocation hearing have effect and avoids absurd results. In the
event that the [DOC] fails to prove an infraction underlying the treatment
termination decision by a preponderance of the evidence, then the treatment
termination is invalid and treatment should be reinstated.
(Emphasis added).

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II. PREPONDERANCE STANDARD APPLIED
Baughman argues that the revocation of the DOSA sentence violated her due process rights
because the infractions that occurred after the January 4 CI contract were not established by a
preponderance of the evidence. Baughman further argues that she was denied due process because
the decision to revoke her DOSA sentence was based on her “overall behavior determined by past
infractions” and those past infractions were not proved by a preponderance of the evidence.4 PRP
at 7. We disagree.
The HO clearly stated that she was applying the preponderance of the evidence standard
when determining whether Baughman had committed the post-January 4 violations. And the
evidence given at the hearing supports the HO’s conclusion that these violations occurred because
Baughman admitted to the phone contact and to passing notes, and Thrush testified that at least
one of the notes referred to the January 4 CI contract.
The HO also clearly stated that she was not considering any pre-January 4 violations and
was limiting her consideration to only those violations that occurred after January 4. Because the
HO was considering only the post-contract behavior, the HO did not have to find that any pre-
contract infractions were proved by a preponderance of the evidence.
4 Baughman also claims that the revocation decision was “based, in part, on past conduct already
adjudicated.” PRP at 2 (“Ground”2). This claim appears to be another way of asserting that the
HO relied on pre-CI contract infractions that were decided under the some evidence standard.

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Baughman fails to demonstrate that her restraint was unlawful because she does not show
that her DOSA was revoked without proof by a preponderance of the evidence. Accordingly, we
deny this 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.
CRUSER, J.
We concur:
MAXA, P.J.
MELNICK, J.P.T.