Personal Restraint Petition Of Isaiah Preston

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Matter of the Personal Restraint of No. 47179-5-II
ISAIAH E. PRESTON,
Petitioner.
UNPUBLISHED OPINION
JOHANSON, C.J. — In this personal restraint petition (PRP), Isaiah Preston petitions this
court for relief from the Indeterminate Sentence Review Board’s (ISRB) denial of his petition for
parole. Preston argues that (1) former RCW 9.94A.730(1) (2014) is ambiguous regarding whether
early release credits may apply to reduce the 20-year term he must serve before he petitions for
parole and (2) the ISRB’s refusal to apply early release credits to the 20-year term violates the ex
post facto clause of the federal constitution resulting in his unlawful restraint. We conclude that
former RCW 9.94A.730(1) is not ambiguous, that the ISRB correctly interpreted former RCW
9.94A.730(1), and that Preston fails to show that former RCW 9.94A.730(1)
Filed
Washington State
Court of Appeals
Division Two
March 8, 2016

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retroactively altered his ability to earn early release credit in violation of the ex post facto clause.1
Because Preston is lawfully restrained, we deny Preston’s petition.
FACTS
Preston was convicted of one count of first degree rape committed on December 22, 1998,
when he was a juvenile. In 2003, the superior court sentenced him to 378 months on this
conviction. He was also convicted of one count of second degree rape committed on October 16,
2000, when he was 17 years old. In 2002, Preston was sentenced to 280 months on this conviction.
He is serving the sentences concurrently and his total sentence is over 397 months.
In October 2014, Preston requested a review hearing to determine whether he was eligible
for parole. Preston argued that the early release time he had earned under former RCW 9.94A.729
(2014) reduced the 20-year term that he must serve before being considered for parole under
former RCW 9.94A.730 (2014). The ISRB responded that its “current interpretation of [RCW
9.94A.730] is that individuals must serve 20 years ‘flat time’[2] before they are eligible for early
release consideration.” PRP, Ex. B at 3. The ISRB denied his request for a parole eligibility
review hearing. Preston appeals this denial.
1 Ex post facto clauses of the state and federal constitutions prohibit the state from enacting any
law that imposes punishment for an act that was not punishable when committed or that increases
the quantum of punishment for the offense after the crime was committed. U.S. CONST. art. 1, §
10, cl.1; WASH. CONST. art. 1, § 23.
2 “Flat time” refers to a prison term that is to be served without the benefit of time-reduction
allowances for good behavior and the like. BLACK’S LAW DICTIONARY 1710 (10th ed. 2014).

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ANALYSIS
I. STANDARD OF REVIEW AND PRINCIPLES OF LAW
A petitioner who challenges a decision from which he has had no previous or alternative
avenue for obtaining state judicial review must show he is under restraint unlawfully under the
provisions of RAP 16.4(c). In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 149, 866 P.2d 8
(1994). Under RAP 16.4, Preston may show either a constitutional or a state law violation to
obtain relief. RAP 16.4(c)(2), (6).
Interpretation of a statute is a question of law that we review de novo. State v. Engel, 166
Wn.2d 572, 576, 210 P.3d 1007 (2009). We also review alleged violations of the prohibition of
ex post facto laws de novo. State v. Pillatos, 159 Wn.2d 459, 469, 474-77, 150 P.3d 1130 (2007).
II. Former RCW 9.94.A.730(1) IS UNAMBIGUOUS
Preston argues that former RCW 9.94A.730(1) is ambiguous because unlike some other
sentencing statutes, it does not expressly provide whether the minimum sentence served before
becoming eligible for parole can be reduced by earned early release credits. Preston argues that
the rule of lenity should apply in his favor because of this ambiguity and that the 20 years of
confinement set out in former RCW 9.94A.730(1) must be reduced by earned early release time
under former RCW 9.94A.729. The ISRB responds that former RCW 9.94A.730(1) is
unambiguous when read plainly and requires inmates to serve a full 20 years in custody prior to
filing an early release petition. We agree with the ISRB.
We must interpret former RCW 9.94A.730(1) that was enacted in 2014 and provides,
[A]ny person convicted of one or more crimes committed prior to the person’s
eighteenth birthday may petition the [ISRB] for early release after serving no less
than twenty years of total confinement.

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(Emphasis added.)
Former RCW 9.94A.729(1)(a) provides that “[t]he term of the sentence of an offender
committed to a correctional facility operated by the [Department of Corrections] may be reduced
by earned release time in accordance with procedures that shall be developed and adopted by the
correctional agency having jurisdiction in which the offender is confined.” (Emphasis added.) In
the case of an offender convicted of a sex offense committed on or after July 1, 1990, and before
July 1, 2003, the aggregate earned release time may not exceed 15 percent of the sentence. Former
RCW 9.94A.729(3)(b).
If a statute’s meaning is plain on its face, then we must give effect to that plain meaning as
an expression of legislative intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005).
The plain meaning of a statute should be discerned from the ordinary meaning of the language at
issue and from the context of related provisions and whole statutory schemes. Jacobs, 154 Wn.2d
at 600.
Although we consider this broader statutory context for guidance, we do not add words
where the legislature has chosen not to include them, and we must construe statutes such that all
of the language is given effect. Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243
P.3d 1283 (2010). If the language is unambiguous, we give effect to that language because we
presume the legislature says what it means and means what it says. State v. Costich, 152 Wn.2d
463, 470, 98 P.3d 795 (2004). If a statute is subject to more than one interpretation, the statute is
ambiguous and the rule of lenity applies. Jacobs, 154 Wn.2d at 600-01.

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Here, the plain meaning of “after serving no less than twenty years of total confinement”
contained in former RCW 9.94A.730(1) ordinarily means just that—an inmate subject to former
RCW 9.94A.730(1) must serve no less than 20 years in total confinement before petitioning for
early release.
Preston points to RCW 9.94A.590(1)(e) and (2), RCW 9.94A.540(1)(a)-(e) and former
RCW 9.94A.729(6), and relies on Jacobs to support his argument of ambiguity. He argues that
because the legislature expressly provided that earned release credits do not apply in the contexts
covered by these other statutes, but did not expressly do so in former RCW 9.94A.730, that former
RCW 9.94A.730(1) is therefore ambiguous regarding the application of earned release time. He
also argues that because the legislature has shown that they know how to draft a statute that sets a
minimum term that cannot be reduced by earned credits, they must not have intended this effect in
former RCW 9.94A.730. But nothing about his argument explains how the plain language of
former RCW 9.94A.730(1) is rendered ambiguous. And even as we consider the language of
former RCW 9.94A.730(1) in the context of these other statutes, we will not add language to
former RCW 9.94A.730(1) where it is unambiguous. Lake, 169 Wn.2d at 526.
In addition, Jacobs does not support Preston’s arguments. There, two defendants were
convicted under a statute that allowed for sentencing enhancements for both of the crimes the
defendants committed but did not state whether those enhancements should be applied
concurrently or consecutively. Jacobs, 154 Wn.2d at 599, 602. The court in Jacobs found that
because the statutory language of the sentencing statute and the context offered in surrounding
provisions made the legislature’s intent “far from ‘plain,’” they had to apply the rule of lenity in
the defendants’ favor. 154 Wn.2d at 603. But this case is distinguishable from Jacobs. Here,

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former RCW 9.94A.730(1)’s language states that an offender must serve no less than 20 years in
total confinement prior to petitioning for early release. Thus, the legislature squarely directs that
an offender must serve no less than 20 years before applying for early release. There is no
ambiguity such as was found in Jacobs. Because we conclude former RCW 9.94A.730(1) is
unambiguous, we do not apply the rule of lenity. Jacobs, 154 Wn.2d at 600-01.
We conclude that the ISRB correctly interpreted former RCW 9.94A.730(1) and properly
denied Preston’s request to apply earned early release time to the required 20-year term.
III. EX POST FACTO DOCTRINE NOT VIOLATED
Next, Preston argues that the ISRB’s decision that his early release credits cannot apply
before he serves 20 years violates the ex post facto clause of the federal constitution because this
decision results in a retroactive reduction of his earned release time, effectively unlawfully
restraining him. Specifically, Preston argues that the ISRB decision denies him eligibility for a
parole hearing for three years, which results in unlawful restraint. The ISRB argues that Preston
is incorrect because his early release credits are not reduced, they just cannot apply until after he
has served 20 years under former RCW 9.94A.730. We agree with the ISRB.
Preston must show that he is unlawfully restrained because of a violation of constitutional
law. RAP 16.4(c)(2), (6). We review alleged violations of the prohibition of ex post facto laws
de novo. Pillatos, 159 Wn.2d at 469.
Retroactive application of a law violates the ex post facto clause if it increases the quantum
of punishment for an offense after the offense was committed. State v. Hennings, 129 Wn.2d 512,
524-25, 919 P.2d 580 (1996); State v. Ward, 123 Wn.2d 488, 496, 869 P.2d 1062 (1994).
Specifically, a law violates the ex post facto clause if (1) it is substantive, as opposed to merely

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procedural, (2) retrospective, and (3) disadvantages the person affected by it. In re Personal
Restraint of Powell, 117 Wn.2d 175, 185, 814 P.2d 635 (1991). The purpose of the ex post facto
clause is not to ensure an inmate’s right to less punishment, as they are not entitled to that, but to
provide for fair notice and governmental restraint. Powell, 117 Wn.2d at 188. A change in the
law that limits eligibility for reduced imprisonment violates the ex post facto clause when applied
to individuals whose crimes were committed before the law’s enactment. In re Pers. Restraint of
Smith, 139 Wn.2d 199, 208, 986 P.2d 131 (1999).
Even if we assume the first two requirements of an ex post facto violation are met, Preston
fails to meet the third requirement of being disadvantaged by former RCW 9.94A.730(1). Former
RCW 9.94A.729 was not in effect when Preston committed his crimes and when he sought to
petition for parole, it provided that a person convicted of a sex offense, like him, was entitled to
earn good time credits for no more than 15 percent of the sentence. Preston cites to Smith, which
states, “A change in the law that limits eligibility for reduced imprisonment violates the ex post
facto clause when applied to individuals whose crimes were committed before the law’s
enactment.” 139 Wn.2d at 208. But Preston does not show how former RCW 9.94A.730(1) limits
his eligibility for reduced imprisonment.
The ISRB states that under preexisting statutes, even if Preston received his current earned
early release credits and applied them to the time he must serve on his shorter sentence for the
second degree rape charge before being eligible for parole, he would not be eligible for release

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until after he served 20 years, 5 months, and 21 days; his early release credits have not been
reduced.3 First, the ISRB is correct that former RCW 9.94A.730(1) did not retroactively limit
Preston’s eligibility for reduced imprisonment. Former RCW 9.94A.730(1) did nothing to modify
former RCW 9.94A.729 to prohibit him from earning early release credits up to 15 percent of his
total sentence nor does it reduce the early release credits he has already earned.
Second, Preston is serving his sentences concurrently for a total sentence of over 397
months or over 33 years. Under former RCW 9.94A.729, he could earn early release credits up to
15 percent of that time or for 59.55 months or 4.96 years. Thus, under former RCW 9.94A.729,
he would have to serve over 28 years before he could petition to apply his early release credits
from the ISRB.
Third, Preston’s “quantum of punishment”—his sentence—has not been increased overall
leading to his disadvantage. Hennings, 129 Wn.2d at 524-25. Former RCW 9.94A.730(1) makes
when Preston will be considered for parole determinate: after a minimum of 20 years. Both before
and after the passage of former RCW 9.94A.730(1), Preston was eligible to earn up to 15 percent
earned release credits. Thus, former RCW 9.94A.730(1) has not limited his eligibility for reduced
imprisonment in violation of the ex post facto clause. Smith, 139 Wn.2d at 208. As discussed
above, Preston will not be eligible for early release sooner than 28 years even if he earned the
maximum credit available.
3 Under former RCW 9.94.729, this is based on taking 15 percent of his 8,522-day sentence to
calculate his early release credits earned, including 99 days of credit for jail time served and 17
days of credit for early release time he has already earned, and minus 230 days of good conduct
time he did not earn while serving his sentence.

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Thus, Preston fails to show a violation of the ex post facto clause because he was not
disadvantaged by the retroactive application of former RCW 9.94A.730(1). Accordingly, we hold
that Preston is not unlawfully restrained and we deny his personal restraint petition.
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.
JOHANSON, C.J.
We concur:
WORSWICK, J.
LEE, J.