Personal Restraint Petition Of Sean Lamont Dell

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint
of SEAN LAMONT DELL,
Petitioner.
No. 80458-8-I
DIVISION ONE
UNPUBLISHED OPINION
COBURN , J. — Sean Lamont Dell filed a personal restraint petition (PRP)
contending that the Department of Corrections (DOC) has failed to accurately
calculate sentencing credits to which he is legally entitled. We agree, grant the
petition in part, and remand to DOC for recalculation.
FACTS
In 2009, Sean Dell pleaded guilty to two offenses including (1) a 2008
domestic violence felony violation of a no-contact order, and (2) a 2009 violation
of the Uniform Controlled Substances Act; chapter 69.50 RCW. For the 2008
offense, the trial court imposed a prison-based special drug offender sentencing
alternative (DOSA) of 27.75 months confinement and 27.75 months community
custody.1 For the 2009 offense, the trial court sentenced Dell to 12 months plus
one day confinement and 12 months community custody. The trial court ordered
the 2008 and 2009 sentences to run concurrently.
1 A DOSA sentence is split evenly between confinement and community
custody based upon the midpoint of the total standard range.
RCW 9.94A.662(1).

No. 80458-8-I/2
2
In 2010, after serving the confinement portion of his sentence, Dell was
released from prison to serve community custody. In January 2012, while still on
community custody, Dell committed a new offense. Following a DOC violation
hearing in February 2012, DOC revoked Dell’s 2008 DOSA and returned him to
prison.
In June 2012, Dell pleaded guilty to domestic violence assault in the
second degree. The trial court sentenced him to 70 months confinement, 18
months community custody, and ordered that the confinement term run
concurrently to the revoked DOSA imposed in the 2008 sentence. The 2012
judgment and sentence did not reference the 2009 sentence or whether the
community custody imposed in 2012 ran concurrently or consecutively to Dell’s
prior sentences.
In July 2012, the King County Jail certified to DOC that based on 132 days
that Dell served in jail, he was eligible for 66 days of earned early release time.2
See RCW 9.94A.728(1)(a); RCW 9.94A.729(1)(a).
In 2016, DOC calculated his release date from confinement to be
February 26, 2016, but Dell did not get released until March 31, 2016 because
DOC needed to approve his release plan. The delay equated to 34 days.
In March 2016, DOC released Dell from confinement and he began
serving the 12 month community custody term imposed under the 2008 and 2009
sentences. Dell did not, however, begin supervision on the community custody
2 We refer to earned release time under RCW 9.94A.729(1)(a) as “earned
early release time” or “good time.”

No. 80458-8-I/3
3
portion of the 2012 sentence at this time. DOC took the position that the 2012
community custody sentence ran consecutively to the prior sentences for two
reasons. First, Dell committed the 2012 offense while on supervision for the 2009
controlled substance case, and per RCW 9.94A.589(2)(a) the community custody
terms shall run consecutively.3 Second, because the trial court that imposed the
2012 community custody did not indicate whether it would run consecutive or
concurrent to prior sentences, DOC lacked authority to add terms to the
judgment and sentence. Based on this belief, DOC ordered the remaining
community custody terms under Dell’s 2008 and 2009 sentences to run
concurrent to each other but ordered that his 2012 community custody term run
consecutive to the 2008 and 2009 terms.
On February 13, 2017, Dell completed the community custody imposed in
his 2008 and 2009 sentences. That same day, Dell began serving the
community custody portion of his 2012 sentence.
On September 15, 2017, while on community custody, Dell was convicted
of domestic violence felony harassment. The trial court sentenced him to 60
months confinement to run consecutive to his prior convictions.
On September 19, 2017, Dell was transferred to DOC custody. Roughly
36 days later, on October 25, 2017, DOC held a hearing on Dell’s violation of
community custody conditions. DOC revoked Dell’s earned early release time
3 In pertinent part, former RCW 9.94A.589(2)(a)(2016) states, “whenever a
person while under sentence for conviction of a felony commits another felony
and is sentenced to another term of confinement, the latter term shall not begin
until expiration of all prior terms.”

No. 80458-8-I/4
4
that he received for the 2012 conviction, which it calculated as 631 days.
Additionally, DOC determined that Dell had 30 days of successful community
custody time on the 2012 sentence resulting in 601 days of confinement left to
serve with a start date of September 19, 2017. DOC refused to credit Dell’s 2012
sentence with any of the time he spent in the community because it was deemed
at the time that the community custody Dell served in 2016 was solely related to
the 2008 and 2009 sentences.
On May 13, 2019, Dell completed the remainder of his confinement on the
2012 sentence and began serving the consecutive term of confinement imposed
in his 2017 sentence. DOC calculated Dell’s earned release date for the 2017
conviction to be March 9, 2022.
Dell then filed this PRP challenging the DOC’s administration of the
community custody terms of his 2012, 2009, and 2008 sentences.4 	He claimed
that running the confinement portions of the sentences concurrently, but running
the community custody terms consecutively, is an illegal hybrid sentence.
[5/6/20 Order Referring to Panel] “Washington law requires that sentences be
either fully consecutive to or fully concurrent with one another.” In re Pers.
Restraint of Costello, 131 Wn. App. 828, 834, 129 P.3d 827 (2006). DOC
conceded that remand for correction or clarification of the sentences was
appropriate and Dell’s personal restrain petition (PRP) was referred to a panel of
this court.
4 Dell initially filed a “Motion to Modify or Correct Sentence and Judgment”
in the King County Superior Court. The trial court transferred the motion to this
court for consideration as a PRP pursuant to CrR 7.8(c)(2).

No. 80458-8-I/5
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On June 11, 2020, Substitute House Bill (SHB) 2394 became effective
and directs DOC to:
recalculate the scheduled end date for terms of community
custody, community supervision, and community placement so that
they run concurrently to previously imposed sentences of
community custody, community supervision, community placement,
probation, and parole, unless the court pronouncing the current
sentence has expressly required such terms to run consecutively.
This section applies to each offender currently in confinement or
under active supervision, regardless of whether the offender is
sentenced after the effective date of this section and regardless of
whether the offender’s date of offense occurred prior to the
effective date of this section or after.
L AWS OF 2020, ch. 276, § 3; see also L AWS OF 2020, ch. 276, § 5 (DOC “has the
authority to begin implementing this act upon the effective date of this section.”);
and L AWS OF 2020, ch. 276, § 6 (“This act applies retroactively and prospectively,
regardless of the date of an offender’s underlying offense.”).
On July 28, 2020, DOC applied SHB 2394 to Dell’s sentence, corrected its
calculation of Dell’s various community custody terms, and adjusted his overall
earned release date from March 9, 2022 to June 23, 2021. This adjustment
resolves the primary claim in Dell’s PRP but not his four other claims of
sentencing calculation errors, which we now turn to address.
ANALYSIS
Dell contends that DOC has improperly calculated various credits he
should receive for time he has served and thus his earned released date.
Specifically, Dell argues that DOC (1) did not include the 66 days of good time he
earned while held in King County Jail to arrive at the “maximum expiration” of his
2012 sentence, (2) has not given him good time credit for the 34 days DOC held

No. 80458-8-I/6
6
him past his scheduled release date of February 26, 2016 while awaiting a
release plan, (3) exceeded its authority in adding 83 days of community custody
supervision, and (4) had not credited him for 36 days while awaiting his October
25, 2017 disposition hearing.
A. 	Standard of Review
Dell has not had a prior opportunity to obtain judicial review of the issues
in his PRP, “so he need not make any threshold showing of prejudice; he must
show only that he is under an unlawful restraint as defined by RAP 16.4.” In re
Pers. Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031 (2016) (citing In re
Pers. Restraint of Grantham, 168 Wn.2d 204, 214, 227 P.3d 285 (2010)). A
DOC decision that wrongfully calculates an offender’s sentencing credits results
in an unlawful restraint of the offender. In re Pers. Restraint of Reifschneider,
130 Wn. App. 498, 501, 123 P.3d 496 (2005). Thus, we look to see whether
DOC’s calculation of Dell’s time served and earned release date was “unlawful”
under RAP 16.4(c). This is a question of law that we review de novo. In re Pers.
Restraint of Erickson, 146 Wn. App. 576, 585, 191 P.3d 917 (2008).
B. 	Credit for 66 Days Jail Earned Release Time in 2012
First, Dell challenges DOC’s calculation of his release date arguing that
DOC failed to subtract the 66 days (of early release time he earned while
confined in King County Jail) from the total sentence to arrive at the “maximum

No. 80458-8-I/7
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expiration” date for his sentence. Dell used WAC 137-30-060(1)5 and DOC’s
Statewide Inmate Orientation Handbook (Handbook) to calculate his maximum
expiration date as October 17, 2017. DOC’s Handbook provides the following
rubric for calculating release dates:
1 	Start with total sentence length
(converted to days)
36 months = 1095
days
Total Sentence
Length
2 	Subtract the number of days of jail
credits (Jail time and jail good
time combined)
1095 – 90 days =
1005 days
Days to be served
in DOC prior to
earned release
credits being
applied
(Maximum
Expiration Date)
3 	Multiply by one third for DOC
earned release credits. NOTE: If
your sentence is any other earned
time percentage, use this same
process but use the correct
earned time percentage
1005 x 0.333 =
335 days DOC
earned release
credits
DOC earned
release credits.
4 	Subtract the DOC earned release
credits from the Days to be
served in DOC
1005 – 335 = 670
days to serve in
DOC
Total days to be
served in DOC
5 	Add the total days to be served in
DOC to your time start date
1-01-2009 plus
670 days = 11-02-
2010
This becomes
your Earned
Release Date
(ERD)
DOC “concededly” agrees that the Handbook “does support the
calculation [Dell] put forth.” DOC further acknowledges that “October 17, 2017,
would result as the maximum expiration date because the handbook subtracts
both jail time and jail earned time from the total sentence to arrive at the
maximum expiration date.” Despite this, DOC claims “the calculation example
5 WAC 137-30-060(1) provides, “[t]o calculate an offender’s release date
on a determinate sentence, the jail time and jail earned release time are
deducted from the total sentence. The earned release time applicable per
statute is applied to the adjusted sentence.”

No. 80458-8-I/8
8
provided in the handbook was superseded by Department policy” and therefore,
Dell “may not rely on the handbook in this petition.” DOC has failed to provide
Dell or this court with a copy of the “superseded” policy upon which it now
attempts to rely.
Dell is entitled to receive credits for all time certified by the jail including
the earned early release time while Dell was held in the King County Jail. In re
Pers. Restraint of Taylor, 122 Wn. App. 880, 884-85, 95 P.3d 790 (2004) (holding
that DOC’s compliance with statutory requirements affecting release from
confinement is a protected liberty interest). So, we remand to DOC for
computation of Dell’s release date giving credit for all his jail earned early release
time.
C. 	Credit for 34 Days Additional Confinement in March 2016
Next, Dell also contends DOC did not credit him with “earned release
time” for the 34 days he was held in total confinement beyond his February 26,
2016 release date due to waiting for DOC to approve his release plan.6 DOC
admits that it “did not award any extra credit based on those days.”
Our decision in Reifschneider is instructive. There, the offender received
a DOSA sentence following a residential burglary conviction. Reifschneider, 130
Wn. App. at 500. And, similar to Dell’s situation here, “[a]t the end of [the
offender’s] period of incarceration, he was held for an additional 252 days
6 “Earned Release Time (ERT)” means “the combined earned time and
good conduct time credit an offender is eligible to earn off the minimum term
established by the indeterminate sentence review board or the sentencing court.”
WAC 137-30-020.

No. 80458-8-I/9
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because he was unable to provide the DOC with a satisfactory address in his
release plan.” Reifschneider, 130 Wn. App. at 500. After the offender was
released into community custody and returned upon a violation of those
conditions, DOC did not apply any good time credit earned during the offender’s
252 days of additional prior incarceration. Reifschneider, 130 Wn. App. at 500.
The offender filed a PRP with this court arguing that he was entitled to good time
credits for the additional incarceration. Reifschneider, 130 Wn. App. at 500-01.
We agreed, granted the PRP, and held that,
[A]n inmate must be allowed to accrue good-time credits
when he or she is held beyond the earned early release date for
failure to submit an approved release plan. The DOC must
consider any good-time credits earned during the confinement
portion of a DOSA sentence if the community custody portion is
subsequently revoked and the inmate is reincaracerated.
Reifschneider, 130 Wn. App. at 504. Reifschneider clearly applies to Dell’s
situation. Dell was entitled to receive good time credits for the days he was “held
beyond the earned early release date for failure to submit an approved release
plan.”
DOC counters that Reifschneider’s holding does not extend “to non-
DOSA sentences so as to require the Department to award extra credit.” But
DOC asks this court to read into Reifschneider language that does not exist.
Nothing in Reifschneider limits its holding to DOSA sentences. We reject DOC’s
request to do so.
DOC’s failure to award Dell any good time credit for 34 days was unlawful.
Accordingly, we grant the PRP and remand to DOC to recalculate Dell’s
applicable good time credits for this period.

No. 80458-8-I/10
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D. 	Credit for 83 Days Community Custody Time
Dell also argues that at the time of his March 2016 release, DOC
exceeded its authority by adding 83 days to his 18 month community custody
term imposed under the 2012 sentence. The DOC concedes that “[t]his appears
to have been incorrect under the law in effect at the time.”
In July 2016, DOC corrected its error and removed “83 additional
community custody days” from the 2012 sentence. The 18 month term was the
lawfully available term of community custody at the time. RCW 9.94A.501(8)
(“The period of time the department is authorized to supervise an offender under
this section may not exceed the duration of community custody specified under
. . . RCW 9.94A.701(1) through (8).”). DOC’s correction resulted in changing
Dell’s scheduled release date from December 26, 2017 to October 4, 2017.
Thus, we deny Dell’s claim regarding 83 days additional credit.
E. 	Credit for 36 Days Detention in September and October 2017
Finally, Dell argues the DOC failed to credit him with 36 days while he was
detained awaiting his community custody violation hearing under the 2012
conviction.
Pursuant to RCW 9.94A.633, an offender returned to total confinement is
entitled to credit “for any period actually spent . . . in detention awaiting
disposition of an alleged violation.” RCW 9.94A.633(2)(a). Here, the record
shows that Dell returned to prison on September 19, 2017 and DOC began to run
his “return time” on the same day. On October 25, 2017, DOC held Dell’s
disposition hearing. DOC represents that it gave Dell credit for time spent in

No. 80458-8-I/11
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detention while awaiting this hearing. Dell has not produced evidence in the
contrary. 	In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 396, 978 P.2d
1083 (1999) (to support a PRP, offenders must present facts or evidence beyond
conclusory allegations, speculation, conjecture, or inadmissible hearsay). Thus,
we deny Dell’s claim that he was not credited 36 days.
We grant the PRP in part and deny it in part. Accordingly, we remand to
DOC for recalculation of Dell’s release date giving him credit for all earned good
time in accordance with this opinion.
WE CONCUR: