No. 49443-1-I.The Court of Appeals of Washington, Division One.
Filed: March 4, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Date first document (petition, etc) was filed in Court of Appeals: 11/01/2001.
Counsel for Petitioner(s), Darrel W. Stewart (Appearing Pro Se), Stafford Creek C. C., D.O.C. #955513, 191 Constantinw Wy., Aberdeen, WA 98520.
Counsel for Respondent(s), Donna H. Mullen, Attorney General Office, P.O. Box 40116, Olympia, WA 98504-0116.
PER CURIAM.
Darrel Stewart filed a personal restraint petition (PRP) challenging the Washington State Department of Corrections’ (DOC) imposition of a requirement that he obtain preapproval of his residence address before he could be transferred to community placement in lieu of early release. Stewart contends that the DOC erred in imposing this condition because at the time of his crimes, it was an optional condition which the trial court declined to impose at sentencing. We agree and grant Stewart’s petition.
FACTS
In 1989 Stewart entered an Alford[1] plea to two counts of attempted first degree kidnapping and pled guilty to two counts of second degree assault with a deadly weapon and one count of violation of the Uniform Firearms Act. Because his crimes were defined as `serious violent offenses’[2] , Stewart was statutorily required to serve a term of community placement upon his release from prison in lieu of release from incarceration based on early release credits.[3] At sentencing, the trial court imposed the mandatory term of community placement and conditions; it did not impose the optional condition requiring pre-approval of residence address. Stewart’s current early release date is February 13, 2006.
The DOC has informed Stewart that `[a]s of today, [October 18, 2001] yes, you will be required to have an approved address prior to release.’[4]
DISCUSSION
Because Stewart has had no other or prior means to obtain judicial review, the requirement to show actual and substantial prejudice or a fundamental defect resulting in a miscarriage of justice does not apply.[5] Rather, he must show only that he is unlawfully restrained under RAP 16.4.[6] At the time of Stewart’s offenses, various conditions were statutorily imposed during community placement; others, including pre-approval of residence address, were optional `special’ conditions which could be imposed in the trial court’s sole discretion.[7]
Stewart filed a PRP contending that the DOC acted without legal authority in adding a sentence condition retroactively, relying in part on our decision in State v. Capello, 106 Wn. App. 576, 24 P.3d 1074, review denied, 145 Wn.2d 1006 (2001).[8] The DOC argued that Capello only applies to sex offenses and that, since Stewart’s offense is a serious violent offense, Capello is inapplicable in this case.[9] The DOC made the same argument we rejected in Capello, that RCW 9.94A.150 authorizes it to impose a condition requiring pre-approval of residence address as an inherent part of its overall power to monitor offenders on community placement.
In Capello, we held that the DOC could not lawfully require pre-approval of residence address because the statutes in effect at the time of the offense gave the power to impose this condition only to the trial court, not to the DOC.[10] The DOC’s argument that Capello only applies to sex offenses is not well taken. In Capello, this court noted that the offense committed was both a sex offense and a serious violent offense.[11] The statute applies both to sex offenses and to serious violent offenses.[12] The reasoning in Capello applies equally in this case.
We grant Stewart’s PRP and direct the DOC to transfer him to community placement when he is otherwise eligible, without the need for a pre-approved residence address.
Affirmed.
(1970).