No. 53813-6-IThe Court of Appeals of Washington, Division One.
Filed: December 27, 2004 UNPUBLISHED OPINION
Date first document (petition, etc) was filed in Court of Appeals: 02/19/2004.
Counsel for Petitioner(s), Rudolph Renfro (Appearing Pro Se), #257617, Washington Corrections Center, P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Gregory Joseph Rosen, Aty General Ofc, Criminal Justice Division, PO Box 40116, Olympia, WA 98504-0116.
PER CURIAM.
Following the revocation of his parole, Rudolf W. Renfro filed a personal restraint petition alleging that the Indeterminate Sentencing Review Board (ISRB) did not comply with its own procedural rules relating to revocation of parole. The documents initially submitted by the State related to earlier proceedings, wherein Renfro’s parole was not revoked. This court gave the State an opportunity to submit additional documentation relating to the proceedings wherein Renfro’s parole was revoked. The exhibits filed by the State do not establish that Renfro was given notice of the time and place of his hearing or that Renfro was given notice of the factual allegations against him. We therefore remand for a new parole revocation hearing.
FACTS
Rudolf W. Renfro was convicted of first degree murder in 1979. He was paroled in 1996. His parole was revoked in 1997. In 2001, Renfro was paroled again. Renfro had parole revocation hearings in November 2002 and February 10, 2003, wherein his parole was not revoked. Renfro’s parole was eventually re-revoked as the result of a hearing in September 2003. Renfro filed a personal restraint petition, alleging that the ISRB did not serve him with notice that a parole revocation hearing would be held and that the Board did not give him notice of what charges would be addressed at the hearing or the time and place of the hearing. Renfro also alleged that he was not represented by counsel of his own choosing at the hearing. The State filed a response supported by exhibits that purported to establish that Renfro was given notice of the time and place of his hearing, as well as the allegations against him, and that Renfro was represented by appointed counsel. But these documents related to Renfro’s February 10, 2003 parole revocation hearing. Renfro is not incarcerated as a result of that hearing. Rather, his current incarceration is due to his parole being revoked at a September 2003 hearing. None of the State’s exhibits showed that Renfro was given notice of the date, time, and place of this hearing, nor did they establish that Renfro was given notice of the allegations against him at this hearing or that counsel was appointed to represent him at the September 2003 hearing.
This court therefore ordered the State to `supplement the record with any and all documentation relating to the notice (if any) provided to Renfro regarding the September 8, 2003 revocation hearing, as well as any documentation regarding appointment of counsel to represent Renfro at said hearing, no later than September 29, 2004.’
On September 27, 2004, the State filed a supplemental response along with eight supplemental exhibits.
Supplemental exhibit 1 is a notice indicating that the ISRB had conducted an administrative review and determined that there was probable cause to conduct a parole revocation hearing. Supplemental exhibit 1 also sets forth the place (the King County Jail) and the date (September 8, 2003) of the hearing. Supplemental exhibit 1 was not signed by Renfro, and the State has not provided proof that he was served with or was provided a copy of the document.
Supplemental exhibit 2 appears to be an e-mail indicating that Renfro’s hearing was rescheduled to September 29, 2003. The e-mail was not sent to Renfro. It does appear that it was sent to Renfro’s counsel. The e-mail does not contain a date within the body of the e-mail. The exhibit has the notation `9/9/2003′ at the bottom of the document.
Supplemental exhibit 3 is identical to supplemental exhibit 1, with the exception that supplemental exhibit 3 notes a hearing date of September 29, 2003. As with supplemental exhibit 1, the document is not signed by Renfro, and the State has filed no proof that the document was provided to Renfro.
Supplemental exhibit 4 is a letter dated September 3, 2003, from attorney Michael C. Kahrs. The letter indicates that he is seeking discovery to assist in his representation of Renfro at his upcoming hearing. The letter also states that Kahrs enclosed a `release of record’ signed by Renfro. That release, dated September 3, 2003, is supplemental exhibit 6.
Supplemental exhibit 5 is a letter dated September 2, 2003, from Kahrs to the ISRB indicating that he would be representing Renfro at his upcoming hearing. In this letter, Kahrs indicates that the hearing is scheduled for September 8, 2003.
Supplemental exhibit 7 is a memo from the ISRB indicating that a deferred decision was taken at the September 29, 2003 hearing, that the deferred decision was resolved on October 3, 2003, and that Renfro’s parole was revoked.
Exhibit 8 contains three documents. The first is the findings and conclusions of the ISRB dated October 9, 2003. This document indicates, apparently due to a typographical error, that Renfro’s hearing was held on September 8, 2003. The findings and conclusions note that Renfro was represented by attorney Kahrs at the hearing. Exhibit 8 also includes findings and conclusions from two of Renfro’s earlier hearings before the ISRB.
ANALYSIS
As the State acknowledged in its response brief, if the ISRB failed to comply with its own procedural rules for conducting hearings by adhering to chapter 381-70 of the Washington Administrative Code, Renfro would be entitled to relief. In re Personal Restraint of Cashaw, 123 Wn.2d 138, 150, 866 P.2d 8
(1994); In re Personal Restraint of Shepard, 127 Wn.2d 185, 898 P.2d 828 (1995).
Based on the record before us, we are satisfied that the State has established that Renfro was represented by counsel. Renfro alleges that he was not represented by counsel of his own choosing at his hearing. It is unclear from the record whether Kahrs was retained or appointed to represent Renfro. If Renfro retained Kahrs, then Renfro was apparently represented by counsel of his own choosing.
And if Kahrs was appointed to represent Renfro, Renfro has not established that he was deprived of any recognized right. WAC 381-70-160(2) provides that an alleged parole violator has a right to be represented by an attorney of his own choosing and at his own expense. The ISRB may provide appointed counsel upon a showing of indigency and upon request, but WAC 381-70-160(2) does not provide that an alleged parole violator has a right to appointed counsel of his or her own choosing.
The State alleges that its supplemental exhibits establish that Renfro was given notice of the time and place of his hearing. But as noted above, the State has provided no proof that any of the exhibits were actually provided to Renfro.
Moreover, Renfro contends that he was never provided with notice of the charges against him. In its initial response to this court, the State provided proof that Renfro was provided notice of the factual allegations against him at earlier hearings. But the State has still failed to provide any proof whatsoever that Renfro was given notice of the factual allegations leveled against him in September 2003.
WAC 381-70-120 provides:
Service of factual allegations. Whenever a community corrections officer is notified of the arrest and detention of an alleged parole violator and such alleged parole violator’s parole has been suspended, or is suspended by the community corrections officer, the community corrections officer shall personally serve the parolee with a copy of the factual allegations within three working days of the suspension of parole. Such allegations of violation shall be submitted to the board with a copy to the attorney general within twenty-four hours of service.
If, after service of alleged violations as set forth above, additional alleged violations are brought forth by the community corrections officer, the CCO shall personally serve the parolee with a copy of those allegations. The parolee will have ten calendar days from the date of service of those allegations before the board will consider those additional allegations at an on-site parole revocation hearing. The parolee may waive the ten calendar days notice and proceed with those allegations at an already scheduled on-site parole revocation hearing. Such allegations of violation shall be submitted to the board with a copy to the attorney general within twenty-four hours of service.
WAC 381-70-130 provides:
Contents of factual allegations. The factual allegations of the violations of each condition shall include:
(1) The circumstances of violation;
(2) Date of violation or approximation thereof; and
(3) Location or place where violation occurred.
Whenever a parolee is accused of a violation of his parole which includes the commission of, and conviction for, a felony or misdemeanor, the community corrections officer shall request that verification of such conviction be forwarded from the court of conviction to the board.
Renfro contends he was not served with the factual allegations against him as required by WAC 380-70-120 and -130. The State has failed to provide any proof that Renfro was in fact given the proper notice, even when given the opportunity to submit supplemental exhibits. Based on the record before us, it appears that the State has failed to comply with its own procedural rules relating to parole revocation hearings. The remedy for the State’s failure to comply with its own procedural guidelines is a new hearing. We therefore remand this case to the ISRB for proceedings consistent with this opinion.
GROSSE, J., COLEMAN, J. and BAKER, J.