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          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of          )
                                                    )      No. 83815-1
                                                    )
ERIC SHERIDAN FLINT,                                )
                                                    )      En Banc
                                                    )
                      Petitioner.                   )      Filed May 24, 2012
_______________________________________)

       MADSEN, C.J. -- Personal restraint petitioner Eric Flint maintains that his return 
to total confinement pursuant to RCW 9.94A.737(2)1 as a result of repeated violations of 

conditions of community custody violated the ex post facto clauses of the state and 

federal constitutions.  He filed his personal restraint in the Court of Appeals, which 

dismissed the petition as frivolous, and we granted discretionary review.  We conclude 

that application of the statute to Mr. Flint did not create an ex post facto problem and 

accordingly affirm the Court of Appeals' dismissal of Mr. Flint's petition, however, on 

different grounds.

1 This provision is now codified at RCW 9.94A.714(1).  Laws of 2008, ch. 231, § 16 (effective 
Aug. 1, 2009, Laws of 2008, ch. 231, § 61). For convenience, unless otherwise indicated, the 
statute will be referred to in the present tense as it existed at the time that Mr. Flint committed his 
community custody violations. 

No. 83815-1

                                            FACTS

       In 2002, Mr. Flint was convicted of first degree robbery and possession of a 

controlled substance, methamphetamine.  He was sentenced to a prison term of 100 

months to be followed by a term of community custody subject to specified terms and 

conditions.  At the time that Mr. Flint committed his crimes, RCW 9.94A.737(1) (2005) 

provided that when an offender violated any condition or requirement of community 

custody, the department had discretion to transfer the offender to more restrictive 

confinement to serve up to the remainder of his sentence, less credit for time served in 

community custody.

       On August 27, 2007, Flint was released into the community on earned early 

release to serve the term of community custody.  Shortly before his release, the legislature 

amended RCW 9.94A.737 to provide that when an offender is released on earned early 

release and is subject to a third violation hearing for any violation of the conditions of 

community custody, the Department of Corrections (department) is to return the offender

to total confinement to serve up to the rest of his sentence, with credit for the time served 

in community custody.  Laws of 2007, ch. 483, § 305 (effective July 22, 2007); RCW 

9.94A.737(2).  The statute also provides that the offender will not be reincarcerated if the 

department in its discretion determines that returning the offender to total confinement 

would interfere with his ability to maintain community supports or participate in 

treatment or programming and would increase the likelihood of reoffending.  RCW 

9.94A.737(2).

                                               2 

No. 83815-1

       After he was transferred to community custody, Mr. Flint repeatedly violated the 

terms of his community custody.  In April and November 2008, and on February 12, 

2009, hearings were held to address these violations.  Each time, Flint was found guilty 

of multiple violations.  At the third violation hearing, the hearing examiner considered 

whether to exercise discretion to continue Flint's community custody status rather than 

returning him to total confinement.  Among other things, the hearing examiner considered

Flint's risk of violence in light of his continued use of drugs, his failure to engage in drug 

treatment, and his failure to report as required.  The hearing examiner concluded that 

Flint's behavior posed a risk to the community and that returning him to incarceration

would not interfere with his adjustment into the community. Accordingly, Mr. Flint was 

returned to total confinement to serve the period of earned early release previously

applied to his sentence, less the number of days he had served in community custody.

       Flint filed a personal restraint petition in Division Two of the Court of Appeals, 

arguing that the department lacked authority to return him to prison. Among other things, 

he maintained that application of the 2007 amendment constituted an ex post facto 

violation because the statute's effective date occurred after he committed his crimes.  The 

chief judge of Division Two of the Court of Appeals dismissed the petition as frivolous.  

See RAP 16.11(b). Flint then sought discretionary review in this court.

                                         ANALYSIS

                                               3 

No. 83815-1

       I.  Mootness

       Generally, where direct review of claimed error is not available, a more lenient 

standard of review applies than where a personal restraint petition follows an appeal from 

a judgment and sentence.  In re Pers. Restraint of Cashaw, 123 Wn.2d 138, 148-49, 866 

P.2d 8 (1994). The petitioner can prevail if he can show he is under unlawful restraint as 

meant by RAP 16.4(c) and (d).  Here, however, since Mr. Flint has completed his full 

sentence, he is not under restraint in the usual sense and as his counsel conceded at oral 

argument his petition is moot.
       Nevertheless, whether RCW 9.94A.737(2)2 can be applied to offenders whose 

original crimes predate the amendment's effective date is a matter of continuing and 

substantial public interest.  Indeed, after Mr. Flint filed his motion for discretionary 

review, and contrary to Division Two's decision in the present case, Division One of the 

Court of Appeals decided State v. Madsen, 153 Wn. App. 471, 228 P.3d 24 (2009), and 

held that applying the amendment to offenders whose crimes predate its effective date 

violates the ex post facto clause.  Because of the importance of the question and despite 

the mootness of this case, we address the issue whether the statute's application to Mr. 

Flint is an ex post facto violation.  See, e.g., In re Pers. Restraint of Mattson, 166 Wn.2d 

730, 736-37, 214 P.3d 141 (2009) (although the case was technically moot because the 

offender's maximum term had expired, the court nevertheless interpreted a statute 

regarding earned early release and decided whether offenders have a protected liberty 

2 As noted, the provision is now found in RCW 9.94A.714(1).
                                               4 

No. 83815-1

interest in early release to community custody).

       II.  Ex Post Facto Claim

       A claim that application of a law violates the constitutional prohibition against ex 

post facto laws is a constitutional question that we review de novo.  Ludvigsen v. City of 

Seattle, 162 Wn.2d 660, 668, 174 P.3d 43 (2007). There is no contention here that the 

state constitution's ex post facto clause gives rise to an independent state constitutional 

analysis, and we accordingly assume that it does not.  State v. Pillatos, 159 Wn.2d 459, 

475 n.7, 150 P.3d 1130 (2007).

       "A law that imposes punishment for an act that was not punishable when 

committed or increases the quantum of punishment violates the ex post facto prohibition."  

In re Pers. Restraint of Hinton, 152 Wn.2d 853, 861, 100 P.3d 801 (2004); accord

Carmell v. Texas, 529 U.S. 513, 522, 120 S. Ct. 1620, 146 L. Ed. 2d 577 (2000) (quoting 

Calder v. Bull, 3 U.S. (Dall.) 386, 390, 1 L. Ed. 648 (1798)); Johnson v. United States, 

529 U.S. 694, 699, 120 S. Ct. 1795, 146 L. Ed. 2d 727 (2000); In re Pers. Restraint of 

Dyer, 164 Wn.2d 274, 292, 189 P.3d 759 (2008); Pillatos, 159 Wn.2d at 475. To prevail 

on this kind of ex post facto claim, the petitioner must show that the challenged law 

operates retroactively, i.e., it applies to conduct that was completed before the law was 

enacted, and that the challenged law increases the penalty over what it was at the time of 
the conduct.3  Johnson, 529 U.S. at 699; see Dyer, 164 Wn.2d at 293.

3 Mr. Flint says that an ex post facto violation occurs when it "disadvantages" the individual 
affected by the law.  Although this is a term that appeared in earlier United States Supreme Court 
decisions, which we followed, it has been repudiated by both that court and our own.  See Calif. 
Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995) 
                                               5 

No. 83815-1

       A.  Whether RCW 9.94A.737(2) Is Retroactive

       Under our general analysis for determining whether RCW 9.94A.737(2) is 

retroactive, we conclude that the statute was not retroactively applied to Mr. Flint.  The 

statute is not triggered until and unless an offender commits multiple violations of 

community custody conditions, it does not impair any vested rights, and it does not alter 

the consequences of prior events or conduct.  Mr. Flint contends, however, that a contrary 

result is dictated by Johnson, 529 U.S. 694.  We address these issues in turn.

       1.  Whether Legislature Intended Retroactive Application

       We first turn to the question whether the statute is prospective or retroactive.  We

agree with Mr. Flint that the legislature did not intend that the statute apply retroactively.  

Statutory amendments are presumed to operate prospectively.  Hale v. Wellpinit Sch.

Dist. No. 49, 165 Wn.2d 494, 507-08, 198 P.3d 1021 (2009).  The presumption is 

overcome only when the legislature explicitly provides for retroactive application or the 

amendment is curative or remedial.  Densley v. Dep't of Ret. Sys., 162 Wn.2d 210, 223, 

173 P.3d 885 (2007); State v. Cruz, 139 Wn.2d 186, 191, 985 P.2d 384 (1999). A 

curative amendment clarifies or makes a technical correction to an ambiguous statute.  

Cruz, 139 Wn.2d at 192.  A remedial change relates to practices, procedures, or remedies 

(explaining that the inquiry established by Lindsey v. Washington, 301 U.S. 397, 401, 57 S. Ct. 
797, 799, 81 L. Ed. 1182 (1937), Miller v. Florida, 482 U.S. 423, 107 S. Ct. 2446, 96 L. Ed. 2d 
351 (1987), and Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981) into 
whether a law "produces some ambiguous sort of 'disadvantage'" to the offender is inconsistent 
with the framework established in Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 
2718, 111 L. Ed. 2d 30 (1990) for ex post facto inquiries, i.e., the relevant inquiry is whether the 
law increases the quantum of punishment that existed under prior law); State v. Ward, 123 Wn.2d 
488, 498, 869 P.2d 1062 (1994) (making the same course correction).
                                               6 

No. 83815-1

without affecting substantive or vested rights.  Id.  The legislature has not expressly 

provided that RCW 9.94A.737(2) is retroactive, and the State has not shown that it is 

curative or remedial.

       We find no basis for concluding that the 2007 amendment to RCW 9.94A.737 

adding subsection 2 was intended to be applied retroactively

       2.  Whether RCW 9.94A.737(2) Was Retroactively Applied

       Whether the legislature intended the statute to apply retroactively does not end the 

inquiry because it remains to be determined whether the statute was in fact applied 

retroactively to Mr. Flint.  Prospective application of a statute occurs when the event that 

triggers or precipitates operation of the statute takes place after its enactment.  Pillatos, 

159 Wn.2d at 471.  Prospective application can be found even if the triggering event 

originates in a situation that existed before the statute was enacted.  Id.; see In re Estate 

of Burns, 131 Wn.2d 104, 110-11, 928 P.2d 1094 (1997) ("[a] statute operates 

prospectively when the precipitating event for operation of the statute occurs after 

enactment, even when the precipitating event originated in a situation existing prior to 

enactment" (emphasis added)).  

       If a statute's application changes the legal effect of "prior facts or transactions," 

then the statute's application is more properly characterized as retroactive.  See State v. 

Varga, 151 Wn.2d 179, 195, 86 P.3d 139 (2004) (quoting State v. Scheffel, 82 Wn.2d 

872, 879, 514 P.2d 1052 (1973)); State v. Blank, 131 Wn.2d 230, 248, 930 P.2d 1213 

(1997); Burns, 131 Wn.2d at 111; Aetna Life Ins. Co. v. Wash. Life & Disability Ins. 

                                               7 

No. 83815-1

Guar. Ass'n, 83 Wn.2d 523, 535, 520 P.2d 162 (1974).  However, a statute is not 

retroactive simply "'because some of the requisites for its actions are drawn from a time 

antecedent to its passage.'"  State v. Belgarde, 119 Wn.2d 711, 722, 837 P.2d 599 (1992)

(quoting Scheffel, 82 Wn.2d at 879); see Landgraf v. USI Film Prods., 511 U.S. 244, 269, 

114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994).  Nor does a statute operate retrospectively just 

because it upsets expectations based on prior law.  Ludvigsen v. City of Seattle, 162 

Wn.2d 660, 668, 174 P.3d 43 (2007); see Landgraf, 511 U.S. at 269.

       Expectations based on prior law must be distinguished from vested rights, 

however.  A statute has retroactive effect if it takes away or impairs a party's vested 

rights acquired under existing laws.  Pillatos, 159 Wn.2d at 471; Pape v. Dep't of Labor 

& Indus., 43 Wn.2d 736, 740, 264 P.2d 241 (1953); In re Fotheringham's Estate, 183 

Wash. 579, 586, 49 P.2d 480 (1935); see Landgraf, 511 U.S. at 268-69, 271-72.  The 

same is true if a statute's application increases liability for past conduct or imposes new 

duties or disabilities with respect to completed transactions.  See Pillatos, 159 Wn.2d at 

471; Pape, 43 Wn.2d at 740-41; Landgraf, 511 U.S. at 269.

       These guiding principles have been generally summarized as meaning that to 

determine whether a statute operates prospectively or retroactively is to 

       "ask whether the new provision attaches new legal consequences to events 
       completed before its enactment.  The conclusion that a particular rule 
       operates 'retroactively' comes at the end of a process of judgment 
       concerning the nature and extent of the change in the law and the degree of 
       connection between the operation of the new rule and a relevant past 
       event."

                                               8 

No. 83815-1

Pillatos, 159 Wn.2d at 471 (quoting Landgraf, 511 U.S. at 269-70).

       a.  Triggering Event

       None of the principles mentioned above suggest that the statute's application to a 

person in Mr. Flint's position is a retroactive application.  First, the triggering event for 

application of RCW 9.94A.737(2) is when a defendant is found to have committed 

violation(s) of conditions of community custody at a third violation hearing.  It is at this 

point that the statute directs that the department "shall return the offender to total 

confinement in a state correctional facility to serve up to the remaining portion of his or 

her sentence."  RCW 9.94A.737(2). In this case this triggering event has its origins in a 

situation that existed before RCW 9.94A.737(2) was enacted, in that Flint was convicted, 

sentenced, and imprisoned for first degree robbery and possession of a controlled 

substance at the time the legislature amended RCW 9.9A.737(2) to add the challenged 

provision.  But as explained, a law is not retroactive merely because some of the 

requisites for its application "'are drawn from a time antecedent to its passage.'"  

Belgarde, 119 Wn.2d at 722 (quoting Scheffel, 82 Wn.2d at 879); see Pillatos, 159 

Wn.2d at 471.

       b.  No Vested Rights Impaired

       Second, the statute's conflict with Mr. Flint's expectations does not make its 

application retroactive.  Mr. Flint's third community custody violation hearing was held 

on February 12, 2009.  He was found guilty by admission of several violations, including 

the failure to obey all laws by being in possession of drug paraphernalia on February 2, 

                                               9 

No. 83815-1

2009.4 Mr. Flint believes that under then-prevailing department practices, he would have 

been subjected, at most, to a 60-day period of confinement as a sanction for committing 

the third violation.  But as explained, a statute is not retroactive merely because it upsets 

expectations based on prior law or practices.  Mr. Flint's expectations do not lead to the 

conclusion that RCW 9.94A.737 was applied retroactively in his case.  See Ludvigsen, 

162 Wn.2d at 660; Landgraf, 511 U.S. at 269.

       A different conclusion would be required if application of the statute took away or 

impaired any vested rights under prior law.  However, under the law prior to enactment of 

RCW 9.94A.737(2), Mr. Flint clearly had no vested right in remaining in community 

custody without being subject to a return to total confinement following a violation of the 

conditions of community custody.  At the time that Mr. Flint committed his crimes in 

January and February 2002, RCW 9.94A.737(1) (1999) provided the department with the 

discretion to transfer an offender to a more restrictive confinement status if the offender 
violated "any condition or requirement of community custody."5 Thus, under the law as 

it then existed, Flint was subject to reincarceration on his original offenses for any 

violation of the conditions of community custody, within the discretion of the department,

without a vested right to remain in the community

4 Between the time of his release from total confinement on April 2, 2008, and the third hearing, 
Mr. Flint appeared at three other community custody violation hearings.  At the hearings held on 
April 2, 2008, and November 5, 2008, he was found guilty and sanctioned for multiple violations.  
In addition, on July 28, 2008, and February 6, 2009, he signed two stipulated agreements 
admitting he was guilty of other violations.
5 The statute was formerly codified at RCW 9.94A.205, with the same provision appearing in the 
statute.
                                               10 

No. 83815-1

       c.  No New Consequences for Completed Events

       Third, the statute's application in Mr. Flint's case did not increase any liability for 

past conduct or impose new duties or disabilities with respect to completed transactions, 

i.e., it did not attach new consequences to events completed before its enactment.  See 

Pillatos, 159 Wn.2d at 471; Pape, 43 Wn.2d at 740-41; Landgraf, 511 U.S. at 269.  

Insofar as the original offenses are concerned, the statute does not increase the 

punishment.  Mr. Flint's sentence for the robbery and possession offenses remains the 

same and no new term may be imposed under the amendment.

       Although Mr. Flint has consistently referred to RCW 9.94A.737(2) as mandating a 

return to total confinement, in contrast to the former discretionary scheme, the 

characterization is simply incorrect.  Prior to the 2007 amendment, RCW 9.94A.737(1) 

(2005) provided that upon a violation of any condition or requirement of community 

custody the department in its discretion could transfer the offender to more restrictive 

confinement to serve up to the remainder of his sentence, less credit for time served in 

community custody.  After the amendment, RCW 9.94A.737(2) states that upon a third 

violation hearing the offender "shall" be returned to total confinement to serve up to the 

remainder of the sentence, less credit for time served in community custody, but it then 

explicitly authorizes the department in its discretion to decline to reincarcerate an 

offender if it determines that returning him to a "state correctional facility would 

substantially interfere with [his] ability to maintain necessary community supports or to 

                                               11 

No. 83815-1

participate in necessary treatment or programming and would substantially increase the 

offender's likelihood of reoffending."

       The department thus retains broad if not identical discretion to either reincarcerate

the offender or continue community custody.  The department could have chosen in 

Flint's case not to reincarcerate him upon a conclusion that reincarceration would impair 

his ability to maintain necessary community supports, participate in necessary treatment 

or programming, or increase his likelihood of reoffending.  Prior to the enactment of the 

statute, the department had discretion to return him to more restrictive confinement upon 

a single violation of community custody conditions.  Contrary to Flint's claim, RCW 

9.94A.737(2) does not make mandatory what was formerly discretionary with regard to 

the time he serves in total confinement.

       With respect to the community custody violations themselves, RCW 9.94A.737(2) 
does not affect available punishments.6

       Thus, both before and after the statute's effective date, an offender released on 

community custody has been subject to reincarceration for up to the remainder of the 

offender's sentence on the convictions for the original offenses if the offender violates the 

conditions of community custody, with discretion lodged in the department to continue 

the term of community custody where appropriate.  Neither the sentence for the original 

offenses nor available punishments for the community custody violations themselves have 

6 RCW 9.94A.633 provides, among other things, that an offender who violates a community 
custody condition may be sanctioned by up to 60 days of confinement for each violation or by 
specified "in lieu" sanctions such as work release or home detention with electronic monitoring.  
A violation may itself constitute a crime for which punishment may be imposed.
                                               12 

No. 83815-1

changed under RCW 9.94A.737(2).

       We therefore conclude that RCW 9.94A.737(2) was not in fact applied 

retroactively to Mr. Flint.  (1) The statute was triggered by an event postdating 

commission of his offenses, i.e., the statute was triggered when he was subject to a third 

community custody hearing, which resulted from violation of the conditions of 

community custody.  (2) The statute did not interfere with any vested rights that Mr. Flint

held.  (3) It did not attach new consequences to events completed before its enactment, 

because punishment was essentially the same before and after the statute's enactment, 

both as to the original sentence and as to consequences for community custody 
violations.7

       B.  Johnson v. United States

       Mr. Flint maintains, however, that a contrary result is required under Johnson.
       In Johnson, 18 U.S.C. § 3583(h)8 was enacted after the defendant's original 

conviction and sentence.  The statute granted district courts the power to impose an 

additional, second term of supervised release following reimprisonment of a defendant 

for violation of conditions of an initial term of supervised release.  Johnson, 529 U.S. at 

698.  The United States Supreme Court rejected the argument that the additional term of 

7 In addressing whether RCW 9.94A.737(2) altered the consequences of past events, for purposes 
of deciding whether the statute was retroactively applied, we have explained that punishment was 
not altered by enactment of RCW 9.94A.737(2).  Accordingly, the Court of Appeals' decision to 
the contrary in Madsen, 153 Wn. App. 471, is incorrect and is overruled.  RCW 9.94A.737(2) did 
not alter the standard of punishment that existed under the law prior to its enactment.
8 See Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 110505(2)(B), 
108 Stat. 2016-17.
                                               13 

No. 83815-1

supervised release was merely punishment for violating the conditions of supervised 

release and concluded that postrevocation penalties are attributable to the original 

offense.  Id. at 701. To apply the new statute in the case at hand, the Court reasoned,

would be to apply it retroactively and raise the ex post facto question of whether the 

statute's application would make the defendant worse off.  Id.

       In Johnson, however, the challenged statutory provision imposed a postrevocation

penalty for the original offense, a second term of earned early release, following 

reincarceration.  The same is not true in Mr. Flint's case.  RCW 9.94A.737(2) does not 

impose any additional punishment, as explained, and for this reason does not violate the 

ex post facto clauses of the state and federal constitutions.  U.S. Const. art. I, § 10; Wash.

Const. art. I, § 23. Accordingly, the ex post facto issue in Mr. Flint's case is not the same 

as in Johnson.

       After deciding that the new law at issue in Johnson would impose a postrevocation

penalty for the original offense, the Court then concluded that there was no congressional 

intent that the statute be applied to cases where the convictions occurred prior to the 

statute's enactment and accordingly no ex post facto issue was implicated.  Johnson, 529 

U.S. at 702.  The Court examined the law as it had existed prior to amendment and 

concluded that under the prior version of the law the district court had discretion to order 

terms of supervised release following reimprisonment.  Id. at 713.  Thus, the Court

upheld the district court's decision to revoke the petitioner's supervised release and 

impose an additional term of supervised release following the reimprisonment.

                                               14 

No. 83815-1

       This part of Johnson also confirms that, even if we were to decide that RCW 

9.94A.737(2) could not be applied to Mr. Flint, his return to total confinement was 

proper. As we have explained, the department had discretion to return Mr. Flint to total 

confinement under the prior law.  The record shows that Mr. Flint repeatedly violated 

community custody conditions and that sanctions of temporary confinement imposed for 

earlier violations had not resulted in his compliance with the conditions.  Each of the two 

prior hearings involved multiple violations, and at the third hearing the hearing officer 

noted that shortly after Mr. Flint entered a stipulation regarding use of drugs, he violated 

the terms of community custody in that he possessed drug paraphernalia (including a pipe 

and scales), failed to report to his community custody corrections officer, and failed to 

attend substance abuse treatment.  Resp. of DOC, Attach. B (Community Custody Hr'g

Report at 6). Under the circumstances, Flint's return to total confinement would have 

been within the department's discretion under the law that existed prior to RCW 

9.94A.737(2), if that law were the applicable law.

       C.  No Ex Post Facto Violation Because No Increased Punishment

       But the most important point remains, with regard to punishment, that RCW 

9.94A.737(2) did not increase the quantum of punishment over what it was prior to the 

statute's enactment.  The statute does not increase the punishment for the offenses for 

which an individual was incarcerated before being released into community custody.  The 

statute has not altered the terms or conditions of community custody, or the potential 

consequences with respect to the original offenses should the offender fail to abide by the 

                                               15 

No. 83815-1

conditions of community custody.  There has been no change from discretionary to 

mandatory consequences because the department's (or court's) discretion whether to 

order a return to total confinement for violation of conditions of community custody 

existed both before and after enactment of the statute.  Finally, RCW 9.94A.737(2) has 

no effect on the punishments that may be imposed for the violations of conditions of 

community custody themselves. Because the quantum of punishment was not increased 

under RCW 9.94A.737(2), no ex post facto violation is shown.

       III.  2009 Legislation

       Mr. Flint raises additional issues that we decline to address in light of the fact that 

his petition is moot.  However, one issue he raises involves his claim that the statute was

applied retroactively to him.  He contends that the sanction imposed under RCW 

9.94A.737(2) was voided by section 19 of 2009 Engrossed Substitute Senate Bill (ESSB)

5288 (Laws of 2009, ch. 375, § 19).  He believes the legislature voided the sanction to 

remedy any constitutional problem with applying the provision retroactively.  We 

disagree.

       2009 ESSB 5228, section 19 provided that section 13 of the measure would expire 

August 1, 2009.  Section 13 amended RCW 9.94A.737, subsection (3), not subsection 

(2), the latter being the provision at issue in this case.  Further, nothing in the measure or 

the final bill report for 2009 ESSB 5228 indicates any intent whatsoever to void any 

sanctions imposed under RCW 9.94A.737(2), and there is express evidence of legislative 

intent to the contrary.  The previous year the legislature enacted the legislation that 

                                               16 

No. 83815-1

moved what had been RCW 9.94A.737(2) to RCW 9.94A.714(1), effective August 1, 

2009.  Laws of 2008, ch. 231, §§ 16, 20, 61. As a consequence, the provision at issue in 

Flint's case has been continuously in effect from 2007, when it was enacted, until the 

present time.  When the legislature moved the provision in the 2008 act, it expressly 

stated that nothing in sections 6 through 58 of the measure, which includes the sections 

moving RCW 9.94A.737(2), were to affect enforcement of any sentence imposed prior to 

August 1, 2009, unless the offender was resentenced after that date.  Laws of 2008, ch. 

231, § 55(6).

       Under these circumstances, nothing in 2009 ESSB 5228 affected RCW 

9.94A.737(2)'s application to Flint.

                                       CONCLUSION

       Application of RCW 9.94A.737(2) (as enacted in 2007) to Mr. Flint following a 

third hearing on violations of conditions of community custody was not a retroactive 

application of the statute under our settled analysis for determining whether a statute is 

prospective or retroactive Application of the statute to Flint did not increase the quantum 

of punishment for the crimes for which he was serving a term of community custody.  

Accordingly, he has failed to show that application of the statute to him violated the ex 

post facto clauses of the state or federal constitution.

       We therefore conclude that Mr. Flint was not entitled to relief and his personal 

restraint petition was properly dismissed by the Court of Appeals; however, we do so on

other grounds than the ground relied on by that court, which found his petition to be 

                                               17 

No. 83815-1

frivolous.

       We affirm the Court of Appeals' dismissal of Mr. Flint's petition.

AUTHOR:
        Chief Justice Barbara A. Madsen

WE CONCUR:
                                                         Justice James M. Johnson

        Justice Charles W. Johnson

                                                         Justice Charles K. Wiggins

        Justice Susan Owens

                                               18