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In the Matter of the Personal Restraint Petition of Flint (Eric Sheridan)

                                         No. 83815-1

       Stephens J. (dissenting) -- Contrary to the majority's conclusion, this case is 

controlled by Johnson v. United States, 529 U.S. 694, 120 S. Ct. 1795, 146 L. Ed. 

2d 727 (2000).  Johnson makes it clear that the triggering event for application of a 

statute revoking community custody is the date of the offender's underlying offense, 

not the time of his violation.  Hence, I would hold that the statute at issue here,

former   RCW 9.94A.737(2) (2007), was impermissibly applied to Eric  Flint 

retroactively.  Like the Johnson Court, I would end my analysis there and would not 

reach the question of whether Flint was subjected to an ex post facto punishment.  I 

also would not consider whether the statute impairs Flint's vested rights or if it 

imposes new consequences for completed events.  Accordingly, I dissent.

       Flint committed his offense in 2002.  He violated his conditions of 

confinement for the third time in 2008.  The Court of Appeals reasoned that former 

RCW 9.94A.737(2) was "enacted before he was released from total confinement 

and so applied throughout his term of community custody."                  Order Dismissing  

In the Matter of the Pers. Restraint of Flint (Eric Sheridan), 83815-1
(Stephens, J. Dissent)

Petition (Wash. Ct. App. Oct. 5, 2009) at 2.  The majority agrees.  Majority at 9.

       The United States Supreme Court reviewed an almost identical question in 

Johnson, 529 U.S. 694.  In 1994, Congress amended federal law to give district 

courts the express authority to impose an additional term of supervised release upon 

an offender who was returned to confinement after a violation of community 

custody.  Id. at 698.  Johnson received such a term to follow confinement after his 

community custody was revoked.  He argued application of the 1994 provision, 18 

U.S.C. § 3583(h), was an ex post facto violation.  The lower court disagreed and

"disposed of the ex post facto challenge by applying its earlier cases holding the 

application of § 3583(h) not retroactive at all: revocation of supervised release 

'imposes punishment for defendants' new offenses for violating the conditions of 

their supervised release.'"  Id. at 699-700 (quoting United States v. Page, 131 F.3d 

1173, 1176 (6th Cir. 1997)).  The United States Supreme Court granted certiorari to 

resolve a split among the circuit courts on whether application of the statute was 

retroactive if the underlying offense was committed before the statute's effective 

date.  Id. at 699.  

       The Court rejected the view that postrevocation penalties are attributable to a 

violation of the terms of supervised release.  Id. at 701.  The Court explained:

       On this theory, that is, if the violation of the conditions of supervised 
       release occurred after the enactment of § 3583(h), as Johnson's did, the new 
       law could be given effect without applying it to events before its enactment.
              While this understanding of revocation of supervised release has 
       some intuitive appeal, the Government disavows it, and wisely so in view of 
       the serious constitutional questions that would be raised by construing 

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In the Matter of the Pers. Restraint of Flint (Eric Sheridan), 83815-1
(Stephens, J. Dissent)

       revocation and reimprisonment as punishment for the violation of the 
       conditions of supervised release.      Although such violations often lead to 
       reimprisonment, the violative conduct need not be criminal and need only 
       be found by a judge under a preponderance of the evidence standard, not by 
       a jury beyond a reasonable doubt.  See 18 U.S.C. § 3583(e)(3) (1988 ed., 
       Supp. V). Where the acts of violation are criminal in their own right, they 
       may be the basis for separate prosecution, which would raise an issue of 
       double jeopardy if the revocation of supervised release were also 
       punishment for the same offense.  Treating postrevocation sanctions as part 
       of the penalty for the initial offense, however (as most courts have done), 
       avoids these difficulties.

Id. at 700 (emphasis added).  Because the 1994 amendment imposed a penalty for 

the original offense, the Court in Johnson invoked the "longstanding presumption"

that it applied only to cases in which the initial offense occurred after its effective 

date.  Id. at 702.

       Johnson is entirely on point.  In light of that case, it is clear that the 

Department of Corrections (DOC) mistakenly applied the 2007 statute retroactively 

to an offense committed in 2002.  The majority's attempt to marginalize Johnson is 

unconvincing.  It states that Johnson is different because the federal law at issue 

there imposed additional punishment: a second term of earned early release 

following incarceration.  Majority at 14.  But, Johnson's conclusion that § 3583(h) 

did not apply retroactively had nothing to do with whether that statute authorized a 

new punishment.  It turned solely on identifying the proper triggering event.  

Johnson, 529 U.S. at 702.

       The  Johnson     Court's later discussion of whether the 1994 amendment 

increased the measure of punishment for Johnson's violation of supervised release 

was entirely separate from its discussion of retroactivity.  Id. at 701.  "Since 

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In the Matter of the Pers. Restraint of Flint (Eric Sheridan), 83815-1
(Stephens, J. Dissent)

postrevocation penalties relate to the original offense, to sentence Johnson to a 

further term of supervised release under § 3583(h) would be to apply this section 

retroactively (and to raise the remaining ex post facto question, whether that 

application makes him worse off)."  Id.  The Court concluded it was unnecessary to 

reach this question.  Id. at 702 ("Given this conclusion [nonretroactivity], the case 

does not turn on whether Johnson is worse off under § 3583(h) than he previously 

was under § 3583(e)(3), as subsection (h) does not apply, and the ex post facto

question does not arise.").  

       Johnson provides clear direction regarding the triggering event for a statute 

revoking community custody following community custody violations.  The majority 

nevertheless insists that the triggering event for application of former  RCW 

9.94A.737(2) is the defendant's violation of community custody.  Majority at 9.  

The majority's confusion may be understandable in light of the DOC's unclear 

position on retroactivity.  The DOC argues that the "statute does not operate 

retroactively 'merely because it is applied in a case arising from conduct antedating 

the statute's enactment or upsets expectations based [o]n prior law.'" Suppl. Br. of 

DOC (Jan. 19, 2010) at 4 (quoting State v. Pillatos, 159 Wn.2d 459, 471, 150 P.3d 

1130 (2007)).  The majority also relies on Pillatos, 159 Wn.2d 459, and upon In re 

Estate of Burns, 131 Wn.2d 104, 110-11, 928 P.2d 1094 (1997).  Majority at 7-9.  

But  Pillatos    explained that "'[a] statute operates prospectively when the 

precipitating event for operation of the statute occurs after enactment, even when 

                                              -4- 

In the Matter of the Pers. Restraint of Flint (Eric Sheridan), 83815-1
(Stephens, J. Dissent)

the precipitating event originated in a situation existing prior to the enactment [of the 

statute].'"  Pillatos, 159 Wn.2d at 471 (first alteration in original) (quoting Burns, 

131 Wn.2d at 110-11).  Burns instructs that in determining "the precipitating event 

giving rise to application of the statute, a court may look to the subject matter 

regulated by the statute."  State v. T.K., 139 Wn.2d 320, 330, 987 P.2d 63 (1999) 

(citing Burns, 131 Wn.2d at 112).  As far as the subject of community custody 

violations is concerned,  Johnson         confirms that the precipitating event is the 
commission of the original conviction.1        I would hold that the DOC impermissibly 

applied the 2007 amendment retroactively to an event occurring prior to its 

enactment.  For this reason, I dissent.

       1 Moreover, in Pillatos, the legislative act at issue "clearly contemplate[d] that 
either the entry of the plea or the trial is the precipitating event.       Based on its plain 
language, the act is not retroactive in this context."  Pillatos, 159 Wn.2d at 471.  Here, 
the statute at issue does not clearly contemplate that the event triggering its operation is 
the community custody violation as opposed to the original offense.  As in Johnson, the 
general rule is that the original offense is the triggering event, and absent clear legislative 
intent to the contrary, the statute is presumed to apply only to offenses committed after its 
effective date.  See Johnson, 529 U.S. at 702.

                                              -5- 

In the Matter of the Pers. Restraint of Flint (Eric Sheridan), 83815-1
(Stephens, J. Dissent)

AUTHOR:
       Justice Debra L. Stephens

WE CONCUR:

       Justice Tom Chambers

       Justice Mary E. Fairhurst                        Gerry L. Alexander, Justice Pro Tem.

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