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New Washington State Law Eliminates Tolling of Community Custody upon Violation

The Washington State Court of Appeals, Division Three, has ruled that a 2011 state law “eliminates tolling of the term of community custody while the offender is serving a sanction for violation of the conditions of that community custody.” The appellate court also held the law applies retroactively.

Christopher Brady Howard petitioned for his immediate release from prison based on Engrossed Substitute Senate Bill (ESSB) 5891, which went into effect on June 15, 2011.
Howard was sentenced to 68 months in prison and 18 months of community custody following his July 22, 2002 guilty plea to domestic violence felonies of second degree kidnapping, second degree assault and harassment.

He was released to community custody on April 17, 2006 and repeatedly violated the conditions of his supervision, which included the commission of new crimes. Under the terms of RCW 9.94A.171 (2008), this served to toll his term of community custody as he served a 240-day sanction imposed by the Washington State Department of Corrections (WDOC).

The WDOC admitted that applying ESSB 5891 § 1(3)(a) to Howard’s case would leave him with “no remaining days of community custody to serve at the time he began to serve his current 240-day sanction.”

In a November 22, 2011 decision, the Court of Appeals held the legislation’s language was plain and that it applied “to persons convicted before, on, or after the effective date of this section.” ESSB 5891 requires the WDOC to “credit the community custody terms of non-sex offenders with periods of time previously tolled while the offender served sanctions for violating the conditions of the community custody.”

Although the appellate court concluded that “Howard is, by all accounts, including his own, a dangerous man who, based on even a cursory review of this record, is likely to reoffend,” he was “unlawfully restrained in violation of state statute and ... is entitled to immediate release as a matter of law.” As such, the Court of Appeals granted Howard’s personal restraint petition and ordered his release. See: In the Matter of Personal Restraint of Christopher Howard, 165 Wash.App. 1002 (Wash.App. Div.3 2011); 2011 WL 5842772.

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Related legal case

In the Matter of Personal Restraint of Christopher Howard