In re Bufalini

Citation: 423 P.3d 262Docket: No. 50785-4-II

Court: Court of Appeals of Washington; May 10, 2018; Washington; State Appellate Court

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Paul Bufalini is contesting the revocation of his drug offender sentencing alternative (DOSA) by the Department of Corrections (DOC), claiming multiple due process violations. His key arguments include: 

1. DOC did not inform him of his right to case-by-case consideration for counsel representation at his urinalysis (UA) violation hearing. 
2. DOC improperly applied RCW 9.94A.662(3).
3. The reliability of the UA test results was questionable, violating due process.
4. The failure to preserve his UA test sample constituted a due process violation.
5. RCW 9.94A.662(3) infringes on the separation of powers.

The court concluded that DOC violated Bufalini's due process rights by not allowing case-by-case consideration for counsel representation and determined that RCW 9.94A.662(3) does not violate separation of powers. As a result, the court vacated DOC's decisions regarding the UA violation and DOSA revocation, ordering Bufalini's immediate release to community custody under his DOSA. Additionally, all time spent in confinement beyond the initial 36.75-month term will count towards his community custody term. The DOC may restart the process regarding the UA violation but must comply with the court's opinion and applicable laws. The court did not address Bufalini's other claims in his personal restraint petition.

Bufalini had previously been charged and pled guilty to multiple offenses on January 14, 2015, receiving a DOSA of 36.75 months in confinement followed by 36.75 months of community custody. An acknowledgment signed by Bufalini on August 11, 2016, indicated that testing positive for unauthorized substances could result in a violation. After a visit to his parents' home where he took Aleve, Bufalini tested positive for opiates on a random UA test. Despite this, he was not allowed to submit another test and was informed only of his rights regarding the hearing, not of his right to request counsel representation.

On December 20, an administrative hearing determined that Bufalini had produced a positive urine analysis (UA) test for unauthorized drugs, leading to his termination from work release and a loss of 20 days of good conduct time. Bufalini acknowledged the positive result but denied consuming any prohibited substances. He appealed the decision to the Department of Corrections (DOC) Appeals Board on December 23. 

A subsequent hearing on January 4, 2017, addressed the potential revocation of Bufalini's Drug Offender Sentencing Alternative (DOSA) sentence due to his failure to complete a chemical dependency treatment program. Testimony from Community Custody Officer Kelly Dean confirmed Bufalini's termination from the program on December 15, 2016, and outlined DOC policy requiring revocation of DOSA for such infractions. Bufalini's father testified in support of Bufalini, questioning the UA test's reliability. The hearing examiner found Bufalini was indeed terminated from treatment but deferred sanctions pending the outcome of his appeal.

On January 9, the Appeals Board upheld the positive UA finding. Following this, a hearing examiner revoked Bufalini's DOSA on January 31, 2017, which Bufalini appealed the same day. His father supported the appeal with a letter on February 3. On February 8, hearing examiner Dominga Soliz indicated that a new hearing would be scheduled. During the remanded hearing on February 22, there was initial confusion regarding the remand's scope, but it was clarified that it pertained only to the DOSA revocation. The hearing examiner allowed Bufalini’s father to testify but ultimately concluded that Bufalini did not require legal representation as the issues were not complex and he was competent to represent himself.

The hearing examiner confirmed that Bufalini failed to complete the treatment program and upheld the DOSA revocation. Bufalini appealed this decision on March 7, but the Appeals Board denied his appeal on April 4. Bufalini filed a Personal Restraint Petition (PRP) on August 23.

To secure relief through a Personal Restraint Petition (PRP), a petitioner must typically prove a constitutional error causing substantial prejudice or a nonconstitutional error leading to a fundamental defect resulting in a miscarriage of justice. However, if the petitioner has not previously had judicial review, the stricter PRP requirements are waived, allowing them to show only that they are unlawfully restrained under specific rules. Bufalini has not had prior judicial review regarding his Drug Offender Sentencing Alternative (DOSA) revocation, thus he needs to demonstrate that he is restrained and that this restraint is unlawful. The parties agree on the fact of his restraint. Bufalini contends that the Department of Corrections (DOC) breached his due process rights by not allowing him the option to be represented by counsel at his violation hearing. The court concurs, emphasizing that under federal due process, DOC is obliged to evaluate the right to counsel individually in community custody violation hearings. 

The case of Schley illustrates a similar issue where a finding of guilt for a fighting infraction led to the revocation of his DOSA, resulting in total confinement. The court rejected DOC's claim that not informing Schley of his right to counsel was harmless, affirming that the underlying factual issues were complex, not merely procedural. This aligns with a body of case law affirming procedural due process rights for those in confinement, as established in Morrissey and Gagnon regarding parole and probation revocations, respectively. The court noted that offenders in community custody have a greater liberty interest than those incarcerated, making them entitled to the same procedural protections. Bufalini's situation parallels the protections recognized in Grisby, where a DOSA revocation significantly impacted liberty. Although he was in a work release facility when he tested positive for a drug use violation, his subsequent return to total confinement due to the DOSA revocation similarly affects his liberty. Thus, the legal principles from Grisby and Schley apply to Bufalini's case.

Bufalini's situation regarding his UA violation hearing is comparable to the cases of Grisby and Schley. He was informed prior to the hearing that he could not request legal counsel. Following a finding of guilt for a positive UA test, Bufalini was terminated from his treatment program, which, under DOC policy, led to the automatic revocation of his DOSA sentence. DOC claims that any due process violation is harmless since the hearing examiner considered the appointment of counsel. However, this interpretation disregards the requirement established in Grisby and Schley that DOC must evaluate the right to counsel on a case-by-case basis when a DOSA revocation is at stake, which applies to Bufalini's UA hearing.

Consequently, Bufalini's restraint is deemed unlawful due to DOC's failure to inform him about the possibility of requesting counsel. A potential remedy would involve conducting another UA violation hearing with the proper advisement. However, Bufalini's imminent release date of February 20, 2019, suggests that delays in the administrative process could undermine the effectiveness of any relief granted.

Due process, as outlined in Morrissey, mandates several safeguards at hearings, including written notice of violations, evidence disclosure, the ability to present evidence and witnesses, confrontation of witnesses, a neutral decision-maker, and a written statement of findings. The necessity of legal representation is emphasized by the complexity of issues raised by Bufalini, including the reliability of the UA test and potential procedural violations regarding evidence preservation. The rulings in Grisby, Morrissey, and Scarpelli indicate that, given the intricacies of his case, Bufalini is entitled to legal counsel at any forthcoming UA hearing if DOC chooses to proceed.

DOC is required to inform Bufalini that he may request legal representation at any DOSA revocation hearing, which will be considered on a case-by-case basis. However, it remains undecided if he is entitled to representation, pending the resolution of his UA issues. Due to procedural due process violations in the decisions terminating Bufalini's work release and revoking his DOSA for a positive UA test, these decisions are vacated. As a result, Bufalini's status reverts to that before these decisions, allowing him to begin the community custody phase of his DOSA, which would have started in February 2018. Consequently, he is ordered to be released from confinement and placed under community custody status, with all additional confinement time credited towards his community custody term.

Bufalini's other claims are largely deemed unnecessary to consider, except for his challenge regarding the separation of powers based on the revocation of his DOSA under RCW 9.94A.662(3). He argues that this statute allows DOC to override a superior court's non-revocation decision, similar to the issues in State ex rel. Schillberg v. Cascade District Court. However, this argument fails because the superior court in Bufalini's case did not make a decision against revocation, thus no veto occurred. Moreover, DOC’s ability to revoke a DOSA is governed by specific conditions and standards, which differ from the executive discretion challenged in Schillberg. DOC must prove a violation by a preponderance of the evidence before revoking a DOSA, contrasting with the arbitrary decision-making criticized in the Schillberg case.

DOC's revocation of Bufalini's DOSA was upheld regarding the separation of powers, but it violated Bufalini's due process rights by not informing him that he could request counsel for his UA violation hearing. Consequently, Bufalini's personal restraint petition (PRP) is granted, vacating the DOC's decisions related to the UA violation and DOSA revocation. Bufalini is to be released from confinement and transferred to community custody under his DOSA, with all additional confinement time credited toward his community custody term. The DOC may initiate a new process regarding the UA violation, adhering to this opinion and applicable law. According to RAP 16.4(b) and (c), a petitioner is considered under "restraint," and such restraint must be lawful. The DOC must prove its case by a preponderance of the evidence in revocation hearings, as established in prior cases, including McKay and Schley. The court refrains from deciding the merits of Bufalini's DOSA revocation but restores him to the status he would have had absent the violations.