Personal Restraint Petition Of: Marlow Todd Eggum

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                    DIVISION ONE
In the Matter of the Personal    )
Restraint of:                    )                No. 81005-7-I (consol. with
                                 )                No. 81071-5-I)
MARLOW TODD EGGUM,               )
                                 )                ORDER GRANTING
                Petitioner.      )                RECONSIDERATION,
                                 )                WITHDRAWING OPINION FILED
                                 )                ON AUGUST 24, 2020, AND
                                 )                REFERRING PETITION TO A
________________________________ )                PANEL
       Marlow Eggum filed a “Motion to Modify, Objection to Ruling” on August 31,

2020. Because he essentially seeks reconsideration of the per curiam opinion

resolving his consolidated personal restraint petitions filed on August 24, 2020, we

treat the motion as one for reconsideration. See RAP 12.4. Eggum correctly

points out that this court dismissed his consolidated petitions without addressing his

claim regarding the term of community custody imposed in Whatcom County

Superior Court Cause No. 05-1-01094-3. Therefore, the motion is granted and this

court’s opinion filed on August 24, 2020 is hereby withdrawn.

       Based on the records and files before this court, and the State’s concession

of error with regard to the term of community custody imposed in Whatcom County

Superior Court Cause No. 09-1-00486-5, it appears that Eggum’s petitions are not

frivolous. Accordingly, Eggum’s consolidated petitions are referred to a panel of

judges for review and consideration. See RAP 16.11(b).
No. 81005-7-I-I (consol. with No. 81071-5-I)/2


          Now, therefore, it is hereby

          ORDERED that Eggum’s motion for reconsideration is granted; and it is

further

          ORDERED that this court’s per curiam opinion filed on August 24, 2020 is

withdrawn; and it is further

          ORDERED that Eggum’s consolidated petitions are referred to a panel of

this court for consideration on the merits.




                                          2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                    DIVISION ONE
In the Matter of the Personal    )
Restraint of:                    )                No. 81005-7-I (consol. with
                                 )                No. 81071-5-I)
MARLOW TODD EGGUM,               )
                                 )
                Petitioner.      )                UNPUBLISHED OPINION
                                 )
________________________________ )

       PER CURIAM — In these consolidated personal restraint petitions, Eggum

challenges terms of community supervision imposed in two Whatcom County

Superior Court Causes. To be entitled to relief by means of a personal restraint

petition, Eggum bears the burden to demonstrate that he is under restraint and

that the restraint is unlawful. RAP 16.4; see also In re Pers. Restraint of

Cashaw, 

123 Wash. 2d 138

, 148-49, 

866 P.2d 8

(1994); In re Pers. Restraint of

Cook, 

114 Wash. 2d 802

, 813, 

792 P.2d 506

(1990).

       As to Whatcom County Superior Court Cause No. 09-1-00486-5, Eggum

challenges the 9 to 18 month term of community custody imposed on one count of

felony harassment. Contrary to the language of Eggum’s judgment and sentence,

felony harassment is not included in the list of offenses designated as “crimes

against persons.” RCW 9.94A.411(2). And, as the Department observes, its

supervision is not required under RCW 9.94A.501(4). The State appropriately

concedes that the conviction does not fall within any category of eligibility for

community custody under RCW 9.94A.701(1)-(3).
No. 81005-7-I (consol. with No. 81071-5-I)/2


       Accordingly, we grant Eggum’s petition as to this claim and remand the

matter to the sentencing court to strike the term of community custody imposed

on his conviction of felony harassment. 1

       Eggum also challenges the Department’s calculation of the term of

community custody imposed on his two convictions of stalking in Whatcom County

Superior Court Cause No. 05-1-01094-3. The essential facts are not in dispute. In

2007, Eggum pleaded guilty to two counts of stalking and one count of felony

harassment. The court imposed an exceptional sentence of 72 months of

confinement, and in accordance with the law at the time, imposed a 9 to 18 month

variable term of community custody as to each count of stalking. See former RCW

9.94A.715(1) (2006) (requiring variable terms of community custody).

       In 2009, the legislature amended the law with respect to community

custody, replacing variable terms with fixed terms of 12, 18, and 24 months,

depending on the crime. See LAWS OF 2009, ch. 375, § 5; former RCW

9.94A.701(1)-(3) (2009). The legislature indicated an intent to apply the

amendment retroactively to individuals who were sentenced before 2009 and still

incarcerated or serving terms of community custody. See LAWS OF 2009, ch.

375, § 20; see also LAWS OF 2008, ch. 231, § 6. The legislature specifically



       1
          We note that the federal district court recently vacated Eggum’s convictions of
intimidation of a public servant and granted a certificate of appealability, see 28 U.S.C.
§ 2253(c)(3), allowing his appeal of a final district court order, as to his stalking
conviction. See Eggum v. Holbrook, No. 2:14-cv-1328-RAJ, 

2020 WL 3303085

(W.D.
Wash. June 18, 2020). This decision does not appear to affect the validity of the felony
harassment conviction upon which the sentencing court imposed the challenged term of
community supervision. Therefore, this claim does not appear to be moot.


                                           -2-
No. 81005-7-I (consol. with No. 81071-5-I)/3


charged the Department with recalculating the terms of community custody for

those in the Department’s custody to bring the sentences into compliance with

the new law. See LAWS OF 2009, ch. 375, § 9; see also State v. Franklin, 

172 Wash. 2d 831

, 841-42, 

263 P.3d 585

(2011). The Department thus recalculated the

length of Eggum’s community custody, replacing his variable terms with fixed

terms of 12 months. See RCW 9.94A.701(3)(a).

       In February 2019, this court granted Kenneth Alston’s personal restraint

petition challenging the retroactive application of the 2009 legislation. This court

concluded that, as to an offender convicted and sentenced prior to the 2009

legislation, replacing a variable term of community custody with a fixed term set

at the midpoint of the prior range, violated the prohibition against ex post facto

laws. In re Pers. Restraint of Alston, 

7 Wash. App. 2d

462, 472, 

434 P.3d 1066

(2019). This court held that the retroactive change posed a sufficient risk of a

higher sentence by entirely eliminating the opportunity to be free of custodial

supervision before the midpoint of the prior variable range. Alston, 

7 Wash. App. 2d

at 472. In order to comply with the decision in Alston, the Department

recalculated Eggum’s community custody and reimposed the variable term set

forth in the judgment and sentence.

       This case is indistinguishable from Alston in all material respects. The

Department therefore acted in accordance with the law as established in Alston

when it reverted to the variable term of community custody that was required by

law at the time of Eggum’s conviction and sentence. Eggum argues that the

Department’s recalculation is unlawful under Alston because the Department


                                        -3-
No. 81005-7-I (consol. with No. 81071-5-I)/4


arbitrarily increased his punishment by tentatively scheduling the termination of

his community custody term at the high end of the variable range. But, as this

court recognized in Alston, the Department has “broad discretion as to the timing

of release from a variable term of community custody.” Alston, 

7 Wash. App. 2d

at

471. Nothing in Alston prohibits the Department from supervising Eggum until

the term of community custody expires. And the record does not indicate that the

Department has entirely eliminated the possibility that Eggum may be released at

some earlier point. The evidence in the record suggests that the Department will

establish criteria for eligibility for release and, if he meets the criteria, Eggum may

be released before the scheduled release date.

       Eggum fails to establish unlawful restraint with respect to the terms of

community custody imposed on his stalking convictions in the 2005 cause. 2

       Accordingly, we grant Eggum’s petition with respect to Whatcom County

Superior Court Cause No. 09-1-00486-5 and remand the matter to the

sentencing court to strike the term of community custody imposed on Count V,

felony harassment. As to the claims raised pertaining to Whatcom County

Superior Court Cause No. 05-1-01094-3, we deny the petition.




       2Eggum has filed several motions in conjunction with these petitions including
motions to appoint counsel, to expedite review, and to bifurcate. All of these motions are
hereby denied. As Eggum has now been released from the custody of the Department,
we also deny his request to stay based on alleged problems related to the delivery of
legal mail and the Department’s system for delivery of electronically filed court
documents.


                                          -4-
No. 81005-7-I (consol. with No. 81071-5-I)/5


                                        For the court:




                                      -5-
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