FILED 


March 19,2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


KENNETH LeROY STEPHENS, ) No. 31162-7-111 

) 

Appellant, ) 

) 

v. ) 

) 

STATE OF WASHINGTON, ) PUBLISHED OPINION 

) 

Respondent. ) 

BROWN, J. - Kenneth Stephens appeals the trial court's order denying his motion 

for directed verdict Oudgment as a matter of law) in his false imprisonment suit against 

the state of Washington. He contends the court erred in denying his motion, and 

additionally contends the evidence does not support the verdict. We disagree with Mr. 

Stephens' contentions, and affirm. 

FACTS 

On September 3,2006, the State charged Mr. Stephens with, among other 

things, second degree theft for removing a pay telephone coin box from a Yakima 

parking lot (cause no. 06-1-02170-9). He was confined for three days before his father 

posted bail. On October 28,2006, while on bail, Mr. Stephens was arrested and 

charged with, among other things, second degree possession of stolen property for 
No. 31162-7-111 

Stephens v. State 

shoplifting at a Yakima Shopko store (cause no. 06-1-02624-7). Mr. Stephens was held 

in the Yakima County Jail following this arrest for several days and then transferred to 

the Chelan County Jail due to outstanding warrants there. He was returned to Yakima 

County on November 16, 2007 to deal with his two pending felony cases there. 

On February 6,2007, Mr. Stephens pleaded guilty to one count of second degree 

theft in the ShopKo case. The court sentenced him to 17 months' imprisonment. The 

judgment and sentence states the 17 months was "consecutive with prior sentences." 

Clerk's Papers (CP) at 100. The court granted 15 days credit for jail time served in the 

2007 judgment and sentence, the time between his October 28,2006 arrest, and 

transfer to Chelan County to clear the other warrants. 

Mr. Stephens remained confined in the Yakima County Jail after the February 6, 

2007 sentencing because the earlier coin box case remained unresolved. On February 

6, 2008, Mr. Stephens pleaded guilty to one count of possession of stolen property on 

the coin box case. The court sentenced him to 22 months. The judgment and sentence 

states the 22 months was to be "served consecutive with prior sentences." CP at 106. 

The court granted credit from November 16, 2008 plus three days (the three days he 

served in jail immediately following his arrest for the coin box theft on September 3, 

2006, before posting bail). 

On February 13, 2008, the Department of Corrections (DOC) transported Mr. 

Stephens to a processing pOint. The Yakima County Jail sent DOC certifications for jail 

time credit served and earned release time related to the jail time served on the two 

cause numbers so DOC could set Mr. Stephens' release date. In its initial certifications, 

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No. 31162-7-111 

Stephens v. State 

Yakima County granted Mr. Stephens 387 days credit for jail time served and 193 days 

of earned release time ("good time" credits) for total credits of 580 days earned while 

serving time on the 2007 ShopKo judgment and sentence. This resulted in him initially 

receiving jail credit off both sentences for his entire jail confinement between November 

16,2006 and February 13, 2008 when DOC received him into custody. 

Following Mr. Stephens' transfer from the Yakima County Jail to DOC custody, 

DOC Auditor Wendy Stigall reviewed the two jail certifications for accuracy in order to 

set Mr. Stephens' early release date. As part of her audit, she discovered the Yakima 

County Jail had granted him credit for the entire amount of jail confinement between 

September 2006 and February 13, 2008, off the sentences in both cause numbers. 

This included the three days in September 2006, the 15 days served between October 

28 and Mr. Stephens' return from Chelan County, and all jail time served after 

November 16, 2006, up to the date of transfer to DOC custody on February 13, 2008. 

This double credit contradicted the consecutive provisions specified in the 

judgment and sentences contrary to In re Personal Restraint of Costello, 131 Wn. App. 

828,129 P.3d 827 (2006). DOC, therefore, eliminated all but 22 days credits on the 

2007 sentence on the ShopKo case. The remaining 22 days represented credit for 15 

days jail credit referenced in the judgment and sentence plus earned release time of 7 

days for a total adjusted credit on this case of 22 days. Yakima issued an amended 

certification which reduced the credit on the 2007 judgment and sentence to 22 days 

from 580 days granted in the earlier certification. The elimination of the credits from the 

ShopKo case resulted in a January 8, 2009 early release date. 

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No. 31162-7-111 

Stephens v. State 

Mr. Stephens objected to the January 2009 release date. He requested credit for 

pretrial confinement and related good time off both sentences, arguing the sentencing 

judge had the final authority on early release time. He requested review of the 2007 

judgment and sentence on the ShopKo case because DOC had removed the 

overlapping credits 'from that cause number even though the judge had specifically 

granted him earned release time and credit. On July 21, 2008, the sentencing court 

amended the February 6, 2007 judgment and sentence in the ShopKo case and granted 

387 days of pretrial confinement credits, effectively restoring what DOC struck based on 

Costello. Our record does not contain the report of proceedings explaining the court's 

reasoning, but DOC notes state the court made the amendment because it intended 

"concurrent" credit time. CP at 53. 

The court's amendment resulted in a retroactive release date of February 2008 

(prior to Mr. Stephens' transfer to DOC custody). A copy of the sentencing court's order 

amending the judgment and sentence was received by DOC on July 23,2008. Mr. 

Stephens was released two days later on July 25, 2008. 

On February 4,2010, Mr. Stephens sued the State for false imprisonment. 1 A 

jury trial followed. Both sides requested a directed verdict, arguing the issues were 

purely legal. The State asked the court to rule as a matter of law that the confinement 

was justified. Mr. Stephens asked the court to rule as a matter of law that he spent 

more days incarcerated than he should have. The jury decided the State did not 

1 He first unsuccessfully filed a claim with the State's risk management office as 

required under RCW 4.92.100. 

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No. 31162-7-111 

Stephens v. State 

"unjustifiably confine Kenneth Stephens, under the circumstances, beyond the period of 

time that it was legally entitled to confine him." CP at 216. Mr. Stephens appealed. 

ANALYSIS 

The issue is whether the court erred in denying Mr. Stephens' directed verdict 

request. Mr. Stephens contends he should have been released in February 2008 for 

both offenses and keeping him confined until July 2008 was unlawful and thus, he 

argues substantial evidence does not support the jury's verdict. 

We review a ruling on a motion for a directed verdict, using the same standard as 

the trial court. Hizey v. Carpenter, 119 Wn.2d 251, 272, 830 P .2d 646 ( 1992) (citing 

Indus. Indem. Co. of Nw. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520 (1990)). A 

directed verdict is appropriate if, as a matter of law, no substantial evidence or 

reasonable inference exists to sustain a verdict for the nonmoving party. Harris v. 

Drake, 152 Wn.2d 480, 493,99 P.3d 872 (2004) (citing Moe v. Wise, 97 Wn. App. 950, 

956,989 P.2d 1148 (1999)). To establish false imprisonment, the plaintiff must show 

DOC acted without lawful authority and imprisonment was not enacted pursuant to a 

valid legal process. Blick v. State, 182 Wn. App. 24,33,328 P.3d 952 (2014) (citing 

Mundt v. United States, 611 F.2d 1257, 1259-60 (9th Cir. 1980)). 

Under RCW 9.94A.729(1) county jail administrators must certify to DOC time I 

spent in county jail custody and whether "good time" credits or earned release credit 

(typically one third of time served) are to be added to the jail credits for use by DOC in 

computing an offender's release date. In doing so, DOC auditors subtract jail time 

served and jail good time credit from the total sentence and then reduce that number by 

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No. 31162-7-111 

Stephens v. State 

one third. Id. Unless the sentence has been reduced, no person serving a sentence 

and who is committed to DOC's custody "shall leave the confines of the correctional 

facility or be released prior to the expiration of the sentence." RCW 9.94A. 728. 

In CosteI/o, Division One of this court decided DOC, not the county jail, is the 

final arbiter of credit for pretrial confinement. 131 Wn. App. at 833. The Costello court 

concluded an offender is not entitled to duplicate pretrial confinement credit when the 

offender's sentences are ordered to be consecutive with other sentences. Mr. Costello 

was sentenced in 2001 to an 87 -month sentence for eluding and a burglary (2001 

sentence). He was sentenced in 2002 to a 57-month sentence for theft convictions, to 

run consecutive to the 2001 sentence. In mid-2002, Mr. Costello was transferred from 

the county jail to DOC. Before being transferred, he had spent a total of 472 days 

confined in county jail. The county jail credited the entire 472 days against the 2001 

sentence and credited 317 days against his 2002 sentence. DOC refused to give effect 

to the county jail's application of time served against the 2002 sentence, choosing 

instead to solely credit Mr. Costello for the 472 days served against the 2001 sentence. 

The court denied his personal restraint petition, concluding he was not entitled to any 

credit on his 2002 sentence under former RCW 9.94.120(14) and because "[a]n award 

of credit for time served on the 2002 convictions that would credit Costello with any 

days that are also credited to the sentence on his 2001 convictions would unlawfully 

render the sentences partially concurrent." Costello, 131 Wn. App. at 834. 

In Mundt, a federal case cited by Division One in Blick, 182 Wn. App at 24, the 

plaintiff was held in civil contempt and was later convicted of postal offenses in federal 

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No. 31162-7-111 I 

Stephens v. State 

court and sentenced to a two year term for the postal felonies. The district court 

ordered the sentences for the civil contempt and the felony offenses were to run f 

consecutively. The Court of Appeals later reversed the district court and concluded the 

two year sentence for the felony convictions ran concurrently with the contempt 

confinement rather than consecutively resulting in Mr. Mundt being held 78 days beyond 

the two year sentence. The offender sued for false imprisonment after he was released. 

The Ninth Circuit, applying Arizona common law, affirmed the dismissal of the tort claim 

for false imprisonment holding the 78 days had occurred pursuant to valid legal process 

and was not unlawful. 611 F.2d at 1259. "Because the Corrections officials who 

continued to confine the offender 'were acting in good faith' and in the 'lawful 

performance' of their duty, the offender did not have a claim for unlawful imprisonment 

under these circumstances." Id. 

In Blick, a recent case concerning an inmate who was transferred to community 

custody on his prison maximum expiration date rather than earned early release date 52 

days earlier, Division One concluded, "As to his false imprisonment claim, Blick fails to 

demonstrate that DOC acted without lawful authority. An imprisonment enacted 

pursuant to a valid legal process and court sentence is not false imprisonment." 182 

Wn. App. at 24. 

Here, DOC received separate judgment and sentences, ordering consecutive 

sentences for Mr. Stephens and awarding ordered double credit, contradicting the 

consecutive provisions in the judgment and sentences contrary to CosteI/o. DOC, 

therefore, eliminated all but 22 days credits on the 2007 sentence on the ShopKo case, 

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No. 31162-7-111 

Stephens v. State 

resulting in a December 30, 2008 early release date. The court then amended the 2007 

judgment and sentence to specifically grant Mr. Stephens the credit. Mr. Stephens 

claims this was error resulting in unlawful confinement. 

Considering Ms. Stigall's testimony regarding the sentencing corrections she 

made based on the two facially valid sentences and CosteI/o, DOC properly set an early 

release date of January 8, 2009. The sentencing court's later sentencing amendment 

granting Mr. Stephen's request did not retroactively render DOC's initial calculations 

unlawful. After receiving the amended judgment and sentence, DOC was under a duty 

to release Mr. Stephens in a reasonable period of time, and did. See Tufte v. City of 

Tacoma, 71 Wn.2d 866,870,431 P.2d 183 (1967) (an initially lawful imprisonment may 

under some circumstances become unlawful when a jail "holds an individual for an 

unreasonable time after it is under a duty to release the individual."). DOC released Mr. 

Stephens within two days after the confinement became unlawful. See Kellogg v. State, 

94 Wn.2d 851, 856,621 P.2d 133 (1980) (release within one day of discovering 

mistaken identity was reasonable). 

Thus, given our analysis, we conclude sufficient evidence shows DOC did not 

unlawfully confine Mr. Stephens because it acted reasonably under RCW 9.94A.729 

and Costello to establish the offender's release date. Therefore, Mr. Stephens fails to 

demonstrate DOC acted without lawful authority. Mr. Stephens' imprisonment under 

valid legal processes is not false imprisonment. Accordingly, the court did not abuse its 

discretion or legally err in denying Mr. Stephens' directed verdict request. 

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No. 31162-7-111 

Stephens v. State 

Any potential error at the trial level would be the court's denial of the State's 

request for directed verdict; that potential error would be harmless though since the jury 

came to the same conclusion. See Saldivar v. Momah, 145 Wn. App. 365,401, 186 

P.3d 1117 (2008) (an error is harmless if no reasonable probability the outcome of the 

trial would have been materially affected had the error not occurred). 

Affirmed. 

Brown, J. 

WE CONCUR: 

Lawrence-Berrey, J. 

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