### FILED March 19,2015 In the Office ofthe ClerkofCourt W AStateCourtofAppeals, Division III

IN THE COURT OFAPPEALS 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 thetrial court's order denying his motion fordirected verdict Oudgment as a matteroflaw) in his false imprisonment suitagainst the state ofWashington. He contends the court erred in denying his motion, and additionally contends the evidence does not supportthe verdict. We disagreewith Mr. Stephens' contentions, and affirm. FACTS On September 3,2006, the State charged Mr. Stephens with, among other things, second degreetheftfor removing a paytelephone coin boxfrom a Yakima parking lot (cause no. 06-1-02170-9). Hewas confined forthree days before hisfather posted bail. On October 28,2006, while on bail, Mr. Stephens was arrested and charged with, among otherthings, second degree possession ofstolen propertyforNo. 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 arrestforseveral days and then transferred to the Chelan County Jail dueto 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 guiltyto one count ofsecond 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 forjail time served in the 2007judgmentand sentence, the time between his October28,2006 arrest, and transfer to Chelan Countyto clearthe otherwarrants. Mr. Stephens remained confined in the Yakima County Jail afterthe February 6, 2007 sentencing because the earlier coin box case remained unresolved. On February 6, 2008, Mr. Stephens pleaded guiltyto one count ofpossession ofstolen property on the coin box case. The court sentenced him to 22 months. Thejudgmentand sentence states the 22 monthswas 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 immediatelyfollowing his arrestfor the coin box theft on September 3, 2006, before posting bail). On February 13, 2008, the Department ofCorrections (DOC) transported Mr. Stephens to a processing pOint. TheYakima CountyJail sent DOC certifications forjail time credit served and earned release time related to thejail time served on the two
cause numbers so DOC could set Mr. Stephens' release date. In its initial certifications,
2No. 31162-7-111 Stephens v. State Yakima County granted Mr. Stephens 387 days creditforjail time served and 193 days ofearned release time ("good time" credits) for total credits of580 days earned while serving time on the 2007 ShopKojudgment and sentence. This resulted in him initially receiving jail credit offboth sentences for his entirejail confinement between November 16,2006and February 13, 2008 when DOC received him into custody. Following Mr. Stephens' transferfrom the Yakima County Jail to DOC custody, DOC AuditorWendy Stigall reviewed the twojail certifications for accuracy in order to set Mr. Stephens' early release date. As partof her audit, she discovered the Yakima County Jail had granted him creditfor the entire amount ofjail confinement between September 2006 and February 13, 2008, offthe 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 oftransfer to DOC custody on February 13, 2008. This double credit contradicted the consecutive provisions specified in the judgment and sentences contrary to In re PersonalRestraintofCostello, 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 creditfor 15 daysjail credit referenced in thejudgmentand sentence plus earned release time of7 days for a total adjusted credit on this case of22 days. Yakima issued an amended certification which reduced the credit on the 2007judgmentand sentenceto 22 days from 580 days granted in the earlier certification. The elimination ofthe credits from the ShopKo case resulted in a January 8, 2009 early release date. 

### 3No. 31162-7-111 Stephens v. State Mr. Stephens objected to the January 2009 release date. He requested creditfor pretrial confinement and related good time offboth sentences, arguing the sentencing judge had the final authority on early release time. He requested review ofthe 2007 judgment and sentence on the ShopKo case because DOC had removed the overlapping credits 'from that cause number even though thejudge had specifically granted him earned release time and credit. On July21, 2008, the sentencing court amended the February 6, 2007judgmentand sentence in the ShopKo case and granted 387 days ofpretrial confinement credits, effectively restoring what DOC struck based on Costello. Our record does not contain the report ofproceedings 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 (priorto Mr. Stephens' transferto DOC custody). A copy ofthe sentencing court's order amending thejudgment and sentencewas received by DOC on July23,2008. Mr. Stephens was released two days lateron July 25, 2008. On February4,2010, Mr. Stephens sued the State for false imprisonment. 1 A jurytrial followed. Both sides requested a directed verdict, arguing the issues were purely legal. The State asked the courtto rule as a matter of law that the confinement
wasjustified. Mr. Stephens asked the court to rule as a matter oflawthat he spent
more days incarcerated than he should have. Thejury decided the State did not

1 He first unsuccessfullyfiled a claim with the State's risk management office as required under RCW4.92.100. 

### 4No. 31162-7-111 Stephens v. State "unjustifiably confine Kenneth Stephens, underthe circumstances, beyond the period of time that itwas legally entitled to confine him." CP at 216. Mr. Stephens appealed. ANALYSIS The issue is whetherthe 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 July2008was unlawful and thus, he argues substantial evidence does not support thejury's verdict. We review a ruling on a motion for a directed verdict, using the same standard as thetrial court. Hizey v. Carpenter, 119Wn.2d 251, 272, 830 P.2d 646 (1992) (citing Indus. Indem. Co. ofNw. v. Kallevig, 114Wn.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 verdictforthe nonmoving party. Harris v. Drake, 152Wn.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 imprisonmentwas not enacted pursuantto a valid legal process. Blick v. State, 182Wn. App. 24,33,328 P.3d 952 (2014) (citing Mundt v. UnitedStates, 611 F.2d 1257, 1259-60 (9th Cir. 1980)). Under RCW 9.94A.729(1) countyjail administrators must certifyto DOC time
I spent in countyjail custody and whether "good time" credits orearned release credit (typically onethird oftime served) are to be added to thejail credits for use by DOC in computing an offender's release date. In doing so, DOC auditors subtractjail time served andjail good time creditfrom the total sentence and then reduce that number by 

### 5No. 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 ofthe correctional facility or be released priorto the expiration ofthe sentence." RCW 9.94A.728. In CosteI/o, Division One ofthis court decided DOC, notthe countyjail, is the final arbiter ofcredit for pretrial confinement. 131 Wn. App. at 833. The Costello court concluded an offender is not entitled to duplicate pretrial confinement creditwhen 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 fortheft convictions, to
run consecutive to the 2001 sentence. In mid-2002, Mr. Costello was transferred from the countyjail to DOC. Before being transferred, he had spent a total of472 days confined in countyjail. The countyjail credited the entire 472 days against the 2001 sentence and credited 317 days against his 2002 sentence. DOC refused to give effect to the countyjail's application oftime served againstthe 2002 sentence, choosing instead to solely credit Mr. Costello forthe 472 days served againstthe 2001 sentence. The court denied his personal restraint petition, concluding he was not entitled to any credit on his 2002 sentence underformer RCW 9.94.120(14) and because "[a]n award ofcredit for time served on the 2002 convictions that would credit Costello with any daysthat are also credited to the sentence on his 2001 convictions would unlawfully renderthe sentences partially concurrent." Costello, 131 Wn. App. at 834. In Mundt, afederal case cited by Division One in Blick, 182Wn. App at 24, the plaintiffwas held in civil contempt and was later convicted ofpostal offenses in federal 

### 6No. 31162-7-111 

# I Stephens v. State court and sentenced to a two yearterm forthe postal felonies. The district court 

# I

ordered the sentencesforthe civil contempt and the felony offenseswere to run 

## f consecutively. The Court ofAppeals later reversed the district court and concluded the two yearsentence forthe felony convictions ran concurrently with the contempt confinement ratherthan consecutively resulting in Mr. Mundt being held 78 days beyond the two yearsentence. The offender sued for false imprisonment after he was released. The Ninth Circuit, applying Arizona common law, affirmed the dismissal ofthe tort claim forfalse 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' oftheir duty, the offenderdid not have a claim for unlawful imprisonment underthese 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, Blickfails to demonstrate that DOC acted without lawful authority. An imprisonment enacted pursuantto a valid legal process and court sentence is notfalse imprisonment." 182 Wn. App. at24. Here, DOC received separatejudgment and sentences, ordering consecutive sentences for Mr. Stephens and awarding ordered double credit, contradicting the consecutive provisions in thejudgmentand sentences contrary to CosteI/o. DOC, therefore, eliminated all but 22 days credits on the 2007 sentence on the ShopKo case, 

### 7No. 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 ofJanuary 8, 2009. The sentencing court's latersentencing amendment granting Mr. Stephen's request did not retroactively render DOC's initial calculations unlawful. After receiving the amended judgment and sentence, DOC was undera duty to release Mr. Stephens in a reasonable period oftime, and did. See Tufte v. Cityof Tacoma, 71 Wn.2d 866,870,431 P.2d 183 (1967) (an initially lawful imprisonment may under some circumstances become unlawful when ajail "holds an individual foran unreasonable time after it is under a duty to release the individual."). DOC released Mr. Stephenswithin two days afterthe confinement became unlawful. See Kellogg v. State, 94Wn.2d 851, 856,621 P.2d 133 (1980) (release within one day ofdiscovering mistaken identitywas reasonable). Thus, given our analysis, we conclude sufficient evidence shows DOC did not unlawfully confine Mr. Stephens because it acted reasonably under RCW9.94A.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 notfalse imprisonment. Accordingly, the court did not abuse its discretion or legally err in denying Mr. Stephens' directed verdict request.

8No. 31162-7-111 Stephens v. State Any potential error at the trial level would be the court's denial ofthe State's requestfordirected verdict; that potential errorwould be harmless though since thejury
came to the same conclusion. See Saldivarv. Momah, 145Wn. App. 365,401, 186 P.3d 1117 (2008) (an error is harmless if no reasonable probability the outcome ofthe trial would have been materially affected had the error not occurred). Affirmed.

Brown, 

### J. WE CONCUR:

Lawrence-Berrey, 

### J.

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