IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Personal Restraint ) No. 82141-5-I

of )

)

ROBERT RECCO MCMURTRY, ) PUBLISHED OPINION

 )

 Petitioner. )

BOWMAN, J. — In this personal restraint petition (PRP), Robert Recco

McMurtry claims he received ineffective assistance of counsel at a community 

custody revocation hearing before the Indeterminate Sentence Review Board 

(ISRB). He argues the conditions imposed at the hearing unlawfully restrain him

because his attorney’s deficient performance deprived him of his right to effective 

representation under the Sixth Amendment to the United States Constitution. 

Because the Sixth Amendment right to counsel does not apply at an 

administrative hearing and McMurtry does not allege a procedural due process 

violation, we deny McMurtry’s PRP.

FACTS

In 2002, McMurtry consumed alcohol and marijuana at a house party and 

sexually assaulted a stranger. The State charged him with second degree rape.

A jury convicted McMurtry as charged, and the court sentenced him to a

“determinate-plus”1 sentence of 78 months to life in the custody of the 

 

1 McMurtry’s determinate-plus sentence under former RCW 9.94A.712 (2001) equates to 

an indeterminate sentence under RCW 9.94A.507.
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Department of Corrections (DOC). McMurtry served 73 months in confinement

before DOC released him. He then began serving a lifetime of community 

custody under the supervision of the ISRB.

McMurtry’s release from DOC came with conditions. The conditions 

included requirements that McMurtry stay each night at a residence approved by 

his community corrections officer (CCO), notify his CCO of any change in 

address, not possess firearms or ammunition, abstain from alcohol, and not enter

bars, taverns, or lounges. McMurtry was also required to register as a sex 

offender.

In 2019, McMurtry’s CCO suspected that McMurtry was not living at his 

approved residence. After investigating, the CCO charged McMurtry with seven 

community custody violations and arrested him. The CCO alleged McMurtry (1) 

changed his residence without CCO permission, (2) failed to register as a sex 

offender at that new address, (3) possessed alcohol, (4) possessed a firearm, (5) 

possessed ammunition, (6) visited bars, and (7) stayed overnight at an 

unapproved residence.

The ISRB held a community custody revocation hearing on McMurtry’s

alleged violations on October 24, 2019. At the hearing, the ISRB allowed an 

attorney to represent McMurtry. McMurtry pleaded guilty to four of the 

allegations, and the ISRB found him guilty of the other three after considering 

testimony and other evidence. The ISRB determined that it was appropriate to 

reinstate McMurtry’s community custody rather than impose more jail time. It

released McMurtry but imposed several community custody conditions. It again 
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ordered that McMurtry stay each night at a residence approved by his CCO. And 

it imposed several new conditions, including 90 days of electronic home 

monitoring (EHM), an 11:00 p.m. to 5:00 a.m. curfew, and 6 months of random 

urinalysis (UA) testing. 

McMurtry timely filed this PRP.

ANALYSIS

Grounds for Relief

The ISRB argues we should dismiss McMurtry’s PRP because he has no 

grounds for relief. According to the ISRB, McMurtry is not under restraint 

because the conditions it imposed based on McMurtry’s community custody 

violations “either expired . . . or are largely redundant of unchallenged, 

previously-imposed conditions.” We disagree in part.

Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173 

Wn.2d 123, 132, 267 P.3d 324 (2011). To obtain relief, a petitioner must show 

that he is currently under restraint and that the restraint is unlawful. RAP 16.4(a);

In re Pers. Restraint of Grantham, 168 Wn.2d 204, 213, 227 P.3d 285 (2010). 

Under RAP 16.4(b), a petitioner is under restraint if he has limited freedom

because of a criminal or civil court decision, is confined, is subject to imminent 

confinement, or is under some other disability from a judgment or sentence in a 

criminal case. A petitioner who is subject to community custody conditions that 

limit his freedom is under restraint. In re Pers. Restraint of Martinez, 2 Wn. App. 

2d 904, 910, 413 P.3d 1043 (2018) (ISRB condition forbidding parolee from 

entering Thurston County was a restraint), abrogated on other grounds by In re
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Pers. Restraint of Winton, 196 Wn.2d 270, 474 P.3d 532 (2020). 

After finding that McMurtry violated his conditions of community custody, 

the ISRB ordered that McMurtry spend every night at his approved residence 

unless he obtains written permission from his CCO to stay somewhere else. This 

requirement is the same as a previously imposed condition of release, so it does 

not amount to new restraint. The ISRB also imposed several new conditions, 

including 90 days of EHM and 6 months of random UA testing, beginning 

November 4, 2019. Those conditions have been satisfied, so they do not 

currently restrain McMurtry. But the ISRB also ordered that McMurtry “be 

present in [his] ‘registered’ residence every night between the hours of 11 PM 

and 5 AM.” That condition has not expired and restrains McMurtry beyond those 

conditions previously imposed. As a result, McMurtry is under restraint and may 

seek relief of the curfew condition through a PRP.

2

Ineffective Assistance of Counsel

McMurtry contends that his restraint is unlawful because his attorney was 

ineffective at his ISRB hearing. He urges us to evaluate his claim under the Sixth 

Amendment Strickland3test. Allegations of ineffective assistance of counsel 

present mixed questions of fact and law that we review de novo. State v. 

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

 

2

In McMurtry’s reply, he asserts he is also under restraint because of the “severe impact 

the [seven] different guilty findings will have on any future decisions made by his DOC officers 

and the ISRB for the remainder of his lifetime supervision by the [ISRB].” He cites no cases in 

support of that proposition, so we do not consider it. RAP 10.3(a)(6); Cowiche Canyon 

Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (we do not consider argument 

unsupported by citation to authority).

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 
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The Sixth Amendment and article I, section 22 of the Washington State 

Constitution guarantee defendants the right to effective assistance of counsel in 

a criminal prosecution. The focus of the Sixth Amendment right to counsel is 

“whether the event for which the defendant argues counsel is necessary is a 

‘critical stage’ of the criminal prosecution.” Grisby v. Herzog, 190 Wn. App. 786, 

796, 362 P.3d 763 (2015). When a defendant alleges ineffective assistance of 

counsel under the Sixth Amendment, we apply the two-part test established in 

Strickland to analyze the claim. 466 U.S. at 687. That is, we consider whether 

the defendant’s counsel was deficient, and if so, whether that deficient 

performance prejudiced the defendant. Strickland, 466 U.S. at 687. 

But revocation of a postconviction status like community custody is not a 

critical stage of a criminal proceeding. A parole revocation hearing is 

administrative, not criminal, and the Sixth Amendment right to counsel does not 

attach. Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S. Ct. 1756, 36 L. Ed. 2d 656

(1973); Grisby, 190 Wn. App. at 796. Because a parolee4 has no Sixth 

Amendment right to counsel at an ISRB hearing, the Strickland test does not 

apply. See State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (“In 

Strickland, the United States Supreme Court set forth the prevailing standard 

under the Sixth Amendment for reversal of criminal convictions based on 

ineffective assistance of counsel.”).

 

4 Community custody in Washington amounts to parole. See Grisby, 190 Wn. App. at 

800-01 (citing In re Pers. Restraint Petition of McNeal, 99 Wn. App. 617, 633, 994 P.2d 890 

(2000)).
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Even so, a postconviction revocation hearing can lead to a parolee’s loss 

of liberty, so we have determined that a parolee may have a right to counsel at 

such a hearing when necessary to protect procedural due process under the 

Fourteenth Amendment to the United States Constitution and article I, section 3 

of the Washington State Constitution. Grisby, 190 Wn. App. at 789 (the 

procedural protection due to someone who faces revocation of community 

custody status includes, in some cases, the right to counsel at the revocation 

hearing). It is the responsibility of the correctional authority conducting the 

community custody hearing to determine, case by case, whether appointment of 

counsel is necessary to protect a parolee’s procedural due process rights.

Scarpelli, 411 U.S. at 790; Grisby, 190 Wn. App. at 798, 805-06. In doing so, the 

correctional authority considers factors like whether the parolee requested 

counsel, whether the parolee appears able to speak effectively for himself, and 

whether the case is complex or difficult to develop or present. Scarpelli, 411 U.S. 

at 790-91.

McMurtry asserts no due process claims in his PRP. Instead, he broadly 

declares that a “parolee has a state and federal constitutional right to effective 

assistance of counsel under the Sixth Amendment to the U.S. Const. and article 

I, section 22 of the Washington State Constitution once the [ISRB] has deemed 

that the parolee may have the assistance of counsel.” In support, he cites State 

v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017); Scarpelli, 411 U.S. at 782;

and Grisby, 190 Wn. App. at 805. But none of those cases holds that a Sixth 

Amendment right to counsel attaches at a postconviction hearing. Estes
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analyzes whether trial counsel was ineffective during the plea bargaining 

process. 188 Wn.2d at 453-54. And the other two cases recognize that any right 

to counsel at a postconviction hearing arises from the due process clause of the 

Fourteenth Amendment, not the Sixth Amendment. Scarpelli, 411 U.S. at 781-

83; Grisby, 190 Wn. App. at 795-96.

Because the Sixth Amendment right to counsel does not attach to an 

administrative hearing and McMurtry asserts no procedural due process claim,

we deny McMurtry’s PRP.

WE CONCUR: