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IN THE SUPREME COURT OF THE STATE OF WASHINGTON In the Matter of the Personal Restraint of TEDDY GLEN TALLEY, Petitioner.

No. 83284-6 En Banc Filed September 15, 2011

J.M. JOHNSON, J.--The primary issue presented in this case is whether former RCW 9.92.151 (2004) or the equal protection clause of the United States Constitution requires a county jail to provide opportunities for an inmate who is yet to be sentenced to earn credit toward early release, also known as "good-time" credit. The petitioner, Teddy Glen Talley, argues that the Skamania County Jail and the Department of Corrections (Department) violated former RCW 9.92.151(1) and the Constitution by not providing opportunities for him to earn good-time credit before his criminal conviction. He further contends that

In re Pers. Restraint of Talley, No. 83284-6

these violations entitle him to good-time credit at the statutory maximum rate of 15 percent. Skamania County argues that the statutory issue is not

properly before this court and that its program for earning good-time credit is constitutional. The Department argues that it may rely on a county's jail-time certification when determining the appropriate amount of good-time credit to apply toward early release. We hold that the statutory issue is properly before us. We also hold that former RCW 9.92.151 requires a county jail to provide opportunities for a presentence inmate to earn good-time credit. We do not reach Talley's constitutional issue. Because the Skamania County Jail policy conflicts with former RCW 9.92.151, Talley should receive earned early-release credit at the statutory maximum rate of 15 percent. Facts and Procedural History Though the procedural history is somewhat complex, the underlying facts surrounding Talley's incarceration are not in dispute. On October 27, 2005, Talley committed murder in the second degree. On March 29, 2007, Talley pleaded guilty to this offense. The Skamania County Superior Court imposed a sentence of 123 months of confinement. Following Talley's

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conviction, the Skamania County Jail transferred Talley to the custody of the Department. As part of the transfer, the Skamania County Jail issued a jailtime certification to the Department, crediting Talley with 516 days of presentence credit for time served and zero days of earned early-release credit, also known as "good-time" credit. The Skamania County Jail policy did not allow Talley to earn goodtime credit. Under the county policy, only eligible inmates who work on the in-custody work crew program, who attend educational or treatment programs or who perform other work inside the facility can earn good-time credit. Presentence inmates cannot participate in these programs. Skamania County does not award good-time credit outside of these specified programs. Further, the county allows inmates only classified as "medium" or "low risk" to participate in its programs. Talley was not a medium or low risk inmate, and he served his confinement at the county jail before receiving his sentence. For these reasons, he could not participate in the specified programs to earn good-time credit. Talley, acting pro se, filed a personal restraint petition (PRP) in this court, which the commissioner transferred to Division Two of the Court of

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Appeals.

Talley's pro se PRP argued that the Skamania County Jail

miscalculated his presentence credit in two ways. First, he contended that the failure to provide him with presentence opportunities to earn good-time credit violated the equal protection clause of the Fourteenth Amendment. Second, he argued that because he was confined from October 28, 2005, to March 29, 2007, the jail needed to certify 518 days of time already served rather than the 516 days that appeared in its jail-time certification to the Department. The Court of Appeals issued an order granting his petition in part and denying it in part. The Court of Appeals rejected Talley's constitutional argument and denied his request for relief on that basis. However, the Court of Appeals determined that Talley correctly calculated his time already served and ordered that, absent evidence to the contrary, the Department should credit him with 518 days for time already served. Department credited Talley with 518 days for time served.1 Talley sought discretionary review of the Court of Appeals' order. In response, in two separate rulings, the commissioner requested substantive briefing from the Department and Skamania County regarding the legality of On remand, the

Talley received one day of credit for his confinement in the Clark County Jail and 517 days of credit for his confinement in the Skamania County Jail.
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the county jail's failure to provide opportunities to earn good-time credit in light of former RCW 9.92.151(1).2 Both the Department and Skamania County filed responses. Skamania County argued that the statutory issue was not properly before this court. The Department argued that it could lawfully rely on the county's jail-time certification. We granted review of Talley's motion for discretionary review. In re Pers. Restraint of Talley, 170 Wn.2d 1002, 245 P.3d 226 (2010). Subsequently, we granted his motion to appoint counsel. With the assistance of counsel, Talley filed a supplemental brief addressing the issues raised in his PRP. Analysis The statutory issue is properly before us. Former RCW 9.92.151

requires a county jail to provide opportunities for a presentence inmate to earn good-time credit. We do not reach Talley's constitutional issues. In light of the conflict between former RCW 9.92.151 and the Skamania County

The 2009 amendments to RCW 9.94A.151 do not affect the statutory provisions relevant to this case. See Laws of 2009, ch. 28,

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