Personal Restraint Petition Of Shawn Gulseth

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Personal Restraint of No. 87757-7-I SHAWN D. GULSETH, DIVISION ONE Petitioner. UNPUBLISHED OPINION CHUNG, J. — Shawn Gulseth is serving a term of confinement in the Washington State Department of Corrections (DOC). Gulseth appeals a DOC disciplinary hearing decision finding him guilty of three serious violations, arguing DOC lacked “some evidence” as to two of the violations. We grant the petition in part and deny in part. BACKGROUND On November 9, 2024, DOC Officer Jonathan Young “was conducting a tier check” when he noticed Gulseth “resting his elbow on a trash can upside down, while wearing gloves and holding something close to” the arm of another inmate, Mumin Hussein. Young “told them that [he] knew they were tattooing.” Young called for DOC Officer Douglas Adams to come to the unit. After Adams arrived, Young directed Gulseth and Hussein “to step out of the cell and come to the foyer.” Young and Adams then conducted a cell search, during which they found “stacks of wax paper with drawings on them . . . along with 2 homemade toilet paper core pipes, multiple broken/altered pieces of wiring, unauthorized glove tips and miscellaneous pieces of wound up toilet paper with clearly burnt ends.” No. 87757-7-I/2 The officers referred Gulseth for a disciplinary hearing, alleging three violations of WAC 137-25-030(1): category A, violation 603, for “[p]ossessing, introducing, or transferring any unauthorized drug or drug paraphernalia”; 1 category B – Level 1, violation 553, for “[s]etting a fire”; and category C – Level 2, violation 710, for “[a]cquiring an unauthorized tattoo/piercing/scar, tattooing/piercing/scarring another, or possessing tattoo/piercing/scarring paraphernalia.” Prior to the hearing, Gulseth “requested prison person[nel] to test the toilet paper roll[s] for any drug residue,” which did not occur. Gulseth also wrote a witness statement for Hussein which stated that the toilet paper tubes were used for “incense stick holders” and the paper wicks were used for “smudge-artwork.” DOC held the disciplinary hearing on December 12, 2024. Gulseth was the only person who testified at the hearing. Gulseth pleaded not guilty to all three violations but did not dispute that the toilet paper tubes were his. Instead, Gulseth testified that he had written Hussein’s witness statement and agreed that he had lied in the witness statement. At the hearing, he stated he “decided to come clean” and that, in fact, he had used the toilet paper rolls to smoke tobacco. He testified that the wicks that were found were his, and he got a “red head”—“a wick that’s smoldering”—from “down the tier. But it wasn’t on fire.” Accordingly, Gulseth argued that he did not have drug paraphernalia and did not “set a fire,” as there were no flames. The hearing officer found Gulseth guilty of all three violations. The decision cited the following facts and evidence: “Infraction report. Incident report. Search report. 1 We cite to the version of the rule that applied at the time of the alleged infraction. The language is the same but has been recodified as violation 665 – “Introduction/trafficking of any unauthorized drug or drug paraphernalia.” See WAC 137-25-030(1). 2 No. 87757-7-I/3 [Inmate] testimony. Photos of arcing and tattooing contraband and tattoo work. Photo of drug paraphernalia (toilet paper pipes with burned holes and ash present).” DOC sanctioned Gulseth with, among other things, loss of 75 days of good conduct time, citing as its reason for sanction: “Severity of offense. [Inmate] was in possession of drug paraphernalia. Disregard for institution rules.” Gulseth appealed the disciplinary ruling, arguing: I did not light a fire. (553) I did not introduce drugs or drug contraband. (603) None of the evidence supports proof. It is speculative. The officer state[d] it “appeared” to be. I admit to smoking tobacco, with a wick which was not [a] flame. It is my hope that you reduce these to tobacco infractions. DOC affirmed the hearing officer’s findings. Gulseth then initiated this petition, in which he challenges the findings as to only the two violations relating to drug paraphernalia and setting a fire, and asks this court for the following relief: Reverse the decision of the Hearings officer, expunge the WAC 603 infraction from my prison file, and restore the 75 days of good time credits taken as a result therefrom. Reverse the decision of the WAC 553 as no fire was ever spoken of in the officer[’]s report, just toilet paper. Reverse WAC 603, WAC 553 accordingly. DISCUSSION Where “a statute permits an inmate to earn good time credits, the inmate has a constitutionally protected liberty interest in those credits which prevents their deprivation absent observation of minimum due process requirements.” In re Pers. Restraint of Johnston, 109 Wn.2d 493, 496-97, 745 P.2d 864 (1987) (footnote omitted) (citing Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 453 (1985); Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). However, people who are incarcerated and facing discipline are not afforded the same extent of constitutional protections that are afforded to 3 No. 87757-7-I/4 defendants facing criminal charges. See Arment v. Henry, 98 Wn.2d 775, 778, 658 P.2d 663 (1983). Instead, people who are incarcerated are entitled to minimum due process when they are accused of a serious infraction. In re Pers. Restraint of Gronquist, 138 Wn.2d 388, 398, 978 P.2d 1083 (1999). “[T]he nature and scope of the due process rights” are limited, as “[t]he inmate’s interest ‘must be accommodated in the distinctive setting of a prison, where disciplinary proceedings take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so.’ ” Johnston, 109 Wn.2d at 497 (internal quotation marks omitted) (quoting Hill, 472 U.S. at 454). “[R]eview of prison disciplinary proceedings is properly limited to a determination of whether the action taken was so arbitrary and capricious as to deny the petitioner a fundamentally fair proceeding.” In re Pers. Restraint of Reismiller, 101 Wn.2d 291, 294, 678 P.2d 323 (1984). In prison disciplinary proceedings where the loss of earned good time credits may be imposed, “[t]he evidentiary requirements of due process are satisfied if there is ‘some evidence’ in the record to support a prison disciplinary decision revoking good time credits.” Johnston, 109 Wn.2d at 497. “Factual determinations of prison officials must stand if there is ‘some evidence’ in the record to support the prison disciplinary decision.” Gronquist, 138 Wn.2d at 397 n.7 (quoting Hill, 472 U.S. at 455-56). “[T]he relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S. at 455-56. “[T]here essentially must be some reasonable connection between the evidence and the inmate in order to support actions taken by the prison disciplinary board.” In re Pers. Restraint 4 No. 87757-7-I/5 of Anderson, 112 Wn.2d 546, 549, 772 P.2d 510 (1989). “Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence.” Hill, 472 U.S. at 455. Resolving Gulseth’s claims requires us to interpret the rules that set out the violations—specifically, the phrases “drug paraphernalia” in WAC 137-25-030, violation 603, and “set a fire” in violation 553. “Statutory interpretation involves questions of law that we review de novo.” State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). “In construing a statute, the court’s objective is to determine the legislature’s intent.” Id. “We apply the same rules of statutory construction to administrative codes.” State v. Leer, 33 Wn. App. 2d 582, 590, 561 P.3d 761 (2024) (interpreting state toxicologist’s rule providing requirements for blood sample container and preservative), review denied, 4 Wn.3d 1023, 567 P.3d 1104 (2025). I. “Some evidence” of drug paraphernalia Washington’s prison regulations do not define the term “drug paraphernalia.” See WAC 137-25-020 (providing definitions). “The ‘plain meaning’ of a statutory provision is to be discerned from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Jacobs, 154 Wn.2d at 600. “[W]e will not read a statute in isolation; we determine its plain meaning by taking into account ‘the context of the entire act,’ as well as other related statutes.” State v. Petterson, 190 Wn.2d 92, 98, 409 P.3d 187 (2018) (quoting Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014)). Where a statute has not defined its own terms, our courts have looked to 5 No. 87757-7-I/6 the “broader statutory context” to clarify the term’s meaning. See, e.g., State v. Sanchez, 177 Wn.2d 835, 843-44, 306 P.3d 935 (2013) (clarifying the meaning of “relevant” in RCW 4.24.550(6)). Here, the WACs distinguish a violation for possession of “drug paraphernalia”—a category A violation—from a violation for possessing “tobacco, tobacco products, matches, or tobacco paraphernalia”—a category C – Level 3 violation. See WAC 137- 25-030(1). A “fundamental rule of statutory construction is that the legislature is deemed to intend a different meaning when it uses different terms.” State v. Roggenkamp, 153 Wn.2d 614, 625, 106 P.3d 196 (2005). Accordingly, “drug paraphernalia” must be distinct from, and does not include, tobacco paraphernalia. Consequently, to afford Gulseth minimum due process, DOC was required to produce “some evidence” that the toilet paper rolls contained paraphernalia that was not tobacco paraphernalia. “An inference should not arise where there exist other reasonable conclusions that would follow from the circumstances.” State v. Jackson, 112 Wn.2d 867, 876, 774 P.2d 1211 (1989). Here, it would also be a reasonable conclusion from the circumstances that the toilet paper rolls were for smoking tobacco. Thus, without evidence to support an inference that the toilet paper rolls were used for drugs and not for tobacco, DOC cannot satisfy its burden of proof. The facts here contrast those in Reismiller, where our Supreme Court determined DOC met its evidentiary burden regarding whether a cigarette contained cannabis. In Reismiller, “a guard at the Washington State Penitentiary found a hand- rolled cigarette which appeared to be [cannabis][2] in petitioner’s cell.” 101 Wn.2d at 2. State v. Fraser, 199 Wn.2d 465, 469 n.1, 509 P.3d 282 (2022) (explaining that the term “marijuana” is rooted in racism and replacing with “cannabis”). 6 No. 87757-7-I/7 292. The disciplinary hearing committee “found that the cigarette before it was [cannabis] and that Reismiller was guilty of possession of [cannabis].” Id. The hearing committee “consisted of experienced corrections personnel, at least one of whom had identified [cannabis] in connection with prison rule violations many times previously. Several of those identifications had been subsequently confirmed by chemical analysis.” Id. at 295 n.1. Reismiller argued that the finding violated due process, contending that “the cigarette was not properly identified as a [cannabis] cigarette” as there was no laboratory analysis. Id. at 293. Our Supreme Court disagreed, reasoning that “[t]he introduction of a chemical analysis of a suspected controlled substance is not essential to conviction even in a criminal trial proceeding; lay testimony and circumstantial evidence may be sufficient to establish the identity of the substance” in a prison disciplinary proceeding. Id. at 294. 3 Here, DOC’s search report described the toilet paper roll evidence as “drug paraphernalia” with no further detail or explanation. 4 Young’s incident report described the evidence as “what appears to be homemade pipes from toilet paper cores.” The hearing decision described the evidence as “drug paraphernalia (toilet paper pipes with 3 The Reismiller court ultimately held there was a due process violation as there was no evidence establishing a connection between Reismiller and the cigarette. 101 Wn.2d at 296. Here, unlike in Reismiller, Gulseth does not contest the connection between himself and the toilet paper rolls. 4 At oral argument before this court, DOC also failed to provide any explanation as to why there should be an inference that the toilet paper rolls were used as drug paraphernalia: JUDGE BIRK: If it’s tobacco it’s one level of violation, if it’s drugs . . . then it takes it to the level of violation that’s equivalent to homicide . . . and so it’s just, it seems like to get into that category, you would need a little bit more to tell us it’s drugs. DOC ATTORNEY: I think . . . we don’t have that in this case. Wash. Ct. of Appeals oral arg., Personal Restraint Petition of Shawn Gulseth, No. 87757-7-I (June 10, 2026) at 14 min., 44 sec. through 15 min., 15 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2026061168/. 7 No. 87757-7-I/8 burned holes and ash present)” without further explanation or reference to other evidence. As in Reismiller, here, the evidence was not tested in a lab, but unlike in Reismiller, this record does not contain any information regarding the qualifications or experience of Young, Adams, or the hearing officer in identifying drug paraphernalia or distinguishing drug paraphernalia from tobacco paraphernalia. Neither Young nor Adams testified at the disciplinary hearing at all, nor did they otherwise explain why they believed the toilet paper rolls to be drug paraphernalia as opposed to tobacco paraphernalia. 5 Despite the lack of evidence regarding a basis for the DOC officers’ belief, DOC contends that “[i]t is reasonable to infer that [Young and Adams] believed the pipes were used to smoke drugs and not tobacco because Gulseth was cited for a 603 violation for possessing drug paraphernalia and not a 606 violation for possessing tobacco paraphernalia.” But this argument is circular; the fact that DOC cited Gulseth for possessing drug paraphernalia cannot itself provide the proof of the violation for which he was cited. Alternatively, DOC argues that the “some evidence” standard is met in this case because the hearing officer had discretion to disbelieve Gulseth’s testimony that the rolls were used for tobacco. But discrediting or “eliminating” testimony does not constitute evidence of its opposite. See State v. Williams, 141 Wash. 165, 168, 251 P. 126 (1926) (“The jury, of course, had the right to disbelieve the testimony of the 5 DOC argued that “Gulseth provided no evidence or witness statement to support his verbal claim that the pipes were used exclusively to smoke tobacco and not some other drugs.” But this argument incorrectly turns the burden of proof onto Gulseth. “Shifting the burden of proof to the defendant is improper argument.” In re Glasmann, 175 Wn.2d 696, 713, 286 P.3d 673 (2012). DOC is responsible for producing “some evidence” of its claim; Gulseth is not required to produce evidence to refute the claim. 8 No. 87757-7-I/9 appellant. This, however, but eliminates the testimony. After eliminating the testimony there must be some substantial evidence remaining to prove the charge.”); State v. Carr, 169 Wash. 56, 63, 13 P.2d 497 (1932) (jury’s possible disbelief of testimony “amounted to nothing more than the elimination of that portion of her testimony from the case and did not furnish any proof of agency relationship.”). DOC still had the burden of producing “some evidence” supporting its claim, which it did not. Because DOC failed to provide “some evidence” of a WAC 137-25-030(1), violation 603 for “possession of drug paraphernalia,” we grant Gulseth’s petition on his challenge to the hearing officer’s decision that he committed an infraction of this rule. II. “Some evidence” that Gulseth “set a fire” Gulseth also challenges his infraction for violating WAC 137-25-030(1), violation 553, for “set[ting] a fire.” The WACs do not define “fire.” See WAC 137-25-020 (providing definitions). “[I]n the absence of a statutory definition[,] this court will give the term its plain and ordinary meaning ascertained from a standard dictionary.” State v. Watson, 146 Wn.2d 947, 954, 51 P.3d 66 (2002). Gulseth posits that fire requires sustained burning from a flame, pointing to the Merriam-Webster definition of “fire.” “Fire” is defined as “the phenomenon of combustion manifested in light, flame, and heat.” Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/fire (last visited Oct. 9, 2026). Accordingly, Gulseth argues that DOC did not produce “some evidence” that Gulseth set a fire because “[n]o evidence showed how the toilet paper wads came to be burnt. A toaster or an iron could have been the source, neither of which uses fire. No evidence showed 9 No. 87757-7-I/10 that even a ‘flickering flame’ was used to burn the paper wads.” Gulseth testified that he did not set a fire but instead received a smoldering, not flaming, wick. While it is true that no officer saw a flame here, offenses involving fire are offenses “most often proved by circumstantial evidence.” See State v. We, 138 Wn. App. 716, 729, 158 P.3d 1238 (2007). In criminal arson cases, for example, “the State can seldom produce witnesses to the actual setting of such a fire,” and, accordingly, “ ‘a well-connected train of circumstances may be as satisfactory as an array of direct evidence’ in proving the crime of arson. Circumstantial evidence is sufficient to convict in an arson case.” Id. (quoting State v. Young, 87 Wn.2d 129, 137, 550 P.2d 1 (1976); State v. Plewak, 46 Wn. App. 757, 756, 732 P.2d 999 (1987)). Gulseth also points to United States v. Thompson, 728 F.3d 1011 (9th Cir. 2013), in support of his argument, but it is distinguishable. There, the court was tasked with determining whether there was proof of the “uses fire” penalty enhancement under 18 U.S.C. § 844(h)(1) where the defendants used a “thermal lance tool” to cut through metal. 728 F.3d at 1015-16. The court held the enhancement did not apply, as “[t]he thermal lance instructional manual makes clear that the thermal lance uses heat and not fire to cut through the metal”; the byproduct of sparks emitted from using the lance did not constitute a “sustained burning of flames”; and any such flames “were merely incidental to the use of the thermal lance.” Id. at 1016. Specifically, the court observed that the purpose of the tool is to cut metal, “[t]he metal being cut never catches fire,” any fire “does not serve the purpose of using the tool because it does not aid in cutting the metal in any fashion,” and indeed, “the successful use of a thermal lance involves careful avoidance of the risk of fire.” Id. 10 No. 87757-7-I/11 Here, in contrast to the thermal lance in Thompson, a “flickering flame” would facilitate smoking; it would be neither incidental nor an unintended byproduct of smoking. Also, we impose significantly lower evidentiary requirements in prison disciplinary proceedings than those “imposed on criminal trials, or even probation revocation proceedings.” Reismiller, 101 Wn.2d at 296-97. The evidence of burn and ash marks here provided circumstantial evidence of fire. Accordingly, here, we hold that DOC satisfied its burden to produce “some evidence” that Gulseth set a fire through evidence of burnt toilet paper rolls. CONCLUSION We grant Gulseth’s personal restraint petition in part and deny it in part. We grant the petition as to Gulseth’s claim regarding the infraction for violating WAC 137-25- 030(1), violation 603 (possessing drug paraphernalia). Because this infraction is a category A violation, the highest level of serious violation, 6 and was the basis for the sanction imposed, we vacate the sanction and direct DOC to restore Gulseth’s 75 days of good time credits. We deny Gulseth’s petition as to his challenge to the infraction for violating WAC 137-25-030(1), violation 553 (setting a fire). WE CONCUR: 6 See WAC 137-25-030(1). 11