State v. King , 130 Wash. 2d 517 ( 1996 )

Madsen, J.

— The principal issue in this case is whether the Indeterminate Sentence Review Board properly based an exceptional minimum sentence partly upon disclosures the defendant made while undergoing court-ordered sexual psychopathy treatment. We affirm the Court of Appeals, which held that use of the defendant’s disclosures did not offend the Fifth Amendment.

Facts

In July of 1981, the King County prosecutor charged Edward King with four counts of first degree rape while armed with a deadly weapon. The parties reached a plea agreement whereby King would plead guilty to two counts of first degree rape while armed with a deadly weapon and admit raping all four victims, and the State would recommend that he be sent to Western State Hospital for treatment as a sexual psychopath pursuant to RCW 71.06. The court accepted this plea on September 17, 1981. On October 21, 1981, the court sentenced King to two consecutive 20-year terms and suspended that sentence on several conditions, the most important being that King enter, and successfully complete, the sexual psychopathy program at Western State. The court then ordered King to Western State to undergo evaluation for determination of sexual psychopathy.

On January 18, 1982, King pleaded guilty in Snohomish County to three additional counts of first degree rape while armed with a deadly weapon. Before sentencing for those crimes, King was transferred to the custody of the Department of Corrections. He was subsequently returned to Western State for re-evaluation of his amenability to treatment.

In April of 1982, hospital staff reported to the King County Superior Court that King was a sexual psychopath. The report noted that during an intake assessment interview, King admitted committing five rapes in California and seven rapes in Washington between 1976 and 1981 for which he was never prosecuted. Based on that report, the court found King to be a sexual psychopath and committed him to Western State. This commitment was made subject to sentencing in Snohomish County.

On May 7, 1982, the Snohomish County court sentenced King to three consecutive 20-year sentences. The court suspended these sentences on the condition that King comply with all of the conditions set forth in his King County sentences. Pursuant to a subsequent stipulation between the parties, King agreed to be subject to the jurisdiction of King County with respect to his Snohomish County convictions.

King participated in the sexual psychopathy program for nearly three years and completed all of its 10 steps. During his treatment, he admitted to staff members in the program that he had committed approximately 40 to 50 rapes in addition to the ones of which he was convicted. Despite his completion of the program, the hospital staff was concerned that King "may not have integrated the necessary changes needed which would impact his character and personality.” Clerk’s Papers (CP) at 104. The hospital staff sought a second opinion from Irwin Dreiblatt, Ph.D., a sex offender program consultant. In February 1986, the staff at Western State reported to the court that while King had received the maximum benefit of treatment and should not be recommitted for further treatment, he was not safe to be at large. In support of its conclusions, the staff gave the court copies of evaluations performed on King at the hospital’s request. The hospital also provided a copy of an evaluation prepared at defense counsel’s request. In the evaluations of both the defense psychologist and the hospital staff, King confessed to approximately 50 rapes.

On April 25, 1986, the King County Superior Court revoked King’s suspended sentences and committed him to the Department of Corrections. The court found that King had failed to successfully complete the sexual psychopathy program and had therefore violated the conditions of his probation. The court reinstated the original sentences in King and Snohomish counties with credit for time served in the Western State program, and ordered the King County terms to run concurrently with the Snohomish County terms. King appealed the revocation as an abuse of discretion and a denial of due process, but the Court of Appeals dismissed the appeal as frivolous and granted appellate counsel’s motion to withdraw.

In January 1987, the Indeterminate Sentence Review Board (hereafter referred to as the Board) conducted an admission hearing and set King’s minimum terms at 180 months on Count 1 of his Snohomish County convictions, 95 months on each of Counts 2 and 3 of the Snohomish County convictions, and 84 months on each of the two King County convictions. The Board maintained the concurrent/consecutive designations ordered by the trial courts, whereby the minimum terms for each cause number would run consecutively to each other but concurrently with the terms for the other cause number. The total minimum term thus was 370 months (180 plus 95 plus 95). The Board based this exceptional term in part on Western State’s 1986 report on King as well as the subsequent evaluations of King.¹ The Board also noted that King himself stated at the admission hearing that he "had upwards of 55 rapes.” CP at 98.

In February 1989, King filed a personal restraint petition in the Court of Appeals challenging the Board’s reliance on the uncharged and unproved crimes to which he admitted during therapy when setting his exceptional minimum term sentence. King claimed that his therapists had promised him confidentiality. In October 1989, the Court of Appeals transferred the petition to King County Superior Court for a decision on the merits. In February 1992, King moved to withdraw his guilty pleas. King also moved to vacate the trial court judgments and sentences, his probation revocation, and the Board’s minimum term. The superior court denied those motions and, following a fact-finding hearing, dismissed the personal restraint petition as well. The superior court found that King was told in February 1982 that information he provided Western State could be made available to the court and that the rules of confidentiality did not apply. The court also found that King was warned that his admissions could be used against him and that he was told that fully admitting his crimes was a treatment requirement. The court found further that while King thought his disclosures would be confidential, he was in fact told that they would be confidential only with respect to third parties such as spouses, friends, and relatives. He never was advised that his disclosures were confidential in regard to the court system, its officers, or agents.

The Court of Appeals affirmed the trial court in all respects. State v. King, 78 Wn. App. 391, 897 P.2d 380 (1995). This court then accepted King’s petition for review.

I

The first issue is whether the Board violated the defendant’s Fifth Amendment rights by considering statements he made at Western State Hospital in setting his minimum term. The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, commands that no person "shall be compelled in any criminal case to be a witness against himself.” This prohibition not only permits a person to refuse to testify against himself at a criminal trial, but also allows him not to answer official questions put to him in any other proceeding, civil or criminal, where the answer might incriminate him in future criminal proceedings. Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984); Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973).

The availability of the Fifth Amendment privilege thus does not turn on the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure it invites. Post, 118 Wn.2d at 604; In re Gault, 387 U.S. 1, 49, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). In any type of proceeding,

a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later [proceeding].

Murphy, 465 U.S. at 426 (quoting Lefkowitz, 414 U.S. at 78).

The Fifth Amendment analysis generally entails two considerations: whether the defendant’s statements exposed him to a "realistic threat of self-incrimination” in a subsequent proceeding and whether the State compelled the defendant’s incriminating statements. Murphy, 465 U.S. at 419. Because the first of these considerations is dis-positive, we do not reach the second.

Realistic Threat of Self-Incrimination in a Subsequent Proceeding

The Fifth Amendment clearly is implicated when a defendant’s statements revealing prior criminal, but unconvicted, behavior are allowed to influence the sentencing decision. State v. Post, 118 Wn.2d 596, 604, 826 P.2d 172, 837 P.2d 599 (1992); State v. Ammons, 105 Wn.2d 175, 184, 713 P.2d 719, 718 P.2d 796, cert. denied, 479 U.S. 930 (1986). "It is no less important that constitutional guaranties be observed at the sentencing phase than at the investigative and trial phases of a criminal prosecution.” Post, 118 Wn.2d at 605; see also State v. Tinkham, 74 Wn. App. 102, 106, 871 P.2d 1127 (1994).

However, the setting of a minimum term is not part of a criminal prosecution and the full panoply of rights due a criminal defendant in such a proceeding thus does not apply. In re Whitesel, 111 Wn.2d 621, 630-31, 763 P.2d 199 (1988); In re Sinka, 92 Wn.2d 555, 566, 599 P.2d 1275 (1979). The United States Supreme Court stated more explicitly in Murphy that although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding to which the Fifth Amendment applies, so long as the questions put to the probationer are relevant to his probationary status and pose no realistic threat of incrimination in a separate criminal proceeding. Murphy, 465 U.S. at 435 n.7.

Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer.

Our cases indicate, moreover, that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination.

Id. at 435 n.7.

King was sentenced to several 20-year terms which were suspended on condition he successfully complete the sexual psychopathy program at Western State Hospital. In accordance with the statutory requirements of the sexual psychopathy program, the trial court sentenced King before considering the allegation of sexual psychopathy and any possible disclosures of uncharged crimes. RCW 71.06.030.

Participation in the sexual psychopathy program is governed by statute. Initially, a court must refer a defendant for an evaluation to determine sexual psychopathy. RCW 71.06.040. Upon completion of the observation period used to determine whether a defendant is a sexual psychopath, the superintendent of the state hospital "shall return the defendant to the court, together with a written report of his findings as to whether or not the defendant is a sexual psychopath and the facts upon which his opinion is based” RCW 71.06.050 (emphasis added). RCW 71.06 clearly contemplates the use of treatment disclosures by the trial court in evaluating a defendant’s amenability to treatment. The statutes go on to provide that during post-commitment proceedings the court is authorized to consider "any relevant documents and other evidence” to determine a defendant’s disposition. RCW 71.06.091. Pursuant to the statutes, Western State Hospital was required to advise the King County Superior Court of King’s admissions of additional criminal activity, made during both the evaluation and treatment phases of the Sex Offender Program, because those admissions were relevant to King’s safety to be at large, his status as a sexual psychopath and his amenability to treatment.

While potentially incriminating, King’s disclosures during treatment were necessary to that treatment and his successful completion of his probation requirements. At the end of treatment, the court appropriately examined the treatment records and the disclosures contained therein to determine King’s proper disposition. Thus, King’s disclosure regarding 55 rapes was relevant to his probation status and was properly considered by the court in his revocation proceeding.²

It follows that King’s disclosures could be used by the ISRB following a revocation hearing to set a minimum term since setting a term is an administrative act which follows sentencing. In re Ayers, 105 Wn.2d 161, 164, 713 P.2d 88 (1986). Once he was referred to the Board, that body considered only that information already considered by the court in revoking probation. The Board did not seek any additional disclosures or statements from King.

King maintains, however, that the sexual psychopathy statutes limit use of treatment information to the purposes of the sexual psychopathy program, and do not allow the Board to consider such information in setting a minimum term. He fails to recognize that the statutes expressly allow the transfer of treatment information to the Department of Corrections or the Board. RCW 71.06.270 provides that the "records, files, and other written information” prepared by the department of social and health services for individuals committed under the sexual psychopathy chapter "shall be made available upon request to the department of corrections or the board of prison terms and paroles for persons who are the subject to the records who are committed to the custody of the department of corrections or the board of prison terms and paroles.”³ It is apparent that one purpose of RCW 71.06 is to assist the Board in sentencing an inmate who is deemed unamenable to treatment by the trial court.

King also contends that the setting of the minimum term by the ISRB must be treated as a sentencing proceeding and cites Pens v. Bail, 902 F.2d 1464 (9th Cir. 1990) in support of this contention. In Pens, the defendant was committed to the sexual psychopathy program at Western State following convictions for two counts of first degree rape, but he was not sentenced before his commitment. During his treatment, he was assured by his therapists that the information he revealed during treatment would not be disclosed to the court. Id. at 1465. After three years, the hospital returned Pens to court with a report detailing the confessions and statements he made during treatment. Based on this report, the trial judge recommended and the Board sentenced Pens to an exceptional minimum term. The Ninth Circuit concluded that use of these statements as a basis for an exceptional minimum sentence violated Pens’ Fifth Amendment rights. Id. at 1466.

In its holding, the court observed that the case arose only because the defendant was not sentenced before commitment. Had the trial judge given Pens an "original sentence,” information disclosed during Pens’ postconviction treatment could not have been used to aggravate the sentence for the original offense. Id. at 1465 n.l. Thus, the court necessarily considered the setting of the minimum term in that case as a part of the original sentencing.

In contrast to Pens, the disclosures in this case did not affect King’s original sentencing since the trial court had imposed sentence prior to King beginning the treatment program. By the time the Board set King’s minimum term, the original sentence had been entered and the criminal proceeding was over. The proceeding that King faced when he returned to court was revocation of his suspended sentence. Once the suspended sentence was revoked, the Board had an administrative responsibility to set a minimum term. In setting the minimum term, the Board may properly consider uncharged offenses in making its decision. In re George, 52 Wn. App. 135, 143 n.4, 758 P.2d 13 (1988) (citing State ex rel. Alldis v. Board of Prison Terms & Paroles, 56 Wn.2d 412, 418-19 n.2, 353 P.2d 412 (1960)).⁴

The Ninth Circuit also attached significance to the fact that Pens made his disclosures following assurances of confidentiality. Those assurances also distinguish Pens from the case at bar. The trial court found that King was promised only that disclosures during group discussion would be confidential from third parties, such as spouses, friends, and relatives, but that such disclosures would not be confidential from the courts, its officer or agents. CP at 171 (finding of fact 6).

Moreover, in the report prepared by Dr. Comte, King described his treatment as follows:

Mr. King strongly takes exception to Dr. Dreiblatt’s statements that he only disclosed the extent of his raping activities and the number of victims when threatened with a polygraph. He says early in his tenure in the Program he admitted to 20 rapes and was debating further disclosure, but was fearful of the Program’s response. During one particular therapy session, his then therapist, Charles Dockery, commented:

"Things in your past are like parking tickets, if you put them in a glove box they will end up costing you a lot. If you pay right away, they don’t cost as much.”

Mr. King says he considered his therapist’s comments and after careful documentation, disclosed a total of 50 to 55 victims. A later polygraph examination confirmed his disclosures.

CP at 124.

We conclude that King was not exposed to criminal liability in violation of the Fifth Amendment when the Board used his treatment disclosures to support an exceptional minimum term sentence. As Murphy recognized, the State may validly insist on answers to incriminating questions and properly administer its probation system so long as the State recognizes that the answers may not be used in a subsequent criminal proceeding.

II

The second issue is whether the trial court erred in denying the defendant’s motion to withdraw his guilty pleas. It is reversible error for a trial court to accept a guilty plea without an affirmative showing in the record that the plea was made intelligently and voluntarily. Wood v. Morris, 87 Wn.2d 501, 511, 554 P.2d 1032 (1976); In re Woods v. Rhay, 68 Wn.2d 601, 605, 414 P.2d 601, cert. denied, 385 U.S. 905 (1966).

King’s initial challenge of his guilty pleas was based on his alleged lack of understanding that consecutive sentences could be imposed. The trial court found no misunderstanding possible after reviewing the records of both pleas, and the Court of Appeals affirmed. King, 78 Wn. App. at 397. The Court of Appeals addressed only King’s argument that he was not properly informed of the possibility of consecutive sentences, even though King also asserted on appeal that he had not been informed of the mandatory minimum sentence that he faced.

The Court of Appeals also declined to discuss the State’s contention that the merits of King’s challenge, no matter what the scope thereof, need not be addressed at all. This argument is based on the fact that King’s guilty pleas were entered in 1981 and 1982, and on the fact that he raised his first challenge to them in 1992.

In 1989, legislation was passed to limit the number of collateral challenges a defendant may make to a conviction. RCW 10.73. RCW 10.73.090 provides that no motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and rendered by a court of competent jurisdiction. RCW 10.73.090(1). The statute adds that a motion to withdraw a guilty plea is included within the definition of a collateral attack. RCW 10.73.090(2). The one-year time limit does not apply to a motion based on one or more of the following grounds: (1) newly discovered evidence; (2) the statute that the defendant was convicted of violating is unconstitutional; (3) the conviction is barred by double jeopardy; (4) the evidence was insufficient to support the defendant’s conviction; (5) the sentence imposed was in excess of the court’s jurisdiction; or (6) there has been a significant change in the law that is material to the conviction. RCW 10.73.100. In addition, RCW 10.73.090 and .100 apply only to motions filed more than one year after July 23, 1989. RCW 10.73.130.

Here, King raised his first challenge to his guilty pleas in February 1992, which is more than one year after July 23, 1989. None of the exceptions to the one-year time limit set forth in RCW 10.73.100 apply to King’s situation. Thus, we conclude that this challenge is time-barred under RCW 10.73.090.

Ill

The third issue is whether the defendant was deprived of effective assistance of counsel because his trial counsel did not raise the psychologist-patient privilege. The two-part test for establishing ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

See also State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).

King contends that this test is satisfied because his trial counsel did not argue that use of his statements made during treatment violated the psychologist-patient privilege. RCW 18.83.110 makes the confidential communications between a client and psychologist privileged against compulsory disclosure. Post, 118 Wn.2d at 612; In re Henderson, 29 Wn. App. 748, 752, 630 P.2d 944 (1981). The privilege does not apply where it is manifest that the patient did not intend his or her communications to be confidential. Post, 118 Wn.2d at 612; In re Henderson, 29 Wn. App. at 752. As with all evidentiary privileges, a person may not claim a privilege as to communications that do not originate in the confidence that they will not be disclosed. Post, 118 Wn.2d at 612; State v. Coe, 109 Wn.2d 832, 843, 740 P.2d 208 (1988).

This court further explained in Post that an objective inquiry must be made when determining whether the patient intended the communications to be confidential.

The patient’s subjective expectations of confidence, while relevant, should not be given more weight than the objective evidence of the situation and circumstances in which the communication was made. A patient’s intent that the communication be confidential must be reasonable in light of the circumstances surrounding the communication.

Post, 118 Wn.2d at 612.

The privilege does not apply in this case. The trial court found that King was warned that his admissions could be used against him and that he was not advised that his admissions would be kept from the courts. The report made following King’s intake interview states that King was not promised confidentiality, and King undoubtedly was aware that his disclosures made during that interview were revealed to the court in assessing his status as a sexual psychopath. Further, King submitted his own evaluation to refute the State’s position at his revocation hearing. King’s continued insistence that he was assured of confidentiality is not reasonable under the facts of this case or in light of the purposes and legal requirements of the sexual psychopathy program.

Accordingly, the failure to raise the psychologist-patient privilege does not satisfy the Strickland test for ineffective assistance of counsel. The failure to raise the privilege was not a serious error which prejudiced King’s defense

We affirm the Court of Appeals and uphold the imposition of the exceptional minimum term sentence in this case.

Durham, C.J., and Dolliver, Smith, Guy, Johnson,. and Talmadge, JJ., concur.

1 The sentence imposed does not appear to be appreciably longer than would be the standard range term under the SRA. See ROW 9.94A.310-.320, .440.

2 King also challenges the court’s use of his treatment disclosures to revoke his probation. This issue was not raised in his appeal of the revocation or in the PRP he filed in 1989. Rather, he first questioned the court’s use of his disclosures in a motion filed in 1992. We decline King’s invitation to consider this question as an amendment to his original PRP. This challenge is, in effect, a second petition for relief that we will not consider since King has failed to show good cause why this issue was not raised in his initial petition. See RCW 10.73.140.

3 he board of prison terms and paroles was redesignated the indeterminate sentence review board in 1986. Laws of 1986, ch. 224.

4 Under this state’s prior indeterminate sentencing scheme the trial court set only the maximum term of confinement while the Parole Board set the minimum term. RCW 9.95.010. As pointed out by the concurrence in the dissent at 552, the actual time served by a prisoner under that scheme is determined by the Board. Nevertheless, this court has held that the setting of a minimum term is not part of a criminal prosecution. In Re Wittesel, 111 Wn.2d 621, 631, 763 P.2d 199 (1988). This is so because an inmate has no constitutional expectation to release prior to serving the maximum term to which the court originally sentenced. In re Ayers, 105 Wn.2d 161, 164, 713 P.2d 88 (1986). Further, the statutes direct that a prisoner shall not be released prior to expiration of his maximum term unless he is a fit subject for release as determined by the Board. RCW 9.95.100. The Board may redetermine the minimum term at its discretion, for a variety of reasons, any time prior to an inmate’s completion of his maximum term. RCW 9.95.052.