Born v. Thompson , 154 Wash. 2d 749 ( 2005 )

¶1 Petitioner Mark Born challenges the Court of Appeals’ holding that the standard of proof necessary to detain an individual under RCW 10.77.090(1)(d)(i) for restoration of competency to stand trial for certain misdemeanors is by a preponderance of the evidence. We hold that due process requires that proof must be by clear and convincing evidence and that under this standard the State did not prove that Mr. Born was charged with a violent act as required for commitment for competency restoration under RCW 10.77.090(1)(d)(i).

Madsen, J.

Facts

|2 The parties have agreed to the facts contained in a King County Sheriff’s Office incident report describing Mr. Bom’s alleged offense. On May 31, 2001, Born was riding a bus that had completed its route. The driver stood up and asked Born, who was “seated at the front on the passenger side” of the bus, to get off. Clerk’s Papers (CP) at 8. Mr. Born raised his fist and cocked it back as if to hit the driver and told the driver that he would take him, Born, where he wanted to go — he was not getting off. The driver twice asked Mr. Born to leave the bus, and twice Mr. Born responded in the same way. The driver was concerned that Born would hit him and “felt that Born might have some mental health issues.” Id. The bus driver got off the bus and called for assistance. The Shoreline Police Department responded and Mr. Born was arrested and charged with unlawful bus conduct for exhibiting harassing behavior, a misdemeanor under King County Code (KCC) 28.96.010(B)(7).¹

¶3 At arraignment, the district court inquired into Mr. Born’s competence to stand trial and then ordered an evaluation of Born’s competency.² The court subsequently reviewed the written evaluation and the police incident report and concluded that Mr. Born was incompetent and the pending charge alleged a violent act. Under RCW 10.77.090(1)(d)(i), a court may stay a misdemeanor prosecution and commit the defendant for mental health treatment and competency restoration if he or she is charged with “one or more violent acts” and a court has found the defendant incompetent.³ Accordingly, the court ordered that Born be sent to Western State Hospital for treatment and competency restoration.

¶4 Mr. Born immediately filed a habeas corpus petition in superior court, arguing that the State had not proved that the facts contained in the police incident report supported the trial court’s determination that he had been charged with a violent act.⁴ The commitment order was stayed pending the hearing on the petition for the writ. At the hearing, the parties agreed that the superior court could proceed based on the facts stated in the police incident report. The superior court held that under either a preponderance of the evidence standard or a clear and convincing standard the pending charge alleged a violent act as defined by RCW 10.77.010(21). The court denied the application for a writ and lifted the stay. Mr. Born was transferred to Western State Hospital.⁵

¶5 Mr. Born appealed. The Court of Appeals initially noted the parties’ dispute about whether the issues raised were moot, given that Born’s commitment for competency restoration had ended, and concluded that even if the case was moot, review was appropriate because the issues raised involved matters of continuing and substantial public interest. Born v. Thompson, 117 Wn. App. 57, 63, 69 P.3d 343 (2003). The Court of Appeals affirmed the superior court’s denial of the writ, holding that the standard of proof is by a preponderance of the evidence and the evidence established that Born was charged with a violent act.

Analysis

¶6 RCW 10.77.090(1)(d)(i) does not contain a standard of proof. Mr. Born argues that to satisfy due process concerns the standard of proof the State must meet under the statute is proof by clear and convincing evidence.⁶ We agree.

¶7 Determining the standard of proof that applies for civil commitment is a due process inquiry that requires a court to balance the interests at stake and consider the risk of an erroneous decision:

In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions.

Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979) (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)). As the United States Supreme Court observed, the function of a standard of proof for due process purposes is “to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ ” Addington, 441 U.S. at 423 (quoting In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (Harlan, J., concurring)). “In cases involving individual rights, whether criminal or civil, ‘[t]he standard of proof. . . reflects the value society places on individual liberty.’ ” Addington, 441 U.S. at 425 (alteration in original) (quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir. 1971) (Sobeloff, J., concurring in part, dissenting in part)).

¶8 The Court noted that it had used the clear and convincing standard to protect particularly important individual interests in civil cases. Addington, 441 U.S. at 424. The Court held that a clear and convincing standard of proof applies to indefinite involuntary civil commitment proceedings and rejected the preponderance standard because the individual interests at stake were of such weight and gravity that the state had to justify confinement by a more substantial standard of proof. Id. at 427.

¶9 We have also applied the balancing test of Mathews when determining what standard of proof is required to satisfy procedural due process concerns in involuntary commitment proceedings. See, e.g., In re Det. of LaBelle, 107 Wn.2d 196, 221, 728 P.2d 138 (1986) (the preponderance standard satisfies due process for a 14-day involuntary civil commitment under RCW 71.05.240); Dunner v. McLaughlin, 100 Wn.2d 832, 839, 843, 676 P.2d 444 (1984) (as a matter of due process, RCW 71.05.310’s 90-day civil commitment proceeding requires proof by clear, cogent, and convincing evidence).

¶10 Turning first to the individual interests at stake, without question a “commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Addington, 441 U.S. at 425. Under RCW 10.77.090(1)(d)(i), an individual charged with a misdemeanor that is a violent act may be committed for up to 29 days (evaluation and mental health treatment and restoration of competency time combined).⁷ Further, the individual may be forced to spend time in jail awaiting space at the appropriate institution. See Weiss v. Thompson, 120 Wn. App. 402, 85 P.3d 944, review denied, 152 Wn.2d 1033 (2004). In addition, committing an individual for mental health treatment may give rise to adverse social consequences due to the stigma associated with civil commitment.

¶11 As to the governmental interests, at the time the provisions for commitment of misdemeanant defendants were added to RCW 10.77.090 the legislature noted the goals of “[increasing public safety” and making decisions under chapter 10.77 RCW “based on a person’s current conduct and mental condition rather than the classification of the charges.” RCW 10.77.2101 (Laws of 1998, ch. 297, § 46).⁸ Another governmental interest at stake is the interest in prosecution of misdemeanors, an interest that is obvious given RCW 10.77.090(1)(d)(i) ’s purpose of restoring the misdemeanant defendant to competency to stand trial.

¶12 The first of these interests, the interest in public safety, must be considered in light of the fact that even if competency is restored, the potential penalties if the individual is found guilty of a misdemeanor are relatively light. Thus, detention for treatment and restoration of competency under RCW 10.77.090(1)(d)(i) may have little relative effect in providing for public safety. Moreover, where an individual poses a danger to the public as a result of mental illness, the State has the option to seek involuntary commitment under the civil commitment statutes in chapter 71.05 RCW as an alternative course for protecting the public.

¶13 As to the interest in prosecuting misdemeanors, the United States Supreme Court recently stated in regard to restoring a defendant to competency through administration of antipsychotic drugs that “[t]he Government’s interest in bringing to trial an individual accused of a serious crime is important.” Sell v. United States, 539 U.S. 166, 180, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003). Implicit in this statement is the premise that the relative importance of the governmental interest in prosecuting those charged with crimes correlates to the seriousness of the crime. The government simply does not have the same interest in prosecuting misdemeanant defendants as it does in prosecuting defendants charged with felonies.⁹ For this reason, we do not agree with the State that the preponderance standard strikes the proper balance in the case of those charged with misdemeanors based upon the legislature’s establishment of the preponderance standard in RCW 10.77.090(3) for those individuals incompetent to stand trial who are charged with felonies.¹⁰

¶14 The penalties that may be imposed are also relevant to the State’s interest in prosecuting misdemeanors and in balancing all of the interests at stake. Here, for example, it bears noting that the charged misdemeanor, a simple misdemeanor under the county code, is punishable only by a maximum fine of $1,000 or a jail sentence not to exceed 90 days, or both. KCC 28.96.010(B)(7), .410, .450. Thus, one charged with the offense at issue here could spend 29 days in mental health evaluation and care for a crime that carries only a 90 day jail term, at most.

f 15 The individual liberty interest at stake here weighs more heavily in the balance than the governmental interests in public safety and prosecution of misdemeanors.

¶16 Turning to the risk of an erroneous decision, once the individual is found incompetent to stand trial the only additional matter that must be established in the case of a misdemeanor is that there is a pending charge against the defendant for a violent act. WTien all that is required is a pending charge of a misdemeanor that involves a violent act, the risk of an erroneous deprivation of liberty is significant. Here, for example, the “proof” consists solely of a one-paragraph police report, based only on the statement given by the bus driver.

¶17 Further, the risk of an erroneous deprivation is appreciably greater here than in LaBelle, which the State relies upon for the proposition that the clear and convincing standard is required only for lengthy civil commitments. In LaBelle, one of the appellants contended that the preponderance standard of proof used at his 14-day civil commitment hearing violated due process. Relying on Addington, he argued that the standard of proof for 14 days of involuntary commitment under RCW 71.05.240 should be the clear, cogent, and convincing standard required for 90-day commitment proceedings under RCW 71.05.310. This court first noted the individual interest — “the significant deprivation of liberty and the adverse social consequences to the individual engendered by involuntary commitment.” LaBelle, 107 Wn.2d at 221. This interest is the same interest identified in Addington. The court next identified the State’s “interest under its police and parens patriae powers in protecting the community against dangerously disturbed individuals and in providing care to its citizens who are unable, because of mental illness, to care for themselves.” Id. These are the same interests identified in Addington, 441 U.S. at 426.

¶18 The court in LaBelle then said that the preponderance standard satisfies due process given that a probable cause hearing is required within 72 hours in order to involuntarily commit an individual for 14 days. LaBelle, 107 Wn.2d at 221-22. Under RCW 71.05.240, involuntary commitment can be ordered only if the court finds from the evidence presented at the probable cause hearing that “as the result of [a] mental disorder” the individual “presents a likelihood of serious harm,” or “is gravely disabled.” In LaBelle the court observed that the probable cause hearing protects the individual’s liberty interest by assuring prompt review following the initial 72-hour evaluation and treatment period. Id. at 222. The government’s parens patriae interest is protected by the preponderance standard at the probable cause hearing because this standard increases the probability that those remaining in serious need of treatment beyond 72 hours will continue to receive short term treatment until a more formal 90-day commitment hearing under RCW 71.05.310 can be held. Id. The court said that a higher standard of proof would create an unreasonable barrier to short term involuntary commitments. The court reasoned that given that the probable cause hearing is required within 72 hours if the State wants to detain the individual for a longer period, the ability to obtain the necessary evidence in such a short period would be hampered by a higher standard of proof. Id. The court then noted the numerous procedural safeguards at the probable cause hearing which adequately lessened the risk of an erroneous deprivation under the lower preponderance standard of proof. Id.

¶19 In urging that LaBelle provides that a clear and convincing standard applies only in the case of indefinite commitment, the State overlooks the analysis in the case, including the importance attributed to the probable cause hearing under RCW 71.05.240 and its role in protecting the interests at stake, including the individual’s liberty interest, and in reducing the risk of an erroneous deprivation of the individual’s liberty interest.¹¹ In the case of commitment for mental health treatment and competency restoration under RCW 10.77.090(1)(d), there is no comparable hearing and no determination of current dangerousness or grave disability.

¶20 The State also contends, however, that the preponderance standard applies under State v. Wilcox, 92 Wn.2d 610, 600 P.2d 561 (1979), which the State characterizes as establishing the standard for criminal commitment cases. In Wilcox, the standard of proof for involuntary commitment of felony defendants acquitted by reason of insanity was at issue, and the court held that the preponderance of the evidence standard applies. However, Wilcox does not control this case for reasons given in Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983), also a case involving the standard of proof for committed of insanity acquittees.

¶21 Like this court did in Wilcox, the United States Supreme Court held in Jones that the clear and convincing standard of Addington does not apply in the context of commitment of an insanity acquittee. The Court noted that in Addington it had found the clear and convincing standard appropriate in light of the risk of an erroneous decision, given that in the case of civil commitment a whole range of abnormal behavior might be perceived by some as symptomatic of a mental or emotional disorder where it in fact fell within the range of generally acceptable conduct. Jones, 463 U.S. at 366-67 (citing Addington, 441 U.S. at 426-27). “In view of this concern, the Court deemed it inappropriate to ask the individual ‘to share equally with society the risk of error.’ ” Jones, 463 U.S. at 367 (quoting Addington, 441 U.S. at 427). However, in the case of automatic commitment of an insanity acquittee under the District of Columbia’s statutes relevant in Jones, commitment follows only if the “acquittee himself advances” the defense of insanity and proves the criminal act was a result of mental illness, and, more importantly, risk of commitment for mere idiosyncratic behavior is eliminated by proof that the acquittee committed the criminal act. Jones, 463 U.S. at 367; see State v. Platt, 143 Wn.2d 242, 252, 19 P.3d 412 (2001) (those subject to commitment as insanity acquittees have been found to have committed, under the beyond a reasonable doubt standard, an act that would have resulted in a criminal conviction but for their insanity). Thus, the risk of an erroneous decision is less than in the case of the involuntary civil commitment at issue in Addington, and it is unnecessary to demand the same standard of proof. Jones, 463 U.S. at 367.

¶22 Moreover, a defendant on trial for a felony who raises an insanity defense is necessarily competent to stand trial and possesses the capacity to participate in his or her own defense. See In re Pers. Restraint of Fleming, 142 Wn.2d 853, 864-65, 16 P.3d 610 (2001) (because an incompetent person may not be tried for a crime, he cannot seek acquittal on the grounds of insanity while the incapacity continues). Under RCW 10.77.090(1)(d)(i), in contrast, the defendant must be found to be incompetent, i.e., he or she “lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense.” RCW 10.77.010(14). The incompetence of the defendant thus may impede investigation of whether he or she engaged in a violent act because the defendant is unable to help challenge the State’s claims about the alleged conduct.¹²

¶23 Unlike the case of insanity acquittees, the individual committed for restoration of competence under RCW 10-.77.090(1)(d)(i) does not “prove” the requisites for commitment. Thus, the lessened risk of an erroneous deprivation of liberty that the Court found in Jones does not exist in the case of the individual who is charged only with a qualifying misdemeanor and who is not competent to stand trial.

¶24 Finally, an insanity acquittee is not subject to commitment in any event unless there is a determination made that he or she is a “substantial danger to other persons or . . . presentís] a substantial likelihood of committing criminal acts jeopardizing public safety or security unless kept under further control by the court or other persons or institutions.” RCW 10.77.010(5). There are no similar determinations required before committing a misdemeanant defendant for competency restoration.

¶25 Given the level of risk of an erroneous deprivation of liberty and given that the individual interests weigh heavily against the governmental interests, the clear and convincing standard of proof applies. As the United States Supreme Court said in Addington, 441 U.S. at 427, “[t]he individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.”

¶26 Finally, on the matter of the standard of proof, the dissent repeatedly and incorrectly suggests that competency proceedings in general must involve, and Mr. Born’s in particular did involve, a determination of future dangerousness equivalent to that required for civil commitment under RCW 71.05.240 or commitment as an insanity acquittee under RCW 10.77.010(5). This is absolutely not true. An opinion as to dangerousness is required, RCW 10.77.060(3)(f), and the psychologist’s opinion in this case was only that Mr. Born presented a greater than average risk than would a person in the normal population. The dissent misrepresents the law and the record.

¶27 Mr. Born next contends that the stipulated facts do not establish that he was charged with a violent act. The State originally argued that this issue and the issue concerning the standard of proof are moot issues, but then withdrew this argument and urged this court to review this case, as the Court of Appeals did, in light of the public interest in the issues. Cf., e.g., In re Pers. Restraint of Meyer, 142 Wn.2d 608, 615, 16 P.3d 563 (2001) (a personal restraint petition may be used to challenge unlawful state action, even if the issues raised are moot at the time of review, where matters of continuing and substantial importance are involved).

¶28 While we agree that the standard of proof issue involves a matter of continuing substantial public interest, we do not agree that this case is moot. RCW 7.36.010 provides that “[e]very person restrained of his liberty under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of the restraint.”¹³ In Monohan v. Burdman, 84 Wn.2d 922, 925, 530 P.2d 334 (1975),¹⁴ the court determined that potential adverse consequences of canceling a tentative parole release date were “sufficiently significant [adverse] ‘collateral consequences’ to retrieve” the petition for a writ of habeas corpus “from the ‘limbo of mootness,’ ” even though the petitioner had been released on parole after his petition was filed. Among such effects, the court said, “[i]t is not unlikely that... a future sentencing judge, in the event of an infraction of [the] law, might well consider the rescission of his initial parole release date as a factor mitigating against continued parole or possible probation.” Id. at 925.

129 As Mr. Born argues, the determination that he was charged with a violent act has potential collateral consequences sufficient to constitute restraint under RCW 7.36.010. The trial court found that Mr. Born was charged with a violent act, and this determination was affirmed by the superior court and the Court of Appeals. A violent act is defined in relevant part as “behavior that... if completed as intended would have resulted in” or “was threatened to be carried out by a person who had the intent and opportunity to carry out the threat and would have resulted in . . . nonfatal injuries.” RCW 10.77.010(21).

¶30 Under RCW 10.77.090(1)(d)(i)(A)(II), (B), and (C), an individual who is charged with a misdemeanor and has “been previously found incompetent under this chapter . . . with regard to an alleged offense involving .. . threatened . . . physical harm to a person” and who is found by a court to be incompetent may be committed for mental health treatment and evaluation. Without exploring the full extent of the meaning of threatened physical harm as used in RCW 10.77.090(1)(d)(i)(A)(II), it is apparent that at the least it includes the relevant portion of the definition of “violent act” under RCW 10.77.010(21) quoted above and applicable here.

¶31 Thus, if Mr. Born is charged with a misdemeanor in the future, and is found incompetent, the statutes direct that he must be committed for competency restoration based on the determination made in this case that he was charged with a violent act.¹⁵ Under their plain language, the statutes do not require a determination that the future charge itself be a charge of a violent act. Thus, the conclusion that Mr. Born was charged with a violent act in this case may have the significant potential adverse consequence of future commitment for competency restoration if he is charged with another misdemeanor.¹⁶ Accordingly, by analogy to Monohan, Mr. Born is still sufficiently restrained of his liberty to retrieve his petition from the “limbo of mootness.” This case is not moot. Cf In re Pers. Restraint of Mines, 146 Wn.2d 279, 284, 45 P.3d 535 (2002) (confirming the reasoning in Monohan, but deciding the issues raised in the personal restraint petition on the basis they were of substantial and continuing public interest); In re Pers. Restraint of Davis, 142 Wn.2d 165, 170 n.2, 12 P.3d 603 (2000) (noting the court had previously denied a motion for dismissal of the personal restraint petition because the petitioner was no longer incarcerated or under state supervision, observing that a conviction has potential adverse consequences such as an increased sentence under a recidivist statute for a future offense and the social stigma associated with a criminal conviction); In re Pers. Restraint of Powell, 92 Wn.2d 882, 887, 602 P.2d 711 (1979) (“release from confinement is no longer the sole function of the writ of habeas corpus”; “an unlawful conviction can serve as a restraint on liberty due to collateral consequences” such as the effect on one found to be an habitual offender, the effect on the parole process and potential effect on future minimum sentences (under the former sentencing scheme), the creation of difficulties for one trying to reestablish himself or herself in society on release from prison, and the stigma and burden that an invalid sentence imposes regardless of any relationship to any other sentence).

f 32 The State, however, has cited state and federal cases for the proposition that habeas relief is not appropriate based on “[speculative theories regarding future collateral consequences.” Br. of Resp’t at 13. Two of the cases are United States Supreme Court cases concerning the federal habeas statutes. Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998); Maleng v. Cook, 490 U.S. 488, 109 S. Ct. 1923, 104 L. Ed. 2d 540 (1989). However, the federal statutes require the petitioner to be “in custody.” 28 U.S.C. §§ 2241, 2254. Neither chapter 7.36 RCW nor the Rules of Appellate Procedure relating to personal restraint petitions contain “in custody” language. RCW 7.36.010; RAP 16.4(b) (the rule expressly refers to restraint other than confinement); see Meyer, 142 Wn.2d at 615 (noting that federal habeas statutes differ from state rules concerning personal restraint petitions because the federal statutes require the petitioner to be “in custody”).

¶33 The State also cites In re Personal Restraint of Paschke, 80 Wn. App. 439, 909 P.2d 1328 (1996). There, the court held that the possibility of future confinement as a sexually violent predator is a collateral consequence of pleading guilty to prior crimes that a trial court has no duty to advise about at the time of the guilty plea. Id. at 444. The case turned on the validity of the prior guilty pleas and whether the petitioner had adequately been advised of the consequences of pleading guilty.

¶34 Finally, the State cites Proll v. Morris, 85 Wn.2d 274, 534 P.2d 569 (1975). The court there said that “[t]he question on an application for a writ of habeas corpus is the legality of detention, and the remedy where detention is held illegal is release” and that “the writ will not issue where it can have no effect on the petitioner’s custodial status.” Id. at 277. These statements do not state the present function of the writ of habeas corpus. As noted, “release from confinement is no longer the sole function of the writ of habeas corpus.” Powell, 92 Wn.2d at 887.

¶35 The State also contends that Mr. Born is not presently restrained because a future court would have to determine in the first instance whether commitment for competency restoration would be appropriate in the event Mr. Born was charged with a misdemeanor in the future and was found incompetent to stand trial. The problem is, however, that the statutes on their face contemplate that the findings in this case of incompetency with regard to the charge of a violent act would negate any need to determine whether the future charge involved a violent act in order to commit an incompetent defendant restoration of competency to stand trial on the future misdemeanor charge.

¶36 Mr. Born is sufficiently under present restraint to seek habeas relief from the superior court’s finding that the pending charge in this case constituted a violent act.

f 37 Accordingly, we turn to the question whether, under a clear and convincing standard, the facts stated in the incident report establish that Mr. Born was charged with a violent act. The superior court found that Born “intended to raise his fist. From this conduct, the court concludes that Mr. Born did intend the act of striking the driver, which, if completed, presumably would have resulted in fatal or nonfatal injury.” Finding of Fact 4, CP at 19.

¶38 Initially, we note that in 2004 the legislature amended the definition of “violent act” in RCW 10.77-.010(21) by defining “nonfatal injuries” to mean “physical pain or injury, illness, or an impairment of physical condition. ‘Nonfatal injuries’ shall be construed to be consistent with the definition of ‘bodily inquiry,’ as defined in RCW 9A.04.110.” Laws of 2004, ch. 157, § 2(12).¹⁷ We need not, and therefore do not, decide whether this amendment is retroactive to Mr. Born’s case because, even if this new definition is applied, the incident report does not establish that Born was charged with a violent act. That is, the incident report does not contain proof under the clear and convincing standard that Mr. Born’s behavior, if completed as intended, or that threatened behavior, if carried out with intent and opportunity to carry out the threat, would have resulted in “physical pain or injury, illness, or an impairment of physical condition.” RCW 10.77.010(21).

¶39 As to Mr. Born’s intent, there is nothing beyond the bare facts of a cocked fist and Born’s statement that the driver would take him where he wanted to go and he was not getting off the bus. These facts do not clearly and convincingly lead to the inference that Mr. Born intended to strike the bus driver. And the stated subjective belief of the driver that he feared Born might hit him does not establish Mr. Born’s intent.

¶40 While the incident report says that Mr. Born was “seated at the front on the passenger side” of the bus, CP at 8 (emphasis added), there is no indication in which seat he was sitting and no indication how far he was from the bus driver.¹⁸ Also absent is evidence that Born made any move toward the driver or attempted to block the driver’s departure from the bus. To the contrary, the only evidence demonstrates that Mr. Born remained seated and did not approach the driver. There are no facts from which any inference could be drawn that when Born cocked his fist back that the driver was within reach and any “threatened” behavior could be carried out. Cf. State v. Murphy, 7 Wn. App. 505, 511, 500 P.2d 1276 (1972) (noting that one could be guilty of assault “if he raised his hand in anger with the apparent purpose to strike and sufficiently near to enable the purpose to be carried into effect” (emphasis added)).¹⁹

¶41 Thus, regardless of the definition of “nonfatal injuries” for purposes of RCW 10.77.090(21), the State failed to prove by clear and convincing evidence that Born was charged with a violent act.²⁰

¶42 Finally, the State relies on RCW 10.77.260 and RCW 10.77.092 to support its claim that Mr. Born was charged with a violent act. However, these statutes do not support the State’s argument. RCW 10.77.260 pertains to presumptions to be applied “[i]n determining whether a defendant has committed a violent act.” RCW 10.77.260(1). The presumptions apply with regard to a “past conviction, guilty plea, or finding of not guilty by reason of insanity.” RCW 10.77.260(1)(a). The statute appears relevant in determining whether the defendant has committed a violent act in the past for which he was convicted, pleaded guilty, or was found not guilty by reason of insanity. While the parties agreed to the facts in the police incident report for purposes of Mr. Born’s application for a writ of habeas corpus, the charge against him was ultimately dismissed because he remained incompetent to stand trial.

¶43 RCW 10.77.092 was enacted to respond to Sell and pertains to administration of involuntary medication for the purpose of competency restoration pursuant to RCW 10.77.090. The State believes the statute is relevant because it lists harassment as a “serious offense per se” in the context of competency restoration. RCW 10.77.092(1)(e). By its plain terms the statute only has application in determining whether a court may authorize involuntary medication to restore competency. There is nothing in RCW 10.77.092 that equates its list of serious crimes with the definition of “violent act” in RCW 10.77.010(21).

Conclusion

¶44 We hold that due process requires that the standard of proof under RCW 10.77.090(l)(d)(i) is proof by clear and convincing evidence. Here, the State did not prove by clear and convincing evidence that Mr. Born was charged with a violent act, and accordingly failed to establish the prerequisites for commitment for restoration of competency under the statute. Because Born is no longer committed under this statute, and the misdemeanor charge against him has been dismissed, the restraint he is presently under is the finding that he was charged with a violent act. Because that finding has significant potential collateral consequences should Mr. Born be charged with a misdemeanor in the future and found to be incompetent, we remand this matter to the superior court and direct that court to grant the petition for habeas corpus to the extent of vacating its finding of a violent act.

Alexander, C.J., and C. Johnson, Sanders, and Chambers, JJ., concur.

1 KCC 28.96.010(B)(7) prohibits a person on transit property from “[u]nreasonably disturbing others by engaging in loud, raucous, unruly, harmful, abusive or harassing behavior.”

2 “ ‘Incompetency means a person lacks the capacity to understand the nature of the proceedings against him or her or to assist in his or her own defense as a result of mental disease or defect.” RCW 10.77.010(14). RCW 10.77.060(l)(a) provides that

[w]henever ... there is reason to doubt [the defendant’s] competency, the court on its own motion or on the motion of any party shall either appoint or request the secretary to designate at least two qualified experts or professional persons, one of whom shall be approved by the prosecuting attorney, to examine and report upon the mental condition of the defendant.

3 RCW 10.77.090(l)(d)(i)(A)-(C) provides that a misdemeanant defendant must be committed for mental health treatment and restoration of competency if the defendant has “[a] history of one or more violent acts, or a pending charge of one or more violent acts; or ... been previously acquitted by reason of insanity or been previously found incompetent under this chapter or any equivalent federal or out-of-state statute with regard to an alleged offense involving actual, threatened, or attempted physical harm to a person,” and a court has found the defendant incompetent. (Emphasis added.)

4 Born did not challenge the determination that he was incompetent.

5 When Born was returned to district court following his stay at Western State Hospital, the district court determined that he was still incompetent. The court therefore dismissed the proceedings under RCW 10.77.090(1)(d)(ii), and ordered that Mr. Bom be held for 72 hours for evaluation by a county designated health professional pursuant to RCW 10.77.090(1)(d)(iii)(B), which authorizes a 72-hour detention and evaluation for purposes of filing a petition for civil commitment under chapter 71.05 RCW.

6 The State concedes that it bears the burden of proof under RCW 10.77.090.

7 RCW 10.77.090(l)(d)(i)(C) provides that placement for mental health treatment and restoration of competency “shall not exceed fourteen days in addition to any unused time of the evaluation under RCW 10.77.060.” RCW 10.77.060(1)(a) provides for commitment for a competency examination “for a period of time necessary to complete the examination, but not to exceed fifteen days.”

8 RCW 10.77.2101 specifically pertains to development of rules by the Department of Social and Health Services to define relevant records and reports under chapter 10.77 RCW accessible by criminal justice agencies.

9 The legislature amended the definition of the term “violent act” in RCW 10.77.010(21) in 2004 to respond both to the decision below in this case as to what the term “nonfatal injuries” means in RCW 10.77.010(21)’s definition of “violent act,” and to the decision in Sell v. United States, 539 U.S. 166, 123 S. Ct. 2174, 156 L. Ed. 2d 197 (2003). Laws of 2004, ch. 157 § 1. The legislature acknowledged that the Court’s decision in Sell “requires a determination whether a particular criminal offense is ‘serious’ ” both “in the context of competency restoration and the state’s duty to protect the public.” Laws op 2004, ch. 157, § 1. Whether the legislature’s amendment will meet the requirement of Sell is not an issue in this case. Nor has any challenge to the constitutionality of RCW 10.77.090(l)(d) itself been raised here, and we accordingly presume the constitutionality of the statute for the purpose of this decision. See Philippides v. Bernard, 151 Wn.2d 376, 391, 88 P.3d 939 (2004) (a statute is presumed constitutional; a challenging party has the heavy burden of establishing unconstitutionality).

10 RCW 10.77.090(3) states that “[i]f the court finds by a preponderance of the evidence that a defendant charged with a felony is incompetent, the court shall have the option of extending the order of commitment or alternative treatment” under RCW 10.77.090(l)(b) for 90 days.

11 The dissent cites the Court of Appeals opinion as enumerating “ ‘the explicit safeguards’ ” applicable to competency restoration commitments, and implies that they are as protective as the safeguards for civil commitment under RCW 71.05.240. Dissent at 781 n.29 (citing Born, 117 Wn. App. at 67 & n.20). They are not the same. Compare RCW 10.77.020 and RCW 10.77.060 (setting forth procedural requirements for competency evaluation) (referred to in RCW 10.77.090 and by the Court of Appeals in Bom) with RCW 71.05.240.

12 Because there is no requirement of a “violent act” in the case of defendants charged with felonies who are found to be incompetent, see RCW 10.77.090, this concern does not arise as to incompetent persons charged with felonies.

13 Because Mr. Bom’s petition for a writ of habeas corpus was filed in and decided by the superior court, the rules of appellate procedure applying to personal restraint petitions do not apply. See RAP 16.3(b); Toliver v. Olsen, 109 Wn.2d 607, 746 P.2d 809 (1987).

14 Monohan v. Burdman, 84 Wn.2d 922, 530 P.2d 334 (1975) was decided before the 1976 effective date of the Rules of Appellate Procedure governing personal restraint petitions filed in appellate courts.

15 No challenge to the constitutionality of RCW 10.77.090(1)(d)(i)(A)(II), (B), and (C) has been raised in this case, and therefore we presume the constitutionality of these statutory provisions for purposes of our analysis. See Philippides, 151 Wn.2d at 391.

16 The dissent complains that RCW 10.77.090(1)(d)(i)(A)(II) does not require a finding of “violent act” but instead refers to a prior finding of incompetency with regard to an offense involving threatened physical harm to a person. Dissent at 783. Then the dissent points out that Judge Mark Chow’s finding of incompetency was with regard to an alleged offense involving a threat of physical harm to the bus driver. Dissent at 783. That finding, however, was the finding establishing a violent act. Thus, as the dissent itself explains, the determination of a violent act in this case clearly falls within the statutory provision.

17 This amendment was made in part to respond to the Court of Appeals’ decision in this case that “nonfatal injuries” means “serious physical injuries.” Born v. Thompson, 117 Wn. App. 57, 72, 69 P.3d 343 (2003). See Laws of 2004, ch. 157, § 1.

18 While the Court of Appeals stated that the record “indicates that [Mr. Bom] was within striking distance” of the bus driver, Born v. Thompson, 117 Wn. App. 57, 73, 69 P.3d 343 (2003), the police incident report does not support this statement.

19 The dissent says that remand for further fact-finding is appropriate in order to determine whether Born was charged with a “violent act.” The State and Mr. Bom agreed to submit the habeas corpus petition to the superior court for resolution based on the facts in the police report. Given this agreement, remand is inappropriate.

20 We also have doubts that if Mr. Bom’s alleged conduct in this case is deemed sufficient to constitute a violent act, it would be, factually, a “serious crime” justifying commitment for competency restoration under Sell, 539 U.S. at 180.