In the Matter of the Detention of: Michael A. McHatton

FILED
NOVEMBER 5, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN RE THE MATTER OF THE )
DETENTION OF ) No. 37423-8-III
)
MICHAEL A. MCHATTON, )
) PUBLISHED OPINION
)
)
FEARING, J. — Under RCW 71.09.090, must a civilly committed sexually violent
person identify, for the trial court, a distinct less restrictive alternative facility appropriate
for his care in order to defeat the State’s prima facie case of continued confinement in the
Special Commitment Center and in order to gain an evidentiary hearing for release from
the Special Commitment Center to a less restrictive alternative? We answer this
convoluted question in the negative. We remand the case to the trial court to conduct the
evidentiary hearing.
FACTS
Michael McHatton has a cognitive disability with an I.Q. of 65. McHatton also
has an extensive history of molesting young children.
By 1995, Michael McHatton had garnered at least five convictions for molesting
young children. That year, on pleading guilty to a charge of attempted child molestation
No. 37423-8-III
In re Detention of McHatton
in the first degree for molesting a two-year-old child, he received a sixty-six month
sentence. McHatton later confessed that he molested twelve additional unreported
victims between the ages of three and four.
In April 2002, Michael McHatton stipulated to civil commitment as a sexually
violent predator under chapter 71.09 RCW. The court entered an order committing
McHatton to the Department of Health and Human Services (DSHS) at the Special
Commitment Center on McNeil Island.
As part of Michael McHatton’s confinement, DSHS conducted annual evaluations
of McHatton’s mental condition as required by RCW 71.09.070. When performing the
evaluation, the DSHS professional must consider: (1) whether the person continues to
meet the definition of a sexually violent person, (2) whether conditional release to a less
restrictive alternative serves the committee’s best interest, and (3) whether the court can
impose conditions as part of the less restrictive alternative that adequately protects the
community. RCW 71.09.070(2). A less restrictive alternative facility, as its label
suggests, allows treatment in a setting less restrictive than total confinement at the
Special Commitment Center. RCW 71.09.020(6). After the annual evaluation, a
committed person is entitled to a show cause hearing, during which the trial court
determines if the person will receive an evidentiary trial regarding unconditional
discharge from the Special Commitment Center or conditional release to a less restrictive
alternative. RCW 71.09.090.
2
No. 37423-8-III
In re Detention of McHatton
In 2012, the trial court entered an order conditionally releasing Michael McHatton
from the Special Commitment Center to a less restrictive alternative placement, the
Secure Community Transition Facility (SCTF) in Pierce County. DSHS assigned Paula
van Pul, Ph.D., a State-certified sex offender treatment provider (SOTP), to provide
treatment to McHatton at the SCTF. While at SCTF, McHatton briefly returned to
confinement at the Special Commitment Center due to lying to staff.
On April 25, 2016, DSHS conducted its annual review of Michael McHatton’s
mental condition. As a result of progress in treatment, DSHS authorized McHatton to
submit a petition to reside in a community facility with even less restrictions than SCTF.
A community placement alternative allows the sexually violent detainee an opportunity
for more independence as he transitions into the community. The placement also allows
the committee an opportunity for employment. McHatton petitioned to be placed at
Aacres, a privately run less restrictive alternative facility in Spanaway. DSHS and
McHatton stipulated that the petition provided probable cause to set a trial to determine if
McHatton should be granted a conditional release to Aacres.
Before the trial on the 2017 petition for the less restrictive alternative at Aacres,
Dale Arnold, Ph.D., a licensed psychologist, prepared for DSHS an evaluation of Michael
McHatton’s mental condition and the viability of the proposed placement at Aacres. The
evaluation noted that McHatton suffers from a mild intellectual deficit, Tourette
syndrome, attention deficit hyperactivity disorder, and fetishistic disorder. The fetish
3
No. 37423-8-III
In re Detention of McHatton
entails sexual arousal from diapers and baby powder. Arnold concluded that a less
restrictive placement served McHatton’s best interest because his placement at the SCTF
limited his ability to build social supports for leisure activities and to gain employment.
On April 27, 2017, DSHS conducted its annual review of Michael McHatton’s
mental condition. Pursuant to the report, a less restrictive alternative in the community
served McHatton’s best interest, and conditions could be imposed that would adequately
protect the community.
In June 2017, the trial court entered an order of conditional release for Michael
McHatton to Aacres. One special condition to release prohibited McHatton from
possessing any pictures of children. Conditions incorporated into the order prohibited
McHatton’s possession of “pornographic materials.” Clerk’s Papers (CP) at 221. Due to
his pedophiliac inclinations, the order defined “pornographic material” as including any
images pertaining to children when used for sexual arousal. CP at 433-34.
The trial court attached the client service contract, between Aacres and DSHS for
Michael McHatton’s services, to the order of conditional release. The contract required
Aacres to afford staffing at a level sufficient to provide community safety and to meet the
requirements of McHatton’s court ordered conditions. The contract further obligated
Aacres to assist in developing, implementing, and supporting McHatton’s treatment plans
and goals and in reviewing McHatton’s progress in treatment. Aacres also agreed to
4
No. 37423-8-III
In re Detention of McHatton
provide a 1:1 staff to resident ratio in the house and on outings. McHatton moved to
Aacres in July 2017.
In March 2018, after Michael McHatton had resided at Aacres for eight months,
DSHS evaluator Kristin Carlson, Ph.D., conducted the 2018 annual review for DSHS.
Carlson’s review is the most recent DSHS annual evaluation for purposes of this appeal.
Carlson diagnosed McHatton with pedophilic disorder, fetishistic disorder, a personality
disorder, and a mild intellectual disability. The annual review documented that,
according to McHatton’s Community Corrections Officer (CCO) Tiffany Pate, McHatton
relapsed into a pattern of lying, and he broke facility rules at Aacres. Carlson noted that,
at SCTF, McHatton engaged in recreation activities such as bowling and visits to the
Nisqually Wildlife Refuge. Since living at Aacres, McHatton spent his free time playing
video games and performing chores. McHatton told Carlson that he followed Aacres
rules, but he conceded instances of lying to Aacres staff. Carlson concluded her March
28, 2018, evaluation with:
In my professional opinion, Mr. McHatton currently meets the
definition of a sexually violent predator. He suffers from a mental
abnormality and personality disorder which make him likely to engage in
predatory acts of sexual violence if not confined in a secure facility.
Furthermore, it is my professional opinion that Mr. McHatton’s current
conditions [at Aacres] continue to be appropriate and in his best interest at
this time. I hold these opinions to a reasonable degree of psychological
certainty.
CP at 715 (boldface omitted).
5
No. 37423-8-III
In re Detention of McHatton
On May 4, 2018, less than a year after Michael McHatton’s move to Aacres, a
room check by McHatton’s new CCO, Marcus Miller, revealed a trove of photographs
and sexual stories. The collection included seventy-six photos of minors and objects
related to minors and fifty-one handwritten storylines related to sexual fantasies with
minors. McHatton admitted to using the material, defined as pornography under his
treatment contract, for sexual arousal and gratification. McHatton further conceded that
he failed in his obligation to report his violations and deviant masturbation to his
treatment provider. He hid the images between other magazines and under his bed.
According to a notice of violation signed by his CCO, McHatton failed to employ tools or
treatment techniques he had learned and instead decided to “feed his deviance and
exacerbate his risk to the community.” CP at 435.
PROCEDURE
As a result of Michael McHatton’s violation of his conditions of release to Aacres,
the State of Washington moved to revoke McHatton’s less restrictive alternative and to
return him to McNeil Island’s Special Commitment Center. The State argued that the
less restrictive alternative at Aacres no longer served McHatton’s best interest nor
adequately protected the community.
Michael McHatton responded to the State’s motion by arguing that the court could
modify the conditions of his release to Aacres. He maintained that, with proper oversight
and support staff, he could succeed at his less restrictive alternative placement. He
6
No. 37423-8-III
In re Detention of McHatton
faulted Aacres and his former CCO Tiffany Pate for his violations. He agreed he should
not return to Aacres, but should be reassigned to another less restrictive alternative
facility.
Apparently, DSHS transferred Michael McHatton to the Special Commitment
Center pending his hearing on the revocation of his less restrictive alternative placement.
In the meantime, McHatton filed a petition for release from the Special Commitment
Center to a less restrictive alternative in accordance with his rights under
RCW 71.09.090(2). He noted that DSHS’ recent evaluation, performed by Kristin
Carlson in March 2018, recommended that he remain at a less restrictive alternative
facility. Because of the petition, the trial court scheduled a show cause hearing, pursuant
to RCW 71.09.090(2)(a), to determine the presence of sufficient grounds to conduct an
evidentiary trial on McHatton’s petition.
On August 24, 2018, the trial court conducted a combined hearing on the State’s
motion to revoke the less restrictive alternative and the show cause hearing on Michael
McHatton’s petition for release to a less restrictive alternative. Granting of the State’s
motion would confirm McHatton’s return to the Special Commitment Center. In turn, the
show cause hearing would determine whether the court would conduct a trial on
McHatton’s petition to return to a least restrictive alternative.
7
No. 37423-8-III
In re Detention of McHatton
Gerry Blasingame, Psy.D, a clinical psychologist who focuses on sexually violent
persons with intellectual disabilities, testified for Michael McHatton. Blasingame had
earlier prepared a report about McHatton’s violations of rules at Aacres.
During his testimony, Gerry Blasingame characterized Michael McHatton as a
“high risk, high need” offender. Report of Proceedings (RP) at 23. McHatton could not
independently manage himself in the community and needed assistance with
employment, medication, and sexuality.
During his testimony, Gerry Blasingame faulted Aacres for Michael McHatton’s
violations of the institution’s rules. Aacres did not provide the services promised.
Aacres prepared no behavioral support plan for McHatton, and Aacres did not provide the
one-to-one staffing demanded by the DSHS contract. The inadequate staffing afforded
McHatton the opportunity to act without supervision. According to McHatton, he, in the
presence of Aacres staff, purchased magazines from Fred Meyer. According to
Blasingame, Aacres failed to deliver day programs and vocational training. McHatton’s
spent most of each day on his own inside the home.
Gerry Blasingame also criticized sex offender treatment provider Paula van Pul,
Michael McHatton’s treatment provider, as falling below the standard of practice in the
field of sexual deviancy treatment. According to Blasingame, van Pul became
emotionally attached to McHatton, which attachment damaged her objectivity, resulted in
leniency, and positioned McHatton to reoffend. Van Pul failed to recognize that
8
No. 37423-8-III
In re Detention of McHatton
McHatton’s past interest in children remained a current interest. Van Pul never prepared
a written treatment plan. Blasingame blamed McHatton’s former CCO Tiffany Pate for
rarely searching McHatton’s room and for a lack of communication with Paula van Pul.
As a result, McHatton made little progress during his treatment at Aacres.
During his testimony, Gerry Blasingame acknowledged that Michael McHatton
intentionally violated the court’s less restrictive alternative conditions when possessing
literature and photographs of minors and when hiding his sexual urges and masturbation
from his treatment provider. Even so, Blasingame advised that the less restrictive
alternative placement should not be revoked. He recommended that Michael McHatton
be sent to a less restrictive alternative facility other than Aacres, rather than being
returned to the Special Commitment Center. McHatton needed a facility that would
provide frequent activities and vocational training. Blasingame proposed that DSHS
assign a new sex offender treatment provider for McHatton.
During the examination of Gerry Blasingame, the following exchange occurred:
Q. [By Michael McHatton’s counsel] In terms of what you are aware
what presently exists in Washington, is there a residential setting in the near
term that you think he could be safely managed in the community?
MS. CONSTANTINE: Objection as to relevance. This is about
whether the current LRA [less restrictive alternative] is in the best interest
to adequately protect the community. The question of whether facilities
might be available is not before the Court.
THE COURT: I don’t think that’s an appropriate question before the
Court today, Mr. Morrison [McHatton counsel].
MR. MORRISON: Okay. Just as an offer of proof, what I intended
to elicit is the availability of both the SCTF facility where Mr. McHatton
9
No. 37423-8-III
In re Detention of McHatton
was at, as well as the community placement with CIS [Community
Integrated Services] that presently exists in Washington at places where he
could be safely managed that this LRA wouldn’t need to be revoked for,
but I won’t go further. I respect the Court’s ruling.
RP at 45-46.
In a deposition presented to the court at the hearing, sex offender treatment
provider Paula van Pul expressed surprise at Michael McHatton’s ability to amass the
amount of pictures of children found in his room. Van Pul recommended that Michael
McHatton should return to SCTF, the original less restrictive alternative facility, where
staff possessed training to monitor sexual offenders.
The State objected to Michael McHatton’s petition for conditional release under
RCW 71.09.090. During the hearing on the petition, the State relied on the 2018 annual
review written by DSHS evaluator Kristin Carlson. According to the review, McHatton
continued to meet the definition of a sexually violent person. The State also contended
that McHatton had failed to propose a specific less restrictive alternative to the court,
which would meet the requirements for a conditional release. The State’s argument
impliedly imposed an obligation on McHatton to present evidence of a discrete less
restrictive alternative placement that would meet his needs and protect the public.
In support of his petition, Michael McHatton contended that the State held the
burden of proof to show that no less restrictive alternative would be appropriate for him.
He highlighted that the annual review written by Kristin Carlson stated that a less
10
No. 37423-8-III
In re Detention of McHatton
restrictive alternative was in his best interest and that adequate conditions could be
imposed. The State replied that Carlson conducted her review before McHatton’s
violations at Aacres and no DSHS evaluator had seen McHatton since.
The trial court first issued a ruling on the State’s motion to revoke Michael
McHatton’s less restrictive alternative. The trial court found that the State proved, by a
preponderance of evidence, that Michael McHatton violated his conditional release.
The trial court next denied Michael McHatton an evidentiary hearing on his
petition for conditional release. In conclusions of law, the trial court wrote:
9. The DSHS annual review concluded that the Respondent’s
ordered LRA was in his best interest and contained conditions adequate to
protect the community. However, the evidence before the Court as part of
the revocation hearing, along with the Court’s decision at that hearing,
provide prima facie evidence that the ordered LRA [less restrictive
alternative] is not in the Respondent’s best interest and conditions cannot
be ordered to adequately protect the community. Therefore, the State has
met its burden pursuant to RCW 71.09.090(2) and no trial shall be ordered.
10. At the hearing, there was no proposed LRA before the Court other than
the LRA [to Aacres] the Court ordered on June 09, 2017.
CP at 637 (emphasis added). With this latter conclusion of law, the trial court implied
that it only determined whether placement at Aacres served Michael McHatton’s interests
and protected the public, not whether any less restrictive alternative facility could do so.
LAW AND ANALYSIS
On discretionary review, Michael McHatton contends that the trial court erred in
refusing to order a conditional release trial at the conclusion of the show cause hearing.
11
No. 37423-8-III
In re Detention of McHatton
According to McHatton, the State failed in its prima facie burden of proof that no less
restrictive alternative was appropriate. According to McHatton, since the State failed to
meet this burden, he lacked any obligation to identify a proposed less restrictive
alternative in order to gain conditional release. We agree.
Chapter 71.09 RCW, the Sexually Violent Predator Act, controls this appeal.
Under the act, a sexually violent predator is:
any person who has been convicted of or charged with a crime of
sexual violence and who suffers from a mental abnormality or personality
disorder which makes the person likely to engage in predatory acts of
sexual violence if not confined in a secure facility.
RCW 71.09.020(18). After commitment to a treatment facility, a sexually violent person
undergoes written annual reviews to ensure he continues to meet the criteria for
confinement. RCW 71.09.070(1); State v. McCuistion, 174 Wash. 2d 369, 379, 275 P.3d
1092 (2012). On completion of that review, the committee may obtain court review as to
his continued commitment or as to release to less onerous conditions. RCW 71.09.090
governs court review and includes detailed provisions as to the respective burdens
imposed on the parties during various stages of the proceeding, including a show cause
hearing and a later evidentiary trial. Rather than quoting this lengthy, byzantine statute in
full, we quote relevant excerpts as we engage in our analysis.
At the initial show cause hearing, the State must present minimum evidence,
known as the probable cause standard, to support continued detainment at the Special
12
No. 37423-8-III
In re Detention of McHatton
Commitment Center. Michael McHatton argues that he is entitled to an evidentiary
hearing on his petition for conditional release because the State failed to meet its prima
facie burden under prong (B), the less restrictive alternative prong, of RCW
71.09.090(2)(b)(i) during the show cause hearing. This portion of the statute declares:
At the show cause hearing, the prosecuting agency shall present
prima facie evidence establishing: (A) That the committed person continues
to meet the definition of a sexually violent predator; and (B) that a less
restrictive alternative is not in the best interest of the person and conditions
cannot be imposed that adequately protect the community.
(Emphasis added.)
Michael McHatton does not contend that the State failed to submit evidence that
he continued to meet the definition of a sexually violent predator. We agree with
McHatton, however, that the State failed to present evidence that a less restrictive
alternative was not in McHatton’s best interest and could not protect the public. The
undisputed evidence established that the State failed in its burden.
We apply de novo review to the trial court’s legal conclusions that the State met
the probable cause standard. In re Detention of Petersen, 145 Wash. 2d 789, 799, 42 P.3d
952 (2002). While the probable cause standard is not stringent, the standard allows the
court to perform a critical gate keeping function. State v. McCuistion, 174 Wash. 2d 369,
382 (2012). At the show cause hearing, the trial court assumes the truth of the evidence
presented. State v. McCuistion, 174 Wash. 2d at 382. The trial court does not weigh and
measure asserted facts against potentially competing ones. In re Detention of Petersen,
13
No. 37423-8-III
In re Detention of McHatton
145 Wash. 2d 789, 797 (2002). The court must determine if the evidence asserted by the
proponent is adequate to support the intended proposition. State v. McCuistion, 174
Wash. 2d at 382.
Michael McHatton argues that the State did not satisfy its prima facie burden of
proof because no expert witness opined, on behalf of the State, that a less restrictive
alternative was unwarranted. McHatton contends that, absent such a witness, the trial
court must have improperly weighed and discounted the testimony of Gerry Blasingame,
who concluded that the court should permit a less restrictive alternative placement.
We disagree that the lack of a State expert witness automatically results in the trial
court weighing evidence if it concludes the State met its burden. Michael McHatton cites
In re Detention of Elmore, 162 Wash. 2d 27, 37, 168 P.3d 1285 (2007), a case in which the
Washington Supreme Court ruled that the trial court improperly weighed evidence at the
show cause hearing. The trial court had explicitly credited the State’s witnesses’
opinions over opinions of detainee Keith Elmore’s expert when determining whether
Elmore presented sufficient evidence to meet his initial burden of whether he had
changed.
Unlike in Detention of Elmore, Michael McHatton’s trial court issued no ruling
discrediting the testimony of Gerry Blasingame, McHatton’s expert. More importantly,
McHatton complains that the trial court weighed evidence in favor of the State when
determining whether the State met its burden of proof, not when assessing whether
14
No. 37423-8-III
In re Detention of McHatton
McHatton fulfilled his burden. When deciding whether the State met its burden at the
show cause hearing, the trial court may consider the State’s evidence even if it conflicts
with that of the testimony of the detainee’s expert.
Michael McHatton also contends that the State cannot meet its burden under
RCW 71.09.090(2)(b)(ii)(B)(iii) absent a testifying witness, let alone an expert witness.
We disagree. RCW 71.09.090 states that the State “may rely exclusively” on the required
annual report made by a DSHS evaluator. RCW 71.09.090(2)(b)(ii)(B)(iii).
Michael McHatton next contends that the trial court applied the wrong legal
standard when determining whether the State met its burden of proof of a prima facie
case to keep McHatton at the Special Commitment Center. Despite advocating to the
contrary before the trial court, the State now concedes the trial court adopted an incorrect
legal standard when addressing McHatton’s burden. The trial court only considered the
less restrictive alternative at Aacres to have relevance because no party had identified
another placement spot.
To repeat, RCW 71.09.090(2)(b)(i)(B) declares that the State must provide
evidence
that a less restrictive alternative is not in the best interest of the
person and conditions cannot be imposed that adequately protect the
community.
(Emphasis added.) Further in the burdensome statute, the language declares:
15
No. 37423-8-III
In re Detention of McHatton
(B) If the state produces prima facie evidence that a less restrictive
alternative is not appropriate for the committed person, then the state’s
burden under (b)(i)(B) of this subsection is met.
RCW 71.09.090(2)(b)(ii) (emphasis added). In both sections of the statute, the legislature
employs the indefinite article “a.” Thus, the State must show that no less restrictive
alternative placement would serve the committee’s bests interests and protect the public.
Use of the indefinite article “a” demonstrates that the less restrictive alternative involved
in the State’s prima facie case is undetermined. See Department of Ecology v. City of
Spokane Valley, 167 Wash. App. 952, 965, 275 P.3d 367 (2012).
Further provisions in the statute require at least one of the parties to submit to the
trial court a specific proposed less restrictive alternative. If the State fulfills the prima
facie case, the burden, at the show cause hearing, shifts to the detainee to:
Presents the court with a specific placement satisfying the
requirements of RCW 71.09.092.
RCW 71.09.090(2)(b)(ii)(B)(II) (emphasis added). In turn, should the court determine to
order a conditional release trial, the State must meet a higher burden and prove:
beyond a reasonable doubt that conditional release to any proposed
less restrictive alternative either: (i) Is not in the best interest of the
committed person; or (ii) does not include conditions that would adequately
protect the community.
RCW 71.09.090(3)(d) (emphasis added). The statute’s use of the phrases “a specific
placement” and “any proposed less restrictive alternative” illustrates that the legislature
meant to impose on the State a burden to show no less restrictive alternative, whether
16
No. 37423-8-III
In re Detention of McHatton
proposed or not, when it wrote “a less restrictive alternative” in RCW
71.09.090(2)(b)(ii)(B). When the legislature uses different words within the same statute,
we recognize that a different meaning is intended. Columbia Riverkeeper v. Port of
Vancouver USA, 188 Wash. 2d 421, 439, 395 P.3d 1031 (2017).
We observe that, although he need not have done so, Michael McHatton attempted
to give evidence of a proposed less restrictive alternative during the revocation and show
cause hearing. McHatton asked Gerry Blasingame to answer whether the SCTF was an
appropriate placement or whether other less restrictive alternative settings would suffice.
The trial court sustained the State’s objection to the question on relevancy grounds. Later
the State and the trial court faulted McHatton for failing to provide the evidence that
McHatton sought to supply but was prevented from supplying.
The State, despite now conceding that it advocated the wrong standard before the
trial court, requests that we affirm the trial court’s ruling. The State contends that it
presented prima facie evidence that no less restrictive alternative placement would
comply with the law. We disagree.
The most recent annual evaluation provided by the State opined that Michael
McHatton remained suitable for a less restrictive alternative placement. Although the
evaluator did not know of McHatton’s possession of child photographs and penning of
stories, she knew of McHatton’s pattern of lying and other rule violations at Aacres. The
State could have, but failed, to provide evidence that the possession of the photographs
17
No. 37423-8-III
In re Detention of McHatton
and the stories rendered all less restrictive alternatives inappropriate. McHatton’s expert
unequivocally opined that, even after the possession of pornography, a less restrictive
alternative served McHatton’s interests and could protect the public. The State never
discounted Gerry Blasingame’s testimony and never presented evidence that safeguards
could not protect the community. The State ignored the evidence that McHatton lived at
the SCTF, a less restrictive alternative facility, from 2012 to 2017.
CONCLUSION
Because the State failed to fulfill its burden of presenting some evidence of the
nonviability of any less restrictive alternative, we reverse the trial court and remand the
case for an evidentiary hearing on whether an alternative placement is appropriate.
_________________________________
Fearing, J.
I CONCUR:
______________________________
Pennell, C.J.
18
No. 37423-8-III
KORSMO, J. (dissenting in part) — I agree that “errors were made” and that the
existence of a prima facie case needs to be reconsidered under the appropriate standard,
but I disagree that we are the appropriate body to do the reconsidering. I also disagree
with the majority’s narrow reading of the evidence. If we were the appropriate body to
consider the question, I would conclude that the State made a prima facie showing that a
least restrictive alternative (LRA) is not appropriate at this time.
Normally when a trial court applies the wrong analysis to the evidence before it,
we remand to the trial court to do it over again under the appropriate standard. E.g.,
Dreiling v. Jain, 151 Wash. 2d 900, 907, 93 P.3d 861 (2004). The parties understandably
want us to resolve the issue here and now, but I do not think that prudent for a couple of
reasons.1 Appellate courts, of course, do not find facts. Thorndike v. Hesperian
Orchards, Inc., 54 Wash. 2d 570, 575, 343 P.2d 183 (1959). We invade the fact-finding
function of the trial courts when we act in such a manner. That is particularly the case
1
The State does not ask us to find facts, but to affirm on the basis of the
sufficiency of the evidence to support the implicit finding that Mr. McHatton was not an
appropriate LRA candidate at this time. RAP 2.5(a).
No. 37423-8-III
Detention of McHatton (Dissent)
when, as here, the trial court heard testimony and engaged in its own weighing of the
evidence at the revocation hearing.
A second reason not to undertake this function ourselves is the significant risk of
ruling on a moot issue and creating the possibility of a conflict in rulings. There should
have been subsequent annual reviews in both 2019 and 2020. Presumably the question of
an LRA would have arisen in one or both of those reviews. For all this court knows, Mr.
McHatton may have started a new LRA in 2019, but we, nonetheless, are ordering a new
hearing on the topic two years later. Similarly, it’s possible that an LRA has been
rejected once or twice since the 2018 hearing. I would leave this issue to the trial court in
the first instance since it can act on the basis of more current information than this court
can.
Since we apparently are weighing in on the topic, I agree that the evidence from
the revocation hearing permitted the trial court to determine that neither society nor Mr.
McHatton would benefit from an LRA at this time. He deceived the 2018 reviewer
except on those points that the staff could contradict him on. Understandably, the trial
court had no reason to give any credence to the review’s recommendation for a continued
LRA. The trial judge had considerably more accurate and current information on Mr.
McHatton than the reviewer had.
The testimony showed that Mr. McHatton lied to the reviewer about the extent of
his compliance with the requirements of the LRA and, instead, had failed completely. He
2
No. 37423-8-III
Detention of McHatton (Dissent)
knowingly violated every significant provision of the LRA, amassing pictures of
children, writing stories about them, using both materials for purposes of arousal and
gratification, and failing to turn to his treatment providers for assistance. These facts do
not show failure merely at his specific treatment plan. They show that he was not ready
to engage in any treatment and was unable to turn to professional help to assist in dealing
with his problems. The facts likewise strongly suggest that society did not benefit from
maintaining Mr. McHatton in an environment that allowed him to act on his fantasies
rather that obtain treatment for them. His efforts to blame the treatment provider for his
personal failure is additional evidence that the problem was with Mr. McHatton. The
evidence established that he was no longer a good candidate for an LRA because he was
not ready to handle the freedom offered by an LRA.
I would remand for a new show cause hearing under the appropriate standard and
permit the trial judge to confirm that no intervening court decisions have decided the
issue. Since the majority remands for an LRA trial, I respectfully dissent.
_________________________________
Korsmo, J.
3