DocketNumber: No. 63143-8-I
Citation Numbers: 156 Wash. App. 1
Judges: Ellington, Leach, Schindler
Filed Date: 3/22/2010
Status: Precedential
Modified Date: 8/12/2021
¶1 Sexually violent predator David
Wrathall appeals the revocation of his placement in a less
BACKGROUND
¶2 Wrathall has a long history of sexual offenses against male children and teenagers, including convictions for kidnapping, indecent liberties, and attempted indecent liberties. He has been diagnosed with pedophilia, attracted to males, with features of sadism and bondage; paraphilia not other otherwise specified, rape of same sex individuals; personality disorder not otherwise specified (with antisocial and schizoid features); and borderline intellectual functioning.
¶3 In 1997, Wrathall stipulated to civil commitment as a sexually violent predator (SVP). Initially, the court ordered him into total confinement at the Special Corrections Center (SCC) on McNeil Island. In 2001, the court entered an agreed order placing Wrathall into a less restrictive alternative (LRA).
¶4 Wrathall’s LRA required him to reside at the Secure Community Treatment Facility (SCTF) on McNeil Island. The SCTF is operated by the Department of Social and Health Services (DSHS), and Wrathall may reside there only with permission of the DSHS secretary.
¶5 Wrathall’s LRA was revoked in 2002 following incidents of noncompliance with treatment and behavioral expectations. In 2003, Wrathall regained his LRA and was allowed to return to the SCTF.
¶6 In 2008, SCC Clinical Director Carey Sturgeon and SCC’s senior clinical group determined Wrathall was not making adequate treatment progress with Taylor and that Wrathall’s “lackadaisical efforts at treatment raise substantial concerns for community safety and for Wrathall’s treatment.”
¶7 The 2008 conditional release order contained conditions similar to the previous order, requiring Wrathall to reside at the SCTF, participate in treatment with Dr. Pinedo, and be subject to 24-hour staff and electronic monitoring with global positioning system technology. The order provided, “If Respondent is terminated from treatment with Dr. Pinedo, the Respondent shall, consistent with RCW 71.09.098 (2), immediately be taken into custody and a hearing scheduled to determine whether the Respondent’s LRA will be revoked.”
¶8 Dr. Pinedo began treating Wrathall in May 2008. Her reports to the court indicated consistent concerns over Wrathall’s treatment efforts, oppositional attitude, disturbing statements, and overall failure to progress despite having undergone years of treatment. For example, Wrathall said he dislikes being told what to do and, if unconditionally released, he would “maybe” molest a minor just because he was told not to do so. At another point, Pinedo asked Wrathall what he would do to keep the
¶9 Pinedo terminated Wrathall’s treatment and recommended he be returned to the SCC. Due to Wrathall’s lack of progress in treatment and other concerning behaviors, DSHS withdrew its permission for Wrathall to reside in the SCTF. Wrathall was thus out of compliance with the requirements of his conditional release that he be in treatment with Pinedo and reside in secure housing at the SCTF. Wrathall’s community corrections officer arrested him and returned him to the SCC.
¶10 The State filed a petition to revoke Wrathall’s LRA, alleging both noncompliance with LRA conditions and the need for “additional care, monitoring, supervision, or treatment.”
DISCUSSION
¶11 Wrathall contends the court violated his right to due process by revoking his conditional release for violating the terms of his LRA without first finding his violations were willful.
¶13 Relying on In re Detention of Bergen,
¶14 Though his liberty was significantly curtailed by numerous conditions, this conditional liberty is analogous to that enjoyed by those on parole.
¶15 The question here is whether those due process protections require a finding of willful violation.
¶16 Our Supreme Court recently considered this question in the context of revocation of suspended sentences under the special sex offender sentencing alternative (SSOSA). In State v. McCormick,
¶17 The court determined the State’s interest in “protecting society, particularly minors, from a person convicted of raping a child” was rationally served by imposing stringent conditions and greatly outweighed the offender’s interest in being punished only for willful conduct, especially given that the offender’s rights are already diminished because of his conviction for a sex offense.
¶18 Wrathall argues his case is unlike McCormick because, unlike the offender in that case, he poses no “realistic threat to children in the community”
¶19 Regardless of whether he intended to violate the conditions of his release, the reality is that Wrathall is now without treatment or secure housing. Even he acknowledges he poses a threat to the community under these circumstances. Due process requires no finding of willful
¶20 Further, Wrathall ignores the second basis for the court’s revocation: his need for “additional care, monitoring, supervision and treatment,” which is best supplied in a secure setting.
¶21 Affirmed.
ROW 71.09.250.
Clerk’s Papers at 170.
Id. at 338.
Id. at 96.
Ex. 3.
Ex. 5; Clerk’s Papers at 136.
Clerk’s Papers at 116; see former RCW 71.09.098(1) (2006) (“Any service provider submitting reports . . . , the supervising community corrections officer, the prosecuting attorney, or the attorney general may petition the court, or the court on its own motion may schedule an immediate hearing, for the purpose of revoking or modifying the terms of the person’s conditional release to a less restrictive alternative if the petitioner or the court believes the released person is not complying with the terms and conditions of his or her release or is in need of additional care, monitoring, supervision, or treatment.”).
U.S. Const, amend. XIV, § 1.
In re Pers. Restraint of Pullman, 167 Wn.2d 205, 211-12, 218 P.3d 913 (2009).
146 Wn. App. 515, 195 P.3d 529 (2008).
The State also contends Wrathall may not raise a due process challenge for the first time on appeal. Because Wrathall alleges a manifest error affecting a constitutional right, we address the merits of the claim. RAP 2.5(a).
146 Wn. App. at 526 (emphasis added).
Morrissey v. Brewer, 408 U.S. 471, 482, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) ("Subject to the conditions of his parole, [the parolee] can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life.”).
Id.
id.
166 Wn.2d 689, 696, 213 P.3d 32 (2009).
Id. at 697.
Id. at 700 (alteration in original) (internal quotation marks omitted) (quoting Bearden v. Georgia, 461 U.S. 660, 666-67, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983)).
Id. at 702-03.
Id. at 703.
Id.
Appellant’s Br. at 20.
RCW 71.09.092 prohibits release to an LRA absent a finding that “housing exists in Washington that is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, [and] to provide the level of security required by the court.”
Appellant’s Br. at 20.
McCormick, 166 Wn.2d at 703; Bearden, 461 U.S. at 668 n.9.
Clerk’s Papers at 141.