In Re The Detention Of: David Wrathall - includes an Order
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of
DAVID WRATHALL;
STATE OF WASHINGTON,
Petitioner,
v.
DAVID WRATHALL,
Respondent.
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No. 63143-8-I
ORDER GRANTING
MOTION TO PUBLISH
The State of Washington filed a motion to publish the opinion entered March 22,
2010. The panel has considered the matter and determined that the motion should be
granted.
Now, therefore, it is hereby
ORDERED that the motion to publish the opinion is granted.
DATED this ______ day of ___________, 2010.
FOR THE PANEL:
No. 63143-8I/2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of )
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DAVID WRATHALL,
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Respondent.
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No. 63143-8-I
PUBLISHED OPINION
FILED: March 22, 2010
Ellington, J. — Sexually violent predator David Wrathall appeals the revocation
of his placement in a less restrictive alternative. He contends due process requires the
court to find he willfully violated the conditions of that placement before it can order
revocation. Because the revocation was based upon Wrathal’s failure to comply with
conditions necessary to ensure public safety, we disagree and affirm the revocation.
BACKGROUND
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.
In 1997, Wrathall stipulated to civil commitment as a sexually violent predator
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No. 63143-8I/3
(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).
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.1 While living at the SCTF, Wrathall was subject to 24-hour staff
supervision and electronic monitoring. He was prohibited from leaving the facility
except upon prior approval and under the supervision of SCTF staff or another
“approved monitoring adult,” who was required to maintain visual contact with Wrathall
at all times.2 He was also required to participate in sex offender treatment with Lang
Taylor, a certified sex offender treatment provider, and to comply with all treatment
conditions.
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.
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.”3 The State moved to modify Wrathall’s conditional
1
RCW 71.09.250.
2
Clerk’s Papers at 170.
3
Id. at 338.
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release order to substitute Dr. Myrna Pinedo as Wrathall’s sex offender treatment
provider. The court granted the State’s motion.
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.”4
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
community and children safe if he found himself lonely, angry and frustrated upon
unconditional release. Wrathall indicated he would try to improve his mood by
consuming beer, hard alcohol, and drugs, and if that did not help, he would then “look
for a kid.”5 Based in part on these comments, Pinedo reported in August 2008 that
Wrathall “is not amenable to treatment at this time” and “is not currently ready to be
involved in transition back into the community.”6
4
Id. at 96.
5
Ex. 3.
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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 CCO
arrested him and returned him to the SCC.
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.”7 After a hearing, the court revoked the LRA. Wrathall appeals.
DISCUSSION
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.
The due process clause prohibits deprivation of life, liberty, or property without
due process of law.8 Thus, “[t]he threshold question in every due process challenge is
whether the challenger has been deprived of a protected interest in life, liberty, or
6
Ex. 5; Clerk’s Papers at 136.
7
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.”).
8
U.S. Const. amend. XIV, § 1.
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property.”9
Relying on In re Detention of Bergen, 10 the State contends Wrathall has no
protected liberty interest in his LRA.11 In Bergen, we held that “the due process clause
does not create a liberty interest in a conditional release to a less restrictive alternative
because an SVP offender does not have a liberty interest in being released before a
court determines that the SVP is entitled to such a release.”12 Here, a court had
already determined Wrathall was entitled to conditional release and he was already
enjoying the relative liberty such placement affords. Wrathall was able to socialize with
friends and family in the community, attend worship services in a church of his own
choosing, and pursue employment and educational opportunities in the community.
Though his liberty was significantly curtailed by numerous conditions, this
conditional liberty is analogous to that enjoyed by those on parole.13 The United States
Supreme Court has long recognized that parolees are entitled to procedural due
process when faced with revocation.14 Like a parolee, an SVP on conditional release
enjoys liberty that, while “indeterminate,” requires at least minimal due process
9
In re Pers. Restraint of Pullman, 167 Wn.2d 205, 211–12, 218 P.3d 913 (2009).
10
146 Wn. App. 515, 195 P.3d 529 (2008).
11
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).
12
Id. at 534 (emphasis added).
13
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.”).
14
Id.
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protections in the face of revocation.15
The question here is whether those due process protections require a finding of
willful violation.
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,16 the court revoked an offender’s SSOSA
after he violated the conditions of his suspended sentence by visiting a food bank
located on the grounds of an elementary school.17 McCormick argued due process
required the State to prove a willful violation of community custody conditions before
revoking his suspended sentence.18 The court rejected his claim after considering
several factors, including “‘the nature of the individual interest affected, the extent to
which it is affected, the rationality of the connection between the legislative means and
purpose, [and] the existence of alternative means for effectuating the purpose.’”19
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.20 The court emphasized that
15
Id.
16
166 Wn.2d 689, 213 P.3d 32 (2009).
17
Id. at 696.
18
Id. at 697.
19
Id. at 700 (alteration in original) (quoting Williams v. Illinois, 399 U.S. 235,
260, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970)).
20
Id. at 702–03.
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requiring the State to prove a willful violation would lead to dangerous situations:
“Regardless of McCormick’s intent, if he frequents areas where minor children are
known to congregate, he would pose a danger to those minors.”21 Requiring the State
to prove a willful violation before revoking McCormick’s SSOSA would thus endanger
society by allowing him “to be repeatedly in close proximity to minors and face no
punishment because he did not know minors congregated there.”22
Wrathall argues his case is unlike McCormick because, unlike the offender in
that case, he poses no “realistic threat to children in the community”23 since his LRA
mandates continuous monitoring and other security measures designed to make it
impossible for him to reoffend. Inherent in this argument is the assumption that
Wrathall could continue to reside at the SCTF if his LRA had not been revoked. But
that is not the case. Before the State petitioned for revocation, DSHS had withdrawn its
permission for Wrathall to live at the SCTF based upon his failure to progress in
treatment and other concerning behaviors. Wrathall does not suggest there is any
other housing that will provide adequate supervision.24 Thus, the monitoring and
security measures upon which Wrathall relies to prevent an offense he concedes is
“otherwise-likely” 25 is no longer available.
21
Id. at 703.
22
Id.
23
Appellant’s Br. at 20.
24
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.”
25
Appellant’s Br. at 20.
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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 violation where the violation itself creates a threat
to society.26 Such is the case here.
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.27 Under RCW 71.09.098(1), this ground alone is sufficient for
revocation.
Affirmed.
WE CONCUR:
26
McCormick, 166 Wn.2d at 703; Bearden v. Georgia, 461 U.S. 660, 668 n.9,
103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
27
Clerk’s Papers at 141.
9
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