In Re Detention Of: Darnell Mcgary, Petitioner V Dshs, Respondent - includes an Order
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Detention of:
No. 38257-1-II
DARNELL MCGARY,
Order
Publishing Opinion
and Correcting Caption
Appellant.
The court hereby amends the caption designation on the opinion filed on March 23, 2010,
to Darnell McGary as the Appellant.
Further, Respondent State of Washington moves this court for publication of the
unpublished opinion filed on March 23, 2010. The Court, having reviewed the State’s motion to
publish and Appellant Darnell McGary’s response to the motion, it is hereby
ORDERED that the final paragraph which reads “A majority of the panel having determined
that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public
record pursuant to RCW 2.06.040, it is so ordered.” is deleted. It is
ORDERED that the opinion will now be published.
DATED: this ________ day of May, 2010.
PANEL: Jj. Houghton, Hunt, Quinn-Brintnall.
FOR THE COURT:
____________________________________
PRESIDING JUDGE
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Detention of:
No. 38257-1-II
DARNELL MCGARY,
UNPUBLISHED OPINION
Respondent.
Houghton, P.J. — Darnell McGary appeals1 the trial court’s denial of his motion for a full
evidentiary hearing under RCW 71.09.090,2 the sexually violent predator (SVP) statute. He
argues that (1) the trial court impermissibly weighed evidence presented at his show cause
hearing, (2) he presented sufficient evidence to establish probable cause requiring a full
evidentiary hearing, and (3) RCW 71.09.090(4) violates due process as applied to him. We
affirm.
1
2
We granted McGary’s motion for discretionary review.
The legislature amended RCW 71.09.090 in 2009. Laws of 2009, ch. 409, § 8. None of the
amendments involve substantive changes affecting our analysis. Unless otherwise noted, we cite
to the current version of the statute. After the trial court commits an individual as an SVP to the
custody of the Department of Social and Health Services, the Department must annually review
whether the individual continues to meet the SVP definition or qualifies for release to a less
restrictive alternative. RCW 71.09.070. If the committed individual does not affirmatively waive
the right to petition for release as part of the annual review, the trial court must hold a show cause
hearing regarding the commitment. RCW 71.09.090(2)(a). At the show cause hearing, if either
the State fails to present prima facie evidence that the individual meets the SVP definition or does
not qualify for release to a less restrictive alternative or the individual establishes probable cause
that he no longer meets the SVP definition or qualify for release to a less restrictive alternative,
the trial court must order a full evidentiary hearing on these issues. RCW 71.09.090(2)(c), (3)(a).
FACTS
McGary is a convicted sex offender. In re Det. of McGary, 128 Wn. App. 467, 470,
116 P.3d 415 (2005).3 In 1988, he pleaded guilty to two counts of first degree rape, one count of
indecent liberties by forcible compulsion, two counts of first degree burglary, and one count of
second degree burglary. McGary, 128 Wn. App. at 470. He served approximately nine years’
incarceration. McGary, 128 Wn. App. at 470. While incarcerated, he committed more than 40
major infractions, including numerous threats to staff, and he suffered from paranoia and
delusions that prison officers were trying to kill him. McGary, 128 Wn. App. at 470.
In April 1998, before McGary’s scheduled prison release, the State filed a petition for his
civil commitment under chapter 71.09 RCW as a SVP. McGary, 128 Wn. App. at 470. The
State established probable cause, resulting in McGary’s commitment at the Special Commitment
Center (SCC) pending trial. McGary, 128 Wn. App. at 470. Because he refused to take
psychiatric medication to control his paranoid and schizophrenic behavior, his condition
deteriorated, and the Department of Social and Health Services (DSHS) transferred him to
Western State Hospital under chapter 71.05 RCW, the civil commitment provision. McGary, 128
Wn. App. at 470-71. As a result, in April 2000, the State dismissed its SVP petition without
prejudice. McGary, 128 Wn. App. at 471. After his condition stabilized in December 2000, the
State refiled the SVP petition. McGary, 128 Wn. App. at 472.
McGary then stipulated to probable cause and civil commitment under chapter 71.09
RCW. McGary, 128 Wn. App. at 473. Specifically, he stipulated that he suffers from
schizophrenia and an antisocial personality disorder. He also stipulated that his antisocial
3
McGary earlier appealed whether the SVP petition resulting in his commitment failed to allege a
“recent overt act” and whether the petition violated his guilty plea. McGary, 128 Wn. App. at
469. We affirmed his commitment. McGary, 128 Wn. App. at 469.
personality disorder “causes him serious difficulty controlling his sexually violent behavior,”
making him “more likely than not to engage in predatory acts of sexual violence if he is not
confined in a secure facility.”4 I Clerk’s Papers (CP) at 91. The trial court concluded that his
antisocial personality disorder is a “mental abnormality” under RCW 71.09.020(8). I CP at 92.
The stipulation allowed his placement into a less restrictive alternative in the SCC. McGary, 128
Wn. App. at 473. That less restrictive alternative proved unsuccessful when he stopped taking his
medications.
Since his civil commitment, DSHS has reviewed McGary’s case annually following RCW
71.09.070. In January 2008, Dr. Jonathan Allison evaluated McGary and determined that he
continues to suffer from schizophrenia, paranoid type, paraphilia, not otherwise specified
(nonconsent), and antisocial personality disorder.5
Dr. Allison’s report also indicated that McGary’s medication compliance and participation
in sex offender treatment through the years have been “inconsistent,” that such inconsistencies
contributed to a failed placement in a less restrictive alternative, and that he was “not participating
in any kind of sex offender treatment” at the time of the assessment. I CP at 148. Dr. Allison
noted that, although McGary currently took his schizophrenia medication, his thinking reflected a
“delusional network in which he works to undermine his own interest. For example, since he
4
The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders
(4th ed. 2000) (DSM-IV-TR) at 297-98, 685, lists schizophrenia as a psychotic disorder rather
than a personality disorder. Thus, McGary did not stipulate that his schizophrenia made him
unable to control his sexually violent behavior or increase his likelihood of engaging in predatory
acts of sexual violence.
5
Some disagreement exists about McGary’s paraphilia diagnosis. In 2002, Dr. Robert Seeri did
not believe that McGary suffered from paraphilia. But later evaluations found that McGary did
suffer from paraphilia.
believes he does not have a mental illness, he sets himself up to stop taking his medication.” I CP
at 145. Dr. Allison further noted McGary’s statement that he was taking his schizophrenia
medication only because his SCC doctor required it.
Dr. Allison concluded that McGary’s “delusional network is centered on one coherent
theme: if he does not have a mental illness, a personality disorder and a paraphilia, he does not
need to be at the [SCC]. This thereby demonstrates his inability to accurately evaluate his own
risk to the community at large.” I CP at 145.
McGary declined to be interviewed for Dr. Allison’s evaluation. Based on the results of
Static-99 and Minnesota Sex Offender Screening Tool-Revised, Dr. Allison opined that McGary
would likely reoffend if released into the community. Because McGary refused to participate in
treatment and did not believe he needed to take his medication, Dr. Allison said that he continued
to meet the SVP definition.
Because McGary did not waive his right to petition for release as part of his annual
review, on August 19, 2008, the trial court held a show cause hearing to determine whether he
continued to meet commitment criteria. To establish probable cause that he no longer met
commitment criteria, McGary presented Dr. Theodore Donaldson’s report, which addressed the
question of possible change through treatment only in its conclusion,
McGary no longer suffers from a paraphilic disorder (if he ever did) and that this
change could be due to any number of conditions, including his early participation
in treatment, including working on sexual autobiographies and relapse prevention
plans. While the research does not indicate that these activities have any known
relationship to recidivism, he has participated in treatment and he has apparently
changed as a result of something, whether it was the treatment or perhaps selfreflection.
III CP at 447.
McGary also moved to vacate his commitment order under CR 60(b)(3) and (11), based
on an alleged error unknown at the time of his commitment in the DSM-IV-TR’s paraphilia
definition. Dr. Michael First, a self-described editor of the DSM-IV-TR, gave a deposition in an
unrelated case and stated that in the DSM-IV-TR, the editors changed a diagnosis criterion for
paraphilia to a disjunctive “fantasies, sexual urges, or behaviors.” II CP at 257. He said that he
did not realize until later the impact this could have on wrongfully diagnosing paraphilias;
although a paraphilia diagnosis does not require a finding of all three factors (urges, fantasies, and
behaviors), it requires more than behavior. Dr. First never interviewed McGary or reviewed any
information about him.
The trial court refused to order a full evidentiary hearing, concluding that the State met its
prima facie burden and that McGary did not show a change in his condition or that release to a
less restrictive alternative was in his best interest. Faced with both a show cause hearing and a
CR 60 motion to vacate, the trial court also concluded that it “was not persuaded by
Dr. Donaldson’s” report. III CP at 497.
In its oral ruling, the trial court stated,
The deposition of Dr. First, I really don’t find very persuasive since, of course, he
knows nothing about Mr. McGary’s case. The potential, quote, unquote,
misdiagnosis because of the “and behaviors” instead of the “or behaviors” seems to
me is pretty speculative. Could there have been some mistake? Well, I don’t
know. Possibly there could have been, but I’m certainly not convinced that there
was.
Report of Proceedings (RP) at 26-27. McGary’s counsel interrupted to point out a statement by
Dr. Donaldson that McGary’s condition had changed or was in remission. The trial court refused
to change its finding and expressed concern that Dr. Donaldson had tailored his conclusion to
address the court’s concerns from an earlier review hearing.6 The trial court reiterated its
conclusion, stating, “I do not believe Mr. McGary has met his burden of proof. I think he’s
shown something to indicate that perhaps he doesn’t have the mental disorder at this time but not
enough to warrant an evidentiary hearing at trial.” RP at 32. The trial court also denied
McGary’s CR 60 motion as time-barred. McGary appeals.
ANALYSIS
Weighing Of Evidence
McGary first contends that the trial court improperly weighed the evidence when it stated
it was “not persuaded” by Dr. Donaldson’s report and that Dr. First’s deposition was not
persuasive and speculative. Appellant’s Br. at 6. The State counters that the trial court’s
comments were appropriate because (1) McGary presented some of this evidence in the context
of a CR 60(b) motion, (2) the trial court properly determined whether sufficient facts supported
probable cause, and (3) McGary invited any improper comments. The State’s reasoning
persuades us.
RCW 71.09.090 establishes the procedures through which the State may release an SVP
from custody. RCW 71.09.090(2)(a) provides for a show cause hearing to determine whether
probable cause exists to warrant a full hearing on whether the committed person’s condition has
so changed that “(i) He or she no longer meets the definition of [an SVP]; or (ii) conditional
release to a proposed less restrictive alternative would be in the best interest of the person and
conditions can be imposed that would adequately protect the community.”
Mere conclusory statements insufficiently establish probable cause. In re Det. of
Jacobson, 120 Wn. App. 770, 780, 86 P.3d 1202 (2004). In determining whether probable cause
6
Specifically, the trial court stated, “But if I were suspicious, I would think this addendum was
just drawn to address concerns at the last review.” RP at 30.
exists, a trial court may properly look beyond an expert’s stated conclusion to determine whether
sufficient facts support it. Jacobson, 120 Wn. App. at 780. But a trial court may not comment
on an expert’s credibility. Jacobson, 120 Wn. App. at 780-81.
McGary included Dr. First’s deposition in support of his CR 60(b) motion for a new trial.
CR 60(b) does not limit a trial court’s ability to weigh evidence. Therefore, the trial court
properly commented in this instance. But even if we considered Dr. First’s deposition as part of
McGary’s petition for a full evidentiary hearing, the trial court’s comments, when viewed in
context, indicate only its determination of the speculative nature of Dr. First’s testimony given his
complete lack of familiarity with McGary’s case. Thus, the trial court properly determined that
sufficient facts did not support using Dr. First’s deposition.7
Probable Cause
A. Schizophrenia
McGary next contends that he established probable cause requiring a full evidentiary
hearing by producing evidence that medication currently controls his schizophrenia. The State
counters that this evidence is irrelevant because (1) McGary’s antisocial personality disorder, not
his schizophrenia, was the basis for his commitment; and (2) because his medication controlled his
schizophrenia at the time of his commitment, such a current circumstance is not a relevant change
in his condition requiring a new trial. We agree with the State.
We review whether the evidence meets the probable cause standard de novo. In re Det. of
Petersen, 145 Wn.2d 789, 799, 42 P.3d 952 (2002). Probable cause to proceed to a full
7
But the trial court expressly stated its concern that Dr. Donaldson had tailored his conclusions in
his report to address the trial court’s concerns during McGary’s earlier review hearing. Although,
arguably, the trial court improperly commented on Dr. Donaldson’s credibility, this does not
affect our analysis.
evidentiary hearing exists if (1) the State fails to present prima facie evidence justifying the
continued commitment or (2) the committed person presents evidence that his or her condition
has “so changed” that he no longer meets the SVD definition or meets the requirement for release
to a proposed less restrictive alternative. RCW 71.09.090(2)(c); Petersen, 145 Wn.2d at 798-99.
RCW 71.09.090(3) governs such hearings. See RCW 71.09.090(3)(a)-(c).
In 2005, the legislature amended RCW 71.09.090 to add subsection (4). Laws of 2005,
ch. 344, § 2. The amendment’s legislative history discussed the legislature’s concern that recent
court decisions had subverted the “statutory focus on treatment,” and it reiterated the importance
of “prolonged treatment in a secure facility followed by intensive community supervision in the
cases where positive treatment gains are sufficient for community safety.” Laws of 2005,
ch. 344, § 1. It further noted, “These provisions are intended only to provide a method of
revisiting the indefinite commitment due to a relevant change in the person’s condition, not an
alternative method of collaterally attacking a person’s indefinite commitment.” Laws of 2005, ch.
344, § 1 (emphasis added). Former RCW 71.09.090 (2005) provided in relevant part,
(4)(a) Probable cause exists to believe that a person’s condition has “so
changed,” under subsection (2) of this section, only when evidence exists, since the
person’s last commitment trial proceeding, of a substantial change in the person’s
physical or mental condition such that the person either no longer meets the
definition of [an SVP] or that a conditional release to a less restrictive alternative is
in the person’s best interest and conditions can be imposed to adequately protect
the community.
(b) A new trial proceeding under subsection (3) of this section may be
ordered, or held, only when there is current evidence from a licensed professional
of one of the following and the evidence presents a change in condition since the
person’s last commitment trial proceeding:
....
(ii) A change in the person’s mental condition brought about through
positive response to continuing participation in treatment which indicates that the
person meets the standard for conditional release to a less restrictive alternative or
that the person would be safe to be at large if unconditionally released from
commitment.
(Emphasis added.)
Although McGary stipulated that he suffered from schizophrenia, the stipulation indicates
that his antisocial personality disorder was the “mental abnormality” forming the basis of his
commitment. I CP at 92. He presents no evidence of a relevant change in that disorder.
Moreover, medication controlled his schizophrenia at the time of his commitment. That
medication again controls his schizophrenia is not a relevant change in his mental condition
because his commitment trial proceeded under the plain language of former RCW 71.09.090(4)(a)
and (b)(ii). Rather, the danger his schizophrenia poses to the community appears to stem from his
reluctance to comply with his medication regimen without supervision. Indeed, the State
presented evidence that he would cease taking his medication once unsupervised. He presents no
evidence to the contrary and his argument fails.
B. Paraphilia
McGary further contends evidence that his paraphilia diagnosis was in error served to
establish probable cause requiring a full evidentiary hearing. The State counters that (1)
McGary’s antisocial personality disorder, not paraphilia, formed the basis of his commitment, and
(2) Dr. Donaldson’s report does not indicate a change in McGary’s paraphilia as a result of a
positive response to continuing participation in treatment. Again, we agree with the State.
We note that the basis of McGary’s commitment was his unchanged antisocial personality
disorder, not his paraphilia. Moreover, Dr. First’s deposition disputes the validity of McGary’s
original paraphilia diagnosis. Dr. First’s deposition is not evidence of a relevant change in
McGary’s mental condition due to continuing participation in treatment. Thus, without more, it is
an impermissible collateral attack on his commitment. See In re Det. of Reimer, 146 Wn. App.
179, 198-99, 190 P.3d 74 (2008) (rejecting as collateral attack evidence challenging initial
diagnosis).
Finally, Dr. Donaldson concluded that McGary’s paraphilia was in remission, but he did
not know why. He could not point to any specific factors that brought about the change and
stated that McGary “has apparently changed as a result of something.” III CP at 447.
Dr. Donaldson hypothesized that “this change could be due to any number of conditions,”
including treatment prior to McGary’s commitment as an SVP and “perhaps self-reflection.” III
CP at 447.
Mere conclusory statements unsupported by sufficient facts do not establish probable
cause. Jacobson, 120 Wn. App. at 780. Furthermore, McGary has refused to participate in sex
offender treatment since at least 2007. Because Dr. Donaldson relied on conjecture, not facts, to
support his conclusion that McGary’s paraphilia is in remission, it does not establish probable
cause of a change in his mental condition due to a positive response to continuing participation in
treatment. Accordingly, McGary’s argument fails.
C. Antisocial Personality Disorder
McGary next contends that his antisocial personality disorder, standing alone, does not
support his continued commitment. He did not raise this argument below.
The trial court considered whether purported changes in McGary’s schizophrenia and
paraphilia justified a full hearing regarding his continued commitment. It did not consider whether
his antisocial personality disorder alone provided a basis for his continued commitment.
Accordingly, this issue is not properly before us under RAP 2.5(a) and we decline to review it.8
8
McGary also contends in his reply brief that his opening brief raised the issue whether his
continued commitment based only on his antisocial personality disorder constitutes manifest
constitutional error. But the section of his opening brief to which he refers discusses whether
Due Process
Finally, McGary contends that former RCW 71.09.090(4) violates due process as applied
to him. He argues it allows the State to confine him without proving his paraphilia beyond a
reasonable doubt because it deprives him of a meaningful opportunity for a hearing.
When the original basis for commitment no longer exists, a committed person is “entitled
to constitutionally adequate procedures to establish the grounds for his confinement.” Foucha v.
Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). Procedures adequate to
satisfy due process rights involve, at a minimum, a meaningful opportunity for a hearing.
Mathews v. Eldridge, 424 U.S. 319, 333-34, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
First, McGary, citing Foucha, 504 U.S. at 80, contends that former RCW 71.09.090(4)
violates due process as applied because it allows the State to confine him in the absence of his
original basis of commitment without proving a new basis for his commitment. Because he
continues to suffer from antisocial personality disorder, the original basis for his commitment, we
disagree.
Next, McGary argues that former RCW 71.09.090(4) violates due process as applied
because it deprives him of a meaningful opportunity for a hearing regarding evidence of his
possibly erroneous paraphilia diagnosis. But in In re Detention of Fox, 138 Wn. App. 374, 398400, 158 P.3d 69 (2007), we determined that former RCW 71.09.090(4) did not violate due
process because it did not prevent the petitioners from introducing actuarial or clinical data as
evidence; instead, it prevented a finding of probable cause based solely on such evidence
former RCW 71.09.090(4) violated due process because it permitted his continued commitment
based on a paraphilia diagnosis not proven beyond a reasonable doubt and deprived him of a
meaningful opportunity to be heard. We do not consider arguments made for the first time in a
reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Thus, we decline to review this issue.
demonstrating a change in a single demographic factor.
Likewise, here the statute does not prevent McGary from introducing evidence of an
erroneous paraphilia diagnosis at a show cause hearing; it only prevents a finding of probable
cause based solely on evidence not constituting a change in mental condition due to continuing
participation in treatment. Furthermore, McGary may raise this challenge to his commitment in
the context of a CR 60 motion, a personal restraint petition, or a writ of habeas corpus in federal
court. See CR 60(b)(3), (11); RAP 16.4(c)(3), (5), (7); 28 U.S.C. §§ 2241-2255 (2010). Indeed,
the legislature explicitly noted its intention not to foreclose other avenues of relief beyond the
statutory scope of SVP show cause hearings. See Laws of 2005, ch. 344 § 1. The statute does
not violate due process as applied, and McGary’s argument fails.9
9
Additionally, McGary’s due process claim raises possible ripeness concerns as applied to the
facts of his case. Even if he could introduce evidence of an erroneous paraphilia diagnosis, he
could not demonstrate a relevant change in the original basis for his commitment, his antisocial
personality disorder. This is distinguishable from a case where former RCW 71.09.090(4) would
prevent a defendant from establishing probable cause based on evidence of an erroneous diagnosis
of the original basis for commitment.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so
ordered.
__________________________________
Houghton, P.J.
We concur:
________________________________________
Hunt, J.
________________________________________
Quinn-Brintnall, J.
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