Detention of Henrickson v. State
| Decision Date | 18 May 2000 |
| Docket Number | No. 67520-1, No. 67793-0. |
| Citation | 2 P.3d 473,140 Wash.2d 686 |
| Parties | In re the DETENTION OF Donald HENRICKSON, Respondent, v. STATE of Washington, Petitioner. In re the Detention of Michael Allen Halgren, Respondent, v. State of Washington, Petitioner. |
| Court | Washington Supreme Court |
Norm Maleng, King County Prosecutor, David J.W. Hackett, Deputy, Donald J. Porter, Deputy, Seattle, for Petitioner.
Christine Jackson, Shawn Crowley, and David Hirsch, Public Defenders, Seattle, for Respondents.
The State seeks to commit both Donald Henrickson and Michael Halgren as sexually violent predators under chapter 71.09 RCW. This court has previously held that to commit an individual as a sexually violent predator, due process requires proof of a recent overt act "whenever an individual is not incarcerated at the time the petition is filed." In re Personal Restraint of Young, 122 Wash.2d 1, 41, 857 P.2d 989 (1993). The Legislature codified this holding by amending the statute to require proof of a recent overt act when a person "has since been released from total confinement," but not when a person "is about to be released from total confinement." Laws of 1995, ch. 216, § 3; RCW 71.09.030.
We are now asked to decide whether chapter 71.09 RCW or due process requires proof of a recent overt act when an individual has, at some point, been previously released into the community but is incarcerated on the day a sexually violent predator petition is filed. We hold no proof of a recent overt act is constitutionally or statutorily required when, on the day the petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or an act that by itself would have qualified as a recent overt act, RCW 71.09.020(5). We reverse the decision of the trial court in State v. Halgren, No. 95-1-06725-1 (King County Sup.Ct. Apr. 1, 1996), and affirm the Court of Appeals in Henrickson v. State, 92 Wash.App. 856, 965 P.2d 1126 (1998), although on alternate grounds.
Donald A. Henrickson has a long history of sexual assaults on young girls. He was arrested in 1973 for indecent liberties and statutory rape, and again for indecent liberties in 1977. In 1986, Henrickson pleaded guilty to statutory rape in the first degree of a four-year-old girl and was sentenced to 36 months in prison. He was released in 1989. In 1990, Henrickson abducted a six-year-old girl and showed her a pornographic picture; he was convicted of attempted kidnapping in the first degree and communication with a minor for immoral purposes.
The trial court imposed an exceptional sentence of 120 months for the 1990 conviction. Henrickson appealed. The trial court permitted Henrickson to remain free on bond on strict conditions of release during the pendency of his appeal. On appeal, in an unpublished opinion, the Court of Appeals affirmed Henrickson's 1990 conviction but reversed his exceptional sentence. Henrickson, No. 29166-1-I. Henrickson was resentenced to 50 months, with strict conditions of release imposed for one year following release.
During his three-year period of release for the 1990 conviction, Henrickson was required to participate in sexual deviancy treatment. He did not travel anywhere without a chaperone. For a large part of this time, a Department of Corrections officer also supervised Henrickson.
Following his resentencing in 1993 for the 1990 conviction, Henrickson was incarcerated in the Department of Corrections. His scheduled release date was August 30, 1996. On August 29, 1996, one day before his release date, the State filed a petition to have Henrickson committed to the custody of the Department of Social and Health Services as a sexually violent predator. Henrickson stipulated to the commitment, but reserved the right to appeal the trial court's finding that the State need not prove a recent overt act because Henrickson was incarcerated on the day the petition was filed.
The Court of Appeals affirmed Henrickson's commitment. In re Detention of Henrickson, 92 Wash.App. 856, 864, 965 P.2d 1126 (1998). The court held "[b]ecause Henrickson was under constant strict supervision after his arrest for the 1990 kidnapping, due process did not require the State to prove a more recent overt act as a manifestation of his dangerousness." Henrickson, 92 Wash. App. at 864, 965 P.2d 1126. The court tempered its holding, however, with the following analysis:
The fact that an individual is incarcerated on the day the [sexually violent predator] petition is filed is not, by itself, dispositive. The more fundamental question is whether there is evidence of future dangerousness sufficient to overcome the individual's liberty interest. The requirement for proof of a recent overt act as evidence of dangerousness is excused where the individual has been living under a degree of restraint, such as confinement, that minimizes the opportunity to reoffend. If the individual has lived in the community since the most recent offense without committing a further overt act, the trial court should consider the degree to which the period of nonincarceration offered an opportunity to reoffend.
Henrickson, 92 Wash.App. at 863, 965 P.2d 1126 (emphasis added).
The State moved for discretionary review of the Court of Appeals decision. Henrickson cross-petitioned, on the recent overt act issue and other issues.1 Review was granted solely on the recent overt act issue.
Michael Halgren has a history of sexually related offenses, including a 1989 conviction for first degree rape, a 1994 conviction for solicitation of a prostitute, and a 1996 conviction for unlawful imprisonment also involving a prostitute. After his conviction on the unlawful imprisonment charge, Halgren received a 60-month exceptional sentence, which was later reversed by this court. State v. Halgren, 137 Wash.2d 340, 352, 971 P.2d 512 (1999).2 Upon this court's reversal of the exceptional sentence, the State anticipated Halgren would be released from confinement "at any time." The State moved to commit Halgren as a sexually violent predator pursuant to chapter 71.09 RCW. Upon motion by the defense, the trial court dismissed the State's petition, relying on the Court of Appeals decision in Henrickson, 92 Wash.App. 856,965 P.2d 1126. The court held because Halgren had been released into the community for three months pending sentencing on the unlawful imprisonment charge, Henrickson required the State's petition allege a recent overt act by Halgren, which it did not. The State petitioned this court for direct review, which was granted. This court stayed the trial court's order dismissing the State's petition pending review.
The Washington sexually violent predator statute is premised on a finding of the present dangerousness of those subject to commitment. Under the statute, sexually violent predators must suffer 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(1) (emphasis added).
The statute's definition of "mental abnormality" is tied directly to present dangerousness. "`Mental abnormality' means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others." RCW 71.09.020(2) (emphasis added); see also Young, 122 Wash.2d at 32, 857 P.2d 989 (); In re Personal Restraint ofPaschke, 80 Wash.App. 439, 446, 909 P.2d 1328 (1996); Hubbart v. Superior Court, 19 Cal.4th 1138, 1162, 81 Cal.Rptr.2d 492, 969 P.2d 584 (1999) (). The State must prove beyond a reasonable doubt that the individual it seeks to commit is a sexually violent predator consistent with the above definitions. RCW 71.09.060(1).
In order to commit a nonincarcerated individual as a sexually violent predator, the State must also prove beyond a reasonable doubt that the individual has committed a recent overt act evidencing his or her status as a sexually violent predator. RCW 71.09.060(1). As long as the individual is in custody on the day the petition is filed, however, the statute does not require proof of a recent overt act. See RCW 71.09.030(5) (); see also RCW 71.09.020(3).
Here, neither Henrickson nor Halgren had been released from total confinement when their petitions were filed. The State filed its petition against Henrickson on August 29, 1996, one day before his scheduled release. At that time, he had been incarcerated for more than 32 months. A similar scenario occurred in Halgren's case, except Halgren's period of release was significantly shorter than Henrickson's, and Halgren was in custody for more than 35 months after that brief period of release. Consequently, under the plain language of chapter 71.09 RCW, the State need not prove a recent overt act by either Henrickson or Halgren. Periods of temporary release after arrest and prior to extensive confinement do not modify the statute's unambiguous directive that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated on the day the petition is filed. See, e.g., State v. Riles, 135 Wash.2d 326, 340, 957 P.2d 655 (1998) (...
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