In re Detention of Keeney

Decision Date23 October 2007
Docket NumberNo. 25277-9-III.,25277-9-III.
Citation141 Wn. App. 318,169 P.3d 852
PartiesIn re the Detention of John W. KEENEY, Petitioner.
CourtWashington Court of Appeals

Richard George Wernette, McAdams Ponti Wernette & Vandorn PS, Walla Walla, WA, for Appellant.

Malcolm Ross, Attorney General of Washington, Seattle, WA, for Respondent.


¶ 1 John W. Keeney was committed as a sexually violent predator (SVP). He asserts that the SVP statute is unconstitutionally vague; that his right to a unanimous jury verdict was violated; and that the trial court lacked jurisdiction to entertain the SVP commitment hearing because Mr. Keeney was unlawfully imprisoned at the time.

¶ 2 Mere uncertainty is insufficient to establish that a statute is unconstitutionally vague. And our Supreme Court has rejected a general claim that the SVP statute is unconstitutionally vague. Specifically, we hold RCW 71.09.020(7) to be constitutional and we reject Mr. Keeney's additional assertions of error. We affirm.


¶ 3 John W. Keeney was convicted of second degree child molestation and sentenced to 100 months' incarceration, with credit for time served. Mr. Keeney had previously been convicted of second degree rape. The latest possible date that the State could keep Mr. Keeney incarcerated for the child molestation conviction was September 29, 2004. Mr. Keeney had an expected early release date of October 16, 2002.

¶ 4 Several months prior to Mr. Keeney's expected early release date, the End of Sentence Review Committee asked a clinical and forensic psychologist to evaluate Mr. Keeney to determine whether he met the criteria as a SVP. The psychologist found that Mr. Keeney did meet the statutory criteria of a SVP. The committee then forwarded the case to the Walla Walla County prosecutor to begin SVP commitment proceedings.

¶ 5 During this same period, Mr. Keeney submitted his community release plan to the Department of Corrections (DOC), seeking early release. His plan was rejected by the DOC based on "Policy 350.200." Clerk's Papers (CP) at 171. The DOC will not approve a community release plan under Policy 350.200 if the End of Sentence Review Committee determined that the offender meets the criteria for referral as a SVP. Because Mr. Keeney was determined by the committee to meet the SVP criteria, Mr. Keeney's community release plan was denied.

¶ 6 On September 24, 2004, the State petitioned the trial court to commit Mr. Keeney as a SVP pursuant to chapter 71.09 RCW. This was five days prior to the last possible date that the State could incarcerate Mr. Keeney under the maximum term of his sentence.

¶ 7 Mr. Keeney moved to dismiss the commitment proceedings, arguing that the SVP statute did not define a period of time during which the defendant more probably than not would offend and, thus, was unconstitutionally vague and violated due process. According to Mr. Keeney, this allowed the jury to consider any time period, thereby allowing the jury to legislate what the law is in each case.1 The trial court denied the motion.

¶ 8 Mr. Keeney again moved for dismissal. In his second motion, he argued that he was unlawfully imprisoned by the State for 23 months, and that the trial court should dismiss the State's SVP commitment petition because of that unlawful imprisonment. Again, the trial court denied this motion.

¶ 9 The jury heard evidence of numerous sexual assaults committed by Mr. Keeney against eight separate victims. These incidents included several rapes, including one at knife point and various other sexual assaults. All of the victims were young, teenage girls.

¶ 10 The jury determined that Mr. Keeney was a SVP and he was civilly committed by the trial court. This appeal timely followed.

Constitutionality of Chapter 71.09 RCW

¶ 11 This court reviews the constitutionality of a statute de novo. See State v. Watson, 160 Wash.2d 1, 4, 154 P.3d 909 (2007) (quoting Kitsap County v. Mattress Outlet, 153 Wash.2d 506, 509, 104 P.3d 1280 (2005)). And we presume that statutes are constitutional. State v. Glas, 147 Wash.2d 410, 422, 54 P.3d 147 (2002).

¶ 12 Constitutional protections of due process require that statutes provide fair notice of the proscribed conduct. See Watson, 160 Wash.2d at 6, 154 P.3d 909. A statute does not provide fair notice if it is phrased in terms that are so vague that an individual of common intelligence must necessarily guess at its meaning. Id. at 7, 154 P.3d 909 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)). Due process concerns regarding vagueness also address the need to prevent arbitrary or discriminatory enforcement of the law. Glas, 147 Wash.2d at 421-22, 54 P.3d 147 (quoting City of Tacoma v. Luvene, 118 Wash.2d 826, 844, 827 P.2d 1374 (1992)).

¶ 13 Here, Mr. Keeney asserts that Washington's SVP statute is unconstitutionally vague. Specifically, he asserts the statute fails to define the relevant time period that the fact finder is to use when assessing whether a defendant is likely to engage in predatory acts of sexual violence. According to Mr. Keeney, because the likelihood of reoffense changes over time, the lack of a defined time frame poses a danger of arbitrary determinations of SVP status.

¶ 14 In order to find that the statute at issue is unconstitutionally vague, this court must find either that the statute does not define the offense with sufficient definiteness so that ordinary people can understand what conduct is proscribed, or that the statute does not provide ascertainable standards in order to prevent arbitrary enforcement. State v. Williams, 144 Wash.2d 197, 203, 26 P.3d 890 (2001) (quoting City of Bellevue v. Lorang, 140 Wash.2d 19, 30, 992 P.2d 496 (2000)).

¶ 15 But mere uncertainty is insufficient to establish that a statute is unconstitutionally vague. Watson, 160 Wash.2d at 8, 154 P.3d 909 (quoting City of Spokane v. Douglass, 115 Wash.2d 171, 179, 795 P.2d 693 (1990)). This court will not invalidate a statute merely because it could have been drafted more precisely. State v. Sullivan, 143 Wash.2d 162, 184, 19 P.3d 1012 (2001).

¶ 16 In order to find that an individual is a SVP, the State must show beyond a reasonable doubt that the person has been convicted, or charged with, a crime of sexual violence. In re Det. of Stout, 159 Wash.2d 357, 365, 150 P.3d 86 (2007). The State must also show that the individual suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. Id. The phrase "[l]ikely to engage in predatory acts of sexual violence if not confined in a secure facility" is defined by RCW 71.09.020(7).

¶ 17 The Washington Supreme Court has already considered, and rejected, a general claim that the word "likely" in the SVP statute is unconstitutionally vague. In re Pers. Restraint of Young, 122 Wash.2d 1, 49, 857 P.2d 989 (1993). In the context of the SVP statute, the court has noted that, "[a]lthough predictions of future dangerousness are certainly less than perfect, this court has previously decided that predictions of dangerousness do not violate due process." Id. at 32 n. 8, 857 P.2d 989. The court also concluded that the terms in the SVP statute were not so vague that the SVP statute denies due process. Id. at 50, 857 P.2d 989. Moreover, other procedural safeguards and the heavy burden of proof on the State also mitigate any uncertainty in predictions of future dangerousness. See In re Det. of Thorell, 149 Wash.2d 724, 755, 72 P.3d 708 (2003).

¶ 18 While it is unclear whether the court in Young had considered the particular question raised by Mr. Keeney, numerous other jurisdictions have rejected any requirement that a certain time frame be implied regarding the likelihood of the defendant to engage in acts of sexual violence. See, e.g., Martin v. Reinstein, 195 Ariz. 293, 317-18, 987 P.2d 779 (1999); Hubbart v. Superior Court, 19 Cal.4th 1138, 1163-64, 81 Cal.Rptr.2d 492, 969 P.2d 584 (1999); In re Det. of Hayes, 321 Ill.App.3d 178, 187-88, 254 Ill.Dec. 404, 747 N.E.2d 444 (2001) ("substantially probable" standard not unconstitutionally vague); Commonwealth v. Boucher, 438 Mass. 274, 276-77, 780 N.E.2d 47 (2002); In re Commitment of W.Z., 339 N.J.Super. 549, 572, 773 A.2d 97 (2001), aff'd, 173 N.J. 109, 801 A.2d 205 (2002); State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995). Other courts have found that, while inconsistent conclusions as to the likelihood of future dangerousness may be reached based on application of the same statute, this does not render that statute unconstitutional. See, e.g., Westerheide v. State, 767 So.2d 637, 654, 831 So.2d 93 (Fla. Dist.Ct.App.2000).

¶ 19 Moreover, useful analogies are found in the related contexts of capital punishment and involuntary commitment due to a mental disorder. Both of these areas sometimes rely on future dangerousness as a factor to consider. And in both of these areas, Washington has rejected similar due process challenges.

¶ 20 The United States Supreme Court considered, and rejected, a vagueness challenge to future dangerousness as an aggravating factor in the context of capital punishment. The statute at issue required a finding that there was a probability that the defendant would commit future acts of violence in order to impose the death penalty. Jurek v. Texas, 428 U.S. 262, 269, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The defendant asserted that "it is impossible to predict future behavior and that the question is so vague as to be meaningless." Id. at 274, 96 S.Ct. 2950. The court disagreed and concluded that the difficulty of predicting future behavior was not sufficient to constitute a due process violation. Id. at 274-75, 96 S.Ct. 2950.

¶ 21 In the context of involuntary civil detention of mentally disordered persons, the Washington Supreme Court also addressed vagueness concerns regarding the difficulty in predicting future...

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