In re Dodge
| Decision Date | 13 January 2022 |
| Docket Number | 98078-1 |
| Citation | 502 P.3d 349 |
| Parties | In the MATTER OF the Personal Restraint of David Daniel DODGE, Petitioner. |
| Court | Washington Supreme Court |
Jeffrey Erwin Ellis, Law Office of Alsept & Ellis, 621 SW Morrison St. Ste. 1025, Portland, OR, 97205-3813, for Petitioner.
Holger Kurt Sonntag, Wash. State Attorney General's Office, 1125 Washington St. SE, Olympia, WA, 98501-2283, Gregory Kennedy Ziser, Wash. State Attorney General's Office, P.O. Box 40116, Olympia, WA, 98504-0116, for Respondent.
¶ 1 David Daniel Dodge was convicted of first degree murder, rape, and burglary for crimes he committed in 1997, when he was 17 years old. He was sentenced to 50 years in prison. Twenty years later, the legislature passed a new law, RCW 9.94A.730. That new law gave people like Dodge—who received lengthy sentences for crimes committed as juveniles—a chance for earlier release, after serving at least 20 years of their sentence.
¶ 2 Two portions of that statute are key to our decision today. First, the statute requires the Indeterminate Sentence Review Board (ISRB) to begin with a presumption of release after 20 years and to apply that presumption of release by considering "affirmative and other conditions" that could make release work. RCW 9.94A.730(3) (). Second—and of equal importance—the statute directs the ISRB to "give public safety considerations the highest priority when making all discretionary decisions regarding the ability for release and conditions of release." Id.
¶ 3 In this personal restraint petition (PRP), Dodge challenges the ISRB's application of this statute to his petition for early release after he had served more than 20 years of his 50-year sentence. PRP, In re Pers. Restraint of Dodge , No. 79540-6-I (Wash. Ct. App. Feb. 4, 2019). He argues that the ISRB erred in (1) failing to apply the presumption of release contained in RCW 9.94A.730, (2) failing to consider conditions of release that could reduce his risk to an acceptable level, as the statute mandates, and (3) relying primarily on static historical facts about his crime rather than on evidence of his rehabilitation.
¶ 4 This is our first opportunity to review the ISRB's application of RCW 9.94A.730 in an early release decision. We hold that the statute requires the ISRB to give public safety the "highest priority" in making early release decisions. RCW 9.94A.730(3). And the ISRB may certainly consider historical facts about a petitioner's crime to the extent they relate to that consideration. But the statute also contains a mandatory (though rebuttable) presumption of early release. On this record, it appears that the ISRB placed singular weight on the duty to consider public safety, while failing to apply the presumption of release or meaningfully consider any conditions of release that might reduce risk to an appropriate level.
¶ 5 We therefore reverse the Court of Appeals and remand to the ISRB for a new early release hearing.
¶ 6 In 1997, 17-year-old Dodge escaped from a juvenile group home, attended a party where he smoked marijuana and drank alcohol, and looked for a home to burglarize. Answer to Mot. for Discr. Review, App. 1, at 1 (Order Dismissing PRP). He found a nearby home with an unlocked door. Id. Inside, a 12-year-old girl was babysitting younger children. Id. When Dodge realized someone was home, he left the house and armed himself with a piece of wood. Id. at 2. He went back into the house, struck the girl in the head, and ran outside. Id. When he reentered the house and saw the girl was unconscious, he raped her. Id. She died of her injuries the next day. Id.
¶ 7 In February 1998, Dodge pleaded guilty to one count of first degree felony murder, one count of second degree rape, one count of residential burglary, and two counts of first degree burglary in Snohomish County Superior Court. Answer, App. 4, at 1 (Judgment and Sentence). Dodge received exceptional sentences above the standard range on the murder, rape, and residential burglary counts and standard sentences on the first degree burglary counts, for an original total term of confinement of 746 months. Id. He was resentenced following appeal. See State v. Dodge , noted at 97 Wash. App. 1010, 1999 WL 675935, at *1 ( for resentencing). The parties agree that he received a sentence of 596 months at that time, but the record does not contain a new or amended judgment and sentence.
¶ 8 In 2018, after serving 20 years of his sentence, Dodge petitioned for early release pursuant to RCW 9.94A.730(1), which provides, with exceptions not relevant here, that "any person convicted of one or more crimes committed prior to the person's eighteenth birthday may petition the indeterminate sentence review board for early release after serving no less than twenty years of total confinement."
¶ 9 On May 9, 2018, Washington State Department of Corrections (DOC) psychological evaluator Dr. Deborah Wentworth conducted a psychological evaluation of Dodge, which is statutorily required prior to an early release hearing. RCW 9.94A.730(3) ; Answer, App. 5.
¶ 10 Dr. Wentworth described Dodge's family and childhood. His mother, a prison chaplain, met his biological father while he was incarcerated. Answer, App. 5, at 6. The two got married but divorced before Dodge was born. Id. Dodge's mother then remarried her ex-husband, who adopted Dodge as a child. Id. Dr. Wentworth described this situation as "an unusual and destabilizing influence in [Dodge's] life." Id. Dodge was teased often in school and was homeschooled for periods of his youth, and obtained a GED (general education degree) at age 16. Id. Dodge reported that at age 16, he was also thrown out of the back of a truck, hit his head, and had to be hospitalized for several days. Id. He developed a substance abuse problem around this same age. Id. at 7.
¶ 11 Dr. Wentworth reported that Dodge has incurred 11 total infractions in prison, 9 of which were serious. Id. But Dr. Wentworth also noted that "he has managed a significant improvement in his institutional behavior," as his last serious infraction occurred in 2007 and his last general infraction occurred in 2011. Id. She further explained that "his serious infractions ceased and his behavior improved significantly" by the age of 27, which was consistent with neurological studies on youth brain development. Id. Dodge reported that he changed his behavior because he "was embarrassed by [it], tired of the negative attention, and ‘just grew up.’ " Id.
¶ 12 Dodge has "completed all available programming to him," including programs in chemical dependency, relationship skills, community transitions, nonviolent communication, Sex Offender Treatment and Assessment Program (SOTAP), and SOTAP "Aftercare." Id. He has obtained a paralegal certificate and has also trained in welding, plumbing, steam fitting, and HVAC (heating, ventilating and air-conditioning). Id. at 6-7. Dodge is now married and has "a strong community support system," receiving frequent visits from his wife, sister, and mother. Id. at 11. He is a member of a local church, receives regular visits from his pastors, and plays backup guitar in the church band. Id. If released, he would have a stable address with his wife and a car provided by his parents. Id.
¶ 13 Dr. Wentworth administered three risk assessments. She characterized the first, the Hare Psychopathy Checklist Revised, as "currently the gold standard of predicting future risk by using levels of psychopathy as the major predictor." Id. at 13. She opined that it is "considered dynamic and reflects changes in risk levels prior to and subsequent to treatment." Id. Based on this test, Dodge poses a high risk of reoffense. Id.
¶ 14 On the second risk assessment, the Violence Risk Appraisal Guide-Revised (VRAG-R), which is an "actuarial scale designed to predict violent recidivism" that is "largely based upon Static information related to major life events ... at, or prior to," the time of the crime, Dodge was also evaluated as a high risk. Id. Because this assessment considers only static factors from the time of the crime, it is unlikely to change over time. Id.
¶ 15 The third risk assessment, the Structured Assessment of Protective Factors (SAPROF), assesses "factors that may reduce or protect from future risk behaviors." Id. The SAPROF is scored dynamically and is "predominantly based on information from the past six months and the current plans regarding the near future." Id. Dodge scored "very well on the protective factors that may mitigate his overall level of risk based upon his most recent behavior choices," placing him in the "high" range of protective factors. Id. at 14. Other "significant mitigating factors" that may reduce Dodge's risk level include his "increasing age, decreased frequency of institutional misbehavior, and participation in criminogenic cognitive-behavioral programming." Id.
¶ 16 Dr. Wentworth also noted two risk assessment evaluations that had been previously administered by the SOTAP program in 2015 and 2018, which placed Dodge in the "moderate" or "moderately-high" risk range. Id. at 13.
¶ 17 Balancing Dodge's "high" and "moderately-high" assessed risk levels against his "high" level of protective factors, Dr. Wentworth concluded that Dodge "is at ‘moderate’ risk to reoffend." Id. at 15. "[D]ynamic factors such as 11 years of no serious infractions and the lack of current biological/neurological development risk factors that were present as...
To continue reading
Request your trial
-
State v. Thrower
...like Thrower, are released earlier than their court-imposed maximum sentence. See In re Pers. Restraint of Dodge, 198 Wn.2d 826, 829, 502 P.3d 349 (2022) (explaining statute requires ISRB to employ a presumption of release). Thrower's argument fails and we decline to conclude that the ISRB ......
-
Monteiro v. State
...to reduce lengthy terms of confinement for prisoners who offended as youths. Pet'r's Reply Mem. at 7-11 &n.3 (discussing Matter of Dodge, 502 P.3d 349 (Wash. 2022) (affirming statute providing early release from after serving twenty years for offenders whose crimes were committed prior to a......