In re Dyer

• Decision Date: 27 July 2006
• Docket Number: No. 76730-1.,76730-1.
• Citation: 157 Wn.2d 358,139 P.3d 320
• Court: Washington Supreme Court
• Parties: In re the Matter of the Personal Restraint of Richard J. DYER, Petitioner.

Page 320

139 P.3d 320

In re the Matter of the Personal Restraint of Richard J. DYER, Petitioner.

No. 76730-1.

Supreme Court of Washington, En Banc.

Argued November 10, 2005.

Decided July 27, 2006.

David Zuckerman, Seattle, for Petitioner/Appellant.

Gregory Joseph Rosen, Attorney General's Office, Criminal Justice Division, William Berggren Collins, Olympia, for Appellee/Respondent.

C. JOHNSON, J.

¶ 1 This case requires the court to determine whether the Indeterminate Sentence Review Board (ISRB) abused its discretion when it determined that Richard J. Dyer was not parolable. The ISRB has broad discretion in making parolability decisions, but this discretion does not enable the ISRB to disregard the evidence presented at the hearing and base a decision on speculation and conjecture unsupported by evidence in the record. We hold the ISRB abused its discretion in determining that Dyer was not parolable and therefore do not reach Dyer's claims that the ISRB violated his constitutional rights. We reverse the decision of the ISRB and remand to the ISRB.

FACTS

¶ 2 Dyer was convicted by a jury of first degree rape of two individuals. Resp. of ISRB, Ex. (hereinafter ISRB Ex.) 2, at 1. On February 19, 1982, the sentencing court imposed a maximum term of life imprisonment for each count, with the sentences running concurrently.¹ Under the indeterminate sentence system, the ISRB makes the decision regarding the duration of confinement. In making this decision, the ISRB must "consider the purposes, standards, and sentencing ranges adopted pursuant to RCW 9.94A.850 [the Sentencing Reform Act of 1981(SRA)] and the minimum term recommendations of the sentencing judge and prosecuting attorney ...." RCW 9.95.009(2).

¶ 3 The SRA directs that "[w]hen making decisions on duration of confinement, ... the board shall ... attempt to make decisions reasonably consistent with [the SRA] ranges, standards, purposes, and recommendations." RCW 9.95.009(2). With the exception of sentence enhancements, the SRA ranges do not increase or decrease based on the nature of a particular offense. In establishing standard range sentences, the SRA takes into account the uniform seriousness level of the current offense and the defendant's offender score. RCW 9.94A.530(1). Consistent with SRA guidelines and directives, the ISRB imposed an exceptional minimum term of 240 months on September 15, 1986, departing from the SRA guidelines of 66-88 months because "the commission of the offense manifested deliberate cruelty ...."² ISRB Ex. 4, at 1.

¶ 4 The ISRB considered Dyer for parole under RCW 9.95.100 in 1995, 1998, and 2002. On each occasion, the ISRB denied parole and extended Dyer's minimum term by 60 months. The record shows that during his prison term, Dyer has participated in the following offender change programs: anger/stress management, victim awareness, nonviolent conflict resolution, moral recantation therapy, and industrial safety. Opening Br. of Pet'r, App. (hereinafter Pet'r App.) F at 1. However, Dyer has not been permitted to enter the sex offender therapy program because he denies committing the rapes for which he was convicted.

¶ 5 The challenge in this case concerns the ISRB's hearing in 2001 and decision on January 30, 2002. In preparation for the ISRB's 2001 hearing to evaluate Dyer's parolability, Carson E. Carter, a Washington State Department of Corrections (DOC) licensed mental health counselor, conducted a psychological evaluation of Dyer at the ISRB's request. Carter has substantial experience administering tests relating to risk, and evaluating and counseling persons committed as sexually violent predators. Pet'r App. I at 1. Carter evaluated Dyer's criminal behavior, social history, current behavior and functioning, and sexual behavior, and conducted a clinical interview and administered several psychological tests.³ In his evaluation, Carter reported that "[h]is scores are typical of sex offenders who present a low risk to reoffend," and concluded, "[i]f we are gauging risk, he has met the criterion for a less restrictive environment." Pet'r App. E at 3-4.

¶ 6 During the hearing on December 4, 2001, Dyer's parolability was again evaluated. Pet'r App. H. Carter was not present, but John Austin, the chair of the ISRB, repeatedly assured Dyer and his attorney that the ISRB accepted Carter's credentials, and the evaluation was admitted as evidence. Pet'r App. H at 2, 3, 10. Dyer's counselor, Larry Cook, testified that Dyer worked as a recreational assistant and received exemplary work reports from all the recreation supervisors. He noted that "everything about his attitude and behavior in the unit has been exemplary" and confirmed Dyer's family support. Cook reported that Dyer "completed all the available offender change programs that are available here at McNeil Island" and that to his knowledge, Dyer had never refused any counseling offered to him. Pet'r App. H at 5-7.

¶ 7 In addition to Dyer's testimony and his attorney's arguments, the members of the ISRB discussed their perceptions of Dyer's situation. Austin stated he would not hold Dyer's denial of guilt against him,

I'm not going to hold somebody just because they deny it, because every [sic] I read about sexual offenders is denial is not what's called a risk factor, it's not used in these various instruments that your counselor has mentioned. Denial per se is not itself a risk factor so I don't use it to hold it against somebody ... I don't hold his denial against him, and I don't consider him manipulative. I accept your sincerity, Mr. Dyer.

Pet'r App. H at 14, 22. Instead, Austin was concerned with Dyer's good behavior in prison, which he viewed as consistent with "the calculating nature of the behavior" during the rapes. Pet'r.App. H at 15. He said, "I expect you to exhibit that controlled behavior, because that's what's shown in the rapes," but also acknowledged, "[i]t's a catch-22 irony. Because a person who is innocent and has been dealt a bad hand is going to try to figure a way to play the best he can, and it's quite obvious that you made an accommodation for prison life." Pet'r App. H at 15-16. The ISRB issued its report and decision denying parole to Dyer on January 30, 2002. The ISRB stated, "[a] central difficulty for the Board is that Mr. Dyer remains an untreated sex offender." ISRB Ex. 11, at 3. The ISRB continued, "[m]ore serious and significant to the Board is that these particular types of rape appear to be in reaction to stress." ISRB Ex 11, at 3. He "shows that he is an orderly person, careful in his work and is able to maintain himself within the institution ..., precisely the behavior demonstrated in the crimes." ISRB Ex. 11, at 3. The ISRB concluded, "[t]hus Mr. Dyer, for the Board, is an untreated sex offender with behaviors that are apparently motivated when he is in a period of stress." ISRB Ex. 11, at 3. The ISRB conceded Dyer's risk of reoffense "[a]ppears to have been ameliorated in current psychological tests," but stated "[o]f concern to the Board is the ability to learn how to take psychological tests." ISRB Ex. 11, at 4.

¶ 8 The ISRB concluded that Dyer was not parolable and extended his minimum term by 60 months. In reaching this conclusion, the ISRB stated that it considered the materials in Dyer's file, including previous ISRB decisions, file materials of the Department of Corrections, and earlier psychological evaluations, which provided the basis for denying parole in Dyer's prior hearings.

ANALYSIS

¶ 9 The decision of whether to parole a prisoner "may be made for a variety of reasons and often involves no more than informed predictions as to what would best serve correctional purposes or the safety and welfare of the inmate. The decision turns on a `discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.'" Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (quoting Sanford H. Kadish, The Advocate and the Expert—Counsel in the Peno-Correctional Process, 45 Minn. L.Rev 803, 813 (1961)). We review parole eligibility decisions to ensure the ISRB exercises its discretion in accordance with the applicable statutes and rules. The ISRB abuses its discretion when it fails to follow its own procedural rules for parolability hearings or acts without consideration of and in disregard of the facts. In re Pers. Restraint of Addleman, 151 Wash.2d 769, 776-77, 92 P.3d 221 (2004).

¶ 10 The legislature requires the ISRB to "attempt to make decisions reasonably consistent with [the SRA] ranges, standards, purposes, and recommendations [of the sentencing judge and prosecuting attorney]" and "give public safety considerations the highest priority when making all discretionary decisions on the remaining indeterminate population regarding the ability for parole, parole release, and conditions of parole." RCW 9.95.009(2), (3). In making its decision on an inmate's parolability, the ISRB is guided by WAC 381-60-160, which provides:

The board panel shall render a decision of either parolable or not parolable on each case heard under this chapter ...

Examples of adequate reasons for a finding of nonparolability include, but are not limited to:

1. Active refusal to participate in available program or resources designed to assist an offender to reduce the risk of reoffense (e.g., anger management, substance abuse treatment).

2. Serious and repetitive disciplinary infractions during incarceration.

3. Evidence of an inmate's continuing intent or propensity to engage in illegal activity (e.g., victim harassment, criminal conduct while incarcerated, continued use of illegal substances).

4. Statements or declarations by the inmate that he or she intends to re-offend or does not intend to comply with conditions of parole.

5. Evidence that an inmate presents a substantial danger to...