In re Haynes

• Decision Date: 03 April 2000
• Docket Number: No. 41803-3-I.,41803-3-I.
• Citation: 100 Wash.App. 366,996 P.2d 637
• Parties: In the Matter of the Personal Restraint of Timothy Scott HAYNES, Petitioner.
• Court: Washington Court of Appeals

996 P.2d 637

100 Wash.App. 366

In the Matter of the Personal Restraint of Timothy Scott HAYNES, Petitioner.

No. 41803-3-I.

Court of Appeals of Washington, Division 1.

April 3, 2000.

As Corrected May 19, 2000.

Leta Jeanne Schattauer, Seattle, for Appellant.

Donna H. Mullen, Attorney General's Office, Olympia, for Respondent.

AGID, J.

Petitioner Timothy Haynes seeks relief from his confinement for second degree assault, first degree rape, and two counts of first degree kidnapping. His grounds for relief focus primarily on a 1995 decision denying him parole and the length of his confinement. For the reasons stated below, the petition is denied.

FACTS

The Indeterminate Sentence Review Board (Board) described Haynes' offenses as follows:

Count I of the Assault 2nd Degree conviction involves an incident in which a 17 year old female was walking [toward] a wooded area [when] she turned back and saw a man running towards her. She tried to run from [him], [and] tripped and fell down. He had a knife in his hand and grabbed her with that hand. He slashed at her with the knife and cut her left leg through her jeans. As she got up to run he cut the right side of her face with the knife. She ran to a nearby home and the woman at the home called police. She identified Mr. Haynes from a photo montage.

Count III is a[n] incident [in which] a 23 year old female was forced into a vehicle by a man and driven to an area east of Woodinville. She had been walking from her apartment to check her mail and was en route back to her apartment. She observed a green vehicle stopped in the parking lot near her. The driver opened the passenger side door and pointed a handgun at her and ordered her into the car. She got into the car and they drove to the area of a lake where he continued to point the gun at her and told her that he intended to have sex with her. He parked the car in a wooded area and laid aside the gun, he then grabbed the woman. As he grabbed her the gun fell to the floor. She fought and escaped into the woods where she hid until daybreak and then walked home. She also identified Mr. Haynes in a lineup.

Count IV is an incident [in which] a 14 year old girl was kidnapped from where she was counting papers at the Seattle Times drop box for the newspaper. She was alone and observed the green car as it went by. The driver parked in a driveway a couple of houses away and then drove back to where she was standing and parked in front of her. He asked for directions, then grabbed her wrist and twisted it. He ordered her into the car and said he would kill her if she did not comply. He put her in the passenger seat and drove away. [After engaging in conversation, he dropped her back off where he had abducted her.]

[The] 1st Degree Rape incident occurred [when] Haynes saw a girl walking towards the end of the road [and] drove up the road and turned around. When he got to the girl he asked her for directions. He then got out of the car and grabbed her, throwing her into the car, threw a towel over her eyes, fondled her breasts, tied her hands with cords and drove away. He stopped the car on a dirt road and forced the girl to fellate him. After fondling her breasts and vagina he then released her.¹

Haynes first became eligible for parole in March 1990. The Board found him not parolable, citing his lack of "specific sexual deviancy therapy," his escalation to the use of force and weapons, and his risk to the public. The Board concluded by stating "we have to say that we are not sure tha[t] any kind of sexual deviancy treatment would result in a finding of parolability at this particular time when we look at Mr. Haynes' commitment crimes." The Board reached essentially the same conclusions in parolability decisions made in 1991, 1992 and 1994.

In 1995, the Board acknowledged that Haynes had received counseling for sexual deviancy, but again found him not parolable. It emphasized Haynes' lack of formal and structured sexual deviancy treatment, as well as his "continual denial of two of [his] offenses." The Board also relied on evidence indicating that Haynes was a high risk to reoffend and had poor prospects for rehabilitation.

Haynes then filed this petition challenging the Board's 1995 parolability decision.

DECISION

I.

Haynes initially contends the Board abused its discretion when it denied him parole in 1995.² Citing a regulation that lists some "adequate reasons" for denying parole, he argues that the evidence before the Board did not support denial of parole because none of the reasons listed in the regulation apply to his case.³ But the reasons listed in the regulation are only "[e]xamples of adequate reasons for a finding of nonparolability...."⁴ Any fact or consideration demonstrating that an inmate is not "a fit subject for release" is sufficient.⁵ Moreover, the Board is accorded a "high degree" of discretion in parole decisions.⁶ As the court stated in January v. Porter, 75 Wash.2d 768, 774, 453 P.2d 876 (1969),

although releasing a convicted felon on parole may be beneficent and rehabilitative and in the long run produce a genuine social benefit, it is also a risky business. The parole may turn loose upon society individuals of the most depraved, sadistic, cruel and ruthless character who may accept parole with no genuine resolve for rehabilitation nor to observe the laws and customs promulgated by the democratic society, which in the process of self-government granted the parole. Thus, recognizing the risky nature of parole as well as its beneficent qualities, the courts have universally held that the granting or denial of parole ... rests exclusively within the discretion of the board; that parole is not a right but a mere privilege conferred as an act of grace by the state through its own administrative agency.

In a similar vein, the United States Supreme Court has stated that

[t]he parole-release decision ... depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.... The parole determination ... may be made "for a variety of reasons and often involve[s] 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."⁷

Applying these principles to the Board's 1995 decision denying Haynes parole, we cannot say that the Board abused its discretion.

A 1994 psychological report by Department of Corrections (DOC) psychologist William Jones stated that Haynes' risk for reoffense was "high" due to his existing track record and his lack of structured and formalized sexual deviancy treatment.⁸ Jones described Haynes as a "purposeful and predatory sexual offender...." A report from the prison "unit team" rated his prospects for rehabilitation as "poor." That prognosis was based in part on his lack of remorse when speaking to the unit team, and his refusal to admit guilt for two of his offenses. Although Haynes contends the Board could not consider his refusal to admit guilt, the Supreme Court recently rejected that argument, holding that the Board may give some weight to such evidence in making parolability decisions. Relying on its prior Fifth Amendment cases, the Court reasoned that so long as a denial of guilt would not subject an inmate to the risk of further criminal liability, there can be no violation of his right against self-incrimination.⁹ It also concluded that, because there is a nexus between denying guilt and lack of rehabilitation, the Board could properly consider the denial. "[W]e agree with the Ninth Circuit's statement in Gollaher [v. United States, 419 F.2d 520, 530 (9th Cir.1969) ] that the first step toward rehabilitation is `the offender's recognition that he was at fault.'"¹⁰ Although Haynes presented evidence demonstrating commendable effort and progress toward rehabilitation, the Board was entitled to rely on this evidence to evaluate the advisability of releasing him.

Haynes contends the Board abused its discretion because he volunteered to undergo sex offender treatment in the community, and because the DOC psychologist stated his risk of reoffense would be only "moderate" if he underwent such treatment. But even a moderate risk of reoffense, together with the unit team's dim assessment of Haynes' prospects, would support the Board's conclusion that he is not a fit subject for release.

Haynes also points out that one of the "adequate reasons" for nonparolability listed in former WAC 381-60-160 is "[c]ompelling evidence" within a mental health report that an inmate presents a "substantial" danger to the community.¹¹ Even if we assume that this language set some sort of evidentiary threshold for parole denials based on mental health evidence, the Board did have compelling evidence from experts and corrections personnel demonstrating that Haynes' release would pose a substantial danger to the community.

II.

Haynes also challenges the length of his confinement on the ground that it is clearly excessive. A term of confinement is clearly excessive only if it is shown to be "clearly unreasonable"—i.e., the result of discretion exercised on untenable grounds, or a result no reasonable person would have taken.¹² Haynes has not made that showing. He first points out that his term of confinement currently exceeds the applicable standard range under the Sentencing Reform Act of 1981 (SRA). He argues that the Board lacked adequate reasons to extend his confinement beyond that range.¹³ But a pre-SRA offender may be confined beyond the applicable SRA range if he is not rehabilitated or presents a danger to the public.¹⁴ Indeed, the Board is statutorily required to...