In re Marcum
| Decision Date | 03 August 2017 |
| Docket Number | No. 92501-1.,92501-1. |
| Court | Washington Supreme Court |
| Parties | In the MATTER OF the DETENTION OF John H. MARCUM. |
189 Wash.2d 1
403 P.3d 16
In the MATTER OF the DETENTION OF John H. MARCUM.
No. 92501-1.
Supreme Court of Washington.
Filed August 03, 2017
Washington Appellate Project, 1511 Third Avenue, Suite 701, Seattle, WA, 98101, Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave. Ste. 701, Seattle, WA, 98101-3647, for Petitioner
Brooke Elizabeth Burbank, Assistant Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, Kristie Barham, Office of the Attorney General, 800 5th Ave. Ste. 2000, Seattle, WA, 98104-3188, Criminal Justice—Sexually Violent Pred. Unit Atty. General, Attorney at Law, 800 Fifth Avenue Suite 2000, Ms-tb-14, Seattle, WA, 98104, for Respondent
MADSEN, J.
In this case, we apply a provision in chapter 71.09 RCW, the statute governing the civil commitment of sexually violent predators (SVP), in the context of a detainee's petition for unconditional release. While the parties argue competing interpretations concerning how a detainee's treatment-based change is to be assessed, we resolve this case on the threshold issue concerning the burden placed on the State by chapter 71.09 RCW at the ensuing show cause hearing.1 Because the State here failed to meet its threshold burden at the show cause hearing as set forth in RCW 71.09.090(2)(b) (discussed below), we reverse the Court of Appeals and hold that detainee John Marcum is entitled to a full evidentiary hearing.
FACTS
Marcum has been civilly committed as an SVP for more than 15 years. In 1989, Marcum was convicted of one count of indecent liberties against a child under the age of 14 and two counts of first degree child molestation. While he was on community placement for those offenses, Marcum committed second degree child molestation. He was convicted of that offense in 1994 and sentenced to 89
months of incarceration. Just before his scheduled release in January 2000, the State petitioned to have Marcum civilly committed as an SVP.
Marcum stipulated to commitment as an SVP in January 2001. He resided at the Special Commitment Center (SCC), where he participated in sexual deviancy treatment. In January 2009, he was transferred to a less restrictive alternative (LRA) at the Pierce County Secure Community Transition Facility (transition facility or SCTF), where he remained for approximately two years.
At the transition facility, Marcum battled depression and his behavior deteriorated, although not in a way directly related to sexual offending.2 Marcum consistently participated in sex offender treatment, but he refused to work (objecting that wages were too low or that he could do only sedentary jobs), developed a habit of lying in bed until late in the day, refused to exercise, and traded stamps for cigarettes in violation of transition facility rules.3 Because of these behaviors, Marcum's treating psychologist, Dr. Vincent Gollogly, determined that he could no longer provide Marcum with sex offender treatment therapy. Accordingly, the Department of Corrections submitted a recommendation to the superior court that Marcum's LRA release be revoked. The reasons given all pertained to Marcum's refusal to work and generally negative attitude, and not to any sexual misconduct.
In May 2011, Marcum stipulated to the revocation of his LRA release. The court granted the revocation on the ground that the LRA placement was conditioned on Marcum's participating in treatment with Dr. Gollogly, and since Dr. Gollogly was no longer willing to treat Marcum,
this condition could not be satisfied. After returning to total confinement at the SCC, Marcum did not participate in further sexual offender treatment.
One year later, the superior court entered an "Agreed Order on Annual Review." Clerk's Papers (CP) at 13. The order found that Marcum continued to meet the definition of an SVP and that any LRA placement was not appropriate. However, it also contained a provision noting that "Respondent did not present his own evidence at this time" and that "entry of this order does not prevent him from obtaining such evidence in the future or from petitioning the court, at any time, for conditional or unconditional release." Id. at 14.
Petition for an Unconditional Release Trial
In August 2013, Marcum filed a "Petition For An Unconditional Release Trial Pursuant To RCW 71.09.090 Annual Review Hearing." Id. at 29. He attached a report by Dr. Paul Spizman, a former SCC employee. Dr. Spizman's evaluation reviewed in detail Marcum's history of treatment, including the two years he spent at the transition facility, and the evolution in his sexual thinking and behavior. Regarding Marcum's experience at the transition facility, Dr. Spizman noted that while Marcum "may have fallen back into some negative behaviors[,] ... he did not actually fall back into the use of sexualized coping ... [and] it appears he is able to effectively manage himself well enough to avoid the stepping back into the sexual elements of his offending cycle." Id. at 71. Because of the gains Marcum made in treatment over his many years in civil commitment, Dr. Spizman concluded that he was no longer diagnosable as having pedophilia and no longer met the definition of an SVP.
In response, the State's relied on the annual report (dated April 15, 2013) of its evaluator, Dr. Regina Harrington. The annual report concluded that Marcum "continues to meet the definition of a[n] [SVP and] ... continues to [be] suitable
for a [LRA] community placement," and also acknowledged that Marcum "has reached [the] maximum benefit from inpatient treatment." Id. at 24, 23.4 Dr. Harrington's evaluation also described changes in Marcum's attitude about release since his previous annual review. The evaluation contained a detailed description of Marcum's release plan, which included plans for work, minimal and supervised contact with the two children in Marcum's extended family (a niece and nephew), and participation in Alcoholics Anonymous and sex offender counseling.5
At the show cause hearing addressing Marcum's petition for release, the State first contended that it met its threshold burden by showing that Marcum continued to be an SVP as supported by Dr. Harrington's evaluation. The State contended that based on the SVP showing alone , the State had met its statutory burden. The State then addressed Marcum's probable cause argument, which was based on Dr. Spizman's evaluation. The State did not challenge the factual basis for any conclusion in Dr. Spizman's evaluation. Instead,
it argued only that those conclusions were irrelevant because they all pertained to changes in Marcum's mental condition that occurred before his LRA revocation. In other words, the State argued that Dr. Spizman failed to address whether
Marcum's condition had changed through treatment after Marcum's LRA revocation.
Marcum's attorney initially argued that the State had not met its prima facie showing. Alternatively, she contended that the State's position concerning Marcum's probable cause showing was absurd and constitutionally problematic because Marcum had taken all of the treatment courses that the SCC offered, he had received maximum benefits as acknowledged by the State's evaluators, and the benefits of such treatments showed in Marcum's daily life.
The trial court ultimately agreed with the State and denied Marcum's petition for a trial, noting in part that Marcum could not show changed mental condition "through positive response to continuing participation in treatment" because he had not engaged in treatment for two years. Id. at 76-77.
Court of Appeals Decision
Marcum appealed, arguing that the superior court's denial of a release trial violated both statutory and constitutional protections. The State argued, as it had in the trial court, that Marcum could not meet a statutory prerequisite to release under RCW 71.09.090(4) —change through continuing participation in treatment—because he had not participated in treatment since he stipulated to the revocation of his LRA placement.
The Court of Appeals affirmed the superior court in a divided opinion, concluding that under RCW 71.09.090(4)(a), a detainee cannot obtain an evidentiary hearing unless he can show that he has changed since the last proceeding resulting in civil commitment. In re Det. of Marcum, 190 Wash.App. 599, 601-02, 605-06, 360 P.3d 888 (2015). Marcum sought review, which this court granted. In re Det. of Marcum, 185 Wash.2d 1010, 367 P.3d 1083 (2016).
ANALYSIS
We review questions of statutory interpretation de novo. In re Det. of Hawkins, 169 Wash.2d 796, 800, 238 P.3d 1175 (2010). And, as we have previously held, "[S]tatutes that involve a deprivation of liberty must be strictly construed." Id. at 801, 238...
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Sharrette v. P.P. (In re P.P. State)
...proving that it is unconstitutional. Id. ¶ 19 We similarly review questions of statutory interpretation de novo. In re Det. of Marcum , 189 Wash.2d 1, 8, 403 P.3d 16 (2017). The primary objective of any statutory interpretation and construction inquiry is to determine and carry out the inte......
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Sharrette v. P.P. (In re P.P. State)
...of proving that it is unconstitutional. Id. We similarly review questions of statutory interpretation de novo. In re Det. of Marcum, 189 Wn.2d 1, 8, 403 P.3d 16 (2017). The primary objective of any statutory interpretation and construction inquiry is to determine and carry out the intent of......
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In re Nelson
...at 380, 275 P.3d 1092 ("The court must order an evidentiary hearing if the State fails to meet its burden"); In re Det. of Marcum, 189 Wash.2d 1, 8, 403 P.3d 16 (2017). Thus, if the prosecuting agency's evidence at the show cause hearing were limited to an annual evaluation, and that evalua......