In re Parejo, 76256-7-I

• Citation: 428 P.3d 130
• Decision Date: 08 October 2018
• Docket Number: No. 76256-7-I,76256-7-I
• Parties: In the MATTER OF the Personal Restraint Petition of Manuel PAREJO, Petitioner.
• Court: Washington Court of Appeals

428 P.3d 130

In the MATTER OF the Personal Restraint Petition of Manuel PAREJO, Petitioner.

No. 76256-7-I

Court of Appeals of Washington, Division 1.

FILED: October 8, 2018

Darrel Lance Lahtinen, Law Offices of Jean Schiedler-Brown & Associates, 606 Post Ave. Ste. 103, Seattle, WA, 98104-1445, for Petitioner.

Department of Corrections A.g. Office, Attorney at Law, Mandy Lynn Rose, Attorney General of Washington, 1125 Washington St. Se, Po Box 40116, Olympia, WA, 98504-0116, for Respondent.

PUBLISHED OPINION

Schindler, J.¶ 1 RCW 9.95.115 gives the Indeterminate Sentence Review Board (ISRB) the authority to parole sex offenders for crimes committed before July 1, 1984 but states "no such person shall be released under parole who is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW." Manuel Parejo filed a personal restraint petition challenging the decision of the ISRB to deny parole based on a prefiling 2011 forensic psychological evaluation the Department of Corrections requested to determine whether he met the criteria of a sexually violent predator under chapter 71.09 RCW. Parejo contends the ISRB abused its discretion and violated his right to due process by relying on the 2011 sexually violent predator evaluation to indefinitely deny parole. After oral argument, the ISRB filed a motion to dismiss the petition as moot because the ISRB granted parole. Although the inability to provide relief to Parejo renders his personal restraint petition technically moot, we address the ISRB’s interpretation of RCW 9.95.115 because it is likely to reoccur and to provide guidance. We hold under the plain and unambiguous language of RCW 9.95.115, the ISRB is not prohibited from releasing a person on parole unless the person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. Chapter 71.09 RCW governs whether a person is subject to commitment as a sexually violent predator. Contrary to the interpretation of the ISRB, a prefiling forensic psychological evaluation does not mean a person is subject to civil commitment as a sexually violent predator under chapter 71.09 RCW. Because Parejo is no longer under lawful restraint, we deny his personal restraint petition.

1978 Conviction

¶ 2 On March 20, 1978, a jury convicted Manuel Parejo of rape in the first degree while armed with a firearm and kidnapping in the first degree while armed with a firearm. On July 27, 1978, Parejo pleaded guilty to being a habitual criminal. The court sentenced Parejo to a maximum sentence of "not more than life" and "a minimum term to be fixed by the Board of Prison Terms and Paroles."¹ The Indeterminate Sentence Review Board (ISRB)² released Parejo on parole in December 1991. In 1993, the ISRB revoked his parole and set a minimum term of 60 months.

2011 Parole Decision

¶ 3 Chapter 9.95 RCW governs the indeterminate sentence and parole of a sex offender convicted of a crime committed before July 1, 1984. In re Pers. Restraint of Lain, 179 Wash.2d 1, 11, 315 P.3d 455 (2013) ; In re Pers. Restraint of Ayers, 105 Wash.2d 161, 162, 713 P.2d 88 (1986). The ISRB is the agency with jurisdiction over sex offenders convicted of crimes before July 1, 1984. RCW 9.95.140(1) ; see In re Pers. Restraint of Cashaw, 123 Wash.2d 138, 142-43, 866 P.2d 8 (1994). Under chapter 9.95 RCW, the superior court sets the offender’s maximum sentence and the ISRB determines the actual period of confinement. Cashaw, 123 Wash.2d at 142-43, 866 P.2d 8. The "minimum term" establishes a date when the inmate becomes eligible to be considered for parole. RCW 9.95.011(1), .040, .052; see also WAC 381-40-100 ; In re Pers. Restraint of Powell, 117 Wash.2d 175, 186 n.1, 814 P.2d 635 (1991). The minimum sentence "carries with it no guarantee of release; it only establishes a date when the inmate becomes eligible to be considered for parole."

Cashaw, 123 Wash.2d at 143, 866 P.2d 8.³ If the ISRB determines the offender is not fit for parole, it sets a new minimum sentence within the bounds of the maximum term. RCW 9.95.052, .100. The ISRB "shall not, ... until his or her maximum term expires, release a prisoner, unless in its opinion" the inmate has been rehabilitated and is "subject for release." RCW 9.95.100. The ISRB must "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(3).

¶ 4 On February 16, 2011, the ISRB found, "[T]his is the appropriate time to conditionally parole Mr. Parejo to a Mutual Re-Entry Plan to begin the process of transitioning back to the community." The ISRB found Parejo completed "all programming available in the prison setting," including chemical dependency treatment, the "Sex Offender Treatment Program" (SOTP), and the SOTP "Max Benefits Group." In addition, Parejo had "been active with the Interaction Transition (IT) group within the prison and has been accepted to live at the IT House, if released." The "Decision" states Parejo also had "strong community support from his family and employment waiting for him." The Decision states that although Parejo committed infractions during his early years in prison, "he has remained infraction free for over seven years now." The ISRB states, "These behaviors are strong indicators that Mr. Parejo has been rehabilitated." The ISRB Decision states:

BOARD DECISION:

This was a Deferred Decision. Based on the requirements of RCW 9.95.009(3) and RCW 9.95.100 and the totality of the evidence and information considered by the Board, the Board finds that Mr. Parejo is conditionally parolable to a MRP (Mutual Re-Entry Program) and adds 18 months to his minimum term to effectuate development and implementation of his MRP.

¶ 5 However, the ISRB notes the decision to parole Parejo may result in a Department of Corrections (DOC) End of Sentence Review Committee (ESRC) request for a forensic psychological evaluation to determine whether Parejo meets the criteria of a sexually violent predator.

The Board is also cognizant that its decision today may prompt a decision by the End of Sentence Review Committee to request a forensic psychological evaluation to determine whether Mr. Parejo meets the criteria for civil commitment under Chapter 71.09 RCW. Should such an evaluation take place, the Board requests a copy and reserves the right to reconsider its decision in light of the results of that evaluation.

¶ 6 RCW 72.09.345(1) gives DOC the authority to release "relevant information that is necessary to protect the public concerning offenders convicted of sex offenses." The ESRC assigns "risk levels," reviews "available release plans," and makes "appropriate referrals for sex offenders." RCW 72.09.345(2). "Sex offenders convicted of crimes committed before July 1, 1984, who are under the board’s jurisdiction shall be subject to the determinations of the [ESRC] regarding risk level and subject to sex offender registration and community notification." RCW 9.95.140(1).

The [ESRC] shall review each sex offender under its authority before the offender’s release from confinement or start of the offender’s term of community custody in order to: (a) Classify the offender into a risk level for the purposes of public notification under RCW 4.24.550 ; (b) where available, review the offender’s proposed release plan in accordance with the requirements of RCW 72.09.340 ; and (c) make appropriate referrals.

RCW 72.09.345(5).

2011 Forensic Psychological Evaluation

¶ 7 On September 13, 2011, DOC asked Dr. Matthew Logan to conduct a forensic psychological evaluation of Parejo "to determine if Mr. Parejo meets criteria for commitment as a Sexually Violent Predator under RCW 71.09." The notice to Parejo states that if the evaluation concludes he meets the criteria for a sexually violent predator and the court finds he meets the criteria, "you could be sent to a treatment program at a secure state facility."

Because of your past convictions for sexual crimes, you are being evaluated as a possible Sexually Violent Predator under the law (Revised Code of Washington 71.09). The purpose of the evaluation is to decide if you have a mental condition ("mental abnormality or personality disorder") that makes you likely to commit "predatory acts of sexual violence" in the future. If you qualify under the law, you will be sent to court for trial. If the court finds you to be a Sexually Violent Predator, you could be sent to a treatment program at a secure state facility. This would be an involuntary commitment to a treatment program run by the Washington Department of Social and Health Services.

....

If you do not consent to the interview, place conditions on the interview which cannot for any reason be accommodated, or otherwise decline to participate, the evaluation will be completed using your records and other sources of information.

¶ 8 On November 11, 2011, Dr. Logan issued a psychological evaluation report for "Sexually Violent Predator Civil Commitment under RCW 71.09." The report addresses whether Parejo has "a mental abnormality defined in RCW 71.09 as ‘a congenital or acquired condition, including a personality disorder, affecting the emotional or volitional capacity’ " and whether Parejo is "likely to engage in predatory acts of sexual violence if not confined in a secure facility."

¶ 9 Because Parejo declined to participate in the assessment, Dr. Logan based the evaluation solely on a "review of relevant file information and collateral staff reports." Dr. Logan acknowledged the "limitations" of the review and that "without the opportunity for a current clinical interview, it is not possible to conduct a mental status examination, corroborate information provided in other reports, or to obtain a current perspective from Mr. Parejo." Dr. Logan addressed the "statistical risk to re-offend" based on personality and behavioral patterns. Dr....