In re Personal Restraint of Dyer

• Decision Date: 07 August 2008
• Docket Number: No. 79872-9.,79872-9.
• Citation: 189 P.3d 759,164 Wn.2d 274
• Court: Washington Supreme Court
• Parties: In the Matter of the PERSONAL RESTRAINT OF Richard J. DYER, Petitioner.

189 P.3d 759

164 Wn.2d 274

In the Matter of the PERSONAL RESTRAINT OF Richard J. DYER, Petitioner.

No. 79872-9.

Supreme Court of Washington, En Banc.

Argued November 27, 2007.

Decided August 7, 2008.

David Zuckerman, Seattle, for Petitioner.

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

FAIRHURST, J.

¶ 1 In 2006, this court directed the Indeterminate Sentence Review Board (ISRB) to redetermine the parolability of Richard J. Dyer after we concluded the ISRB supported its previous decision with speculation and conjecture. We ordered the ISRB to support its decision with objective facts. After the rehearing, the ISRB again determined Dyer was unparolable because he remained an untreated sex offender. We now consider Dyer's personal restraint petition (PRP) alleging the ISRB again abused its discretion and violated his constitutional rights. We hold the ISRB based its decision upon the objective fact that Dyer is an untreated sex offender and therefore did not abuse its discretion nor violate Dyer's constitutional rights. We affirm the ISRB.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 A jury convicted Dyer on two counts of first degree rape against two women, Ms. A and Ms. B. On January 27, 1980, Ms. A accepted a ride from two men in downtown Bremerton at 2:30 a.m. Ms. A sat in the front seat between the driver, who she later identified as Dyer, and a second man. When she realized Dyer was not driving to the designated destination, she attempted to grab the wheel and stomp on the brakes. Dyer forced her into the backseat where he subdued her with punches to the stomach. The second man drove the car to a remote location where Dyer undressed Ms. A. After the second man declined, Dyer raped Ms. A. Dyer then bound Ms. A with rope and held her to the rear floorboard while she was still naked.

¶ 3 The second man drove to a residence. Once inside, Dyer led Ms. A. to a bedroom where he tied her to a bed on her back. Dyer gagged her with cotton. The men also taped cotton over her eyes. The second man quickly raped Ms. A and was not seen or heard by her thereafter. Dyer applied contraceptive foam to Ms. A and proceeded to rape her eight times throughout the night. At one point, Dyer flipped her from her back to her stomach and raped her in the new position. Twice she was untied and forced to bathe. In the morning, Dyer washed Ms. A's clothes, bathed, and dressed her. After rebinding her, Dyer drove Ms. A into the woods and released her.

¶ 4 Later that year, two men offered a ride to another woman, Ms. B, in downtown Bremerton around 11:00 p.m. Ms. B twice refused the offer while walking her dog. The car left but shortly reappeared and Ms. B was forced inside. En route to their destination, the driver who Ms. B later identified as Dyer paused to tape cotton balls over Ms. B's eyes.

¶ 5 The two men took Ms. B to a residence. Once inside, Ms. B was undressed and tied to a bed. After the second man left, Dyer applied contraceptive foam to Ms. B and raped her repeatedly. At one point, Dyer flipped her from her back to her stomach and raped her in the new position. Dyer forced Ms. B to shower with him. In the morning, he washed Ms. B's clothes, bathed, and dressed her. He then drove Ms. B to a park and released her. Prior to leaving, Dyer gave Ms. B a wristwatch that was later identified as the wristwatch Ms. A lost during her struggle in Dyer's car.

¶ 6 Based on these incidents, Dyer was convicted of two counts of first degree rape. In 1982, the court sentenced Dyer to two maximum terms of life imprisonment to run concurrently. By letter, the sentencing judge recommended Dyer "`should be held in custody until the Parole Board is absolutely sure that he will not reoffend or until the end of his natural life.'" App. to PRP, App. P at 1. The prosecuting attorney recommended a 50 year sentence. The ISRB designated Dyer's original minimum term at 600 months. However, in light of the adoption of the Sentencing Reform Act of 1981(SRA) guidelines, chapter 9.94A RCW, the ISRB reduced Dyer's minimum sentence to 240 months. This adjusted minimum exceeded the standard range of 63 to 88 months. However, the ISRB justified its deviation with the recommendations of the sentencing judge and the prosecuting attorney and the deliberate cruelty manifest in the underlying crimes.

¶ 7 Since his incarceration, the ISRB has determined Dyer not parolable five times. In 1994, the ISRB found Dyer not parolable based, in part, on a 1993 psychological evaluation that found Dyer's risk of reoffense was "very high" and his depth of sexual deviancy was "high." Resp. of the ISRB to PRP, App. 5, at 3. In 1995, the ISRB found Dyer not parolable and added 60 months to his minimum term. The ISRB based its decision in part on a 1994 psychological evaluation diagnosing Dyer with posttraumatic stress disorder (PTSD) and sexual sadism. It concluded, "without treatment, the risk of reoffense remains high." Id. App. 6, at 3. The ISRB noted that "Mr. Dyer is an untreated, convicted rapist who denies his culpability and is therefore not amenable or receptive to treatment." Id. In 1998, the ISRB again found Dyer not parolable and added 60 months to his minimum term.

¶ 8 Prior to Dyer's 2002 parole hearing, licensed mental health counselor Carson Carter conducted a new psychological evaluation of Dyer. On both the Minnesota Sex Offender Screening Tool — Revised and the Rapid Risk Assessment for Sexual Offense Recidivism, Dyer received low scores, which Carter described as "typical of sex offenders who present a low risk to reoffend." App. to PRP, App. C at 3. On the Hare Psychopath Checklist — Revised, Dyer received a very low score, indicating a low risk of committing another violent offense within six months after release from custody. Carter concluded that Dyer "could be considered for community supervision with less concern for the community than many of the offenders who are released into society." Id. at 4. Dyer's 2001 Department of Corrections (DOC) classification referral states that he completed several offender change programs, including anger/stress management, victim awareness, and nonviolent conflict resolution.

¶ 9 In 2002, the ISRB again found Dyer not parolable and added 60 months to his minimum term. The ISRB stated, "[a] central difficulty for the Board is that Mr. Dyer remains an untreated sex offender." Resp. of the ISRB to PRP, App. 11, at 3. The ISRB noted that DOC's sex offender treatment program (SOTP) requires "full candor" and Dyer was not eligible for SOTP because he continued to maintain his innocence. Id.

¶ 10 However, the ISRB identified Dyer's potential to react poorly to stress the more "serious and significant" factor in its decision. Id. at 3. The ISRB considered evidence that Dyer was "an orderly person, careful in his work" but also acknowledged that "calculation" was "precisely the behavior demonstrated in the crimes." Id. The ISRB anticipated that, upon release, Dyer would face stress leading to a "potential reaction" acting as a "trigger to more attacks." Id. at 3-4. The ISRB also recognized that the risk of reoffense "appears to have been ameliorated in current psychological tests" but cited a concern that Dyer might have learned how to take psychological tests. Id. at 4. Based upon these concerns, the ISRB found that Dyer was "not rehabilitated" and therefore not parolable. Id.

¶ 11 Following the 2002 decision, Dyer filed a PRP that we transferred to the Court of Appeals. The Court of Appeals dismissed it, determining the ISRB had not abused its discretion nor violated Dyer's constitutional rights. Dyer filed a motion for discretionary review in this court, which the commissioner denied in an order dated April 13, 2005. Dyer filed a motion to modify the commissioner's ruling, and we subsequently granted that motion and Dyer's motion for discretionary review.

¶ 12 We determined the ISRB abused its discretion by supporting its parolability decision with "speculation and conjecture." In re Pers. Restraint of Dyer, 157 Wash.2d 358, 369, 139 P.3d 320 (2006) (Dyer I). We found the ISRB ignored the evidence favoring parole and "based its decision on unsupported notions that Dyer manipulated the psychological evaluations and poses a high risk of reoffense because of his good behavior in prison and the nature of his crimes." Id. at 368-69, 139 P.3d 320. We remanded the matter back to the ISRB with the mandate to make a decision based upon the "evidence and testimony" presented at the hearing. Id. at 369, 139 P.3d 320.

¶ 13 In October 2006, the ISRB conducted a new parolability hearing. Dyer reported that, as a result of therapy, many of his PTSD symptoms had diminished. The ISRB reviewed Dyer's psychological evaluations dating back to 1993. It highlighted the most recent evaluation dated February 2005 that assessed Dyer as a "low risk to reoffend sexually." App. to PRP, App. P at 10. However, the ISRB also observed that "the scoring tools utilized were not provided" with the psychological report. Id. The ISRB also considered two policy papers by the Washington State Institute for Public Policy. The first policy paper showed that the SOTP did not reduce participants' recidivism rates. The second policy paper showed that offenders who willingly participate in the program have lower recidivism rates than those who unwillingly participate in the program. The ISRB found that these reports had little applicability to Dyer since his "decision to not admit guilt necessarily results in an inability to participate in the SOTP." Id. at 11.

¶ 14 Based upon the evidence before it, the ISRB found Dyer unparolable because he is an untreated sex offender. "[W]ithout an exploration and understanding of the behaviors that directly resulted in his incarceration, he remains at risk to repeat those behaviors in the community." Id. at 12....