In re Personal Restraint of Mattson

• Decision Date: 20 August 2009
• Docket Number: No. 81324-8.,81324-8.
• Citation: 166 Wn.2d 730,214 P.3d 141
• Parties: In Matter of PERSONAL RESTRAINT Petition OF Mark David MATTSON, Respondent.
• Court: Washington Supreme Court

214 P.3d 141

166 Wn.2d 730

In Matter of PERSONAL RESTRAINT Petition OF Mark David MATTSON, Respondent.

No. 81324-8.

Supreme Court of Washington, En Banc.

Argued January 13, 2009.

Decided August 20, 2009.

Alex A. Kostin, Criminal Justice Division, Gregory Joseph Rosen, John Joseph Samson, Office of the Attorney General, Criminal Justice Division, Olympia, WA, for Petitioner.

Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Respondent.

MADSEN, J.

¶ 1 Respondent Mark Mattson was convicted of the crime of indecent liberties by forcible compulsion and sentenced to 120 months incarceration followed by 36-48 months of community custody. As a sex offender, Mattson was ineligible for early release under RCW 9.94A.728(1).¹ However, with time for good behavior, he became eligible for transfer into community custody. RCW 9.94A.728(2).

¶ 2 Mattson submitted release plans as provided for in RCW 9.94A.728(2)(c). Following Department of Corrections (DOC) Policy Directive 350.200, which prohibits the release of sexually violent predators into the community, the DOC denied Mattson's transfer to community custody. Mattson filed a personal restraint petition (PRP) challenging the denial in the Court of Appeals, Division One. The Court of Appeals held that Mattson had a protected liberty interest in early release to community custody, granted his PRP, and directed DOC to conduct a substantive review of his proposed release residence. In re Pers. Restraint of Mattson, 142 Wash.App. 130, 172 P.3d 719 (2007). After reviewing and denying Mattson's most recent plan, DOC petitioned this court for discretionary review of the Court of Appeals' decision granting Mattson's PRP.

¶ 3 We now reverse and hold that RCW 9.94A.728(2) does not establish a protected liberty interest in early release to community custody. DOC had statutory authority to determine eligibility standards for sex offenders for release to community custody and it had authority to deny Mattson's eligibility for such release on the basis of the psychological evaluation. Because Mattson did not meet the eligibility criteria, DOC had no duty under the statute or DOC policy to evaluate the merits of Mattson's release plan.

FACTS

¶ 4 Mark Mattson has a history of sexual offenses against young girls. In 1985 he pleaded guilty to statutory rape for sexually assaulting a six year old. After three years at Western State Hospital's Sexual Psychopath Treatment Program, he was released. Mattson self-reported six to seven additional sexual assaults against children after his release from Western State. In 1998 Mattson was convicted of indecent liberties by forcible compulsion and sentenced to 120 months incarceration with an additional 36-48 months of community supervision at the completion of his sentence. His maximum term expired in November 2008.

¶ 5 In 2003, the DOC End of Sentence Review Committee reviewed Mattson's sentence and designated him a level three (highest risk) sex offender because his crimes were against unknown, vulnerable victims. In October 2003, the King County prosecutor's office asked DOC to forward all of Mattson's records so that they could initiate civil commitment proceedings. A November 6, 2003, entry in Mattson's "chrono report"² indicates that he "scores as stranger/predatory/imminent threat." Resp. of DOC, Attach. B at 6 (capitalization omitted).

¶ 6 In December 2003, Mattson was referred by DOC for a forensic evaluation by a department psychiatrist. Mattson refused to be interviewed for the evaluation. The department psychiatrist reviewed Mattson's records and criminal history and concluded that Mattson met the criteria for a sexually violent predator established in RCW 71.09.020.³ The psychiatrist based his determination on Mattson's prior unsuccessful treatments for sexual deviancy, his history of arrests for both sexual and nonsexual crimes, and Mattson's own admission that in addition to his two convictions for sex offenses, he had abused 50 to 60 victims — girls from the ages of three to ten. Suppl. Br. of DOC, App. 6, at 4. On August 9, 2005, DOC received the psychiatrist report reaffirming that Mattson met the criteria for a sexually violent predator. During the 2005 evaluation, the psychiatrist conducted a clinical interview with Mattson during which Mattson described his technique for approaching "single children in residential areas" and his history of abuse against prostitutes as well as abuse of drugs and alcohol. Suppl. Br. of DOC, App. 5, at 5 (emphasis omitted), 6-7.

¶ 7 Starting in November 2003, Mattson submitted a total of six plans for release to community custody.⁴ Mattson's sixth plan was submitted on April 19, 2006. The corrections officer did not conduct a site investigation of the sixth plan and denied it on the basis of a DOC policy directive stating that for sexually violent predators, "no proposed community release plan will be deemed sufficiently safe to ensure community protection."⁵ Suppl. Br. of DOC, App. 4, at 2.

¶ 8 The Court of Appeals held RCW 9.94A.728(2) does not "authorize DOC to categorically exempt offenders who meet the criteria of sexually violent predators" and directed DOC to consider Mattson's "most recent release plan and proposed residence ... on its merits."⁶ Mattson, 142 Wash. App. at 140, 172 P.3d 719.

ANALYSIS

¶ 9 As an initial matter, we address the court's authority to issue an opinion in Mattson's case. It is clear from the record that Mattson's maximum term expired in November 2008. The expiration of Mattson's maximum term technically renders his case moot. In re Cross, 99 Wash.2d 373, 376-77, 662 P.2d 828 (1983) ("A case is moot if a court can no longer provide effective relief."). However, "[t]he Supreme Court may, in its discretion, retain and decide an appeal which has otherwise become moot when it can be said that matters of continuing and substantial public interest are involved." Sorenson v. City of Bellingham, 80 Wash.2d 547, 558, 496 P.2d 512 (1972). "Criteria to be considered in determining the `requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.'" Id. (quoting People ex rel. Wallace v. Labrenz, 411 Ill. 618, 622, 104 N.E.2d 769 (1952)). "[M]ost cases in which appellate courts utilized the exception to the mootness doctrine involved issues of constitutional or statutory interpretation." In re Pers. Restraint of Mines, 146 Wash.2d 279, 285, 45 P.3d 535 (2002) (citing Hart v. Dep't of Soc. & Health Servs., 111 Wash.2d 445, 449, 759 P.2d 1206 (1988)).

¶ 10 The interpretation of RCW 9.94A.728 and the Court of Appeals' holding that offenders have a protected liberty interest in early release to community custody present issues of a "public nature." See In re Marriage of Horner, 151 Wash.2d 884, 892, 93 P.3d 124 (2004) (holding issue to be "of a public nature" because it involved interpretation of a statute and because the Court of Appeals' opinion was not limited to the facts). Additionally, though this court can no longer provide Mattson relief, his situation is not unique. In 2007 alone Washington sentenced 915 people for felony sex crimes. Washington State Statistical Analysis Center, Criminal Justice Data Book, available at http://wa-state-ofm.us/CrimeStatsOnline/index.cfm (last visited Apr. 23, 2009). DOC has an ongoing duty to assess the risk level of sex offenders and their potential for release into the community. RCW 72.09.340(1) ("In making all discretionary decisions regarding release plans for and supervision of sex offenders, the department shall set priorities and make decisions based on an assessment of public safety risks."). This ongoing duty, coupled with continuing criminal activity, ensures that issues regarding the interpretation of RCW 9.94A.728 are likely to recur. Therefore, "the real merits of the controversy remain unsettled," namely, whether RCW 9.94A.728 creates a due process liberty interest in early release to community custody and whether DOC's policy that "no plan" will adequately protect the community from sexually violent predators violates that due process interest. Sorenson, 80 Wash.2d at 558, 496 P.2d 512. We are, therefore, persuaded that the question presented should be decided here.

¶ 11 DOC asserts "[t]he Court of Appeals' finding of a protected liberty interest in RCW 9.94A.728(2)" is erroneous and in conflict with prior decisions of this court. Mot. for Discretionary Review at 10. We agree.

¶ 12 "`A liberty interest may arise from the Constitution,' from `guarantees implicit in the word "liberty,"' or `from an expectation or interest created by state laws or policies'." In re Pers. Restraint of Bush, 164 Wash.2d 697, 702, 193 P.3d 103 (2008) (internal quotation marks omitted) (quoting In re Pers. Restraint of McCarthy, 161 Wash.2d 234, 240, 164 P.3d 1283 (2007)). "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); In re Pers. Restraint of Cashaw, 123 Wash.2d 138, 144, 866 P.2d 8 (1994). For a state law to create a liberty interest, it must place substantive limits on official decision making in the form of "`specific directives to the decisionmaker that if the regulations' substantive predicates are present, a particular outcome must follow'."⁷ Cashaw, 123 Wash.2d at 144, 866 P.2d 8 (quoting Ky. Dep't of Corr. v. Thompson, 490 U.S 454, 463, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)); Swenson v. Trickey, 995 F.2d 132, 134 (8th Cir.), cert. denied, 510 U.S. 999, 114 S.Ct. 568, 126 L.Ed.2d 468 (1993). Only statutes that prescribe a given outcome for a specific set...