In re Personal Restraint Petition of Walters
| Decision Date | 08 December 2020 |
| Docket Number | 54062-2-II |
| Court | Washington Court of Appeals |
| Parties | In the Matter of the Personal Restraint Petition of JAMES LEE WALTERS, Petitioner. |
UNPUBLISHED OPINION
James L. Walters, an inmate serving an indeterminate sentence petitions for release from restraint arguing that the Indeterminate Sentence Review Board (ISRB) erroneously denied his release. Walters was convicted in 2008 of kidnapping in the first degree with sexual motivation and indecent liberties with forcible compulsion.
Walters filed this personal restraint petition (PRP) after the third ISRB decision.[1] He argues that the ISRB violated his procedural due process rights by relying on acquitted conduct, namely conduct constituting a crime for which he was acquitted in 1983, in its decision to deny release. Walters also argues that the ISRB violated his due process rights by treating the acquitted conduct as conclusively proven, that ISRB's determination was not supported by sufficient evidence, and that considering the acquitted conduct was an abuse of discretion.
We hold that the ISRB did not violate Walters's due process rights by relying on the acquitted conduct at issue here sufficient evidence supports the ISRB determination, and the ISRB did not abuse its discretion by considering the acquitted conduct. Accordingly, we deny Walters's petition.
James L. Walters was convicted in 2008 of kidnapping in the first degree with sexual motivation and indecent liberties with forcible compulsion. Walters was 40 years old at the time of the crime. The victim, a 12-year-old girl, was a person Walters knew. The judge sentenced Walters to an indeterminate sentence with a minimum term of 68 months and a maximum of life.
Walters filed a direct appeal to this court in 2008. State v Walters, No. 64967-1-I, (Wash.Ct.App. November 11 2008). We affirmed Walters's conviction. See State v Walters, noted at 156 Wn.App. 1026, 2010 WL 2283570, at *5 (unpublished) (Walters I). Our Supreme Court denied his petition for review. State v. Walters, 171 Wn.2d 1016, 253 P.3d 392 (Table) (2011).
Since then, the ISRB has held hearings under RCW 9.95.420 (.420 hearing) regarding Walters's release. Each time, the ISRB denied release. The history of these proceedings is helpful in understanding both the ISRB decision at issue here and Walters's petition.
Walters's first .420 hearing was in 2013. At that hearing, Walters denied that he had committed a sex offense and at the time had not undergone any sex offender treatment. Because Walters had an earlier PRP pending at the time of this first .420 hearing, he chose not to fully participate in the .420 hearing or in the sex offender treatment and assessment program (SOTAP).[2] In its decision and reasons for denying Walters's release in the 2013 .420 hearing, the ISRB stated that it relied in part on a 2013 report from the End of Sentence Review Committee (ESRC).[3]
In its 2013 report, the ESRC determined that Walters was a "moderate/low" and "low" risk, respectively, in two actuarial assessments of risk to reoffend. However, the ESRC determined Walters was a Level III sex offender risk for community notification, based on aggravating factors of past interventions not deterring sexually deviant behavior, and "[d]ocumented information that increases risk for sexual re-offense," that included a description of the 1983 charges, as well as his psychological history and treatment. Level III is the highest risk level.
The ESRC based this risk level, in part, on 1983 charges for which Walters was acquitted, plus a recommendation from the sexually violent predator (SVP) subcommittee that Walters be psychologically evaluated for post-confinement civil commitment as a sexually violent predator under RCW 71.09.020.[4] In 1983, Walters was charged with first degree rape and first degree burglary. He was 17 years old at the time. The victim in that case was the 15-year-old sister of one of Walters's friends. Walters's friend had told Walters that the victim would be home from school that day. Walters had access to the victim's house because he knew where the key was and had used it to access the house to pick up his friend on the morning of the attack. The victim's family also had two dogs, which did not react to the intruder. The victim described the assailant was a white teen male. A state crime lab examined semen recovered from the victim and determined Walters had the same blood type as the assailant. Walters also participated in a polygraph examination, the results of which noted deceptive responses.
The ISRB did not grant Walters's release after the 2013 .420 hearing, so it added 36 months to Walters's minimum term as provided in RCW 9.95.011 and .420(3)(a). As explained in its decision and reasons for denying release, the ISRB based its decision on his Department of Corrections (DOC) and ISRB files. These files included the ESRC report-which contained information on his 1983 charges, Walters's level III risk, and "information regarding institutional behavior and programming." Response of ISRB (Ex. 3 at 4-5). The decision and reasons listed Walters's risk level, his referral to the SVP subcommittee, and his lack of participation in SOTAP and other mitigation programs or treatment.
Walters's second .420 hearing was in April 2016. At that time, Walters had begun SOTAP and provided a statement to the ISRB. According to the ISRB's report, Walters's description of his current offense had "some elements that were consistent with file material and others that were not." Response of ISRB (Ex. 4 at 6). Walters had made inconsistent statements about planning the crime and thoughts of hurting the victim: he stated in a disclosure to ISRB that he had planned for approximately one month to rape the victim, but he also stated he had not planned the attack and that there was no sexual element or motivation to his crime. The ISRB also relied on the 2013 ESRC report again. In its decisions and reasons for denying release, the ISRB included information describing Walters's acquitted conduct. The ISRB again denied Walters's release and set a new minimum release date 36 months in the future.
Walters appealed the ISRB's 2016 decision to this court in a PRP. In re Pers. Restraint of Walters, No. 46370-9-II, (Wash.Ct.App. Mar. 15, 2016) (unpublished) (Walters II), http://www.courts.wa.gov/opinions/pdf/D2%2046370-9-II%20Unpublished%20Opinion.pdf. There, Walters argued, among other things, that the ISRB abused its discretion by considering evidence of the prior acquitted conduct. Walters II, slip op. at 5. We denied Walters's petition, holding that the ISRB did not abuse its discretion in considering the ESRC level classification, Walters II, slip op. at 9-10. We did not reach-and Walters did not argue-whether the ISRB's consideration of acquitted conduct was itself a due process violation.
Walters's third .420 hearing-the one at issue here-occurred in December 2017. Prior to this hearing, the ESRC again reviewed Walters's case. The ESRC actuarial assessments, although still "low" and "low/moderate," were raised slightly because Walters had incurred an infraction for possessing a weapon. Response of ISRB (Ex. 7 at 1). The ESRC continued to list Walters at a Level III community notification risk. The ESRC based this determination in part on "documented information that increases risk for sexual re-offense," including the 1983 charges. Response of ISRB (Ex. 7 at 1, 6). The ESRC again recommended that Walters be reviewed for civil commitment by the SVP subcommittee if the ISRB were to recommend release.
By the 2017 .420 hearing, Walters had completed SOTAP and other programs. He also provided a statement to the ISRB. He denied any involvement in the 1983 crime but did not present any evidence on the matter. The ISRB again noted that Walters's description of his offense had some elements that were consistent with the file material and others that were not. Whereas previously Walters had stated he premeditated the assault for a month, he stated at the 2017 hearing that he had considered it for a year. He also stated that his motivation was primarily revenge against the victim's father and anger at the victim, but was not sexual. When the ISRB asked Walters about the SOTAP discharge summary in which Walters stated he thought about raping the victim for two months, Walters denied making the comment. Walters admitted to SOTAP counselors that the crime had a sexual element, but maintained at the hearing that sex was not a motivating factor. Walters told the counselors that the victim's lack of struggle probably saved her from further rape or injury. However, Walters told the ISRB that anger at the victim and the victim's father was his primary motivator and the primary factor in his premeditation.
The ISRB denied Walters release and added 36 months to his minimum term. In its decisions and reasons, the ISRB conducted a review of all information in Walters's DOC and ISRB files. The ISRB relied on the ESRC report, a history of Walters's charges, information from the DOC information from institutional behavior programming, a presentence investigation report filed in the index case, and the testimony of Walters and his counselors. In its reasons for denying release, the ISRB listed that Walters was a Level III notification risk, that the ESRC had referred Walters to the SVP subcommittee, and that Walters was inconsistent in describing the crime. The ISRB found Walters's explanations...
To continue reading
Request your trial