IN RE TURAY

• Decision Date: 18 November 2004
• Docket Number: No. 74556-1.,74556-1.
• Parties: In the Matter of the Personal Restraint Petition of Richard Garrett TURAY, Petitioner.
• Court: Washington Supreme Court

101 P.3d 854

153 Wash.2d 44

In the Matter of the Personal Restraint Petition of Richard Garrett TURAY, Petitioner.

No. 74556-1.

Supreme Court of Washington, En Banc.

Argued May 25, 2004.

Decided November 18, 2004.

Sheryl Gordon McCloud, Seattle, for Petitioner/Appellant.

Norman Kim Maleng, Brooke Elizabeth Burbank, Deputy, David J.W. Hackett, Deputy, Seattle, for Appellee/Respondent.

MADSEN, J.

Personal restraint petitioner Richard G. Turay seeks release from civil commitment as a sexually violent predator, arguing that the State was required but failed to plead and prove a recent overt act at his commitment trial. We dismiss Turay's personal restraint petition as an abuse of the writ.

FACTS

On October 19, 1994, Turay was committed as a sexually violent predator under the community protection act, chapter 71.09 RCW. His history of sexually violent crimes includes convictions for third degree rape committed in 1977, second degree rape in 1979, and second degree rape in 1985. On October 24, 1989, he was released on parole. Parole was revoked after Turay was found guilty of committing fourth degree assault June 5, 1990, on a woman flight attendant staying in a hotel, and of failing to submit to a polygraph. Turay was returned to the Department of Corrections to complete his sentence on the 1979 rape.

On December 15, 1993, while Turay was still incarcerated, the King County Prosecutor petitioned for Turay's commitment as a sexually violent predator. The petition did not allege that Turay had committed a "recent overt act," an act that either caused harm of a sexually violent nature or created a reasonable apprehension of such harm.

At the commitment trial¹ the court instructed the jury that to find Turay to be a sexually violent predator, the State had to prove that Turay had been convicted of a crime of sexual violence (rape in the second degree) and that he suffered from a mental abnormality that makes him likely to engage in predatory acts of sexual violence. The jury was not instructed as to a "recent overt act." The jury returned a verdict finding Turay to be a sexually violent predator. The court ordered Turay committed as a sexually violent predator.

Turay challenged his commitment by both appeal and personal restraint petition, consolidated in In re Detention of Turay, 139 Wash.2d 379, 415-22, 986 P.2d 790 (1999) (Turay I). The personal restraint petition repeated the same claims made in the appeal, except for an untimely challenge to the 1977 conviction. The court dismissed the personal restraint petition after determining that Turay's appeal was timely and he therefore had an adequate remedy for all of the claims in the personal restraint petition except the untimely challenge to the 1977 conviction. Turay I, 139 Wash.2d at 394-95, 395 n. 11,986 P.2d 790. The court affirmed the commitment order. Turay filed a second personal restraint petition, arguing that the community protection act violated double jeopardy principles "as applied" because the conditions of his confinement were punitive. On September 7, 2001, the court dismissed this personal restraint petition as frivolous in light of the decision in Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001). In May 2002, Turay filed a third personal restraint petition in the Court of Appeals. Following transfer of the petition to this court, it was dismissed as a mixed petition that included a claim time barred under RCW 7.36.130(1) (which incorporates the time allowed in RCW 10.73.090 and RCW 10.73.100 for filing a petition). In re Pers. Restraint of Turay, 150 Wash.2d 71, 74 P.3d 1194 (2003) (Turay II).

On October 1, 2003, Turay filed this, his fourth, personal restraint petition.

ANALYSIS

The State contends that Turay's personal restraint petition should be dismissed as an abuse of the writ. Initially, we agree with the United States Supreme Court that the government has the burden of pleading abuse of the writ. McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). Thus, we conclude under state law that before we will consider dismissing a personal restraint petition on the basis that it constitutes an abuse of the writ, the State must allege an abuse of the writ, note the petitioner's prior history of personal restraint petitions, and identify the claims that appear for the first time.

A prisoner's second or subsequent personal restraint petition that raises a new issue for the first time will not be considered if raising that issue constitutes an abuse of the writ. In re Pers. Restraint of Jeffries, 114 Wash.2d 485, 487-88, 789 P.2d 731 (1990). We have held that "if the [defendant] was represented by counsel throughout postconviction proceedings, it is an abuse of the writ for him or her to raise ... a new issue that was `available but not relied upon in a prior petition.'" Jeffries, 114 Wash.2d at 492, 789 P.2d 731 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 444 n. 6, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986)).<sup>2</sup> No abuse of the writ will be found where a claim is based on newly discovered evidence or intervening changes in case law because they would not have been "available" when the earlier petition was filed. Jeffries, 114 Wash.2d at 492, 789 P.2d 731. However, "[i]f ... counsel was fully aware of the facts supporting the `new' claim when the prior petition was filed, and there are no pertinent intervening developments, raising the `new' claim for the first time in a successive petition constitutes needless piecemeal litigation and, therefore, an abuse of the writ." Id. RCW 10.73.140, which concerns the Court of Appeals' jurisdiction to decide successive personal restraint petitions raising new issues, does not apply to personal restraint petitions filed in this court. In re Pers. Restraint of Johnson, 131 Wash.2d 558, 566, 933 P.2d 1019 (1997). Thus, the only direct bar to raising new issues in this court is the abuse of the writ doctrine. In re Pers. Restraint of Stoudmire, 141 Wash.2d 342, 352, 5 P.3d 1240 (2000).

Before a person can be civilly committed, due process requires proof that he or she is both mentally ill and presently dangerous. Addington v. Texas, 441 U.S. 418, 426, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re Pers. Restraint of Young, 122 Wash.2d 1, 27, 857 P.2d 989 (1993) (citing Addington and Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). In 1993 we held that a sex predator petition for involuntary commitment of a nonincarcerated person must include an allegation of a recent overt act sufficient to establish probable cause, when considered together with other factors in RCW 71.09.040, to believe that the person is a sexually violent predator. Young, 122 Wash.2d at 41-42, 857 P.2d 989. Proof of a recent overt act serves to establish current dangerousness. In re Det. of Albrecht, 147 Wash.2d 1, 11, 51 P.3d 73 (2002). However, where the individual is incarcerated prior to commitment, the requirement that the State allege and prove a recent overt act would be impossible to meet. Thus, no evidence of a recent overt act is required in these circumstances because due process does not require that the absurd be done before a compelling state interest may be vindicated. Young, 122 Wash.2d at 27, 857 P.2d 989.

Following Young, the court considered whether the recent overt act requirement applies under particular circumstances. In re Detention of Henrickson, 140 Wash.2d 686, 2 P.3d 473 (2000) involved two cases where individuals found to be sexually violent predators were released into the community after their sexually violent offenses but before they were incarcerated on those offenses. Both individuals were incarcerated for their sex offenses at the time the State filed sexually violent predator petitions. We held "that when, at the time the petition is filed, an individual is incarcerated for a sexually violent offense, or for an act that itself would have constituted a recent overt act, due process does not require the State to prove a further overt act occurred between arrest and release from incarceration." Henrickson, 140 Wash.2d at 697, 2 P.3d 473. In Albrecht, the petitioner had served the part of his sentence calling for incarceration and had been released on community placement. He violated the conditions of community placement, and while he was in total confinement for this violation the State petitioned for his commitment as a sexually violent predator. The State did not allege or prove a recent overt act. We held that under these circumstances due process required that the State prove a recent overt act because the individual had been released into the community after completing his or her period of incarceration on the violent sex offense and was incarcerated for a community placement violation that the record did not establish was itself a recent overt act.

Turay argues that Albrecht controls his case, reasoning that like the petitioner in Albrecht, he was released into the community following incarceration on a sexually violent offense. He maintains that because the State failed to plead and prove a recent overt act, his commitment as a sexually violent predator violates due process. The State says, however, that this case is more like Henrickson, reasoning that after parole was revoked Turay was in total confinement on a sexually violent offense — the 1979 second degree rape — at the time the petition for commitment was filed. See Henrickson, 140 Wash.2d at 697, 2 P.3d 473 (no proof of a recent overt act is required when the individual is incarcerated for a sexually violent offense at the time the petition is filed).

The issue Turay has raised was not raised in his first or second personal restraint petitions.³ Additionally, the State argues that it is an issue that was available at the time he filed his earlier petitions. We agree. Contrary to Turay's argument, Albrecht simply applied the holding in Young regarding the State's...