Personal Restraint Petition Of Paul Andrew Geier ( 2016 )

Filed
Washington State
Court of Appeals
Division Two
March 1, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Personal Restraint Petition of: No. 45540-4-II
PAUL ANDREW GEIER
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — Paul Andrew Geier filed a personal restraint petition (PRP). In the PRP,
he argues that he received ineffective assistance of counsel both during his civil commitment trial
where a jury determined he was a sexually violent predator (SVP) and during his direct appeal.
He also argues that the appellate court violated his due process and equal protection rights by
denying him the opportunity to file a statement of additional grounds (SAG) in his direct appeal.
Geier fails to satisfy the prejudice prong of his ineffective assistance of counsel claims and he was
not entitled to file a SAG. We deny Geier’s petition.
FACTS
In 1992, Geier pleaded guilty to three counts of rape of a child in the first degree. The trial
court sentenced him to 194 months’ incarceration. On May 15, 2008, the State filed a petition
seeking Geier’s involuntary civil commitment as a SVP, under chapter 71.09 RCW.
CIVIL COMMITMENT PROCEEDING
Geier’s civil commitment proceeding began on May 25, 2011. Pretrial, the court granted
an agreed motion in limine, precluding questions related to prior bad acts or crimes committed by
witnesses, other than Geier, “unless and until this Court rules such evidence admissible after an
45540-4-II
offer of proof or hearing is held outside the presence of the jury.” Clerk’s Papers (CP) at 299.
Both the State and Geier called expert witnesses to testify.
The State’s expert witness, Dr. Harry Hoberman, testified that he diagnosed Geier with a
nonexclusive form of pedophilia and an antisocial personality disorder. Furthermore, he testified
that due to these disorders, Geier had serious difficulty controlling his sexually violent behavior.
He stated that in his opinion, Geier
is, in fact, characterized by a mental abnormality and a personality disorder that
causes him serious difficulty and control and that make him more probable than not
to sexually re-offend . . . and that he would be more probable than not to commit
predatory acts of sexual violence if not confined to a secure facility.
Report of Proceedings (RP) (June 2, 2011) at 682.
Geier’s expert witness, Dr. Robert Halon, testified that Geier was a pedophile and there is
“nothing in the diagnostic criteria for pedophilia about being predisposed to acting on it.” RP
(June 7, 2011) at 1050. Halon also testified that his examination of Geier did not reveal a mental
disorder, stating there is “no evidence that [Geier] doesn’t know what he’s doing whenever he’s
doing it.” RP (June 7, 2011) at 1005. He further stated that Geier did not suffer from a mental
condition that would make him act on his pedophilic interests. Halon testified about his own
qualifications and credentials. He also questioned and critiqued some of Hoberman’s testimony.
During cross-examination, Halon acknowledged that the California Department of Mental
Health had previously terminated his contract and removed him from its panel of evaluators in the
1990’s; that revocation of his license due to a complaint filed against him by the California Board
of Psychology in 1998 was stayed; and, that he entered into a stipulated settlement of the issue in
1999.
Geier’s counsel objected to the State’s questioning, arguing that the motion in limine
prevented impeachment of the expert witness in regards to his prior bad acts. The State responded
2
45540-4-II
that the motion in limine was only applicable to non-expert witnesses and that Halon had testified
about his licensing status in every trial in which he provided expert testimony. Geier’s counsel
stated that the State did not provide the information to her before trial, that the “onus was on the
State,” and that introduction of the information violated the motion in limine. RP (June 8, 2011)
at 1193.
The court heard argument from both parties about whether or not the testimony should be
admitted. During argument, Geier moved for a mistrial. The State argued that Geier’s counsel
knew about the disciplinary issues prior to trial because counsel had contacted the State about
Halon’s disciplinary history months beforehand. Geier’s counsel responded that she had e-mailed
the State asking for information about Halon. The court requested the e-mail but neither party
could locate it.
The trial court found that the State’s line of questioning did not follow the procedure from
the order in limine but it denied Geier’s motion for a mistrial, stating that the order did not prohibit
the admission of all prior bad act evidence, but instead “meant that we would follow a procedure,
which we are now following.” RP (June 8, 2011) at 1204. The court found that the State’s
questioning would yield “precisely the type of information that is allowed in order to have the jury
fully and fairly evaluate the expert witness,” and allowed the testimony. RP (June 8, 2011) at
1204. Halon continued to testify and stated that he had been on probation for three years as part
of his 1999 stipulated settlement. He also stated that his practice had “not been interrupted for a
minute in the 30-something years [he] had the license.” RP (June 8, 2011) at 1207. The State and
Geier’s counsel questioned Halon about his evaluations of Geier and the information Halon
reviewed and gained from interviews with Geier.
3
45540-4-II
After the trial ended, the State provided the trial court the referenced e-mail that Geier’s
counsel sent to the State on January 31, 2011. The e-mail regarded a different client from a
separate case but stated,
[W]e recently received some information regarding Dr. Halon which will require
we request a 2nd expert on this case. We were informed of a 1995 disciplinary
action and a recent matter where our client Mr. [X] was mentioned in an evaluation
Dr. Halon did for one of his other client’s. Let me know if you would be objecting
to our request and if you are then we will schedule a motion to address this issue.
CP at 566.
In addition to Hoberman’s testimony, the State provided Geier’s history of charged and
uncharged offenses from the ages of 15 to 27. Geier previously pleaded guilty to three counts of
rape of a child in the first degree, involving four different boys. During treatment, Geier also
admitted to 44 incidents of sexual assault against 20 to 37 male and female victims who were
between the ages of 2 and 20. The State presented testimony from several counselors about Geier’s
time in treatment. The counselors opined that Geier had issues following rules, acting out, and
having prohibited relationships with other individuals in treatment and during his commitment.
Geier testified and presented testimony from several other witness, including his Buddhist
teacher, his brother, and a support service provider from his childhood with whom he still
communicated. These individuals testified that Geier had made positive progress. They testified
about Geier’s involvement with Buddhism over the past fifteen years, his treatment, and his taking
responsibility for his actions. Additionally, a polygraph examiner, who administered a
plethysmograph test on Geier, testified about Geier’s arousal response to the test.
On June 14, 2011, the jury found Geier to be a SVP and the court entered an order
committing Geier to the Special Commitment Center, in the custody of the Department of Social
and Health Services.
4
45540-4-II
DIRECT APPEAL
Geier filed a direct appeal from the order of commitment. The trial court found Geier
indigent and he was appointed counsel. Geier communicated with his appellate counsel through
written correspondence and appears to have expressed concern about Halon’s testimony because
his appellate counsel wrote him, “I understand your concern regarding Dr. Halon’s background.”1
PRP Appendix A. Additionally, in a letter to Geier dated May 9, his appellate counsel stated,
“Please be assured that the issue pertaining to your expert witness will be fully addressed in the
reply brief.” PRP Appendix A. In this same letter, appellate counsel told Geier that RAP 10.1(h)
“is not for the purpose of moving to file a supplemental brief at this point in the appeal process.”
PRP Appendix A. Geier’s appellate counsel also informed him that the filing of a SAG is only
permitted in criminal cases.
On January 28, 2013, Geier’s appellate counsel wrote him a letter updating him on the
status of his appeal. In the letter she stated,
The Court of Appeals will consider your case on March 1, 2013. . . .
Depending on what the Court decides, I will advise you further at that time.
Unfortunately, my appointment as appellate counsel does not extend to the
Supreme Court. However, as I have explained, we should await the outcome and
determine how to best proceed at that point.
PRP Appendix A.
In his appeal, one of Geier’s arguments related to the trial court denying his motion for a
mistrial after the State questioned Halon about his disciplinary issues. In re Det. of Geier, 174
Wn. App. 1036, 2013 WL 1489825, at *2. We held that the State violated the order in limine by
beginning to question Halon before making an offer of proof, but that Geier did not suffer “any
1
In his PRP, Geier did not provide us with any of his own letters to appellate counsel, only the
letters he received.
5
45540-4-II
prejudice, let alone prejudice for which a new trial is the only available remedy.” Geier, 2013 WL
1489825, at *3. Additionally, because Geier argued ineffective assistance of trial counsel for the
first time in his reply brief, we did not consider the argument. See Geier, 2013 WL 1489825, at
*3 n.2.
Geier’s appellate counsel wrote Grier again on April 12, 2013, notifying him of our
decision in his direct appeal and informing him a second time that her representation did not extend
to a discretionary appeal to the Supreme Court, but that “many appellants file motions for
reconsideration or petitions for review pro se.” PRP Reply Br. Appendix A. She included Rules
of Appellate Procedure (RAP) to aid him and generally explained his options going forward. She
stated, “If the Supreme Court grants your petition, it will appoint an attorney to represent you upon
request due to your indigent status.” PRP Reply Br. Appendix A.
On April 25, 2013, Geier filed a pro se motion for reconsideration, which we denied. We
mandated the direct appeal on August 13. Geier now files a PRP.
ANALYSIS
Geier argues that he received ineffective assistance of counsel at his commitment
proceeding and during his direct appeal. He also argues that the appellate court violated his due
process and equal protection rights by denying him the opportunity to file a SAG. We disagree.
I. STANDARD OF REVIEW
In a PRP, a petitioner must state the facts on which he bases his claim of unlawful restraint
and describe the evidence available to support the allegations; conclusory allegations alone are
insufficient. In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 176, 248 P.3d 576 (2011); RAP
16.7(a)(2)(i). “As a threshold matter, it is important to note that a personal restraint petitioner may
not renew an issue that was raised and rejected on direct appeal unless the interests of justice
6
45540-4-II
require relitigation of that issue.” In re Pers. Restraint of Lord, 123 Wn.2d 296, 303, 868 P.2d
835 (1994). A “ground for relief” is a distinct legal basis for granting relief and is considered
“raised and rejected on direct appeal” if the same ground presented in the petition was determined
adversely to the petitioner on appeal and the prior determination was on the merits. In re Pers.
Restraint of Davis, 152 Wn.2d 647, 671 n.14, 101 P.3d 1 (2004); In re Pers. Restraint of Johnson,
131 Wn.2d 558, 564, 933 P.2d 1019 (1997). “A [petitioner] may not recast the same issue as an
ineffective assistance claim; simply recasting an argument in that manner does not create a new
ground for relief or constitute good cause for reconsidering the previously rejected claim.” In re
Pers. Restraint of Stenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001).
We consider the arguments raised in a PRP under one of two different standards, depending
on whether the argument is based on constitutional or nonconstitutional grounds. Davis, 152
Wn.2d at 671-72. A petitioner raising constitutional error must show by a preponderance of the
evidence that the error caused actual and substantial prejudice. Davis, 152 Wn.2d at 671-72. In
contrast, a petitioner raising nonconstitutional error must show a fundamental defect resulting in a
complete miscarriage of justice. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 251, 172 P.3d
335 (2007). However, a petitioner arguing ineffective assistance of counsel need not show more
prejudice on collateral attack than on direct appeal. In re Pers. Restraint of Crace, 174 Wn.2d
835, 845-46, 280 P.3d 1102 (2012).
In evaluating personal restraint petitions, we may: (1) dismiss the petition if the petitioner
fails to make a prima facie showing of constitutional or nonconstitutional error; (2) remand for a
full hearing if the petitioner makes a prima facie showing but the merits of the contentions cannot
be determined solely from the record; or (3) grant the personal restraint petition without further
7
45540-4-II
hearing if the petitioner has proven actual prejudice or a miscarriage of justice. Stockwell, 160
Wn. App. at 176-77.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Geier argues that he received ineffective assistance from both his trial counsel and his
appellate counsel. We disagree.
“Persons who are the subject of an SVP commitment proceeding have a statutory right to
the assistance of counsel.” State v. Ransleben, 135 Wn. App. 535, 540, 144 P.3d 397 (2006); RCW
71.09.050(1). The right to counsel is meaningless unless it includes the right to effective counsel.
In re Det. of T.A.H.-L, 123 Wn. App 172, 179, 97 P.3d 767 (2004). Washington has adopted the
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test to
determine whether counsel was ineffective. State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d
1011 (2001).
First, a defendant must show that counsel’s performance was deficient. State v.
McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). Performance is deficient if it falls
‘“below an objective standard of reasonableness.’” State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011) (quoting Strickland, 466 U.S. at 688). And second, a defendant must show that there
is a reasonable probability that such deficient performance prejudiced him. McFarland, 127
Wn.2d at 335. A “reasonable probability” means a probability “sufficient to undermine confidence
in the outcome.” State v. Leavitt, 49 Wn. App. 348, 359, 743 P.2d 270 (1987). To prevail, a
petitioner must establish both elements of the test. Davis, 152 Wn.2d at 673.
A defendant alleging ineffective assistance must overcome “a strong presumption that
counsel’s performance was reasonable.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
“When counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance
8
45540-4-II
is not deficient.” Kyllo, 166 Wn.2d at 863. Because ineffective assistance of counsel claims
present mixed questions of law and fact, we review them de novo. In re Pers. Restraint of Brett,
142 Wn.2d 868, 873, 16 P.3d 601 (2001).
A. Ineffective Assistance of Trial Counsel
Geier points to three areas in which his trial counsel’s performance was deficient. Geier
argues that his trial counsel did not adequately investigate Halon, that his trial counsel failed to
discuss the disciplinary history with him, and that his trial counsel improperly relied on the motion
in limine to keep the evidence out. He also contends that this conduct prejudiced him. 2 Geier
states that he was particularly prejudiced because, “when the jury hear[d] that the State of
California does not trust [Halon], there is very little probability that the members of the jury
[would] believe [Halon].” Supp. Br. of Petitioner at 24.
Chapter 71.09 RCW provides that a person may be committed to a secure facility
indefinitely if he or she is found to be a sexually violent predator. RCW 71.09.060(1). A sexually
violent predator is “any person who has been convicted of or charged with a crime of sexual
violence and who suffers from a mental abnormality or personality disorder which makes the
person likely to engage in predatory acts of sexual violence if not confined in a secure facility.”
RCW 71.09.020(18). The State must show that the offender is both mentally ill and that the mental
illness causes the offender to be presently dangerous. In re Det. of Brown, 154 Wn. App. 116,
2
The State argues that Geier’s argument is merely recasting his contention on direct appeal as an
ineffective assistance of counsel claim. We disagree. Geier’s argument does entirely spring from
the admission of Halon’s disciplinary history. However, we only considered the prejudicial impact
of violating the motion in limine on direct appeal, not the prejudicial impact of having Halon as
an expert witness. In the direct appeal, we considered whether Geier was prejudiced by the early
admission of evidence that would have come in anyway. In the PRP, we also consider whether
Geier was prejudiced by his counsel’s decision to use the witness at all. In the first instance, we
decided that once Halon was called, the evidence would come in. We will consider Geier’s
argument as a separate ground for relief from his direct appeal.
9
45540-4-II
122, 225 P.3d 1028 (2010). The statute also provides that any indigent person, subjected to an
evaluation under the chapter, is entitled to one expert or professional person to conduct an
evaluation on the person’s behalf, at the expense of the office of public defense. RCW
71.09.050(2), .055.
In order to prevail on his ineffective assistance of counsel claim, Geier must show that his
counsel was deficient, McFarland, 127 Wn.2d at 334, and that the deficient performance of his
counsel prejudiced his trial, to the point that it undermined confidence in the result. Leavitt, 49
Wn. App. at 359. If either prong is not satisfied, Geier’s claim must fail. Davis, 152 Wn.2d at
673. Geier cannot satisfy the prejudice prong of the test, much less demonstrate that counsel’s
performance was deficient.
First, using Halon as an expert witness does not automatically equate to deficient
performance. Halon is a very knowledgeable and frequently utilized expert witness for the
defense. Despite the possibility for impeachment, Halon also was able to critique the State’s expert
witness and to provide extensive information and analysis from years of experience. Halon
testifies about his disciplinary history in almost every trial for which he is an expert witness and
the incidents were twelve years prior. Additionally, defense counsel put on several other witnesses
including, Geier’s Buddhist teacher, his brother, and a support service provider from his childhood
with whom he still communicated. All of these individuals provided testimony indicating Geier
had made positive progress.
Defense counsel’s decision to call Halon, rather than showing a failure to conduct
reasonable research, appears to have been a legitimate trial tactic. Furthermore, during oral
argument, Geier’s counsel seemed to abandon the argument that trial counsel failed to investigate
Halon, acknowledging the parts of the record that demonstrated trial counsel likely did know, and
10
45540-4-II
instead focused on how trial counsel controlled the information as it was delivered to the jury. At
oral argument, Geier did not argue the impeachment evidence was inadmissible; rather, he argued
it should have come in on direct examination and not cross-examination. However, there is more
than one way to present admissible impeachment evidence. Based on a review of the entire trial
record, trial counsel’s overall performance was objectively reasonable.
Second, Geier cannot show there is a reasonable probability that counsel’s performance
prejudiced him. See Leavitt, 49 Wn. App. at 359. Halon testified extensively over three separate
days about his examination of Geier, his own qualifications and credentials, and his experience
providing this kind of expert testimony over many years. Halon attacked several of the State’s
expert witness’s positions and provided knowledgeable and clear information. Additionally, the
State provided testimony through direct and cross-examination that revealed Geier’s convictions,
his disclosed but uncharged offenses, and his behavior while in confinement and treatment.
Geier’s counsel put on a comprehensive case that showed the jury Geier’s progress and overall
transformation. Geier has failed to show how the use of this expert prejudiced him.
With respect to Geier’s contention at oral argument, Geier has also failed to show that
admissible testimony about Halon’s disciplinary history, presented on cross-examination and not
in direct evidence, prejudiced him. Moreover, the prejudicial impact of the admissible evidence
was already decided in his direct appeal. See Geier, 2013 WL 1489825, at *3.
We conclude that Geier received effective assistance from trial counsel.3
3
Geier also argues that if there is insufficient evidence to show that trial counsel’s representation
was deficient, there is sufficient evidence to warrant a reference hearing to determine what trial
counsel actually knew. We do not consider this argument because Geier cannot demonstrate
deficient performance or prejudice.
11
45540-4-II
B. Ineffective Assistance of Appellate Counsel
Geier also argues that he was denied effective assistance of appellate counsel because his
assigned counsel did not include ineffective assistance of his trial counsel in his direct appeal and
refused to appeal his case to the Washington Supreme Court. We disagree.
1. Ineffective Assistance of Counsel Claim
Geier argues that his appellate counsel’s conduct in not raising ineffective assistance of
trial counsel prejudiced him. He contends that he was prejudiced because he would have been
successful in the claim had his counsel properly raised the issue. However, as is explained above,
we hold that Geier did not receive ineffective assistance of counsel at trial. Thus, Geier’s claim
that his appellate counsel provided deficient representation also fails.
2. Appeal to the Washington Supreme Court
Geier also contends that as a result of his appellate counsel’s conduct, his opportunity to
appeal to the Washington Supreme Court was forfeited. He argues that his appellate counsel lied
to him, or at least misled him, when she told him her appointment did not extend to representation
in a discretionary appeal to the Washington Supreme Court.
After we issued our decision on his direct appeal, Geier’s appellate counsel wrote him to
express her predictions on the success of a motion to reconsider, to remind him that her
representation did not extend to a discretionary appeal to the Washington Supreme Court, and to
provide him options about going forward pro se. She stated, “If the Supreme Court grants your
petition, it will appoint an attorney to represent you upon request due to your indigent status,” and
she included relevant portions of the RAP. PRP Reply Br. Appendix A. The letter in no way
deterred Geier from pursuing further appeals. Geier has neither shown that his appellate counsel’s
conduct was deficient nor that it prejudiced him. He has merely asserted that the reason he did not
12
45540-4-II
file a discretionary appeal was that his counsel wrote him a letter saying her representation would
not extend to filings in the Supreme Court.
A petitioner must do more than make conclusory statements, he must state the facts on
which his claim is based and describe the evidence available to support the allegations. Stockwell,
160 Wn. App. at 176. Geier has not met this burden and we conclude that his argument lacks
merit.
III. DUE PROCESS AND EQUAL PROTECTION RIGHTS
Geier contends that the language limiting the right to file a SAG to criminal defendants
violates his due process and equal protection rights. We disagree.
A. Due Process
The United States Constitution guarantees that federal and state governments will not
deprive an individual of “life, liberty, or property, without due process of law.” U.S. CONST.
amends. V & XIV, § 1. When a state seeks to deprive a person of a protected interest, procedural
due process requires that an individual receive notice of the deprivation and an opportunity to be
heard to guard against erroneous deprivation. Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216,
143 P.3d 571 (2006). The process due depends on what is fair in a particular context. In re Det.
of Morgan, 180 Wn.2d 312, 320, 330 P.3d 774 (2014).
In order to determine whether a particular procedural protection is required in a given
context, we consider three factors: (1) the liberty interest at stake; (2) the risk of erroneous
deprivation of that liberty interest with the existing procedures and the probable value, if any, of
additional safeguards; and (3) the government interest, including costs and administrative burdens
of additional procedures. In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 (2007) (applying
test from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)).
13
45540-4-II
Geier argues that he should have been allowed to file a SAG even though civil commitment
proceedings are not criminal proceedings. He contends that the language in the RAP violates his
due process rights. Civil commitment is a significant deprivation of a protected interest, liberty.
Stout, 159 Wn.2d at 369. However, Geier was not deprived of notice or an opportunity to be heard
given the particular context. See Morgan, 180 Wn.2d at 321-22. The State Supreme Court has
previously held that a respondent in an SVP commitment proceeding is due some of the same
rights as a criminal defendant, including a meaningful opportunity to contest facts in a criminal
trial, a full SVP trial, and representation of counsel. Morgan, 180 Wn.2d at 321-22. In Morgan,
the Supreme Court held, “We find no additional protections that would minimize the risk of error
without significantly undermining compelling State interests.” 180 Wn.2d at 323. We follow this
holding and conclude that Geier was not deprived of his due process rights.
B. Equal protection
The Fourteenth Amendment of the United States Constitution and article 1, § 12 of the
Washington State Constitution require that similarly situated persons receive similar treatment
under the law. Harmon v. McNutt, 91 Wn.2d 126, 130, 587 P.2d 537 (1978). ‘“Equal protection
does not require that all persons be dealt with identically, but it does require that a distinction made
have some relevance to the purpose for which the classification is made.”’ In re Det. of Thorell,
149 Wn.2d 724, 745, 72 P.3d 708 (2003) (quoting Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.
Ct. 760, 15 L. Ed. 2d 620 (1966)).
Where there is not a suspect class and the right at issue is not a fundamental right, we use
the rational basis test to resolve equal protection claims involving SVP commitment proceedings.
In re Det. of Turay, 139 Wn.2d 379, 409-10, 986 P.2d 790 (1999). Rational basis review requires
a legitimate governmental objective and a rational means of achieving it. In re Det. of Ross, 114
14
45540-4-II
Wn. App. 113, 118, 56 P.3d 602 (2002). “To overcome the strong presumption of
constitutionality, the classification must be purely arbitrary.” Ross, 114 Wn. App. at 118. The
burden falls on the party challenging the classification to show that the classification is arbitrary.
Ross, 114 Wn. App. at 118.
We have previously considered whether a court rule itself violates equal protection. See
State v. Osman, 126 Wn. App. 575, 583, 108 P.3d 1287 (2005) (holding that a trial court’s
application of the statute and court rules does not reflect any equal protection violation), aff’d, 157
Wn.2d 474, 139 P.3d 334 (2006); State v. W.W., 76 Wn. App. 754, 758, 760, 887 P.2d 914 (1995)
(reviewing JUCR 7.13 and holding that the state failed to provide any rational basis). RAP
10.10(a) provides, “In a criminal case on direct appeal, the defendant may file a pro se statement
of additional grounds for review to identify and discuss those matters related to the decision under
review that the defendant believes have not been adequately addressed by the brief filed by the
defendant’s counsel.” Court rules are interpreted like statutes and are subject to the principles of
statutory construction. State v. Royal, 122 Wn.2d 413, 424, 858 P.2d 259 (1993).
Here, Geier argues that his equal protection rights were violated because there is not a
legitimate governmental interest in treating criminal defendants and SVP respondents differently
on appeal and the consequences of a chapter 71.09 RCW commitment are actually more severe
than criminal proceedings. However, civil commitment proceedings under the SVP statute and
imprisonment for a criminal conviction are appropriately treated differently. SVPs are committed
for rehabilitative purposes, not for punishment. In re Pers. Restraint of Young, 122 Wn.2d 1, 20-
21, 857 P.2d 989 (1993), superseded by statute on other grounds as stated in Thorell, 149 Wn.2d
724. Further, the SVP procedures are unlike criminal trials. SVP commitments are reviewed
yearly and a SVP can be released from civil confinement or receive less restrictive alternatives if
15
45540-4-II
he or she no longer poses the same risk to the public. RCW 71.09.070. There are clear distinctions
between people committed as SVPs and those incarcerated pursuant to convictions. These
differing safeguards for SVP’s and criminal defendants demonstrate a legitimate governmental
interest and a rational means to achieve it. Geier has not sustained his burden to overcome the
strong presumption of constitutionality of RAP 10.10.
We hold that Geier did not demonstrate prejudice in either ineffective assistance of counsel
claim. We also hold that Geier’s due process and equal protection rights were not violated when
he was denied the opportunity to file a SAG in his direct appeal. We dismiss Geier’s petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Bjorgen, A.C.J.
Sutton, J.
16