State Of Washington, Res. v. Donna L. Howland, App. ( 2014 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 68873-1
Respondent, )
) DIVISION ONE
v. )
)
DONNA L. HOWLAND, ) PUBLISHED OPINION
Appellant. ) FILED: March 24. 2014
Spearman, A.C.J. — More than two decades after Donna Howland was found not
guilty offirst-degree murder by reason of insanity and confined to Western State
Hospital (WSH), she petitioned for conditional release under RCW 10.77.150. The trial
court dismissed the petition without a hearing, concluding it was frivolous because it
was unsupported by expert testimony. Howland appeals, contending the trial court erred
by requiring her to provide expert testimony in support of her petition. We conclude that
the trial court's order is not appealable as of right under RAP 2.2 and that discretionary
review under RAP 2.3 is not warranted. Accordingly, we dismiss Howland's appeal.
FACTS
In 1988 Donna Howland was charged with first-degree murder in the death of her
boyfriend. At that time, Howland had a three-year history of repeated hospitalization for
suicidal gestures and psychotic ideation. Prior to trial, she was diagnosed with chronic
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paranoid schizophrenia and borderline personality disorder. Howland pleaded not guilty
by reason of insanity and was acquitted of the murder charge. The trial court found that
Howland presented a substantial danger to the public and a substantial likelihood of
committing felonious acts if not confined to a state mental hospital. It ordered Howland
committed to Western State Hospital (WSH).
After nearly two decades of treatment, during which Howland made significant
progress, WSH recommended that she be conditionally released. In May 2005,
Howland was transferred to a group home in West Seattle. After struggling with
delusions, depression, and diabetes, she returned voluntarily to WSH for stabilization
from June to July 2009. In February 2010, after refusing to take her medication and
becoming increasingly agitated, Howland was involuntarily readmitted to WSH. The
court revoked her conditional release on May 28, 2010 and she has since remained at
WSH.
On February 7, 2012, Howland filed a one page petition requesting a hearing on
the issue of her conditional release, but included no supporting declarations.1 The State
moved to dismiss, the petition as frivolous because Howland could not "present any
evidence whatsoever that supports a conditional release at this time." Clerk's Papers at
65.
In support of its motion, the State submitted a letter, dated October 12, 2011, in
which Howland's primary therapist and attending psychologist opposed her conditional
1Howland filed a previous motion for conditional release in March Of 2011 without the support of
WSH. The denial of that petition is not at issue in this appeal.
No. 68873-1-1/3
release. The State also presented a letter from the WSH Risk Review Board (RRB)
dated March 15, 2012, which noted ongoing symptoms of mental illness, including
paranoia, fixed delusions, and an unwillingness to fully engage in recommended
treatment. This letter also expressed the RRB's determination that "Howland is
considered a substantial danger to other persons, and she DOES present a substantial
likelihood of committing criminal acts jeopardizing public safety or security, unless kept
under further control by the court or other persons or institutions." CP at 83. The only
witness Howland intended to call at an evidentiary hearing was her then current primary
therapist, Clyde Travis, a member of the RRB and signer of the March 15, 2012 letter.
The trial court observed that:
The Risk Review Board found that given her fixed delusions, her acute
psychotic symptoms and trouble managing emotional liability, Ms.
Howland is a substantial danger to other persons and presents a
substantial likelihood of committing criminal acts jeopardizing public safety
or security. There has been no declaration provided by defense to the
contrary....
CP at 108. It then concluded that "[w]ithout expert testimony to support
defendant's position, the court has no basis to conditionally release the
defendant. Without any such evidence, her petition is frivolous and will be
dismissed." ]d.
Howland appeals.
DISCUSSION
As a threshold matter, we consider the appealability of the trial court's order
dismissing Howland's petition for conditional release. Howland contends that she is
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entitled to appeal under RAP 2.2(a) or, in the alternative, this matter is appropriate for
discretionary review under RAP 2.3(b)(2). We disagree with both contentions.
Right to Appeal
Howland asserts that she may appeal the trial court's order dismissing her
petition as a matter of right under RAP 2.2(a). She observes that the rule provides for
appeal as of right of other types of mental health treatment orders and other orders
entered aftertrial and argues by analogy, that the order in this case is also appealable.2
Howland is incorrect.
In general, the failure to mention a particular proceeding in RAP 2.2(a) indicates
the Supreme Court's intent that the matter be reviewable only by discretionary review
under RAP 2.3. In re of Chubb. 112 Wash. 2d 719, 721, 773 P.2d 851 (1989). As Howland
notes, an order of commitment is listed as an appealable order under RAP 2.2(a), but
the rule makes no mention of an order denying a motion for the conditional release of a
person already committed. In light of Chubb, we conclude that the matter is not
appealable as a matter of right under RAP 2.2(a) (1)-(12).
Howland also cites RAP 2.2(a) (13), which provides for appeal from "[a]ny final
order made after judgment that affects a substantial right." However, she fails to
2For example, orders of incompetency (RAP 2.2(a)(7)); commitment (RAP 2.2(a)(8)); on motion
for new trial or amendment of judgment (RAP 2.2(a)(9); forvacation of judgment (RAP 2.2(a)(10); on
arrestofjudgment (RAP 2.2(a)(11); and denying a motion to vacate order ofarrest ofa person (RAP
2.2(a)(12).
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establish that the superior court's order denying her motion for conditional release is a
"final order" within the meaning of the rule.3
In re Petersen. 138 Wash. 2d 70, 980 P.2d 1204 (1999), is instructive. In that case,
Petersen had been adjudicated a sexually violent predator (SVP) pursuant to chapter
71.09 RCW and was indefinitely committed to the Special Commitment Center for
treatment. Under the statute Petersen was entitled to annual reviews at which the trial
court was to consider whether there was probable cause to believe Petersen's condition
had so changed, he either no longer met the definition of an SVP or that he could be
conditionally released. RCW 71.09.090(2). If so, Petersen would be entitled to a full
evidentiary hearing on the issue. The trial court concluded that probable cause had not
been established and declined to set the matter on for a full hearing. Petersen sought
direct review in our Supreme Court, asserting a right to appeal as a matter of right under
RAP 2.2(a)(13). The Court rejected his assertion and expressly held that RAP
3Howland's arguments to the contrary are unpersuasive. First, relying on Seattle First Nat'l Bank
v. Marshall. 16 Wash. App. 503, 508, 557 P.2d 352 (1976), Howland contends that, because the trial court's
order prejudicially affects a substantial right other than one which was adjudicated by an earlier judgment,
it is a "final order." Reply Brief at 3-4. Under certain circumstances, appeals from orders entered
subsequent to a final judgment are permitted if the orders prejudicially affect a substantial right other than
rights adjudicated by the previously entered final judgment. Seattle First Nat'l Bank. 16 Wash. App. at 506-
08; RAP 2.2(a) (13). However, that an order affects a substantial right is not enough to warrant review. In
addition, the order must determine the action or proceeding and prevent a final judgment therein,
discontinue the action, or otherwise be a "final order." ibid Thus, review of an order entered after
judgment is predicated upon a showing of (1) effect on a substantial right and (2) finality. Although
Howland arguably satisfies the first prong, she fails to satisfy the second. Howland cites State v. Klein,
156 Wash. 2d 103, 124 P.3d 644 (2005); State v. Reid. 144 Wash. 2d 621, 30 P.3d 465 (2001); State v. Haney,
125 Wash. App. 118, 104 P.3d 36 (2005); Statev. Sommerville. 86Wn. App. 700, 701, 937 P.2d 1317
(1997) toargue that appellate courts "routinely consider[] the denial of an insanity acquittee's application
for release to be an appealable order." Appellant's Reply Brief at 4. Her reliance on these cases is
misplaced. Klein, Reid, and Haney are inapposite because those cases concerned orders denying final
release, not conditional release. Howland is correct thatwe did review an order denying conditional
release in Sommerville, but because there is no indication that the issue of appealability was raised by
the parties, it is not binding precedent on this issue and we decline to follow it.
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2.2(a)(13) was inapplicable because the trial court's order denying a full evidentiary
hearing "is not a final order after judgment in light of the court's continuing jurisdiction
over the committed persons until their unconditional release. In re Peterson. 138 Wash. 2d
88 (citing RCW 71.09.090(3)). It disposes only of the petition before the trial court and
achieves no final disposition
Similarly, here, the trial court has continuing jurisdiction over Howland under
RCW 10.77.200. Nor has the trial court's denial of her motion for conditional release
settled all the issues in her case. It disposed only of the petition before the court at that
time. It is evident from the record in this case that Howland's mental health status is not
static and she may, under RCW 10.77.1404 and RCW 10.77.150,5 move for conditional
release at least every six months. At which time, she may present new evidence
regarding the propriety of her release under the statutory criteria. See In re Dependency
of Chubb, 112 Wash. 2d at 724. We conclude that Howland may not appeal as a matter of
right under RAP 2.2(a)(13) because the trial court's order denying her motion for
conditional release is not a "final order."
Discretionary Review
In the alternative, Howland seeks discretionary review of the order denying her
petition. Under RAP 2.3(b) discretionary review may only be accepted in the following
4"Each person committed to a hospital or other facility or conditionally released pursuantto this
chaptershall have a current examination of his or her mental condition made by one or more experts or
professional persons at least once every six months ...."
5"Any person, whose application for conditional release has been denied, may reapply after a
period of six months from the date of denial."
No. 68873-1-1/7
circumstances:
(1) The superior court has committed an obvious error which
would render further proceedings useless;
(2) The superior court has committed probable error and the
decision of the superior court substantially alters the status quo or
substantially limits the freedom of a party to act;
(3) The superior court has so far departed from the accepted
and usual course of proceedings, or so far sanctioned such a
departure by an inferior court or administrative agency, as to call for
review by the appellate court; or
(4) The superior court has certified, or all the parties to the
litigation have stipulated, that the order involves a controlling
question of law as to which there is substantial ground for a
difference of opinion and that immediate review of the order may
materially advance the ultimate termination of the litigation.
Howland contends review is appropriate under RAP 2.3(b)(2). A party
seeking discretionary review under that section must show that the trial court
committed probable error and that the decision substantially alters the status quo
or substantially limits the freedom of a party to act. Howland fails to satisfy either
prong.
Probable Error
Howland asserts that the trial court committed probable error when,
without a hearing, it summarily dismissed her petition for conditional release as
frivolous because it was unsupported by expert testimony. Howland claims this is
so because, as she sees it, the trial court abused its discretion when it wrongly
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concluded that in the absence of expert testimony in support of the petition, it did
not have the discretion to conduct a hearing on the matter.
The statute under which Howland petitioned for relief, provides that "[t]he
court may schedule a hearing on applications recommended for disapproval by
the secretary" [of the Department of Social and Health Services (DSHS)]
(emphasis added.)."6 See RCW 10.77.150(3)(a) (emphasis added). Thus, when
an individual petitions the court directly for conditional release without the
approval of the secretary, the court has discretion whether to convene a hearing.
State v. Piatt. 143 Wash. 2d 242, 248, 19 P.3d 412 (2001). Because Howland's
petition was opposed byWSH, whether to grant a hearing on the petition was a
matter within the trial court's discretion.
A trial court abuses its discretion when a decision is "'manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons. . ..' A discretionary decision
rests on 'untenable grounds' or is based on 'untenable reasons' if the trial court relies on
unsupported facts or applies the wrong legal standard; the court's decision is 'manifestly
unreasonable' if 'the court, despite applying the correct legal standard to the supported
facts, adopts a view 'that no reasonable person would take.'" Maverv. STO Indus.. Inc.,
156 Wash. 2d 677, 684, 132 P.3d 115 (2006) (quoting State v. Rohrich, 149 Wash. 2d 647,
654, 71 P.3d 638 (2003)).
6 Under WAC 388-875-0090, either the Superintendent of the treatment facility (here, Western
State Hospital) or the director ofthe division is authorized to act on behalf of the Secretary of DSHS on
application for conditional release.
No. 68873-1-1/9
The crux of Howland's argument is that the trial court's decision was untenable
because it applied the wrong legal standard when, in her view, the trial court concluded
it was without authority to hold a hearing on her petition because it was not supported
by expert testimony. Howland argues the only issue before the court was whether she
presented "substantial danger to other persons, or substantial likelihood of committing
criminal acts jeopardizing public safety or security." RCW 10.77.150(c). She contends
the trial court confused the issues of her mental health status, for which an expert
opinion is required, and of her dangerousness, which Howland argues is "not a
technical or scientific question that required expert testimony to determine."7 Reply Br.
of Appellant at 7.
But, in this case, there is nothing untenable about the trial court's decision. In
support of its motion to dismiss the petition, the State offered a letter dated October 12,
2011, from Howland's primary therapist and attending psychiatrist and a letterdated
March 15, 2012 from the Western State Hospital Risk Review Board. Neither supported
Howland's petition for conditional release and the latter specifically opined that because
of her mental illness, Howland "is considered a substantial danger to other persons" and
presents "a substantial likelihood of committing criminal acts jeopardizing public safety
or security " CP at 83. In light ofthis compelling evidence, it was not an abuse of
discretion to require Howland to present an expert opinion in support of her petition
7We note Howland cites no authority for her assertion that expert testimony is unnecessary to
assist in the determination of whether a person who suffers from a mental illness presents a substantial
danger to others.
No. 68873-1-1/10
before conducting a full blown hearing. Therefore, we conclude there was no probable
error.
Limitation of a Party's Freedom to Act
Even assuming probable error, Howland is not entitled to discretionary review
unless she can show that the trial court's decision meets the "effect prong" of the rule,
i.e., that the decision "substantially alters the status quo or substantially limits the
freedom of a party to act." RAP 2.3(b)(2). Howland contends that she satisfies this
requirement because the trial court's decision "means she may notfile a petition under
that statute in the future without presenting expert testimony." Reply Br. of Appellant at
7. Howland misperceives both the requirements of this prong of the rule and the trial
court's decision.
Determining when the effect prong of RAP 2.3(b)(2) warrants accepting
discretionary review is not easily done. Read literally, nearly every trial court decision
alters the status quo or limits a party's freedom to act to some degree and, at least
arguably, substantially. But because motions for discretionary review, though frequently
made, are seldom granted, it is evident that a trial court order denying a motion to
dismiss, excluding a crucial piece ofevidence or granting a partial motion for summary
judgment is generally insufficient to satisfy the effect prong. Understanding the reason
the rule ties discretionary review to the effect of a trial court's decision on the status quo
or a party's freedom to act, is helpful in correctly applying the effect prong to the facts of
a particular case.
10
No. 68873-1-1/11
Former Supreme Court Commissioner Geoffrey Crooks observed in his law
review article on discretionary review:
Subsection (b)(2) was intended to apply 'primarily to orders
pertaining to injunctions, attachments, receivers, and
arbitration, which have formerly been appealable as a matter of
right.'
Geoffrey Crooks, Discretionary Review of Trial Court Decisions under the Washington
Rules of Appellate Procedure, 61 Wash. L. Rev., 1541, 1545-46. (1986) (quoting RAP
2.3 cmt. b). But because "[n]othing in subsection (b)(2) limits its applicability to cases
involving injunctions and the like[,]" practically applying the rule and drawing meaningful
distinctions between those cases appropriate for discretionary review and those that are
not is difficult. ]d. at 1546
Crooks suggests that keeping the drafter's intentions in mind when considering
whether discretionary review is appropriate is helpful. He contends that discretionary
review should be accepted only when a trial court's order has, as with an injunction, an
immediate effect outside the courtroom. For example, when a party is compelled by
court order to remove a structure, the order, if given effect, quite literally alters the
status quo. Or if a court restrains a party from disposing of his or her private property,
the party's freedom to act to conduct his or her affairs, is at least arguably, substantially
limited. In each example, the court's action has effects beyond the parties' ability to
conduct the immediate litigation. When this occurs in combination with the trial court's
probable error, discretionary review is appropriate. But where a trial court's action
merely alters the status ofthe litigation itself or limits the freedom ofa party to act in the
conduct of the lawsuit, even ifthe trial court's action is probably erroneous, it is not
11
No. 68873-1-1/12
sufficient to invoke review under RAP 2.3(b)(2). Errors such as these are properly
reviewed, if necessary, at the conclusion of the case where they may be considered in
the context of the entire hearing or trial.
Utilizing this analytical framework, Howland fails to satisfy the effect prong of
RAP 2.3(b)(2) because the trial court's decision was merely an exercise of the
discretion granted it under the statute to determine whether a full blown hearing is
necessary in a given case. While the decision arguably limited the manner in which
Howland can conduct the litigation regarding her conditional release, it has no effect
beyond the immediate litigation.
Moreover, Howland's contention that the trial court's order limits her freedom to
act because it means she may not file a petition for conditional release without
presenting expert testimony is not well taken. In the context of this case, where the
State has presented expert opinions on the issue of Howland's dangerousness, the
court concluded that in the absence of a professional opinion to the contrary, a full
blown hearing was unwarranted. In other circumstances, where, for example, the State
either offers no such opinions or does so but they are unpersuasive in the absence of
other evidence or testimony, the court could determine a hearing is necessary
regardless of whether Howland offers such evidence herself. Thus, the trial court's order
does not limit Howland's freedom to file a petition for conditional release as provided by
statute.
12
No. 68873-1-1/13
Because Howland may not appeal the decision below as a matter of right and
because she is unable to meet the strict criteria required for discretionary review, review
is denied and her appeal is dismissed.
WE CONCUR: I)7
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