In Re The Detention Of G.r. ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
February 4, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of No. 52791-0-II
the Detention of
G.R.,
Respondent,
UNPUBLISHED OPINION
BRANDI LANE, PSY.D. and JUNKO
YOSUDA-FREE, D.O.,
Petitioners.
CRUSER, J. — The Department of Social and Health Services (DSHS) appeals from an
order of civil commitment committing GR for an additional 180 days of treatment following the
dismissal of a first degree arson charge. DSHS does not challenge the commitment. Instead, it
argues that the superior court commissioner erred when she failed to consider whether the first
degree arson constituted a violent offense under RCW 9.94A.0301 as required under RCW
71.05.280(3)(b) and when she denied DSHS’ motion for reconsideration. We hold that the
commissioner erred as a matter of law by concluding that such a finding was not required and by
1
The first degree arson was committed on November 2, 2017. The legislature amended RCW
9.94A.030 several times in 2018 and 2019. LAWS OF 2019, ch. 331, § 5; ch. 271, § 6; ch. 187, §
1; ch. 46, § 5007; LAWS OF 2018, ch. 166, § 3. Because the definition of violent offense has not
changed, we cite to the current version of RCW 9.94A.030.
No. 52791-0-II
denying DSHS’ motion for reconsideration. Accordingly, we reverse the commitment order in
part and remand for the commissioner to enter a finding that the first degree arson was a violent
offense under RCW 9.94A.030.2
FACTS
I. PETITION
The Pierce County Superior Court dismissed a charge of first degree arson against GR after
finding that GR was not competent to stand trial and was unlikely to regain competency. GR was
sent to Western State Hospital.
DSHS subsequently petitioned for 180 days of involuntary treatment. DSHS alleged two
grounds for the continued commitment. First, it alleged that GR was gravely disabled. Second, it
alleged that GR “ha[d] been determined to be incompetent and criminal charges ha[d] been
dismissed pursuant to RCW 10.77.086(4), ha[d] committed acts constituting a felony, and as a
result of a mental disorder, presents a substantial likelihood of repeating similar acts.” Clerk’s
Papers (CP) at 2. It further alleged that the dismissed charge was first degree arson and that this
offense was a violent felony offense under RCW 9.94A.030.
At the hearing on the petition, DSHS presented two witnesses, Officer Joseph Solberg and
Dr. Brandi Lane. GR also testified.
2
The parties do not address whether this issue is moot given that the 180-day commitment order
has since expired. But because RCW 71.05.425(1) requires that notification be provided to law
enforcement and the prosecutor when a person committed under RCW 71.05.280(3) is released,
granted authorized leave, or transferred to a facility other than a state mental hospital, we presume
that this issue is not moot.
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No. 52791-0-II
In its opening statement, DSHS argued that GR should be committed under RCW
71.05.280(3). It argued that under RCW 71.05.280(3), it was “obligated to prove that [GR] has
committed acts constituting a felony” and that the act in question was first degree arson, setting
fire to a dwelling. Verbatim Report of Proceedings (VRP) at 7. DSHS did not, however, argue
that the commissioner was required to determine whether the first degree arson was a violent
offense.
Solberg testified that he had responded to a report of “a residential fire” in a local trailer
park to find one of the trailers on fire. Id. at 10. While Solberg was securing the scene, GR had
approached him and admitted to having intentionally set the fire.
Lane testified about GR’s mental health conditions. DSHS asked Lane whether, based on
Solberg’s testimony and her own review of GR’s history, it was her professional opinion that GR,
“as a result of a mental disorder, presents a substantial likelihood of repeating similar acts of
violence, specifically arson.” Id. at 18 (emphasis added). Lane testified “that currently [GR]
continues to have the risk of repeating similar acts.” Id. at 19.
GR testified that he agreed that he should stay at the hospital for up to 180 days of
treatment. Neither party presented any closing argument.
After hearing the testimony, the commissioner orally ruled, in part, that “as a result of the
mental disorder, [GR] continues to present a substantial likelihood of repeating acts similar to the
charged criminal behavior.” Id. at 26. Immediately after the oral ruling, GR’s counsel asked if
the commissioner had made “findings regarding the felony acts.” Id. at 27. The commissioner
stated that she had.
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No. 52791-0-II
The commissioner then entered written findings of fact and conclusions of law. Finding
of fact 2 stated that the reason for the commitment was that GR suffered from a mental disorder,
that the felony first degree arson charge had been dismissed after he had been found incompetent,
and that “as a result of a mental disorder, [GR] present[ed] a substantial likelihood of repeating
similar acts.” CP at 18. Specifically, this finding stated,
The Respondent was determined to be incompetent and felony charges were
dismissed. Respondent committed the following acts per the testimony of Deputy
Joseph Solberg that the defendant admitted to causing a fire and damaging a
dwelling or trailer by placing a coat on the stove and turning it up high, which
constitute the felony/felonies of Arson in the First Degree within the meaning of
RCW 71.05, and as a result of a mental disorder, Respondent presents a substantial
likelihood of repeating similar acts.
Id. (emphasis added). But the commissioner did not check the preprinted box immediately below
this finding that stated, “The acts [GR] committed constitute a violent offense under RCW
9.94A.030.”3 Id. The commissioner ordered 180 days of intensive inpatient treatment.
II. MOTION FOR RECONSIDERATION
DSHS moved for reconsideration, arguing that the commissioner should modify her
findings to reflect that the first degree arson constituted a violent offense under RCW 9.94A.030.4
It asserted that this finding was required under RCW 71.05.280(3)(b). In a supporting declaration,
DSHS’ counsel stated,
In reviewing the Court’s Findings, Conclusions, and Order Committing [GR] for
Involuntary Treatment following the hearing, I observed that the Court had not
checked the box pertaining to violent felony. I brought this matter to the Court’s
3
The commissioner also found that GR was or continued to be gravely disabled.
4
DSHS’ motion did not refer to CR 59; it merely asked the commissioner to revise her decision
to include a finding that the first degree arson was a violent felony.
4
No. 52791-0-II
attention and was informed that the Court did not check this box because she had
not heard any evidence nor presentation of statutes pertaining to the violent felony.
CP at 28.5
DSHS asked the commissioner to reconsider her decision to decline to find that the act GR
committed was a violent felony. It argued that this additional finding was required because
Solberg’s testimony established that GR had committed acts that constituted first degree arson, the
commissioner had made a finding to this effect, and “the petition set forth the statutory authority
for a finding that Arson in the First Degree constitutes a violent felony.” Id. at 24. Alternatively,
DSHS requested that the commissioner take judicial notice that first degree arson constitutes a
violent felony.
GR responded that he did not contest the motion for reconsideration. He also stated that
he did not contest the request that the findings of fact include a finding that the acts committed
constituted a violent offense under RCW 9.94A.030.
The commissioner denied reconsideration. In her order denying reconsideration, the
commissioner merely quoted CR 59(a)(1) through (9) and stated that there was “no basis to support
reconsideration” and “[n]one of the above factors has been satisfied.” CP at 57. The
commissioner’s ruling did not explain how DSHS failed to establish any of the nine factors.
5
It is unclear from the record how DSHS contacted the commissioner.
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No. 52791-0-II
DSHS appeals the commissioner’s failure to find that the first degree arson was a violent
offense under RCW 9.94A.030 and the commissioner’s denial of DSHS’ motion for
reconsideration.6
DISCUSSION
DSHS argues that the commissioner erred in failing to make a determination, as a matter
of law, as to whether the felony act GR committed constituted a violent offense under RCW
9.94A.030, as required under RCW 71.05.280(3)(b). In the alternative, DSHS argues that the
commissioner erred in denying the motion for reconsideration because her decision was contrary
to law under CR 59(a)(7). GR responds that the commissioner did not abuse her discretion in
denying the motion for reconsideration because DSHS did not argue that first degree arson was a
violent offense until it moved for reconsideration.
I. LEGAL PRINCIPLES
We review a trial court’s denial of a motion for reconsideration for abuse of discretion.
Rivers v. Wash. State Conf. of Mason Contractors, 145 Wash. 2d 674, 685, 41 P.3d 1175 (2002). A
court abuses its discretion when its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons. Id. at 684-85.
II. PRESERVATION
We first address GR’s argument that the commissioner did not err in denying the motion
for reconsideration because DSHS had not previously argued that the first degree arson was a
violent felony. We disagree.
6
Because the parties did not move for revision of the commissioner’s decision by a superior court
judge, RCW 2.24.050 allows for the direct appeal of the commissioner’s decision.
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No. 52791-0-II
First, the commissioner’s order denying the motion for reconsideration did not state that
she was refusing to consider DSHS’ argument because it had not been raised before. The
commissioner stated only that there was “no basis to support reconsideration” and that DSHS had
failed to satisfy any of the grounds for reconsideration available under CR 59. CP at 57.
Second, even if the commissioner’s decision had been based on a failure to raise the issue,
the record does not support that characterization of the record. DSHS alleged in its petition that
first degree arson was a violent offense under RCW 9.94A.030. During the hearing, DSHS
characterized the first degree arson as an act of violence when questioning Lane. And GR
specifically asked the commissioner if she had made “findings regarding the felony acts,” and the
commissioner responded that she had, which could reasonably be interpreted as the commissioner
stating that she had considered whether the first degree arson was a violent offense. VRP at 27.
Additionally, when it became apparent to DSHS that the commissioner had not made a finding as
to whether the underlying felony was a violent offense, DSHS brought this to her attention. Thus,
the commissioner had an opportunity to address this issue before the motion for reconsideration
and failure to previously raise this issue would not be a ground upon which the commissioner
could deny the motion for reconsideration.
III. ABUSE OF DISCRETION
Although the commissioner’s ruling denying DSHS’ motion for reconsideration states that
DSHS failed to “satisf[y]” any of the nine CR 59 grounds, DSHS demonstrates that the
commissioner’s failure to determine whether the first degree arson was a violent offense was
contrary to law under CR 59(a)(7). CP at 57. Under CR 59(a)(7), a trial court may vacate its
decision on the grounds that the decision was “contrary to law.” Refusal to correct a legal error
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No. 52791-0-II
raised in a motion for reconsideration is an abuse of discretion. Singleton v. Naegeli Reporting
Corp., 142 Wash. App. 598, 612, 175 P.3d 594 (2008).
RCW 71.05.280 provides, in part,
At the expiration of the fourteen-day period of intensive treatment, a person may
be committed for further treatment pursuant to RCW 71.05.320 if:
....
(3) Such person has been determined to be incompetent and criminal
charges have been dismissed pursuant to RCW 10.77.086(4), and has committed
acts constituting a felony, and as a result of a mental disorder, presents a substantial
likelihood of repeating similar acts.
....
(b) For any person subject to commitment under this subsection where
the charge underlying the finding of incompetence is for a felony classified as
violent under RCW 9.94A.030, the court shall determine whether the acts the
person committed constitute a violent offense under RCW 9.94A.030.
(Emphasis added.)
Here, the commissioner found that GR’s acts constituted first degree arson. RCW
71.05.280(3)(b)’s express reference to “the court” establishes that the court, in this instance the
commissioner, was required to determine whether the underlying felony offense was a violent
offense, a pure question of law.
First degree arson is a class A felony. RCW 9A.48.020(2). Under RCW
9.94A.030(56)(a)(i), “[a]ny felony defined under any law as a class A felony or an attempt to
commit a class A felony” is a violent offense. As a matter of law, the first degree arson was a
violent offense.7
7
GR argues that the commissioner had to “decide whether the person’s actual conduct would be
classified as a violent offense.” Br. of Resp’t at 5. But the commissioner found that GR’s actual
conduct amounted to first degree arson; the only remaining determination was whether first degree
arson was a violent offense under RCW 9.94A.030.
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No. 52791-0-II
Because the determination that first degree arson was a violent offense should have been
made by the commissioner as a matter of law, the commissioner’s failure to make this finding was
error and, therefore, “contrary to law.” See CR 59(a)(7). Thus, the commissioner’s failure to find
that the first degree arson was a violent offense and her decision to deny the motion for
reconsideration was an abuse of discretion.
Accordingly, we reverse the commitment order in part and remand this matter back to the
commissioner to enter a finding that the first degree arson was a violent offense under RCW
9.94A.030.
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.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, A.C.J.
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