In Re Detention of Mitchell

249 P.3d 662
CourtCourt of Appeals of Washington
DecidedMarch 15, 2011
Docket39548-7-II
StatusPublished
Cited by1 cases

This text of 249 P.3d 662 (In Re Detention of Mitchell) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Detention of Mitchell, 249 P.3d 662 (Wash. Ct. App. 2011).

Opinion

249 P.3d 662 (2011)

In the Matter of the DETENTION OF George MITCHELL, Appellant.

No. 39548-7-II.

Court of Appeals of Washington, Division 2.

March 15, 2011.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, Reed Manley Benjamin Speir, Attorney at Law, University Place, WA, for Appellant.

Sarah Sappington, Office of the Atty. General, Seattle, WA, for Respondent.

VAN DEREN, J.

¶ 1 George Mitchell, a civilly committed sexually violent predator (SVP) under chapter 71.09 RCW, appeals the trial court's denial of his April 2009 CR 60(b) motion to vacate the trial court's July 2008 postcommitment order that denied him a full evidentiary hearing on his annual SVP review. He argues that the trial court erred in ruling that CR 60(b) does not apply to the circumstances of his case. We affirm.

FACTS

¶ 2 On April 29, 1974, Mitchell was incarcerated on one count of rape. On February 5, 1990, Mitchell pleaded guilty to second degree rape and second degree burglary. On March 27, 2000, shortly before his release from incarceration on his 1990 convictions, the State filed a petition under chapter 71.09 RCW to commit Mitchell as an SVP. While awaiting his commitment trial, Brian Judd, PhD, diagnosed Mitchell with paraphilia, not otherwise specified (NOS), nonconsent; sexual sadism;[1] and antisocial personality disorder. At a bench trial, Mitchell cross-examined Judd regarding the validity of a paraphilia NOS, (nonconsent), diagnosis. On June 27, 2003, the trial court entered an order civilly committing Mitchell as an SVP. As his SVP commitment requires, psychologists at the Special Commitment Center (SCC) have annually evaluated Mitchell, with the consistent resulting diagnoses of paraphilia NOS, nonconsent; sexual sadism; and antisocial personality disorder.

¶ 3 On March 11, 2008, because Mitchell did not waive his right to petition for release as part of the annual review of his SVP commitment, the State filed a show cause motion under former RCW 71.09.090(2) (2005),[2] asking that the trial court determine *663 whether Mitchell's condition had so changed that he no longer met the SVP definition or whether release to a less restrictive alternative would be in his best interests.[3] At the annual review show cause hearing on July 25, 2008, Mitchell presented his recent psychological evaluation by Robert Halon, PhD, as well as Halon's live testimony.

¶ 4 The State presented its 2008 annual evaluation of Mitchell in which SCC psychologists diagnosed him as still suffering from paraphilia NOS, nonconsent; sexual sadism; and antisocial personality disorder and opined that he still met the statutory SVP definition. It also argued that, under the statute in effect at the time, Mitchell failed to meet his burden to demonstrate that his condition had changed as a result of continuing participation in treatment.[4]

¶ 5 Halon testified that (1) he had identified an error in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Am. Psychiatric Ass'n (2000) (DSM-IV-TR) regarding its paraphilia diagnostic criteria and (2) he had authored a paper with Michael First, MD, explaining the error and how it leads to misdiagnoses of paraphilias.[5] Halon opined that either Mitchell was misdiagnosed with paraphilia and sexual sadism or these disorders were in full remission. He also suggested that Mitchell was misdiagnosed with antisocial personality disorder. Halon's psychological evaluation of Mitchell further described the alleged error in the DSM-IV-TR, repeated his opinion about the misdiagnosis or remission of Mitchell's paraphilia and sexual sadism, and concluded that Mitchell no longer met the statutory SVP definition.

¶ 6 The trial court ruled that, based on the evidence it had before it, Mitchell failed to establish probable cause justifying a further, full evidentiary hearing. On July 25, 2008, it entered an order stating that its June 27, 2003, order, civilly committing Mitchell as an SVP, would continue until furthered ordered by the trial court. Mitchell unsuccessfully sought discretionary review of the trial court's July 25, 2008, order.

¶ 7 After we issued a certificate of finality, on April 3, 2009, Mitchell filed a motion under CR 60(b)(3) and CR (b)(11), asking the trial court "for an order setting aside the original Judgment entered in the above entitled cause number." Clerk's Papers (CP) at 25. Despite the suggestion that Mitchell was challenging the trial court's original 2003 commitment order, his arguments focused on the 2008 order following his annual review hearing. Mitchell argued that (1) the trial court had erred by retroactively applying RCW 71.09.090(4) to his annual review hearing, (2) he had established probable cause that he no longer met the statutory SVP definition because his paraphilia diagnosis was erroneous, and (3) RCW 71.09.090(4)'s *664 phrase "continuing participation in treatment" was unconstitutionally vague as applied to him. CP at 38.

¶ 8 In support of his motion, he attached: (1) Drs. Halon and First's article discussing the alleged error in and misapplication of the DSM-IV-TR's paraphilia diagnostic criteria; (2) an article authored by "leading members of the legal and psychiatric communities" discussing the same error, CP at 33; (3) Dr. Thomas Zander's article criticizing usage of a paraphilia NOS diagnosis as scientifically valid, reliable, and accepted in the field; and (4) an article cautioning against using paraphilia NOS as a catch all diagnosis when evaluators cannot identify criteria for a specific diagnosis for some persons. Each article addressed the misuse of the DSM-IV-TR to diagnose individuals with paraphilia NOS where no identifiable psychological condition was present.

¶ 9 In response, the State argued that (1) Mitchell improperly sought to challenge alleged errors of law under CR 60(b), (2) his motion was untimely under CR 60(b)(3) and CR 60(b)(11) to the extent that it challenged the 2003 commitment order, and (3) to the extent that his motion challenged the 2008 annual review hearing order, the motion failed to satisfy CR 60(b)(3) and CR 60(b)(11) criteria for relief. The trial court denied Mitchell's motion, stating that "under the circumstances ... CR 60(b)(3) and CR 60(b)(11) do not apply at this juncture of the case." Report of Proceedings at 13. Mitchell appeals.

ANALYSIS

¶ 10 Mitchell argues that the trial court erred in denying his motion to set aside the 2008 order entered following his annual review hearing because CR 60(b) applies to postcommitment orders. We disagree.[6]

¶ 11 We will reverse a trial court's denial of a motion to vacate under CR 60(b) if the trial court manifestly abused its discretion. Haley v. Highland, 142 Wash.2d 135, 156, 12 P.3d 119 (2000). A trial court abuses its discretion "only if there is a clear showing that the exercise of discretion was manifestly unreasonable, based on untenable grounds, or based on untenable reasons." Moreman v. Butcher, 126 Wash.2d 36, 40, 891 P.2d 725 (1995).

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Bluebook (online)
249 P.3d 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-detention-of-mitchell-washctapp-2011.