FILED COURT OF APPEALS DIVISION Ii
2015 JUN — 4 Aid 8: 33
STA : 0 ` 4" i C' J
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 45499 -8 -II
BRENT PETTIS, PART PUBLISHED OPINION
Petitioner.
WoRSwIcK, J. = Brent Pettis appeals his continued civil commitment to the Special
Commitment Center ( SCC) following a jury verdict in an unconditional discharge trial. He
argues that ( 1) the trial court erred under Frye' by admitting testimony based on the Structured
Forensic Version ( SRA — Risk Assessment — FV) tool at trial, (2) his commitment to the SCC
rather than the less restrictive Secure Community Treatment Facility (SCTF) violates his
substantive and procedural due process rights, ( 3) the trial court impermissibly commented on
the evidence by instructing the jury to disregard Pettis' s expert' s statements about the law, (4) he
received ineffective assistance of counsel because his attorneys made no attempt to rebut the
State' s expert or to rehabilitate Pettis' s expert' s testimony, and ( 5) the trial court erred by
admitting evidence of what Pettis' s living circumstances would be if unconditionally discharged.
1 Frye v. United States, 293 F. 1013 ( D. C. Cir. 1923). No. 45499 -8 -II
In the published portion of this opinion, we hold that the trial court did not err by admitting
testimony based on the SRA — FV tool under Frye. In the unpublished portion of the opinion, we
disagree with the remainder of Pettis' s assignments of error and affirm.
FACTS
In 2002, Brent Pettis stipulated to an order committing him to indefinite total
confinement in the Special Commitment Center ( SCC). In 2010, 2012, and 2013 annual reviews
Pettis it was concluded that he remained a violent predator ( SVP). Some of these of sexually
annual reviews opined that Pettis could be treated at a less restrictive alternative (LRA) such as
the Special Commitment Treatment Facility ( SCTF), while others did not.
In 2011 Pettis stopped formal sex offender treatment at the SCC. In 2013 he petitioned
for a trial to determine whether he could be unconditionally discharged from the SCC. The trial
court granted Pettis' s motion for a trial.
After filing his petition for unconditional release, Pettis moved to " seek conditional
release in the alternative ... during the unconditional release jury trial." Clerk' s Papers ( CP) at
100. The State opposed this motion to expand the scope of the unconditional discharge trial.
Pettis later withdrew this motion.
Dr. Amy Phenix, retained by the State, evaluated Pettis. Dr. Phenix based her evaluation
of Pettis on, among other things, actuarial and clinical risk assessment tools, including the SRA-
FV. Dr. Phenix concluded that Pettis continued to meet the definition of an SVP. She also
opined that he was " appropriate for release to a less restrictive placement, the SCTF[,]" but he
was " not appropriate for unconditional release." Suppl. CP at 404.
2 No. 45499 -8 -II
Shortly before the unconditional discharge trial was set to commence, Pettis moved the
court for a summary order placing him in the SCTF. He alleged that all of the experts who had
examined him thought an LRA, such as confinement at the SCTF, would be appropriate.
Beyond requesting transfer to the SCTF, Pettis did not provide the statutorily required details
about his proposed LRA. The trial court denied this motion.
In preparation for trial, Pettis deposed two administrators at the SCC: administrative
services chief Cathi Harris and consulting psychologist and former SCC director Dr. Holly
Coryell. Both Harris and Dr. Coryell testified that it.was the general practice at the SCC not to
recommend for transfer to the SCTF any patient not currently in treatment.
At the unconditional discharge trial, the State presented expert opinion testimony from
Dr. Phenix. In response to Dr. Phenix' s potential testimony about her evaluation of Pettis, which
was based partially on the SRA — FV risk evaluation tool, the trial court held a Frye hearing. Dr.
Phenix testified that the SRA — FV was widely accepted in the scientific community. At trial, the
trial court admitted Dr. Phenix' s testimony about the SRA — FV.
On the basis of the SRA — FV and other evaluation tools, Dr. Phenix testified that Pettis
was likely to reoffend if unconditionally discharged. She testified that he was in a high risk
group when evaluated under either the SRA — FV or other risk assessment tools.
At the time of trial, Pettis hoped to remain at the SCC for about 30 days if released, but
he had no fixed plans to do so. He also did not have fixed plans to obtain housing in the
community. Pettis moved in limine to exclude certain evidence relating to his release plans. He
moved to exclude evidence that he had no plans for where to live if released, and lacked a source
of income and a social support network. The State made an offer of proof outside the presence
3 No. 45499 -8 -II
of the jury that Pettis' s lack of housing or income were factors in Dr. Phenix' s opinion that Pettis
might lack structure and be likely to reoffend if released. The trial court ruled that Dr. Phenix
could testify to the relationship between risk of reoffending and a lack of structure. But the trial
court excluded any use of words such as " homelessness," " destitute," and " poverty." Verbatim
Report of Proceedings ( VRP) at 255, 258 -59. Over Pettis' s objection, Dr. Phenix then testified
that support and structure were very important upon release, and that Pettis did not have a source
of income, a place to live, or a support network.
Dr. Fisher testified as Pettis' s expert witness. On cross -examination, the State engaged in
the following questioning with Dr. Fisher:
Q. Do you know what [ Pettis' s] housing arrangements are, if any? A. His housing arrangements are that the social worker will find a place for him to go. They' re not going to just kick out of the SCC with 20 bucks for a bus ticket. Q. This is speculation that they will find him a place to live? A. No, that' s the plan. I don' t think that —I mean we know that if he were to be released after this trial, he has to stay in the SCCfor a minimum of30 days for the community notification process to happen. So I —I think that' s enough time to obtain his SSI for disability, get him hooked up with medical insurance providers, and find a place to live with the assistance of the social worker.
VRP at 1055 -56 ( emphasis added). The State began to impeach Fisher on his understanding of
Act2 ( the Sexually Violent Predator SVPA), and Pettis objected.
Outside the presence of the jury, Pettis' s attorneys told the trial court that Dr. Fisher was
testifying based on discussions he' s had with us," during which the attorneys appear to have
told Fisher that SVPs remained in custody for 30 days after release. After hearing argument
from both parties about whether the court should permit the State to continue to cross -examine
2 Ch. 71. 09 RCW.
4 No. 45499 -8 - II
Fisher about the law, the court concluded, " I' m going to instruct the jury that Dr. Fisher' s last
comments on stating what the law is was inaccurate, to disregard it." VRP at 1065. Then, the
trial court instructed the jury as follows:
Okay. I' m going to give you an instruction. As you heard throughout this trial and particularly at the beginning, there will be times when the Court' s going to instruct you on the law. At the conclusion of this trial, I' m going to give you some additional instruction on the law. At this point, one comment I have to make is Dr. Fisher' s last statements about what the law was in Washington and to disregard. It It wa —and disregard it. thehousing, you are was not accurate.
You may move on.
VRP at 1065 -66. Pettis did not object. On redirect examination, Pettis' s attorneys did not
question Fisher further about Pettis' s release plans.
The jury answered " yes" to the question: " Has the State proved beyond a reasonable
doubt that Brent W. Pettis continues to be a sexually -violent predator ?" VRP at 1294.
Accordingly, the trial court entered an order committing Pettis to the SCC. Pettis appeals.
ANALYSIS
FRYE CHALLENGE
Pettis argues that the trial court erred by allowing the State' s expert witness to testify
based on the Structured Risk Assessment–Forensic Version (SRA –FV) tool, because it was a
novel risk assessment that did not meet the test in Frye v. United States, 293 F. 1013, 1014 ( D. C.
Cir. 1923). We disagree.
A. Standard ofReview
Our review of the admissibility of evidence under Frye is de novo, involving a mixed
question of law and fact. State v. Copeland, 130 Wn.2d 244, 255, 922 P. 2d 1304 ( 1996). We
undertake " a searching review which may extend beyond the record and involve consideration of
5 No. 45499 -8 -II
scientific literature as well as secondary legal authority." Copeland, 130 Wn.2d at 255 -56. We
may consider materials that were unavailable until after the Frye hearing. Copeland, 130 Wn.2d.
at 256.
After determining that evidence satisfies the Frye test, we evaluate the trial court' s
admission of that evidence under ER 702. Copeland, 130 Wn.2d at 256. We review the trial
court' s decision whether to admit expert testimony under ER 702 for an abuse of discretion.
State v. Green, 182 Wn. App. 133, 146, 328 P. 3d 988, review denied, 337 P. 3d 325 ( 2014).
Expert testimony is admissible under ER 702 "[ i] f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."
Such testimony is generally helpful to the trier of fact when " it concerns matters beyond the
common knowledge of the average layperson and does not mislead the jury." State v. Thomas,
123 Wn. App. 771, 778, 98 P. 3d 1258 ( 2004). As long as helpfulness is fairly debatable, a trial
court does not abuse its discretion by allowing an expert to testify. Miller v. Likins, 109 Wn.
App. 140, 147, 34 P. 3d 835 ( 2001). And even where the helpfulness of expert testimony is
doubtful, we favor admissibility. State v. King County Dist. Court W. Div., 175 Wn. App. 630,
638, 307 P. 3d 765, review denied sub nom. State v. Ballow, 179 Wn.2d 1006 ( 2013).
B. SRA — FV Passes the Frye Test
Courts in Washington adhere to the Frye test in evaluating the admissibility of novel
scientific evidence. Copeland, 130 Wn.2d at 261. Under Frye, novel scientific evidence is
admissible only where it is based on methods that are generally accepted in the scientific
community. 293 F. at 1014. Testimony is admissible under Frye where "( 1) the scientific theory
or principle upon which the evidence is based has gained general acceptance in the relevant
6 No. 45499 -8 -II
scientific community of which it is a part;[31 and (2) there are generally accepted methods of
applying the theory or principle in a manner capable of producing reliable results." Lake Chelan
Shores Homeowners Ass 'n v. St. Paul Fire & Marine Ins. Co., 176 Wn. App. 168, 175, 313 P. 3d
408 ( 2013), review denied, 179 Wn.2d 1019, 318 P. 3d 280 ( 2014) ( quoting State v. Sipin, 130
Wn. App. 403, 414, 123 P. 3d 862 ( 2005)). This standard does not require unanimity. Lake
Chelan Shores Homeowners Ass 'n, 176 Wn. App. at 176. But evidence is inadmissible under
Frye if there is a significant dispute among qualified scientists in the relevant scientific
community. Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 603, 260 P. 3d 857 ( 2011).
We do not attempt to determine whether the scientific theory is correct; our review is
merely of whether the theory is generally accepted in the scientific community. Lake Chelan
Shores Homeowner 's Ass 'n, 176 Wn. App. at 175 -76. We may examine judicial decisions from
other jurisdictions, but the relevant inquiry is the general acceptance by scientists, not by courts.
State v. Cauthron, 120 Wn.2d 879, 888, 846 P. 2d 502 ( 1993), overruled in part on other grounds
by State v. Buckner, 133 Wn.2d 63, 65 -66, 941 P. 2d 667 ( 1997).
1. SRA — FV Background
The SRA — FV was released in 2010 by Dr. David Thornton, who previously authored
other " static" risk assessment tools.4 VRP at 327. It is a " guideline for assessing the known
3 Pettis concedes that actuarial tools and clinical evaluations are generally admissible under Frye. Thus, Pettis does not argue that the scientific theory or principle upon which risk assessment tools are based lacks acceptance; he argues instead that the SRA — FV tool lacks general acceptance. We analyze only the SRA — FV tool, not risk assessment methods generally. 4 A " static" risk factor is one that does not change over time, whereas a " dynamic" risk factor may change. VRP at 302. The major static risk assessment tools in use appear to be the Static - 99R and the Static- 2002R, both developed in part by Dr. Thornton.
7 No. 45499 -8 - II
dynamic risk factors that predict future sexual re- offense." VRP at 320. It is a " quantitative
measure" allowing psychologists to score risk factors and allowing them to " get an idea of the
presence of dynamic risk factors in a structured way." VRP at 320. Dr. Phenix used the SRA-
FV, among other tools, in her evaluation of Pettis as " a more precise way and structured way of
looking at the presence of [risk] factors," and to help identify " which base rates, or what I call
norms, to choose to identify the re- offense rates for sexual re- offense." VRP at 321.
The SRA — FV was based on a sample of sexual offenders called the " Bridgewater
Sample," which used data from 1954 to 1989. VRP at 333. Dr. Phenix testified that studies had
revealed that the same dynamic risk factors ( such as those tested in the SRA — FV) were
predictive for older samples, such as the Bridgewater Sample, and contemporary samples. This
suggests that the age of the sample upon which the SRA — FV was built and tested did not
negatively affect its accuracy. At the time of development in 2010, the SRA — FV was cross -
validated on the Bridgewater Sample, but it had not been cross -validated since.
Dr. Phenix testified that the inter -rater reliability of the SRA — FV was .55. 5 She
characterized this as " modest" reliability, but said that she hoped that in time, after more studies
had been done, the inter -rater reliability of the SRA -FV would improve. VRP at 338. She
further testified that the statistical predictive accuracy of the SRA — FV was . 73, which was a
very acceptable predictive accuracy," comparable to the older Static -99R and Static -2002R
5 " Inter -rater reliability " refers to the likelihood that different practitioners would reach the same result through applying the tool. VRP at 338.
8 No. 45499 -8 -II
tools. VRP at 341. And the SRA –FV shows " significant incremental validity in improving the
risk assessment over use of the Static -99R alone." Suppl. CP at 398.
2. Acceptance of the SRA –FV in the Scientific Community
At the time of the Frye hearing, Dr. Thornton had not yet published a peer- reviewed
article describing the SRA -FV. Dr. Thornton recommended the use of the SRA –FV " primarily
in sex -offender evaluations where a person has been incarcerated for a period of time." VRP at
327. Dr. Phenix testified at Pettis' s trial that the SRA –FV was " fairly widely used with my
colleagues," with the caveat that it was a relatively new instrument, " so it takes time to train all
the folks who evaluate sex offenders." VRP at 328. She testified that " Dr. Thornton is a very
well -known researcher in the field, so [ the SRA –FV has] been fairly widely accepted in cases
where offenders have been incarcerated for a lengthy period of time." VRP at 340. Dr. Phenix
testified that the SRA –FV had been discussed in practitioners' discussion groups online, and she
summarized: " My colleagues are excited about it. It' s been accepted by —and most people are —
are using it." VRP at 344. She said that once an instrument shows " moderate predictability or
above, then generally it' s accepted in my field." VRP at 344.
At the time of the Frye hearing, California had adopted the use of the SRA –FV through
legislation. And Dr. Phenix testified that in Washington, " many of the evaluators are using the
SRA –FV." VRP at 345. She said she had testified about the SRA –FV in several jurisdictions,
and it had only been excluded once in New Hampshire under the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 ( 1993) standard.
9 No. 45499 -8 -II
After the Frye hearing in 2013, California stopped using the SRA — FV without
explanation.6 It is unclear whether California stopped using the SRA — FV due to rejection by the
scientific community or for another reason.
In December 2013, after Pettis' s trial, Dr. Thornton published a peer -reviewed article
describing FV. David Thornton & the SRA — Raymond Knight, Construction and Validation of
SRA — FV Need Assessment, SEXUAL ABUSE: A JOURNAL OF RESEARCH AND TREATMENT XX(X)
1 - 16 ( 2013). FV has been described The SRA — favorably in some books: " For non -disabled
clients, FV] ( Thornton, 2002) ... the [ SRA — enjoy[ s] relative degrees of favor, depending on the
jurisdiction in which each is used." Robin J. Wilson & David S. Prescott, Understanding and
Responding to Persons with Special Needs Who Have Sexually Offended, in RESPONDING TO
SEXUAL OFFENDING: PERCEPTIONS, RISK MANAGEMENT AND PUBLIC PROTECTION 128, 134
Kieran McCartan, ed., 2014); see also Alix M. McLearen et al., Perpetrators ofSexual
Violence: Demographics, Assessments, Interventions, in VIOLENT OFFENDERS: UNDERSTANDING
AND ASSESSMENT 216, 231 ( Christina Pietz, et al., eds., 2014) ( describing the SRA — FV as a
research- guided multistep framework for assessing the risk presented by a sex offender and
provides a systematic way of going beyond static risk classification ").
One peer -reviewed article by a practitioner in the field criticizes the SRA — FV' s approach.
Brian R. Abbott, The Utility ofAssessing " External Risk Factors" When Selecting Static -99R
Reference Groups, 5 OPEN ACCESS JOURNAL OF FORENSIC PSYCHOLOGY, 89, 102 ( 2013). Dr.
6 Risk Assessment Instruments, CAL. STATE AUTHORIZED RISK ASSESSMENT TOOL FOR SEX OFFENDERS COMM., http: / saratso. / org /index.cfm? pid =467 ( last visited Apr. 22, 2015).
10 No. 45499 -8 -II
Phenix responded to this article in the Frye hearing: she acknowledged that " there was quite a bit
of criticism from a handful of experts that testify only for the defense in these cases, and Dr.
Abbott is one of them." VRP at 352. Dr. Fisher mildly criticized the SRA — FV in his evaluation
of Pettis: Dr. Fisher stated that the tool suffered from the shortcoming that it was based on an old
sample of offenders. But in his testimony at trial, Dr. Fisher conceded that " some" experts rely
on the SRA — FV and Dr. Fisher used the SRA — FV to score Pettis' s risk in his own evaluation.
We hold that the SRA — FV has been generally accepted in the scientific community. See
Lake Chelan Shores Homeowners Ass 'n, 176 Wn. App. at 175. The sources available, both at
the Frye hearing below and in the scientific literature, suggest that most practitioners accept the
SRA — FV as one of many useful tools to evaluate risk of future sexual offenses. Dr. Phenix
testified unequivocally that the tool was widely accepted in her field due to its good predictive
accuracy. And there does not appear to be a significant dispute about the acceptance of the
SRA — FV. There is some criticism from Dr. Abbott and Dr. Fisher, but the Frye standard does
not require unanimity. Lake Chelan Shores Homeowners Ass 'n, 176 Wn. App. at 176.
We hold that the scientific theory or principle upon which the SRA — FV is based has
gained general acceptance in the relevant scientific community of which it is a part, and thus
passes the first prong of the Frye test.
3. Accepted Methods ofApplying the SRA —FV
Dr. Thornton released the SRA — FV at an Association for Treatment of Sexual Abusers
meeting, where he held trainings to assist practitioners in applying the tool. Typically,
evaluators use the SRA — FV in conjunction with the older Static -99R tool. Dr. Phenix testified
that, in addition to the group of researchers who had been trained on the use of the SRA — FV at
11 No. 45499 -8 -II
the time of its release, several hundred other researchers had been trained to use the tool. The
SRA — FV involves a coding form, which appears to be an integral part of the tool to standardize a
researcher' s assessment.
Dr. Phenix' s testimony also suggests there are generally accepted methods of applying
the SRA — FV: it involves a specific training and a standard coding form. Pettis argues that the
SRA — FV' s low reliability rating, by itself, renders it inadmissible under Frye." Br. of
Appellant at 20. But Lake Chelan Shores does not support this conclusion. Division One of this
court in Lake Chelan Shores held that one factor of Frye admissibility is whether " there are
generally accepted methods of applying the theory or principle in a manner capable of producing
reliable results," but there is no numerical " cutoff' for reliability. See 176 Wn. App. at 175. Dr.
Phenix testified that the inter -rater reliability rating was " modest," but that practitioners accepted
it due to its moderate predictability.
We hold that there are generally accepted methods of applying the SRA — FV in a manner
capable of producing reliable results, and thus it passes the second prong of the Frye test. Thus,
we hold that the SRA — FV passes the Frye test.
C. ER 702: Trial Court Did Not Abuse Its Discretion
We hold that the trial court did not abuse its discretion by admitting testimony based on
the SRA — FV. Under the deferential standard of ER 702, a trial court does not abuse its
discretion by allowing an expert to testify when the helpfulness of the expert' s testimony is fairly
debatable. Green, 182 Wn. App. at 146; Miller, 109 Wn. App. at 147.
Here, Dr. Phenix' s testimony was helpful to the jury. She provided scientific, specialized
knowledge about SVPs' risk factors that would assist the jury in determining the likelihood that
12 No. 45499 -8 -II
Pettis would reoffend if released. Her opinion, based on multiple risk assessment tools, was
helpful to the jury by describing risk factors, risk assessment tools, and the likelihood of
reoffense based on those tools. We hold that the trial court did not abuse its discretion by
allowing Dr. Phenix to testify about the SRA- FV.
Affirmed.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
DUE PROCESS CHALLENGES
Pettis next argues that the SVPA, either on its face or as applied to him, violates his
substantive and procedural due process rights. We do not reach his constitutional arguments,
because they depend on unsupported allegations and an incorrect reading of the SVPA.
We review constitutional questions de novo. State v. McCuistion, 174 Wn.2d 369, 387,
275 P. 3d 1092 ( 2012). We presume that statutes are constitutional, and a challenger bears the
burden of proving otherwise beyond a reasonable doubt. McCuistion, 174 Wn.2d at 387; In re
Det. of Bergen, 146 Wn. App. 515, 524, 195 P. 3d 529 ( 2008). It is a fundamental principle that
we refrain from deciding constitutional issues when a case can be decided on nonconstitutional
7 Pettis' s brief contains 27 unlabeled arguments and seven issues in a section entitled " Issues and Assignments of Br. of Appellant at 1 - 4. The 27 arguments appear to be a summary of Error." the arguments in Pettis' s Argument section, and only some assign error to trial court actions. We do not reach assignments of error and issues that were not adequately briefed.
13 No. 45499 -8 - II
grounds. Isla Verde Int' l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P. 3d 867
2002).
B. Statutory Scheme
The SVPA defines an " SVP" as " 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). After the State has proven that the person is an SVP by a
preponderance of the evidence, the Department of Social and Health Services ( DSHS) must
place the person in a secure facility
for control, care, and treatment until such time as: ( a) The person' s condition has so changed that the person no longer meets the definition of a sexually violent predator; or ( b) conditional release to a less restrictive alternative ... is in the best interest of the person and conditions can be imposed that would adequately protect the community.
RCW 71. 09. 060( 1); see also RCW 71. 09. 020( 7); 71. 09. 040. A "secure facility" is " a residential
facility for persons civilly confined under the provisions of this chapter that includes security
measures sufficient to protect the community," including total confinement facilities such as the
SCC, and less restrictive facilities such as the SCTF. RCW 71. 09. 020( 15), ( 19), ( 16);
71. 09. 250( 1)( a)( i). During civil commitment, SVPs are entitled to annual review procedures by
qualified professionals to ensure that they continue to meet the SVP criteria. RCW 71. 09.070.
An SVP may obtain unconditional discharge under RCW 71. 09.090 under one of two
procedures. First, if the secretary of the DSHS determines that the SVP' s condition " has so
changed" that he or she no longer meets the definition of an SVP, the Secretary " shall authorize
the person to petition the court for ... unconditional discharge." RCW 71. 09. 090( 1). But
14 No. 45499 -8 -II
n] othing contained in this chapter shall prohibit the person from otherwise petitioning the court
for ... unconditional discharge without the secretary' s approval." RCW 71. 09. 090( 2)( a). " If the
person does not affirmatively waive the right to petition, the court shall set a show cause hearing
to determine whether probable cause exists to warrant a hearing on whether the person' s
condition has so changed that ... [ h] e or she no longer meets the definition of a sexually violent
predator." RCW 71. 09. 090( 2)( a). In other words, while the secretary may authorize the SVP to
file a petition for unconditional discharge with the court under subsection ( 1), this section
imposes no restriction on an SVP' s right to file a petition for unconditional discharge without the
approval of the secretary under subsection (2).
Alternatively, an SVP may obtain an LRA to total confinement under RCW 71. 09. 090,
following the same procedure required to petition for unconditional discharge. An LRA is
available when the SVP meets five criteria.8 RCW 71. 09. 090 provides the same two paths to a
8 The criteria are as follows: 1) The person will be treated by a treatment provider who is qualified to provide such treatment in the state of Washington under chapter 18. 155 RCW; 2) the treatment provider has presented a specific course of treatment and has agreed to assume responsibility for such treatment and will report progress to the court on a regular basis, and will report violations immediately to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the special commitment center; 3) housing exists in Washington that is sufficiently secure to protect the community, and the person or agency providing housing to the conditionally released person has agreed in writing to accept the person, to provide the level of security required by the court, and immediately to report to the court, the prosecutor, the supervising community corrections officer, and the superintendent of the special commitment center if the person leaves the housing to which he or she has been assigned without authorization; 4) the person is willing to comply with the treatment provider and all requirements imposed by the treatment provider and by the court; and
15 No. 45499 -8 -II
determination that the SVP meets those criteria as it does for unconditional discharge. First,
under RCW 71. 09. 090( 1):
If the secretary [ of DSHS] determines that ... conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative.
Under this procedure, the SVP files a petition with the court, and the court then sets a hearing
within 45 days to determine whether the SVP meets the criteria in RCW 71. 09. 092. RCW
71. 09. 090( 1).
But RCW 71. 09. 090( 2) provides in part:
Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative .. . without the secretary' s If the person does not affirmatively waive the approval....
right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person' s condition has so changed that ... conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
Thus, as with a petition for unconditional discharge, there are two paths to petition the court for a
less restrictive alternative. Ifthe secretary finds that conditional release is appropriate, the
secretary shall authorize the SVP to file a petition. But the SVP may, in any event, petition the
court without the secretary' s approval. RCW 71. 09. 090( 1), ( 2).
Relevant to Pettis' s appeal, one of the criteria for a court to order conditional release to
an LRA is that " housing exists in Washington that is sufficiently secure to protect the
5) the person will be under the supervision of the department of corrections and is willing to comply with supervision requirements imposed by the department of corrections.
RCW 71. 09. 092.
16 No. 45499 -8 - II
community, and the person or agency providing housing to the conditionally released person has
agreed in writing to accept the person." RCW 71. 09. 092( 3). The trial court may not find
probable cause for an LRA trial unless the SVP provides the court a proposed LRA that meets
the criteria in RCW 71. 09. 092. RCW 71. 09. 090( 2)( d). In other words, the trial court is not
permitted to find probable cause to proceed with an LRA trial unless it appears that there is
statutorily compliant proposed housing that will accept the SVP. RCW 71. 09. 090( 2)( d).
In any event, regardless of who begins the petition process or which type of release is
sought, the trial court may grant a new trial only " when there is current evidence from a licensed
professional" of either an " identified physiological change to the person, such as paralysis,
stroke, or dementia, that renders the committed person unable to commit a sexually violent act
and this change is permanent[,]" or a " change in the person' s mental condition brought about
through positive response to continuing participation in treatment" indicating that the person
either no longer meets the definition of an SVP or meets the criteria for an LRA, as the case may
be. RCW 71. 09. 090( 4)( b). Thus, under the statute, although either the DSHS or the SVP may
begin the process of seeking a trial for either unconditional discharge or an LRA, such a trial is
only available where there is evidence of either a physiological change or a change brought
about by " continuing participation in treatment." RCW 71. 09. 090( 4)( b)( ii).
C. Allegations Underlying Pettis' s Claim Are Unsupported
Pettis cites unsupported facts and misreads Chapter 71. 09 RCW to support his
constitutional arguments. Thus, we do not reach his constitutional arguments.
Pettis' s argument depends on his allegation that under chapter 71. 09 RCW, the SCC
administration is the " exclusive gatekeeper" to the SCTF, and that "[ o] nly an unwritten SCC
17 No. 45499 -8 -II
policy prevents Mr. Pettis from being transferred to the SCTF." Br. of Appellant at 14. He
argues that the " court is powerless to step in if the gatekeepers at the SCC refuse to agree to the
person' s admission to the SCTF." Br. of Appellant at 14. These allegations form the basis of his
constitutional claims. But these contentions lack support from the statute and the record.
As stated above, DSHS may make a finding that an SVP has " so changed" based on
treatment or physiological change that he either no longer meets the definition of an SVP, or that
conditional release to an LRA ( such as the SCTF) would be appropriate. RCW 71. 09. 090( 1). If
the DSHS makes such a finding, then it shall permit the SVP to petition the court for a trial.
RCW 71. 09. 090( 1). But subsection ( 2) states plainly that. "[ n] othing contained in this chapter
shall prohibit the person from otherwise petitioning the court for conditional release to a less
restrictive alternative or unconditional discharge without the secretary' s approval." RCW
71. 09. 090( 2) ( emphasis added). Thus, the statute plainly demonstrates that the SVP may petition
for conditional release to an LRA, regardless of whether the SCC administrators choose to
authorize such a petition. RCW 71. 09. 090( 2). Pettis' s argument that the court is " powerless"
unless the SCC agrees is plainly contrary to the statute.
Furthermore, even accepting for the sake of argument Pettis' s contention that both the
SCC and the SCTF would prevent Pettis from establishing probable cause for an LRA at the
SCTF so long as Pettis was not in treatment, the SCTF is not the only LRA available. Thus,
Pettis fails to show that an LRA is unavailable to him, even if the SCC is the " exclusive
gatekeeper" to the SCTF. Instead, an SVP may be moved to any LRA where the court finds that
housing exists in Washington that is sufficiently secure to protect the community," among other
requirements. RCW 71. 09. 092( 3). Under the statute, secure community transition facilities ( one
18 No. 45499 -8 -II
type of LRA) " include but are not limited to the [ SCTF9] and any community -based facilities
established under this chapter and operated by the secretary or under contract with the secretary."
RCW 71. 09. 020( 16). And " community LRAs" are an option: under RCW 71. 09. 092( 3),
appropriate housing for an LRA can include residing with a member of the community, so long
as the statutory factors for an LRA are met. See RCW 71. 09. 345 ( discussing LRAs at an SVP' s
private residence). Thus, the SCTF is just one of many potential LRAs. Even assuming for the
sake of argument that the SCTF would not accept Pettis because the SCC would not recommend
his transfer, other LRAs were not foreclosed to him.'°
The statute and the record also contradict Pettis' s argument that "[ o] nly an unwritten
SCC policy prevents Mr. Pettis from being transferred to the SCTF." Br. of Appellant at 14. He
bases this argument on depositions from administrators at the SCC, who suggested that the
practice at the SCC was not to recommend transferring any SVP who was not currently in
treatment. 11 But neither deposition supports Pettis' s allegation that " only" the unwritten SCC
policy prevented Pettis' s transfer to the SCTF. Instead, as stated above, whether or not the SCC
recommends an LRA, the SVP may petition the court for an LRA. RCW 71. 09. 090( 2). And
9 The proper noun " Special Commitment Treatment Facility," or SCTF, refers to the specific facility on McNeil Island operated by the DSHS. RCW 71. 09. 250( 1)( a)( i). This should not be confused with " secure community transition facility." RCW 71. 09. 020( 16).
10 We note, however, that Pettis did not seek transfer to the SCTF, and the record before us therefore does not establish that the SCTF would not have accepted him.
11 One SCC administrator testified that she believed Pettis was not being " considered" for the SCTF because " he is not actively engaged in treatment right now." CP at 283. A consulting psychologist at the SCC testified similarly that the SCC typically supports placement in the SCTF for SVPs who are currently engaged in treatment, among other factors.
19 No. 45499 -8 -II
regardless of who begins the process of petitioning for an LRA, the court is not empowered to
grant an LRA trial unless the SVP has " so changed" either due to a physiological change or due
to ongoing treatment that an LRA is appropriate. RCW 71. 09. 090( 4)( b). In other words, absent
a physiological change, the only permissible basis for the court to grant a trial on whether an
SVP should transfer to an LRA is that he has changed due to ongoing treatment. RCW
71. 09. 090( 4)( b). It is undisputed that Pettis did not petition for an LRA until 2013, and that he
had not participated in formal treatment since 2011. The statute and the record directly
contradict Pettis' s argument that the SCC' s unwritten policy was the only barrier between him
and the SCTF or another LRA.
Finally, Pettis argues that it was " undisputed that he can be safely treated" at the SCTF,
but this is not supported by the record. Br. of Appellant at 16. Some experts supported Pettis' s
move to the SCTF, but others did not. Dr. Carla van Dam, who conducted the 2012 annual
review, wrote that placement at the SCTF would not be appropriate. And Dr. Daniel Yanisch,
who performed an annual review around the time of trial in 2013, opined that an LRA might be
appropriate but did not recommend the SCTF. Finally, the depositions from SCC staff, upon
which Pettis relies, demonstrate that the SCC staff did not believe the SCTF would be
appropriate for Pettis. Thus, the record does not support the assertion that it was undisputed that
the SCTF was appropriate for Pettis. And, as discussed below, this issue was not adjudicated
because Pettis did not properly seek an LRA trial.
Pettis' s arguments about the unconstitutionality of the SVPA statutory scheme are
without merit because the allegations underpinning his argument are unsupported. Thus, we do
20 No. 45499 -8 -II
not consider the merits of his constitutional claim, because the facts as he presents them in his
argument are not supported by the statute or the record.
D. Pettis Did Not Follow Statutory Procedure for Less Restrictive Alternative
The State argues that Pettis did not follow the statutory procedure to obtain an LRA. We
agree.
To obtain a trial on whether an LRA is appropriate, the SVP must petition the court for a
12 show cause hearing. RCW 71. 09. 090( 1), ( 2). At the show cause hearing, the trial court
determines whether probable cause exists to warrant a hearing on whether the SVP' s condition
has so changed that conditional release to an LRA is in the best interests of the SVP and the
community. RCW 71. 09. 090( 2)( a). The trial court is not permitted under the statute to find
probable cause for an LRA trial unless the SVP provides a proposed LRA placement that meets
the criteria in RCW 71. 09. 092. RCW 71. 09. 090( 2)( d).
Here, Pettis did not comply with this statutory procedure. Rather than petitioning the
court for a show cause hearing and providing a proposed LRA placement, Pettis petitioned for an
unconditional discharge trial. He later moved to seek conditional release in an LRA as part of
the unconditional discharge trial, but withdrew that motion. Finally, shortly before his
unconditional discharge trial was set to begin, Pettis moved the court for a summary order to
compel his placement in the SCTF. At no point did Pettis provide a proposed LRA, apart from
merely requesting placement at the SCTF. This petition did not include the required details
12 As described above, the SVP may do this with or without the support of DSHS. RCW 71. 09. 090( 1), ( 2).
21 No. 45499 -8 - II
complying with the statutory criteria for an LRA under RCW 71. 09. 092. The trial court properly
denied this motion.13 Thus, Pettis did not follow statutory procedures for the court to consider
granting him an LRA trial.
COMMENT ON THE EVIDENCE
Pettis next argues that the trial court impermissibly commented on the evidence by
instructing the jury to disregard portions of Dr. Fisher' s testimony. We disagree.
We review de novo whether a judge impermissibly commented on the evidence. State v.
Levy, 156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006). An allegation that a judge impermissibly
commented on the evidence may be raised for the first time on appeal. Levy, 156 Wn.2d at 719-
20.
The Washington Constitution prohibits judges from commenting on the evidence. WASH.
CONST. art. IV, § 16. Under this prohibition, a trial court must not "` convey[] to the jury his or
her personal attitudes toward the merits of the case' or instruct[] a jury that `matters of fact have
been established as a matter of law." Levy, 156 Wn.2d at 721 ( quoting State v. Becker, 132
Wn.2d 54, 64, 935 P. 2d 1321 ( 1997)).
Here, the trial court instructed the jury to disregard " Dr. Fisher' s last statements about
what the law was in Washington and the housing." VRP at 1066. The context of this instruction
is vitally important. During the State' s cross -examination of Dr. Fisher, Dr. Fisher began to
testify about his understanding of the SVPA. He testified that " if [Pettis] were to be released
after this trial, he has to stay in the SCC for a minimum of 30 days for the community
13 Pettis does not appear to challenge this denial.
22 No. 45499 -8 -II
notification process to happen." VRP at 1055 -56. Outside the presence of the jury, Pettis' s
attorneys said that Fisher was testifying based on the attorneys' representations about where
SVPs lived after release under the law. After hearing argument from both parties about whether
the court should permit the State to continue to cross -examine Fisher about the law, the court
decided to instruct the jury to disregard Dr. Fisher' s statements about the law.
Pettis argues that "[ b] y referencing ` Dr. Fisher' s last statements,' and referring broadly to
the housing,' the court erroneously suggested that Dr. Fisher had made a mistake about more
than just `what the law was in Washington. ' Br. of Appellant at 23 ( quoting VRP at 1066).
Pettis argues that the court expressed a personal opinion about whether Pettis intended to stay at
the SCC after release. Pettis misstates the record.
The record makes clear that Dr. Fisher' s understanding of Pettis' s " plan" consisted only
of Dr. Fisher' s erroneous understanding of the law. He testified that " we know that if he were to
be released after this trial, he has to stay in the SCC for a minimum of 30 days for the
community notification process to happen." VRP at 1055 -56. Dr. Fisher' s testimony clearly
shows that he was testifying to his understanding of the law, not to his understanding of Pettis' s
factual plans. This is supported by the statements of Pettis' s attorneys outside the presence of
the jury: they told the trial court that " there' s nothing fixed in stone" about Pettis' s release plans,
and that " we are going to do everything we can to make sure" that he had time after release to
enroll in benefits and find housing. VRP at 1058. These statements, read together with Dr.
Fisher' s testimony that Pettis " has to stay in the SCC for a minimum of 30 days," makes clear
that Dr. Fisher could not have been testifying about Pettis' s specific release plans. There were
23 No. 45499 -841
no such plans. Instead, he was testifying about his understanding of the requirements of the
statute.
It is undisputed that the SVPA requires a former SVP, upon release, to remain at the SCC
for only 24 hours. RCW 71. 09. 080( 7). The law contains no 30 -day requirement. Dr. Fisher
testified incorrectly that the law contained such a requirement. Any apparently factual
statements he made were premised on this incorrect understanding of the SVPA. And because
the trial court merely told the jury to disregard Dr. Fisher' s incorrect legal testimony about
housing, he neither expressed his personal opinion on the merits of the case nor instructed the
jury that any matter of fact was established as a matter of law. Levy, 156 Wn.2d at 721. Thus,
this instruction was not a comment on the evidence.
INEFFECTIVE ASSISTANCE OF COUNSEL
Pettis further argues that he received ineffective assistance of counsel because his
attorneys failed to rebut Dr. Phenix' s testimony about Pettis' s living situation, and because they
failed to rehabilitate Dr. Fisher after the trial court instructed the jury to disregard Dr. Fisher' s
testimony about the law. We disagree.
To prevail on an ineffective assistance of counsel claim, the defendant must establish that
1) defense counsel' s performance was deficient and ( 2) defense counsel' s deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 ( 1984). Failure to establish either prong is fatal to an ineffective assistance of
counsel claim. Strickland, 466 U. S. at 700.
24 No. 45499 -8 -II
Our review of counsel' s performance is highly deferential. We strongly presume
reasonableness. State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995). To rebut the
presumption of reasonableness, the defendant bears the burden of establishing the absence of any
conceivable legitimate tactic explaining counsel' s performance.' State v. Grier, 171 Wn.2d
17, 42, 246 P. 3d 1260 ( 2011) ( quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80
2004)). And to establish prejudice, a defendant must show a reasonable probability that the
outcome would have differed absent the deficient performance. State v. Thomas, 109 Wn.2d
222, 226, 743 P. 2d 816 ( 1987).
A. Failure To Rebut Dr. Phenix
Pettis argues that his trial counsel was deficient for failing to rebut Dr. Phenix' s
misleading claim that Mr. Pettis would be homeless and destitute if released." Br. of Appellant
at 26. Pettis misstates the record here; Dr. Phenix made no such claim. A search of the record
demonstrates that Dr. Phenix never used the term " homeless" or " destitute." Nor did Dr. Phenix
testify before the jury that Pettis would lack a home if released: she testified that she based her
opinion in part upon Pettis' s need for " support, structure, and treatment when he goes out to the
community." VRP at 406. She testified that some important aspects of the " structure" that
would help Pettis emotionally were housing and income. VRP at 547. And she testified that he
had not yet arranged for somewhere to live, nor for a source of income. But these statements did
not constitute a " claim that Mr. Pettis would be homeless and destitute if released;" instead, they .
were a claim that he did not, at the time of trial, have housing arrangements, a source of income,
or other sources of support such as family and friend networks. Br. of Appellant at 26.
25 No. 45499 -8 - II
Moreover, the record demonstrates that there was no evidence with which to rebut Dr.
Phenix' s claim that Pettis had no release plan. Pettis' s attorneys told the court that Pettis had no
plans for housing or income. Pettis' s brief alleges that the " SCC will generally hold a detainee
for 30 days after release," and that " Mr. Pettis and his attorneys intended to take advantage of
that 30 -day period," but his only support for that contention comes from Dr. Fisher' s mistaken
testimony about the law, and Pettis' s attorneys statements that they planned to try to help Pettis
stay at the SCC for 30 days. Br. of Appellant at 26. The record contains no evidence that such a
plan existed; instead, the record demonstrates that Pettis and his attorneys hoped such a plan
could be arranged later.
Thus, because the record establishes that Pettis had no release plan, he fails to carry his
burden of demonstrating that there was no conceivable legitimate trial tactic behind his
attorneys' failure to rebut Dr. Phenix' s testimony. Grier, 171 Wn. 2d at 42. There is a
conceivable legitimate trial tactic behind declining to highlight the fact that no release plan
existed. Because we hold that Pettis' s attorneys were not deficient for failing to rebut Dr.
Phenix' s testimony, this claim fails. Strickland, 466 U.S. at 700.
B. Failure To Rehabilitate Dr. Fisher
Pettis also argues that he received ineffective assistance of counsel because his attorneys
failed to rehabilitate Dr. Fisher after the trial court instructed the jury to disregard his incorrect
Because Pettis had no release plan, there was no evidence with which his attorneys could
have rehabilitated Dr. Fisher. And as stated above, there was a conceivable legitimate trial tactic
behind their decision not to highlight the lack of release plan by having Dr. Fisher testify further.
26 No. 45499 -8 -II
There is no evidence that Dr. Fisher had any knowledge of Pettis' s release plan; instead, he
appears to have had knowledge merely of Pettis' s attorneys' statements about the law, which
were incorrect. We hold that Pettis' s attorneys were not deficient for declining to rehabilitate Dr.
Fisher because no evidence existed with which to rehabilitate him. Thus, this claim fails.
Strickland, 466 U. S. at 700.
EVIDENTIARY RULING
Finally, Pettis argues that the trial court erred by admitting evidence that " Mr. Pettis
would be homeless and penniless upon his release." Br. of Appellant at 29. We disagree
because the trial court admitted no such evidence.
We review a trial court' s evidentiary rulings for an abuse of discretion. In re Detention
of Post, 170 Wn.2d 302, 309, 241 P. 3d 1234 ( 2010). Pettis argues that " the court erred by
admitting Dr. Phenix' s testimony that Mr. Pettis would be homeless and destitute if released."
Br. of Appellant at 29. But as stated above, Dr. Phenix did not testify that Pettis would be
homeless" or " destitute." Instead, she testified that he had no release plan, and that housing and
income, among other factors, were important aspects of the " structure" that Pettis would need to
succeed upon release. Thus, the evidence that Pettis contests was not admitted at trial, and we do
not consider his challenge.
We hold that the SRA -FV tool passes the Frye test, and that the trial court did not abuse
its discretion by admitting testimony bases on the tool. We do not reach Pettis' s constitutional
arguments because they depend on unsupported allegations and an incorrect reading of the
SVPA and because Pettis did not follow statutory procedures in the trial court when he sought
placement in an LRA. In addition, we hold that the trial court did not comment on the evidence
27 No. 45499 -8 -II
and that Pettis received effective assistance of counsel. Finally, we do not consider Pettis' s
evidentiary challenge because the trial court did not admit the evidence complained of..
We concur:
hanson, C.
Melnick, J. J