In the Matter of the Personal Restraint of: Donald E. Lambert

• Court: Court of Appeals of Washington
• Decided: February 20, 2024
• Docket: 39748-3
• Status: Published

Opinion

FILED FEBRUARY 20, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

In the Matter of the Personal Restraint of: ) No. 39748-3-III ) ) ) DONALD E. LAMBERT, ) PUBLISHED OPINION ) Petitioner. )

LAWRENCE-BERREY, A.C.J. — Donald Lambert petitions this court for relief from

personal restraint after the Indeterminate Sentence Review Board (ISRB) denied his

petition for release. Because the ISRB’s decision fails to meaningfully apply

RCW 10.95.030(2)(f)’s presumption of release, we grant Lambert’s petition and direct

the ISRB to grant Lambert a new hearing.

FACTS

OVERVIEW

In 1997, Donald Lambert pleaded guilty to one count of aggravated murder in the

first degree. He committed the offense when he was 15 years old and on probation for

another crime. The trial court imposed a mandatory life sentence.

In 2014, the legislature amended the aggravated murder sentencing statute and

mandated the resentencing of all persons who had been previously sentenced as a

juvenile for the crime of aggravated murder. RCW 10.95.030, .035(1). Soon after,

Lambert was resentenced to an indeterminate term of 25 years to life. No. 39748-3-III Pers. Restraint of Lambert

In August 2007, Lambert stabbed another inmate with a knife. He pleaded guilty

to assault in the third degree, and the trial court imposed the maximum standard range

sentence of 365 days, to be served consecutively with his aggravated murder sentence.

Prior to his March 2023 early release date, Lambert began the process of

petitioning for release. As part of this process, psychologist Dr. Lisa Robtoy evaluated

Lambert and issued a 12-page report.

The ISRB conducted a hearing in July 2022, where it considered the arguments of

Lambert’s attorney along with the testimonies of Lambert and classification counselor

(CC) Denise McMains. In an August 2022 decision, the ISRB denied Lambert’s petition.

In an effort to secure a new hearing, Lambert sent the ISRB a draft personal restraint

petition. In response, the ISRB issued an amended decision again denying Lambert’s

petition.

FACTS SUBMITTED AT THE JULY 2022 HEARING

1. Early childhood

Lambert had a chaotic and unstable childhood that included alcoholic parents who

were incarcerated for various criminal activities. His parents separated one year after his

birth, after which he lived part-time with his mother and part-time with grandparents.

2 No. 39748-3-III Pers. Restraint of Lambert

Lambert’s mother was depressed, manic, and lived a party lifestyle. As a young

child, Lambert lived in poverty, often went hungry, and was physically abused by his

mother and her various boyfriends.

When Lambert was six or seven years old, his mother was involved in drug

trafficking, and a shooting occurred in their home. His mother went to prison for two

years. After his mother’s release, she and Lambert lived in lower income neighborhoods

where Lambert was exposed to drug use, criminal activity, and gangs. Lambert began

engaging in criminal activities when he was about 12 years old.

2. Prior offenses

Child molestation, first degree: In 1994, when Lambert was 12 years old, he

sexually abused a young girl. In December 1995, he pleaded guilty to molestation of a

child in the first degree and was sentenced to 8 to 12 weeks in a detention facility.

Lambert was paroled in May 1996 and placed on probation for 2 years.

Aggravated murder, first degree: In May 1997, 15-year-old Lambert and another

teenager entered the house of an elderly couple and brutally shot the husband. See

Lambert v. Blodgett, 393 F.3d 943, 949 (9th Cir. 2004). The wife ran for the phone and

the two teenagers ran outside to reload their weapons. Id. As the wife called for help,

both teenagers reentered the house and shot her multiple times. Id.

3 No. 39748-3-III Pers. Restraint of Lambert

2007 assaults: In January 2007, during a fight in the prison yard, Lambert

approached one of the combatants and began punching him.

In August 2007, Lambert attacked a fellow prisoner with a knife because he

believed the prisoner was about to violently attack him. This was the offense, noted in

the overview, for which Lambert pleaded guilty to assault in the third degree.

Soon after, Lambert dropped out of the Sureño gang. Although this was known to

prison staff, he remained housed among Sureño gang members until 2012. During that

period, prison staff knew Lambert was vulnerable to attacks from Sureño members.

2010 assault: In January 2010, Lambert was involved in a fight with three Sureño

gang members. After guards ended the fight, Lambert kicked one of the gang members

in the jaw.

Other infractions classified as “serious”:

• May 2007 possession of tattoo paraphernalia

• October 2015 possession of cell phone containing pornography

• July 2019 possession of someone else’s clothes

3. Dr. Robtoy’s psychological evaluation

The purpose of Dr. Robtoy’s evaluation was to provide a “fully-instrument

supported evaluation” of Lambert to “assist the [ISRB] in determining the potential for

re-offense, violence risk, [and Lambert’s] capacity to function in a less restrictive

4 No. 39748-3-III Pers. Restraint of Lambert

environment” so as not to pose an unacceptable risk to himself or the community.

Am. PRP, App., Psychological Evaluation (PE), at 1.

Dr. Robtoy met with Lambert for three and one-half hours. Prior to this, she

reviewed his electronic, mental health, and medical files. In her evaluation report, Dr.

Robtoy set forth a detailed history of Lambert’s childhood, education, prison

employment, prison programs completed, and prison infractions.

A close review of Dr. Robtoy’s report shows that Lambert’s life has unfolded in

three stages:

• Stage 1 (prior to Sept. 2007): Lambert belonged to a gang and engaged in

criminal behavior, including child molestation when he was 12, aggravated

first degree murder when he was 15, and numerous infractions while

incarcerated.

• Stage 2 (Sept. 2007 - 2010): Lambert dropped out of the gang, but

remained housed among gang members. During this time, Lambert

committed only one assault, perhaps attributable to prison staff’s decision

to house him among his former gang.

• Stage 3 (2011 - present): Lambert has worked consistently, enjoyed

positive work reviews, mostly stayed out of trouble, and refrained from

criminal activity. During this stage, Lambert’s “serious” infractions have

5 No. 39748-3-III Pers. Restraint of Lambert

been limited to possessing tattoo paraphernalia, possessing a cell phone

containing pornography, and possessing someone else’s clothes.

Resp. of ISRB, Ex. 1, Attach. C, at 6.

Based on the information obtained by Dr. Robtoy, including the results of seven

psychological tests she administered to Lambert, Dr. Robtoy concluded:

Mr. Lambert [is] a moderate risk in terms of general recidivism. It is important to note that Mr. Lambert earned high scores only on risk assessments designed to measure static factors that will not change over time and are largely based on historical data. While those scores are important, as they have been shown to have predictive value in terms of a person’s likelihood to recidivate, Mr. Lambert scored closer to low on risk assessments that consider dynamic factors, such as his current behavior and efforts toward change. The SAPROF[1] estimated that Mr. Lambert possesses a high degree of protective factors which will certainly support his success if/when he is released to the community and are likely strong enough to adjust his overall risk rating to low.

It is this evaluator’s clinical opinion that Mr. Lambert has addressed his criminogenic needs and he would be able to continue living a prosocial life in less restricted environments to include the community.

Am. PRP, App., PE, at 11 (emphasis added).

4. CC McMains

CC McMains told the ISRB that Lambert had completed prison programs

designed to assist him in controlling aggressive tendencies. CC McMains also testified

that Lambert had completed several vocational and educational programs. She said that

1 Structured Assessment of Protective Factors.

6 No. 39748-3-III Pers. Restraint of Lambert

Lambert was not a behavioral problem in the unit and that he has held prison jobs with

good supervisor reports. CC McMains indicated Lambert had extensive community

support, including housing and a possible employment opportunity. She added that the

Department of Corrections’ Juvenile Board did not believe Lambert needed to complete

any additional programs.

THE ISRB’S FIRST DECISION

The ISRB’s August 2022 decision highlighted crimes and offenses Lambert had

committed in his distant past, many prior to 2007. Although the decision also noted

Lambert’s two 2007 assaults and his 2010 assault, it failed to acknowledge that the 2010

assault occurred during the time when prison staff continued to house Lambert among

Sureño gang members, despite knowing Lambert had dropped out of the gang.

The ISRB’s first decision does not reflect that the Board considered Dr. Robtoy’s

psychological evaluation nor does it even discuss Dr. Robtoy’s recommendations. The

decision, however, does accurately note that Lambert’s descriptions of his 1994 and 1997

crimes do not align with corresponding police reports. The ISRB found that Lambert,

more likely than not, would commit new criminal offenses if released on conditions, and

the Board consequently added 48 months to his minimum term.

7 No. 39748-3-III Pers. Restraint of Lambert

THE ISRB’S AMENDED DECISION

In its amended decision, the ISRB explained it amended its earlier decision so as

to “incorporate a newly adopted Decision and Reason format.” Resp. of ISRB, Ex. 1,

Attach. C, at 1. The new format acknowledged, “RCW 10.95.030 . . . establishes a

presumption of release unless rebutted by a preponderance of evidence.” Resp. of

ISRB, Ex. 1, Attach. C, at 2. The amended decision contained a short and accurate

description of Lambert’s 1997 index crime. It also described Lambert’s 1994 crime

(from the perspective of the police report, rather than Lambert’s plea to molestation) and

noted that Lambert was on probation when he committed the index crime. The decision

then listed the evidence considered, including Dr. Robtoy’s psychological evaluation,

along with the tests she administered and Dr. Robtoy’s conclusions.

Toward the end of the amended decision, the ISRB provided its reasons for

denying Lambert’s request for early release.2 In conclusion, the ISRB stated, “After

weighing the evidence, including the community custody conditions and any favorable

evidence noted above, the Board finds by a preponderance of the evidence that Donald

Lambert is more likely than not to commit a new crime if released with conditions that

are designed to help better prepare him for a successful re-entry into society.” Resp. of

2 Because we find these reasons inadequate, we discuss them later, after setting forth the controlling law.

8 No. 39748-3-III Pers. Restraint of Lambert

ISRB, Ex. 1, Attach. C, at 7. As it had in its initial decision, the Board added 48 months

to Lambert’s minimum term.

Lambert sought review of the ISRB’s amended decision by way of this timely

personal restraint petition.

ANALYSIS

To succeed on a PRP challenge of an ISRB decision, a petitioner must show they

are under unlawful restraint. In re Pers. Restraint of Dyer, 164 Wn.2d 274, 285, 189

P.3d 759 (2008). Lambert argues that the ISRB abused its discretion by failing to

meaningfully apply RCW 10.95.030(2)(f)’s presumption of release. If true, this abuse of

discretion would render Lambert’s continued incarceration unlawful.

The ISRB abuses its discretion when it acts without consideration of or in

disregard of the facts. In re Pers. Restraint of Addleman, 151 Wn.2d 769, 777, 92 P.3d

221 (2004). Disregarding the evidence and supporting its decision with speculation and

conjecture also constitutes an abuse of discretion. In re Pers. Restraint of Dyer, 157

Wn.2d 358, 369, 139 P.3d 320 (2006).

Children are constitutionally different from adults for sentencing purposes.

In re Pers. Restraint of Dodge, 198 Wn.2d 826, 838, 502 P.3d 349 (2022). Sentencing

juvenile offenders to life in prison without the possibility of parole or early release

constitutes cruel and unusual punishment in violation of the Eight Amendment to the

9 No. 39748-3-III Pers. Restraint of Lambert

United States Constitution. Id. at 838-39. In recognition of this, our legislature has

provided a process of redemption for juvenile offenders sentenced to lengthy prison

terms.

One such process applies to persons convicted as a juvenile of our State’s most

heinous offense—aggravated first degree murder. RCW 10.95.030(2)(f) requires the

ISRB to evaluate such persons for release after serving at least 25 years of confinement.

Not later than 180 days prior to the expiration of the offender’s minimum sentence, the

ISRB must conduct an examination of the person to determine the person’s parolability.

RCW 10.95.030(2)(f).

“The board shall order the person released, under such affirmative and other

conditions [it] determines appropriate, unless the board determines by a preponderance of

the evidence that, despite such conditions, it is more likely than not that the person will

commit new criminal law violations if released.” RCW 10.95.030(2)(f). The board must

give public safety considerations the highest priority when determining parolability and

conditions of release. Id. “While the ISRB ‘shall give public safety considerations the

highest priority’ . . . the consideration of public safety does not override the presumption

of release . . . and is, in fact, related to it.” In re Pers. Restraint of Brooks, 197 Wn.2d 94,

102, 480 P.3d 399 (2021).

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The decision to release “turns on a ‘discretionary assessment of a multiplicity of

imponderables, entailing primarily what a man is and what he may become rather than

simply what he has done.’” Dyer, 157 Wn.2d at 363 (citation omitted) (quoting

Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 10, 99 S. Ct. 2100, 60

L. Ed. 2d 668 (1979)). The decision must be forward looking, not backward looking, and

must give dynamic factors more weight than static factors, such as crimes committed

long ago. State v. Delbosque, 195 Wn.2d 106, 122, 456 P.3d 806 (2020). We now turn

to the reasons the ISRB gave in its amended decision for rejecting Lambert’s petition for

release.

As one reason for denying release, the ISRB stated that Lambert “has a prior

failure on supervision which increases his risk for future failures and indicates

supervision conditions may not mitigate his risk for a future crime if released on

conditions.” Resp. of ISRB, Ex. 1, Attach. C, at 6. To support this assertion, the ISRB

noted that Lambert was on probation when he committed the 1997 index crime.

We find this reason deficient. Specifically, it ignores our Supreme Court’s

directive while ignoring Dr. Robtoy’s 2021 psychological evaluation. Our high court has

directed the ISRB’s inquiry to be forward looking, not backward looking, and to give

dynamic factors more weight than static ones, such as crimes committed long ago.

11 No. 39748-3-III Pers. Restraint of Lambert

Delbosque, 195 Wn.2d at 122. Dr. Robtoy’s 2021 psychological evaluation determined

that Lambert had an adjusted low risk to reoffend.

As another reason for denying release, the ISRB stated that Lambert’s infractions

since 2007 involved “either violence or weapons, a new felony conviction for assault on

another inmate, gang related elements, [a] sex related element, a general inability to

comply with the rules of the institution, or a combination of these factors.” Resp. of

ISRB, Ex. 1, Attach. C, at 6.

These second reasons also are deficient, as they reflect either embellishments or

misstatements of the true facts. First, only one assault involved a weapon. Second, after

dropping out of the Sureño gang, Lambert committed only one violent offense, the 2010

assault; and that assault could be attributed to the prison staff’s decision to house Lambert

with his former gang members. Third, the reference to “gang related elements” implies

something false. It implies that Lambert had gang ties after 2007, when the opposite is

true. Fourth, the “sex related element” comment implies that Lambert engaged in sexual

misconduct, which he did not. In truth, Lambert possessed a cell phone that contained

pornography.

These second reasons also ignored Dr. Robtoy’s psychological evaluation and her

opinion that dynamic and protective factors support adjusting Lambert’s overall risk of

12 No. 39748-3-111 Pers. Restraint ofLambert

reoffending to low. Instead, the ISRB focused on static factors: Lambert's misconduct,

almost all of which occurred more than 10 years before his early release hearing.

The presumption of early release under RCW 10.95.030(2)(f) does not require the

ISRB to agree with or adopt the recommendations of an expert evaluator regarding

appropriate conditions of release. See Dodge, 198 Wn.2d at 842-44. But neither is the

ISRB free to disregard such recommendations and rely on conclusory statements about I the offender's risk to reoffend. Instead, the ISRB must meaningfully consider the

presumption of release and whether conditions of release would sufficiently mitigate the

offender's risk level. Id. Here, the ISRB failed to do this. It disregarded Dr. Robtoy's

recommendations and made conclusory statements about Lambert's risk to reoffend,

while also erroneously focusing on static risk factors, almost all of which occurred more

than 10 years before the early release hearing.

We grant Lambert's petition, reverse the ISRB's amended decision, and direct the

ISRB to grant Lambert a new hearing and meaningfully consider Dr. Robtoy's

psychological evaluation and the statutory presumption of release.

t ...... c. ..... .. - ~,,__ \ Lawrence-Berrey, A~). f I\ . c.. :r WE CONCUR:

*' Staa , J.

13 Cooney, J.