NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint Petition of: No. 84244-7-I
DYLAN RAYMOND BECKER, DIVISION ONE
Petitioner. PUBLISHED OPINION
HAZELRIGG, J. — Dylan Raymond Becker1 seeks relief by way of a
personal restraint petition. He contends his restraint is unlawful because the
Department of Corrections is precluding him from participating in the Sex
Offender Treatment and Assessment Program based on an arbitrary and
capricious policy. He additionally argues he is being denied visitation with his
minor son in violation of his fundamental liberty interest in parenting his child.
We grant relief as to the first issue but deny it as to the second.
FACTS
On January 9, 2020, Dylan Raymond Becker was convicted of rape of a
child in the first degree and sentenced under the special sex offender sentencing
1 As the initial petition notes, Raymond Becker’s name appears in the record as Raymond-Becker and Raymond Becker. We use the latter spelling to reflect the petitioner’s brief and the manner by which it is set out in the judgment and sentence. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/2
alternative (SSOSA).2 The court imposed an exceptional sentence of 93 months
based on several aggravating factors; it ordered Raymond Becker to serve 48
months in prison with the remainder of the time suspended.3 After beginning his
prison term, Raymond Becker requested to participate in the Sex Offender
Treatment and Assessment Program (SOTAP). The “program provides risk
assessment, prison-based sexual offense treatment,” and “community-based
treatment” for “adult sex offenders.” A clinician facilitates twice weekly sessions,
where group members “reflect upon their values and how past behaviors are
incongruent with their values,” “verbalize and share feelings and thoughts related
to risk and develop and practice skills to mitigate risk.” However, the Department
of Corrections (DOC) denied his request because he is incarcerated pursuant to
a SSOSA sentence.
From the start of his time in prison until September 2021, Raymond
Becker had several in-person visits with his son O, who is a minor but not
involved in the crime of conviction. Elizabeth Hainline, the Statewide Visitation
Specialist for DOC, testified that Raymond Becker was required to have a
professional visitation supervisor for in-person visits with his son from the
2 RCW 9.94A.670. 3 Under chapter 9.94A RCW, a sentencing court may “suspend the sentence of a first-
time sexual offender if the offender is shown to be amenable to treatment and instead require that the offender be released into community custody and receive outpatient or inpatient treatment.” State v. Wheeler, 14 Wn. App. 2d 571, 575, 474 P.3d 583 (2020). The court “must impose” “[a] term of confinement of up to twelve months or the maximum term within the standard range,” unless an aggravating circumstance is found, in which case the court may impose a greater term of confinement. RCW 9.94A.670(5)(a). The court must also order treatment for up to five years as well as a variety of “prohibitions and affirmative conditions relating to the known precursor activities or behaviors.” RCW 9.94A.670(5)(c), (d). If the individual violates the conditions of their sentence or “fails to make satisfactory progress in treatment,” the SSOSA may be revoked and the original sentence of incarceration imposed. Wheeler, 14 Wn. App. 2d at 575-76.
-2- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/3
beginning of his incarceration, but “due to an internal error,” this requirement was
not communicated to Raymond Becker’s wife (O’s mother). Once the error was
discovered, Raymond Becker’s wife was notified and the requirement was
enforced.
Raymond Becker filed a personal restraint petition (PRP), seeking relief
from both the decision denying his request to participate in SOTAP and the
requirement of a professional supervisor for any in-person visitation with O.
ANALYSIS
An individual may seek relief from unlawful restraint by filing a PRP. In re
Pers. Restraint of Sandoval, 189 Wn.2d 811, 820, 408 P.3d 675 (2018). Where
the petitioner has not had a prior opportunity to raise the issues presented in their
request for relief, they “need not make any threshold showing of prejudice,” but
instead demonstrate “that [they are] under an unlawful restraint as defined by
RAP 16.4.” In re Pers. Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031
(2016). A restraint is unlawful if “[t]he conditions or manner of the restraint of
petitioner are in violation of the Constitution of the United States or the
Constitution or laws of the State of Washington.” RAP 16.4(c)(6); see also In re
Pers. Restraint of McMurtry, 20 Wn. App. 2d 811, 814, 502 P.3d 906 (2022).
I. DOC Policy 570.000(I)(B)(1)
Raymond Becker first alleges his restraint is contrary to Washington law
because DOC Policy 570.000(I)(B)(1) is arbitrary and capricious and, therefore,
unenforceable. “A decision made by an agency is ‘arbitrary and capricious’ only
-3- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/4
if it is ‘willful and unreasoning action in disregard of facts or circumstances.’” In
re Pers. Restraint of Dyer, 143 Wn.2d 384, 395, 20 P.3d 907 (2001) (internal
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NOTICE: SLIP OPINION (not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint Petition of: No. 84244-7-I
DYLAN RAYMOND BECKER, DIVISION ONE
Petitioner. PUBLISHED OPINION
HAZELRIGG, J. — Dylan Raymond Becker1 seeks relief by way of a
personal restraint petition. He contends his restraint is unlawful because the
Department of Corrections is precluding him from participating in the Sex
Offender Treatment and Assessment Program based on an arbitrary and
capricious policy. He additionally argues he is being denied visitation with his
minor son in violation of his fundamental liberty interest in parenting his child.
We grant relief as to the first issue but deny it as to the second.
FACTS
On January 9, 2020, Dylan Raymond Becker was convicted of rape of a
child in the first degree and sentenced under the special sex offender sentencing
1 As the initial petition notes, Raymond Becker’s name appears in the record as Raymond-Becker and Raymond Becker. We use the latter spelling to reflect the petitioner’s brief and the manner by which it is set out in the judgment and sentence. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/2
alternative (SSOSA).2 The court imposed an exceptional sentence of 93 months
based on several aggravating factors; it ordered Raymond Becker to serve 48
months in prison with the remainder of the time suspended.3 After beginning his
prison term, Raymond Becker requested to participate in the Sex Offender
Treatment and Assessment Program (SOTAP). The “program provides risk
assessment, prison-based sexual offense treatment,” and “community-based
treatment” for “adult sex offenders.” A clinician facilitates twice weekly sessions,
where group members “reflect upon their values and how past behaviors are
incongruent with their values,” “verbalize and share feelings and thoughts related
to risk and develop and practice skills to mitigate risk.” However, the Department
of Corrections (DOC) denied his request because he is incarcerated pursuant to
a SSOSA sentence.
From the start of his time in prison until September 2021, Raymond
Becker had several in-person visits with his son O, who is a minor but not
involved in the crime of conviction. Elizabeth Hainline, the Statewide Visitation
Specialist for DOC, testified that Raymond Becker was required to have a
professional visitation supervisor for in-person visits with his son from the
2 RCW 9.94A.670. 3 Under chapter 9.94A RCW, a sentencing court may “suspend the sentence of a first-
time sexual offender if the offender is shown to be amenable to treatment and instead require that the offender be released into community custody and receive outpatient or inpatient treatment.” State v. Wheeler, 14 Wn. App. 2d 571, 575, 474 P.3d 583 (2020). The court “must impose” “[a] term of confinement of up to twelve months or the maximum term within the standard range,” unless an aggravating circumstance is found, in which case the court may impose a greater term of confinement. RCW 9.94A.670(5)(a). The court must also order treatment for up to five years as well as a variety of “prohibitions and affirmative conditions relating to the known precursor activities or behaviors.” RCW 9.94A.670(5)(c), (d). If the individual violates the conditions of their sentence or “fails to make satisfactory progress in treatment,” the SSOSA may be revoked and the original sentence of incarceration imposed. Wheeler, 14 Wn. App. 2d at 575-76.
-2- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/3
beginning of his incarceration, but “due to an internal error,” this requirement was
not communicated to Raymond Becker’s wife (O’s mother). Once the error was
discovered, Raymond Becker’s wife was notified and the requirement was
enforced.
Raymond Becker filed a personal restraint petition (PRP), seeking relief
from both the decision denying his request to participate in SOTAP and the
requirement of a professional supervisor for any in-person visitation with O.
ANALYSIS
An individual may seek relief from unlawful restraint by filing a PRP. In re
Pers. Restraint of Sandoval, 189 Wn.2d 811, 820, 408 P.3d 675 (2018). Where
the petitioner has not had a prior opportunity to raise the issues presented in their
request for relief, they “need not make any threshold showing of prejudice,” but
instead demonstrate “that [they are] under an unlawful restraint as defined by
RAP 16.4.” In re Pers. Restraint of Stuhr, 186 Wn.2d 49, 52, 375 P.3d 1031
(2016). A restraint is unlawful if “[t]he conditions or manner of the restraint of
petitioner are in violation of the Constitution of the United States or the
Constitution or laws of the State of Washington.” RAP 16.4(c)(6); see also In re
Pers. Restraint of McMurtry, 20 Wn. App. 2d 811, 814, 502 P.3d 906 (2022).
I. DOC Policy 570.000(I)(B)(1)
Raymond Becker first alleges his restraint is contrary to Washington law
because DOC Policy 570.000(I)(B)(1) is arbitrary and capricious and, therefore,
unenforceable. “A decision made by an agency is ‘arbitrary and capricious’ only
-3- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/4
if it is ‘willful and unreasoning action in disregard of facts or circumstances.’” In
re Pers. Restraint of Dyer, 143 Wn.2d 384, 395, 20 P.3d 907 (2001) (internal
quotation marks omitted) (quoting United Parcel Serv., Inc. v. Dep’t of Revenue,
102 Wn.2d 355, 365, 687 P.2d 186 (1984)).
DOC Policy 570.000(I)(B)(1) categorically precludes SSOSA offenders
from participating in SOTAP, definitively stating, “Individuals sentenced to the
Special Sex Offender Sentencing Alternative per RCW 9.94A.670 are not eligible
to participate.” Raymond Becker argues it is illogical to prohibit offenders who
have committed sex offenses which render them eligible for a SSOSA and been
found to be amenable to treatment from engaging in sex offender treatment while
incarcerated. DOC responds that the policy is supported because SOTAP does
not meet the statutory requirements for sex offender treatment for SSOSA
offenders.
RCW 9.94A.670(13) requires that “[e]xaminations and treatment ordered
pursuant to this subsection shall only be conducted by certified sex offender
treatment providers or certified affiliate sex offender treatment providers under
chapter 18.155 RCW.”4 SOTAP providers do not meet this definition because
not all SOTAP providers have the requisite certifications. Cathi Harris, DOC
Director of Sex Offender Treatment and Assessment Programs, testified that this
“precludes the Department from providing such treatment to individuals on
SSOSA sentences.”5 In reply, Raymond Becker argues that he is not attempting
4 Several exceptions are listed, none of which are pertinent to our analysis in this case. 5 While Raymond Becker does not challenge this statement, it does appear to be a legal
conclusion provided by a non-attorney witness.
-4- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/5
to receive treatment in order to satisfy any of the treatment requirements of his
SSOSA sentence, but simply to engage in additional treatment while
incarcerated. As Raymond Becker correctly notes, under DOC policy, an
individual need not be currently serving a sentence pursuant to a sex offense
conviction to partake in SOTAP: an individual who previously served a sentence
for a sex offense may participate, and individuals who self-report “having
committed a sex offense(s) that has not led to a charge/conviction, or who
believe they may commit a sex offense(s) upon release” may request to join the
program. Under the plain language of the policy, an individual who has never
committed a sex offense but simply believes they might commit one upon release
is not precluded from participating, but any individual who is serving a sentence
pursuant to a SSOSA may never enroll. In short, DOC at least theoretically
welcomes those who have never been convicted of, or perhaps never committed,
sex offenses into its treatment program aimed at providing treatment
opportunities for adults convicted of sex offenses, but prohibits certain convicted
sex offenders from participation because they are serving a prison term pursuant
to a statutory sentencing alternative that expressly emphasizes treatment as a
means of preventing recidivism. This is willful and unreasoning action
disregarding the relevant facts and circumstances.
Raymond Becker additionally contends the policy has failed to adapt to
amendments to SSOSA statutes. DOC Policy 570.000 first became effective in
1991. When the DOC policy was enacted, a judge could only sentence an
-5- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/6
individual to “up to six months of confinement” under the SSOSA statute.6 In
2004, the statute was amended to permit judges to “order the offender to serve a
term of confinement greater than twelve months or the maximum term within the
standard range based on the presence of an aggravating circumstance.”7
Because a sentence of one year or less is served in a county jail and a sentence
of more than one year is served in a state prison,8 an individual serving an initial
SSOSA sentence in 1991 would not have been confined in a DOC prison facility.
Rather, any individual in a DOC facility pursuant to a SSOSA sentence during
that time would only be those serving the remainder of their suspended sentence
after revocation. Raymond Becker argues that DOC has incidentally combined
individuals serving the initial term of a SSOSA sentence and those on revocation
time into the same category and precluded both from participating in SOTAP,
rather than updating the policy to reflect the ability of judges to sentence
individuals to serve the first part of their SSOSA sentence in a DOC facility.
The policy is also contrary to the intent of our legislature in establishing a
correctional system. RCW 72.09.010 provides a statement of legislative intent,
stating the comprehensive “system should be designed and managed to provide
the maximum feasible safety for the persons and property of the general public,
the staff, and the inmates.” RCW 72.09.010(1). The system should also
“positively impact offenders by stressing personal responsibility and
6 LAWS OF 1990, ch. 3, § 705(7)(a)(ii)(B).
https://leg.wa.gov/codereviser/documents/sessionlaw/1990pam1.pdf. 7 LAWS OF 2004, ch. 176, §4(4)(a). https://apps.leg.wa.gov/documents/billdocs/2003- 04/Pdf/Bills/Session%20Laws/House/2400-S.SL.pdf. 8 RCW 9.94A.190(1).
-6- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/7
accountability and by discouraging recidivism.” RCW 72.09.010(3). The
legislature additionally intends for the system to “reflect the values of the
community,” which includes “[p]roviding opportunities for self improvement. All
individuals should have opportunities to grow and expand their skills and abilities
as to fulfill their role in the community.” RCW 72.09.010(5)(c). Finally, the
statute provides that “[s]ince most offenders return to the community, it is wise for
the state and the communities to make an investment in effective rehabilitation
programs for offenders and the wise use of resources.” RCW 72.09.010(6).
DOC Policy 570.000(I)(B)(1) contradicts these statements of legislative intent by
precluding all individuals serving an initial SSOSA sentence, who have
necessarily been found to be amenable to treatment9 and who will return to the
community,10 from participating in treatment designed to “provide opportunities
for offenders to learn the attitudes, thinking skills, and behaviors necessary to
manage their risk of future sexual offenses.”
At oral argument before this court, DOC argued Policy 570.000(I)(B)(1)
should be upheld as a discretionary decision by DOC about how to best utilize its
resources.11 It also argued striking the provision would create an unnecessary
administrative burden. However, removing a categorical barrier to participation
does not remove DOC’s discretion as to which individual inmates may participate
in the program based on resources available at the time of each request.
9 RCW 9.94A.670(4). 10 RCW 9.94A.670(5)(a) (“In no case shall the term of confinement exceed the statutory
maximum sentence for the offense”). 11 In re Pers. Restraint Petition of Raymond Becker, No. 84244-7-I (Jan. 26, 2023), at 17
min., 7 sec., video recording by TVW, Washington State's Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2023011361/?eventID=2023011361.
-7- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/8
Further, both parties agree that Raymond Becker seems to be the only inmate
impacted by this categorical bar currently, and in the nearly two decades since
the SSOSA statute was amended.12 DOC failed to articulate what additional
burden it would have in investigating whether an inmate is serving more than 12
months in prison pursuant to a SSOSA compared to the current burden of
determining whether an interested applicant qualifies for the program, particularly
in light of the apparently agreed upon fact that this administrative hardship would
be the result of applications from a highly unique sentencing exception.13 This
fatally undercuts DOC’s contention that striking the provision would be unduly
burdensome in terms of its program resources.
DOC provides no logical reasoning for the unqualified exclusion of those
serving SSOSA sentences. Without any consideration of the facts and
circumstances of each inmate seeking to participate in SOTAP, DOC Policy
570.000(I)(B)(1) is arbitrary and capricious to the extent it categorically bars any
individual serving a SSOSA sentence from admission. We reiterate that
invalidating this portion of the policy as arbitrary and capricious has no impact on
DOC’s discretion to admit an individual offender into the program.
We grant Raymond Becker’s petition as to this issue and strike the
relevant language of the policy.
12 In re Pers. Restraint Petition of Raymond Becker, No. 84244-7-I (Jan. 26, 2023), at 6
min., 37 sec., video recording by TVW, Washington State's Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2023011361/?eventID=2023011361. 13 Logic dictates that individuals serving a sentence pursuant to a SSOSA are not the
only inmates who might have less than 12 months of their period of incarceration remaining at the time they request to join SOTAP.
-8- For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 84244-7-I/9
II. DOC Conditions on In-Person Visits
Raymond Becker next contends his restraint is contrary to Washington law
and to the United States Constitution because DOC has disallowed visitation with
his son, O. His claim fails on both bases because DOC has not precluded
visitation; rather, DOC has allowed in-person visits with O, so long as a
professional supervisor is present, or visitation through a video call with any
approved visitor supervising (including Raymond Becker’s wife).14 Raymond
Becker has two avenues for visitation with O, subject to conditions by DOC which
are reasonably related to penological interests. His claim fails on this basis.
Granted in part and denied in part.
WE CONCUR:
14 Raymond Becker also argues that language in the judgment and sentence expressly
permits visits with O. He is correct that the language is permissive; it does not order DOC to do anything other than to give “special consideration” to “permit contact” between Raymond Becker and his son. Again, DOC does permit contact, albeit with restrictions relating to the unique safety concerns of a child’s interaction with a carceral setting.
-9-