Filed Washington State Court of Appeals Division Two
March 15, 2016 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In re the Personal Restraint Petition of: No. 46370-9-II
JAMES LEE WALTERS,
Petitioner.
UNPUBLISHED OPINION
MELNICK, J. — A jury convicted James Lee Walters of kidnapping and sex offenses. The
trial court sentenced him to a minimum term of 68 months of confinement with a maximum term
of life. In his personal restraint petition (PRP), Walters argues the Indeterminate Sentencing
Review Board (ISRB) abused its discretion when it denied his release because he had not
completed sex offender treatment in prison and when it considered the facts of a prior sex offense
for which he had been acquitted. He also argues his due process rights were violated because the
ISRB was not a neutral and detached hearing body. Finding no error, we deny Walters’s PRP.
FACTS
On May 22, 2007, the State charged Walters with kidnapping in the first degree with sexual
motivation and indecent liberties by forcible compulsion. On September 26, 2008, on retrial, a
jury convicted Walters on both counts. The trial court sentenced Walters to a minimum term of
68 months of confinement with a maximum term of life and to community custody for the
remainder of his life. 46370-9-II
I. SUMMARY OF FACTS FROM TRIAL AND DIRECT APPEAL
On March 8, 2006, Walters abducted 13-year-old S.L. on her way home from school. She
lived approximately a mile and a half from a gated entrance on the main road. As S.L. approached
her home, she heard a branch snap and saw her neighbor, Walters, in a camouflage mask. She
asked, “‘Is that you Jimmy?’” but received no response. Clerk’s Papers (CP) at 124. She turned
to walk away when Walters grabbed her from behind, threw a towel over her head, and secured it
with duct tape. He also duct taped her hands in front of her. Walters rubbed her buttocks, lifted
her, and carried her over his shoulder for a few minutes.
S.L. said that Walters took her through the horse fence that surrounded his property. He
then took her into the woods and they ended up in a hole. Walters made her sit down. He removed
the duct tape from her hands, but when S.L. tried to take the towel off her head, Walters taped her
hands behind her back. He placed duct tape in her mouth and taped over it. Walters then licked a
tear off her face. Shortly thereafter, S.L. heard the distinctive ring of Walters’s cell phone. She
heard him flip the phone open and then close it. Walters left her there. S.L. struggled to get out
of the duct tape, succeeded, and went home.
S.L., Walters’s daughter’s best friend, believed Walters was the person who abducted her.
She deduced this fact because the man wore clothes she had seen Walters wear before and he stood
on Walters’s property. The police found similarly described clothing as well as duct tape in
Walters’s home. At the time of the abduction, Walters was supposed to pick up his son and S.L.’s
brother, but he did not. At trial, the State presented evidence that Walters’s cell phone received a
call at the time S.L. indicated she heard his cell phone ring. Additional witness testimony at trial
indicated that Walters knew details about the abduction before they were told to him.
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Walters filed a direct appeal in 2008. See State v. Walters, noted at 156 Wn. App. 1026,
2010 WL 2283570. We affirmed Walters’s conviction, Walters, 2010 WL 2283570, at *5, and the
Supreme Court denied his petition for review, State v. Walters, 171 Wn.2d 1016 (2011).
II. RCW 9.95.420 HEARING (.420 HEARING)
On July 10, 2013, the ISRB held a .420 hearing pursuant to RCW 9.95.420 to determine
whether Walters was more likely than not to commit another sex offense if released on conditions.
Walters’s counselor, Susan Smith, provided testimony to the ISRB about Walters’s behavior while
incarcerated and visits he received from his family and friends. The ISRB considered information
from the End of Sentence Review Committee (ESRC), which classified Walters as a level III sex
offender.
The ISRB also sought information from Walters. Walters testified “I’m here ‘cause I’m
accused of kidnapping a neighbor girl but I really can’t go into much ‘cause I’m fightin’ my case.
. . . I want to do this treatment and everything but I can’t because they won’t let me without sayin’
things to go against my rights on fightin’ my case.” ISRB Hearing Transcript (Hr’g Transcript) at
4. He further stated that he attempted to enroll in the Sex Offender Treatment Program (SOTP),
but the program rejected his application because he was still appealing his case. The ISRB
questioned Walters about his appeal, and indicated the “appellate court upheld the sentence in
2010 and that the Supreme Court denied a hearing and the case was returned to the sentencing
court for a mandate on May 18th, 2011.” Hr’g Transcript at 5. The ISRB stated “there’s no way
that this one member would even think about letting you out without having gone through
treatment.” Hr’g Transcript at 7. Walters testified that he was willing to do sex offender treatment
in the community if released. The ISRB told Walters that it could recommend he be admitted for
SOTP, but the program would not take him “unless you say ‘this is what I did.’” Hr’g Transcript
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at 8. The ISRB also noted that “I don’t think we’ve ever released anybody with . . . a crime this
serious to do treatment in the community. . . . [I]t puts the public at too great a risk.” Hr’g
Transcript at 12. The ISRB stated that it wanted the treatment to be completed before it authorized
Walters’s release.
The ISRB discussed with Walters the seriousness of his offense and the frequency of his
sex offenses. The ISRB referred to a 1983 incident for which Walters was acquitted. The ISRB
considered the 1983 incident because the ESRC had utilized it in classifying Walters as a level III
sex offender and it was part of the file before the ISRB. Walters said that he would answer any
questions about the 1983 case because when compared to his current case, it was dissimilar.
Walters acknowledged that he knew the victims in both the 1983 case and the current case.
However, in the 1983 case, he stated the victim did not accuse him of rape. He also said that in
1983, he was nowhere near the house where the rape occurred. Walters testified that he did not
recall taking a polygraph test for the 1983 incident that indicated he was deceptive even though
the record contained such a notation.
In its decision following the .420 hearing, the ISRB concluded that Walters was more likely
than not to commit a sex offense if released into the community on conditions. Consequently, it
did not release Walters and added 36 months’ incarceration to his minimum term. The IRSB based
its decision on information included in the ESRC report, the ESRC’s classification of Walters as
a level III sex offender, information on Walters’s behavior in prison, letters of support, and
concerns sent to the ISRB. It also considered information regarding his pending appeal at the time.
The ISRB reasoned that although Walters indicated he could not speak about his case while it was
on appeal, Walters still had not taken any steps to mitigate his risk to the community, such as
treatment.
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Walters has since enrolled in SOTP. In his application to the program, Walters described
his crime of conviction: “I don’t remember the details, I was up for 3 days [and] her dad would
not sell me anymore meth, I was waiting for Scott (her dad) when she came walking by so I
grab[bed] her to get to her dad.” Suppl. Br. of ISRB at Ex. 12.
Walters filed a PRP seeking relief.
ANALYSIS
Walters argues that because of the ISRB’s abuse of discretion and constitutional violations
at the .420 hearing, he is unlawfully restrained. We disagree.
“A petitioner must show he is under unlawful restraint to succeed on a PRP challenge of
an ISRB decision.” In re Pers. Restraint of Dyer, 164 Wn.2d 274, 285, 189 P.3d 759 (2008) (Dyer
II) (citing RAP 16.4(b), (c)); see also In re Pers. Restraint of Addleman, 151 Wn.2d 769, 774, 92
P.3d 221 (2004).
I. THE ISRB DID NOT ABUSE ITS DISCRETION
Walters argues that the ISRB abused its discretion when it denied his release at the .420
hearing based on his nonparticipation in sex offender treatment. Walters also argues that the ISRB
abused its discretion when it considered facts of an acquitted prior charge of rape in 1983 at the
.420 hearing. We disagree. At the hearing, the ISRB properly considered both the lack of
treatment and the prior 1983 charge in determining whether it was more likely than not that Walters
would reoffend if released.
A. Standard of Review
The burden rests with the petitioner to prove the ISRB abused its discretion. Addleman,
151 Wn.2d 776. “The ISRB abuses its discretion when it fails to follow its own procedural rules
for parolability hearings or acts without consideration of and in disregard of the facts.” In re Pers.
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Restraint of Dyer, 157 Wn.2d 358, 363, 139 P.3d 320 (2006) (Dyer I). “Reliance upon ‘speculation
and conjecture’ with disregard of the evidence also constitutes an abuse of discretion.” Dyer II,
164 Wn.2d at 286. To support a determination of the decision being arbitrary and capricious, we
must find that the ISRB acted willfully and unreasonably. Dyer II, 164 Wn.2d at 286.
At a .420 hearing, the ISRB shall
determine whether it is more likely than not that the offender will engage in sex offenses if released on conditions to be set by the board. . . . The board shall order the offender released, under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the offender will commit sex offenses if released.
RCW 9.95.420(3)(a).
B. Lack of Participation in Sex Offender Treatment
Walters argues that the ISRB abused its discretion when it denied his release because his
non-amenability to treatment, by itself, was insufficient to satisfy the standard by a preponderance
of the evidence that he is more likely than not to commit sex offenses if released.
Participation in SOTP requires that the offender “must acknowledge/recall having
committed a sex offense” and believe “that treatment will reduce his . . . risk to re-offend.” Br. of
ISRB at Ex. 5. There is an implication in the application to the SOTP that an offender may not
participate in the program if he is in the process of an appeal; however, the application does not
specifically limit participation if the offender is in the process of an appeal. As the ISRB noted,
the program does not require that the offender admit to the specific offense for which he is
currently serving time.
Our Supreme Court has held that the ISRB may decide to not release an untreated sex
offender because, due to the lack of treatment, he would be more likely than not to commit new
sex offenses. Dyer II, 164 Wn.2d at 280. In Dyer II, the ISRB denied Dyer parole because he had
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not participated in treatment. 164 Wn.2d at 283. The ISRB noted that SOTP “requires ‘full
candor’ and Dyer was not eligible for SOTP because he continued to maintain his innocence.”
Dyer II, 164 Wn.2d at 283. Accordingly, the ISRB denied Dyer parole because “‘[W]ithout an
exploration and understanding of the behaviors that directly resulted in his incarceration, he
remains at risk to repeat those behaviors in the community.’” Dyer II, 164 Wn.2d at 285.
“[S]ettled law establishes that the ISRB may consider the offender’s failure to obtain
treatment” in its decision. Dyer II, 164 Wn.2d at 288; see also In re Pers. Restraint of Dyer, 175
Wn.2d 186, 199, 283 P.3d 1103 (2012) (Dyer III). “This [consideration] is appropriate even where
the necessary treatment program requires the offender to first take responsibility for criminal
behavior.” Dyer III, 175 Wn.2d at 199. Although the Washington Supreme Court stated that
“[s]ex offender treatment is not a cure for sex offenders,” Dyer III, 175 Wn.2d at 199, it adopted
the position that “‘the first step toward rehabilitation of an offender is the offender’s recognition
that he was at fault.’” In re Pers. Restraint of Ecklund, 139 Wn.2d 139 Wn.2d 166, 176, 985 P.2d
342 (1999) (quoting Gollaher v. United States, 419 F.2d 520, 530 (9th Cir. 1969)). In denying
parole or release, the ISRB may rely on the fact that the offender is not engaged in treatment and
that the offender has not taken responsibility for criminal behavior. By statute, the ISRB must
deny parole if the inmate is not rehabilitated or is otherwise unfit for release. RCW 9.95.100;
Ecklund, 139 Wn.2d at 176. Although parole hearings are not identical to .420 hearings and have
different standards for an offender’s release, both panels adjudicating the hearings have the
public’s safety in mind when considering the release of an offender. See RCW 9.95.100.
Therefore, the reasoning is equally applicable and does not affect our analysis.
At the time of the .420 hearing, Walters had not taken responsibility for his sex offenses.
This failure prevented him from obtaining the treatment that the ISRB deemed necessary for his
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release. Walters testified he was in the midst of appealing his conviction and did not admit to the
1983 charge or any other sex offense. Walters expressed his interest in completing sex offender
treatment in the community, but the ISRB did not find that option acceptable. The ISRB
considered Walters’s risk level as determined by the ESRC, the seriousness of the offense, and the
lack of treatment. Walters was not in treatment and the ISRB determined the public would be at
risk because it was more likely than not Walters would commit more sex offenses. Because of the
risk to the public, the ISRB did not want Walters’s treatment to be in the community. It considered
many factors, including the fact the ESRC classified Walters as a level III sex offender, the highest
level and those most likely at risk to reoffend. Former RCW 72.09.345(6) (2011). The ISRB
stated:
I don’t think we’ve ever released anybody with a . . . crime this serious to do treatment in the community. Um, it puts the public at too great a risk. We want the treatment done before. . . . We’ve released level three offenders, but not with this serious offense with no treatment.
Hr’g Transcript at 12.
The ISRB acted within its discretion when it denied Walters’s release and found that it was
more likely than not that if released, Walters would commit new sex offenses because he was an
untreated sex offender. See Dyer II, 164 Wn.2d at 288. Walters failed to demonstrate that the
ISRB abused its discretion. The ISRB did not act willfully or unreasonably and it did not rely on
speculation or conjecture in making its decision.
C. ISRB’s Consideration of 1983 Rape Charge in Its Decision
Walters argues that the ISRB abused its discretion because it should not have considered
information regarding a prior sex offense for which he was acquitted. Walters argues that the
ISRB did not have sufficient information regarding the 1983 incident to conclude he was guilty,
and therefore, “the decision was speculative at best.” Br. of Petitioner at 11. We disagree.
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In preparation for a .420 hearing, the ESRC assesses the public risk of an offender who
may be released into the community. It classifies the offender into a risk level for public
notification, reviews the offender’s release plan if one is available, and makes appropriate referrals.
Former RCW 72.09.345(5). The ESRC then provides its file and determination to the ISRB. See
former RCW 72.09.345(5). The statute limits the information that may be considered by the ESRC
to relevant records and information held by public agencies. Former RCW 72.09.345(4). When
the ESRC classifies offenders into the appropriate risk level, the statute instructs that, “[t]he
committee shall classify as risk level III those offenders whose risk assessments indicate a high
risk of reoffense within the community at large.” Former RCW 72.09.345(6).
In assessing Walters, the ESRC referred to information on his 1983 charge of burglary in
the first degree and rape in the first degree.1 The ESRC report stated that its sources of information
were “Prosecutor’s Information and Determination of Probable Cause, Motion to Introduce
Evidence, Judgment and Sentence, Pre-Sentence Investigation report, Police report(s), and Official
File records.” Br. of ISRB at Ex. 4. The ESRC did note in its report that “Court documents for
this offense could not be obtained.” Br. of ISRB at Ex. 4 (emphasis omitted).
The ISRB did not abuse its discretion in considering Walters classification by the ESRC.
Nor did the ISRB abuse its discretion in considering the evidence the ESRC relied on when making
1 Without objection, the ISRB heard information on the 1983 case at the .420 hearing. Walters was charged with raping his friend’s 15-year-old sister after he entered their house through the garage. Walters knew the victim was home. The victim told police that the assailant never said a word and wore a white cloth tied around his head. She said he sexually assaulted her and tried to choke her with a piece of broken ax handle. Walters voluntarily participated in a polygraph examination that determined Walters was deceptive. Additionally, the crime lab did a blood sample comparison with semen recovered from the victim; Walters’s blood type was the same as the contributor of the semen.
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its classification. This information was relevant to the ISRB’s ultimate decision, i.e. whether
Walters should be released into the community.
II. DUE PROCESS AT .420 HEARING
Walters argues that the ISRB violated his constitutional right to due process by failing to
review and decide his case in a neutral and detached manner because, he alleges, the ISRB said it
would not release any sex offender who had not yet participated in treatment. We disagree.
We review constitutional questions de novo. Amunrud v. Bd. of Appeals, 158 Wn.2d 208,
215, 143 P.3d 571 (2006).
An individual seeking the procedural protection of the Fourteenth Amendment’s due
process clause must establish that his or her interest in life, liberty, or property is at stake.
Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005). “A liberty
interest may arise from the Constitution,” from “guarantees implicit in the word ‘liberty,’” or
“from an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221.
Where an individual establishes a liberty interest, due process protections apply. See Morrissey v.
Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). If protected interests are
implicated, we then must decide if the procedures employed constituted due process of law.
Morrissey, 408 U.S. at 481.
B. Neutral and Detached Hearing Body
Offenders are entitled to some procedural protections at a .420 hearing, including that of a
neutral and detached hearing body. In re Pers. Restraint of McCarthy, 161 Wn.2d 234, 240-41,
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164 P.3d 1283 (2007). Walters implies that the ISRB was biased against his release because it
was not a neutral and detached decision maker.2
As a threshold matter, we determine that Walters had a liberty interest at stake in his .420
hearing. The Washington Supreme Court determined that RCW 9.95.420(3) creates a presumption
in favor of release, and therefore a “limited liberty interest by restricting the [ISRB’s] discretion
and establishing a presumption that offenders will be released to community custody upon the
expiration of their minimum sentence.” McCarthy, 161 Wn.2d at 241.
We next determine what process is due. “When a statute creates an expectancy of release,
offenders are entitled to some measure of constitutional protection.” McCarthy, 161 Wn.2d at
241.
To establish a due process violation there must also be an affirmative showing that the
decision maker was biased during the hearing. See Ritter v. Bd. of Comm’rs of Adams County
Pub. Hosp. Dist. 1, 96 Wn.2d 503, 513, 637 P.2d 940 (1981). Walters fails to make this showing.
The ISRB received evidence, asked Walter’s questions, and discussed the seriousness of his crime
with him before making a determination.
The “appearance of fairness doctrine extends the due process requirement that judicial
officers be free of any taint of bias to administrators acting in quasi-judicial capacity. It provides
protection against decision makers who are actually biased or have a pecuniary interest in the
proceedings.” City of Lake Forest Park v. Shorelines Hr’gs Bd., 76 Wn. App. 212, 217, 884 P.2d
614 (1994) (internal citation omitted). “Not only is a biased decision maker constitutionally
unacceptable, but ‘our system of law has always endeavored to prevent even the probability of
2 Although Walters does not discuss bias specifically, he seems to argue that the ISRB was biased and not neutral and detached.
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unfairness.’” Med. Disciplinary Bd. Johnston, 99 Wn.2d 466, 475, 663 P.2d 457 (1983) (quoting
In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955)). “Under the appearance
of fairness doctrine, proceedings before a quasi-judicial tribunal are valid only if a reasonably
prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and
neutral hearing.” Johnston, 99 Wn.2d at 478. “Where there is merely a general predilection toward
a given result which does not prevent the agency members from deciding the particular case fairly,
however, there is no deprivation of due process.” Johnston, 99 Wn.2d at 475.
Walters cites to specific statements by ISRB members that he argues shows a bias. For
instance, he cites to the statement: “‘[T]here’s no way that this one member would even think
about letting you out without having gone through treatment.’” Br. of Petitioner at 19 (quoting
Hr’g Transcript at 7)) (emphasis omitted). However, prior to making this statement, the ISRB
considered information about Walters’s sex offender classification level, heard from Walters’s
counselor about his behavior as an inmate, and heard from Walters. In addition, the ISRB
explained that Walters was in prison for a very serious sex offense and kidnapping charge. The
ISRB considered the information before it in a neutral manner and concluded Walters was more
likely than not to commit another sex offense if released. The ISRB attempted to explain its
reasoning to Walters: “this is what we have in front of us and unless there’s some way for you to
mitigate your risk and so we look at what sort of programs you’ve taken . . . sexual deviancy
treatment will be at the top of the list . . . to help mitigate your risk.” Hr’g Transcript at 10-11.
The ISRB also explained that the release of someone with such a serious crime without treatment,
or rehabilitation, would put “the public at too great a risk,” and that “the Board has to take into
consideration all this information that . . . is in our files.” Hr’g Transcript at 12, 14.
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The ISRB did not violate due process rights because it was not biased against Walters. A
disinterested observer would conclude that Walters received a fair, impartial, and neutral hearing.
We deny Walters’s petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Melnick, J.
We concur:
Bjorgen, A.C.J.
Sutton, J.