Filed Washington State Court of Appeals Division Two
December 8, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint No. 54062-2-II Petition of
JAMES LEE WALTERS, UNPUBLISHED OPINION Petitioner.
WORSWICK, J. — James L. Walters, an inmate serving an indeterminate sentence,
petitions for release from restraint arguing that the Indeterminate Sentence Review Board (ISRB)
erroneously denied his release. Walters was convicted in 2008 of kidnapping in the first degree
with sexual motivation and indecent liberties with forcible compulsion.
Walters filed this personal restraint petition (PRP) after the third ISRB decision.1 He
argues that the ISRB violated his procedural due process rights by relying on acquitted conduct,
namely conduct constituting a crime for which he was acquitted in 1983, in its decision to deny
release. Walters also argues that the ISRB violated his due process rights by treating the
acquitted conduct as conclusively proven, that ISRB’s determination was not supported by
sufficient evidence, and that considering the acquitted conduct was an abuse of discretion.
We hold that the ISRB did not violate Walters’s due process rights by relying on the
acquitted conduct at issue here, sufficient evidence supports the ISRB determination, and the
1 At oral argument, Walters explained that the ISRB had again denied Walters release at a hearing that occurred while this appeal was pending. Walters questioned whether this case was moot, but expressed a desire to present arguments on the merits. Counsel for the ISRB agreed to proceed with arguments on the merits, regardless of the most recent denial. No. 54062-2-II
ISRB did not abuse its discretion by considering the acquitted conduct. Accordingly, we deny
Walters’s petition.
FACTS
James L. Walters was convicted in 2008 of kidnapping in the first degree with sexual
motivation and indecent liberties with forcible compulsion. Walters was 40 years old at the time
of the crime. The victim, a 12-year-old girl, was a person Walters knew. The judge sentenced
Walters to an indeterminate sentence with a minimum term of 68 months and a maximum of life.
Walters filed a direct appeal to this court in 2008. State v. Walters, No. 64967-1-I,
(Wash. Ct. App. November 11, 2008). We affirmed Walters’s conviction. See State v. Walters,
noted at 156 Wn. App. 1026, 2010 WL 2283570, at *5 (unpublished) (Walters I). Our Supreme
Court denied his petition for review. State v. Walters, 171 Wn.2d 1016, 253 P.3d 392 (Table)
(2011).
Since then, the ISRB has held hearings under RCW 9.95.420 (.420 hearing) regarding
Walters’s release. Each time, the ISRB denied release. The history of these proceedings is
helpful in understanding both the ISRB decision at issue here and Walters’s petition.
Walters’s first .420 hearing was in 2013. At that hearing, Walters denied that he had
committed a sex offense and at the time had not undergone any sex offender treatment. Because
Walters had an earlier PRP pending at the time of this first .420 hearing, he chose not to fully
participate in the .420 hearing or in the sex offender treatment and assessment program
(SOTAP).2 In its decision and reasons for denying Walters’s release in the 2013 .420 hearing,
2 In March 2012, Walters filed a PRP in Division One of this court. The PRP was transferred to this court and final disposition of that PRP was pending at the time of the 2013 .420 hearing.
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the ISRB stated that it relied in part on a 2013 report from the End of Sentence Review
Committee (ESRC).3
In its 2013 report, the ESRC determined that Walters was a “moderate/low” and “low”
risk, respectively, in two actuarial assessments of risk to reoffend. However, the ESRC
determined Walters was a Level III sex offender risk for community notification, based on
aggravating factors of past interventions not deterring sexually deviant behavior, and
“[d]ocumented information that increases risk for sexual re-offense,” that included a description
of the 1983 charges, as well as his psychological history and treatment. Level III is the highest
risk level.
The ESRC based this risk level, in part, on 1983 charges for which Walters was
acquitted, plus a recommendation from the sexually violent predator (SVP) subcommittee that
Walters be psychologically evaluated for post-confinement civil commitment as a sexually
violent predator under RCW 71.09.020.4 In 1983, Walters was charged with first degree rape
and first degree burglary. He was 17 years old at the time. The victim in that case was the 15-
year-old sister of one of Walters’s friends. Walters’s friend had told Walters that the victim
would be home from school that day. Walters had access to the victim’s house because he knew
3 The ESRC was established to assign risk levels, review release plans, and make appropriate referrals for sex offenders. RCW 72.09.345(2). Prior to potential release, the ESRC reviews each sex offender and classifies them into a risk level for public notification, reviews proposed release plans, and makes referrals. RCW 72.09.345(5). “The [ESRC] shall classify at risk level III those offenders whose risk assessments indicate they are at a high risk to sexually reoffend within the community at large.” RCW 72.09.345(6). It assesses public risk posed by sex offenders on a case-by-case basis. RCW 72.09.345(3)(a). The ESRC has access to public agency records relating to the offender under review. RCW 72.09.345(4). 4 The document described in the ESRC report is a “Motion to Introduce Evidence” filed in the index case, but seeking to admit evidence of the 1983 conduct. Response of ISRB (Ex. 6 at 3).
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where the key was and had used it to access the house to pick up his friend on the morning of the
attack. The victim’s family also had two dogs, which did not react to the intruder. The victim
described the assailant was a white teen male. A state crime lab examined semen recovered from
the victim and determined Walters had the same blood type as the assailant. Walters also
participated in a polygraph examination, the results of which noted deceptive responses.
The ISRB did not grant Walters’s release after the 2013 .420 hearing, so it added 36
months to Walters’s minimum term as provided in RCW 9.95.011 and .420(3)(a). As explained
in its decision and reasons for denying release, the ISRB based its decision on his Department of
Corrections (DOC) and ISRB files. These files included the ESRC report—which contained
information on his 1983 charges, Walters’s level III risk, and “information regarding institutional
behavior and programming.” Response of ISRB (Ex. 3 at 4-5). The decision and reasons listed
Walters’s risk level, his referral to the SVP subcommittee, and his lack of participation in
SOTAP and other mitigation programs or treatment.
Walters’s second .420 hearing was in April 2016. At that time, Walters had begun
SOTAP and provided a statement to the ISRB. According to the ISRB’s report, Walters’s
description of his current offense had “some elements that were consistent with file material and
others that were not.” Response of ISRB (Ex. 4 at 6). Walters had made inconsistent statements
about planning the crime and thoughts of hurting the victim: he stated in a disclosure to ISRB
that he had planned for approximately one month to rape the victim, but he also stated he had not
planned the attack and that there was no sexual element or motivation to his crime. The ISRB
also relied on the 2013 ESRC report again. In its decisions and reasons for denying release, the
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ISRB included information describing Walters’s acquitted conduct. The ISRB again denied
Walters’s release and set a new minimum release date 36 months in the future.
Walters appealed the ISRB’s 2016 decision to this court in a PRP. In re Pers. Restraint
of Walters, No. 46370-9-II, (Wash. Ct. App. Mar. 15, 2016) (unpublished) (Walters II),
http://www.courts.wa.gov/opinions/pdf/D2%2046370-9-II%20Unpublished%20Opinion.pdf.
There, Walters argued, among other things, that the ISRB abused its discretion by considering
evidence of the prior acquitted conduct. Walters II, slip op. at 5. We denied Walters’s petition,
holding that the ISRB did not abuse its discretion in considering the ESRC level classification,
“[n]or did the ISRB abuse its discretion in considering the evidence the ESRC relied on when
making its classification. This information was relevant to the ISRB’s ultimate decision, i.e.[,]
whether Walters should be released into the community.” Walters II, slip op. at 9-10. We did
not reach—and Walters did not argue—whether the ISRB’s consideration of acquitted conduct
was itself a due process violation.
Walters’s third .420 hearing—the one at issue here—occurred in December 2017. Prior
to this hearing, the ESRC again reviewed Walters’s case. The ESRC actuarial assessments,
although still “low” and “low/moderate,” were raised slightly because Walters had incurred an
infraction for possessing a weapon. Response of ISRB (Ex. 7 at 1). The ESRC continued to list
Walters at a Level III community notification risk. The ESRC based this determination in part
on “documented information that increases risk for sexual re-offense,” including the 1983
charges. Response of ISRB (Ex. 7 at 1, 6). The ESRC again recommended that Walters be
reviewed for civil commitment by the SVP subcommittee if the ISRB were to recommend
release.
5 No. 54062-2-II
By the 2017 .420 hearing, Walters had completed SOTAP and other programs. He also
provided a statement to the ISRB. He denied any involvement in the 1983 crime but did not
present any evidence on the matter. The ISRB again noted that Walters’s description of his
offense had some elements that were consistent with the file material and others that were not.
Whereas previously Walters had stated he premeditated the assault for a month, he stated at the
2017 hearing that he had considered it for a year. He also stated that his motivation was
primarily revenge against the victim’s father and anger at the victim, but was not sexual. When
the ISRB asked Walters about the SOTAP discharge summary in which Walters stated he
thought about raping the victim for two months, Walters denied making the comment. Walters
admitted to SOTAP counselors that the crime had a sexual element, but maintained at the hearing
that sex was not a motivating factor. Walters told the counselors that the victim’s lack of
struggle probably saved her from further rape or injury. However, Walters told the ISRB that
anger at the victim and the victim’s father was his primary motivator and the primary factor in
his premeditation.
The ISRB denied Walters release and added 36 months to his minimum term. In its
decisions and reasons, the ISRB conducted a review of all information in Walters’s DOC and
ISRB files. The ISRB relied on the ESRC report, a history of Walters’s charges, information
from the DOC, information from institutional behavior programming, a presentence investigation
report filed in the index case, and the testimony of Walters and his counselors. In its reasons for
denying release, the ISRB listed that Walters was a Level III notification risk, that the ESRC had
referred Walters to the SVP subcommittee, and that Walters was inconsistent in describing the
crime. The ISRB found Walters’s explanations of his motivation for the crime not credible, and
6 No. 54062-2-II
noted that Walters continued to minimize the sexual elements of the crime. In the two
paragraphs the ISRB dedicated to its reasoning, it included only one sentence on Walters’s
acquitted conduct: “The [ISRB] continues to be concerned that Mr. Walters has a prior
allegation/arrest/charge that has similar characteristics to his index offense.” Response of ISRB
(Ex. 5 at 8).
Walters filed this PRP to appeal the ISRB’s release denial at the 2017 .420 hearing.
ANALYSIS
“To succeed on a PRP, the petitioner must prove unlawful restraint.” In re Pers.
Restraint of Dyer, 175 Wn.2d 186, 195, 283 P.3d 1103 (2012) (Dyer III). Restraint is unlawful
when “the sentence or other order entered . . . was imposed or entered in violation of the
Constitution of the United States or the Constitution or laws of the State of Washington.” RAP
16.4(c)(2).
The ISRB examines sex offenders to predict sexual dangerousness and the probability
that the offender will reoffend if released. RCW 9.95.420(1)(a). The ISRB orders offenders
released unless it determines by a preponderance of the evidence that it is more likely than not
that the offender will reoffend. RCW 9.95.420(3)(a). If the ISRB denies release, it is required to
establish a new minimum term under RCW 9.95.011. RCW 9.95.420(3)(a). The ISRB makes
findings according to its own rules set out in WAC 381-90-150. Among the factors the ISRB
may consider includes, but is not limited to, evidence of an inmate’s intent or propensity to
engage in sex offenses and actuarial assessments identifying the offender’s risk to sexually
reoffend. WAC 381-90-150. “The ISRB’s highest priority is public safety.” Dyer III, 175
Wn.2d at 190.
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I. DUE PROCESS
Walters argues that his due process rights were violated when the ISRB relied on
evidence of acquitted conduct. We disagree.
We review constitutional challenges de novo. In re Pers. Restraint of Troupe, 4 Wn.
App. 2d 715, 721, 423 P.3d 878 (2018). The due process clause of the Fourteenth Amendment
states that the State shall not “deprive any person of life, liberty, or property, without due process
of law.” U.S. CONST. amend. XIV, § 1; WASH CONST. art. I, § 3. This amendment requires that
state action be implemented in a fundamentally fair manner. State v. Beaver, 184 Wn.2d 321,
332, 358 P.3d 385 (2015).
A. Procedural Due Process Rights Not Violated
Walters argues that the ISRB violated his procedural due process rights by relying in part
on acquitted conduct in making its determination.5 We disagree.
“There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). However, the United States
Supreme Court has determined that state statutes may confer a liberty interest where one did not
previously exist. Greenholtz, 442 U.S. at 12.
RCW 9.95.420(3)(a) states that the ISRB “shall order the offender released . . . unless the
[ISRB] determines by a preponderance of the evidence that, despite such conditions, it is more
5 Walters argues that “the ISRB treated this acquitted conduct as having been conclusively established as its starting point, without a hearing, without the presentation of evidence, and without providing Walters notice and an opportunity to present evidence to prove otherwise.” Pet. at 11.
8 No. 54062-2-II
likely than not that the offender will commit sex offenses if released.” (Emphasis added). In In
re Personal Restraint of McCarthy, our Supreme Court held that this mandatory language
“creates 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.” 161 Wn.2d 234, 241, 164 P.3d 1283 (2007) (emphasis added).
In McCarthy, our Supreme Court examined .420 hearing procedures to determine
whether due process required legal counsel for offenders during .420 hearings. 161 Wn.2d at
237. The McCarthy court held that offenders’ due process protections in a .420 hearing do not
include the right to counsel. 161 Wn.2d at 237. The court explained that offenders before a .420
hearing are entitled to minimum procedural protections, including the opportunity to be heard and
an explanation for why release was denied. In re McCarthy, 161 Wn.2d at 242-45. Analogizing
release under RCW 9.95.420 to parole, the court noted that parole release statutes do not require
formal, adversarial hearings. In re McCarthy, 161 Wn.2d at 242. A review of the “inmate’s file,
together with the inmate’s opportunities to appear before the [ISRB], ‘adequately safeguards
against serious risks of error and thus satisfies due process.’” In re McCarthy, 161 Wn.2d at 242
(quoting Greenholtz, 442 U.S. at 15).
Here, the ISRB followed the appropriate procedure necessary to meet the minimum
procedural protections that attach under the statute. The ISRB conducted a hearing. The ISRB
accorded Walters an opportunity to be heard and Walters provided a statement. The ISRB relied
on Walters’s file, which included, among other things, the ESRC file and the ESRC’s notes on
Walters’s acquitted conduct. The ISRB then informed Walters of its decision in writing,
explaining its reasoning for denying release.
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Walters cites to no case on point in his contention. He relies on one sentence from a New
Hampshire Supreme Court case, which notes “the presumption of innocence is as much
ensconced in our due process as the right to counsel.” State v. Cote, 129 N.H. 358, 375, 530
A.2d 775 (1987). Walters’s reliance on this authority is misplaced.
In Cote, the New Hampshire Supreme Court held that a sentencing court’s reliance on
acquitted conduct to enhance a sentence violated due process. Cote, 129 N.H. at 375. However,
that same court subsequently held that evidence of acquitted conduct may be properly considered
when reimposing a suspended sentence. State v. Gibbs, 157 N.H. 538, 540-42, 953 A.2d 439
(2008). The Gibbs court noted that “unlike in Cote, the trial court here did not consider the
defendant’s acquitted conduct for a punitive purpose, but, rather, to make an independent
judgment regarding the defendant’s compliance with the conditions of his suspended sentence.”
Gibbs, 157 N.H. at 540.
The Gibbs court went on to describe that the imposition of a suspended sentence was
remedial, not punitive. 157 N.H. at 541. Multiple jurisdictions are in accord on the principle
that revocation of parole is remedial, not punitive. See Peyton v. Commonwealth, 268 Va. 503,
604 S.E.2d 17 (Virginia, 2004); Standlee v. Rhay, 557 F.2d 1303, 1306 (9th Cir., 1977); see also
United States v. Brown, 59 F.3d 102, 104-05 (9th Cir., 1995); United States ex rel. Carrasquillo
v. Thomas, 527 F. Supp. 1105, 1110 (S.D.N.Y., 1981), aff’d 677 F.2d 225 (2d Cir., 1982).
Similarly, other jurisdictions have recognized such minimal liberty interests exist in parole or
probation revocation, as in Gibbs’s revocation of suspended sentence. See Brennan v.
Cunningham, 126 N.H. 600, 604, 493 A.2d 1213 (1985) (noting similar conditional liberty
interests associated with suspension of sentence, parole, and probation); People v. Scura, 72 P.3d
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431, 434 (Colo. App., 2003). Indeed, our own Supreme Court has held that acquitted conduct
may be relied on in parole revocation without offending the doctrine of collateral estoppel or
impinging on due process. Standlee v Smith, 83 Wn.2d 405, 409-410, 518 P.2d 721 (1974).
These cases are especially instructive when comparing the liberty interests they
determined to attach in parole revocation with our Supreme Court’s holding in McCarthy. In
McCarthy, the court analogized a .420 hearing resulting in release to parole. The McCarthy
court explained:
The .420 hearings are more analogous to parole release than to parole revocation. The liberty interest at stake for an offender facing revocation of parole is more significant because the offender has already been released from incarceration. Offenders in .420 hearings face continued incarceration. . . .
....
The unique statutory language and structure of RCW 9.95.420 give offenders only a limited liberty interest in .420 hearings—an interest more limited than the interest at stake during parole revocation decisions.
161 Wn.2d at 243-45 (some emphasis added).
The ISRB accorded Walters the minimum procedural protections as laid out in
McCarthy. The use of acquitted conduct in parole revocation hearings does not offend
procedural due process. The liberty interest that attaches in a .420 hearing is more limited than
that in parole revocation. As a result, we hold that the ISRB’s reliance on acquitted conduct did
not violate procedural due process.
Walters argues that the ISRB treated acquitted conduct as conclusively proven, and this
also violated his due process rights. He argues that before the ISRB can consider acquitted
conduct, it has to first establish that the accusation was been proven by a preponderance of
evidence. We disagree.
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Walters bases his argument on United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136
L. Ed. 2d 554 (1997). There, the United States Supreme Court held that a jury’s acquittal on
certain charges does not prevent a sentencing court from considering the underlying charge, so
long as it was proved by a preponderance of the evidence to the sentencing court. Watts, 519
U.S. at 157. The court reached this decision under the Double Jeopardy Clause of the Fifth
Amendment and did not reach a Fourteenth Amendment question. Watts, 519 U.S. at 156-57.
But Watts did lay out several tenets instructive here, notably that “the jury cannot be said to have
‘necessarily rejected’ any facts when it returns a general verdict of not guilty” and that an
“‘acquittal in a criminal case does not preclude the Government from relitigating the issue when
it is presented in a subsequent action governed by a lower standard of proof.’” 519 U.S. at 155-
56 (quoting Dowling v. United States, 493 U.S. 342, 349, 110 S. Ct. 668, 107 L. Ed. 2d 708
(1990)).
Instructive here is Standlee v. Smith, where our Supreme Court held that acquitted
conduct may be relied on in parole revocation without offending the doctrine of collateral
estoppel. 83 Wn.2d at 409-410. There the court noted that “[t]he difference in degree of the
burden of proof in criminal and civil cases precludes application of the doctrine of [r]es judicata.
The acquittal was ‘merely . . . an adjudication that the proof was not sufficient to overcome all
reasonable doubt of the guilt of the accused.’” Standlee, 83 Wn.2d at 408 (quoting Lewis v.
Frick, 233 U.S. 291, 302, 34 S. Ct. 488, 58 L. Ed. 967 (1914)). The Standlee court recognized
that the United States Supreme Court had “establish[ed] that certain minimum requirements of
due process apply to revocation hearings.” Standlee, 83 Wn.2d at 409 (citing Morrisey v.
Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); Gagnon v. Scarpelli, 411 U.S.
12 No. 54062-2-II
778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973)). However, the court did “not read those decisions
as prohibiting the result we reach [in Standlee]. Both cases [Morrisey and Gagnon] emphasize
the limited rights accorded the parole or probation violator.” Standlee, 83 Wn.2d at 409-10
(emphasis added). As discussed above, the rights of an offender before a .420 hearing are even
more limited. See In re McCarthy, 161 Wn.2d at 243-45.
During a .420 hearing, the ISRB must rely on the ESRC report. See WAC 381-90-
050(1)-(2). The ESRC report
may include, but is not limited to . . . psychiatric or psychological reports, such as IQ appraisals, personality inventories, actuarial risk assessments and sexual history polygraphs; . . . [b]ehavioral details of the crimes of conviction, . . . [and] [t]he department’s risk management level and the sex offender notification level. . . .
WAC 381-91-050(2) (emphasis added). Offenders have an opportunity to review the ESRC
information and have the opportunity to make a written statement. WAC 381-90-050(3).
Offenders have the right to submit to the ISRB letters or statements in support of release and to
review the ESRC report and supporting documents prior to the ISRB hearing. WAC 381-90-090
(2)-(3).
At the hearing, the ISRB reviews the evidence and predicts the probability that the
offender will sexually reoffend if released. RCW 9.92.420(1)(a); WAC 381-90-100, -150.
A list of factors that the [ISRB] may consider includes, but is not limited to: .... . . . [e]vidence of an inmate’s continuing intent or propensity to engage in sex offenses . . . . [and] [e]nd of sentence review determination based on actuarial assessments identifying risk to sexually reoffend.
WAC 381-80-150. During the hearing, “[t]he [ISRB] will accept written information pertaining
to the inmate from any interested person.” WAC 381-90-100. The ISRB may also consider
13 No. 54062-2-II
“[o]ther pertinent information.” WAC 381-90-050(4)(d). “All relevant information shall be
admissible.” WAC 381-90-140.
Here, the ISRB conducted the hearing in accordance with these rules. Written
information on Walters’s acquitted conduct was contained in the ESRC report that the ISRB
relied on. The information there shows that the victim in the 1983 crime was Walters’s friend’s
younger sister. Walters’s friend had told Walters that the victim would be home from school that
day. The assailant was a white teen male, as was Walters. Walters also had access to the
victim’s house because he knew where the key was and had used it to access the house to pick up
his friend on the morning of the attack. The victim’s family also had two dogs, which did not
react to the intruder. A state crime lab examined semen recovered from the victim and
determined Walters had the same blood type as the assailant. Walters’s polygraph results noted
deceptive responses.
Moreover, Walters had notice that this information was in his file because it appeared
there in previous .420 hearings. Walters was allowed to testify at the hearing. When questioned
about the 1983 charges, Walters denied any involvement. Based on the information the ISRB
may consider under its rules and the description of the 1983 charges laid out in the ESRC report,
it was possible for the ISRB to conclude that it was more likely than not that Walters committed
the 1983 crime. Accordingly, we hold that Walters’s procedural due process rights were not
violated.
Furthermore, the jury did not “necessarily reject” the facts of the 1983 crimes Walters
was charged with. Watts, 519 U.S. at 155; Ex. 3 at 3-4. The due process protections that the
United States Supreme Court held attach at revocation hearings did not prevent the Standlee
14 No. 54062-2-II
court from allowing acquitted conduct to be relied on in parole revocations. As a result, the
more limited rights offenders are permitted under .420 hearings as established by McCarthy do
not preclude such a decision here either. Accordingly, we hold that in a .420 hearing the ISRB is
not precluded by due process from revisiting facts from an acquittal when the burden of proof is
lower than beyond a reasonable doubt.6
II. ABUSE OF DISCRETION
Walters argues in the alternative that the ISRB abused its discretion when it denied his
release. Walters argues that the ISRB abused its discretion when it relied on insufficient
evidence and improperly relied on evidence of acquitted conduct. We disagree.
A. Legal Principles
We review ISRB decisions denying release and setting a new minimum term for an abuse
of discretion. Dyer III, 175 Wn.2d at 196. We give the ISRB decision substantial deference, as
we are “not a super ISRB and will not interfere with an ISRB determination . . . unless the ISRB
is first shown to have abused its discretion . . . . [T]he courts will not substitute their discretion
for that of the ISRB.” Dyer III, 175 Wn.2d at 196 (quoting In re Pers. Restraint of Whitesel, 111
Wn.2d 621, 628, 763 P.2d 199 (1988)). “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. Restraint of Dyer, 157 Wn.2d 358, 363, 139 P.3d 320 (2006)
(Dyer I). The petitioner has the burden to prove the ISRB abused its discretion. In re Pers.
Restraint of Addleman, 151 Wn.2d 769, 776, 92 P.3d 221 (2004).
6 At oral argument, Walters argued that the form of the evidence, contained within a report from the Pierce County prosecutor, being allegations only on paper violated Walters’s due process. But the ISRB considered evidence consistent with its rules.
15 No. 54062-2-II
RCW 9.95.420(3)(a) states that 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 [ISRB]. . . . The [ISRB] shall order the offender released, under such affirmative and other conditions as the [ISRB] determines appropriate, unless the [ISRB] 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.
In making its determination, the ISRB must rely on the ESRC report. See WAC 381-90-
may include, but is not limited to . . . psychiatric or psychological reports, such as IQ appraisals, personality inventories, actuarial risk assessments and sexual history polygraphs; . . . [b]ehavioral details of the crimes of conviction, . . . [and] [t]he department’s risk management level and the sex offender notification level. . . .
WAC 381-91-050(2) (emphasis added). “The [ESRC] shall classify as risk level III those
offenders whose risk assessments indicate they are at a high risk to sexually reoffend within the
community at large.” RCW 72.09.345(6).
Additionally:
A list of factors that the [ISRB] may consider includes, but is not limited to: . . . [e]vidence of an inmate’s continuing intent or propensity to engage in sex offenses . . . . . . . [and] [e]nd of sentence review determination based on actuarial assessments identifying risk to sexually reoffend.
WAC 381-90-150 (emphasis added). The ISRB may also consider “[o]ther pertinent
information.” WAC 381-90-050(4)(d). “All relevant information shall be admissible.” WAC
381-90-140.
B. The ISRB’s Decision Was Supported by Sufficient Evidence
Walters argues that the ISRB’s determination was not supported by the evidence. We
disagree.
16 No. 54062-2-II
“The [ISRB] shall order the offender released . . . unless the [ISRB] determines by a
preponderance of the evidence that . . . it is more likely than not that the offender will commit
sex offenses if released.” RCW 9.95.420(3)(a). Preponderance of the evidence means evidence
to support that something is probably more true than not true. In re Pers. Restraint of Pugh, 7
Wn. App. 2d 412, 422, 433 P.3d 872 (2019). The ISRB abuses its discretion when it acts
without consideration of and in disregard of the facts. Dyer I, 157 Wn.2d 358 at 363.
The ISRB cannot hold a .420 hearing until it has received the ESRC report. WAC 381-
90-050(1)(a). At the .420 hearing the ESRC report is admissible, including ESRC risk
assessment and sex offender notification level. RCW 381-90-050(2)(f). The ISRB may consider
the ESRC’s report on psychiatric or psychological reports, and sexual history polygraphs. WAC
381-90-050(2)(c). Additionally, all relevant evidence is admissible, and the ISRB may consider,
among other things, the offender’s serious and repetitive disciplinary infractions, continuing
intent or propensity to engage in sex offenses, and ESRC determinations identifying risk. WAC
381-90-140, 381-90-150.
The ISRB held Walters’s 2017 .420 hearing after receiving an update from the ESRC
regarding the report on Walters. The ESRC report contained information on a past rape charge
for which Walters was acquitted and the results of a polygraph in the wake of that charge in
which Walters displayed deception. The report also noted that Walters was referred to the SVP
subcommittee for psychological examination to determine if he met the requirements for civil
commitment. The ISRB relied on a variety of evidence in making its decision, including the
ESRC report, which included the history of charges provided in the ESRC file, as well as
Walters’s ISRB file, information from the DOC, information from institutional behavior
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programming, and the testimony of Walters and his counselors. The updated 2017 ESRC letter
to the ISRB noted that Walters’s actuarial assessments, although still low and low/moderate,
were raised because of Walters’s possession of a weapon. The ESRC maintained Walters as a
Level III risk.
In its decision and reasons, the ISRB noted Walters’s Level III assessment and referred to
the ESRC report. The ISRB also considered that the ESRC had referred Walters to the SVP
subcommittee. Relying on Walters’s testimony and that of his counselors, the ISRB expressed
concern over the changing details of Walters’s depiction of events.7 The ISRB noted some
progress that Walters had made, but found his explanations regarding his motivation not
credible, given the sexual elements of his crime. The ISRB also stated its concern that Walters’s
prior charge had similar characteristics to his crime.
Walters relies on In re Pers. Restraint of Brashear in his argument that the ISRB did not
rely on relevant evidence. 6 Wn. App. 2d 279, 430 P.3d 710 (2018). Brashear was a juvenile
board case where the ISRB denied release to the petitioner, who had been convicted of a
roadside murder as a juvenile and sentenced to 614 months.8 6 Wn. App. 2d at 281-85. In
7 The ISRB also requires “full candor” during SOTAP. See In re Pers. Restraint of Dyer, 164 Wn.2d 274, 283, 189 P.3d 759, 770 (2008) (Dyer II). Walters’s statements to the ISRB, and his counselor’s surprise regarding conflicting information over Walters’s premeditation and motivation could have suggested a lack of candor to the ISRB. 8 Brashear’s PRP came in the wake of the United States Supreme Court decision in Miller v. Alabama, where the Court held that a mandatory life sentence without parole for those under 18 violated the Eighth Amendment to the United States Constitution. 567 U.S. 460, 465, 132 S. Ct. 2455 183 L. Ed. 2d 407 (2012). As a result, our legislature enacted a “Miller fix” to allow those convicted as juveniles the ability to petition the ISRB for early release. Brashear 6 Wn. App. 2d at 281-82. At the time of her PRP, Brashear had served 20 years. Brashear 6 Wn. App. 2d at 281.
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Brashear, Division One of this court reversed the ISRB decision, holding that the ISRB abused
its discretion. 6 Wn. App. 2d at 289-90. Division One noted that the ISRB focused on the
severity of Brashear’s underlying crimes, rather than fulfilling its statutory mandate to consider
whether Brashear was more likely than not to reoffend. 6 Wn. App. 2d at 289.
Walters’s case is distinguishable. Here, the ISRB clearly focused on its statutory
mandate to consider whether Walters was more likely than not to reoffend. Walters had no
record of marked improvement over his years of confinement; he showed limited insight into his
crime, he committed an infraction in prison, he was classified as a Level III offender, and he was
referred to be evaluated as an SVP.
Because of the amount and type of evidence the ISRB relied on, and giving deference to
the ISRB’s decision, there was sufficient evidence to support the ISRB’s determination based on
a preponderance of the evidence standard. Accordingly, we hold that sufficient evidence
supports its decision.
C. The ISRB Did Not Abuse its Discretion When It Relied on Evidence of Acquitted Conduct
Walters argues that the ISRB abused its discretion when it based its decision in part on
Walters’s past acquitted charges. Walters contends that the ISRB’s use of acquitted conduct was
an abuse of discretion because it violated Walters’s due process rights. As discussed above, this
argument fails.
CONCLUSION
Walters has only a limited liberty interest in a .420 hearing—much more limited than in
either sentencing or even parole revocation. As a result, his due process rights were not violated
by the ISRB’s consideration of acquitted conduct. The ISRB also did not abuse its discretion in
19 No. 54062-2-II
denying Walters release, because it relied on sufficient evidence and the evidence of acquitted
conduct does not violate due process. Accordingly, 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.
____________________________ Worswick, P.J.
____________________________ Melnick, J.
____________________________ Glasgow, J.