FILED COURT OF I S DIV S oN11 201 JUL f5 , 10 : 14 i STATE OF AASKING'KON
ti
Y' IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON.._,
DIVISION II
STATE OF WASHINGTON, No. 44314 -7 -II
Appellant,
v.
MARGIE LEE DERENOFF, PART PUBLISHED OPINION
Respondent.
LEE, J. — In 2010, a jury found Margie Lee Derenoff not guilty of third degree assault by
reason of insanity, and the trial court ordered that she be conditionally released. In 2012, the trial
court revoked Derenoff' s conditional release because she was noncompliant with her conditions
of release and presented a threat to public safety. Derenoff appeals the trial court' s order
revoking her conditional release, arguing that ( 1) she had a right to be restored to competency
before attending revocation proceedings, and ( 2) the trial court erred in relying on hearsay
evidence during the revocation proceedings. We affirm the revocation order.
FACTS
In 2009, the State charged Derenoff with third degree assault. Derenoff was restored to
competency prior to her trial, and a jury later found her not guilty of the assault by reason of
insanity. The jury also found, by special verdict, that Derenoff posed a substantial danger to No. 44314 - -II 7
others without continued judicial oversight but that it was not in Derenoff s or the public' s best
interest to have her detained in a state mental hospital.
Following Derenoff' s trial, the trial court ordered her conditional release from Western
State Hospital under a RCW 10. 77. 110( 1) least restrictive alternative ( LRA) disposition. As
conditions of her release, the court ordered Derenoff to ( 1) submit to periodic monitoring by the
Department of Corrections ( DOC) staff for five years; ( 2) attend the Clallam County Superior
Court Mental Health docket twice a month; ( 3) follow treatment plans, therapy sessions, and
activities scheduled by her mental health providers; and ( 4) keep her mental illness " in the
current state of remission [ with] no significant signs of decompensation which affect her ability
to comply with her conditional release" from Western State Hospital. Br. of Resp' t, App. C.
For approximately two years, Derenoff substantially complied with the terms of her LRA
disposition. However, in September 2012, Derenoff twice failed to report to the DOC and, on
three occasions, refused to cooperate with her mental health providers. Gerald Brown, the DOC
agent supervising Derenoff s release, recommended that the State detain Derenoff so that a RCW
10. 77. 190 revocation or modification hearing could be " scheduled with as much expediency as is
possible so that [ Derenoff] can be placed in the care of a mental health facility for evaluation and
stabilization." Clerk' s Papers ( CP) at 68.
Police subsequently detained Derenoff and, at her counsel' s request, the trial court
ordered Derenoff committed to Western State Hospital for a psychological evaluation under
RCW 10. 77. 060( 1)( a) with directions:
to determine whether [ Derenoff] is competent or responsible to proceed with the revocation of the least restrictive alternative, whether the defendant is or was insane or suffering from diminished capacity, and for a recommendation
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regarding revocation of the least restrictive alternative or disposition if the least restrictive alternative is revoked.
CP at 51. The State opposed this request, believing " RCW 10. 77. 060 competency evaluations
are not applicable in proceedings to revoke an insanity acquittee' s conditional release." CP at
30.
The State later moved to modify the court' s competency evaluation order because " the
doctors at Western State Hospital had consulted with the [ Attorney General] and they don' t think
they have the authority to do a competency evaluation" on an insanity acquittee ( as opposed to
someone involved in criminal proceedings). Report of Proceedings ( RP) ( Nov. 2, 2012) at 25.
The trial court agreed and modified the temporary commitment order to reflect that Derenoff
should be evaluated solely to determine whether revocation of her LRA disposition was
warranted on the grounds that Derenoff presented a danger to herself or the public. In addition,
over Derenoff' s counsel' s objections, the trial court ruled that Derenoff need not be competent
for her LRA revocation proceeding to move forward.
In December 2012, the court held Derenoff' s LRA revocation hearing. Brown testified to
Derenoff' s violations of her LRA disposition terms. . Additionally, the State moved to admit
Western State .Hospital' s evaluation of Derenoff into evidence in lieu of live testimony. The
evaluation recommended that Derenoff' s LRA disposition be revoked because she is an
imminent risk of danger to others and is not able to provide for her own basic needs of health and
safety.
Derenoff objected to the admission of the Western State evaluation on hearsay grounds.
Derenoff also objected to the proceeding with the revocation hearing because it was " completely
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obvious" that Derenoff was not competent to understand the proceeding or assist counsel. RP
Dec. 19, 2012) at 95. The trial court ruled that the evaluation had indicia of reliability, that it
would be cost prohibitive to obtain live testimony under the circumstances, and that delaying the
hearing would result in Derenoff languishing in a correctional facility.
After hearing argument from both parties, the trial court revoked Derenoff s LRA
disposition, entered findings and conclusions, and ordered Derenoff committed to Western State
Hospital. Derenoff appeals the revocation of her LRA disposition.
ANALYSIS
COMPETENCY
Derenoff argues that chapter 10. 77 RCW mandates that a person acquitted of a crime by
reason of insanity be competent before the court may revoke his or her LRA disposition.
Alternatively, she argues that due process concerns " forbid the revocation of conditions of
release of a person lacking a rational and factual understanding of the proceedings and sufficient
her lawyer in preparing her defense." Br. Appellant 8. We ability to consult with and assist of at
disagree because nothing in chapter 10. 77 RCW requires a defendant to be competent during a
revocation proceeding and because sufficient due process protections exist to prevent erroneous
deprivation of an insanity acquittee' s liberty.
A. STATUTORY SCHEME
We review questions of statutory interpretation de novo. State v. Bao Dinh Dang, 178
Wn.2d 868, 874, 312 P. 3d 30 ( 2013). " The purpose of statutory interpretation is to determine and
carry out the intent of the legislature." State v. Sweat, 180 Wn.2d 156, 159, 322 P. 3d 1213
2014). " interpretation begins the Lake Woodcreek Statutory with statute' s plain meaning." v. No. 44314 - -II 7
Homeowners Ass' n, 169 Wn.2d 516, 526, 243 P. 3d 1283 ( 2010). We evaluate the plain meaning
of the statute " from the ordinary meaning of the language at issue, the context of the statute in
which that provision is found, related provisions, and the statutory scheme as a whole." State v.
Engel, 166 Wn.2d 572, 578, 210 P. 3d 1007 ( 2009). "` Statutes must be interpreted and construed
so that all the language used is given effect, with no portion rendered meaningless or
superfluous. ' State v. P., 149 Wn.2d 444, 450, 69 P. 3d 318 ( 2003) ( internal quotation marks J.
omitted) ( quoting Davis v. Dep' t of Licensing, 137 Wn.2d 957, 963, 977 P. 2d. 554 ( 1999)). We
cannot add words or clauses to an unambiguous statute when the legislature has chosen not to
include that language." State v. Delgado, 148 Wn.2d 723, 727, 63 P. 3d 792 ( 2003). Moreover,
s] tatutes are to be read together, whenever possible, to achieve a ` harmonious total statutory
scheme ... which maintains the integrity of the respective statutes.' State ex rel. Peninsula
Neighborhood Ass' n v. Wash. Dep' t of Transp., 142 Wn.2d 328, 342, 12 P. 3d 134 ( 2000)
quoting Employco Pers. Servs., Inc. v. City of Seattle, 117 Wn.2d 606, 614, 817 P. 2d 1373
1991)).
Here, RCW 10. 77. 050 states that "[ n] o incompetent person shall be tried, convicted, or
sentenced for the commission of an offense" while incompetent. However, an LRA revocation
hearing is not a trial for the commission of an offense; rather, it is a civil proceeding occurring
after a defendant has been acquitted by reason of insanity at the end of a criminal trial.
Accordingly, RCW 10. 77. 050 is inapplicable to LRA revocation hearings.
RCW 10. 77. 190 governs LRA revocation hearings. Under RCW 10. 77. 190( 4), a
revocation hearing is held to determine " whether the conditionally released person did or did not
5 No. 44314 -7 -II
adhere to the terms and conditions of his or her release, or whether the person presents a threat to
public safety." Nothing in the statute requires the insanity acquittee to be competent.
Moreover, RCW 10. 77. 020( 1) envisions the possibility that certain proceedings, like
LRA revocation hearings, may involve a person who is not competent but is represented by
counsel:
At any and all stages of the proceedings pursuant to this chapter, any person subject to the provisions of this chapter shall be entitled to the assistance of counsel .... A person may waive his or her right to counsel; but such waiver shall only be effective if a court makes a specific finding that he or she is or was competent to so waive.
RCW 10. 77. 020( 1)' s discussion of competency in specific circumstances would be superfluous
if competency were required in every proceeding under chapter 10. 77 RCW.
Applying principles of statutory construction, we observe that the legislature expressly
requires competency in certain circumstances, such as criminal proceedings, RCW 10. 77. 050,
and waiver of counsel, RCW 10. 77. 020( 1). Yet the legislature does not . require competency for
other circumstances, such as hearings to revoke RCW 10. 77. 110( 1) LRA conditional releases.
We decline Derenoff s request to read in a competency requirement where the legislature has
chosen to omit such language. We hold, therefore, that chapter 10. 77 RCW does not require
that a defendant be restored to competency before or during his or her LRA revocation hearing.
Derenoff s statutory challenge fails.
B. DUE PROCESS
Derenoff next argues that, as in criminal proceedings, an insanity acquittee must be
restored to competency for an LRA revocation hearing because "[ r] evocation of an incompetent
person' s liberty is ... de facto unfair" and violates her right to procedural due process. Br. of
6 No. 44314 - -II 7
Appellant at 8. We hold that an insanity acquittee' s due process rights are sufficiently protected
under chapter 10. 77 RCW by other safeguards, such as assistance of counsel, when he or she is
incompetent during LRA revocation proceedings.
We review questions of law, including constitutional due process guarantees, de novo. In
re Det. of Fair, 167 Wn.2d 357, 362, 219 P. 3d 89 ( 2009). "[ C] ivil commitment for any purpose
constitutes a significant deprivation of liberty that requires due process protection." Addington v.
Texas, 441 U. S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 ( 1979); see also In re Det. ofHarris,
98 Wn.2d 276, 279, 654 P. 2d 109 ( 1982) . ( "[ D] ue process guaranties must accompany
involuntary commitment for mental disorders. ").
Procedural due process prohibits the State from depriving an individual of protected
liberty interests without appropriate procedural safeguards. In re Pers. Restraint of Bush, 164
Wn. 2d 697, 704, 193 P. 3d 103 ( 2008). Procedural due process "[ a] t its core is a right to be
meaningfully heard, but its minimum requirements depend on what is fair in a particular context." In re Det. of Stout, 159 Wn. 2d 357, 370, 150 P. 3d 86 ( 2007) ( citing Mathews v.
Eldridge, 424 U. S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976)). To determine what
procedural due process requires in a particular context, appellate courts employ the Mathews test,
balancing three factors:
1) the private interest affected, ( 2) the risk of erroneous deprivation of that interest through existing procedures and the probable value, if any, of additional procedural safeguards, and ( 3) the governmental interest, including costs and administrative burdens of additional procedures. No. 44314 -7 -II
Stout, 159 Wn.2d at 370 ( citing Mathews, 424 U. S. at 335). Whether an insanity acquittee must
be competent at his or her LRA revocation proceedings to satisfy procedural due process
requirements is a matter of first impression.
Here, the first Mathews factor, regarding Derenoff' s private interests, clearly weighs in
Derenoff s favor because forced hospitalization deprives her of significant liberty interests.
Addington, 441 U. S. at 425. The State does not contest this.
As for the second Mathews factor, existing procedures sufficiently safeguard against the
erroneous deprivation of Derenoff' s liberty interests. RCW 10. 77. 020( 1) provides that all
insanity acquittees subject to LRA revocation are entitled to counsel. Derenoff's rights were
vigorously represented by counsel throughout the LRA proceedings here. Also, insanity
acquittees are entitled to an immediate mental examination before the revocation hearing. RCW
10. 77. 190( 2). This assures that the trial court has expert information concerning the insanity
acquittee' s mental health before deciding whether to modify or revoke an LRA disposition.
Derenoff received such an examination before her revocation hearing.
And, revoking Derenoffs LRA disposition does not result in her indefinite civil
commitment. Instead, under the statutory scheme, the State may not hold an insanity acquittee in
a state mental health facility for longer than the maximum possible penal sentence for the crime
charged.' RCW 10. 77. 025. Thus, the LRA revocation entitles the State to place Derenoff in a
mental health facility for no longer than the remainder of her maximum possible penal sentence
five years). Even then, persons committed to a mental health facility after an LRA revocation
1 At the conclusion of this period, the State may seek to have an insanity acquittee involuntarily committed to a state mental health facility under chapter 71. 05 RCW. This procedure, in turn, involves further due process protections.
8 No. 44314 -7 -II
must be examined by mental health professionals at least once every six months. RCW
10. 77. 140. Following such examination, the secretary of the Department of Social and Health
Services ( or his or her designee) or the examinee, may request conditional release and restoration
of his or her LRA disposition. RCW 10. 77. 150. Furthermore, an insanity acquittee may request
conditional release every six months. RCW 10. 77. 150( 5).
Thus, although risk of an erroneous deprivation of liberty is a real concern, the
procedures currently in place under chapter 10. 77 RCW provide significant procedural
safeguards for insanity acquittees facing LRA revocations. • Derenoff has failed to explain how .
being restored to competency would decrease the likelihood of an erroneous deprivation of her
liberty interests or why the procedural safeguards in place under chapter 10. 77 RCW are
insufficient to satisfy due process under the second Mathews factor.
The third Mathews factor —the governmental interest, including costs and administrative
burdens of additional procedures— weighs heavily in favor of the State. The State has a strong
interest in detaining " mentally unstable individuals who present a danger to the public." United
States v. Salerno, 481 U. S. 739, 748 -49, 107 S. Ct. 2095, 95 L. Ed. 2d 697 ( 1987). And, the
LRA revocation/ modification proceeding under RCW 10. 77. 190 is designed to efficiently
determine whether an insanity acquittee has violated the conditions of her release and presents a
danger to herself or others. Requiring that an insanity acquittee be restored to competency
before revocation proceedings would nullify any efficiencies without any increase in procedural
safeguard benefits. Finally, under the current statutory scheme, trial courts have discretion to
modify an insanity acquittee' s conditional release. RCW 10. 77. 190( 4). Accordingly, if the trial
court considers it in the best interests of the insanity acquittee and the public to restore an
9 No. 44314 -7 -II
insanity acquittee to competency so that she can resume her LRA disposition, the trial court may
order such restoration as a modification of the LRA disposition. Maintaining the trial court' s
discretion to efficiently address and modify conditions of an acquittee' s release is a significant
governmental interest.
On balance, the Mathews factors weigh against requiring that an insanity acquittee be
restored to competency before his or her LRA revocation/ modification hearing. Chapter 10. 77
RCW provides numerous and sufficient procedural due process protections and, under the
statutory scheme, there is little risk that an insanity acquittee would erroneously be deprived of
significant liberty interests. We affirm the trial court' s revocation of Derenoff s LRA.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
REPORT IN LIEU OF LIVE TESTIMONY
Derenoff next argues that the trial court violated her due process rights to confront
witnesses when it relied exclusively on Dr. Hendrickson' s evaluation from Western State Hospital in revoking her LRA disposition. Because the trial court established good cause for
relying on the Western State Hospital evaluation in lieu of live testimony, the trial court did not
err by admitting the evaluation.
We review questions of law, including constitutional due process guarantees, de novo. In
re Fair, 167 Wn.2d at 362. " When confronted with revocation of a qualified or conditional
liberty, the United States Supreme Court has indicated that limited Fourteenth Amendment due
process guaranties apply." Dang, 178 Wn. 2d at 883. " These rights include the right to confront
10 No. 44314 -7 -II .
and cross- examine witnesses unless there is articulable good cause for disallowing
confrontation." Dang, 178 Wn.2d at 883.
Like parole, sentencing modification, and SSOSA [ special sex offender sentencing
alternative] revocation, the trial court' s revocation of an insanity acquittee' s conditional release
implicates a conditional liberty dependent on the observance of special terms and conditions."
Dang, 178 Wn.2d at 883. Thus, " hearsay evidence should be considered only if there is good
cause to forgo live testimony." State v. Dahl, 139 Wn.2d 678, 686, 990 P. 2d 396 ( 1999). " Good
cause is defined in terms of `difficulty and expense of procuring witnesses in combination with
demonstrably reliable or clearly reliable evidence. "' Dahl, 139 Wn.2d at 686 ( internal
quotations omitted) ( quoting State v. Nelson, 103 Wn.2d 760, 764 -65, 697 P. 2d 579 ( 1985)).
For instance, in Dahl, the trial court relied on hearsay evidence in a SSOSA revocation
hearing that was " neither demonstrably reliable nor necessary, due to the difficulty in procuring
live witnesses." 139 Wn. 2d at 687. Because the defendant' s SSOSA " revocation appear[ ed] to
have been based, at least in part, on consideration of the [ hearsay]," the Supreme Court held that
the trial court' s failure to establish a good cause basis for relying on the hearsay was not
harmless and remanded for a new hearing. Dahl, 139 Wn.2d at 689. Similarly, in State v. Abd-
Rahmaan, 154 Wn.2d 280, 290 -91, 111 P. 3d 1157 ( 2005), the Supreme Court held that a trial
court' s sentence modification was invalid because it relied on hearsay evidence during the
modification proceeding without establishing good cause.
Here, unlike in Dahl and Abd-Rahmaan, the trial court did articulate good cause for
relying on the Western State Hospital evaluation in lieu of live testimony. In its oral ruling on
whether to admit the evaluation, the trial court stated:
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I do find there is good cause to admit that [ evaluation] in lieu of live testimony for a number of reasons. Number 1, the Court is very, very familiar with the staff, the processes, the [ evaluations] generated by Western State [ H] ospital [ and] we rely on them on almost a daily basis, uh, without the benefit of live testimony. There
are] certainly indicia of reliability in these [ evaluations]. As I indicated, the
Court has come to rely upon the opinions of the experts at Western State Hospital in precisely these kinds of situations. Second], it is very, very expensive and logistically challenging to get Dr. Hendrickson or one of his colleagues to get [ here] and provide live testimony. I think it' s safe to assume that were that to happen, what we' d get is a verbal recitation of what is written in the [ evaluation] and get the same
recommendations. Yes, it would be subject to examination cross[ - ] but that would be of minimal benefit to the Court in these circumstances. Finally, it would consume a great deal more time which means Ms. Derenoff remains in jail and that is not something I want to see happen. If I were to keep the [ evaluation] out at this point now ... she would continue to languish in a correction facility rather than a treatment facility. I think it is to her benefit to have this hearing this morning and get on with this and, uh, for those reasons I will admit the [ evaluations] as a substantive
evidence at this hearing.
RP ( Dec. 19, 2012) at 76 -77.
The trial court' s oral ruling set forth good cause: ( 1) it articulated the cost prohibitive
nature of requiring live testimony under the circumstances of the case, ( 2) it explained the
reliability of the Western State evaluation, ( 3) it acknowledged the logistical challenges securing
live testimony in this case posed, and ( 4) it recognized that the delay necessary to secure live
testimony would cause Derenoff to languish in a correctional facility. Thus, the trial court did
not err in admitting and relying on the evaluation in lieu of live testimony.
12 No. 44314 -7 -II
We affirm the revocation order.
We concur: