IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 83357-0-I
Respondent, DIVISION ONE v.
MAURICE VAN THROWER, UNPUBLISHED OPINION
Appellant.
SMITH, A.C.J. — Maurice Van Thrower was convicted of two counts of
child molestation in 2013 and sentenced to concurrent terms of 180 months to
life. The court ordered that he have no contact with his victim. Following our
Supreme Court’s opinion in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021),
Thrower sought resentencing. In the interim, however, Thrower had reached out
to several family members of the victim by letter. At resentencing, the court
prohibited Thrower from having contact not only with his victim, but also with any
member of the victim’s family, specifically naming six individuals. Thrower
appeals, contending that the no-contact order prohibitions are not sufficiently
crime-related. He also raises several issues in a statement of additional grounds
concerning the trial court’s treatment of his CrR 7.5 motion, ineffective assistance
of counsel, and the characterization of his new sentence. We conclude that the
no-contact order prohibitions are sufficiently crime-related and that none of the
Citations and pin cites are based on the Westlaw online version of the cited material. No. 83357-0-I/2
issues raised in the statement of additional grounds warrant reversal. Therefore,
we affirm.
FACTS
A jury convicted Maurice Van Thrower of two counts of first degree child
molestation in 2013. Thrower timely appealed and this court affirmed those
convictions. State v. Thrower, No. 69950-4-I, slip op. (Wash. Ct. App. June 30,
2014) (unpublished) https://www.courts.wa.gov/opinions/pdf/699504.pdf.
In April 2021, following our Supreme Court’s opinion in Blake, 197 Wn.2d
170, Thrower sought a resentencing hearing because his prior simple possession
convictions had been included in his offender score. Thrower also challenged
the use of a prior felony conviction from California in calculating his offender
score. At resentencing, Thrower attempted to raise additional issues related to
his original trial, including an earlier attempt to move for a new trial under
CrR 7.5. The trial court declined to address the CrR 7.5 motion, as the hearing
only concerned resentencing, not a review of Thrower’s conviction. Instead, the
court transferred the motion to this court under CrR 7.8 as a personal restraint
petition.
The State agreed that Thrower’s offender score was impacted by Blake.
Three simple possession convictions were removed—two from California and
one from Washington. The State did not attempt to prove comparability of the
California felony conviction. The parties agreed that Thrower’s new offender
score was nine, leaving the standard range unchanged at 149 to 198 months.
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Though the State asked for the same range to be imposed, it also
requested that the court include, as a condition of the judgment and sentence, a
no-contact order prohibiting contact with “any member” of the victim, T.W.’s,
family. The State noted that since the original sentencing in 2013, Thrower had
“continue[d] to victimize” the family by sending letters to various family members,
offering money or a “potential financial benefit for coming back and recanting.”
Defense counsel opposed the condition as overbroad and not reasonably crime-
related. Thrower addressed the letters at the resentencing hearing. He claimed
that his trial attorney failed to interview several of the family members and that he
was merely trying to investigate and create a record to prove his innocence.
After reviewing the letters, the court reimposed a sexual assault protection
order protecting the victim. It also imposed the State’s proposed order
prohibiting Thrower from contacting “any member of T.W.’s family.” At defense
counsel’s suggestion, the court listed the names of six family members that
Thrower was specifically not to contact, “so that there [wasn’t] any question about
[whom the order protected].”
Thrower appeals. ANALYSIS No-Contact Provision
On appeal, Thrower asserts that the no-contact order prohibition against
contacting “any member of T.W.’s family” is not sufficiently crime-related as
required by statute. He also contends that because the six individuals named in
the no-contact order are neither victims nor witnesses, that prohibition is also not
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adequately crime-related. We conclude that both prohibitions are reasonably
crime-related.
RCW 9.94A.505(9)1 authorizes trial courts to impose “crime-related
prohibitions,” such as no-contact orders, as conditions of a sentence. State v.
McGuire, 12 Wn. App. 2d 88, 94-95, 456 P.3d 1193 (2020). “Crime-related
prohibitions” are orders directly related to “the circumstances of the crime for
which the offender has been convicted.” RCW 9.94A.030(10). They “may
include orders prohibiting contact with victims or witnesses for the statutory
maximum term.” State v. Armendariz, 160 Wn.2d 106, 108, 156 P.3d 201
(2007). However, “[n]o-contact orders are not limited to the victims of the crime.”
State v. Navarro, 188 Wn. App. 550, 556, 354 P.3d 22 (2015).
“ ‘[T]his court reviews sentencing conditions for abuse of discretion.’ ”
State v. Nguyen, 191 Wn.2d 671, 683, 425 P.3d 847 (2018) (quoting State v.
Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993)).2 Sentencing conditions are
usually upheld if they are reasonably crime-related. State v. Warren, 165 Wn.2d
17, 32, 195 P.3d 940 (2008). Thus, a court does not abuse its discretion if a
1 The legislature amended this statute in 2019, renumbering the relevant
subsection. LAWS OF 2019, ch. 191, § 3. Though the parties cite the old subsection numbering, the text of the subsection has not changed, and we cite to the current version of the statute. 2 Citing Armendariz, Thrower asserts that whether a court had authority to
issue a no-contact order as a sentencing condition is reviewed de novo. 160 Wn.2d at 110. But the holding of Armendariz undermines his argument. In Armendariz, our Supreme Court concluded that “[t]he plain language of the SRA authorizes trial courts to impose crime-related prohibitions, including no-contact orders, under the independent authority of RCW 9.94A.505(8) [now renumbered as 9.94A.505(9)],” and therefore, that the trial court did not exceed its authority in imposing a no-contact order as a crime-related prohibition. 160 Wn.2d at 112-14 (emphasis added). 4 No. 83357-0-I/5
“reasonably related” between the crime of conviction and the sentencing
condition exists. State v. Irwin, 191 Wn. App. 644, 658-59, 364 P.3d 830 (2015)
(quoting State v. Kinzle, 181 Wn. App. 774, 785, 326 P.3d 870 (2014)). And the
prohibited conduct need not be identical to the crime of conviction, but there must
be “some basis for the connection.” Irwin, 191 Wn. App. at 657.
For example, in Warren, the defendant, who had sexually abused his two
stepdaughters, was prohibited from having contact with his wife, the mother of
his victims. 165 Wn.2d at 23. Though the defendant’s wife was not a victim of
his crimes, our Supreme Court affirmed the no-contact order because it was
“reasonably related” to the crime. Warren, 165 Wn.2d at 34. The Court
explained that the wife “is the mother of the two child victims of sexual abuse for
which [the defendant] was convicted; [the defendant] attempted to induce her not
to cooperate in the prosecution of the crime; and [the defendant’s wife] testified
against [the defendant] resulting in his conviction of the crime.” Warren, 165
Wn.2d at 34.
Warren supports upholding the no-contact order in the present case.
Here, letters between Thrower and various members of T.W.’s family were
introduced into evidence at resentencing.3 The letters revealed that Thrower had
3 Thrower maintained that he sent the letters because his counsel failed to
interview certain family members that could help prove his innocence. Thrower offered the following explanation: First, let me address what I was truly attempting to do with the letters. In the appeal process, the Court told me that because [my attorney] didn’t interview the grandma, the uncle, and the uncle’s baby’s mom and the other cousin to that I couldn’t—it was mute [sic]. I couldn’t do anything because I didn’t have what those
5 No. 83357-0-I/6
offered financial incentives to members of the family in exchange for T.W. and
her mother recanting their original trial testimony, similar to the defendant in
Warren.4 Addressing the letters, the court stated [a]nd in taking a look at the letters . . . it is clear to me that you are communicating with [T.W’s] mother in order to manipulate her and to try to obtain things for which you are not entitled to do through this process. So I am going to order no contact with [T.W’s] mother, her grandmother and her family as a condition of the sentence. . . . Whether or not you are seeking to have testimony for what you believe to be your evidentiary thing is going to be a separate issue with that, but the way in which you’re communicating with them I find to be significantly different than that.
Given Thrower’s persistent attempts to contact T.W. via third parties, it
was reasonable for the resentencing court to include in the no-contact order
other close familial parties. Doing so prevents Thrower from harassing or
revictimizing T.W. and her family and therefore, is crime-related.
individuals would have said in my appeal. So what I’m attempting to do, since I’m pro se, I don’t have any money, I can’t get a private investigator, I wrote the Court, I asked the Court to have [my attorney interview the family members]. I’ve been very diligent in trying to show that I am innocent. . . . I didn’t offer no one any money. That is just money that I feel that I am owed for being wrongfully convicted. 4 For example, in one of the letters, Thrower wrote,
Its time for the truth to come to the forefront and allow me to hold the Detective and Prosecutor accountable for their over zealous [sic] prosecution. . . . Plus I need that purse the State of Washington about to cough up for wrongfully convicting me. So yes Jen go to your daughter, or let her read this letter and she will let you know that she really didn’t want this to happen to me. . . . I’m innocent!!! And the truth is worth a lot of money at this point (Hundred of Thousands), and I’m willing to share!! 6 No. 83357-0-I/7
Statement of Additional Grounds
In a statement of additional grounds, Thrower argues that the court erred
in transferring his CrR 7.5 motion for a new trial to this court as a personal
restraint petition, that he received ineffective assistance from his resentencing
counsel, that the court orally imposed a determinate sentence, and, in the
alternative, that the Indeterminate Sentencing Review Board is unconstitutional.
We address each argument in turn.
1. CrR 7.5 and CrR 7.8
Thrower contends that the court violated his due process rights by
transferring his CrR 7.5 motion for new trial to this court to consider as a personal
restraint petition. We disagree.
In general, a person seeking to challenge their conviction or sentence has
30 days to initiate a direct appeal. RAP 5.2(a). “[A]ny form of postconviction
relief other than a direct appeal” is a “collateral attack.” RCW 10.73.090(2).
Most collateral attacks must be brought within “one year after the judgment
becomes final if the judgment and sentence is valid on its face and was rendered
by a court of competent jurisdiction.” RCW 10.73.090(1). Collateral attacks filed
in superior court are governed by CrR 7.8. State v. Molnar, 198 Wn.2d 500, 508,
497 P.3d 858 (2021). CrR 7.8(c)(2) requires the trial court to transfer untimely
motions to this court. State v. Smith, 144 Wn. App. 860, 863, 184 P.3d 666
(2008). “[I]f the superior court determines that the collateral attack is untimely,
then the court must transfer it to the Court of Appeals without reaching the
merits.” Molnar, 198 Wn.2d at 509. We review a trial court’s ruling on a CrR 7.8
7 No. 83357-0-I/8
motion for an abuse of discretion. State v. Robinson, 193 Wn. App. 215, 217,
374 P.3d 175 (2016).
Here, Thrower’s CrR 7.5 motion for new trial is clearly a collateral attack.
At the close of his original trial, Thrower attempted to file a CrR 7.4 motion for
“arrest of judgment,” that is, a motion seeking to vacate the sentence. But that
motion was not filed because his attorney believed it was frivolous. And when
Thrower brought up counsel’s failure to file the motion at his first sentencing, the
court agreed with his attorney that the motion was frivolous. At resentencing,
Thrower tried to move under CrR 7.5 for a new trial on the basis that the original
sentencing court erred in not addressing his motion for arrest of judgment. The
resentencing court declined to entertain the motion, stating that the hearing was
only for “resentencing but not a review of [Thrower’s] conviction.” Accordingly,
the court transferred Thrower’s motion to this court as a personal restraint
petition pursuant to CrR 7.8(c)(2). Under this procedure, a petitioner’s
opportunity to be heard is not terminated—it is simply transferred to this court.
Because the court correctly followed the transfer procedure under CrR 7.8, we
conclude it did not abuse its discretion. And since Thrower’s personal restraint
petition is currently before this court, we decline to reach the merits of his
CrR 7.5 motion.
2. Ineffective Assistance of Counsel
Thrower contends that his defense counsel was ineffective by not
objecting to the State using prior convictions, now invalidated by Blake, at
resentencing. But contrary to Thrower’s contention, the State acknowledged that
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Thrower’s criminal history had been affected by Blake and agreed that his
offender score should be adjusted accordingly. We conclude that counsel was
not ineffective.
The Sixth Amendment to the United States Constitution and Article I,
Section 22 of the Washington Constitution guarantee the right to effective
assistance of counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045
(2017). Washington has adopted the two-pronged test set out in Strickland v.
Washington for evaluating whether a defendant had constitutionally sufficient
representation. 466 U.S. 668, 80 L. Ed. 2d 674 (1984); State v. Cienfuegos, 144
Wn.2d 222, 226, 25 P.3d 1011 (2001). Under Strickland, the defendant must
show both (1) deficient performance, and (2) resulting prejudice to prevail on an
ineffective assistance claim. 466 U.S. at 687; State v. Jones, 183 Wn.2d 327,
339, 352 P.3d 776 (2015).
Counsel’s performance is deficient if it falls “below an objective standard
or reasonableness based on consideration of all the circumstances.” State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Prejudice exists if
there is a reasonable probability that “but for counsel’s deficient performance, the
outcome of the proceedings would have been different.” State v. Kyllo, 166
Wn.2d 856, 862, 215 P.3d 177 (2009). “The defendant must affirmatively prove
prejudice and show more than a ‘conceivable effect on the outcome’ to prevail.”
Estes, 188 Wn.2d at 458 (some internal quotation marks omitted) (quoting State
v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006)). There is a strong
presumption that counsel’s representation was reasonable. Kyllo, 166 Wn.2d at
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862. Moreover, performance is not deficient if counsel’s conduct qualifies as a
legitimate trial strategy or tactic. Kyllo, 166 Wn.2d at 863. We review ineffective
assistance of counsel claims de novo. Jones, 183 Wn.2d at 338-39.
Here, pursuant to Blake, Thrower’s three simple drug possession
convictions were removed and his offender score was recalculated to nine. 197
Wn.2d 170. Both parties agreed that this was the correct score. The State did
not attempt to include Thrower’s California felony conviction through a
comparability analysis. Though Thrower challenges his counsel’s failure to
object to the simple possession convictions and California felony convictions
being included as part of his offender score calculus, those convictions were not
included. Accordingly, there was nothing for Thrower’s counsel to object to and
his counsel was not ineffective.
3. Determinate Sentence
Thrower asserts that at resentencing, the court orally stated a different
sentence than the one contained in the judgment and sentence. He claims that,
contrary to the judgment and sentence, the court imposed a determinate
sentence of 180 months rather than an indeterminate sentence with a range of
180 months to life. We are unconvinced.
“Washington is a written order state.” State v. Huckins, 5 Wn. App. 2d
457, 469, 426 P.3d 797 (2018). “ ‘[A] trial court’s oral statements are no more
than a verbal expression of [its] informal opinion at that time . . . necessarily
subject to further study and consideration, and may be altered, modified, or
completely abandoned.’ ” Huckins, 5 Wn. App. 2d at 469-70 (some internal
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quotation marks omitted) (quoting State v. Dailey, 93 Wn.2d 454, 458-59, 610
P.2d 357 (1980)).
Here, the resentencing court did not orally sentence Thrower to a
determinate sentence. The court stated, “I’m going to sentence you to the same
thing that Judge Linde [the original sentencing judge] did. I think Judge Linde
was in the best position to truly evaluate the case and sentence you to 180
months on each count.” Though the court did not explicitly state that it was
imposing a maximum term, it stated that it was imposing the same sentence as
before—an indeterminate sentence—and the judgment and sentence reflected
this. The court did not err.
4. Indeterminate Sentence and ISRB
As an alternative argument, Thrower also challenges the imposition of his
indeterminate sentence. He contends that RCW 9.94A.507 establishes the
standard range for his crime and is in tension with RCW 9A.20.021(1)(a), which
allows for “a term of life imprisonment” for a class A felony. He also claims that
the Indeterminate Sentencing Review Board (ISRB) is unconstitutional. We
disagree on both points.
i. Indeterminate Sentence
RCW 9.94A.507 governs the sentences of certain sex offenders.
Offenders subject to RCW 9.94A.507 are sentenced to indeterminate sentences
within the mandatory minimum sentence and the statutory maximum sentence
for the crime. RCW 9.94A.507(3)(a)-(b). RCW 9A.20.021(1) provides the
maximum sentences for crimes and reads, in pertinent part:
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Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following: (a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine.
Washington courts have consistently held that the “statutory maximum” means
the maximum sentence under RCW 9A.20.021 and not the high end of the
standard range under the Sentencing Reform Act of 1981 (SRA), ch. 9A.94
RCW. In re Pers. Restraint of Sargent, 20 Wn. App. 2d 186, 195, 499 P.3d 241
(2021); see, e.g., State v. Bobenhouse, 143 Wn. App. 315, 331, 177 P.3d 209
(2008) (statutory maximum for first degree child rape is life) (citing RCW
9A.20.021); State v. Adams, 138 Wn. App. 36, 51, 155 P.3d 989 (2007)
(statutory maximum for class A felony is life imprisonment) (citing
RCW 9A.20.021). The SRA itself acknowledges RCW 9A.20.021.
RCW 9.94A.506(3) (“The maximum term of confinement in a range may not
exceed the statutory maximum for the crime as provided in RCW 9A.20.021.”)
To the extent Thrower asserts that his sentence violates due process, he
does not cogently state how his rights were violated. Therefore, we only address
whether the court correctly sentenced him under the statutory scheme.
Thrower was convicted of two counts of child molestation in the first
degree, which is a class A felony that carries a maximum term of life in prison.
RCW 9A.44.083. Under these parameters, the court correctly sentenced
Thrower to a minimum term of 180 months on each count with a mandatory
12 No. 83357-0-I/13
maximum term of life in prison. Thrower’s assertion that the two statutes
impermissibly conflict does not logically follow from the text of the SRA. In fact,
the statutes work in tandem: RCW 9.94A.507 sets forth the applicable range
under the SRA and RCW 9A.20.021 provides the sentence. We conclude that
the court did not err.
ii. ISRB
Thrower contends that the ISRB is unconstitutional for multiple reasons.
He first alleges that “without the courts [sic] authority[,] the (ISRB) gains authority
to override the judge’s sentence of the individual,” “in stark contrast to the
Constitution of the United States.” He also contends that RCW 9.95.011(2)(a),
which governs minimum terms, runs afoul to the United States Supreme Court’s
holding in United States v. Haymond, 139 S. Ct. 2369, 204 L. Ed. 2d 897 (2019).
Finally, he claims that the ISRB’s authority unconstitutionally “supersedes
the actual sentence handed down by the judge without a lawyer, judge or jury,
contrary to the well established Fifth and Sixth Amendments.” (Underlining
omitted.) Therefore, he contends that “to sentence any individual under the ISRB
as applied is unconstitutional.”
Sentencing Authority: Under RCW 9.94A.507(5), “[w]hen a court
sentences a person to the custody of the department [of corrections] . . . the
court shall, in addition to other terms of the sentence, sentence the offender to
community custody under the supervision of the department and the authority of
the [ISRB] for any period of time the person is released from total confinement
before the expiration of the maximum sentence.”
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Thrower contends that Third Engrossed Substitute Senate Bill
(ESSB) 6151, 57th Leg., Reg. Sess. (Wash. 2001), which revised certain
provisions relating to sex offender sentencing, gives the ISRB “authority to
override the judge’s sentence of the individual” under RCW 9.94A.507(5).
Specifically, he takes issue with the following excerpts from the Final Bill Report
on Third ESSB 6151, 57th Leg., Reg. Sess. (Wash. 2001): The ISRB decides whether to release the person to community custody or retain the person in prison.
And, The ISRB must release the offender unless he or she is likelier than not to commit a predatory sex offense.
FINAL B. REP. ON THIRD SUBSTITUTE S.B. 6151, at 3.
But the Final Bill Report merely explains how the ISRB functions in
relation to RCW 9.94A.507. And a plain reading of RCW 9.94A.507(5) supports
this conclusion. Under RCW 9.94A.507(5), the court sentences a person, not the
ISRB or Department of Corrections. And under the statute, the court sentences
individuals to community custody under the supervision of the ISRB.
RCW 9.94A.507(5). The individual and the ISRB are still bound by the maximum
sentence imposed by the court. RCW 9.94A.507(5). The ISRB does not
“override” the sentencing judge’s authority as Thrower contends.
RCW 9.95.011(2)(a): Thrower takes issue with the following language
from RCW 9.95.011(2)(a): “If the [ISRB] does not release the person, it shall set
a new minimum term not to exceed an additional five years. The [ISRB] shall
review the person again not less than ninety days prior to the expiration of the
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new minimum term.” He asserts that this language is “egregous [sic] when
looking at the holding in Haymond,” in which the Court noted that “a jury must
find any facts that trigger a new mandatory minimum prison term.” 139 S. Ct.
at 2380.
RAP 3.1 provides that “[o]nly an aggrieved party may seek review by the
appellate court.” “While RAP 3.1 does not itself define the term ‘aggrieved,’
Washington courts have long held that ‘[f]or a party to be aggrieved, the decision
must adversely affect that party’s property or pecuniary rights, or a personal right,
or impose on a party a burden or obligation.’ ” Randy Reynolds & Assocs., Inc.
v. Harmon, 193 Wn.2d 143, 150, 437 P.3d 677 (2019) (quoting In re the Matter of
the Parentage of X.T.L., No. 31335-2-III, slip op. at 17 (Wash. Ct. App. Aug. 19,
2014) (unpublished) https://www.courts.wa.gov/opinions/pdf/313352.unp.pdf).
Thrower does not contend that he has been subjected to the procedure
described in RCW 9.95.011(2)(a) and we therefore decline to issue an advisory
opinion.
Fifth and Sixth Amendments: The Fifth Amendment provides for a grand
jury in capital crimes, protects against double jeopardy and self-incrimination,
and includes due process and takings clauses. U.S. CONST., art. V. The Sixth
Amendment protects the right to a speedy and public trial by an impartial jury.
U.S. CONST., art. VI.
We first note that although Thrower challenges the ISRB’s constitutionality
under the Fifth Amendment, he does not specify which provision the ISRB
violates. “Passing treatment of an issue or lack of reasoned argument is
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insufficient to merit judicial consideration.” Palmer v. Jensen, 81 Wn. App. 148,
153, 913 P.2d 413 (1996). And we will not consider an inadequately briefed
argument. Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474,
486, 254 P.3d 835 (2011). Accordingly, we decline to consider Thrower’s Fifth
Amendment argument.
The constitutionality of the ISRB under the Sixth Amendment, however, is
settled law. The United States Supreme Court considered the constitutionality of
Washington’s indeterminate sentencing scheme in Blakely v. Washington and
concluded that it did not run afoul with the Sixth Amendment. 542 U.S. 296, 308-
09, 159 L. Ed. 2d 403 (2004).
Thrower also asserts that “[o]nly a jury, acting on proof beyond a
reasonable doubt, may take a person’s liberty” and therefore, “to sentence any
individual under the ISRB as applied is unconstitutional.” To the extent that
Thrower argues that only juries may impose sentences, he is mistaken. The
legislature has the power to define sentences statutorily, and it is traditionally the
court’s power to decide the appropriate sentence from within those restrictions.
State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719 (1986). The ISRB is a
sentencing scheme created by the legislature. And here, Thrower was convicted
by a jury. Contrary to Thrower’s assertion, the ISRB is the mechanism by which
individuals with indeterminate sentences, like Thrower, are released earlier than
their court-imposed maximum sentence. See In re Pers. Restraint of Dodge, 198
Wn.2d 826, 829, 502 P.3d 349 (2022) (explaining statute requires ISRB to
16 No. 83357-0-I/17
employ a presumption of release). Thrower’s argument fails and we decline to
conclude that the ISRB is unconstitutional.
WE CONCUR: