Opinion
No. 50420-7-I
Filed: May 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Island County. Docket No: 97-2-00476-9. Judgment or order under review. Date filed: 05/01/2002. Judge signing: Hon. Vickie Churchill.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA 98101.
Nancy P. Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Todd Richard Bowers, Attorney General-CJD, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Curtis Brogi appeals the trial court's denial of his motion to vacate filed under CR 60(b)(11). He contends that a CR 60(b)(11) motion is the appropriate vehicle for relief following a change in the law. We dismiss the appeal as moot.
A unanimous jury determined Curtis Brogi to be a sexually violent predator in January of 2000. The trial court entered an order committing Brogi to the custody of the Department of Social and Health Services for care, control, and treatment under RCW ch. 71.09. The sexually violent predator statute at that time provided that less restrictive alternatives to confinement could be considered only after a person petitioned for release from confinement, not at the initial commitment proceeding. RCW 71.09.090 (2000). The court did not instruct the jury to consider less restrictive alternatives to total confinement.
Brogi filed a direct appeal, No. 46028-5-I, according to the procedures set forth in RAP 2.2(a)(8) challenging the order of commitment. That appeal is currently pending decision in this court, but is unrelated to the issue raised in this appeal.
At the end of 2001, nearly two years after Brogi's initial order of commitment, our Supreme Court issued its decision in In re the Detention of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001). The Court determined that under principles of equal protection, the jury must be allowed to consider less restrictive alternatives to total confinement in the initial commitment proceedings of those adjudicated to be sexually violent predators. In re Detention of Brooks, 145 Wn.2d 275, 36 P.3d 1034 (2001), reversed in part, In re Detention of Thorell, 149 Wn.2d 724, 72 P.3d 708 (2003).
Brogi filed a motion under CR 60(b)(1), (5), and (11) in April 2002 to vacate his order of commitment based upon the change of law articulated in Brooks. He sought a new commitment hearing at which less restrictive alternatives would be considered. The trial court, after a hearing, denied the motion, concluding that a CR 60(b) motion was not an appropriate vehicle under the circumstances.
Brogi appealed that ruling. While his appeal was pending, the Supreme Court issued its decision in Thorell, and overruled that portion of Brooks that Brogi relied upon in his CR 60(b)(11) motion. Thorell concluded that delaying the consideration of less restrictive alternatives until the individual petitioned for release was rationally related to the legitimate objective of treating sexually violent predators. Thorell, 149 Wn.2d at 753.
After Thorell, there is no relief that this court can provide. Because the law, under Thorell, is presently the same with respect to consideration of less restrictive alternatives as it was when Brogi was committed, there is no legal basis for his motion.
The appeal is dismissed as moot.
ELLINGTON and BAKER, JJ., Concur.