Opinion
No. 18653-9-III, 18654-7-III.
Filed: August 23, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Franklin County, No. 96-2-50154-1, Hon. Dennis D. Yule, August 27, 1999, Judgment or order under review.
Counsel for Appellant(s), Robert J. Thompson, Attorney At Law, 504 West Margaret St., Pasco, WA 99301.
Counsel for Respondent(s), Adrienne E. Harris, Asst. Atty. General, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
After the State detained William Davenport as a sexually violent predator, it failed to hold a probable cause hearing within the time provided by law. Consequently, the trial court dismissed the sexually violent predator petition, but the court permitted the State to re-file. After a probable cause hearing, the court found probable cause existed to establish that Mr. Davenport is a sexually violent predator.
Mr. Davenport appeals, contending the trial court erred by (1) dismissing the 1996 petition without prejudice and allowing the State to re-file the petition; (2) failing to dismiss the 1999 petition because it failed to allege a recent overt act; and (3) holding the State did not need to prove Mr. Davenport's mental disorder impairs his volitional control to the degree he cannot control his impulses. Additionally, Mr. Davenport contends the State's 1999 petition is invalid due to constitutional infirmities relating to his 1992 conviction.
We conclude that the failure to hold a probable cause hearing within 72 hours does not require dismissal, absent evidence that the failure to hold the hearing adversely affected the outcome of the trial. Because Mr. Davenport failed to show that the failure to hold his probable cause hearing within 72 hours adversely affected the outcome of his trial, we hold that the trial court did not err by dismissing the petition without prejudice and allowing the State to file a new petition. We grant the State's motion to redesignate the remaining portion of Mr. Davenport's appeal as a discretionary review proceeding. Because we concluded that the trial court did not commit probable error, we deny review.
FACTS
Before a person may be civilly detained as a sexually violent predator, the person must have been convicted of three sexually violent offenses as defined by RCW 71.09.020(6). Mr. Davenport has been convicted of three qualifying sex offenses.
On March 18, 1980, he was convicted of the crime of indecent liberties. The crime involved sexual contact with a 13-year-old girl. He was sentenced to 10 years and placed in the sexual psychopath program at Eastern State Hospital.
In November 1981, in California, Mr. Davenport was convicted of the crime of assault with the intent to commit rape. The crime involved a woman whom Mr. Davenport physically and sexually assaulted. Mr. Davenport pleaded guilty to that crime and was sentenced to six years in prison.
In 1992, Mr. Davenport entered an Alford plea to the charge of second degree child molestation in Franklin County, Washington. In that case, the victim was an 11-year-old girl, whom Mr. Davenport sexually assaulted in her home.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
At his sentencing hearing for the 1992 crime, Mr. Davenport was informed that part of his sentence would include two years of community placement. Mr. Davenport was again informed of the community placement requirement at a subsequent hearing when the court announced the sentence.
The judgment and sentence contained this requirement.
Mr. Davenport was scheduled to be released from prison on March 26, 1996. On March 22, the Washington State Attorney General's office filed a petition for civil commitment under chapter 71.09 RCW. A probable cause hearing was set for March 26. The hearing did not take place as scheduled. Except for the period from May 7, 1996, until May 15, 1996, Mr. Davenport entered timely waivers of his rights to a probable cause hearing within 72 hours of the conclusion of his criminal sentence and thus his continued detention. The waivers were effective through May 31, 1996.
On June 3, 1996, Mr. Davenport moved to stay the proceedings prior to the probable cause hearing until Kansas v. Hendricks, a case that analyzed the constitutionality of the civil sexual predator statutes, was decided. Over the State's objection, the court granted the stay. Kansas was decided on June 23, 1997.
Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).
No probable cause hearing was scheduled between June 23, 1997, and Mr. Davenport's next waiver on May 4, 1998. In that period, Mr. Davenport changed counsel three times. The record indicates that on December 11, 1997, the State attempted to set the probable cause hearing date and indicated it could move forward within 72 hours. Mr. Davenport's new counsel indicated he was not ready to move forward. On January 9, 1998, Mr. Davenport's counsel asked that the probable cause hearing not be set until May 1998.
In June 1998, Mr. Davenport moved to withdraw his 1992 Alford plea based on the court's failure to inform him that community placement would be part of his sentence. He also challenged the conviction because the State had failed to inform him of the one-year limitation on collateral attacks to convictions. The court denied both challenges. It found that the record does not reflect Mr. Davenport was advised of the community placement requirement prior to the acceptance of his plea. However, the court found that the judge orally informed Mr. Davenport of the community placement requirement, and the provision was contained in the judgment and sentence.
The court also found that Mr. Davenport had received notification from the Department of Corrections, by posted notice, of the one-year statute of limitations for collateral attacks on convictions. The court noted that in a personal restraint petition, Mr. Davenport had acknowledged that the law did not allow a conviction to be attacked more than one year after the conviction was obtained. Finally, the court concluded that Mr. Davenport's motion was barred by his failure to raise the issue in a prior personal restraint petition.
In the spring of 1999, Mr. Davenport filed a series of motions, seeking to dismiss the State's petition for civil commitment. First, he moved to dismiss because the sexually violent predator statute violates due process and equal protection. Second, Mr. Davenport moved to dismiss on the basis that his plea was involuntary because he was never advised of the community placement requirement. Third, he moved to dismiss because the State violated his right to a probable cause hearing within 72 hours of his detainment. Fourth, Mr. Davenport moved to dismiss the petition on the basis that the State breached the terms of the plea agreement by not allowing him to complete his sentence, including his two years of community placement, before it petitioned to civilly commit him.
Mr. Davenport's motions were heard together on May 13, 1999. As to the due process and equal protection challenges, the court concluded that State v. Brooks was controlling and dismissed that motion. As to Mr. Davenport's contention that his 1992 plea was involuntary, the court reasoned that the motion constituted a collateral attack and, therefore, was time barred. Lastly, the court requested additional briefing regarding Mr. Davenport's contention that the civil commitment petition should be dismissed because the State had failed to hold a probable cause hearing within 72 hours of his detention.
State v. Brooks, 94 Wn. App. 716, 973 P.2d 486, review granted, 138 Wn.2d 1021 (1999).
On June 24, 1999, the court issued a memorandum opinion. In that opinion, the court stated that some portion of the 10-month delay was caused by the withdrawal of Mr. Davenport's counsel in October 1997. Additionally, the court stated that some delay was attributable to Mr. Davenport's objections and issues he raised regarding his new court-appointed counsel. Even so, the court concluded that the State had failed to provide a reasonable explanation for its failure to schedule a mandatory probable cause hearing within the intervening 10 months. The court concluded that Mr. Davenport's right to a timely probable cause hearing was violated. Further, the court concluded that the proper remedy was to dismiss the State's petition without prejudice and allow it to re-file the case.
On June 29, the State filed a second sexually violent predator petition. A probable cause hearing was held on July 1, 1999. At the end of the hearing, the court found that probable cause existed to conclude that Mr. Davenport was a sexually violent predator. On the same day, the court entered an order affirming the existence of probable cause and directing the detention, evaluation, and transport of Mr. Davenport to the Special Commitment Center.
On July 29, Mr. Davenport filed a notice of appeal in the first sexual predator case. This notice of appeal was filed after the court issued its June 24 memorandum opinion and before the court issued a final order dismissing the case, which was entered by the court on August 27. Mr. Davenport filed another notice of appeal in the second sexual predator case on July 30.
State's Motion to Supplement the Record. The State asks this court for permission to supplement the record with the declaration of Sarah B. Sappington. Ms. Sappington's declaration, which the State has attached as an appendix to its brief, attempts to explain the State's failure to schedule Mr. Davenport's probable cause hearing.
Pursuant to RAP 9.11(a), additional evidence on review may be considered if the parties establish the following: (1) additional proof of facts is needed to fairly resolve the issues on review; (2) the additional evidence would probably change the decision being reviewed; (3) it is equitable to excuse a party's failure to present the evidence to the trial court; (4) the remedy available to a party through postjudgment motions in the trial court is inadequate or unnecessarily expensive; (5) the appellate court's remedy of granting a new trial is inadequate or unnecessarily expensive; and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court. River Park Square v. Miggins, 143 Wn.2d 68, 78-79, 17 P.3d 1178 (2001).
Usually, all six factors must be satisfied before new evidence is admissible under RAP 9.11(a). Mission Ins. Co. v. Guarantee Ins. Co., 37 Wn. App. 695, 702, 683 P.2d 215 (1984). However, the court may waive the requirements of the rule pursuant to RAP 1.2 and RAP 18.8 to serve the ends of justice. Sears v. Grange Ins. Ass'n, 111 Wn.2d 636, 640, 762 P.2d 1141 (1988). When the evidence was available to a party before the trial or proceeding, it is not equitable to excuse the party's failure to present the evidence. Harbison v. Garden Valley Outfitters, Inc., 69 Wn. App. 590, 594, 849 P.2d 669 (1993); Mission Ins., 37 Wn. App. at 702-03.
In this case, the supplemental material is a declaration from the attorney general responsible for Mr. Davenport's case. The State fails to provide a reason why the declaration was not provided to the trial court, or why the evidence was unavailable at that time. Moreover, it does not appear that deciding the case solely on the evidence already taken in the trial court would be inequitable. Some of the evidence relating to the delay attributable to Mr. Davenport is available in the record before this court. Thus, while the declaration would bolster the State's position, it does not appear that the additional evidence would change the decision being reviewed.
We deny the motion to supplement the record.
Motion to Dismiss. On the date that this case was scheduled for oral argument, the State moved this court for an order dismissing Mr. Davenport's case. In its motion, the State argues that the notice of appeal was untimely because it was filed on July 29, 1999, more than 30 days after the trial court entered its June 24 memorandum opinion. Significantly, the State's motion does not reference the order of dismissal entered on August 27.
From the record before us, we cannot determine whether the State was given notice of the entry of this order. A certified copy of the order of dismissal was sent by the Clerk of the Franklin County Court and received by this court on August 30, 1999. It appears that the order was prepared and entered in response to a query from the clerk of this court regarding whether the trial court's memorandum opinion was an appealable order.
Generally, a 'memorandum decision' is not a final, appealable order.
A 'memorandum decision' is the trial court's direction to counsel in preparation of formal orders, and an appeal cannot be taken until the formal order is entered. In re Estate of Christensen, 77 Wn. 629, 630, 138 P. 1 (1914); see also Corrigal v. Ball Dodd Funeral Home, Inc., 89 Wn.2d 959, 961, 577 P.2d 580 (1978). We conclude that the final appealable order is the order of dismissal entered on August 27, 1999, and not the trial court's memorandum decision entered June 24, 1999.
The time for appeal is 30 days after entry of the decision the party filing the notice wants to have reviewed. RAP 5.2(a) establishes the time for filing a notice of appeal and notice of discretionary review. If the notice is filed after the announcement of a decision and before the entry of the decision, the notice is treated as filed on the date following entry of the appealable decision. As stated in the editorial commentary to the RAP, section (g) provides that a premature notice will not be penalized.
Therefore, we conclude that Mr. Davenport timely appealed the August 27, 1999 order dismissing the civil detention petition without prejudice.
Probable Cause Hearing. Mr. Davenport contends that the trial court erred by dismissing the State's 1996 petition without prejudice and by thereby allowing the State to re-file the petition. In supporting its decision, the trial court relied upon In re Detention of Aqui, 84 Wn. App. 88, 93, 929 P.2d 436 (1996), overruled on other grounds by In re Detention of Hendrickson, 140 Wn.2d 686, 2 P.3d 473 (2000) and In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993).
The trial court stated that Aqui required dismissal of the petition because Mr. Davenport's right to a probable cause hearing was violated.
The court then reasoned that Young provided in the absence of any demonstrated effect of such violation upon the ultimate outcome of the proceedings, the dismissal should be without prejudice and the State should be allowed to file a new petition.
RCW 71.09.030 provides that when the sentence of a person who has been convicted of a sexually violent offense is about to expire and it appears that the person may be a sexually violent predator, the attorney general may file a petition alleging that the person is a 'sexually violent predator' and stating facts to support the allegation. Upon the filing of a petition under RCW 71.09.030, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. RCW 71.09.040(1). If such a determination is made, the person is taken into custody. RCW 71.09.040(1).
Within 72 hours after the person is taken into custody, the court must provide the person with an opportunity to appear at a hearing to contest probable cause.
RCW 71.09.040(2); Young, 122 Wn.2d at 46-47. However, the failure to hold a probable cause hearing within 72 hours does not require dismissal of the petition. In Young, the court held that although the detainees had been deprived of a 72-hour probable cause hearing, that deprivation had no bearing on the outcome of their respective trials. 'While this requirement [72-hour probable cause hearing] was not complied with here, it had no bearing on the ultimate outcome of petitioners' trials; thus the omission in this instance does not require reversal.' Young, 122 Wn.2d at 47.
In In re Detention of Campbell, 139 Wn.2d 341, 986 P.2d 771 (1999), cert. denied, 121 S.Ct. 880 (2001), the Supreme Court again held that the failure to timely hold a probable cause hearing did not require dismissal.
The court's decision was based in part on Mr. Campbell's failure to introduce evidence that a probable cause hearing within 72 hours would have adversely affected the outcome of his case. Id. at 351-52. The court concluded that 'even if there were any error in the timing of [Mr.] Campbell's probable cause hearing, such error was harmless and does not justify dismissal.' Id.
In Aqui, the detainee was not afforded a probable cause hearing within 72 hours of the Supreme Court's mandate remanding his case for further proceedings after it decided Young. The Aqui court found that the failure was error. However, the Aqui court stated: 'The question is the remedy. Had the trial court acted properly, it would have dismissed the petition and allowed the State to file a new one.' Aqui, 84 Wn. App. at 93.
The failure to hold a probable cause hearing within 72 hours does not require dismissal, absent evidence that the failure to hold the hearing adversely affected the outcome of the trial. Because Mr. Davenport failed to show that the failure to hold his probable cause hearing within 72 hours adversely affected the outcome of his trial, the trial court did not err by dismissing the petition without prejudice, and allowing the State leave to file a new petition. We affirm the judgment of the trial court.
Motion to Redesignate. The State moved this court for an order redesignating that portion of Mr. Davenport's appeal seeking review of precommitment orders impacting his second sexual predator case as a petition for discretionary review. The State further asks us to deny the petition and dismiss Mr. Davenport's appeal.
In his appeal, Mr. Davenport contends that the 1999 petition must be dismissed because it fails to allege a recent overt act. Mr. Davenport further contends that the trial court erred by ruling that the State did not have to prove that his mental disorder impairs his volitional control to the degree that he cannot control his impulses. Finally, Mr. Davenport argues that one of his predicate sexually violent offenses resulted from an involuntary plea of guilty. Therefore, he argues that a constitutionally defective conviction is not a qualifying sexually violent offense under RCW 71.09.020(6).
The appellate rules provide two methods of seeking review of a trial court's decision. One is review as a matter of right, called an 'appeal,' and the other is review by permission of the court, called 'discretionary review.' RAP 2.1(a). RAP 2.2(a) states the grounds on which a party may appeal a decision of the superior court as a matter of right. In relevant part, the rule provides that a party may appeal from a 'final judgment entered in any action or proceeding.' RAP 2.2(a)(1). A final judgment is one that settles all issues in the case. Rhodes v. D D Enters., Inc., 16 Wn. App. 175, 178, 554 P.2d 390 (1976); see also CR 54(a)(1).
The orders for which Mr. Davenport seeks review are not final orders.
In re Detention of Turay, 139 Wn.2d 379, 392-93, 986 P.2d 790 (1999), cert. denied, 121 S.Ct. 880 (2001); In re Detention of Albrecht, 106 Wn. App. 163, 167, 23 P.3d 1094 (2001). Because they are not final orders, we grant the State's motion to designate Mr. Davenport's second appeal as a discretionary review proceeding.
The court will grant discretionary review only:
(1) If the superior court has committed an obvious error which would render further proceedings useless;
(2) If the superior court has committed probable error and the decision of the superior court substantially alters the status quo or substantially limits the freedom of a party to act; or
(3) If the superior court has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by an inferior court or administrative agency, as to call for review by the appellate court.
RAP 2.3(b). Our Supreme Court has characterized this criteria as a 'heavy burden.' In re Dependency of Grove, 127 Wn.2d 221, 235, 897 P.2d 1252 (1995).
Recent Overt Act. Mr. Davenport alleges that the 1999 petition must be dismissed because it fails to allege a recent overt act. RCW 71.09.030 governs the allegations the State must make in a sexual commitment petition. For a person previously convicted of a sexually violent crime who is 'about to be released from total confinement,' the State must allege the person has been previously convicted of a sexually violent offense and is a sexual predator. RCW 71.09.030(1). For an alleged predator who 'has since been released from total confinement,' the State must allege the predator had committed a recent overt act. RCW 71.09.030(5).
RCW 71.09.060 governs the proof the State must provide in order to commit an alleged sexual predator. Under RCW 71.09.060(1), if on the date the petition is filed, the person was living in the community after release from custody, the State must also prove beyond a reasonable doubt that the person committed a recent overt act. In Albrecht, this court concluded that for purposes of chapter 71.09 RCW, 'a person 'released from total confinement' is [synonymous with] a person 'living in the community after release from custody." Albrecht, 106 Wn. App. at 170.
First, Mr. Davenport argues that the State erred by not alleging a recent overt act because at the time of the petition, he had completed his criminal sentence and was being detained under the civil commitment statute. Mr. Davenport reasons that because the court dismissed the petition, he should not have been incarcerated at the time the petition was filed. If he had not been incarcerated at the time that the second petition was filed, the State would have been required to allege and prove a recent overt act.
Mr. Davenport's argument misapprehends the law relating to the requirement of proof of a recent overt act. Under RCW 71.09.030(5), the State must allege a recent overt act only for those individuals who have been released from total confinement. While it is true that Mr. Davenport had finished his criminal sentence at the time the petition was re-filed, he was not released from total confinement and living in the community.
The State need not prove a recent overt act for '[a] person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement.' RCW 71.09.030(1). The clear language of the statute contemplates that an individual who 'at any time previously' is convicted of a sexually violent crime and remains in total confinement may be the subject of a petition that does not require proof of a recent overt act.
The reason the State need not prove a recent overt act for individuals who remain in total confinement was stated in Young: 'For incarcerated individuals, a requirement of a recent overt act under the Statute would create a standard which would be impossible to meet.' In re Personal Restraint of Young, 122 Wn.2d 1, 41, 857 P.2d 989 (1993). Because Mr. Davenport was in total confinement when the petition was re-filed, the State was not required to allege a recent overt act.
The court did not commit probable error.
Volitional Control. Mr. Davenport contends that the trial court erred by ruling that the State did not have to prove that his mental disorder impairs his volitional control to the degree that he cannot control his impulses.
The court relied upon In re Detention of Brooks, 94 Wn. App. 716, 973 P.2d 486, review granted, 138 Wn.2d 1021(1999) to resolve Mr. Davenport's contention. In Brooks, Mr. Brooks argued that in order to commit him, the State had to show that he had no volitional control. The Brooks court, relying upon Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), held that the State had to prove only that Mr. Brooks suffered from a mental abnormality, not that he lacked control. Brooks, 94 Wn. App. at 728-29.
In Kansas v. Hendricks, the United States Supreme Court found that a Kansas sexual predator statute did not violate substantive due process protections. In its analysis, the court noted that the Kansas commitment proceedings could be initiated only when a person was convicted of a sexually violent offense and had a mental abnormality or personality disorder which made the person likely to engage in predatory acts of sexual violence. Kansas, 521 U.S. at 357 (citing Kan. Stat. Ann. sec. 59-29a02(a) (1994)).
The Kansas statute defined 'mental abnormality' as 'a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.' Kansas, 521 U.S. at 352 (quoting Kan. Stat. Ann. sec. 59-29a02(b)).
The court determined that the Kansas Act required a finding of future dangerousness and linked that finding to the existence of a mental abnormality or personality disorder that makes it difficult, if not impossible, to control dangerous behavior. Kansas, 521 U.S. at 358. The court noted that it has sustained civil commitment statutes when they couple dangerousness with proof of an additional factor, such as mental illness or mental abnormality. Id. The court held:
[t]hese added statutory requirements serve to limit involuntary civil confinement to those who suffer from a volitional impairment rendering them dangerous beyond their control. The Kansas Act is plainly of a kind with these other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a 'mental abnormality' or 'personality disorder' that makes it difficult, if not impossible, for the person to control his dangerous behavior.
Id. In that case, Mr. Hendricks was diagnosed with pedophilia, and he admitted he could not control his urge to molest children. Id. at 360.
The court found that Mr. Hendricks's diagnosis as a pedophile, which qualified as a mental abnormality under the Kansas Act, 'plainly suffices for due process purposes.' Id.
In Washington, a 'sexually violent predator' is defined as any person who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.
RCW 71.09.020(1). 'Mental abnormality' is defined as 'a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to the commission of criminal sexual acts in a degree constituting such person a menace to the health and safety of others.' RCW 71.09.020(2).
The Washington statutes are quite similar to the Kansas statutes. Thus, we can apply the Kansas decision by analogy. The Kansas court did not require the state to prove that Mr. Hendricks had no volitional control, or that his mental disorder impaired his volitional control to the degree that he cannot control his impulses, as urged by Mr. Davenport in this case. Rather, the court found that the state had to prove that Mr. Hendricks suffered from a mental disorder, and the disorder was the type that made it difficult to control his dangerous behavior. Similarly, in this case, the State is not required to prove the degree to which the mental disorder affects the individual; instead, the State must prove that the mental disorder exists.
In this case, Mr. Davenport was diagnosed as having paraphilia, not otherwise specified: rape. Paraphilia is defined as 'recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other nonconsenting persons, that occur over a period of at least 6 months.' Clerk's Papers (CP) at 20 — Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition.
The psychologist who submitted an analysis of Mr. Davenport indicated that he 'appears to suffer from a mental abnormality, Paraphilia NOS: Rape, which predisposes him to engage in sexual acts with nonconsenting persons.' CP at 22. The psychologist also found that Mr. Davenport appears to suffer from an additional 'Personality Disorder NOS, with prominent antisocial features' that 'reflects a pervasive pattern of disregard for and violation of the rights of others.' CP at 22. The psychologist concluded that these two disorders combined increase the probability that Mr. Davenport will engage in sexual assaults if he is released from confinement. The psychologist added that Mr. Davenport is more likely than not to commit a sexual offense if he is released from confinement.
Mr. Davenport has been previously convicted of three sexually violent offenses. The State introduced evidence that Mr. Davenport suffers from two mental abnormalities — paraphilia, NOS: rape and personality disorder NOS with prominent antisocial features — that make it more likely than not that Mr. Davenport will re-offend if not confined.
The State offered proof that Mr. Davenport suffers from a mental abnormality and the abnormality is the type that makes it difficult to control his dangerous behavior. This is the showing required under Kansas and is the necessary predicate for determining whether an individual qualifies as a sexually violent predator. Contrary to Mr. Davenport's argument, the State was not required to prove that his paraphilia impairs his volitional control to the degree that he is unable to control his impulses.
The court did not commit probable error.
Mr. Davenport's 1992 Conviction. Mr. Davenport contends that the determination that he is a sexually violent predator is invalid because his 1992 conviction was plagued with constitutional problems. Specifically, Mr. Davenport contends that his plea was involuntary because he was not informed of some direct consequences including community placement, his one-year limitation on filing a collateral attack on the guilty plea, and that the State could file a petition under chapter 71.09 RCW.
In Young, the court refused to allow Mr. Young to challenge his commitment based on constitutional infirmities related to his previous convictions. In that case, Mr. Young contended that the trial court should have excluded evidence relating to his conviction in 1963 for four rapes because the jury instructions were flawed. In re Personal Restraint of Young, 122 Wn.2d 1, 54, 857 P.2d 989 (1993). The Young court ruled that a trial court may use prior convictions without proving constitutional validity in appropriate circumstances. Id.
The Young court applied State v. Ammons, 105 Wn.2d 175, 187, 713 P.2d 719, 718 P.2d 796 (1986), reasoning that an individual subject to civil commitment would have no greater constitutional protections than an individual in sentencing proceedings. In sentencing proceedings, the court follows the following rule:
'[A] prior conviction which has been previously determined to have been unconstitutionally obtained or which is constitutionally invalid on its face may not be considered. Constitutionally invalid on its face means a conviction which without further elaboration evidences infirmities of a constitutional magnitude.'
Young, 122 Wn.2d at 54-55 (quoting Ammons, 105 Wn.2d at 187-88). The Young court explained that, '[t]o hold otherwise would require appellate review of all prior convictions, which would 'unduly and unjustifiably overburden the [trial] court." Young, 122 Wn.2d at 55 (quoting Ammons, 105 Wn.2d at 188).
Mr. Davenport is asking this court to undertake a review of his previous commitment and plea. Under Young, this court is not required to perform an exhaustive review of whether Mr. Davenport's Alford plea was voluntary. Rather, we must only determine if his plea was invalid on its face or if it evidences infirmities of a constitutional magnitude.
In reviewing the plea, Mr. Davenport is correct that the plea itself contains no mention of the community placement requirement. However, as the trial court pointed out, the record reflects that the court orally advised Mr. Davenport of this requirement on two separate occasions. The judgment and sentence contained the same information. We conclude that nothing in the record indicates that the plea was invalid on its face or that the plea evidences infirmities of a constitutional magnitude. As such, we conclude that the plea was voluntary.
The court did not commit probable error.
Because Mr. Davenport has not satisfied the criteria for discretionary review, his petition is denied.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., BROWN, J.