Opinion
No. 28436-7-II
Filed: February 23, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 99-2-02367-3. Judgment or order under review. Date filed: 02/08/2002. Judge signing: Hon. Christine A. Pomeroy.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Sarah Sappington, Office of The Atty General, 900 4th Ave Ste 2000, Seattle, WA 98164-1076.
James A. Peterschick appeals an order declaring him a sexually violent predator and committing him to the Special Containment Center at McNeil Island. He argues that the trial court erred when it involuntarily committed him without finding that he had committed a recent overt act. The State concedes that In re Detention of Albrecht requires it to prove a recent overt act in this case. Accepting the State's concession, we vacate Peterschick's commitment and remand for a new trial in which the State must prove a recent overt act.
147 Wn.2d 1, 51 P.3d 73 (2002).
FACTS
Peterschick has a long history of sexually violent offenses. In 1982, he pled guilty to communication with a minor for immoral purposes in Spokane. Two years later, he pled guilty to aggravated assault in Idaho. In 1986, Peterschick pled not guilty by reason of insanity to third degree statutory rape; he was acquitted and committed to Eastern State Hospital for five years. He absconded in 1988 while on conditional release. The next year, Peterschick was convicted in Montana of sexual intercourse without consent and sentenced to confinement for fifteen years. He was released in 1997 and returned to civil commitment at Eastern State Hospital.
Eastern State Hospital conditionally released Peterschick in March 1999. In June of that year, he tested positive for cocaine use, was arrested, and was returned to the hospital.
In December 1999, while Peterschick was incarcerated at Eastern State Hospital, the State filed and served a petition to commit him involuntarily as a sexually violent predator under RCW 71.09. The trial court approved the petition at a trial on the pleadings.
Petershick appeals. The State concedes error in that it failed to prove that Petershick committed the requisite recent over act while on conditional release from Eastern State Hospital.
ANALYSIS
RCW 71.09 permits a trial court to involuntarily confine a sexually violent predator. RCW 71.09.060. ``Sexually violent predator' means 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(16).
A person's likelihood to engage in such acts must be evidenced by `a recent overt act if the person is not totally confined at the time the petition is filed.' RCW 71.09.020(7). ``Recent over act' means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.' RCW 71.09.020(10).
The Washington Supreme Court has held that a recent overt act is required where the offender has been released from confinement, but is incarcerated on the day the petition is filed on a charge that does not constitute a recent over act. In re Detention of Albrecht, 147 Wn.2d 1, 11, 51 P.3d 73 (2002). Albrecht was convicted of second degree child molestation, served a 48-month prison sentence, and was conditionally released to community supervision. In re Albrecht, 147 Wn.2d at 4. A month later, he was arrested and imprisoned for violating the terms and conditions of his release when he allegedly offered two boys 50 cents to follow him. In re Albrecht, 147 Wn.2d at 5.
The State filed a petition to commit Albrecht as a sexually violent predator while he was incarcerated. In re Albrecht, 147 Wn.2d at 5. After deposing the two boys, Albrecht asserted that the boys' testimonies were inadequate to establish a recent overt act. In re Albrecht, 147 Wn.2d at 6. The State agreed and amended its petition to delete the allegation of a recent overt act. In re Albrecht, 147 Wn.2d at 6. The Supreme Court held that Albrecht could not be declared a sexually violent predator under RCW 71.09.020(16) because the State had failed to prove that he committed a recent overt act while he was released. In re Albrecht, 147 Wn.2d at 11.
Similarly, Peterschick completed his imprisonment for a sexually violent crime and was released to community supervision. Like Albrecht, Peterschick was returned to confinement after he violated the terms of his release without having committed a recent overt act. Absent a recent overt act, the trial court could not find that Peterschick is a sexually violent predator under RCW 71.09.020(16). Albrecht, supra.
The trial court erred when it held that Peterschick was not released from `total confinement' when Eastern State Hospital conditionally released him to community supervision. ``Total confinement' means confinement inside the physical boundaries of a facility or institution operated or utilized under contract by the state or any other unit of government for twenty-four hours a day.' RCW 9.94A.030(42). An individual is not in `total confinement' when he has been conditionally released into community supervision. See State v. Gaines, 65 Wn. App. 790, 801, 830 P.2d 367 (1992) (distinguishing `community supervision' from `total confinement').
Accordingly, we accept the State's concession, vacate Peterschick's sexually violent predator determination and involuntary commitment, and remand to the trial court for the State to prove that Peterschick committed a recent overt act following his 1999 release from Eastern State Hospital.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and BRIDGEWATER, J., Concur.