                                                                                                           FILED
                                                                                                 COURT OF APPEALS
                                                                                                         DIVISION Ii

                                                                                                2015 JUN — 4       Aid 8: 33

                                                                                                 STA :    0 ` 4"     i C'   J

                                                                                                 BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II

    In the Matter of the Detention of:                                              No. 45499 -8 -II




    BRENT PETTIS,                                                         PART PUBLISHED OPINION


                                        Petitioner.


           WoRSwIcK, J. =       Brent Pettis appeals his continued civil commitment to the Special


Commitment Center ( SCC) following a jury verdict in an unconditional discharge trial. He

argues that ( 1) the trial court erred under Frye' by admitting testimony based on the Structured

                Forensic Version ( SRA —
Risk Assessment —                      FV) tool                 at   trial, (2)   his commitment to the SCC


rather than the less restrictive Secure Community Treatment Facility (SCTF) violates his

substantive and procedural        due   process rights, (   3) the trial court impermissibly commented on

the evidence by instructing the jury to disregard Pettis' s expert' s statements about the law, (4) he

received ineffective assistance of counsel because his attorneys made no attempt to rebut the


State' s expert or to rehabilitate Pettis' s expert' s testimony, and ( 5) the trial court erred by

admitting evidence of what Pettis' s living circumstances would be if unconditionally discharged.



1
    Frye   v.   United States, 293 F. 1013 ( D. C. Cir. 1923).
No. 45499 -8 -II




In the published portion of this opinion, we hold that the trial court did not err by admitting

testimony based on the SRA —
                           FV tool under Frye. In the unpublished portion of the opinion, we

disagree with the remainder of Pettis' s assignments of error and affirm.


                                                            FACTS


          In 2002, Brent Pettis stipulated to an order committing him to indefinite total

confinement       in the Special Commitment Center ( SCC). In 2010, 2012, and 2013 annual reviews


     Pettis it   was concluded     that he   remained a                     violent predator ( SVP).       Some of these
of                                                          sexually


annual reviews opined that Pettis could be treated at a less restrictive alternative (LRA) such as


the Special Commitment Treatment                 Facility ( SCTF), while others did not.

          In 2011 Pettis     stopped     formal     sex offender         treatment at the SCC.     In 2013 he petitioned


for a trial to determine whether he could be unconditionally discharged from the SCC. The trial

court granted Pettis' s motion for a trial.


          After filing his petition for unconditional release, Pettis moved to " seek conditional

release    in the   alternative ...    during    the   unconditional release        jury trial."   Clerk' s Papers ( CP) at


100. The State opposed this motion to expand the scope of the unconditional discharge trial.

Pettis later withdrew this motion.


           Dr. Amy Phenix, retained by the State, evaluated Pettis. Dr. Phenix based her evaluation

of Pettis on, among other things, actuarial and clinical risk assessment tools, including the SRA-

FV. Dr. Phenix         concluded      that Pettis   continued       to   meet   the definition   of an   SVP. She also


opined     that he   was " appropriate     for   release   to   a   less   restrictive placement,   the SCTF[,]"   but he


was " not appropriate        for   unconditional release."              Suppl. CP at 404.




                                                                    2
No. 45499 -8 -II



       Shortly before the unconditional discharge trial was set to commence, Pettis moved the

court for a summary order placing him in the SCTF. He alleged that all of the experts who had

examined him thought an LRA, such as confinement at the SCTF, would be appropriate.


Beyond requesting transfer to the SCTF, Pettis did not provide the statutorily required details

about his proposed LRA. The trial court denied this motion.


       In preparation for trial, Pettis deposed two administrators at the SCC: administrative


services chief Cathi Harris and consulting psychologist and former SCC director Dr. Holly

Coryell. Both Harris and Dr. Coryell testified that it.was the general practice at the SCC not to


recommend for transfer to the SCTF any patient not currently in treatment.

       At the unconditional discharge trial, the State presented expert opinion testimony from

Dr. Phenix. In response to Dr. Phenix' s potential testimony about her evaluation of Pettis, which

was based partially on the SRA —
                               FV risk evaluation tool, the trial court held a Frye hearing. Dr.

Phenix testified that the SRA —
                              FV was widely accepted in the scientific community. At trial, the

trial court admitted Dr. Phenix' s testimony about the SRA —
                                                           FV.

        On the basis of the SRA —
                                FV and other evaluation tools, Dr. Phenix testified that Pettis

was likely to reoffend if unconditionally discharged. She testified that he was in a high risk

group when evaluated under either the SRA —
                                          FV or other risk assessment tools.

        At the time of trial, Pettis hoped to remain at the SCC for about 30 days if released, but

he had no fixed plans to do so. He also did not have fixed plans to obtain housing in the

community. Pettis moved in limine to exclude certain evidence relating to his release plans. He

moved to exclude evidence that he had no plans for where to live if released, and lacked a source

of income and a social support network. The State made an offer of proof outside the presence




                                                  3
No. 45499 -8 -II



of the jury that Pettis' s lack of housing or income were factors in Dr. Phenix' s opinion that Pettis

might lack structure and be likely to reoffend if released. The trial court ruled that Dr. Phenix

could testify to the relationship between risk of reoffending and a lack of structure. But the trial

court excluded      any   use of words such as "             homelessness," " destitute,"   and "   poverty."   Verbatim


Report of Proceedings ( VRP) at 255, 258 -59. Over Pettis' s objection, Dr. Phenix then testified

that support and structure were very important upon release, and that Pettis did not have a source

of income, a place to live, or a support network.

            Dr. Fisher testified as Pettis' s expert witness. On cross -examination, the State engaged in


the following questioning with Dr. Fisher:

            Q. Do you know what [ Pettis' s] housing arrangements are, if any?
            A. His housing arrangements are that the social worker will find a place for him to
            go. They' re not going to just kick out of the SCC with 20 bucks for a bus ticket.
            Q. This is speculation that they will find him a place to live?
            A. No, that'      s   the plan.   I don' t think that —I
                                                              mean we know that if he were to be
            released after this trial, he has to stay in the SCCfor a minimum of30 days for the
            community     notification process           to   happen.     So I —I think that' s enough time to
            obtain his SSI for disability, get him hooked up with medical insurance providers,
            and find a place to live with the assistance of the social worker.


VRP    at   1055 -56 (   emphasis added).          The State began to impeach Fisher on his understanding of

                                          Act2 (
the   Sexually   Violent Predator                  SVPA), and Pettis objected.


            Outside the presence of the jury, Pettis' s attorneys told the trial court that Dr. Fisher was

 testifying based        on   discussions he'      s   had   with us,"   during which the attorneys appear to have

told Fisher that SVPs remained in custody for 30 days after release. After hearing argument

from both parties about whether the court should permit the State to continue to cross -examine




2 Ch. 71. 09 RCW.


                                                                    4
No. 45499 -8 - II



Fisher   about   the law, the   court concluded, "          I' m going to instruct the jury that Dr. Fisher' s last

comments on       stating   what   the   law is   was    inaccurate, to disregard it." VRP at 1065. Then, the


trial court instructed the jury as follows:

         Okay. I' m going to give you an instruction. As you heard throughout this trial
         and particularly at the beginning, there will be times when the Court' s going to
         instruct you on the law. At the conclusion of this trial, I' m going to give you
         some additional instruction on the law. At this point, one comment I have to
         make is Dr. Fisher' s last statements about what the law was in Washington and
                                    to disregard. It                                 It   wa —and   disregard it.
         thehousing, you are                                    was not accurate.


         You may move on.

VRP at 1065 -66. Pettis did not object. On redirect examination, Pettis' s attorneys did not

question Fisher further about Pettis' s release plans.


         The   jury   answered " yes"      to the      question: "      Has the State proved beyond a reasonable


doubt that Brent W. Pettis         continues      to   be   a   sexually -violent   predator ?"   VRP at 1294.


Accordingly, the trial court entered an order committing Pettis to the SCC. Pettis appeals.

                                                            ANALYSIS


                                                       FRYE CHALLENGE


         Pettis argues that the trial court erred by allowing the State' s expert witness to testify

based on the Structured Risk Assessment–Forensic Version (SRA –FV) tool, because it was a

novel risk assessment that did not meet the test in Frye v. United States, 293 F. 1013, 1014 ( D. C.

Cir. 1923).      We disagree.


A.       Standard ofReview

          Our review of the admissibility of evidence under Frye is de novo, involving a mixed

question   of law     and   fact. State   v.   Copeland, 130 Wn.2d 244, 255, 922 P. 2d 1304 ( 1996). We


undertake " a searching review which may extend beyond the record and involve consideration of


                                                                    5
No. 45499 -8 -II



scientific   literature   as well as    secondary legal authority."           Copeland, 130 Wn.2d at 255 -56. We


may consider materials that were unavailable until after the Frye hearing. Copeland, 130 Wn.2d.

at 256.


          After determining that evidence satisfies the Frye test, we evaluate the trial court' s

admission of that evidence under ER 702. Copeland, 130 Wn.2d at 256. We review the trial


court' s decision whether to admit expert testimony under ER 702 for an abuse of discretion.

State v. Green, 182 Wn. App. 133, 146, 328 P. 3d 988, review denied, 337 P. 3d 325 ( 2014).

Expert testimony is       admissible under       ER 702 "[ i] f scientific, technical, or other specialized


knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue."


Such testimony is generally helpful to the trier of fact when " it concerns matters beyond the

common       knowledge     of   the   average   layperson     and    does   not mislead   the   jury."   State v. Thomas,


123 Wn.      App.   771, 778, 98 P. 3d 1258 ( 2004).           As long as helpfulness is fairly debatable, a trial

court does not abuse its discretion by allowing an expert to testify. Miller v. Likins, 109 Wn.

App.   140, 147, 34 P. 3d 835 ( 2001).          And even where the helpfulness of expert testimony is

doubtful,    we   favor admissibility. State       v.   King County         Dist. Court W. Div.,     175 Wn. App. 630,

638, 307 P. 3d 765, review denied sub nom. State v. Ballow, 179 Wn.2d 1006 ( 2013).


B.        SRA —
              FV Passes the Frye Test


          Courts in Washington adhere to the Frye test in evaluating the admissibility of novel

scientific evidence.       Copeland, 130 Wn.2d           at   261.    Under Frye, novel scientific evidence is


admissible only where it is based on methods that are generally accepted in the scientific

community. 293 F.          at   1014.   Testimony is     admissible under        Frye   where "(    1) the scientific theory

or principle upon which the evidence is based has gained general acceptance in the relevant



                                                                6
No. 45499 -8 -II




scientific community of which it is a part;[31 and (2) there are generally accepted methods of

applying the theory          or principle    in   a manner capable of   producing   reliable results."   Lake Chelan


Shores Homeowners Ass 'n              v.   St. Paul Fire & Marine Ins. Co.,   176 Wn. App. 168, 175, 313 P. 3d

408 ( 2013),        review   denied, 179 Wn.2d 1019, 318 P. 3d 280 ( 2014) ( quoting          State v. Sipin, 130

Wn.   App.         403, 414, 123 P. 3d 862 ( 2005)).      This standard does not require unanimity. Lake

Chelan Shores Homeowners Ass 'n, 176 Wn. App. at 176. But evidence is inadmissible under

Frye if there is a significant dispute among qualified scientists in the relevant scientific

community. Anderson             v.   Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 603, 260 P. 3d 857 ( 2011).


             We do not attempt to determine whether the scientific theory is correct; our review is

merely of whether the theory is generally accepted in the scientific community. Lake Chelan

Shores Homeowner 's Ass 'n, 176 Wn. App. at 175 -76. We may examine judicial decisions from

other jurisdictions, but the relevant inquiry is the general acceptance by scientists, not by courts.

State   v.   Cauthron, 120 Wn.2d 879, 888, 846 P. 2d 502 ( 1993), overruled in part on other grounds


by State v. Buckner, 133 Wn.2d 63, 65 -66, 941 P. 2d 667 ( 1997).

              1.    SRA —
                        FV Background


             The SRA —
                     FV was released in 2010 by Dr. David Thornton, who previously authored

other " static" risk assessment tools.4 VRP at 327. It is a " guideline for assessing the known



3 Pettis concedes that actuarial tools and clinical evaluations are generally admissible under Frye.
Thus, Pettis does not argue that the scientific theory or principle upon which risk assessment
tools are based lacks acceptance; he argues instead that the SRA —   FV tool lacks general
acceptance. We analyze only the SRA —
                                    FV tool, not risk assessment methods generally.
4 A " static" risk factor is one that does not change over time, whereas a " dynamic" risk factor
may change. VRP at 302. The major static risk assessment tools in use appear to be the Static -
99R and the Static- 2002R, both developed in part by Dr. Thornton.



                                                               7
No. 45499 -8 - II



dynamic    risk      factors that    predict   future   sexual re- offense."       VRP at 320. It is a " quantitative


measure" allowing psychologists to score risk factors and allowing them to " get an idea of the

presence of     dynamic       risk   factors in   a structured     way."       VRP at 320. Dr. Phenix used the SRA-


FV, among other tools, in her evaluation of Pettis as " a more precise way and structured way of

looking   at   the   presence of [risk]        factors,"   and to help identify " which base rates, or what I call

norms,   to    choose    to   identify the     re- offense rates    for   sexual re- offense."   VRP at 321.


          The SRA —
                  FV was based on a sample of sexual offenders called the " Bridgewater


Sample,"      which used       data from 1954 to 1989. VRP                at   333. Dr. Phenix testified that studies had


revealed that the same dynamic risk factors ( such as those tested in the SRA —
                                                                              FV) were

predictive for older samples, such as the Bridgewater Sample, and contemporary samples. This

suggests that the age of the sample upon which the SRA —
                                                       FV was built and tested did not


negatively affect its accuracy. At the time of development in 2010, the SRA —
                                                                            FV was cross -

validated on the Bridgewater Sample, but it had not been cross -validated since.


          Dr. Phenix testified that the inter -rater reliability of the SRA —
                                                                            FV was .55. 5 She

characterized this as " modest" reliability, but said that she hoped that in time, after more studies

had been done, the inter -rater reliability                of   the SRA -FV     would   improve. VRP   at   338. She


further testified that the statistical predictive accuracy of the SRA —
                                                                      FV was . 73, which was a

 very   acceptable predictive           accuracy," comparable to the older Static -99R and Static -2002R




5 " Inter -rater reliability " refers to the likelihood that different practitioners would reach the same
result through applying the tool. VRP at 338.



                                                                    8
No. 45499 -8 -II



tools. VRP at 341.         And the SRA –FV shows " significant incremental validity in improving the

risk assessment over use of            the Static -99R        alone."     Suppl. CP at 398.


         2. Acceptance of the SRA –FV in the Scientific Community

         At the time of the Frye hearing, Dr. Thornton had not yet published a peer- reviewed

article describing the SRA -FV. Dr. Thornton recommended the use of the SRA –FV " primarily

in   sex -offender evaluations where a person                  has been incarcerated for         a period of   time."   VRP at


327. Dr. Phenix testified at Pettis' s trial that the SRA –FV was " fairly widely used with my

colleagues," with     the       caveat   that   it   was a   relatively   new   instrument, " so it takes time to train all


the   folks   who evaluate sex offenders."               VRP at 328. She testified that " Dr. Thornton is a very

well -known researcher in the field, so [ the SRA –FV has] been fairly widely accepted in cases

where offenders      have been incarcerated for                a   lengthy period     of   time."    VRP at 340. Dr. Phenix


testified that the SRA –FV had been discussed in practitioners' discussion groups online, and she

summarized: "      My   colleagues are excited about                 it. It' s been   accepted      by —and most people    are —



are   using it." VRP       at   344.   She said that once an instrument shows " moderate predictability or

above,   then generally it' s       accepted         in my field." VRP at 344.


          At the time of the Frye hearing, California had adopted the use of the SRA –FV through

legislation. And Dr. Phenix testified that in Washington, " many                            of the evaluators are using the

SRA –FV." VRP         at   345.     She said she had testified about the SRA –FV in several jurisdictions,


and it had only been excluded once in New Hampshire under the Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 ( 1993) standard.




                                                                      9
No. 45499 -8 -II



           After the Frye hearing in 2013, California stopped using the SRA —
                                                                            FV without

explanation.6 It is unclear whether California stopped using the SRA —
                                                                     FV due to rejection by the

scientific community or for another reason.

           In December 2013, after Pettis' s trial, Dr. Thornton published a peer -reviewed article


describing            FV. David Thornton &
              the SRA —                                 Raymond Knight, Construction and Validation of

SRA —
    FV Need Assessment, SEXUAL ABUSE: A JOURNAL OF RESEARCH AND TREATMENT XX(X)

1 - 16 ( 2013).           FV has been described
                  The SRA —                               favorably      in   some   books: " For non -disabled


clients,             FV] ( Thornton, 2002) ...
           the [ SRA —                                 enjoy[ s] relative degrees of favor, depending on the

jurisdiction in   which each    is   used."   Robin J. Wilson &         David S. Prescott, Understanding and

Responding to Persons with Special Needs Who Have Sexually Offended, in RESPONDING TO

SEXUAL OFFENDING: PERCEPTIONS, RISK MANAGEMENT AND PUBLIC PROTECTION 128, 134

 Kieran McCartan,      ed.,   2014);   see also Alix M. McLearen et al., Perpetrators ofSexual

Violence: Demographics, Assessments, Interventions, in VIOLENT OFFENDERS: UNDERSTANDING

AND ASSESSMENT        216, 231 ( Christina Pietz,       et al., eds.,   2014) ( describing   the SRA —
                                                                                                     FV as a

 research- guided multistep framework for assessing the risk presented by a sex offender and

provides a systematic way of going beyond static risk classification ").

           One peer -reviewed article by a practitioner in the field criticizes the SRA —
                                                                                        FV' s approach.

Brian R. Abbott, The      Utility    ofAssessing    " External Risk Factors" When Selecting Static -99R

Reference Groups, 5 OPEN ACCESS JOURNAL OF FORENSIC PSYCHOLOGY, 89, 102 ( 2013).                             Dr.




6 Risk Assessment Instruments, CAL. STATE AUTHORIZED RISK ASSESSMENT TOOL
FOR SEX OFFENDERS COMM.,                      http: / saratso.
                                                      /        org /index.cfm? pid =467 ( last visited Apr. 22,
2015).




                                                           10
No. 45499 -8 -II




Phenix responded to this article in the Frye hearing: she acknowledged that " there was quite a bit

of criticism from a handful of experts that testify only for the defense in these cases, and Dr.

Abbott is   one of them."   VRP at 352. Dr. Fisher mildly criticized the SRA —
                                                                             FV in his evaluation

of Pettis: Dr. Fisher stated that the tool suffered from the shortcoming that it was based on an old

sample of offenders. But in his testimony at trial, Dr. Fisher conceded that " some" experts rely

on the SRA —
           FV and Dr. Fisher used the SRA —
                                          FV to score Pettis' s risk in his own evaluation.


       We hold that the SRA —
                            FV has been generally accepted in the scientific community. See

Lake Chelan Shores Homeowners Ass 'n, 176 Wn.          App.   at   175. The sources available, both at


the Frye hearing below and in the scientific literature, suggest that most practitioners accept the

SRA —
    FV as one of many useful tools to evaluate risk of future sexual offenses. Dr. Phenix

testified unequivocally that the tool was widely accepted in her field due to its good predictive

accuracy. And there does not appear to be a significant dispute about the acceptance of the

SRA —
    FV. There is some criticism from Dr. Abbott and Dr. Fisher, but the Frye standard does

not require unanimity. Lake Chelan Shores Homeowners Ass 'n, 176 Wn. App. at 176.

        We hold that the scientific theory or principle upon which the SRA —
                                                                           FV is based has

gained general acceptance in the relevant scientific community of which it is a part, and thus

passes the first prong of the Frye test.

        3. Accepted Methods ofApplying the SRA —FV

        Dr. Thornton released the SRA —
                                      FV at an Association for Treatment of Sexual Abusers


meeting, where he held trainings to assist practitioners in applying the tool. Typically,

evaluators use the SRA —
                       FV in conjunction with the older Static -99R tool. Dr. Phenix testified


that, in addition to the group of researchers who had been trained on the use of the SRA —
                                                                                         FV at


                                                  11
No. 45499 -8 -II



the time of its release, several hundred other researchers had been trained to use the tool. The


SRA —
    FV involves a coding form, which appears to be an integral part of the tool to standardize a

researcher' s assessment.




        Dr. Phenix' s testimony also suggests there are generally accepted methods of applying

the SRA —
        FV: it involves a specific training and a standard coding form. Pettis argues that the

 SRA —
     FV'    s   low reliability rating,   by   itself, renders it inadmissible   under   Frye."   Br. of


Appellant at 20. But Lake Chelan Shores does not support this conclusion. Division One of this


court in Lake Chelan Shores held that one factor of Frye admissibility is whether " there are

generally accepted methods of applying the theory or principle in a manner capable of producing

reliable results,"   but there is no numerical " cutoff' for reliability. See 176 Wn. App. at 175. Dr.

Phenix testified that the inter -rater reliability rating      was " modest,"    but that practitioners accepted


it due to its moderate predictability.

        We hold that there are generally accepted methods of applying the SRA —
                                                                              FV in a manner

capable of producing reliable results, and thus it passes the second prong of the Frye test. Thus,

we hold that the SRA —
                     FV passes the Frye test.


C.      ER 702: Trial Court Did Not Abuse Its Discretion


        We hold that the trial court did not abuse its discretion by admitting testimony based on

the SRA —
        FV. Under the deferential standard of ER 702, a trial court does not abuse its


discretion by allowing an expert to testify when the helpfulness of the expert' s testimony is fairly

debatable. Green, 182 Wn. App. at 146; Miller, 109 Wn. App. at 147.

        Here, Dr. Phenix' s testimony was helpful to the jury. She provided scientific, specialized

knowledge about SVPs' risk factors that would assist the jury in determining the likelihood that



                                                          12
No. 45499 -8 -II



Pettis would reoffend if released. Her opinion, based on multiple risk assessment tools, was


helpful to the jury by describing risk factors, risk assessment tools, and the likelihood of

reoffense   based   on   those tools.   We hold that the trial court did not abuse its discretion by

allowing Dr. Phenix to testify about the SRA- FV.

       Affirmed.


       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.

                                           DUE PROCESS CHALLENGES


        Pettis next argues that the SVPA, either on its face or as applied to him, violates his

substantive and procedural due process rights. We do not reach his constitutional arguments,


because they depend on unsupported allegations and an incorrect reading of the SVPA.

A.      Standard ofReview

        We review constitutional questions de novo. State v. McCuistion, 174 Wn.2d 369, 387,

275 P. 3d 1092 ( 2012). We presume that statutes are constitutional, and a challenger bears the


burden of proving otherwise beyond a reasonable doubt. McCuistion, 174 Wn.2d at 387; In re

Det. of Bergen, 146 Wn.        App.     515, 524, 195 P. 3d 529 ( 2008). It is a fundamental principle that


we refrain from deciding constitutional issues when a case can be decided on nonconstitutional




7 Pettis' s brief contains 27 unlabeled arguments and seven issues in a section entitled " Issues and
Assignments    of         Br. of Appellant at 1 - 4. The 27 arguments appear to be a summary of
                    Error."
the arguments in Pettis' s Argument section, and only some assign error to trial court actions. We
do not reach assignments of error and issues that were not adequately briefed.



                                                         13
No. 45499 -8 - II




grounds. Isla Verde Int' l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P. 3d 867

 2002).


B.        Statutory Scheme

          The SVPA defines an " SVP" 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( 18).        After the State has proven that the person is an SVP by a

preponderance of the evidence, the Department of Social and Health Services ( DSHS) must


place the person in a secure facility

          for   control, care, and          treatment   until such      time    as: (   a) The person' s condition has
          so changed that the person no longer meets the definition of a sexually violent
          predator; or ( b) conditional release              to   a   less   restrictive alternative ...   is in the best
          interest of the person and conditions can be imposed that would adequately
          protect the community.

RCW 71. 09. 060( 1);             see also   RCW 71. 09. 020( 7);         71. 09. 040. A "secure facility" is " a residential

facility for persons civilly confined under the provisions of this chapter that includes security

measures sufficient              to protect the community,"           including total confinement facilities such as the

SCC,     and    less   restrictive    facilities   such as   the SCTF. RCW 71. 09. 020( 15), ( 19), ( 16);


71. 09. 250( 1)(     a)(   i).   During civil commitment, SVPs are entitled to annual review procedures by

qualified professionals to ensure that they continue to meet the SVP criteria. RCW 71. 09.070.

          An SVP may obtain unconditional discharge under RCW 71. 09.090 under one of two

procedures. First, if the secretary of the DSHS determines that the SVP' s condition " has so

changed" that he or she no longer meets the definition of an SVP, the Secretary " shall authorize

the   person    to   petition     the court for ...     unconditional          discharge."    RCW 71. 09. 090( 1).    But




                                                                       14
No. 45499 -8 -II



  n] othing contained in this chapter shall prohibit the person from otherwise petitioning the court

for ...   unconditional         discharge    without    the secretary'   s approval."   RCW 71. 09. 090( 2)( a).       "   If the


person does not affirmatively waive the right to petition, the court shall set a show cause hearing

to determine whether probable cause exists to warrant a hearing on whether the person' s

condition        has   so changed   that ... [     h] e or she no longer meets the definition of a sexually violent

predator."        RCW 71. 09. 090( 2)(       a).   In other words, while the secretary may authorize the SVP to

file   a petition      for   unconditional   discharge    with   the court   under subsection (   1),   this section


imposes no restriction on an SVP' s right to file a petition for unconditional discharge without the


approval of the secretary under subsection (2).

          Alternatively, an SVP may obtain an LRA to total confinement under RCW 71. 09. 090,

following the same procedure required to petition for unconditional discharge. An LRA is

available when the SVP meets five criteria.8 RCW 71. 09. 090 provides the same two paths to a




8 The criteria are as follows:
            1) The person will be treated by a treatment provider who is qualified to provide
           such treatment in the state of Washington under chapter 18. 155 RCW;
            2) the treatment provider has presented a specific course of treatment and has
           agreed to assume responsibility for such treatment and will report progress to the
          court on a regular basis, and will report violations immediately to the court, the
          prosecutor, the supervising community corrections officer, and the superintendent
           of the special commitment center;
            3)  housing exists in Washington that is sufficiently secure to protect the
           community, and the person or agency providing housing to the conditionally
           released person has agreed in writing to accept the person, to provide the level of
           security required by the court, and immediately to report to the court, the
           prosecutor, the supervising community corrections officer, and the superintendent
           of the special commitment center if the person leaves the housing to which he or
           she has been assigned without authorization;
            4) the person is willing to comply with the treatment provider and all requirements
           imposed by the treatment provider and by the court; and



                                                                  15
No. 45499 -8 -II



determination that the SVP meets those criteria as it does for unconditional discharge. First,


under RCW 71. 09. 090( 1):


         If the secretary [ of DSHS] determines that ... conditional release to a less restrictive
         alternative is in the best interest of the person and conditions can be imposed that
         adequately protect the community, the secretary shall authorize the person to
         petition the court for conditional release to a less restrictive alternative.


Under this procedure, the SVP files a petition with the court, and the court then sets a hearing

within 45 days to determine whether the SVP meets the criteria in RCW 71. 09. 092. RCW

71. 09. 090( 1).


         But RCW 71. 09. 090( 2) provides in part:


         Nothing contained in this chapter shall prohibit the person from otherwise
         petitioning the court for conditional release to a less restrictive alternative .. .
         without    the secretary' s            If the person does not affirmatively waive the
                                       approval....

         right to petition, the court shall set a show cause hearing to determine whether
         probable cause exists to warrant a hearing on whether the person' s condition has so
         changed     that ...   conditional release to a proposed less restrictive alternative would
         be in the best interest of the person and conditions can be imposed that would
         adequately protect the community.

Thus, as with a petition for unconditional discharge, there are two paths to petition the court for a


less restrictive alternative. Ifthe secretary finds that conditional release is appropriate, the

secretary shall authorize the SVP to file a petition. But the SVP may, in any event, petition the

court without      the secretary' s approval.   RCW 71. 09. 090( 1), (   2).


          Relevant to Pettis' s appeal, one of the criteria for a court to order conditional release to


an LRA is that " housing exists in Washington that is sufficiently secure to protect the



           5) the person will be under the supervision of the department of corrections and is
          willing to comply with supervision requirements imposed by the department of
          corrections.

RCW 71. 09. 092.



                                                         16
No. 45499 -8 - II




community, and the person or agency providing housing to the conditionally released person has

agreed   in writing to      accept   the   person."   RCW 71. 09. 092( 3).   The trial court may not find

probable cause for an LRA trial unless the SVP provides the court a proposed LRA that meets


the   criteria   in RCW 71. 09. 092. RCW 71. 09. 090( 2)( d). In other words, the trial court is not


permitted to find probable cause to proceed with an LRA trial unless it appears that there is


statutorily compliant proposed housing that will accept the SVP. RCW 71. 09. 090( 2)( d).

          In any event, regardless of who begins the petition process or which type of release is

sought, the trial court may grant a new trial only " when there is current evidence from a licensed

professional" of either an " identified physiological change to the person, such as paralysis,


stroke, or dementia, that renders the committed person unable to commit a sexually violent act

and   this   change   is   permanent[,]"     or a " change in the person' s mental condition brought about


through positive response to continuing participation in treatment" indicating that the person

either no longer meets the definition of an SVP or meets the criteria for an LRA, as the case may

be. RCW 71. 09. 090( 4)( b).          Thus, under the statute, although either the DSHS or the SVP may

begin the process of seeking a trial for either unconditional discharge or an LRA, such a trial is

only available where there is evidence of either a physiological change or a change brought

about    by " continuing      participation    in treatment."   RCW 71. 09. 090( 4)( b)( ii).


C.        Allegations Underlying Pettis' s Claim Are Unsupported

          Pettis cites unsupported facts and misreads Chapter 71. 09 RCW to support his


constitutional arguments. Thus, we do not reach his constitutional arguments.


             Pettis' s argument depends on his allegation that under chapter 71. 09 RCW, the SCC


administration       is the "   exclusive gatekeeper"     to the SCTF,   and   that "[   o] nly an unwritten SCC



                                                             17
No. 45499 -8 -II




policy   prevents    Mr. Pettis from    being   transferred to the SCTF."           Br. of Appellant at 14. He


argues that the " court is powerless to step in if the gatekeepers at the SCC refuse to agree to the

person' s admission     to the SCTF."       Br. of Appellant at 14. These allegations form the basis of his


constitutional claims. But these contentions lack support from the statute and the record.


         As stated above, DSHS may make a finding that an SVP has " so changed" based on

treatment or physiological change that he either no longer meets the definition of an SVP, or that

conditional release     to   an   LRA ( such   as   the SCTF)     would    be   appropriate.   RCW 71. 09. 090( 1).   If


the DSHS makes such a finding, then it shall permit the SVP to petition the court for a trial.

RCW 71. 09. 090( 1).      But     subsection ( 2) states   plainly that. "[ n]    othing contained in this chapter

shall prohibit the person from otherwise petitioning the court for conditional release to a less

restrictive alternative or unconditional            discharge   without    the secretary'    s approval."   RCW


71. 09. 090( 2) (   emphasis added).      Thus, the statute plainly demonstrates that the SVP may petition

for conditional release to an LRA, regardless of whether the SCC administrators choose to

authorize such a petition.         RCW 71. 09. 090( 2). Pettis' s argument that the court is " powerless"


unless the SCC agrees is plainly contrary to the statute.

         Furthermore, even accepting for the sake of argument Pettis' s contention that both the

SCC and the SCTF would prevent Pettis from establishing probable cause for an LRA at the

SCTF so long as Pettis was not in treatment, the SCTF is not the only LRA available. Thus,

Pettis fails to show that an LRA is unavailable to him, even if the SCC is the " exclusive

gatekeeper" to the SCTF. Instead, an SVP may be moved to any LRA where the court finds that

 housing    exists   in Washington that is sufficiently           secure   to   protect   the community," among other



requirements.       RCW 71. 09. 092( 3).       Under the statute, secure community transition facilities ( one



                                                             18
No. 45499 -8 -II



type   of   LRA) " include      but are not limited to the [ SCTF9] and any community -based facilities

established under this chapter and operated by the secretary or under contract with the secretary."

RCW 71. 09. 020( 16).        And " community LRAs" are an option: under RCW 71. 09. 092( 3),

appropriate housing for an LRA can include residing with a member of the community, so long

as the statutory factors for an LRA are met. See RCW 71. 09. 345 ( discussing LRAs at an SVP' s

private residence).      Thus, the SCTF is just one of many potential LRAs. Even assuming for the

sake of argument that the SCTF would not accept Pettis because the SCC would not recommend

his transfer, other LRAs were not foreclosed to him.'°


            The   statute and   the record also    contradict   Pettis'   s argument    that "[ o] nly an unwritten


SCC policy        prevents   Mr. Pettis from    being   transferred to the SCTF."         Br. of Appellant at 14. He

bases this argument on depositions from administrators at the SCC, who suggested that the

practice at the SCC was not to recommend transferring any SVP who was not currently in

treatment. 11 But neither deposition supports Pettis' s allegation that " only" the unwritten SCC

policy prevented Pettis' s transfer to the SCTF. Instead, as stated above, whether or not the SCC

recommends an         LRA, the SVP may         petition   the court   for   an   LRA. RCW 71. 09. 090( 2). And




9
    The   proper noun "   Special Commitment Treatment              Facility,"    or SCTF, refers to the specific
facility    on   McNeil Island     operated   by   the DSHS. RCW 71. 09. 250( 1)(          a)(   i). This should not be
confused with " secure          community transition      facility." RCW 71. 09. 020( 16).

10 We note, however, that Pettis did not seek transfer to the SCTF, and the record before us
therefore does not establish that the SCTF would not have accepted him.

11 One SCC administrator testified that she believed Pettis was not being " considered" for the
SCTF because " he is         not   actively   engaged   in treatment      right now."    CP   at   283.   A consulting
psychologist at the SCC testified similarly that the SCC typically supports placement in the
SCTF for SVPs who are currently engaged in treatment, among other factors.

                                                             19
No. 45499 -8 -II



regardless of who begins the process of petitioning for an LRA, the court is not empowered to

grant an LRA trial unless the SVP has " so changed" either due to a physiological change or due


to ongoing treatment that      an   LRA is   appropriate.      RCW 71. 09. 090( 4)( b).    In other words, absent


a physiological change, the only permissible basis for the court to grant a trial on whether an

SVP should transfer to an LRA is that he has changed due to ongoing treatment. RCW

71. 09. 090( 4)( b).   It is undisputed that Pettis did not petition for an LRA until 2013, and that he

had   not participated   in formal treatment     since      2011.   The statute and the record directly

contradict Pettis' s argument that the SCC' s unwritten policy was the only barrier between him

and the SCTF or another LRA.


         Finally, Pettis argues that it was " undisputed that he can be safely treated" at the SCTF,

but this is   not supported   by the   record.   Br.   of   Appellant   at   16. Some experts supported Pettis' s


move to the SCTF, but others did not. Dr. Carla van Dam, who conducted the 2012 annual

review, wrote that placement at the SCTF would not be appropriate. And Dr. Daniel Yanisch,

who performed an annual review around the time of trial in 2013, opined that an LRA might be


appropriate but did not recommend the SCTF. Finally, the depositions from SCC staff, upon

which Pettis relies, demonstrate that the SCC staff did not believe the SCTF would be

appropriate for Pettis. Thus, the record does not support the assertion that it was undisputed that

the SCTF was appropriate for Pettis. And, as discussed below, this issue was not adjudicated


because Pettis did not properly seek an LRA trial.

         Pettis' s arguments about the unconstitutionality of the SVPA statutory scheme are

without merit because the allegations underpinning his argument are unsupported. Thus, we do




                                                             20
No. 45499 -8 -II



not consider the merits of his constitutional claim, because the facts as he presents them in his


argument are not supported by the statute or the record.

D.       Pettis Did Not Follow Statutory Procedure for Less Restrictive Alternative

         The State argues that Pettis did not follow the statutory procedure to obtain an LRA. We

agree.




         To obtain a trial on whether an LRA is appropriate, the SVP must petition the court for a

                           12
show cause      hearing.        RCW 71. 09. 090( 1), (   2).   At the show cause hearing, the trial court

determines whether probable cause exists to warrant a hearing on whether the SVP' s condition

has so changed that conditional release to an LRA is in the best interests of the SVP and the


community. RCW 71. 09. 090( 2)(            a).   The trial court is not permitted under the statute to find


probable cause for an LRA trial unless the SVP provides a proposed LRA placement that meets


the criteria in RCW 71. 09. 092. RCW 71. 09. 090( 2)( d).


          Here, Pettis did not comply with this statutory procedure. Rather than petitioning the

court for a show cause hearing and providing a proposed LRA placement, Pettis petitioned for an

unconditional discharge trial. He later moved to seek conditional release in an LRA as part of


the unconditional discharge trial, but withdrew that motion. Finally, shortly before his

unconditional discharge trial was set to begin, Pettis moved the court for a summary order to

compel his placement in the SCTF. At no point did Pettis provide a proposed LRA, apart from


merely requesting placement at the SCTF. This petition did not include the required details



12 As described above, the SVP may do this with or without the support of DSHS. RCW
71. 09. 090( 1), (   2).




                                                               21
No. 45499 -8 - II



complying with the statutory criteria for an LRA under RCW 71. 09. 092. The trial court properly

denied this motion.13 Thus, Pettis did not follow statutory procedures for the court to consider

granting him an LRA trial.

                                           COMMENT ON THE EVIDENCE


          Pettis next argues that the trial court impermissibly commented on the evidence by

instructing the jury to disregard portions of Dr. Fisher' s testimony. We disagree.

          We review de novo whether a judge impermissibly commented on the evidence. State v.

Levy,   156 Wn.2d 709, 721, 132 P. 3d 1076 ( 2006).                  An allegation that a judge impermissibly

commented on the evidence may be raised for the first time on appeal. Levy, 156 Wn.2d at 719-

20.


          The Washington Constitution prohibits judges from commenting on the evidence. WASH.

CONST.    art.   IV, § 16. Under this     prohibition, a     trial   court must not "`      convey[]   to the jury his or

her   personal attitudes     toward the   merits of    the   case'    or   instruct[]   a jury that `matters of fact have

been    established as a matter of   law."      Levy, 156 Wn.2d at 721 ( quoting State v. Becker, 132

Wn.2d 54, 64, 935 P. 2d 1321 ( 1997)).


          Here, the trial court instructed the jury to disregard " Dr. Fisher' s last statements about

what    the   law   was   in Washington   and   the   housing." VRP at 1066. The context of this instruction

is vitally important. During the State' s cross -examination of Dr. Fisher, Dr. Fisher began to

testify about his understanding of the SVPA. He testified that " if [Pettis] were to be released

after this trial, he has to stay in the SCC for a minimum of 30 days for the community



13 Pettis does not appear to challenge this denial.



                                                              22
No. 45499 -8 -II



notification process     to happen."   VRP   at   1055 -56.   Outside the presence of the jury, Pettis' s

attorneys said that Fisher was testifying based on the attorneys' representations about where

SVPs lived after release under the law. After hearing argument from both parties about whether

the court should permit the State to continue to cross -examine Fisher about the law, the court


decided to instruct the jury to disregard Dr. Fisher' s statements about the law.

       Pettis   argues   that "[ b] y referencing ` Dr. Fisher'   s   last   statements,'   and referring broadly to

 the housing,' the court erroneously suggested that Dr. Fisher had made a mistake about more

than just `what the   law   was   in Washington. '     Br. of Appellant at 23 ( quoting VRP at 1066).

Pettis argues that the court expressed a personal opinion about whether Pettis intended to stay at

the SCC after release. Pettis misstates the record.


        The record makes clear that Dr. Fisher' s understanding of Pettis' s " plan" consisted only

of Dr. Fisher' s erroneous understanding of the law. He testified that " we know that if he were to

be released after this trial, he has to stay in the SCC for a minimum of 30 days for the

community    notification process      to happen."    VRP at 1055 -56. Dr. Fisher' s testimony clearly

shows that he was testifying to his understanding of the law, not to his understanding of Pettis' s

factual plans. This is supported by the statements of Pettis' s attorneys outside the presence of

the jury: they told the trial court that " there' s nothing fixed in stone" about Pettis' s release plans,

and that " we are going to do everything we can to make sure" that he had time after release to

enroll in benefits and find housing. VRP at 1058. These statements, read together with Dr.

Fisher' s testimony that Pettis " has to stay in the SCC for           a minimum of         30 days,"   makes clear




that Dr. Fisher could not have been testifying about Pettis' s specific release plans. There were




                                                         23
No. 45499 -841




no such plans. Instead, he was testifying about his understanding of the requirements of the

statute.




           It is undisputed that the SVPA requires a former SVP, upon release, to remain at the SCC

for only 24 hours. RCW 71. 09. 080( 7).          The law contains no 30 -day requirement. Dr. Fisher

testified incorrectly that the law contained such a requirement. Any apparently factual

statements he made were premised on this incorrect understanding of the SVPA. And because

the trial court merely told the jury to disregard Dr. Fisher' s incorrect legal testimony about

housing, he neither expressed his personal opinion on the merits of the case nor instructed the

jury that   any   matter of   fact   was established as a matter of   law.   Levy,   156 Wn.2d   at   721.   Thus,


this instruction was not a comment on the evidence.


                                       INEFFECTIVE ASSISTANCE OF COUNSEL


           Pettis further argues that he received ineffective assistance of counsel because his


attorneys failed to rebut Dr. Phenix' s testimony about Pettis' s living situation, and because they

failed to rehabilitate Dr. Fisher after the trial court instructed the jury to disregard Dr. Fisher' s

testimony about the law. We disagree.

           To prevail on an ineffective assistance of counsel claim, the defendant must establish that


 1) defense counsel' s performance was deficient and ( 2) defense counsel' s deficient performance

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 ( 1984).     Failure to establish either prong is fatal to an ineffective assistance of

counsel claim. Strickland, 466 U. S. at 700.




                                                         24
No. 45499 -8 -II



       Our review of counsel' s performance is highly deferential. We strongly presume

reasonableness.    State    v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).            To rebut the


presumption of reasonableness, the defendant bears the burden of establishing the absence of any

  conceivable   legitimate tactic explaining        counsel' s performance.'        State v. Grier, 171 Wn.2d


17, 42, 246 P. 3d 1260 ( 2011) (      quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80

2004)).   And to establish prejudice, a defendant must show a reasonable probability that the

outcome would have differed absent the deficient performance. State v. Thomas, 109 Wn.2d


222, 226, 743 P. 2d 816 ( 1987).


A.     Failure To Rebut Dr. Phenix


       Pettis argues that his trial counsel was deficient for failing to rebut Dr. Phenix' s

 misleading   claim   that Mr. Pettis    would    be homeless   and    destitute if released." Br. of Appellant


at 26. Pettis misstates the record here; Dr. Phenix made no such claim. A search of the record

demonstrates that Dr. Phenix         never used    the term " homeless" or " destitute."     Nor did Dr. Phenix


testify before the jury that Pettis would lack a home if released: she testified that she based her

opinion in part upon Pettis' s need for " support, structure, and treatment when he goes out to the


community." VRP        at   406. She testified that some important aspects of the " structure" that


would help Pettis emotionally were housing and income. VRP at 547. And she testified that he

had not yet arranged for somewhere to live, nor for a source of income. But these statements did

not constitute a " claim     that Mr.   Pettis   would   be homeless   and   destitute if released;"   instead, they .

were a claim that he did not, at the time of trial, have housing arrangements, a source of income,

or other sources of support such as family and friend networks. Br. of Appellant at 26.




                                                           25
No. 45499 -8 - II



        Moreover, the record demonstrates that there was no evidence with which to rebut Dr.


Phenix' s claim that Pettis had no release plan. Pettis' s attorneys told the court that Pettis had no


plans for housing or income. Pettis' s brief alleges that the " SCC will generally hold a detainee

for 30 days    after release,"    and that " Mr. Pettis and his attorneys intended to take advantage of


that 30 -day   period,"   but his only support for that contention comes from Dr. Fisher' s mistaken

testimony about the law, and Pettis' s attorneys statements that they planned to try to help Pettis

stay at the SCC for 30 days. Br. of Appellant at 26. The record contains no evidence that such a

plan existed; instead, the record demonstrates that Pettis and his attorneys hoped such a plan


could be arranged later.


        Thus, because the record establishes that Pettis had no release plan, he fails to carry his

burden of demonstrating that there was no conceivable legitimate trial tactic behind his

attorneys'   failure to   rebut   Dr. Phenix'   s   testimony. Grier, 171 Wn. 2d at 42. There is a

conceivable legitimate trial tactic behind declining to highlight the fact that no release plan

existed. Because we hold that Pettis' s attorneys were not deficient for failing to rebut Dr.

Phenix' s testimony, this claim fails. Strickland, 466 U.S. at 700.

B.      Failure To Rehabilitate Dr. Fisher


        Pettis also argues that he received ineffective assistance of counsel because his attorneys


failed to rehabilitate Dr. Fisher after the trial court instructed the jury to disregard his incorrect

testimony about the law. We disagree.

        Because Pettis had no release plan, there was no evidence with which his attorneys could

have rehabilitated Dr. Fisher. And as stated above, there was a conceivable legitimate trial tactic


behind their decision not to highlight the lack of release plan by having Dr. Fisher testify further.



                                                            26
No. 45499 -8 -II




There is no evidence that Dr. Fisher had any knowledge of Pettis' s release plan; instead, he

appears to have had knowledge merely of Pettis' s attorneys' statements about the law, which

were incorrect. We hold that Pettis' s attorneys were not deficient for declining to rehabilitate Dr.

Fisher because no evidence existed with which to rehabilitate him. Thus, this claim fails.

Strickland, 466 U. S. at 700.


                                             EVIDENTIARY RULING


         Finally, Pettis argues that the trial court erred by admitting evidence that " Mr. Pettis

would    be homeless     and penniless upon    his   release."   Br.   of   Appellant   at   29. We disagree


because the trial court admitted no such evidence.


         We review a trial court' s evidentiary rulings for an abuse of discretion. In re Detention

of Post, 170 Wn.2d 302, 309, 241 P. 3d 1234 ( 2010).             Pettis argues that " the court erred by

admitting Dr. Phenix' s testimony that Mr. Pettis would be homeless and destitute if released."

Br.   of Appellant at   29.   But as stated above, Dr. Phenix did not testify that Pettis would be

 homeless"    or "   destitute."   Instead, she testified that he had no release plan, and that housing and

income, among other factors, were important aspects of the " structure" that Pettis would need to

succeed upon release. Thus, the evidence that Pettis contests was not admitted at trial, and we do

not consider his challenge.

         We hold that the SRA -FV tool passes the Frye test, and that the trial court did not abuse


its discretion by admitting testimony bases on the tool. We do not reach Pettis' s constitutional

arguments because they depend on unsupported allegations and an incorrect reading of the

SVPA and because Pettis did not follow statutory procedures in the trial court when he sought

placement in an LRA. In addition, we hold that the trial court did not comment on the evidence




                                                          27
No. 45499 -8 -II



and that Pettis received effective assistance of counsel. Finally, we do not consider Pettis' s

evidentiary challenge because the trial court did not admit the evidence complained of..

       Affirmed.




 We concur:




   hanson, C.




 Melnick, J.          J




                                                 28
