                                                                         FILED
                                                                      MARCH 16, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )        No. 33810-0-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
CHARLES DAVID FLETCHER,                       )        PUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO,   J. -This court granted discretionary review of Charles Fletcher's

request for appointment of counsel at public expense to pursue a motion for conditional

release. Because Mr. Fletcher was not acting within the statutory process for obtaining a

hearing, he has not shown a basis for appointing counsel. We affirm the trial court's

decision declining to consider the request.

                                          FACTS

       On March 27, 2013, the trial court accepted Mr. Fletcher's plea of not guilty by

reason of insanity to three counts of second degree assault, one count of attempting to

elude a pursuing police vehicle, and one count of failure to remain at the scene of an

injury accident. The judgment and order of acquittal committed him to the care of

Eastern State Hospital and awarded him credit for 585 days spent in custody since the
No. 33810-0-III
State v. Fletcher


August 19, 2011 incident against the ten year maximum commitment period for the

assault charges. 1

       A periodic review, mandated by RCW 10.77.140, had been prepared on April 28,

2015. 2 However, on September 1, 2015, Mr. Fletcher, proceeding prose, filed with the

trial court a motion for conditional release 3 and for appointment of a public defender at

that hearing. The Spokane County Superior Court, the Honorable Salvatore (Sam)

Cozza4 responded to Mr. Fletcher's request by letter, indicating that Mr. Fletcher should

first direct his request to the Secretary of the Department of Social and Health Services

(DSHS) pursuant to statute. Judge Cozza included a copy of the relevant statute for Mr.

Fletcher's convenience.

       Considering Judge Cozza's letter a rejection of his two motions, Mr. Fletcher, still

pro se, filed a notice of appeal to this court. He also personally prepared and obtained an

order of indigency that appointed counsel for his appeal. Upon receipt of the notice of

appeal, the matter was referred to our commissioner to determine whether the matter was




       1
        Second degree assault is a class B felony subject to a ten year maximum
sentence. RCW 9A.20.02l(b); RCW 9A.36.021(2)(a).
       2
           See Appendix 2 to State's Memorandum Objecting to Acceptance of Review.
       3
        Our record does not reflect whether any prior application for conditional release
had been made.
       4
        We extend our condolences to the family of Judge Cozza, who unexpectedly
passed away January 14, 2017, at the untimely age of 61.

                                             2
No. 33810-0-111
State v. Fletcher


appealable of right or whether discretionary review should be granted. The parties filed

memoranda on both topics.

       Also treating Judge Cozza's letter as a denial of both motions, our commissioner

agreed that the decision was not appealable under RAP 2.2. The commissioner denied

discretionary review of the conditional release hearing decision in accordance with State

v. Howland, 180 Wn. App. 196,321 P.3d 303 (2014). However, the commissioner

concluded that this court should review whether Mr. Fletcher had a statutory right to

counsel to assist in preparation of a request for conditional release. The parties briefed

that issue and a panel of this court considered the matter without argument.

                                        ANALYSIS

       The sole issue presented is whether the statutory right to counsel provided to those

found not guilty by reason of insanity applies in these circumstances. The answer to that

question requires discussion of several sections of chapter 10.77 RCW. Mr. Fletcher

contends that the broad right to counsel found in the statute resolves the argument in his

favor, while the State contends there was no pending "proceedings" to which the right

attached.

       Chapter 10.77 RCW governs all matters relating to those believed to be criminally

insane, beginning with the standards for establishing insanity, and including mental

evaluations and competency restoration proceedings, trial processes, posttrial treatment,




                                             3
No. 33810-0-111
State v. Fletcher


and conditional and final release. Numerous provisions of the chapter are relevant to this

action.

          Critical to Mr. Fletcher's argument is RCW 10.77.020, the "Rights of persons

under this chapter," which states in part (and with emphasis added):

                 (1) At any and all stages of the proceedings pursuant to this chapter,
          any person subject to the provisions of this chapter shall be entitled to the
          assistance of counsel, and if the person is indigent the court shall appoint
          counsel to assist him or her.
                 (2) Whenever any person is subjected to an examination pursuant to
          any provision of this chapter, he or she may retain an expert or professional
          person to perform an examination in his or her behalf. In the case of a
          person who is indigent, the court shall upon his or her request assist the
          person in obtaining an expert.
                 (3) Any time the defendant is being examined by court appointed
          experts or professional persons pursuant to the provisions of this chapter,
          the defendant shall be entitled to have his or her attorney present.

RCW 10.77.140 requires that a current mental examination be performed at least every

six months. The court may appoint an expert for the committed person. DSHS must

provide a written notice to the trial court. Id.

          RCW 10.77.150 governs conditional release. 5 In pertinent part, again with

emphasis added, it provides:

                 (1) Persons examined pursuant to RCW 10.77.140 may make
          application to the secretary for conditional release. The secretary shall, after
          considering the reports of experts or professional persons conducting the
          examination pursuant to RCW 10.77.140, forward to the court of the county
          which ordered the person's commitment the person's application for


          5   RCW 10.77.200 provides a parallel process for final release.

                                                 4
No. 33810-0-III
State v. Fletcher


       conditional release as well as the secretary's recommendations concerning
       the application and any proposed terms and conditions upon which the
       secretary reasonably believes the person can be conditionally released.
                (2) In instances in which persons examined pursuant to RCW
       10.77.140 have not made application to the secretary for conditional
       release, but the secretary, after considering the reports of experts or
       professional persons conducting the examination pursuant to RCW
       10. 77 .140, reasonably believes the person may be conditionally released,
       the secretary may submit a recommendation for release to the court of the
       county that ordered the person's commitment.
                (3)(a) The court of the county which ordered the person's
       commitment, upon receipt of an application or recommendation for
       conditional release with the secretary's recommendation for conditional
       release terms and conditions, shall within thirty days schedule a hearing.
       The court may schedule a hearing on applications recommended for
       disapproval by the secretary.

             (3 )( c) The issue to be determined at such a hearing is whether or not
      the person may be released conditionally without substantial danger to
      other persons, or substantial likelihood of committing criminal acts
      jeopardizing public safety or security.
             (3 )( d) The court, after the hearing, shall rule on the secretary's
      recommendations, and if it disapproves of conditional release, may do so
      only on the basis of substantial evidence.

              (5) Any person, whose application for conditional release has been
       denied, may reapply after a period of six months from the date of denial.

Appellate review is authorized by RCW 10.77.230. "Either party may seek appellate

review of the judgment of any hearing held pursuant to the provisions of this chapter."

RCW 10.77.230.

      RCW 10.77.150(3)(a) clearly mandates a court hearing when the secretary

recommends conditional release, but leaves to the discretion of the trial judge whether to

hold a hearing when release is not recommended by the secretary. State v. Platt, 143

                                            5
No. 33810-0-111
State v. Fletcher


Wn.2d 242,248, 19 P.3d 412 (2001). The secretary's recommendation also is dispositive

on the proper allocation of the burden of proof. In those instances where the secretary

recommends conditional release, the prosecutor bears the burden of establishing that

conditional release is not appropriate. Id. In contrast, when the secretary does not

recommend conditional release, the person seeking conditional release bears the burden

of proving an entitlement to the conditional release. Id. at 251.

       The critical importance of the secretary's recommendation to the statutory scheme

is dispositive of Mr. Fletcher's argument. As noted previously, he bases his entire

contention on RCW 10.77.020 granting an attorney at "any and all stages of the

proceedings pursuant to this chapter." RCW 10.77.020(1). However, he cannot avail

himself of the statutory process when he is not complying with that process. The request

for counsel is not itself a stage of any proceeding under chapter 10.77 RCW. Requesting

the court to conduct a conditional release hearing without prior input from DSHS is not a

proceeding under the chapter. It is the request of the secretary, whether at the behest of

the defendant or of DSHS, that triggers a conditional release hearing and establishes the

burden of proof at that hearing.

       Instead of acting under the chapter, Mr. Fletcher was making his own proceeding

by asking the court to conduct a hearing outside of the statutory framework. There was

no basis for the trial court to apply the statutory right to counsel to an extra-statutory

proceeding. Indeed, by going outside the statutory proceedings, the request interrupted

                                               6
No. 33810-0-III
State v. Fletcher


the statutory process. At the time he wrote the court, Mr. Fletcher was but four months

removed from the prior periodic review and two months ahead of the next review. There

was no report suggesting that conditional release was appropriate. Mr. Fletcher was

without any basis for arguing for conditional release since he had no expert opinion to

support the request. Howland, 180 Wn. App. at 205 (trial court did not abuse discretion

in declining to schedule hearing where no expert or evidence supported the request).

       Here, the trial court attempted, albeit unsuccessfully, to gently nudge Mr. Fletcher

into following the proper course under the statute so that the court could consider the

merits of the request. 6 Once Mr. Fletcher had directed the request to the secretary, DSHS

was under a duty to report the request in conjunction with the next periodic review along

with any recommendation the department had on the subject. IfDSHS supported the

request, then the prosecutor bore the burden of proving it was unjustified. IfDSHS did

not support the request, then Mr. Fletcher bore that burden. If the court had followed Mr.

Fletcher's lead and stepped outside the statute, the parties would be in a no-man's land

where the burden of proof would be squarely up in the air. There is no statutorily


       6
            Our dissenting colleague redefines the question at issue contrary to the facts of
this case. Mr. Fletcher has never suggested that he needs an attorney to ask DSHS to
hold a conditional release hearing. As noted earlier, he asked the trial court to schedule
such a hearing and to appoint counsel to assist at that hearing. If Mr. Fletcher had asked
DSHS to schedule a hearing and requested counsel to assist in that endeavor, then we
would be facing the situation described in the dissent. Instead, we simply have a request
to the court, bypassing DSHS, for a hearing not contemplated by the statute. By
definition, there is no statutory proceeding to which his request for counsel can apply.

                                             7
No. 33810-0-111
State v. Fletcher


recognized process for doing what Mr. Fletcher sought to do, and accordingly, no basis

for the trial court to proceed under chapter 10.77 RCW.

       The trial court correctly denied the application. There is no basis to apply to the

court without first requesting a conditional release from DSHS. As Mr. Fletcher did not

invoke the statutory process, there was no authority for appointing counsel under chapter

10.77 RCW.

       Affirmed.




I CONCUR:




                                             8
                                       No. 33810-0-111

       FEARING, C.J. (dissenting)- Charles Fletcher, confined at Eastern State Hospital

as the result of insanity at the time of a crime, appeals the superior court's refusal to

appoint him counsel to assist him in obtaining conditional release from confinement and

the superior court's refusal to grant him a hearing on his request for release. This court

granted discretionary review on the question of whether a superior court should appoint

counsel for one committed to an institution by reason of pleading not guilty to a crime by

reason of insanity, when the confinee seeks to apply to the secretary of the Department of

Social and Health Services (DSHS) for conditional release.

       The majority ignores the question presented to the court for review and thereby

skirts the merits of Charles Fletcher's contention. Since the State did not ask to modify

our court commissioner's ruling on discretionary review, I would address the question

presented to this panel and hold that the superior court should appoint legal counsel to

Fletcher for purposes of applying for release to a less restrictive alternative. I conclude

that a person earlier adjudged mentally insane is entitled to appointment of counsel to

assist in applying for conditional release from confinement, since the application

constitutes a necessary and integral stage of the commitment proceeding and becomes a

pleading in the proceeding for purposes of a hearing for conditional release. Therefore, I

dissent.
No. 33810-0-111
State v. Fletcher


       On August 19, 2011, Charles Fletcher committed three crimes: assault in the

second degree, attempt to elude a police vehicle, and failure to remain at the scene of an

accident with an injured person. A sanity commission determined Fletcher to be insane

at the time of the crimes. On March 28, 2013, the trial court accepted Fletcher's plea of

not guilty by reason of insanity and entered a judgment and order of acquittal by reason

of insanity. Nonetheless, the trial court found Fletcher a substantial danger to others and

likely to commit further criminal acts. The trial court ordered Fletcher into the custody of

the secretary of DSHS and confined to Eastern State Hospital for medical and psychiatric

treatment until the availability of an appropriate lesser restrictive alternative.

       In September 2015, Charles Fletcher sent a letter to the Spokane County Superior

Court, by which letter he sought conditional release from Eastern State Hospital and

appointment of counsel, without cost to him, to represent him at any hearing addressing

conditional release. The letter declared:

              I am respectfully asking the Court for a conditional release in my
       case. Therefore, I am enclosing a motion to be filed with the Court
       requesting a hearing.
              In addition, I am asking the Court to appoint a public defender to
       represent me at my hearing. A public defender was previously appointed to
       represent me in 2011. I am enclosing a Certificate of Indigency with my
       motion.

Clerk's Papers (CP) at 10. Fletcher enclosed, in his letter, a motion for conditional

release and for appointment of a public defender, which motion stated:




                                               2
No. 33810-0-III
State v. Fletcher


              Comes now the Defendant, CHARLES DAYID FLETCHER, and
       respectfully moves the Court for a hearing in Superior Court regarding a
       Conditional Release. This request is based upon the records and files
       herein as well as a letter from the undersigned.
              Finally, I am respectfully requesting that a public defender be
       appointed by the Court to represent me in this matter. I cannot afford a
       private attorney as I am currently detained at Eastern State Hospital and
       have no income.

CP at 11.

       In response to Charles Fletcher's letter, the superior court sent a letter to Fletcher

and attached a copy ofRCW 10.77.150. The letter declared:

               I have received your letter [of] September 4, 2015 in which you
       request a hearing to consider Conditional Release. I have attached a copy
       of the statute which indicates that the first step in this process is for the
       patient to apply to the Secretary of DSHS (I presume this can be done at
       Eastern State Hospital) for a Conditional Release.
               Once that has happened, the court can consider whether a hearing is
       necessary and can consider appointment of a Public Defender.

CP at 6.

       Charles Fletcher filed a notice of appeal. In the notice, he sought review of the

superior court's denial of his petition for conditional release and review of the superior

court's denial of his request for appointment of counsel. Our court commissioner

determined that Fletcher could not appeal as a matter of right either the denial of his

petition for conditional release or the superior court's failure to address his request for

counsel. Nevertheless, our court commissioner granted discretionary review of the

superior court's denial of counsel. The commissioner wrote:



                                              3
No. 33810-0-111
State v. Fletcher


               Specifically, in Mr. Fletcher's motion to the superior court, he asked,
       not only for a hearing, but also for a public defender, appointed by the
       court, to represent him. He asserted that because he was currently detained
       at Eastern State Hospital, he had no income. The court did not rule on his
       request for counsel. But under RCW 10.77.020(1), a person subject to the
       provisions of RCW 10.77 is entitled to the assistance of counsel. Without
       counsel here, Mr. Fletcher had no one to assist him to apply to the
       Department for conditional release, as the superior court directed him to do.
       Therefore, discretionary review of this matter is granted pursuant to RAP
       2.3(b)(3).

Commissioner' ruling, State v. Fletcher, No. 33810-0-111 at 2-3 (Wash. Ct. App.

Mar. 15, 2016) (footnote omitted). The court commissioner's ruling necessarily

implied that a panel of this court would address the issue of whether the superior

court should have appointed legal counsel to assist Charles Fletcher in applying to

the department for a conditional release. Neither party sought modification of the

commissioner's ruling.

       Charles Fletcher assigns error to two trial court rulings: ( 1) the refusal to appoint

counsel, and (2) the refusal of a hearing on his motion for conditional release. An

evaluation of the first assignment of error begs a review of the criminally insane

procedure statutes found in chapter 10.77 RCW.

      Upon the superior court's commitment of one adjudged mentally insane to the

secretary of DSHS, the confinee may not be released except by court order after a

hearing. RCW 10.77.120(1). RCW 10.77.120 assumes continued hearings concerning

the confinement and treatment of the committed individual. Under RCW 10.77.140, the


                                              4
No. 33810-0-111
State v. Fletcher


secretary shall direct qualified professionals to examine the committed person every six

months for purposes of assessing possible release. The secretary, in tum, must forward

the professional report to the court of commitment. RCW 10. 77 .140.

       The confined person may seek conditional release from the secretary. RCW

10.77.150 prescribes:

              ( 1) Persons examined pursuant to RCW 10. 77 .140 may make
       application to the secretary for conditional release. The secretary shall,
       after considering the reports of experts or professional persons conducting
       the examination pursuant to RCW 10.77.140, forward to the court of the
       county which ordered the person's commitment the person's application for
       conditional release as well as the secretary's recommendations concerning
       the application and any proposed terms and conditions upon which the
       secretary reasonably believes the person can be conditionally released ....

              (3)(a) The court of the county which ordered the person's
       commitment, upon receipt of an application or recommendation for
       conditional release with the secretary's recommendation for conditional
       release terms and conditions, shall within thirty days schedule a hearing.
       The court may schedule a hearing on applications recommended for
       disapproval by the secretary.

             (c) The issue to be determined at such a hearing is whether or not the
      person may be released conditionally without substantial danger to other
      persons, or substantial likelihood of committing criminal acts jeopardizing
      public safety or security.

Note that, under RCW 10.77.150(1), the secretary eventually forwards the application for

release to the committing court.

       RCW 10.77.020 governs this court's review. The statute declares in relevant part:

             (1) At any and all stages of the proceedings pursuant to this chapter,
       any person subject to the provisions of this chapter shall be entitled to the

                                             5
No. 33810-0-III
State v. Fletcher


       assistance of counsel, and if the person is indigent the court shall appoint
       counsel to assist him or her. ...

              (3) Any time the defendant is being examined by court appointed
       experts or professional persons pursuant to the provisions of this chapter,
       the defendant shall be entitled to have his or her attorney present.

(Emphasis added.)

       Charles Fletcher has yet to apply to the secretary of DSHS for conditional release.

Under RCW 10. 77 .150, the application is a condition precedent to the filing of a motion

for conditional release. Despite failing to send an application to the secretary, Fletcher

seeks appointment of counsel. Fletcher did not explicitly ask the trial court for

appointment of counsel for purposes of preparing an application. Nevertheless, since the

application is the next step Fletcher must follow, we should consider his request to

include a request for counsel's assistance in preparing the application.

       Our court commissioner accepted review for purposes of determining the right to

counsel in completing the application. Therefore, this appeal raises the question of

whether the preparation and sending of an application to the secretary of DSHS

constitutes a "stage of the proceedings" under RCW 10.77.020(1), such that the trial court

should appoint counsel before the confined individual sends the application and so that

counsel could aid in preparing the application. Fletcher does not present the tautological

argument that the filing of the motion for appointment of counsel is a stage in the

proceedings that, by itself, warrants appointment of counsel.


                                             6
No. 33810-0-III
State v. Fletcher


       The majority correctly notes that Charles Fletcher never prepared an application

for conditional release for delivery to the DSHS secretary. The majority then mistakenly

reviews the case under the assumption that Fletcher will not prepare an application. In

essence, the majority refuses to review whether the superior court should appoint legal

counsel to assist Fletcher in applying for conditional release because Fletcher has not

applied for conditional release. Such reasoning belongs in war novels, not in legal

opm1ons.

       The majority claims this dissent redefines the issue presented by the facts, but the

dissent instead answers the question framed by the court commissioner when granting

review. Our court commissioner recognized the circular reasoning the majority now

employs and granted discretionary review on the question of whether the superior court

should appoint counsel to assist Charles Fletcher in his conditional release application.

RAP 17.7 reads, concerning commissioner rulings:

               An aggrieved person may object to a ruling of a commissioner or
       clerk, including transfer of the case to the Court of Appeals under rule
       17 .2(c), only by a motion to modify the ruling directed to the judges of the
       court served by the commissioner or clerk. The motion to modify the
       ruling must be served on all persons entitled to notice of the original motion
       and filed in the appellate court not later than 30 days after the ruling is
       filed.

RAP 17.7 suggests that a commissioner's ruling, including a ruling granting discretionary

review, is final unless challenged within thirty days. Neither the State or Charles Fletcher

challenged our commissioner's grant of discretionary review. Therefore, we should

                                             7
No. 33810-0-III
State v. Fletcher


address the question on which our commissioner granted review. The majority writes its

opinion as if it addresses the question on review, but it refuses to assume, as the grant of

review assumes, that Fletcher is in the process of completing an application and thus

following the statutory procedure.

       The majority's insistence on Fletcher applying for release before the superior court

may address his request for counsel actually disassembles the majority's conclusion. The

majority's ruling emphasizes the critical nature of the application as part of the process of

a release from confinement. By this emphasis, the majority illustrates the importance of

appointing counsel for assistance in completing the application. The majority also shows

that the application is a stage in the proceedings.

       This court knows little about the process of applying to the secretary ofDSHS for

conditional release from confinement after being adjudged criminally insane. WAC 388-

875-0090(1) reads: "Any person committed to the secretary as criminally insane may

make application to the secretary for conditional release." The regulation does not

prescribe the method of applying or advise that the confinee must complete a particular

application form. Since the secretary will review any application toward the end of

determining conditional release and the secretary will eventually file the application with

the court, we assume the confinee will benefit by counsel's assistance. The veracity and

persuasiveness of the application could impact the secretary's decision as to whether to

recommend conditional release.

                                              8
No. 33810-0-III
State v. Fletcher


       The State argues that Charles Fletcher's request sent to the trial court for

appointment of counsel and for conditional release is not "a proceeding" under the

meaning ofRCW 10.77.020(1), but merely the filing of a prose motion. Therefore,

according to the State, the statute does not compel appointment of counsel. Presumably

the State also contends that the application to the secretary of DSHS for release is not a

"proceeding" within the meaning ofRCW 10.77.020(1). The State understandably

worries about unlimited access to counsel for those adjudged criminally insane because

of the cost to the State of this unrestricted use of counsel.

       The State forwards two discrete arguments arising from the language of RCW

10.77.020(1): (1) "stages" should be limited to critical stages, and (2) "proceedings"

should be limited to legal proceedings. By the former argument, the State imports the

concept of "critical stages" from constitutional protections under the criminal law. "The

Sixth Amendment right to counsel attaches at a critical stage of a criminal proceeding

which occurs after the formal initiation of criminal proceedings involving an actual

confrontation between a representative of the state and the defendant." 12 ROYCE A.

FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 3206,

at 800 (3d ed. 2004 ). The State provides no authority for employing this Sixth

Amendment standard, and, given RCW 10.77.020(1)'s language, I reject this argument.

The legislature could have, but chose not to, use the adjective "critical." Anyway, since




                                               9
No. 33810-0-III
State v. Fletcher


an application for conditional release is a condition precedent to release, the application

can be considered a critical stage.

       RCW 10.77.020(1) also does not employ the modifier "legal" to the word

"proceeding." The absence of the term supports my conclusion. The omission of the

word "legal" suggests the legislature desired appointment of counsel for "stages" other

than filing of court pleadings or appearances at court hearings. Nevertheless, as already

noted, the application eventually becomes a pleading in court. Therefore, the application

is part of the legal proceeding.

       The State also asks that this court determine that filing a motion in order to begin a

proceeding is not a stage in a "legal proceeding." The State continually relies on the pro

se nature of Charles Fletcher's motion to argue that Fletcher had no right to appointed

counsel. I disagree. Denial of counsel on the basis that the request is made by someone

without counsel is nonsensical, if not Kafkaesque. The State provides no legal authority

for the argument that commencement of the legal process is not part of the legal

proceeding.

       To repeat, RCW 10.77.020(1) proclaims, in part: "At any and all stages of the

proceedings pursuant to this chapter, any person subject to the provisions of this chapter

shall be entitled to the assistance of counsel. ... " Chapter 10.77 RCW nowhere defines

the term "stages of the proceedings" or the term's constituent words "stages" and

"proceedings."

                                             10
No. 33810-0-III
State v. Fletcher


       In another context when construing the term "agency proceeding," this court

discussed definitions of the word "proceeding" from Black's Law Dictionary and a

general dictionary. Muckleshoot Indian Tribe v. Department ofEcology, 112 Wn. App.

712, 727-28, 50 P.3d 668 (2002). Webster's Third New International Dictionary defined

"proceeding" simply as "a particular way of doing or accomplishing something" and "a

particular action or course of action." Muckleshoot Indian Tribe v. Department of

Ecology, 112 Wn. App. at 728 (quoting WEBSTER'S THIRD NEW INTERNATIONAL

DICTIONARY 1807 (1990)). Black's Law Dictionary 1398 (10th ed. 2014) now defines

"proceeding" as:

              proceeding 1. The regular and orderly progression of a lawsuit,
       including all acts and events between the time of commencement and the
       entry of judgment. 2. Any procedural means for seeking redress from a
       tribunal or agency. 3. An act or step that is part of a larger action. 4. The
       business conducted by a court or other official body; a hearing ....

               "' Proceeding' is a word much used to express the business done in
       courts. A proceeding in court is an act done by the authority or direction of
       the court, express or implied. It is more comprehensive than the word
       'action,' but it may include in its general sense all the steps taken or
       measures adopted in the prosecution or defense of an action, including the
       pleadings and judgment. As applied to actions, the term 'proceeding' may
       include-(1) the institution of the action; (2) the appearance of the
       defendant; (3) all ancillary or provisional steps, such as arrest, attachment
       of property, garnishment, injunction, writ of ne exeat; (4) the pleadings; ( 5)
       the taking of testimony before trial; (6) all motions made in the action; (7)
       the trial; (8) the judgment; (9) the execution; (10) proceedings
       supplementary to execution, in code practice; ( 11) the taking of the appeal
       or writ of error; (12) the remittitur, or sending back of the record to the
       lower court from the appellate or reviewing court; ( 13) the enforcement of
       the judgment, or a new trial, as may be directed by the court of last resort."

                                             11
No. 33810-0-III
State v. Fletcher


       Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure
       3-4 (2d ed. 1899).

In Muckleshoot Indian Tribe, this court adopted the more general definition found in the

lay dictionary in part because the legislature did not define "proceeding" in the state

Administrative Procedure Act, chapter 34.05 RCW.

       I emphasize the ongoing nature of the proceedings against one adjudged mentally

insane. The court that entertained the plea of not guilty by reason of insanity continues to

oversee the commitment to DSHS. RCW 10.77.150(1). The court of commitment

periodically receives reports from the DSHS secretary of the mental health condition of

the confinee. RCW 10.77.140. Thus, when a confinee applies for release, a

"proceeding" is already pending. Charles Fletcher's request for counsel did not precede

or initiate a proceeding.

       I further note that the application for release to the DSHS secretary is critical to

the process of conditional release. The secretary, after directing an examination of the

confinee, forwards the application, along with the secretary's recommendation, to the

court. RCW 10.77.150(1). Thus, the application becomes a pleading in the mental health

commitment proceeding. The conditional release requires court approval. Thus, the

application becomes a necessary and integral stage in the mental health commitment

proceeding.

       Subsection (3) ofRCW 10.77.020 expressly declares that the court should appoint


                                             12
No. 33810-0-III
State v. Fletcher


counsel to be present when the State examines the confinee for purposes of release. One

might argue that, since the legislature expressed the desire for counsel's assistance during

the examination, the legislature's failure to expressly require appointment of counsel for

the preparation of the application means the legislature lacked the desire for use of

counsel in the latter setting. I disagree. The legislature likely wanted to insure, in the

context of criminal insanity commitments, that courts would not fail to allow counsel's

presence at examinations. The statute does not otherwise limit the stages to which the

right to counsel attaches.

       In re Detention of Kistenmacher, 163 Wn.2d 166, 178 P.3d 949 (2008), supports

my conclusion. In Kistenmacher, our state high court held that an alleged sexually

violent person held a statutory right to counsel at a forensic examination under chapter

71.09 RCW. RCW 71.09.050(1) then read:

              At all stages of the proceedings under this chapter, any person
       subject to this chapter shall be entitled to the assistance of counsel.

Note that the statute in our appeal, RCW 10.77.020(1), reads more emphatic because of

the wording: "any and all stages." (Emphasis added.) The Kistenmacher court noted that

use of the phrase "all stages of the proceedings" seemed broader than employment of the

sole word "proceedings." The court then analyzed the statutory scheme to determine

specific events in the sexually violent person commitment process, one of which was a

statutorily mandated examination. Although the examination did not encompass an event


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State v. Fletcher


inside the courtroom, the examination was a stage in the proceedings. For purposes of

the present appeal, the legislature also statutorily mandated the criminally insane

confinee's application as part of the release proceeding.

       In response to the State's legitimate concern about an unlimited right to counsel

during commitment, I note that the statute allows appointment only for "stages" in a

proceeding. I only conclude that the preparation of an application for conditional release

is a "stage." On denial of an application by the court, the applicant may not reapply for

another six months. WAC 388-875-0090(4). I make no statement as to what else may

constitute a "stage in the proceedings." I would not allow permanent appointment of

counsel for the criminally insane while in commitment.

       Charles Fletcher also asks us to hold that the trial court denied him due process

when refusing to order the secretary of DSHS to develop a recommendation regarding

release and to conduct a hearing on Fletcher's request for conditional release. Our court

commissioner ruled that Fletcher could not appeal this assigned error. Our court

commissioner granted discretionary review only with regard to the denial of appointment

of counsel. Fletcher never moved to modify the court commissioner's ruling.

       I respectfully dissent.


                                          Fearing, C.




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