          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of                No. 72796-6-1
LANCE B. KLEINMAN.
                                                 DIVISION ONE
STATE OF WASHINGTON,

                         Respondent,
                                                 UNPUBLISHED OPINION



LANCE B. KLEINMAN,

                         Appellant.              FILED: March 14, 2016

       Schindler, J. — In 2001, Lance B. Kleinman entered into a written stipulation

and order of commitment as a sexually violent predator (SVP). In 2014, the trial court

denied Kleinman's CR 60(b)(11) motion to vacate the stipulation. Because Kleinman

fails to demonstrate that his allegations of an involuntary waiver and ineffective

assistance of counsel constituted extraordinary circumstances entitling him to vacate

the SVP petition, we affirm.

                                          FACTS

       In February 2000, the State filed a petition to commit Lance B. Kleinman as a

sexually violent predator (SVP) under chapter 71.09 RCW. In January 2001, just before

jury selection in his commitment trial, Kleinman entered into a written stipulation and

order of commitment. Kleinman stipulated that he is a "sexually violent predator" as
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defined in RCW 71.09.020 and met the requirements for commitment as an SVP under

RCW 71.09.060 beyond a reasonable doubt. In the stipulation, Kleinman admits he

"has committed and been convicted of two counts of Rape in the First Degree, both of

which constitute 'sexually violent offenses' as that term is defined in RCW 71.09.020;"

he "currently suffers from a mental abnormality as defined in RCW 71.09.020, to wit:

Paraphilia Not Otherwise Specified (Rape);" he "suffers from a personality disorder as

defined in RCW 71.090.020, to wit: Personality Disorder Not Otherwise Specified (with

Avoidant, Schizoid, Paranoid, and Anti-Social features);" and, as a result of his "mental

abnormality and personality disorder, he is likely to commit further predatory acts of

sexual violence if he is not confined in a secure facility." The stipulation and order of

commitment provided that Kleinman agreed to waive his right to a commitment trial and

to not contest his SVP status for 18 months. After 18 months, Kleinman was entitled to

a less restrictive alternative (LRA) trial if he submitted a plan identifying a certified sex

offender treatment provider, the proposed treatment plan, and the type of housing in

which he would reside.

       The parties agreed that Kleinman would not have to meet the show cause

standard for an LRA trial and that the State would not seek judgment as a matter of law.

If Kleinman was unable to submit the specified plan after 18 months, his right to an LRA

trial would continue until he was able to do so. The parties also agreed the version of

chapter 71.09 RCW in effect at the time of the stipulation would apply to the LRA trial,

thereby requiring the State to satisfy a higher burden of proof than required under later

statutory amendments.
No. 72796-6-1/3



         Kleinman acknowledged that he "has had read to him" the stipulation and related

commitment documents; that he discussed the documents with his attorney, understood

the documents, and had no unanswered questions; and that no one threatened or

coerced him into entering into the stipulation. Kleinman further acknowledged that he

understood he had the rights specified for the commitment trial and after commitment,

including the right "[t]o petition for release," and that by entering the stipulation, he was

"knowingly, voluntarily and intelligently waiving these rights until the [LRA] trial... is

held."


         In May 2002, Kleinman moved to withdraw his stipulation under CR 60(b)(5) and

(11), arguing it was void and legally insufficient following the United States Supreme

Court decision in Kansas v. Crane. 534 U.S. 407, 122 S. Ct. 867, 151 L. Ed. 2d 856

(2002). The trial court denied the motion. This court affirmed, noting among other

things that Kleinman had "knowingly and voluntarily entered into a valid stipulation" in

order to take advantage "of the benefits of existing civil commitment law." In re Pet, of

Kleinman, noted at 121 Wn. App. 1059, 2004 WL 1200077, at *2.

         In 2009, Kleinman filed a petition for an unconditional release trial under RCW

71.09.090(2)(a). Kleinman relied on the report of psychologist Dr. Luis Rosell. Dr.

Rosell stated Kleinman no longer met the definition of an SVP. Although Kleinman had

not yet requested an LRA trial, he argued the terms of the stipulation precluded him

from seeking unconditional release during only the first 18 months of his SVP

commitment. In support, Kleinman submitted the declaration of his attorney at the time

of the stipulation, Douglass McCrae. McCrae stated the parties never discussed

whether the stipulation would impair Kleinman's right to an unconditional release trial
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and McCrae told Kleinman that Kleinman "kept all the post trial rights that anybody else

had (including appeal) but that he got one extra post trial right."

       The trial court concluded the terms of the stipulation were unambiguous and

Kleinman gave up the right to petition for unconditional release until after the LRA trial

specified in the stipulation. The court ruled McCrae's declaration was inadmissible to

contradict the terms of the unambiguous language of the stipulation and dismissed the

petition for an unconditional release trial.

       A commissioner of this court denied Kleinman's motion for discretionary review,

and a panel of judges denied his motion to modify. In May 2010, the Supreme Court

commissioner denied Kleinman's motion for discretionary review.

       Kleinman has received multiple annual reviews since 2009. On September 29,

2014, following the most recent annual review, Kleinman filed a motion to dismiss the

SVP petition under CR 60(b)(5) and (11). In the alternative, Kleinman requested an

unconditional release trial. Kleinman argued the stipulation violated due process,

lacked consideration, and violated the contractual obligation of good faith and fair

dealing.

       The trial court denied the motion to dismiss. The court concluded the provisions

that lessened Kleinman's burden of obtaining an LRA trial, that ensured a jury could rule

on his LRA release, and that bound the State to a higher burden of proof provided

sufficient consideration to support the stipulation. The court further found that because

Kleinman had knowingly, intelligently, and voluntarily waived his right to petition

annually for unconditional release, the stipulation did not violate due process. The court

noted that under the terms of the stipulation, Kleinman was free to petition annually for a
No. 72796-6-1/5


show cause hearing once he satisfied the LRA trial condition. Finally, the court found

no evidence that the State acted contrary to its duties under the stipulation.

       Kleinman appealed. While his appeal has been pending, Kleinman requested an

LRA trial. The LRA trial is scheduled for August 2016.

                                        ANALYSIS


       Below, Kleinman filed a motion to dismiss the SVP petition under CR 60(b)(5)

and (11). On appeal, he argues the trial court erred in denying his motion under only

CR60(b)(11).

       We review the trial court's denial of a motion to vacate under CR 60(b) for a

manifest abuse of discretion. In re Pet, of Mitchell, 160 Wn. App. 669, 675, 249 P.3d

662 (2011). The trial court abuses its discretion "only if there is a clear showing that the

exercise of discretion was manifestly unreasonable, based on untenable grounds, or

based on untenable reasons." Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725

(1995). Our review is limited to the trial court's decision denying Kleinman's CR

60(b)(11) motion. See Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533

(1980) (an appeal from the denial of a CR 60(b) motion "is limited to the propriety of the

denial not the impropriety of the underlying judgment").

       Under CR 60(b)(11), the trial court may relieve a party from a final judgment for

reasons not covered by any other provision of CR 60(b). In re Marriage of Furrow, 115

Wn. App. 661, 673, 63 P.3d 821 (2003). CR 60(b)(11) is "a catch-all provision, intended

to serve the ends of justice in extreme, unexpected situations." In re Pet, of Ward, 125

Wn. App. 374, 379, 104 P.3d 751 (2005). Relief under CR 60(b)(11) is limited to

"extraordinary circumstances" relating to "irregularities extraneous to the action of the
No. 72796-6-1/6


court or questions concerning the regularity of the court's proceedings." In re Marriage

of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985). Errors of law do not justify

vacating a judgment under CR 60(b)(11). Furrow, 115 Wn. App. at 674.

         On appeal, Kleinman devotes virtually no argument to the specific allegations

that he raised in the trial court or the trial court's detailed resolution of those allegations.

Rather, he contends the trial court should have granted his CR 60(b)(11) motion

because (1) he did not make a knowing, intelligent, and voluntary waiver of his rights

when entering into the 2001 stipulation and (2) he was denied effective assistance of

counsel at the time of the stipulation. Kleinman asks this court to vacate the 2001

stipulation and commitment order or, in the alternative, order an unconditional release

trial.


         Kleinman's allegations of involuntary waiver and ineffective assistance of counsel

are essentially a collateral attack on the validity of the stipulation and the underlying

2001 order of commitment. Consequently, they do not fall within the scope of review of

an order denying a CR 60(b) motion. See Biurstrom, 27 Wn. App. at 450-51.

         In any event, Kleinman has made no showing that his allegations constitute

"extraordinary circumstances" warranting relief under CR 60(b)(11). Generally, "the

incompetence or neglect of a party's own attorney" does not justify relief in a civil

proceeding. Lane v. Brown & Haley. 81 Wn. App. 102, 107, 912 P.2d 1040 (1996). In

the case cited by Kleinman, Graves v. P. J. Tagqares Co., 94 Wn.2d 298, 300-04, 616

P.2d 1223 (1980), the defendant's attorney filed nothing in opposition to a summary

judgment motion, failed to appear at argument, failed to inform his client of the partial

summary judgment establishing liability, failed to present any evidence at trial, and
No. 72796-6-1/7


failed to advise his client of the decision awarding plaintiffs $131,200 in damages.

Under the circumstances, the court found the attorney's unauthorized surrender of his

client's substantial rights constituted extraordinary circumstances warranting vacation of

the judgment under CR60(b)(11). Graves, 94 Wn.2d at 301. Kleinman has not

identified any comparable egregious conduct here.

       Kleinman's closely related allegations of involuntary waiver and ineffective

assistance are based primarily on the 2009 declaration of the attorney who represented

him at the time of the 2001 stipulation. In his declaration, the attorney provides no

meaningful explanation for the belief that after 18 months, the stipulation did not

preclude Kleinman from seeking an unconditional release until he obtained an LRA trial.

Nor does the declaration provide anything more than conclusory allegations about what

the attorney may or may not have discussed with Kleinman during the stipulation

negotiations.

       Kleinman signed a written stipulation acknowledging the relevant documents

were read to him, he discussed those documents with his attorney, he understood the

documents, and he had no unanswered questions. The stipulation fully identified rights

Kleinman waived including the right to a commitment trial and the right "[t]o petition for

release." Kleinman acknowledged that he knowingly, voluntarily, and intelligently

waived these rights. Kleinman's acknowledgements and signature on the written

stipulation constitute strong evidence that his waiver was knowing, intelligent, and

voluntary. See In re Pet, of Scott, 150 Wn. App. 414, 426-27, 208 P.3d 1211 (2009)

(relying on criminal caselaw when reviewing motion to withdraw stipulation to civil

commitment).
No. 72796-6-1/8


          Under the circumstances, the record of Kleinman's allegations of involuntary

waiver and ineffective assistance of counsel during the stipulation negotiations is

insufficient to establish the extraordinary circumstances necessary for relief under CR

60(b)(11). The trial court did not abuse its discretion in denying Kleinman's motion to

vacate the 2001 stipulation, dismiss the SVP petition, or order an unconditional release

trial.1

          Affirmed.




                                                     jtlQ uiNeOftc^
WE CONCUR:




    I/ ^ok<* n| i ^J




         1 Because Kleinman fails to demonstrate extraordinary circumstances, we need not address the
State's contention that Kleinman's motion to vacate was not timely filed. CR 60(b); see Ward, 125 Wn.
App. at 380 (10 years is unreasonable amount of time to wait before filing CR60(b)(11) motion based on
a change in the law).
