           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,                      )
                                          )      No. 68873-1
                    Respondent,           )
                                          )      DIVISION ONE
      v.                                  )
                                          )
DONNA L. HOWLAND,                         )      PUBLISHED OPINION

                    Appellant.            )      FILED: March 24. 2014

      Spearman, A.C.J. — More than two decades after Donna Howland was found not

guilty offirst-degree murder by reason of insanity and confined to Western State
Hospital (WSH), she petitioned for conditional release under RCW 10.77.150. The trial
court dismissed the petition without a hearing, concluding it was frivolous because it
was unsupported by expert testimony. Howland appeals, contending the trial court erred
by requiring her to provide expert testimony in support of her petition. We conclude that
the trial court's order is not appealable as of right under RAP 2.2 and that discretionary

review under RAP 2.3 is not warranted. Accordingly, we dismiss Howland's appeal.

                                          FACTS

       In 1988 Donna Howland was charged with first-degree murder in the death of her

boyfriend. At that time, Howland had a three-year history of repeated hospitalization for
suicidal gestures and psychotic ideation. Prior to trial, she was diagnosed with chronic
No. 68873-1-1/2

paranoid schizophrenia and borderline personality disorder. Howland pleaded not guilty

by reason of insanity and was acquitted of the murder charge. The trial court found that

Howland presented a substantial danger to the public and a substantial likelihood of

committing felonious acts if not confined to a state mental hospital. It ordered Howland

committed to Western State Hospital (WSH).

       After nearly two decades of treatment, during which Howland made significant

progress, WSH recommended that she be conditionally released. In May 2005,

Howland was transferred to a group home in West Seattle. After struggling with

delusions, depression, and diabetes, she returned voluntarily to WSH for stabilization

from June to July 2009. In February 2010, after refusing to take her medication and

becoming increasingly agitated, Howland was involuntarily readmitted to WSH. The

court revoked her conditional release on May 28, 2010 and she has since remained at

WSH.

        On February 7, 2012, Howland filed a one page petition requesting a hearing on

the issue of her conditional release, but included no supporting declarations.1 The State

moved to dismiss, the petition as frivolous because Howland could not "present any

evidence whatsoever that supports a conditional release at this time." Clerk's Papers at

65.

        In support of its motion, the State submitted a letter, dated October 12, 2011, in
which Howland's primary therapist and attending psychologist opposed her conditional


        1Howland filed a previous motion for conditional release in March Of 2011 without the support of
WSH. The denial of that petition is not at issue in this appeal.
No. 68873-1-1/3

release. The State also presented a letter from the WSH Risk Review Board (RRB)

dated March 15, 2012, which noted ongoing symptoms of mental illness, including

paranoia, fixed delusions, and an unwillingness to fully engage in recommended

treatment. This letter also expressed the RRB's determination that "Howland is

considered a substantial danger to other persons, and she DOES present a substantial

likelihood of committing criminal acts jeopardizing public safety or security, unless kept

under further control by the court or other persons or institutions." CP at 83. The only

witness Howland intended to call at an evidentiary hearing was her then current primary

therapist, Clyde Travis, a member of the RRB and signer of the March 15, 2012 letter.

       The trial court observed that:

       The Risk Review Board found that given her fixed delusions, her acute
       psychotic symptoms and trouble managing emotional liability, Ms.
       Howland is a substantial danger to other persons and presents a
       substantial likelihood of committing criminal acts jeopardizing public safety
       or security. There has been no declaration provided by defense to the
       contrary....

CP at 108. It then concluded that "[w]ithout expert testimony to support

defendant's position, the court has no basis to conditionally release the

defendant. Without any such evidence, her petition is frivolous and will be

dismissed." ]d.

       Howland appeals.

                                        DISCUSSION

       As a threshold matter, we consider the appealability of the trial court's order

dismissing Howland's petition for conditional release. Howland contends that she is
No. 68873-1-1/4


entitled to appeal under RAP 2.2(a) or, in the alternative, this matter is appropriate for

discretionary review under RAP 2.3(b)(2). We disagree with both contentions.

                                         Right to Appeal

        Howland asserts that she may appeal the trial court's order dismissing her

petition as a matter of right under RAP 2.2(a). She observes that the rule provides for

appeal as of right of other types of mental health treatment orders and other orders

entered aftertrial and argues by analogy, that the order in this case is also appealable.2

Howland is incorrect.

        In general, the failure to mention a particular proceeding in RAP 2.2(a) indicates

the Supreme Court's intent that the matter be reviewable only by discretionary review

under RAP 2.3. In re of Chubb. 112 Wn.2d 719, 721, 773 P.2d 851 (1989). As Howland

notes, an order of commitment is listed as an appealable order under RAP 2.2(a), but

the rule makes no mention of an order denying a motion for the conditional release of a

person already committed. In light of Chubb, we conclude that the matter is not
appealable as a matter of right under RAP 2.2(a) (1)-(12).

        Howland also cites RAP 2.2(a) (13), which provides for appeal from "[a]ny final

order made after judgment that affects a substantial right." However, she fails to




        2For example, orders of incompetency (RAP 2.2(a)(7)); commitment (RAP 2.2(a)(8)); on motion
for new trial or amendment of judgment (RAP 2.2(a)(9); forvacation of judgment (RAP 2.2(a)(10); on
arrestofjudgment (RAP 2.2(a)(11); and denying a motion to vacate order ofarrest ofa person (RAP
2.2(a)(12).
No. 68873-1-1/5

establish that the superior court's order denying her motion for conditional release is a

"final order" within the meaning of the rule.3

        In re Petersen. 138 Wn.2d 70, 980 P.2d 1204 (1999), is instructive. In that case,

Petersen had been adjudicated a sexually violent predator (SVP) pursuant to chapter

71.09 RCW and was indefinitely committed to the Special Commitment Center for

treatment. Under the statute Petersen was entitled to annual reviews at which the trial

court was to consider whether there was probable cause to believe Petersen's condition

had so changed, he either no longer met the definition of an SVP or that he could be

conditionally released. RCW 71.09.090(2). If so, Petersen would be entitled to a full
evidentiary hearing on the issue. The trial court concluded that probable cause had not
been established and declined to set the matter on for a full hearing. Petersen sought

direct review in our Supreme Court, asserting a right to appeal as a matter of right under
RAP 2.2(a)(13). The Court rejected his assertion and expressly held that RAP

           3Howland's arguments to the contrary are unpersuasive. First, relying on Seattle First Nat'l Bank
v. Marshall. 16 Wn. App. 503, 508, 557 P.2d 352 (1976), Howland contends that, because the trial court's
order prejudicially affects a substantial right other than one which was adjudicated by an earlier judgment,
it is a "final order." Reply Brief at 3-4. Under certain circumstances, appeals from orders entered
subsequent to a final judgment are permitted if the orders prejudicially affect a substantial right other than
rights adjudicated by the previously entered final judgment. Seattle First Nat'l Bank. 16 Wn. App. at 506-
08; RAP 2.2(a) (13). However, that an order affects a substantial right is not enough to warrant review. In
addition, the order must determine the action or proceeding and prevent a final judgment therein,
discontinue the action, or otherwise be a "final order." ibid Thus, review of an order entered after
judgment is predicated upon a showing of (1) effect on a substantial right and (2) finality. Although
Howland arguably satisfies the first prong, she fails to satisfy the second. Howland cites State v. Klein,
156 Wn.2d 103, 124 P.3d 644 (2005); State v. Reid. 144 Wn.2d 621, 30 P.3d 465 (2001); State v. Haney,
125 Wn. App. 118, 104 P.3d 36 (2005); Statev. Sommerville. 86Wn. App. 700, 701, 937 P.2d 1317
(1997) toargue that appellate courts "routinely consider[] the denial of an insanity acquittee's application
for release to be an appealable order." Appellant's Reply Brief at 4. Her reliance on these cases is
misplaced. Klein, Reid, and Haney are inapposite because those cases concerned orders denying final
release, not conditional release. Howland is correct thatwe did review an order denying conditional
release in Sommerville, but because there is no indication that the issue of appealability was raised by
the parties, it is not binding precedent on this issue and we decline to follow it.
No. 68873-1-1/6

2.2(a)(13) was inapplicable because the trial court's order denying a full evidentiary

hearing "is not a final order after judgment in light of the court's continuing jurisdiction

over the committed persons until their unconditional release. In re Peterson. 138 Wn.2d

88 (citing RCW 71.09.090(3)). It disposes only of the petition before the trial court and

achieves no final disposition

       Similarly, here, the trial court has continuing jurisdiction over Howland under

RCW 10.77.200. Nor has the trial court's denial of her motion for conditional release

settled all the issues in her case. It disposed only of the petition before the court at that

time. It is evident from the record in this case that Howland's mental health status is not

static and she may, under RCW 10.77.1404 and RCW 10.77.150,5 move for conditional

release at least every six months. At which time, she may present new evidence

regarding the propriety of her release under the statutory criteria. See In re Dependency
of Chubb, 112 Wn.2d at 724. We conclude that Howland may not appeal as a matter of

right under RAP 2.2(a)(13) because the trial court's order denying her motion for

conditional release is not a "final order."

                                         Discretionary Review

        In the alternative, Howland seeks discretionary review of the order denying her

petition. Under RAP 2.3(b) discretionary review may only be accepted in the following


       4"Each person committed to a hospital or other facility or conditionally released pursuantto this
chaptershall have a current examination of his or her mental condition made by one or more experts or
professional persons at least once every six months ...."
        5"Any person, whose application for conditional release has been denied, may reapply after a
period of six months from the date of denial."
No. 68873-1-1/7


circumstances:


               (1) The superior court has committed an obvious error which
         would render further proceedings useless;

                (2) The superior court has committed probable error and the
         decision of the superior court substantially alters the status quo or
         substantially limits the freedom of a party to act;

               (3) The superior court has so far departed from the accepted
         and usual course of proceedings, or so far sanctioned such a
         departure by an inferior court or administrative agency, as to call for
         review by the appellate court; or

                  (4) The superior court has certified, or all the parties to the
         litigation have stipulated, that the order involves a controlling
         question of law as to which there is substantial ground for a
         difference of opinion and that immediate review of the order may
         materially advance the ultimate termination of the litigation.

         Howland contends review is appropriate under RAP 2.3(b)(2). A party

seeking discretionary review under that section must show that the trial court

committed probable error and that the decision substantially alters the status quo

or substantially limits the freedom of a party to act. Howland fails to satisfy either

prong.

                                      Probable Error

         Howland asserts that the trial court committed probable error when,

without a hearing, it summarily dismissed her petition for conditional release as

frivolous because it was unsupported by expert testimony. Howland claims this is

so because, as she sees it, the trial court abused its discretion when it wrongly
No. 68873-1-1/8

concluded that in the absence of expert testimony in support of the petition, it did

not have the discretion to conduct a hearing on the matter.

       The statute under which Howland petitioned for relief, provides that "[t]he

court may schedule a hearing on applications recommended for disapproval by

the secretary" [of the Department of Social and Health Services (DSHS)]

(emphasis added.)."6 See RCW 10.77.150(3)(a) (emphasis added). Thus, when

an individual petitions the court directly for conditional release without the

approval of the secretary, the court has discretion whether to convene a hearing.

State v. Piatt. 143 Wn.2d 242, 248, 19 P.3d 412 (2001). Because Howland's

petition was opposed byWSH, whether to grant a hearing on the petition was a

matter within the trial court's discretion.

        A trial court abuses its discretion when a decision is "'manifestly unreasonable, or

exercised on untenable grounds, or for untenable reasons. . ..' A discretionary decision

rests on 'untenable grounds' or is based on 'untenable reasons' if the trial court relies on

unsupported facts or applies the wrong legal standard; the court's decision is 'manifestly
unreasonable' if 'the court, despite applying the correct legal standard to the supported

facts, adopts a view 'that no reasonable person would take.'" Maverv. STO Indus.. Inc.,
156 Wn.2d 677, 684, 132 P.3d 115 (2006) (quoting State v. Rohrich, 149 Wn.2d 647,

654, 71 P.3d 638 (2003)).




        6 Under WAC 388-875-0090, either the Superintendent of the treatment facility (here, Western
State Hospital) or the director ofthe division is authorized to act on behalf of the Secretary of DSHS on
application for conditional release.
No. 68873-1-1/9

       The crux of Howland's argument is that the trial court's decision was untenable

because it applied the wrong legal standard when, in her view, the trial court concluded

it was without authority to hold a hearing on her petition because it was not supported

by expert testimony. Howland argues the only issue before the court was whether she

presented "substantial danger to other persons, or substantial likelihood of committing

criminal acts jeopardizing public safety or security." RCW 10.77.150(c). She contends

the trial court confused the issues of her mental health status, for which an expert

opinion is required, and of her dangerousness, which Howland argues is "not a

technical or scientific question that required expert testimony to determine."7 Reply Br.

of Appellant at 7.

       But, in this case, there is nothing untenable about the trial court's decision. In

support of its motion to dismiss the petition, the State offered a letter dated October 12,
2011, from Howland's primary therapist and attending psychiatrist and a letterdated

March 15, 2012 from the Western State Hospital Risk Review Board. Neither supported

Howland's petition for conditional release and the latter specifically opined that because

of her mental illness, Howland "is considered a substantial danger to other persons" and

presents "a substantial likelihood of committing criminal acts jeopardizing public safety
or security         " CP at 83. In light ofthis compelling evidence, it was not an abuse of
discretion to require Howland to present an expert opinion in support of her petition




         7We note Howland cites no authority for her assertion that expert testimony is unnecessary to
assist in the determination of whether a person who suffers from a mental illness presents a substantial
danger to others.
No. 68873-1-1/10

before conducting a full blown hearing. Therefore, we conclude there was no probable

error.


                               Limitation of a Party's Freedom to Act

         Even assuming probable error, Howland is not entitled to discretionary review

unless she can show that the trial court's decision meets the "effect prong" of the rule,

i.e., that the decision "substantially alters the status quo or substantially limits the

freedom of a party to act." RAP 2.3(b)(2). Howland contends that she satisfies this

requirement because the trial court's decision "means she may notfile a petition under
that statute in the future without presenting expert testimony." Reply Br. of Appellant at

7. Howland misperceives both the requirements of this prong of the rule and the trial

court's decision.

         Determining when the effect prong of RAP 2.3(b)(2) warrants accepting

discretionary review is not easily done. Read literally, nearly every trial court decision
alters the status quo or limits a party's freedom to act to some degree and, at least
arguably, substantially. But because motions for discretionary review, though frequently
made, are seldom granted, it is evident that a trial court order denying a motion to
dismiss, excluding a crucial piece ofevidence or granting a partial motion for summary
judgment is generally insufficient to satisfy the effect prong. Understanding the reason
the rule ties discretionary review to the effect of a trial court's decision on the status quo

or a party's freedom to act, is helpful in correctly applying the effect prong to the facts of
a particular case.




                                               10
No. 68873-1-1/11

       Former Supreme Court Commissioner Geoffrey Crooks observed in his law

review article on discretionary review:

       Subsection (b)(2) was intended to apply 'primarily to orders
       pertaining to injunctions, attachments, receivers, and
       arbitration, which have formerly been appealable as a matter of
       right.'

Geoffrey Crooks, Discretionary Review of Trial Court Decisions under the Washington

Rules of Appellate Procedure, 61 Wash. L. Rev., 1541, 1545-46. (1986) (quoting RAP

2.3 cmt. b). But because "[n]othing in subsection (b)(2) limits its applicability to cases

involving injunctions and the like[,]" practically applying the rule and drawing meaningful
distinctions between those cases appropriate for discretionary review and those that are

not is difficult. ]d. at 1546

       Crooks suggests that keeping the drafter's intentions in mind when considering
whether discretionary review is appropriate is helpful. He contends that discretionary

review should be accepted only when a trial court's order has, as with an injunction, an

immediate effect outside the courtroom. For example, when a party is compelled by

court order to remove a structure, the order, if given effect, quite literally alters the

status quo. Or if a court restrains a party from disposing of his or her private property,
the party's freedom to act to conduct his or her affairs, is at least arguably, substantially
limited. In each example, the court's action has effects beyond the parties' ability to

conduct the immediate litigation. When this occurs in combination with the trial court's
probable error, discretionary review is appropriate. But where a trial court's action
merely alters the status ofthe litigation itself or limits the freedom ofa party to act in the
conduct of the lawsuit, even ifthe trial court's action is probably erroneous, it is not



                                               11
No. 68873-1-1/12


sufficient to invoke review under RAP 2.3(b)(2). Errors such as these are properly

reviewed, if necessary, at the conclusion of the case where they may be considered in

the context of the entire hearing or trial.

       Utilizing this analytical framework, Howland fails to satisfy the effect prong of

RAP 2.3(b)(2) because the trial court's decision was merely an exercise of the

discretion granted it under the statute to determine whether a full blown hearing is

necessary in a given case. While the decision arguably limited the manner in which

Howland can conduct the litigation regarding her conditional release, it has no effect

beyond the immediate litigation.

       Moreover, Howland's contention that the trial court's order limits her freedom to

act because it means she may not file a petition for conditional release without

presenting expert testimony is not well taken. In the context of this case, where the

State has presented expert opinions on the issue of Howland's dangerousness, the

court concluded that in the absence of a professional opinion to the contrary, a full

blown hearing was unwarranted. In other circumstances, where, for example, the State

either offers no such opinions or does so but they are unpersuasive in the absence of

other evidence or testimony, the court could determine a hearing is necessary

regardless of whether Howland offers such evidence herself. Thus, the trial court's order

does not limit Howland's freedom to file a petition for conditional release as provided by

statute.




                                              12
No. 68873-1-1/13

       Because Howland may not appeal the decision below as a matter of right and

because she is unable to meet the strict criteria required for discretionary review, review

is denied and her appeal is dismissed.




WE CONCUR:                                         I)7
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