      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON                                     „
                                                                              jr
In the Matter of the Detention of                   No. 70692-6-1
                                                                                          O     "i
                                                                                          "'"1,..
RICHARD ROY SCOTT.                                  DIVISION ONE                i


                                                                               -jy.
                                                    UNPUBLISHED OPINION

                                                                                              - -5,r
                                                    FILED: June 9, 2014
                                                                                    CT'




       Leach, J. — Richard Scott appeals the trial court's denial of his CR 60(b)

motion.   He claims that the rejection of the hebephilia diagnosis in the 2013

version of the Diagnostic and Statistical Manual of Mental Disorders1 (DSM-V)

constitutes newly discovered evidence and a change in the law and science.

Scott argues that the court should vacate his stipulation to the criteria for

commitment as a sexually violent predator because the parties based their

stipulation upon a now invalid diagnosis of hebephilia that the psychiatric

profession no longer accepts.        Because Scott fails to show extraordinary

circumstances entitling him to relief, we affirm.




     1 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders (5th ed. 2013).
No. 70692-6-1 / 2



                                    Background

       In 1984, Scott was convicted of five counts of indecent liberties, a sexually

violent offense, against victims 7, 8, 10, 12, and 13 years old. In 2001, he was

convicted of third degree rape of a child.

       On May 19, 2003, the day of Scott's scheduled release from prison, the

State petitioned to commit Scott as a sexually violent predator. The court found
probable cause to support this petition and detained Scott at the Special

Commitment Center pending trial.

       Dr. Richard Packard, a clinical and forensic psychologist, evaluated Scott

to determine if he met the criteria for commitment as a sexually violent predator.

Packard reviewed approximately 21,000 pages of records, including discovery

materials from Scott and from the State, records from the Special Commitment

Center, criminal records, prison records, medical and treatment records, previous

psychological evaluations, and legal documents. Packard concluded that Scott
met the diagnostic criteria "for two paraphilias": paraphilia, pedophilia—sexual
attraction to prepubescent children—and paraphilia not otherwise specified
(NOS) (hebephilia)—sexual attraction to pubescent children.            Packard also
determined that Scott met the diagnostic criteria for personality disorder NOS

with antisocial, narcissistic, and histrionic features; bipolar I disorder most recent

episode unspecified, without interepisode recovery; somatization disorder;
alcohol abuse, by history in full remission; and malingering. Finally, Packard




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No. 70692-6-1 / 3




concluded "that Mr. Scott is more likely than not to continue to engage in

predatory acts of sexual violence if not confined to a secure facility."

       Dr. Brian Judd also evaluated Scott. He reviewed over 17,997 pages of

discovery from the joint forensic unit, the Special Commitment Center, Scott, and

the State.   He also reviewed criminal records, prison records, medical and

treatment records, previous psychological evaluations, and legal documents.

Judd opined that Scott met the diagnostic criteria for pedophilia, sexually

attracted to males, nonexclusive type; alcohol abuse (by history); and personality

disorder NOS with antisocial and narcissistic traits.      He concluded that Scott

"constitutes a high risk for sexually violent and violent recidivism."         In their

reports, both experts cited the definition of "paraphilia" stated in the fourth edition

oftheDSM(DSM-IV).2

       On November 6, 2007, the first day of Scott's scheduled trial, he stipulated

to meeting the criteria for commitment as a sexually violent predator and that he

had a prior conviction for a sexually violent offense. He also stipulated,

             9.     Respondent suffers from the following mental
       abnormality and/or personality disorders: Paraphilia Pedophilia,
       Paraphilia Not Otherwise Specified (Hebephilia), Personality
       Disorder, Not Otherwise Specified, with Antisocial, Narcissistic, and
       Histrionic Features.
              10.    These      mental    abnormalities     and     personality
       disorders, together or separately, make it seriously difficult for him
       to control his behavior such that it makes him more likely than not
       to commit further acts of predatory sexual violence if he is not
       confined in a secure facility.



     2 Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental
Disorders: DSM-IV-TR (4th rev. ed. 2000).
No. 70692-6-1/4




The court ordered Scott committed as a sexually violent predator.

      On June 5, 2013, Scott filed a "CR 60(b) Motion for Release Order."3 He

claimed that his stipulation was void because of a "Change in Science." Scott

alleged that his stipulation relied upon the then-current version of the DSM, DSM-

IV, but that the DSM-V, published in May 2013, "[i]n very strong words they

clearly reject ted [sic] the use of 'NOS.' 'And Hebaphilia' [sic]. And [s]o narrowly

defined pedophilia, so that it could not possibly be applied to Scott."       Scott

contended that he "never me[t] the statutory criteria from day one.       Even the

petition itself has now been proven to have relied on the bogus diagnoses of

pedophilia and hebaphilia [sic]."     The only evidence that Scott provided to

support his motion was an article from the magazine Psychology Today.

       The trial court denied this motion "[i]n accordance with the holdings of ]n

re [Personal Restraint! of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), and In re

the Detention of Berry, 160 [Wn.] App. 374, 248 P.3d 592 (2011)." On its order,

the court wrote, "The Respondent has not demonstrated that legally or

psychologically ... his case should be dismissed. Even were this Court to take

judicial notice of the DSM V, it is not clear how it affects his commitment, his

stipulation or his underlying conviction."

       Scott appeals.




       3 Scott's original motion cited no specific subsection of CR 60(b). In his
reply, he cites CR 60(b)(11) as the basis for his motion.
No. 70692-6-1 / 5




                                     Analysis

      Scott claims that "a change in the law and science" entitles him to

withdraw his stipulation.4 We review a trial court's denial of a CR 60(b) motion

for manifest abuse of discretion.5   A trial court abuses its discretion when its

decision is manifestly unreasonable or made on untenable grounds or for

untenable reasons.6 A court also abuses its discretion if it bases its decision on

an erroneous view of the law.7

       Unlike an appeal, a CR 60(b) motion does not provide a means for

correcting errors of law in an underlying order.8 Accordingly, when a party

appeals the trial court's denial of a CR 60(b) motion, we review only the trial




       4 For the first time on appeal, Scott argues that the "change in science"
constitutes newly discovered evidence for the purposes of CR 60(b)(3). Because
he did not raise this particular provision below, he cannot raise it now. In re
Marriage of Wherlev, 34 Wn. App. 344, 348, 661 P.2d 155 (1983) (citing
Cameron v. Downs. 32 Wn. App. 875, 882, 650 P.2d 260 (1982)). Even if we
considered this argument, a party must bring a CR 60(b)(3) motion within a
reasonable time and within one year of entry of the judgment. CR 60(b); see
Luckett v. Boeing Co., 98 Wn. App. 307, 310, 989 P.2d 1144 (1999). Because
Scott failed to file his motion within one year of the entry of the judgment, he
cannot seek relief under CR 60(b)(3).
      5 Halev v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000) (citing ]n_re
Guardianship of Adamec. 100 Wn.2d 166, 173, 667 P.2d 1085 (1983)); In re Pet.
of Mitchell. 160 Wn. App. 669, 675, 249 P.3d 662 (2011) (citing Highland, 142
Wn.2dat156).
     6 Maver v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006)
(citing Associated Mortg. Investors v. G.P. Kent Constr. Co., 15 Wn. App. 223,
229, 548 P.2d 558 (1976)).
       7 Maver, 156 Wn.2d at 684 (citing State v. Rohrich, 149 Wn.2d 647, 654,
71 P.3d 638 (2003)).
      s Burlinoame v. Consol. Mines & Smelting Co., 106 Wn.2d 328, 336, 722
P.2d 67 (1986) (citing State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35
(1982)).
No. 70692-6-1 / 6




court's decision to deny the motion, not the underlying order that the party seeks

to vacate.9

       CR 60(b) allows a trial court to vacate a final judgment or order for

specified reasons such as mistake, inadvertence, excusable neglect, newly

discovered evidence, and fraud. Scott based his motion on CR 60(b)(11), which

authorizes a trial court to vacate an order for "[a]ny other reason justifying relief

from the operation of the judgment." This court will vacate an order under CR

60(b)(11) only if the case involves extraordinary circumstances that "constitute

irregularities extraneous to the proceeding."10 A defendant can move to vacate

an order under CR 60(b)(11) only when his circumstances do not permit him to

move under another subsection of CR 60(b).11

       Chapter 71.09 RCW authorizes the involuntarily commitment of a sexually

violent predator.12 A sexually violent predator is "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."13

A "mental abnormality" is "a congenital or acquired condition affecting the

emotional or volitional capacity which predisposes the person to the commission

       9 Biurstrom v. Campbell. 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
       10 In re Pet, of Ward, 125 Wn. App. 374, 379, 104 P.3d 751 (2005) (citing
In re Marriage of Knies, 96 Wn. App. 243, 248, 979 P.2d 482 (1999)).
       11 Ward, 125 Wn. App. at 379 (citing In re Marriage of Thurston. 92 Wn.
App. 494, 499, 963 P.2d 947 (1998); Shum v. Dep't of Labor & Indus., 63 Wn.
App. 405, 408, 819 P.2d 399 (1991)).
      12 Ward, 125 Wn. App. at 376 (citing RCW 71.09.010).
      13 Former RCW 71.09.020(16) (2006).
No. 70692-6-1 / 7




of criminal sexual acts in a degree constituting such person a menace to the

health and safety of others."14

       Scott alleges,

             The hebephelia diagnosis was not explicitly included in the
      fourth edition of the American Psychiatric Association's Diagnostic
       and Statistical Manual of Mental Disorders (DSM). Since 2007, the
       diagnostic validity of hebephilia (and, paraphilia NOS (hebephilia))
       has been subject to significant debate. Hebephelia was considered
       but rejected for inclusion in the 2013 DSM-V.
              Within weeks of the DSM-V release, Mr. Scott moved pro se
       under Civil Rule 60(b) for relief from the indefinite commitment
       order. Mr. Scott argued that his stipulation and the State's petition
       were based on the then-current version of the DSM, the DSM-IV,
       but that the just-released DSM-V constitutes a significant change in
       the law and demonstrates the invalidity of his initial commitment.

Scott contends, "At the time of the stipulation, the hebephelia diagnosis relied

upon unforeseen vagueness in the then-current DSM-IV that had not been

subject to debate or peer review because it was an unanticipated use ofthe DSM

diagnostic categories."

       Scott relies upon In re Detention of Ward.15 in which the court stated, "In

rare circumstances, a change in the law may create extraordinary circumstances,

satisfying CR 60(b)(11)." But Scott fails to demonstrate a change in the law

since his stipulation that would affect his stipulation or his commitment.




       14 RCW 71.09.020(8). The version of RCW 71.09.020 in effect at the time
of Scott's commitment did not define "personality disorder."
       15 125 Wn. App. 374, 380, 104 P.3d 751 (2005).
No. 70692-6-1 / 8




       In Kansas v. Crane.16 the United States Supreme Court explained that

states have considerable leeway in defining the personality disorders and mental

abnormalities that make an individual eligible for commitment. The Court stated,

"[T]he science of psychiatry, which informs but does not control ultimate legal

determinations, is an ever-advancing science, whose distinctions do not seek

precisely to mirror those of the law."17

       In Young, our Supreme Court rejected the argument that a diagnosis of

paraphilia NOS (nonconsent) was invalid because it did not appear in the then-

current edition of the DSM:


              "In using the concept of 'mental abnormality' the legislature
       has invoked a more generalized terminology that can cover a much
       larger variety of disorders. Some, such as the paraphilias, are
       covered      in   the   DSM-III-R;   others   are   not.   The   fact   that
       pathologically driven rape, for example, is not yet listed in the
       DSM-III-R does not invalidate such a diagnosis. The DSM is, after
       all, an evolving and imperfect document. Nor is it sacrosanct.
       Furthermore, it is in some areas a political document whose
       diagnoses are based, in some cases, on what American Psychiatric
       Association ('APA') leaders consider to be practical realities. What
       is critical for our purposes is that psychiatric and psychological
       clinicians who testify in good faith as to mental abnormality are able
       to identify sexual pathologies that are as real and meaningful as
       other pathologies already listed in the DSM."[18]




       16 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002) (citing
Kansas v. Hendricks, 521 U.S. 346, 359, 117 S. Ct. 2072, 138 L. Ed. 2d 501
(1997); Hendricks, 521 U.S. at 374-75 (Breyer, J., dissenting)).
       17 Crane. 534 U.S. at 413 (citing Hendricks. 521 U.S. at 359).
       18 Young. 122 Wn.2d at 28 (quoting Alexander D. Brooks, The
Constitutionality and Morality of Civilly Committing Violent Sexual Predators. 15
U. Puget Sound L. Rev. 709, 733 (1992)).


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No. 70692-6-1 / 9




We reiterated this holding in Berry.19 Thus, inclusion in the DSM is not definitive

for diagnosing a mental illness for the purposes of commitment, and the DSM is

not Washington law. Because Scott fails to show a change in Washington law

since he stipulated to the criteria for commitment as a sexually violent predator,

his argument fails.

       Even if we accept Scott's assertion that the "diagnostic validity of

hebephilia" has changed since his stipulation, he cites no authority establishing

that this change in science creates "extraordinary circumstances" entitling him to

withdraw his stipulation. He presents no facts showing that he no longer poses a

risk to others if not confined in a secure facility or that his condition has changed

such that he no longer meets the criteria for confinement.

       Scott stipulated that he suffered from paraphilia pedophilia, paraphilia

NOS (hebephilia), personality disorder NOS with antisocial, narcissistic, and

histrionic features. He stipulated that these diagnoses "together or separately"

were sufficient to meet the criteria for a sexually violent predator.        Even if

hebephilia were an invalid diagnosis, Washington courts have recognized the

other diagnoses to which he stipulated as a sufficient basis for commitment as a

sexually violent predator.20


       19 Berry. 160 Wn. App. at 380-81.
       20 See In re Pet, of Morgan, No. 86234-6, 2014 WL 1847790 (Wash. May
8, 2014) (involuntary commitment where defendant met diagnostic criteria for
paraphilia, pedophilia, and antisocial personality disorder); State v. McCuistion,
174 Wn.2d 369, 275 P.3d 1092 (2012) (involuntary commitment where
defendant met diagnostic criteria for paraphilia NOS, pedophilia, and antisocial
personality disorder), cert, denied. 133 S. Ct. 1460 (2013).

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No. 70692-6-1/10




          In Scott's reply to the State's opposition to his CR 60(b) motion, he also

asserted that he stipulated under "the mistaken belief that the diagnoses given to

Scott were valid and would meet the requirements of Frve v. United States. 293

F. 1013, 34 A.L.R. 145 (P.C. Cir. 1923)." Because he raised this argument for

the first time in his reply and he does not argue it in his brief, we do not review

it.21 Even if we were to consider this challenge, we held in Berry that testimony

from a psychologist or a psychiatrist about a sex offender's mental illness or

abnormality is not subject to Frve.22

                                      Conclusion


          Because Scott fails to demonstrate a change in Washington law or a

change in science creating extraordinary circumstances entitling him to withdraw

his stipulation to the criteria for commitment as a sexually violent predator, the

trial court did not abuse its discretion when it dismissed his CR 60(b) motion. We

affirm.




WE CONCUR:




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          21 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992); Jov v. Pep't of Labor & Indus.. 170 Wn. App. 614, 629, 285
P.3d 187 (2012) (quoting West v. Thurston County. 168 Wn. App. 162, 187, 275
P.3d 1200 (2012)), review denied. 176 Wn.2d 1021 (2013).
          22 Berry. 160 Wn. App. at 379-80.


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