                                                                           FILED
                                                                        JULY 14, 2020
                                                                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

In the Matter of the Detention of             )
                                              )         No. 37356-8-III
MICHAEL A. MCHATTON,                          )
                                              )
                                              )         OPINION PUBLISHED IN PART
                     Appellant.               )

       KORSMO, J. — Michael McHatton appeals from an order revoking his community-

based less restrictive alternative (LRA). We conclude in the published portion of this

opinion that the LRA revocation is not an appealable order. We grant discretionary

review and, in the unpublished portion, conclude that the trial court did not abuse its

discretion by revoking the LRA.

                               PROCEDURAL HISTORY

       Mr. McHatton stipulated to commitment as a sexually violent predator (SVP) in

2002. In 2012, he was conditionally released to an LRA at the Secure Community

Transition Facility in Pierce County. In 2017, he was conditionally released to an LRA

in the community at Aacres WA, LLC. One condition of the LRA prohibited McHatton

from possessing any pictures of children.

       A room search in May 2018 discovered numerous images of children. McHatton

was returned to confinement and the State moved to revoke the LRA. The motion to
No. 37356-8-III
Det. of McHatton


revoke was heard in conjunction with the annual show cause hearing in August 2018. Mr.

McHatton’s expert, Dr. Blasingame, testified at the hearing. He agreed that McHatton had

intentionally violated the prohibition against possessing pictures of children. He criticized

the Aacres program for not meeting Mr. McHatton’s needs or the requirements of the

LRA order. Dr. Blasingame agreed that McHatton should not stay at Aacres and, instead

of confinement, should be placed in a more properly run community LRA.

       The trial court entered an order revoking the LRA. The court also found that Mr.

McHatton continued to meet the definition of an SVP and declined to order a new trial.

Mr. McHatton timely appealed the LRA revocation ruling to the Court of Appeals,

Division Two.

       The State challenged the appealability of the revocation ruling and requested that

the court treat the appeal as a motion for discretionary review. Mr. McHatton argued that

the ruling was subject to appeal as a matter of right, but also asked the court to grant

discretionary review. A Commissioner, after noting that prior rulings had inconsistently

permitted review by appeal or by discretionary review without analyzing the issue,

concluded that the order was appealable as a matter of right pursuant to RAP 2.2(a)(13).1




       1
       Mr. McHatton also successfully obtained discretionary review of the order on the
show cause hearing. That portion of the case was bifurcated, assigned a separate cause
number, and later was also transferred to this division. Argument is scheduled for
September 10, 2020. In re Detention of McHatton, No. 37423-8-III.

                                              2
No. 37356-8-III
Det. of McHatton


The State moved to modify that ruling while the parties proceeded to brief the merits of

the LRA revocation ruling.

          A Division Two panel granted the motion to modify and set the appealability issue

before the panel hearing the case; the panel was also authorized to grant discretionary

review. The parties filed supplemental briefs on appealability. Subsequently, the case

was administratively transferred to Division Three. A panel considered the appeal

without conducting argument.

                                         ANALYSIS

          Mr. McHatton argues that the case was appealable as a matter of right pursuant to

either RAP 2.2(a)(8) or RAP 2.2(a)(13). We review each of those provisions in the order

listed.

          Although significantly guided by the due process clauses of the 14th Amendment

to the United States Constitution and art. I, § 3 of the Washington Constitution, sexually

violent predator proceedings are governed by chapter 71.09 RCW. As relevant here, the

statutory scheme provides that a person can only be committed after a trial determines

that a person meets the definition of “sexually violent predator.” RCW 71.09.060. Upon

commitment, there must be an annual review to determine if the person remains an SVP.

RCW 71.09.070. When the SVP makes progress and is ready for more freedom, an LRA

may be ordered upon various conditions particular to the individual. RCW 71.09.090.



                                               3
No. 37356-8-III
Det. of McHatton


       RAP 2.2(a) identifies superior court rulings that may be appealed as a matter of

right. An order revoking an LRA is not expressly specified in the rule. Accordingly, Mr.

McHatton argues that an LRA revocation fits within the two other provisions.

       The first of those at issue provides:

       (8) Order of Commitment. A decision ordering commitment, entered after
       a sanity hearing or after a sexual predator hearing.

RAP 2.2(a).

       Prior to amendment in 1994, subsection (8) addressed only commitment orders

entered following a sanity hearing. See former RAP 2.2(a)(8) (1990). The 1994

amendment added the language: “or after a sexual predator hearing.” RAP 2.2, at 124

Wn.2d 1109-10 (1994). The Washington Supreme Court explained the meaning of this

addition in In re Detention of Petersen, 138 Wn.2d 70, 980 P.2d 1204 (1999):

       There can be no dispute our initial intent was to provide an appeal as of
       right only from the initial commitment order that followed the full
       evidentiary adjudication of an individual as a sexually violent predator.

Id. at 85.

       Petersen involved the question of whether an SVP could appeal as a matter of

right from the annual review hearing. Id. at 77. The court rejected the argument that

RAP 2.2(a)(8) applied, limiting the reach of that rule to the initial commitment order. Id.

at 85. The court found analogous support in its case law rejecting efforts at appealing

from a six month review hearing in a child dependency action. Id. at 86-87 (discussing In


                                               4
No. 37356-8-III
Det. of McHatton


re Dependency of Chubb, 112 Wn.2d 719, 773 P.2d 851 (1989)). Chubb had declined to

allow appeals from the review hearing even though RAP 2.2(a)(5) had permitted appeals

from the dependency order. Id. Again relying on Chubb, Petersen also noted that the

trial court’s continuing jurisdiction over the case meant that the trial court’s interlocutory

orders were not final. Id. at 87.

       Consistent with the narrow reach of RAP 2.2(a)(8) described by Petersen, we hold

that an LRA revocation order is not a “commitment” order issued “after a sexual predator

hearing.” RAP 2.2(a)(8) does not authorize appeals of right from the revocation of a

LRA.

       Mr. McHatton, as had Mr. Petersen, also relies on the final provision of RAP 2.2(a):

       Final Order After Judgment. Any final order made after judgment that
       affects a substantial right.

RAP 2.2(a)(13). The Petersen majority also rejected this argument.2

       The existence of the trial court’s continuing jurisdiction over SVP proceedings

rendered the court’s orders interlocutory rather than final. Petersen, 138 Wn.2d at 87.

Because of the court’s continuing jurisdiction, “the order in this case cannot be a final

judgment.” Id. at 88. The order resolved only the petition before the trial court, not the

final disposition of the case. Id. Any review of the probable cause ruling would need to



       2
         Whether RAP 2.2(a)(13) authorized an appeal of right from a review hearing was
the sole issue that divided the court. Petersen, 138 Wn.2d at 97 (Sanders, J., dissenting).

                                              5
No. 37356-8-III
Det. of McHatton


follow from an appellate court’s discretionary review authority, RAP 2.3(b). Id. at 88-89.

       McHatton distinguishes Petersen on the basis that it involved the annual review

rather than revocation of an LRA. However, that distinction is analytically insignificant.

Orders entered following either a review hearing or an LRA revocation both flow from

the original commitment order that provides the trial court’s authority over the case.

Indeed, the revocation of an LRA arguably is less significant than a probable cause ruling

in a review hearing. A finding that probable cause no longer exists ultimately can lead to

the SVP status ending, while a revocation ruling merely returns the SVP to an earlier

stage of his treatment regime. It is not a final order.

       Neither RAP 2.2(a)(8) nor RAP 2.2(a)(13) authorize an appeal as a matter of right

from the revocation of an LRA.

       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder,

having no precedential value, shall be filed for public record pursuant to RCW 2.06.040,

it is so ordered.

       “A notice of appeal of a decision which is not appealable will be given the same

effect as a notice for discretionary review.” RAP 5.1(c). As authorized by the panel

decision on the motion to modify, and in the interests of justice, we accept discretionary

review of Mr. McHatton’s challenge to the LRA revocation. State v. Campbell, 112

Wn.2d 186, 190, 770 P.2d 620 (1989).

                                              6
No. 37356-8-III
Det. of McHatton


       Revocation of an LRA is controlled by statute. RCW 71.09.098. The State has

the option of pursuing either modification or revocation of the existing LRA, and bears

the burden of establishing a violation of the conditional release order by a preponderance

of the evidence. RCW 71.09.098(5). In the event that the violation is established, the

court must determine whether continuing the LRA is in the person’s best interests or is

adequate to protect the community. RCW 71.09.098(6)(a).

       In making that determination, the court must weigh the evidence against five

factors:

               (i) The nature of the condition that was violated by the person or
       that the person was in violation of in the context of the person’s criminal
       history and underlying mental conditions;
               (ii) The degree to which the violation was intentional or grossly
       negligent;
               (iii) The ability and willingness of the released person to strictly
       comply with the conditional release order;
               (iv) The degree of progress made by the person in community-
       based treatment; and
               (v) The risk to the public or particular persons if the conditional
       release continues under the conditional release order that was violated.

RCW 71.09.098(6)(a). Any of these factors, “alone, or in combination, shall support the

court’s determination to revoke the conditional release order.” RCW 71.09.098(6)(b).

       Typically, orders revoking suspended criminal sentences are reviewed for abuse of

discretion. See, e.g., State v. McCormick, 166 Wn.2d 689, 705-06, 213 P.3d 32 (2009);




                                              7
No. 37356-8-III
Det. of McHatton


State v. Partee, 141 Wn. App. 355, 361, 170 P.3d 60 (2007). At least one unpublished

decision has applied that standard to the revocation of an LRA. In re the Detention of

Ward, No. 75679-6-I, at *7-*8 (Wash. Ct. App. Dec. 12, 2016) (unpublished),

http://www.courts.wa.gov/opinions/pdf/373568.pdf.3 The parties agree that the abuse of

discretion standard applies to this case. See Br. of Appellant at 16; Br. of Resp’t at 15.

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       Mr. McHatton does not contest the fact that he possessed the photographs of

children in violation of the conditions of the LRA. The court properly found that he

violated the LRA. The remaining question is whether the trial court abused its discretion

in revoking the LRA instead of modifying it. Mr. McHatton’s expert testified about the

failures of the Aacres program and blamed lack of room searches for his client’s ability to

stockpile photographs of children. McHatton argues that due process required the trial

court to consider the inadequacies of the Aacres program in addition to the five statutory

factors of RCW 71.09.098(6)(a)(i)-(v). To that end, McHatton argues that the familiar

due process standard of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed.

2d 18 (1976), required the trial court to do so.




       3
           See GR 14.1(c).

                                              8
No. 37356-8-III
Det. of McHatton


       We need not analyze Mathews in this context because the trial court did actually

consider the evidence and the argument about Aacres. Report of Proceedings at 61-63.

The court knew that its choices were revocation or continuing the LRA with

modification. The problem from Mr. McHatton’s perspective is that he did not have a

firm alternative plan to present to the court and the State was only seeking revocation in

light of his failure to make progress. Instead, McHatton attacked the management of the

existing program, giving further weight to the State’s motion to revoke, and had only a

vague outline of what to do next. The trial court correctly noted that any alternate

placement proposal would have to be investigated by the department of corrections and

presented to the court for its consideration. Neither of those steps had occurred.

       But Mr. McHatton’s attack on the treatment providers is not fully supported by the

court’s findings. The court’s oral remarks concluded that Mr. McHatton had lied to his

treatment provider and attempted to manipulate her. The court entered written finding of

fact 9, unchallenged on appeal, stating that Mr. McHatton lied to the treatment provider

about his behavior and progress, coming clean only as his violations were about to be

discovered. Clerk’s Papers at 635. Mr. McHatton’s view that the treatment provider

failed him simply is contrary to the trial court’s assessment of the situation. He failed

treatment, not the other way around.

       All parties ultimately agreed that Mr. McHatton’s placement at Aacres was a

failure. They differed on the cause of that failure, with the trial court coming down

                                              9
No. 37356-8-III
Det. of McHatton


against Mr. McHatton on the credibility determination. His spirited effort to defend the

revocation by seeking modification without having a new plan failed to convince the

court.

         There were tenable grounds for granting the revocation. The trial court did not

abuse its discretion by revoking the LRA.

         Affirmed.

                                               _________________________________
                                                       Korsmo, J.

I CONCUR:


_________________________________
      Pennell, C.J.




                                             10
                                      No. 37356-8-III

       FEARING, J. (dissenting in part/concurring in part)—In In re Detention of Petersen,

138 Wn.2d 70, 980 P.2d 1204 (1999), the Washington Supreme Court held that a sexual

violent detainee has no right to appeal the superior court’s annual review decision, under

RCW 71.09.090, that finds no probable cause to believe that the detainee’s condition has

changed such that he can be released or sent to a less restrictive alternative. The court

denied the detainee a right to appeal under both RAP 2.2(a)(8) and (13). Nevertheless, in

footnote 13 of the decision, the court wrote with regard to RAP 2.2(a)(8):

               Arguably, although we do not now so decide, review of decisions
       made after a full hearing on the merits under RCW 71.09.090(2) would be
       reviewable as of right. Such hearings appear to be equivalent to whole new
       trials with the same procedural protections as the initial commitment trial.
       The State must again prove Petersen to be a sexually violent predator
       beyond a reasonable doubt. If the jury at that hearing would so find, the
       predator’s continuing commitment would flow from this new, subsequent
       determination, rather than from the original order of commitment, for
       purposes of RAP 2.2(a)(8).

In re Detention of Petersen, 138 Wn.2d at 87 n.13.
No. 37356-8-III
Detention of McHatton (dissenting in part/concurring in part)


       In re Detention of Petersen is a split decision with four dissenters concluding that

the detainee could appeal under RAP 2.2(a)(13). According to the minority, the trial

court’s decision constituted a final order entered after judgment that affected a substantial

right. The earlier judgment was the order of commitment. The final order was the denial

of a trial on the merits as to whether the detainee could be released or moved to a less

restrictive facility. The substantial right was the right of liberty protected by the federal

and state constitutions. The dissenters emphasized the importance of an appeal as a

fundamental right in a free society.

       I believe the minority, not the majority, correctly decided the issue of the right to

an appeal in In re Detention of Petersen. Nevertheless, I would follow, based on stare

decisis, the Petersen majority, in Michael McHatton’s appeal, if not for footnote 13.

       Michael McHatton seeks an appeal as a matter of right to the superior court’s

revocation of his less restrictive alternative after an evidentiary hearing. Thus, the

decision before us for review is not a perfunctory ruling, but a hearing similar in nature to

the hearing referenced in Petersen’s footnote 13. Based on the footnote and the sound

reasoning found in the Petersen dissent, the ruling we review today was either an order of

commitment in accordance of RAP 2.2(a)(8), a final order after a judgment that impacts

one’s substantial right in light of RAP 2.2(a)(13), or both.

       An order revoking one’s probation may be appealed as a matter of right as an

order after final judgment affecting a substantial right. State v. Pilon, 23 Wn. App. 609,

611, 596 P.2d 664 (1979). An order modifying a parent’s visitation rights to a child is

                                              2
No. 37356-8-III
Detention of McHatton (dissenting in part/concurring in part)


also a final order affecting substantial rights. Sutter v. Sutter, 51 Wn.2d 354, 356, 318

P.2d 324 (1957). An order revoking a less restrictive alternative of a sexually violent

detainee parallels an order revoking probation and order altering visitation rights.

       I dissent from the majority’s ruling that Michael McHatton could not appeal the

superior court order revoking his less restrictive alternative detainment. I concur in the

majority’s ruling on the merits of the appeal.




                                                 _________________________________
                                                 Fearing, J.




                                             3
