                                                                             FILED
                                                                           March 8, 2016
                                                                   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,                            )
                                                )
                      Respondent,               )         No. 32393-5-111
                                                )
              v.                                )
                                                )
WALLACE EDWARD SCHNEIDER,                       )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )

       PENNELL,    J. - Wallace Schneider has been required to register as a sex offender

since 1990 due to a 1977 conviction for first degree rape. He appeals the trial court's

denial of his petition for relief from the registration obligation, arguing ( 1) the sex

offender registration requirement constitutes an ex post facto punishment and a bill of

attainder and (2) the trial court abused its discretion in denying his petition. We disagree

with Mr. Schneider's assignments of error and affirm.

                                           FACTS

       In 1977, 19-year-old Wallace Schneider pleaded guilty to first degree rape. Mr.

Schneider was initially placed in Western State Hospital's (Western) sexual psychopathy

program, where he remained for 11 months. In 1977, Western excluded Mr. Schneider

from its program, largely because he had engaged in sexual activity with another patient.
No. 32393-5-111
State v. Schneider


Mr. Schneider was then sent to prison, where he remained until his release in 1988 at the

age of 31.

       Since 1990, Mr. Schneider has been required to register as a sex offender. In

2013, Mr. Schneider petitioned the Ferry County Superior Court for an order relieving

him of this requirement. The State initially opposed the petition. An evidentiary hearing

was held and the trial court denied the petition. Mr. Schneider subsequently filed for

rehearing based upon a risk assessment obtained from a certified sex offender treatment

provider. The assessment indicated Mr. Schneider had less than a one percent risk of him

reoffending. After reviewing the risk assessment, the State took a neutral stance on the

petition. Despite the State's change in position, the trial court again denied Mr.

Schneider's request for relief, finding he had not satisfied his burden of establishing

rehabilitation. Mr. Schneider has filed a timely appeal.

                                        ANALYSIS

       Constitutionality ofRCW 9A.44.130-.140

       Mr. Schneider claims that retroactive enforcement of Washington's sex offender

obligations on him violates the ex post facto clauses of the state and federal constitutions

and constitutes an unconstitutional bill of attainder. Resolution of both arguments turns

on whether the sex offender registration obligation is deemed punitive. In re Pers.



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State v. Schneider


Restraint of Metcalf, 92 Wn. App. 165, 177-78, 963 P.2d 911 (1998). The Supreme

Courts of Washington and the United States have both found the obligation is not

punitive. State v. Ward, 123 Wn.2d 488, 495, 869 P.2d 1062 (1994); Smith v. Doe, 538

U.S. 84, 105-06, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). We are bound by these

decisions. Thus, Mr. Schneider's constitutional challenge must fail.

       Denial of the Petition under RCW 9A.44.142

       A trial court's ruling on a petition for relief under RCW 9A.44.142 is reviewed for

abuse of discretion. See State v. McMillan, 152 Wn. App. 423, 426-27, 217 P.3d 374

(2009). The issue is not whether the judges on this court would have reached a different

result. Instead, the question is whether the trial court's decision "is manifestly

unreasonable or based on untenable grounds or untenable reasons." In re Marriage of

Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). "A court's decision is manifestly

unreasonable if it is outside the range of acceptable choices, given the facts and the

applicable legal standard; it is based on untenable grounds if the factual findings are

unsupported by the record; it is based on untenable reasons if it is based on an incorrect

standard or the facts do not meet the requirements of the correct standard." Id. at 47.




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No. 32393-5-111
State v. Schneider


       Mr. Schneider assigns two legal errors to the trial court's discretionary denial of his

petition for relief from registration. First, he complains the court improperly limited

testimony from a witness named Andrew Leeper. We disagree. Mr. Leeper is the brother

of Mr. Schneider's late wife. He was initially identified only as a lay witness. Mr. Leeper

testified at length regarding his knowledge of Mr. Schneider and his opinion regarding Mr.

Schneider's character. The only limitation placed on Mr. Leeper's testimony was a

prohibition on interpreting Mr. Schneider's discharge letter from Western. Because Mr.

Leeper was not a trained psychologist or counselor and had never worked for Western, the

trial court did not abuse its discretion in excluding this testimony.

       Second, Mr. Schneider argues the trial court's decision to deny the petition was

governed by the wrong legal standard. Again, we disagree. The trial court correctly

assigned Mr. Schneider the burden of proving that he should be relieved from registration

by "clear and convincing evidence." RCW 9A.44.142(4)(a). The court also correctly

identified the various factors that may be relied on in determining whether this burden is

met. 1 In addition to these accurate legal recitations, the trial court's orders contain



       I
          The trial court's citation to the list of statutory factors was erroneously identified
as RCW 9A.44.143(5)(a) to (m) (which applies to relief from registration for juvenile
offenses) instead ofRCW 9A.44.142(4)(b)(i) to (xiii) (which applies to relief from adult
convictions). However, this is nothing more than a scrivener's error. The two lists of
factors are the same.
                                               4
No. 32393-5-111
State v. Schneider


language echoing a prior version of Washington's registration statute. 2 This prior version

stated that relief from registration would only be granted "if the petitioner shows, with

clear and convincing evidence, that future registration of the petitioner will not" serve the

purposes of the state's registration scheme. See former RCW 9A.44.140(3)(a) (2002).

While the trial court's word choice may have been somewhat outdated, it was not

substantively inaccurate. The former statute does not differ materially from the current

one. Both versions express the same sentiment: if an offender is sufficiently rehabilitated

to warrant removal from the registry, then further registration does not serve the purpose

of the registration scheme, namely to protect the community from re-offense. The court's

order was not in error.

       Apart from the aforementioned claims of legal error, Mr. Schneider argues the trial

court incorrectly weighed the evidence, particularly the evidence presented from his sex

offender risk assessment. The trial court's order makes plain that the judge read the

assessment and considered the information contained therein. The judge simply exercised

his right to reject the evaluator's conclusion that Mr. Schneider's circumstances

warranted relief from the registration obligation. This is not something we will disturb on

appeal. Brewer v. Copeland, 86 Wn.2d 58, 74, 542 P.2d 445 (1975).



       2   Mr. Schneider did not object to this wording in his motion for reconsideration.
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State v. Schneider


      The decision of the trial court is affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




      Lawrence-Berrey, J




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