                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                       August 11, 2020
          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

    In the Matter of the Personal Restraint of                        No. 54238-2-II

    NICHOLAUS MCDONALD,

                     Petitioner.
                                                               UNPUBLISHED OPINION


          CRUSER, J. — Nicholaus McDonald seeks relief from personal restraint imposed as

a result of his 1996 convictions for two counts of second degree murder.1 The trial court

sentenced him to consecutive sentences totaling 778 months of confinement. Because he

committed his crimes when he was 17 years old, he is entitled under RCW 9.94A.730, the

so-called Miller fix statute, to petition for early release after serving at least 20 years of

confinement. He petitioned for release in 2018. The Indeterminate Sentence Review Board

(ISRB) had McDonald undergo a psychological evaluation by Dr. Robtoy in November

2018. Dr. Robtoy concluded that McDonald: (1) continued to violate institutional rules; (2)

lacked control of or insight into his substance abuse while confined; (3) was not motivated

to participate in treatment or rehabilitative services; and (4) had a high risk of reoffending

because of psychopathy indicators and his long-standing and unaddressed substance abuse.

          The ISRB held a hearing on McDonald’s petition for early release in July 2019, at

which McDonald was present. A Department of Corrections counselor testified about

McDonald’s behaviors while committed, both good (finishing an AA degree, completing



1
  Because this petition does not challenge McDonald’s judgment and sentence, it is not
subject to the one year time bar in RCW 10.73.090(1).
54238-2-II


several offender change programs and having a good prison job) and bad (seventeen major

infractions, mostly for substance abuse). The ISRB considered Dr. Robtoy’s evaluation

and McDonald’s Corrections file. In August 2019, the ISRB found McDonald non-

releasable for the following reasons: (1) McDonald’s limited insight into his risk factors

for reoffending, given his minimization of his role in his crimes and his lack of interest in

addressing his substance abuse issues; (2) McDonald’s display of high risk behaviors

regarding his substance abuse; (3) Dr. Robtoy’s conclusion that McDonald was at high risk

of reoffending; and (4) McDonald lacked a release plan addressing housing, employment

and community support in his intended release to Eastern Washington, which is not where

he is from.

       McDonald argues that he was denied substantive due process in (1) Dr. Robtoy’s

evaluation and (2) the ISRB’s hearing and decision finding him non-releasable. The ISRB

can deny a petition for early release if it finds by a preponderance of the evidence that the

offender is likely to engage in new criminal behavior if released. RCW 9.94A.730(3). In

reviewing the ISRB’s decision, we are not a “super” ISRB. In re Pers. Restraint of

Whitesel, 111 Wn.2d 621, 628, 763 P.2d 199 (1988). We review the ISRB’s decision only

for an abuse of discretion. In re Pers. Restraint of Dyer, 175 Wn.2d 186, 196, 283 P.3d

1103 (2012).

       As to Dr. Robtoy’s evaluation, McDonald claims that inaccuracies in her report as

to prior psychological evaluations, a violent infraction in Arizona, and McDonald’s need

for a liver transplant, violate his right to due process. He also argues that Dr. Robtoy’s use

of predictive assessment tools violate his right to due process because they are subjective.

But assuming his claims of discrepancies in Dr. Robtoy’s report are true, they do not appear




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to have affected her conclusions or to rise to the level of a violation of due process. And

Dr. Robtoy’s use of subjective assessment tools as part of her evaluation do not violate

McDonald’s right to due process.

       As to the ISRB hearing, McDonald argues that the ISRB’s failure to obtain his

complete Corrections file violated his right to due process and constituted burden shifting.

As to the ISRB’s decision, McDonald argues that it contains inaccuracies as to the

accomplice liability for the crimes he committed, as to his having been given a life sentence

rather than a de facto life sentence. He also argues the ISRB violated his right to due process

in basing its non-releasability conclusion on his lack of a detailed release plan because,

under Department of Corrections’ policy, a release plan is not required until after a

conclusion of releasability is made. But even if the ISRB should not have addressed his

release plan in concluding McDonald was not releasable, he does not show that the ISRB

abused its discretion in basing its conclusion on the other three grounds: his limited insight

into his risk factors for reoffending, his display of high risk behaviors regarding his

substance abuse and his high risk of reoffending. He does not show that any inaccuracies

in the ISRB decision affected its conclusions or violated his right to due process. And he

does not show that there was any additional information that the ISRB was required to have

considered or that he was subjected to burden shifting.




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        McDonald does not show any grounds for relief from personal restraint. We

therefore deny his petition.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                    Cruser, J.
 We concur:



 Worswick, J.




 Lee, C.J.




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