                                                            riLED    DIV I
                                                    COURT OF APPEALS
                                                              WASHINGTON
                                                     STATE OF

                                                     2111B OCT —8 PM 9:54




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

In the Matter of the Personal Restraint          No. 76256-7-1
Petition of

                                                 PUBLISHED OPINION
MANUEL PAREJO,

                        Petitioner.              FILED: October 8, 2018

       SCHINDLER, J. — RCW 9.95.115 gives the Indeterminate Sentence Review Board

(ISRB)the authority to parole sex offenders for crimes committed before July 1, 1984

but states "no such person shall be released under parole who is subject to civil

commitment as a sexually violent predator under chapter 71.09 RCW." Manuel Parejo

filed a personal restraint petition challenging the decision of the ISRB to deny parole

based on a prefiling 2011 forensic psychological evaluation the Department of

Corrections requested to determine whether he met the criteria of a sexually violent

predator under chapter 71.09 RCW. Parejo contends the ISRB abused its discretion

and violated his right to due process by relying on the 2011 sexually violent predator

evaluation to indefinitely deny parole. After oral argument, the ISRB filed a motion to

dismiss the petition as moot because the ISRB granted parole. Although the inability to

provide relief to Parejo renders his personal restraint petition technically moot, we
No. 76256-7-1/2

address the ISRB's interpretation of RCW 9.95.115 because it is likely to reoccur and to

provide guidance. We hold under the plain and unambiguous language of RCW

9.95.115, the ISRB is not prohibited from releasing a person on parole unless the

person is subject to civil commitment as a sexually violent predator under chapter 71.09

RCW. Chapter 71.09 RCW governs whether a person is subject to commitment as a

sexually violent predator. Contrary to the interpretation of the ISRB, a prefiling forensic

psychological evaluation does not mean a person is subject to civil commitment as a

sexually violent predator under chapter 71.09 RCW. Because Parejo is no longer under

lawful restraint, we deny his personal restraint petition.

1978 Conviction

       On March 20, 1978, a jury convicted Manuel Parejo of rape in the first degree

while armed with a firearm and kidnapping in the first degree while armed with a firearm.

On July 27, 1978, Parejo pleaded guilty to being a habitual criminal. The court

sentenced Parejo to a maximum sentence of "not more than life" and "a minimum term

to be fixed by the Board of Prison Terms and Paroles."' The Indeterminate Sentence

Review Board (ISRB)2 released Parejo on parole in December 1991. In 1993, the ISRB

revoked his parole and set a minimum term of 60 months.

2011 Parole Decision

       Chapter 9.95 RCW governs the indeterminate sentence and parole of a sex

offender convicted of a crime committed before July 1, 1984. In re Pers. Restraint of

Lain, 179 Wn.2d 1, 11,315 P.3d 455(2013); In re Pers. Restraint of Avers, 105 Wn.2d

        1 The Sentencing Reform Act of 1981, chapter 9.94A RCW, renamed the Board of Prison Terms
and Paroles as the Indeterminate Sentence Review Board. In re Pers. Restraint of Whitesel, 111 Wn.2d
621, 626, 763 P.2d 199(1988); see RCW 9.95.009(1).
        2 We note several quotes throughout the opinion refer to the Indeterminate Sentence Review
Board as the "Board" or the "board."


                                                 2
No. 76256-7-1/3

161, 162, 713 P.2d 88(1986). The ISRB is the agency with jurisdiction over sex

offenders convicted of crimes before July 1, 1984. RCW 9.95.140(1); see In re Pers.

Restraint of Cashaw, 123 Wn.2d 138, 142-43, 866 P.2d 8(1994). Under chapter 9.95

RCW,the superior court sets the offender's maximum sentence and the ISRB

determines the actual period of confinement. Cashaw, 123 Wn.2d at 142-43. The

"minimum term" establishes a date when the inmate becomes eligible to be considered

for parole. RCW 9.95.011(1), .040,.052; see also WAC 381-40-100; In re Pers.

Restraint of Powell, 117 Wn.2d 175, 186 n.1, 814 P.2d 635 (1991). The minimum

sentence "carries with it no guarantee of release; it only establishes a date when the

inmate becomes eligible to be considered for parole." Cashaw, 123 Wn.2d at 143.3 If

the ISRB determines the offender is not fit for parole, it sets a new minimum sentence

within the bounds of the maximum term. RCW 9.95.052, .100. The ISRB "shall not,...

until his or her maximum term expires, release a prisoner, unless in its opinion" the

inmate has been rehabilitated and is "subject for release." RCW 9.95.100. The ISRB

must "give public safety considerations the highest priority when making all

discretionary decisions on the remaining indeterminate population regarding the ability

for parole, parole release, and conditions of parole." RCW 9.95.009(3).

       On February 16, 2011, the ISRB found, "[This is the appropriate time to

conditionally parole Mr. Parejo to a Mutual Re-Entry Plan to begin the process of

transitioning back to the community." The ISRB found Parejo completed "all

programming available in the prison setting," including chemical dependency treatment,

the "Sex Offender Treatment Program"(SOTP), and the SOTP "Max Benefits Group."

In addition, Parejo had "been active with the Interaction Transition (IT) group within the

       3 Emphasis omitted.



                                             3
No. 76256-7-1/4

prison and has been accepted to live at the IT House, if released." The "Decision"

states Parejo also had "strong community support from his family and employment

waiting for him." The Decision states that although Parejo committed infractions during

his early years in prison, "he has remained infraction free for over seven years now."

The ISRB states,"These behaviors are strong indicators that Mr. Parejo has been

rehabilitated." The ISRB Decision states:

      BOARD DECISION:
      This was a Deferred Decision. Based on the requirements of RCW
      9.95.009(3) and RCW 9.95.100 and the totality of the evidence and
      information considered by the Board, the Board finds that Mr. Parejo is
      conditionally parolable to a MRP (Mutual Re-Entry Program) and adds 18
      months to his minimum term to effectuate development and
      implementation of his MRP.

       However, the ISRB notes the decision to parole Parejo may result in a

Department of Corrections(DOC)End of Sentence Review Committee(ESRC)request
     l
for a forensic psychological evaluation to determine whether Parejo meets the criteria of

a sexually violent predator.

       The Board is also cognizant that its decision today may prompt a decision
       by the End of Sentence Review Committee to request a forensic
       psychological evaluation to determine whether Mr. Parejo meets the
       criteria for civil commitment under Chapter 71.09 RCW. Should such an
       evaluation take place, the Board requests a copy and reserves the right to
       reconsider its decision in light of the results of that evaluation.

       RCW 72.09.345(1) gives DOC the authority to release "relevant information that

is necessary to protect the public concerning offenders convicted of sex offenses." The

ESRC assigns "risk levels," reviews "available release plans," and makes "appropriate

referrals for sex offenders." RCW 72.09.345(2). "Sex offenders convicted of crimes

committed before July 1, 1984, who are under the board's jurisdiction shall be subject to




                                            4
No. 76256-7-1/5

the determinations of the[ESRC] regarding risk level and subject to sex offender

registration and community notification." RCW 9.95.140(1).

       The[ESRC]shall review each sex offender under its authority before the
       offender's release from confinement or start of the offender's term of
       community custody in order to: (a) Classify the offender into a risk level
       for the purposes of public notification under RCW 4.24.550;(b) where
       available, review the offender's proposed release plan in accordance with
       the requirements of RCW 72.09.340; and (c) make appropriate referrals.

RCW 72.09.345(5).

2011 Forensic Psychological Evaluation

       On September 13, 2011, DOC asked Dr. Matthew Logan to conduct a forensic

psychological evaluation of Parejo "to determine if Mr. Parejo meets criteria for

commitment as a Sexually Violent Predator under RCW 71.09." The notice to Parejo

states that if the evaluation concludes he meets the criteria for a sexually violent

predator and the court finds he meets the criteria, "you could be sent to a treatment

program at a secure state facility."

              Because of your past convictions for sexual crimes, you are being
       evaluated as a possible Sexually Violent Predator under the law (Revised
       Code of Washington 71.09). The purpose of the evaluation is to decide if
       you have a mental condition ("mental abnormality or personality disorder")
       that makes you likely to commit "predatory acts of sexual violence" in the
       future. If you qualify under the law, you will be sent to court for trial. If the
       court finds you to be a Sexually Violent Predator, you could be sent to a
       treatment program at a secure state facility. This would be an involuntary
       commitment to a treatment program run by the Washington Department of
       Social and Health Services.



              If you do not consent to the interview, place conditions on the
       interview which cannot for any reason be accommodated, or otherwise
       decline to participate, the evaluation will be completed using your records
       and other sources of information.

      •On November 11,2011, Dr. Logan issued a psychological evaluation report for


                                              5
No. 76256-7-1/6

"Sexually Violent Predator Civil Commitment under RCW 71.09." The report addresses

whether Parejo has "a mental abnormality defined in RCW 71.09 as 'a congenital or

acquired condition, including a personality disorder, affecting the emotional or volitional

capacity'"and whether Parejo is "likely to engage in predatory acts of sexual violence if

not confined in a secure facility."

       Because Parejo declined to participate in the assessment, Dr. Logan based the

evaluation solely on a "review of relevant file information and collateral staff reports."

Dr. Logan acknowledged the "limitations" of the review and that "without the opportunity

for a current clinical interview, it is not possible to conduct a mental status examination,

corroborate information provided in other reports, or to obtain a current perspective from

Mr. Parejo." Dr. Logan addressed the "statistical risk to re-offend" based on personality

and behavioral patterns. Dr. Logan concluded 61-year-old Parejo "meets the criteria for

civil commitment as a sexually violent predator as described in RCW 71.09."4

2012 ISRB Decision

       The ISRB held a parole hearing on April 18, 2012. At the beginning of the

hearing, an ISRB member states that under RCW 9.95.115, when a forensic

psychological evaluation finds a person meets the criteria as a sexually violent predator,

the ISRB "no longer ha[s] the discretion to make a release decision."

      [W]e saw Mr. Parejo back in January of 2011 and the board found him
      conditionally parolable at that time to a neutral reentry plan[.] We rather
      expected, I think, that[DOC]would request a forensic psychological
      examination and that has occurred and was completed back in November
      by Dr.[Logan]. . . It's the board's understanding, as we have been
      advised by our Assistant Attorney General, that when we receive a
      forensic psychological evaluation that finds that a person is — does meet
      the criteria, that we no longer have the discretion to make a release
      decision. . . . As a consequence we have previous cases where we found

       4 Emphasis in   original.


                                              6
No. 76256-7-1/7

      a person conditionally parolable, then changed that decision and found
    \ them not parolable based on that forensic and as I say, it's our
      understanding that the statute takes away any discretion on our part.

      The attorney representing Parejo argued the ISRB's interpretation of RCW

9.95.115 was contrary to the language of the statute and the procedures under chapter

71.09 RCW.

      [T]he fact that this board has made a decision and then proceeds to say
      that well, our hands are now tied, when we're going to have to essentially
      revoke parole. . . doesn't even allow an individual like Mr. Parejo a
      chance to challenge this, whereas in the [chapter] 71.09[RCW]process,
      at least you have the crucible of a fact-finding process.... Mut here you
      have a situation where we have to accept that this particular report, which
      I think is quite frankly, you know, it has no credibility, controls the release
      of someone who has done everything that the parole board has asked.

      The ISRB member reiterated the ISRB had no discretion to consider parole after

receiving the forensic psychological evaluation.

      You're preaching to the choir, . .. as we've read the statute, it appears to
      be — it doesn't appear to give the board any discretion once that
      dertermina— once that forensic psychological has been, that finding has
      been made by a psychologist. So I don't like it either. Because we would
      much prefer to have the discretion to decide what weight to place on that
      information in the way that I think you have argued, in that it's one piece of
      evidence amongst many, and it does have the effect of precluding an
      opportunity for a trial to determine, to make that determination.

      On June 28, 2012, the ISRB issued its Decision. The ISRB reiterates the

reasons it previously decided to conditionally parole Parejo:

      Parejo had completed all programming available in the prison setting .. . .
      In addition, he had been active with the Interaction Transition (IT) group
      within the prison and had been accepted to live at the IT House, if
      released. The Board found that these behaviors were strong indicators
      that Mr. Parejo had been rehabilitated. The Board further noted that Mr.
      Parejo had saved a substantial sum to assist in his successful transition to
      the community, had strong community support from his family and had
      employment waiting for him. These circumstances were sufficient for the
      Board to find that it was the appropriate time to conditionally parole Mr.




                                             7
No. 76256-7-1/8

       Parejo to a Mutual Re-Entry Plan (MRP)and begin the process of
       transitioning him back to the community.

The Decision states that after the ISRB concluded Parejo should be released, the

ESRC "ordered a forensic psychological evaluation to determine whether Mr. Parejo

met criteria for civil commitment under Chapter 71.09 RCW."

       The ISRB cites the requirements of RCW 9.95.009(3) and .100 but rescinds the

previous Decision to conditionally parole Parejo based solely on the 2011 forensic

psychological evaluation.

       Little has changed with Mr. Parejo since our last hearing, except that Mr.
       Parejo has rejoined the Max Benefits group, as the Board had
       recommended. The primary difference since our last hearing comes from
       the receipt of Dr. Logan's forensic psychological evaluation, in which Dr.
       Logan found that Mr. Parejo met the criteria for civil commitment under
       Chapter 71.09 RCW.

       The ISRB found Parejo is not parolable and added 36 months to his minimum

term. The ISRB requested the ESRC complete a new forensic psychological evaluation

before the next parole hearing. The ISRB notes Parejo has the right to seek an

evaluation from an expert at personal expense.5

2013 Forensic Psychological Evaluation

        Parejo retained Dr. Erik Schlosser to conduct a forensic psychological evaluation

to determine whether he "meets the criteria for civil commitment as defined by RCW

71.09." Dr. Schlosser conducted an approximately three-hour telephone interview with

Parejo and reviewed his records and prior psychological evaluations. Dr. Schlosser

performed several risk assessment tests. The tests showed "[m]oderate level of risk

         5 Parejo filed a personal restraint petition challenging the 2012 Decision to deny parole and
extend his minimum sentence. We dismissed the personal restraint petition because Parejo did not meet
his burden to show that the ISRB acted willfully and unreasonably or that its decision was arbitrary and
capricious. The order of dismissal notes Parejo also argued the ISRB application of RCW 9.95.115
violated equal protection and ex post facto prohibitions.


                                                   8
No. 76256-7-1/9

with factors that can be managed realistically in the community." On June 28, 2013, Dr.

Schlosser issued a 14-page evaluation. Dr. Schlosser concluded to a "reasonable

degree of professional certainty" that Parejo "does not have a mental abnormality" and

does not meet the criteria for civil commitment as defined by chapter 71.09 RCW.

2013 ISRB Parole Hearing

      The ISRB held a parole hearing on October 1, 2013 and issued a Decision on

November 20, 2013. The ISRB cites the requirements of RCW 9.95.009(3) and .100,

found Parejo is not parolable, and added 30 months to his minimum term. The Decision

states the two competing forensic psychological evaluations are difficult to evaluate.

      The Board is faced with considering two competing forensic evaluations,
      one completed in 2011 through the ESRC that determined Mr. Parejo
      meets criteria as a sexually violent predator under RCW 71.09, and a
      more recent evaluation from June, 2013, provided by an out-of-state
      psychologist that opines Mr. Parejo is a moderate risk for sexual
      reoffending and does not meet criteria as a sexually violent predator. Mr.
      Parejo's DOC Risk Classification Level has been assessed as "High
      Violent."



      The two psychologists involved in these separate evaluations both appear
      to have considerable experience in conducting these specialized forensic
      evaluations, however, the amount of file materials reviewed and the
      different actuarial assessments used make a comparison more difficult for
      the Board.

       The Decision states the ISRB "would like to see an updated [forensic

psychological evaluation] on Mr. Parejo from the ESRC that will again factor in age and

the conflicting arguments raised by Dr. Schlosser's evaluation."

2016 ISRB Parole Decision

       The ISRB held a parole hearing on October 20, 2015 and issued a Decision on

January 7, 2016. The ISRB cites the requirements of RCW 9.95.009(3) and .100,found


                                            9
No. 76256-7-1/10

Parejo is not parolable, and added 48 months to his minimum term. The Decision

states that "[I]ittle has changed since the Board's last hearing with Mr. Parejo. The

Board still has two competing [forensic psychological evaluations]." The ISRB notes the

2011 forensic psychological evaluation from Dr. Logan showed Parejo meets the

sexually violent predator criteria, while the 2013 forensic psychological evaluation from

Dr. Schlosser showed Parejo was a moderate risk to reoffend and did not meet the

sexually violent predator criteria. The ISRB states Parejo is "in need of an updated

[forensic psychological evaluation] to determine if he meets the criteria as a sexually

violent predator as the one completed on behalf of ESRC is now four years old."

2016 Personal Restraint Petition

       In December 2016, Parejo filed a personal restraint petition challenging the

Decision of the ISRB. Parejo argued the ISRB abused its discretion and violated his

right to due process by relying solely on the forensic psychological evaluation to

indefinitely deny parole while simultaneously refusing to refer him to the prosecuting

attorney or attorney general as a sexually violent predator under chapter 71.09 RCW.

Parejo attached a number of exhibits to his personal restraint petition, including a May

21, 2015 letter from the DOC civil commitment program administrator to Parejo's

attorney. The letter states, in pertinent part:

       Per RCW 9.95.115,"No such person shall be granted parole unless the
       person has been continuously confined therein for a period of twenty
       consecutive years, less earned good time, PROVIDED that no such
       person shall be released under parole who is subject to civil commitment
       as a Sexually Violent Predator under Chapter 71.09 RCW." The ESRC
       and Department of Corrections do not have an opinion to provide in this
       matter, other than the ISRB is mandated to follow this statute.

       In order to obtain relief, Parejo must demonstrate that he is being "'restrained



                                             10
No. 76256-7-1/11

under RAP 16.4(b) and that the restraint is unlawful under RAP 16.4(c).'" In re Pers.

Restraint of Grantham, 168 Wn.2d 204, 212-13, 227 P.3d 285(2010)(quoting In re

Pers. Restraint of Isadore, 151 Wn.2d 294, 299, 88 P.3d 390 (2004)). We scheduled a

hearing on the merits.

ISRB Motion To Dismiss as Moot

       After oral argument, the ISRB filed a motion to dismiss the personal restraint

petition as moot because the ISRB found Parejo conditionally parolable. The July 30,

2018 Decision states a May 31, 2018 forensic psychological evaluation of Parejo by Dr.

C. Mark Patterson concluded Parejo does not meet the sexually violent predator criteria.

      Based on the requirements of RCW 9.95.009(3) and RCW 9.95.100 and
      the totality of evidence and information considered by the Board, the
      Board finds that Mr. Parejo is conditionally parolable to a Mutual Reentry
      Plan (MRP). Add 36 months to his minimum term.

      NEXT ACTION:
      Transfer to an appropriate camp setting as soon as possible. Schedule a
      [RCW 9.95].100 hearing approximately 120 days prior to PERD.I61

       As a general rule, appellate courts do not consider a case that is moot. State v.

Hunley, 175 Wn.2d 901, 907, 287 P.3d 584(2012). "A case is technically moot if the

court can no longer provide effective relief." Hunley, 175 Wn.2d at 907. But even

though we can no longer provide effective relief, we have the discretion to decide an

issue that is of continuing and substantial public interest. Sorenson v. City of

Bellingham, 80 Wn.2d 547, 558, 496 P.2d 512(1972). To determine whether a case

presents an issue of continuing and substantial public interest, we consider three

factors: "'((1)][T]he public or private nature of the question presented,[(2)] the

desirability of an authoritative determination for the future guidance of public officers,


       6 Parole   eligibility release date.


                                              11
No. 76256-7-1/12

and [(3)] the likelihood of future recurrence of the question.'" Hunley, 175 Wn.2d at

9077 (quoting In re Pers. Restraint of Mattson, 166 Wn.2d 730, 736, 214 P.3d 141

(2009)).

       Here, all three factors weigh in favor of addressing RCW 9.95.115 and whether a

person is subject to civil commitment as a sexually violent predator under chapter 71.09

RCW if a prefiling forensic psychological evaluation concludes the person meets the

criteria for a sexually violent predator. Cases involving interpretation of statutes are

public in nature and provide guidance for public officials. State v. Beaver, 184 Wn.2d

321, 331, 358 P.3d 385 (2015); Hunlev, 175 Wn.2d at 907-08. The position of the ISRB

that it must deny parole under RCW 9.95.115 if a prefiling forensic psychological

evaluation concludes an inmate meets the sexually violent predator criteria is likely to

reoccur. The record shows there are approximately 11 other cases where the ISRB has

found an offender conditionally parolable, but after a forensic psychological evaluation

concluded the offender met the criteria as a sexually violent predator, denied parole.

RCW 9.95.115

       We review the ISRB parole decision and the decision to set a new minimum term

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

1103(2012); In re Pers. Restraint of Ecklund, 139 Wn.2d 166, 170, 985 P.2d 342

(1999). "[T]he courts are not a super Indeterminate Sentencing Review Board and will

not interfere with a Board determination in this area unless the Board is first shown to

have abused its discretion in setting a prisoner's minimum term." In re Pers. Restraint

of Whitesel, 111 Wn.2d 621,628, 763 P.2d 199(1988).8 We will not substitute our


       7(Second   alteration added)(internal quotation marks omitted).
       8 Emphasis in  original.


                                                  12
 No. 76256-7-1/13

discretion for that of the ISRB. Whitesel, 111 Wn.2d at 628. Although the ISRB has

 broad discretion, the ISRB must comply with state and federal law in deciding

 parolability. Dyer, 175 Wn.2d at 197; In re Pers. Restraint of Addleman, 151 Wn.2d

769, 774, 92 P.3d 221 (2004).

        RCW 9.95.115 states:

        The indeterminate sentence review board is hereby granted authority to
        parole any person sentenced to the custody of the department of
        corrections, under a mandatory life sentence for a crime committed before
        July 1, 1984, except those persons sentenced to life without the possibility
        of parole. No such person shall be granted parole unless the person has
        been continuously confined therein for a period of twenty consecutive
        years less earned good time: PROVIDED, That no such person shall be
        released under parole who is subject to civil commitment as a sexually
        Violent predator under chapter 71.09 RCW.191

        Statutory construction is a question of law that we review de novo. In re Det. of

 Martin, 163 Wn.2d 501, 506, 182 P.3d 951 (2008). Our objective is to ascertain and

carry out the intent of the legislature. Martin, 163 Wn.2d at 506. We strictly construe

statutes curtailing civil liberties to their terms. In re Det. of Swanson, 115 Wn.2d 21, 31,

804 P.2d 1 (1990). We "must avoid unlikely, absurd, or strained results" when

interpreting statutes. In re Det. of Coppin, 157 Wn. App. 537, 552, 238 P.3d 1192

(2010). We look first to the plain language of the statute. State v. Armendariz, 160

Wn.2d 106, 110, 156 P.3d 201 (2007). If the plain language is subject to only one

• interpretation, our inquiry ends. Armendariz, 160 Wn.2d at 110. Statutes must be

interpreted and construed to give all language effect with no language rendered

 meaningless or superfluous. Martin, 163 Wn.2d at 510. "'Statutes on the same subject

 matter must be read together to give each effect and to harmonize each with the

       9 The ISRB and DOC concede the plain language of RCW 9.95.115 does not apply to Parejo
 because he is not serving a mandatory life sentence. However, the ISRB and DOG argue "the logic of
 RCW 9.95.115" is analogous to the determination of parolability.


                                                  13
No. 76256-7-1/14

other.'" In re Det. of Boynton, 152 Wn. App. 442, 452, 216 P.3d 1109(2009)(quoting

US W. Commc'ns, Inc. v. Utils. & Transp. Comm'n, 134 Wn.2d 74, 118, 949 P.2d 1337

(1997)).

       The ISRB relied on the mandatory language in RCW 9.95.115 that states,"[Nlo

such person shall be released under parole who is subject to civil commitment as a

sexually violent predator under chapter 71.09 RCW"to rescind the decision to release

Parejo on conditional parole and thereafter deny parole based on a prefiling forensic

psychological evaluation that found Parejo met the criteria of a sexually violent predator.

      The plain and unambiguous language of RCW 9.95.115 only prohibits the ISRB

from releasing a person "who is subject to civil commitment as a sexually violent

predator under chapter 71.09 RCW."1° The sexually violent predator(SVP)statute,

chapter 71.09 RCW,governs whether a person is subject to civil commitment as an

SVP. In re Det. of Strand, 167 Wn.2d 180, 187, 217 P.3d 1159(2009).

      The SVP statute defines a "sexually violent predator" as "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." RCW

71.09.020(18).

       Although the ultimate goal of the [SVP]statute is to treat, and someday
       cure those whose mental condition causes them to commit acts of sexual
       violence, its immediate purpose is to ensure the commitment of these
       persons in order to protect the community. In this sense, it is similar to
       any other civil commitment. However, the Legislature has found that the
       exceptional risks posed by sexual predators, and the seemingly intractable
       nature of their illness, necessitates a specially tailored civil commitment
       approach.


       10 Emphasis added.


                                            14
No. 76256-7-1/15

In re Pers. Restraint of Young, 122 Wn.2d 1, 10, 857 P.2d 989 (1993). DOC has no

role in treating a sex predator under chapter 71.09 RCW. Young, 122 Wn.2d at 19.

       [T]he Legislature enacted a bill substantially similar to that proposed by
       the Governor's Task Force on Community Protection. In its report, the
       Task Force quite plainly recommended a civil law, because neither the
       criminal system nor the existing civil system could accommodate the
       special needs of sex predators. ... In light of the Statute's language and
       legislative history, then, it is clear that the Legislature intended a civil
       statutory scheme.

Young, 122 Wn.2d at 19.

       RCW 71.09.025(1)(a)(i) states that "[w]hen it appears that a person may meet

the criteria of a sexually violent predator as defined in *RCW 71.09.020(16),[111 the

agency with jurisdiction shall refer the person in writing" to the prosecuting attorney or

the attorney general prior to "[t]he anticipated release from total confinement of a person

who has been convicted of a sexually violent offense." The agency with jurisdiction

shall provide "all relevant information including but not limited to":

             (ii) A complete copy, if applicable, of any file compiled by the
       indeterminate sentence review board relating to the person;
             (iii) All records relating to the psychological or psychiatric
       evaluation and/or treatment of the person;[and]

             (v) A current mental health evaluation or mental health records
       review.

RCW 71.09.025(1)(b).

       While the SVP statute authorizes a prefiling forensic psychological evaluation as

part of the investigating period, a prefiling forensic psychological evaluation does not

trigger the statutory SVP proceedings. Strand, 167 Wn.2d at 187, 190. The mandatory

requirements of RCW 71.09.025(1) trigger the SVP proceedings.


        11 "Reviser's note: *(1) RCW 71.09.020 was amended by 2009 c 409 § 1, changing subsection
(16)to subsection (18)."


                                                15
No. 76256-7-1/16

        The agency with jurisdiction is the "agency with the authority to direct the release

of a person serving a sentence or term of confinement." RCW 71.09.025(3). The ISRB

is the agency with the authority to release pre-SRA12 sex offenders under chapter 71.09

RCW and the authority to refer a person to the prosecuting attorney or attorney general

for civil commitment as an SVP. RCW 9.95.140(1); RCW 71.09.025(1).13 If an SVP

petition is filed, a judge shall determine whether probable cause exists to believe the

person is an SVP. RCW 71.09.040(1). If the judge finds probable cause, the person

must be taken into custody. RCW 71.09.040(1). Within 72 hours, the court must give

the person notice and an opportunity to appear in person at a hearing to contest

probable cause. RCW 71.09.040(2). If the court determines probable cause exists, the

individual must be transferred to the custody of the Department of Social and Health

Services for placement in a total confinement facility pending trial. RCW 71.09.040(4).

Within 45 days Of the probable cause hearing, the court must schedule a trial to

determine whether the person is an SVP. RCW 71.09.050(1). "The court or jury shall

determine whether, beyond a reasonable doubt, the person is a sexually violent

predator." RCW 71.09.060(1). If that determination is made, the SVP must be

committed to the custody of the Department of Social and Health Services for

placement in a secure facility for "control, care, and treatment." RCW 71.09.060(1).




        12 Sentencing   Reform Act of 1981, chapter 9.94A RCW.
        13 The  record does not support the argument that the ISRB referred Parejo to the prosecuting
attorney under RCW 71.09.025(1). The record shows DOC "notif[ied]" the prosecuting attorney that it
"posted" files to an internal website "in preparation for" the forensic psychological evaluation, not that the
ISRB filed a referral for a civil commitment petition under RCW 71.09.025(1). The May 10, 2011
comments on the internal website state the ESRC posted "medical files[,] SOTP files, counselor files, .. .
ISRB files, police reports, ... and prosecutor files" to a secure website "in preparation for forensic
psychological evaluation assignment under RCW 71.09. An email has been sent to King County
Prosecutor's Office notifying them of this action." (Emphasis added.)


                                                      16
No. 76256-7-1/17

      Contrary to the interpretation of the ISRB, we hold RCW 9.95.115 does not

prohibit release unless the person is "subject to" civil commitment as an SVP under the

procedures of chapter 71.09 RCW. Because the ISRB granted parole, Parejo is no

longer under restraint, and we deny the personal restraint petition.




                                                 icS)-(21N-co Q,
WE CONCUR:




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