 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                         No. 79140-1-I
                          Respondent,
                                                         DIVISION ONE
                V.
                                                         UNPUBLISHED OPINION
ROBERT WAYNE MARRIOTT,

                          Appellant.                     FILED: March 16, 2020


       LEACH,   J.   —     Robert Marriott, currently involuntarily confined at Western

State Hospital, seeks review of a trial court order denying his petition for

conditional release. Marriott cannot appeal the order as a matter of right under

RAP 2.2 and fails to satisfy the criteria for discretionary review under RAP 2.3.

So we dismiss the appeal.

                                                 FACTS

       In 1976, Robert Marriott set a fire in his apartment. A court found him not

guilty by reason of insanity of the crime of arson in the first degree. He suffers

from chronic paranoid schizophrenia and has a history of polysubstance abuse.

During the nearly 50 years since Marriott’s first adult admission to Western State

Hospital (WSH) at age 19, WSH physicians have readmitted him for inpatient

psychiatric treatment on 14 occasions. In most instances, WSH readmitted

Marriott   after     he     stopped     taking    his    antipsychotic   medication   and

decompensated.        During a few of these episodes, Marriott either set fires or
No. 79140-1-1/2

threatened to do so.     But Marriott also experienced a substantial period of

stability. He resided in the community for approximately 20 years on conditional

release status in various group home settings.

        In October 2016, Marriott was living at a Downtown Emergency Service

Center facility with 24-hour staffing. An outpatient mental health treatment team

oversaw his care. Marriott stopped taking his medication. Due to an oversight,

facility staff did not properly report the missed medication or promptly notify

Marriott’s social worker. Ten days later, a Community Corrections Officer (CCC)

and a mental health supervisor conducted a home visit. They found Marriott in a

decompensated and psychotic condition.         He had a can of lighter fluid and a

stack of wooden matches in his room. Marriott could not explain why he needed

those items since he always used only disposable lighters. Marriott also

appeared to be intoxicated and admitted he recently consumed alcohol.

       The CCC took Marriott into custody and WSH readmitted him. The court

entered an agreed order revoking Marriott’s conditional release. Since his most

recent readmission, Marriott has resided on a locked ward at WSH.

       On March 26, 2018, Marriott filed a motion for conditional release. Among

other records, he relied on psychologist Dr. Brendon Scholtz’s 2018 evaluation.

Dr. Scholtz concluded that Marriott’s symptoms did not warrant continued

inpatient treatment at WSH. Dr. Scholtz opined that Marriott could be discharged

to a facility in the community with a detailed safety plan in place to “reduce the

risk to the public.”




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No. 79140-1-1/3

           The State opposed the conditional release. The State primarily relied on

the 2017 evaluation of psychologist Dr. Stephen Wagner, of WSH’s Forensic

Services, and letters from Marriott’s treatment team and the Public Safety

Review Panel. At an October 2018 evidentiary hearing on Marriott’s petition, the

court heard the testimony of Drs. Scholtz and Wagner, and Dr. Irma King, the

chair of WSH’s Risk Review Board. The court also considered several exhibits.

The court denied Marriott’s motion. Marriott appeals.

                                       ANALYSIS

           When a court finds a defendant not guilty of a crime by reason of insanity

and finds he is a substantial danger to other persons, or presents a substantial

likelihood of committing criminal acts jeopardizing public safety or security,

unless kept under further control by the court or other persons or institutions,

Chapter 10.77 RCW requires that the court order his or her hospitalization in a

state facility or less restrictive treatment setting.1   A person committed or placed

on conditional release for this reason “shall have a current examination of his or

her mental condition made by one or more experts or professional persons at

least once every six months.”2 Based on a periodic examination, an acquittee

may apply for conditional release or the Secretary of the Department of Social

and Health Services may recommend conditional release.3 “Conditional release

is a mechanism whereby mentally ill persons of varying                   degrees of




       1   RCW1O.77.11O(1).
       2 RCW 10.77.140.
       ~ RCW 10.77.150(1), (2).


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 No. 79140-1-1/4

 dangerousness can be conditionally reintroduced into society where it is

determined the conditions will reasonably mitigate the dangerousness.”4

        RCW 10.77.150(3)(c) requires that a court hearing an application for

conditional release determine “whether or not the person may be released

conditionally without substantial danger to other persons, or substantial likelihood

of committing criminal acts jeopardizing public safety or security.”5 When, as

here, a person petitions for conditional release without the Secretary’s approval,

he bears the burden of production and persuasion to support conditional release

by a preponderance of the evidence.6              If the court denies the application for

conditional release, the acquittee may reapply after six months.7

        The State raises as a threshold issue the reviewability of the court’s order

denying Marriott’s petition for conditional release. RAP 2.2 lists superior court

orders that a party may appeal as a matter of right. Omission of a particular

ruling or decision indicates that a party may obtain review only at the discretion of

the appellate court as provided in RAP 2.3.8

        As the State correctly notes, in State v. Howland, we held that a trial

court’s denial of a petition for conditional release is not appealable under RAP

2.2.~ While RAP 2.2 lists orders of commitment, it does not mention orders


         “State v. Reid, 144 Wn.2d 621, 630, 30 P.3d 465 (2001).
         ~ RCW 10.77.150(3)(c).
         6 State v. Platt, 143 Wn.2d 242, 251, 19 P.3d 412 (2001); RCW 10.77.200(3), (5).
         ~ RCW 10.77.150(5).
         8 In re Dependency of Chubb, 112 Wn.2d 719, 721, 773 P.2d 851 (1989).

         ~180 Wn. App. 196, 202-03, 321 P.3d 303 (2014); see also In re Det. of Petersen, 138
Wn.2d 70, 88, 980 P.2d 1204 (1999) (order on statutorily-required probable cause hearing,
preceding unconditional release hearing, is not a final order appealable as a matter of right);
State v. Coleman, 6 Wn. App. 2d 507, 512, 431 P.3d 514 (2018) (order on a motion for final
release under RCW 10.77.200 is appealable as a matter of right, partly because final release has
“drastically different” potential consequences from conditional release).


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No. 79140-1-1/5

denying the conditional release of a person who is already committed.1° We

determined in Howland that the denial of a petition for conditional release is not a

“final order” under RAP 2.2(a)(13) because (1) the superior court retains

continuing     jurisdiction   over    a   committed   person   until   that   person   is

unconditionally released; (2) the resolution of such a petition does not settle all

issues, and (3) mental health is not static and the statute allows for reapplication

after six months.11        Howland applies here and Marriott does not contend

otherwise. So, to obtain this court’s review of the order denying his motion for

conditional release, Marriot must meet the criteria for discretionary review under

RAP 2.3.

       This court will grant discretionary review only in four narrow circumstances

set forth in RAP 2.3(b):

       (1)      The superior court has committed an obvious error which would
             render further proceedings useless;

       (2)       The superior court has committed probable error and the decision
             of the superior court substantially alters the status quo or substantially
             limits the freedom of a party to act;

       (3)       The superior court has so far departed from the accepted and usual
             course of judicial proceedings, or so far sanctioned such a departure
             by an inferior court or administrative agency, as to call for review by
             the appellate court; or

       (4)       The superior court has certified, or all the parties to the litigation
             have stipulated, that the order involves a controlling question of law as
             to which there is substantial ground for a difference of opinion and that
             immediate review of the order may materially advance the ultimate
             termination of the litigation.




      10   Howland, 180 Wn. App. at 201.
      11   Howland, 180 Wn. App. at 202-03.


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No. 79140-1-1/6

       Marriott claims he has met the standard for discretionary review by

demonstrating “obvious error which would render further proceedings useless”

under RAP 2.3(b)(1). He contends the court committed obvious error by focusing

on whether he continues to suffer from mental illness, and not on the standard for

conditional release under RCW l0.77.150(3)(c), and because the record includes

no evidence that he presents a “substantial” danger. He further contends that

the alleged error renders further proceedings useless because (1) his mental

health condition is unlikely to change and (2) if he bears the burden to identify an

appropriate placement in the community, he will never be in a position to do so.

      Marriott has not met the demanding standard for discretionary review.

The findings and conclusions show that the court properly considered the

statutory criteria under RCW 10.77.150(3)(c) and determined that Marriott could

not be released with conditions that would eliminate the risk of substantial danger

to others. The court concluded:

2.    The defendant requesting a conditional release pursuant to RCW
      10.77.150, bears the burden of proof by a preponderance of the evidence.
      Mr. Marriott has failed to meet that burden. The Court finds that the
      conditions proposed by the defendant do not sufficiently mitigate the risk.

3.    As a result of his mental disease or defect, Mr. Marriott remains a
      substantial danger to other persons, or substantial likelihood of committing
      acts jeopardizing public safety or security unless kept under further control
      by the court or other persons or institutions.12

      Several additional unchallenged findings support these conclusions. As

the court found, Marriott did not dispute that he would be “at risk for

decompensation and substantial danger” if he stopped taking his medication.13

      12   cp at 330.
      13   cp at 329.


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No. 79140-1-1/7


Dr. King testified that Marriott is “dangerous when mentally unstable” and

historically, when he is psychotic he tends to engage in dangerous behavior,

including fire-setting.14

       The court also found that, according to Dr. Wagner, Marriott “would be at

an increased risk for decompensation and danger were he to be in a less

restrictive setting than WSH.”15     Dr. King testified that Marriott was presently

“mentally unstable” and he therefore required the 24-hour supervision WSH

provided to “ensure that his current risk factors are mitigated” and he does not

endanger the public.16 The court found that Marriott reports “ongoing symptoms

of paranoid schizophrenia” and “consistently expresses that he does not need to

be on medication, and that he does not wish to take them via injection,

something currently mitigated by being in a hospital setting despite lack of

insight.”17 Dr. Wagner testified that Marriott lacked insight into his mental illness,

which is a critical component to his ability to manage the illness in a non-hospital

setting. He said that Marriott believes he is “cured of schizophrenia.”18

       The court also relied on the WSH’s Risk Review Board’s determination

that conditional release was not appropriate given Marriott’s “increasing risk for

decompensation and possible danger to others.”19             The court found that,

according to Dr. King’s testimony, those risks included “ongoing psychosis,

possible depression, limited insight into his mental illness, significant and

      14 RP at 161.
      15CPat329.
      16 RP at 162.
      17 CP at 329.
      18 RPat 119.

      19CPat329.


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 No. 79140-1-1/8


constant ongoing monitoring to ensure he meets his basic needs, negative

attitude toward treatment, [and] current difficulty in his functioning even in the

setting of the inpatient level of care.” The court also relied on Dr. King’s opinion

that the current risk factors for decompensation and danger could not be

“properly mitigated in a less restrictive setting of an adult family home.”2° The

court did not apply the wrong legal standard. And the evidence in the record

supports the court’s determination that Marriott could not be released upon

conditions without substantial danger.21

        In addition, we reject Marriott’s argument that further proceedings would

be useless based on speculation that Marriott’s circumstances will not change

and the court will deny any future petition for conditional release. As was the

case in Howland, the record here demonstrates that Marriott’s mental health

status is not “static.”22    And the court’s finding that Dr. Scholtz was unaware of a

facility meeting the criteria does not equate to a finding that in order to meet the

standard for conditional release under RCW 10.77.150(3)(c), Marriott had the

burden to establish the availability of appropriate placement.




         20CPat329.
         21 Marriott challenges only Finding No. 8, because it omits one of the release conditions

recommended by Dr. Scholtz, that Marriott’s care providers would regularly update his CCC and
‘immediately” notify the CCC of any “non-compliance.” [CP 213, 328] But this omission does not
affect the outcome. The state experts and the Risk Review Board considered all of the conditions
proposed by the defense expert, including the condition of CCC notification, and concluded that
they would not sufficiently reduce the risk.
         22 Howland, 180 Wn. App. at 202.




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No. 79140-1 -119


        Marriott fails to establish obvious error that would render further

proceedings useless.    Because he has not met the stringent standard for

discretionary review, we deny review and dismiss the appeal.



                                                               /
WE CONCUR:
