                                                                                                          FILED
                                                                                                   COURT OF             I S
                                                                                                        DIV S oN11
                                                                                                  201 JUL f5 ,        10 : 14 i
                                                                                                  STATE OF      AASKING'KON



                                                                                                           ti


                                                         Y'
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON.._,

                                                  DIVISION II

STATE OF WASHINGTON,                                                              No. 44314 -7 -II


                                      Appellant,


       v.



MARGIE LEE DERENOFF,                                                    PART PUBLISHED OPINION


                                      Respondent.




       LEE, J. —     In 2010, a jury found Margie Lee Derenoff not guilty of third degree assault by

reason of insanity, and the trial court ordered that she be conditionally released. In 2012, the trial

court revoked Derenoff' s conditional release because she was noncompliant with her conditions

of release   and presented        a   threat to   public   safety.     Derenoff appeals the trial court' s order


revoking her conditional release, arguing that ( 1) she had a right to be restored to competency

before attending revocation proceedings, and ( 2) the trial court erred in relying on hearsay

evidence during the revocation proceedings. We affirm the revocation order.

                                                       FACTS


        In 2009, the State        charged   Derenoff    with   third   degree   assault.   Derenoff was restored to


competency prior to her trial, and a jury later found her not guilty of the assault by reason of

insanity.    The   jury   also   found,   by   special verdict,   that Derenoff     posed a substantial   danger to
No. 44314 - -II
          7



others without continued judicial oversight but that it was not in Derenoff s or the public' s best

interest to have her detained in a state mental hospital.


         Following Derenoff' s trial, the trial court ordered her conditional release from Western

State Hospital      under a    RCW 10. 77. 110( 1)       least    restrictive     alternative (      LRA) disposition.     As


conditions of her release, the court ordered Derenoff to ( 1) submit to periodic monitoring by the

Department     of   Corrections ( DOC)        staff   for five    years; (   2) attend the Clallam County Superior

Court Mental Health docket twice              a month; (     3)   follow treatment plans, therapy sessions, and

activities   scheduled    by   her   mental    health    providers;       and (   4)    keep   her   mental   illness " in the


current state of remission [ with] no significant signs of decompensation which affect her ability

to comply with her conditional release" from Western State Hospital. Br. of Resp' t, App. C.

         For approximately two years, Derenoff substantially complied with the terms of her LRA

disposition.   However, in September 2012, Derenoff twice failed to report to the DOC and, on


three   occasions, refused     to   cooperate with     her   mental      health   providers.       Gerald Brown, the DOC


agent supervising Derenoff s release, recommended that the State detain Derenoff so that a RCW

10. 77. 190 revocation or modification hearing could be " scheduled with as much expediency as is

possible so that [ Derenoff] can be placed in the care of a mental health facility for evaluation and

stabilization."     Clerk' s Papers ( CP) at 68.


         Police subsequently detained Derenoff                    and,   at her counsel' s request, the trial court


ordered Derenoff committed to Western State Hospital for a psychological evaluation under


RCW 10. 77. 060( 1)( a) with directions:

         to determine whether [ Derenoff] is competent or responsible to proceed with the
         revocation of the least restrictive alternative, whether the defendant is or was
         insane     or   suffering    from     diminished         capacity,       and    for   a   recommendation




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No. 44314 -7 -II




           regarding revocation of the least restrictive alternative or disposition if the least
           restrictive alternative is revoked.


CP    at   51.    The State opposed this request, believing " RCW 10. 77. 060 competency evaluations

are not applicable        in    proceedings   to   revoke an   insanity   acquittee' s conditional release."        CP at


30.


            The State later moved to modify the court' s competency evaluation order because " the

doctors at Western State Hospital had consulted with the [ Attorney General] and they don' t think

they have the authority to do a competency evaluation" on an insanity acquittee ( as opposed to

someone          involved in    criminal proceedings).    Report    of    Proceedings ( RP) ( Nov. 2, 2012) at 25.


The trial court agreed and modified the temporary commitment order to reflect that Derenoff

should be evaluated solely to determine whether revocation of her LRA disposition was

warranted on         the grounds that Derenoff       presented a   danger to herself    or   the   public.   In addition,


over Derenoff' s counsel' s objections, the trial court ruled that Derenoff need not be competent

for her LRA revocation proceeding to move forward.

            In December 2012, the court held Derenoff' s LRA revocation hearing. Brown testified to

Derenoff' s        violations    of   her LRA disposition terms. .        Additionally, the State moved to admit

Western State .Hospital'          s evaluation of     Derenoff into   evidence     in lieu   of   live testimony.    The


evaluation recommended that Derenoff' s LRA disposition be revoked because she is an

imminent risk of danger to others and is not able to provide for her own basic needs of health and


safety.


            Derenoff objected to the admission of the Western State evaluation on hearsay grounds.

Derenoff also objected to the proceeding with the revocation hearing because it was " completely




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No. 44314 -7 -II



obvious"      that   Derenoff      was not competent        to   understand    the proceeding       or assist counsel.          RP


 Dec. 19, 2012)        at   95.    The trial court ruled that the evaluation had indicia of reliability, that it

would be cost prohibitive to obtain live testimony under the circumstances, and that delaying the

hearing would result in Derenoff languishing in a correctional facility.

        After hearing argument from both parties, the trial court revoked Derenoff s LRA

disposition, entered findings and conclusions, and ordered Derenoff committed to Western State

Hospital. Derenoff appeals the revocation of her LRA disposition.


                                                       ANALYSIS


COMPETENCY


        Derenoff argues that chapter 10. 77 RCW mandates that a person acquitted of a crime by

reason of insanity be competent before the court may revoke his or her LRA disposition.

Alternatively,       she    argues    that due    process    concerns "      forbid the revocation of conditions of


release of a person lacking a rational and factual understanding of the proceedings and sufficient

                                  her lawyer                in   preparing her   defense."    Br.        Appellant         8.   We
ability to    consult with                     and assist                                           of                at




disagree because nothing in chapter 10. 77 RCW requires a defendant to be competent during a

revocation proceeding and because sufficient due process protections exist to prevent erroneous

deprivation of an insanity acquittee' s liberty.

         A.          STATUTORY SCHEME


         We     review questions of         statutory interpretation de          novo.     State v. Bao Dinh Dang, 178

Wn.2d 868, 874, 312 P. 3d             30 ( 2013). " The purpose of statutory interpretation is to determine and

carry   out   the intent      of   the legislature."    State v. Sweat, 180 Wn.2d 156, 159, 322 P. 3d 1213


 2014). "                    interpretation begins               the                                     Lake        Woodcreek
              Statutory                                with            statute' s plain   meaning."             v.
No. 44314 - -II
           7




Homeowners Ass'             n,   169 Wn.2d 516, 526, 243 P. 3d 1283 ( 2010).                          We evaluate the plain meaning

of   the   statute "   from the ordinary meaning of the language at issue, the context of the statute in

which      that   provision          is found,     related provisions, and              the statutory   scheme as a whole."         State v.


Engel, 166 Wn.2d 572, 578, 210 P. 3d 1007 ( 2009). "` Statutes must be interpreted and construed


so    that    all   the     language            used     is   given      effect,      with   no   portion      rendered   meaningless        or



superfluous. '         State         v.    P., 149 Wn.2d 444, 450, 69 P. 3d 318 ( 2003) ( internal quotation marks
                                          J.


omitted) (     quoting Davis               v.   Dep' t   of Licensing, 137 Wn.2d 957, 963, 977 P. 2d. 554 ( 1999)).                      We


 cannot add words or clauses to an unambiguous statute when the legislature has chosen not to

include that language."                    State   v.   Delgado, 148 Wn.2d 723, 727, 63 P. 3d 792 ( 2003).                      Moreover,


     s] tatutes are to be read together, whenever possible, to achieve a ` harmonious total statutory

scheme ...          which maintains                the    integrity      of   the respective      statutes.'     State ex rel. Peninsula


Neighborhood Ass'                n    v.   Wash.        Dep' t   of   Transp.,        142 Wn.2d 328, 342, 12 P. 3d 134 ( 2000)


 quoting Employco Pers. Servs., Inc.                             v.   City    of Seattle, 117 Wn.2d 606, 614, 817 P. 2d 1373


 1991)).


             Here, RCW 10. 77. 050                  states     that "[   n] o incompetent person shall be tried, convicted, or


sentenced         for the   commission of an offense"                         while   incompetent.      However, an LRA revocation


hearing is not a trial for the commission of an offense; rather, it is a civil proceeding occurring

after a defendant has been acquitted by reason of insanity at the end of a criminal trial.

Accordingly, RCW 10. 77. 050 is inapplicable to LRA revocation hearings.

             RCW       10. 77. 190          governs           LRA     revocation       hearings.       Under RCW          10. 77. 190( 4),    a




revocation hearing is held to determine " whether the conditionally released person did or did not




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No. 44314 -7 -II



adhere to the terms and conditions of his or her release, or whether the person presents a threat to

public   safety."   Nothing in the statute requires the insanity acquittee to be competent.

         Moreover, RCW 10. 77. 020( 1)              envisions the possibility that certain proceedings, like

LRA revocation hearings, may involve a person who is not competent but is represented by

counsel:




         At any and all stages of the proceedings pursuant to this chapter, any person
         subject to the provisions of this chapter shall be entitled to the assistance of
         counsel ....   A person may waive his or her right to counsel; but such waiver
         shall only be effective if a court makes a specific finding that he or she is or was
         competent to so waive.


RCW 10. 77. 020( 1)'      s discussion of competency in specific circumstances would be superfluous

if competency were required in every proceeding under chapter 10. 77 RCW.

         Applying principles of statutory construction, we observe that the legislature expressly

requires competency in certain circumstances, such as criminal proceedings, RCW 10. 77. 050,

and waiver of counsel,          RCW 10. 77. 020( 1).     Yet the legislature does not .
                                                                                      require competency for

other circumstances,           such as   hearings to   revoke      RCW 10. 77. 110( 1)       LRA conditional releases.


We decline Derenoff s request to read in a competency requirement where the legislature has

chosen    to   omit such       language.     We hold, therefore, that chapter 10. 77 RCW does not require


that a defendant be restored to competency before or during his or her LRA revocation hearing.

Derenoff s statutory challenge fails.

          B.        DUE PROCESS


          Derenoff next argues that, as in criminal proceedings, an insanity acquittee must be

restored    to competency        for   an   LRA   revocation   hearing   because "[ r] evocation of an incompetent


person' s   liberty   is ...     de facto   unfair" and violates      her   right   to   procedural   due   process.   Br. of




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No. 44314 - -II
          7



Appellant       at   8.    We hold that an insanity acquittee' s due process rights are sufficiently protected

under chapter 10. 77 RCW by other safeguards, such as assistance of counsel, when he or she is

incompetent during LRA revocation proceedings.

         We review questions of law, including constitutional due process guarantees, de novo. In

re   Det. of Fair, 167 Wn.2d 357, 362, 219 P. 3d 89 ( 2009). "[                           C] ivil commitment for any purpose

constitutes a significant               deprivation    of   liberty   that   requires   due   process protection."   Addington v.


Texas, 441 U. S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 ( 1979);                               see also In re Det. ofHarris,

98    Wn.2d 276,                279,    654 P. 2d     109 ( 1982) . ( "[ D] ue process            guaranties must accompany

involuntary commitment for mental disorders. ").

         Procedural due process prohibits the State from depriving an individual of protected

liberty interests              without appropriate procedural safeguards.                  In re Pers. Restraint of Bush, 164

Wn. 2d 697, 704, 193 P. 3d 103 ( 2008).                          Procedural due         process "[   a] t its core is a right to be


meaningfully heard, but its minimum requirements depend on what is fair in a particular
context."       In        re   Det. of Stout, 159 Wn. 2d 357, 370, 150 P. 3d 86 ( 2007) (                      citing Mathews v.

Eldridge, 424 U. S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976)).                                       To determine what


procedural due process requires in a particular context, appellate courts employ the Mathews test,

balancing three factors:

           1)    the       private      interest   affected, (    2) the risk of erroneous deprivation of that
          interest through existing procedures and the probable value, if any, of additional
          procedural             safeguards,       and (   3)   the governmental interest, including costs and
          administrative               burdens   of additional procedures.
No. 44314 -7 -II



Stout, 159 Wn.2d         at   370 ( citing Mathews, 424 U. S.          at   335).    Whether an insanity acquittee must

be competent at his or her LRA revocation proceedings to satisfy procedural due process

requirements is a matter of first impression.


            Here, the first Mathews factor, regarding Derenoff' s private interests, clearly weighs in

Derenoff s favor because forced hospitalization deprives her of significant liberty interests.

Addington, 441 U. S.          at   425. The State does not contest this.


            As for the second Mathews factor, existing procedures sufficiently safeguard against the

erroneous       deprivation        of   Derenoff' s    liberty   interests.    RCW 10. 77. 020( 1)            provides   that all



insanity      acquittees subject         to LRA    revocation are      entitled     to   counsel.    Derenoff's rights were


vigorously       represented        by   counsel      throughout      the LRA        proceedings      here.     Also,    insanity

acquittees are entitled        to an immediate         mental examination           before   the   revocation   hearing.   RCW


10. 77. 190( 2).       This assures that the trial court has expert information concerning the insanity

acquittee' s mental health before deciding whether to modify or revoke an LRA disposition.

Derenoff received such an examination before her revocation hearing.

             And,     revoking Derenoffs LRA disposition does not result in her indefinite civil

commitment. Instead, under the statutory scheme, the State may not hold an insanity acquittee in

a state mental health facility for longer than the maximum possible penal sentence for the crime

charged.'       RCW 10. 77. 025.          Thus, the LRA revocation entitles the State to place Derenoff in a


mental health facility for no longer than the remainder of her maximum possible penal sentence

    five   years).    Even then, persons committed to a mental health facility after an LRA revocation


1
    At the conclusion of this period, the State may seek to have an insanity acquittee involuntarily
committed        to   a state mental      health   facility   under chapter     71. 05 RCW.          This procedure, in turn,
involves further due process protections.


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No. 44314 -7 -II



must       be    examined        by     mental    health    professionals   at   least    once   every    six   months.    RCW


10. 77. 140.          Following such examination, the secretary of the Department of Social and Health

Services ( or his or her designee) or the examinee, may request conditional release and restoration

of   his   or   her LRA disposition. RCW 10. 77. 150.                   Furthermore, an insanity acquittee may request

conditional release every six months. RCW 10. 77. 150( 5).

            Thus,          although risk of an erroneous deprivation of liberty is a real concern, the

procedures currently in place under chapter 10. 77 RCW provide significant procedural

safeguards           for   insanity    acquittees   facing   LRA   revocations. •    Derenoff has failed to explain how .


being restored to competency would decrease the likelihood of an erroneous deprivation of her

liberty interests or why the procedural safeguards in place under chapter 10. 77 RCW are

insufficient to satisfy due process under the second Mathews factor.

            The third Mathews factor —the                  governmental interest, including costs and administrative

burdens         of additional procedures— weighs               heavily    in favor   of   the State.   The State has a strong

interest in          detaining " mentally        unstable   individuals   who present a      danger to the      public."   United


States     v.    Salerno, 481 U. S. 739, 748 -49, 107 S. Ct. 2095, 95 L. Ed. 2d 697 ( 1987).                           And, the


LRA revocation/ modification proceeding under RCW 10. 77. 190 is designed to efficiently

determine whether an insanity acquittee has violated the conditions of her release and presents a

danger to herself               or    others.   Requiring that an insanity acquittee be restored to competency

before revocation proceedings would nullify any efficiencies without any increase in procedural

safeguard            benefits.       Finally, under the current statutory scheme, trial courts have discretion to

modify          an   insanity    acquittee' s conditional release.        RCW 10. 77. 190( 4).         Accordingly, if the trial

court considers it in the best interests of the insanity acquittee and the public to restore an



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No. 44314 -7 -II




insanity acquittee to competency so that she can resume her LRA disposition, the trial court may

order such restoration as a modification of          the LRA disposition.       Maintaining the trial court' s

discretion to efficiently address and modify conditions of an acquittee' s release is a significant

governmental interest.


        On balance, the Mathews factors weigh against requiring that an insanity acquittee be

restored   to competency before his        or   her LRA   revocation/ modification   hearing.   Chapter 10. 77


RCW provides numerous and sufficient procedural due process protections and, under the

statutory scheme, there is little risk that an insanity acquittee would erroneously be deprived of

significant   liberty   interests. We affirm the trial court' s revocation of Derenoff s 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 shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.


REPORT IN LIEU OF LIVE TESTIMONY


        Derenoff next argues that the trial court violated her due process rights to confront


witnesses when it relied exclusively on Dr. Hendrickson' s evaluation from Western State
Hospital      in revoking her LRA disposition.          Because the trial court established good cause for


relying on the Western State Hospital evaluation in lieu of live testimony, the trial court did not

err by admitting the evaluation.

        We review questions of law, including constitutional due process guarantees, de novo. In

re   Fair, 167 Wn.2d       at   362. "   When confronted with revocation of a qualified or conditional


liberty, the United States Supreme Court has indicated that limited Fourteenth Amendment due

process guaranties       apply."   Dang,   178 Wn. 2d   at   883. " These rights include the right to confront




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No. 44314 -7 -II .




and     cross- examine       witnesses       unless      there    is     articulable        good    cause   for    disallowing

confrontation."      Dang, 178 Wn.2d at 883.

           Like   parole,    sentencing       modification,       and     SSOSA [ special sex offender sentencing


alternative] revocation, the trial court' s revocation of an insanity acquittee' s conditional release

implicates a conditional liberty dependent on the observance of special terms and conditions."

Dang,     178 Wn.2d    at    883.     Thus, "   hearsay evidence should be considered only if there is good

cause to forgo live testimony." State             v.   Dahl, 139 Wn.2d 678, 686, 990 P. 2d 396 ( 1999). " Good


cause is defined in terms of `difficulty and expense of procuring witnesses in combination with

demonstrably      reliable     or     clearly    reliable   evidence. "'          Dahl,      139 Wn.2d      at    686 ( internal


quotations omitted) (       quoting State v. Nelson, 103 Wn.2d 760, 764 -65, 697 P. 2d 579 ( 1985)).

          For instance, in Dahl, the trial court relied on hearsay evidence in a SSOSA revocation

hearing that was " neither demonstrably reliable nor necessary, due to the difficulty in procuring

live   witnesses."    139 Wn. 2d       at   687. Because the defendant' s SSOSA " revocation appear[ ed] to


have been based,      at   least in   part, on consideration of          the [ hearsay],"      the Supreme Court held that


the trial court' s failure to establish a good cause basis for relying on the hearsay was not

harmless    and remanded       for    a new     hearing.    Dahl, 139 Wn.2d            at   689.   Similarly, in State v. Abd-

Rahmaan, 154 Wn.2d 280, 290 -91, 111 P. 3d 1157 ( 2005), the Supreme Court held that a trial


court' s sentence modification was invalid because it relied on hearsay evidence during the

modification proceeding without establishing good cause.


          Here, unlike in Dahl and Abd-Rahmaan, the trial court did articulate good cause for

relying   on   the Western State Hospital              evaluation      in lieu   of   live testimony. In its oral ruling on


whether to admit the evaluation, the trial court stated:




                                                                 11
No. 44314 -7 -II



         I do find there is good cause to admit that [ evaluation] in lieu of live testimony for
         a number of reasons. Number 1, the Court is very, very familiar with the staff, the
         processes, the [ evaluations] generated by Western State [ H] ospital [ and] we rely
         on them on almost a daily basis, uh, without the benefit of live testimony. There

          are]     certainly indicia       of   reliability in these [        evaluations].            As I indicated, the

         Court has come to rely upon the opinions of the experts at Western State Hospital
         in precisely these kinds of situations.
                  Second], it is very, very expensive and logistically challenging to get Dr.
         Hendrickson or one of his colleagues to get [ here] and provide live testimony. I
         think it' s safe to assume that were that to happen, what we' d get is a verbal
         recitation       of    what    is      written       in     the [    evaluation]         and     get        the   same

         recommendations.           Yes, it     would    be   subject    to            examination
                                                                              cross[ - ]                       but that would
         be of minimal benefit to the Court in these circumstances.
                    Finally, it would consume a great deal more time which means Ms.
         Derenoff remains in jail and that is not something I want to see happen. If I were
         to keep the [ evaluation] out at this point now ... she would continue to languish
         in a correction facility rather than a treatment facility.
                    I think it is to her benefit to have this hearing this morning and get on with
         this    and,   uh,    for those     reasons     I   will   admit     the [   evaluations]        as    a   substantive

         evidence at this hearing.

RP ( Dec. 19, 2012) at 76 -77.


         The trial      court' s oral   ruling     set   forth     good cause: (       1)   it articulated the cost prohibitive


nature   of   requiring live testimony             under      the   circumstances           of   the   case, (      2) it explained the


reliability   of   the Western     State   evaluation, (      3) it acknowledged the logistical challenges securing

live testimony in this case posed, and ( 4) it recognized that the delay necessary to secure live

testimony     would cause        Derenoff to languish in             a correctional         facility. Thus, the trial court did

not err in admitting and relying on the evaluation in lieu of live testimony.




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No. 44314 -7 -II




        We affirm the revocation order.




We concur:




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