                                                                                       COURT       AD EALS
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                                                                                   2013 APR 16 AM 9: 08

     IN THE COURT OF APPEALS OF THE STATE OF WASHE
                                                                                   8
                                        DIVISION II

IN THE MATTER OF THE                                              No. 42335 9 II
                                                                            - -
DETENTION OF:

LENIER RENE AYERS,


                                                           UNPUBLISHED OPINION

                              Petitioner.




       WORSWICK, C. . —
                  J    Lenier Ayers appeals from the trial court's denial of his CR

11)
60( )( to vacate an order committing him as a sexually violent predator. Ayers argues
  b motion

that ( ) filed his motion within a reasonable period of time and (2) motion presents
     1 he                                                          his

extraordinary circumstances: alleged violations of due process and ineffective assistance of

counsel. Holding that Ayers's CR 60( )( was untimely, we affirm.
                                 11)
                                   b motion

                                             FACTS


A.     Substantive Facts


       In 1991, after three separate incidents involving girls aged 12, 13, and 14, Lenier Ayers

pleaded guilty to three counts of child molestation and one count of communicating with a minor

for immoral purposes. In 2000, Ayers violated the terms of his judgment and sentence by

contacting a 14- old girl and a 16- old girl. He pleaded guilty to two counts of fourth
               year -             year -

degree assault arising from those contacts. In 2001, the State petitioned to commit Ayers as a

sexually violent predator under chapter 71. 9 RCW.
                                          0
No. 42335 9 II
          - -



         In a bench trial held in 2005, the trial court heard conflicting testimony on whether Ayers

had a mental abnormality or personality disorder. Dr.Dennis Doren testified for the State that

Ayers suffered from, inter alia, 1)
                                 ( paraphilia, not otherwise specified (hebephilia)and (2)
antisocial personality.disorder. Ayers's expert, Dr.Richard Wollert,testified that he originally

diagnosed Ayers with hebephilia, but that he later decided hebephilia is neither a valid diagnosis

in general nor an appropriate diagnosis for Ayers. Dr. Wollert also disputed that Ayers suffered
from antisocial   personality   disorder. Ayers's counsel did not request   a   Frye hearing on

testimony about a diagnosis of hebephilia and did not object to Dr.Doren's testimony.

         Finding Dr.Doren's testimony more credible, the trial. ourt determined that Ayers
                                                              c

suffered from two mental abnormalities or personality disorders predisposing him to reoffend:

hebephilia and antisocial personality disorder. Four of Ayers's victimstwo from the incidents
                                                                        —

leading to   his 1991 convictions and two from those    leading to   his 2001 convictions —testified to


Ayers's conduct. The trial court determined that the State proved beyond a reasonable doubt that

Ayers was a sexually violent predator.

B.       Procedural History

         The trial court filed its order of commitment on September 12, 2005. Ayers appealed the

commitment order, and we affirmed the trial court in an unpublished decision. In re Det. of

Ayers, noted at 135 Wn. App. 1040 (2006)Ayers I), denied, 161 Wn. d 1027 (2007).
                                        (      review           2

After our Supreme Court denied review,we issued a mandate on November 7,2007.

1
 Hebephilia is a term for ".
                          sexual attraction to adolescents." Clerk's Papers at 11. Hereafter, we
use the term " ebephilia"in the place of paraphilia, not otherwise specified ( ebephilia)."
             h                           "                                   h
2
    Frye v. United States, 293 F. 1013 (D. .Cir. 1923).
                                         C


                                                    2
No. 42335 9 II
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         Less than four months later, on February 11, 2008, Ayers filed a pro se CR 60( )
                                                                                      b motion
for relief from the order of commitment, seeking either his release from confinement or a new

trial. Ayers never served his motion on the State; nonetheless the trial court summarily denied
Ayers's motion without a hearing.

         Ayers appealed the trial court's denial of his CR 60( )
                                                             b motion; we consolidated the

appeal with Ayers's pro se personal restraint petition ( RP).In re Det. ofAyers, noted at 155
                                                       P

Wn.App. 1014, slip op. at 3,Ayers II),
                            (        review denied, 169 Wn. d 1016 (2010).We denied the
                                                          2

PRP but,to avoid a possible jurisdictional defect, we granted the State's request to remand the

appeal with instructions to afford the State an opportunity to respond to the CR 60( )
                                                                                   b motion.

Ayers II,slip op. at 4, 12.

         On May 9,2011, Ayers filed an " mended and restated motion"in superior court to
                                       a

vacate the 2005 commitment order under CR 60( )( Papers at 85. Ayers attached
                                          11).s
                                            b Clerk'

materials purporting to show recent disagreement in the psychological community about the

validity of hebephilia as a medical diagnosis and as a basis for civil commitment. He also

alleged that his rights to due process and effective assistance of counsel were violated during the
commitment trial.


         The trial court denied the motion,ruling that ( )
                                                       1 Ayers did not file it within a reasonable

time and (2)Ayers failed to present extraordinary circumstances justifying relief from the

commitment order, in that ( )
                          a there was no due process violation because the trial court




3
    Although Ayers did not cite a subsection for this motion, his motion was based on newly
discovered evidence, an   allegedly   invalid   diagnosis, and   a   claim of evidentiary   error.
No.42335 9 II
         - -



considered and decided the validity of the diagnosis at trial and (b) s counsel was not
                                                                    Ayers'

ineffective for failing to request a Frye hearing. Ayers appeals.

                                            ANALYSIS


       Ayers argues that the trial court erroneously denied his CR 60( )( to vacate the
                                                                   11)
                                                                     b motion

commitment order. We disagree.

       We review a trial court's denial of a CR 60( )
                                                  b motion for manifest abuse of discretion.

Haley v. Highland, 142 Wn. d 135, 156, 12 P. d 119 (2000); re Det. ofMitchell, 160 Wn.
                         2                 3             In

App. 669, 675, 249 P. d 662 (2011).A trial court abuses its discretion when its decision is
                    3

manifestly unreasonable or made on untenable grounds or for untenable reasons. Mayer v. Sto

Indus.,
      Inc., Wn. d 677, 684, 132 P. d 115 (2006).This standard is also violated when a
          156 2                  3

trial court bases its decision on an erroneous view of the law. Mayer, 156 Wn. d at 684.
                                                                             2

       Unlike an appeal, a CR 60( )
                                b motion is not a means of correcting errors of law.

Burlingame   v.   Consols Mines &   Smelting Co., Wn. d 328, 336, 772 P. d 67 ( 986).
                                                106 2                  2      1

Accordingly,when a parry appeals the trial court's denial of a CR 60( )
                                                                    b motion, we review only

the trial court's decision to deny the motionnot the underlying order that the party seeks to
                                             —

vacate. Bjurstrom v. Campbell, 27 Wn. App. 449, 450 51,618 P. d 533 (1980).
                                                    -       2

        CR 60( )
             b allows a trial court to vacate a final judgment or order for specified reasons

such as mistake, inadvertence, excusable neglect, newly' iscovered evidence, and fraud. Ayers
                                                       d


4
  The State argues thatAyers cannot challenge the denial of his CR 60( )  b motion because he has
not assigned error to the trial court's findings of fact. This argument lacks merit because the trial
court did not enter findings of fact in deciding this motion. Instead,the trial court's order briefly
states legal grounds supporting its decision. When an appellant assigns error to the trial court's
ultimate legal conclusion, the appellant need not assign error to its specific legal grounds,
Johnson v. Kittitas County, 103 Wn. App. 212, 216, 11 P. d 862 (2000).
                                                       3


                                                  11
No. 42335 9 7I1
          -



based his most recent motion on CR 60( )( authorizes a trial court to vacate a
                                   11),
                                     b which

judgment for "[ ny other reason justifying relief from the operation of the judgment."However,
             a]

a party seeking relief under CR 60( )( make the motion within a reasonable time. CR
                                11)
                                  b must
60( ). the party does not move within a reasonable time,he is barred from relief under CR
  b If

60( ). re Det. of Ward, 125 Wn. App. 374, 380, 104 P. d 751 (2005).Because the trial court
  b In                                              3
did not abuse its discretion by ruling that Ayers failed to bring his motion within a reasonable

time, we affirm.

A.     The Critical Period.


       When determining whether the moving party met the reasonable time requirement, the
                                                                         .

trial court first measures the "critical period."Luckett v. Boeing Co., Wn.App. 307, 312 13,
                                                                      98                 -

989 P. d 1144 (1999).The critical period is the period between when the moving party became
     2

aware of the judgment and when the moving party actually filed the motion. Luckett, 98 Wn.
App. at 312;see In re Marriage ofThurston, 92 Wn. App. 494, 500, 963 P. d 947 (1998).
                                                                      2


5
  The State argues that Ayers's CR 60( )( is in reality a CR 60( )( for relief
                                   11)  b motion                     3)  b motion
in light of newly discovered evidence. A party must bring a motion under CR 60( )( a
                                                                            3)b within
reasonable time and within one year of entry of the judgment. CR 60( ); Luckett v. Boeing
                                                                   b see
Co., Wn. App. 307, 310, 989 P. d 1144 (1999).Further, a party cannot use the broad
     98                           2
language of CR 60( )(
                 11) circumvent the specific time requirements for CR 60( )(
                     b to                                                        3) b motions.
See Friebe v. Supancheck, 98 Wn. App. 260, 267, 992 P. d 1014 (1999).Ayers admits that his.
                                                        2
motion relies to an extent upon additional evidence not presented at the first trial." of
                           "                                                         Br.
Appellant at 16. Therefore, we regard the motion, in part, as a CR 60( )( to which the
                                                                   3) b motion
one year requirement applies. Because Ayers failed to file his motion within one year of the
    -
entry of judgment, the part of the motion based   on   newly   discovered evidence —namely,

scholarly articles arguing that hebephilia is an inappropriate basis for civil commitment is
                                                                                          —
untimely under CR 60( )(
                  3).
                    b

6 Because we hold Ayers's CR 60( )
                               b motion untimely, we do not reach his other arguments. See
Ward, 125 Wn.App. at     380 81.
                             -
No. 42335 9 II
          - -



Whether the critical period constitutes a reasonable time depends on the facts and circumstances

of each case. Luckett, 98 Wn. App. at 312.

       Here, the parties dispute the duration of the critical period. The trial court determined

that the critical period began with filing of the commitment order on September 12, 2005, and

lasted at least two years and five months until Ayers filed his original CR 60( )
                                                                              b motion on.

February 11, 2008. Ayers argues that the critical period began later, when this court issued a
mandate   terminating   his direct   appeal                                   final ";thus
                                              and the commitment order became "              Ayers

contends that the critical period ran less than four months. But Ayers does not explain how the

trial court's determination constitutes an abuse of its discretion, nor does Ayers cite authority in

support of this argument. Therefore we do not consider it. See RAP 10. (
                                                                   a)(Cowiche
                                                                     6);
                                                                     3

Canyon Conservancy v. Bosley, 118 Wn. d 801, 809, 828 P. d 549 (1992).
                                    2                  2

B.      The CR 60( )
                 b Motion Was Untimely

        The major considerations in determining the timeliness of a CR 60( )
                                                                         b motion are (1)

whether the delay during the critical period prejudiced the nonmoving party and ( )
                                                                                2 whether the

moving party has good reasons for failing to bring the motion earlier. Luckett, 98 Wn. App. at

312. The second consideration weighs strongly against Ayers.

        Here, there is no showing that the delay prejudiced the State. Without citing the record,

the State asserts that the victim witnesses "may be unavailable or unable to re-
                                                                               testify"by the

time of a retrial. Br. of Resp't at 19. Although Ayers does not contest this assertion, it is not

sufficient to show that the delay actually prejudiced the State. A party does not show actual


7
 The State argues in the alternative that the critical period continued until Ayers filed his
amended CR 60( )
               b motion on May 9,2011, after our remand in Ayers II.


                                                       G
No.42335 9 II
         - -



prejudice when, without citing the record,he claims " hat witnesses are unavailable or that
                                                    t
memories have dimmed."Russell v. Dep't ofHuman Rights, 70 Wn. App. 408, 417 18,854 P. d
                                                                            -       2

1087 (1993). .

       But,more importantly, Ayers lacks a good reason for failing to bring the motion earlier.

When appealing from a trial court's ruling that the CR 60( )
                                                         b motion was untimely, the moving

party must show good reasons explaining the delayeven if there was no prejudice to the
                                                 —

nonmoving party. Luckett, 98 Wn. App. at 313. Ayers explains that he did not file a CR 60( )
                                                                                         b

motion until two years and five months after entry of the commitment order because he hoped to

prevail in his direct appeal, without resort to collateral attack. Ayers's explanation does not

constitute a good reason.

       Even if an appeal of an order is pending, a party may move the trial court under CR 60( )
                                                                                             b

to vacate the order under review. RAP 7. (
                                      e); Park Dist. of Tacoma v. Griffith, 106
                                       2 Metro.

Wn. d 425, 438 39,723 P. d 1093 (1986);
  2            -       2              Carpenter v. Elway, 97 Wn. App. 977, 988 89,9.8
                                                                               -   8

P. d 1009 (1999).Consequently, the filing of Ayers's appeal did not prevent Ayers from filing
 2

his CR 60( )
         b motion. His hope that he would prevail on appeal does not constitute a good reason

for delaying his motion.

        Under the facts and circumstances of this case, Ayers.lacks good reason for failing to

bring his motion shortly after the order of commitment. Additionally, Ayers does not even

attempt to explain why he filed his first CR 60( )
                                               b motion more than three months after we issued

our mandate in his direct appeal. See Luckett, 98 Wn. App. at 313 (holding that,where a party

produced no good reason for a four month delay in filing a CR 60( )
                                   -                            b motion,the trial court did

not abuse its discretion by ruling that four months was not a reasonable time).Therefore the trial



                                                  7
No. 42335 9 II
          - -



court did not abuse its discretion in ruling that the motion was untimely. See Luckett, 98 Wn.

App. at 313.

C.     The CR 60( )
                b Time Requirements Are Reviewedfor Abuse ofDiscretion

       Ayers next argues that the reasonable time requirement should not bar consideration of

the merits of his arguments, because (1) CR 60( )
                                        a     b proceeding is one of Ayers's only avenues

for challenging his commitment and (2) 60( )
                                      CR b proceedings are equitable in nature. We

disagree.

       First, we review the denial of a CR 60( )
                                             b motion for an abuse of discretion. Haley, 142

Wn. d at 156. We reject Ayers's invitation to impose our notions of what may be equitable in
  2

this case.


       Second, a CR 60( )
                      b motion is not Ayers's only avenue to challenging the commitment

order. Ayers has already challenged the basis of his commitment in two separate proceedings:

his direct appeal of the commitment order and his first PRP. Ayers I,noted at 135 Wn. App.
10. 0;Ayers II,noted at 155 Wn. App. 1014. Denial of this CR 60( )
  4                                                            b motion does not prevent

Ayers from bringing a meritorious challenge to his commitment.



8
 Annual reviews of Ayers's commitment examine only whether Ayers's condition has changed
such that he is no longer a sexually violent predator or his conditional release would be more
appropriate. Annual reviews do not allow Ayers to attack the original grounds for his
commitment. See State   v.   McCuistion, 174 Wn. d 369, 386 & n. ,275 P. d 1092 (2012),
                                               2               6       3              cent.
denied, 81 U. .
           L. .3470 (US.Feb. 25, 2013) No. 12-
            W
            S         .                (     7330).
9
 Ayers's second PRP, as well as his petition for the writ of habeas corpus, alleged that the
conditions of his confinement constituted cruel and unusual punishment. See Order Lifting Stay
and Dismissing Petition,In re Pers. Restraint ofAyers, No. 39884 2 II, 1 ( Wash. Ct. App. Jan.
                                                                   - - at
28,2011)citing Report and Recommendation, Ayers v. Richards, No. C08 5390 BHS KLS,
        (                                                            -        /
2010 WL 4366069 ( D.Wa. 2010)).
                W.
No. 42335 9 II
          - -



       Third, e] aids the vigilant,not those who slumber on their rights."
              "[ quity                                                   Leschner v.

Dep't ofLabor & Indus., Wn. d 911, 927, 85 P. d 113 (1947).As Division One recognized
                      27  2           1     2

in Luckett, Washington law shows a strong preference for deciding cases on the merits."98
            "

Wn. App. at 313. But in a CR 60( )
                               b motion,that preference must be weighed against the need

for a "structured, orderly judicial system."Luckett, 98 Wn. App. at 313 14. When a party
                                                                        -

moves to vacate an order without presenting an acceptable reason for its delay in making the

request, the trial court does not abuse its discretion by denying the motion as untimely. Luckett,

98 Wn. App. at 314. Ayers fails to show any abuse of discretion here.

       Because the trial court did not abuse its discretion in ruling that Ayers's motion was

untimely,the trial court did not err in denying Ayers's motion. Accordingly, we affirm.

       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

040,
2.6.it is so ordered. „
 0




                                                                   Wor` wigx C. .
                                                                      s       J
We concur:




rintnall,
Ouinn-
     B'  J.


Van Deren, J.




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