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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint
of Alan Meirhofer.                              No. 68998-3-1
                                                (consolidated with 67932-5-1)
ALAN MEIRHOFER,
                                                DIVISION ONE
                     Petitioner,

             v.



STATE OF WASHINGTON,                            UNPUBLISHED OPINION


                     Respondent.                FILED: July 22, 2013

In the Matter of the Detention of Alan
Meirhofer.

ALAN MEIRHOFER,

                     Petitioner,

             v.



STATE OF WASHINGTON,

                     Respondent.


       Becker, J. — This case consolidates a motion for discretionary review

and a personal restraint petition brought by a sexually violent predator. The

petitioner, committed 13 years ago, seeks relief from confinement. We conclude

he has not established a basis for a new trial on whether he continues to be

mentally ill and dangerous.
No. 68998-3-1/2



       Alan Meirhofer, 35 years old at the time, pleaded guilty in 1988 to rape

and kidnapping charges involving one 13 year-old boy, and burglary and assault

charges involving another 13-year-old boy. In 1996, before Meirhofer finished

serving his sentence, the State petitioned to have him declared a sexually violent

predator. He was committed and sent to McNeil Island in May 2000, where he

has remained ever since. Meirhofer has not engaged in treatment while at

McNeil Island.

       Every year, as required by statute, the State has had Meirhofer's mental

condition reviewed by a qualified professional to determine whether or not his

confinement was still warranted. RCW 71.09.070(1); WAC 388-880-031. Under

the statutory scheme, after each annual review, a show cause hearing is held to

determine whether probable cause exists for a new evidentiary hearing on the

civil commitment. RCW 71.09.090(2)(a). The court must order a new evidentiary

hearing if, at the annual show cause hearing, the State fails to present prima

facie evidence establishing that the committed person "continues to meet the

definition of a sexually violent predator" and that a less restrictive alternative is

not warranted. RCW 71.09.090(2)(b)-(c). In making this showing, the State can

rely exclusively on the annual review report. RCW 71.09.090(2)(b). Even ifthe

State meets its prima facie burden, the confined person will still obtain a new

evidentiary hearing if the court determines that "probable cause exists to believe

that the person's condition has so changed" that he is no longer a sexually

violent predator or that a less restrictive alternative than full confinement is
No. 68998-3-1/3



appropriate. RCW 71.09.090(2)(c). Apart from the annual review process, the

confined person may independently petition the court for release at any time.

RCW71.09.090(2)(a); WAC 388-880-050(3)(b).

       As a result of legislation in 2005, the confined person cannot establish

probable cause for an evidentiary hearing merely by showing advancing age or

any other "single demographic change." RCW 71.09.090(4)(c). Ifthe State

satisfies its prima facie burden, a new hearing is available only upon a showing

that the confined person has undergone either (1) a profound and permanent

physiological change, such as a stroke, paralysis, or dementia—potentially

rendering him no longer dangerous—or (2) a profound mental change by

receiving psychological treatment services during confinement—potentially

rendering him no longer mentally ill. RCW 71.09.090(4)(b); State v. McCuistion.

174 Wn.2d 369, 392, 275 P.3d 1092 (2012). cert, denied. 133 S. Ct. 1460 (2013).

       At the commitment trial in 2000, there was expert testimony diagnosing

Meirhofer with pedophilia, paraphilia not otherwise specified (NOS) nonconsent,

and personality disorder. The State's experts estimated his risk of reoffending in

the range of 49 percent to 92 percent.

       In April 2010, State psychologist Dr. Rob Saari wrote a report of an annual

review of Meirhofer. Dr. Saari's report expressed an unambiguous opinion that

Meirhofer still met the statutory definition of a sexually violent predator and

should remain in full confinement. He did change one of Meirhofer's diagnoses

from pedophilia—sexual attraction to prepubescent children—to paraphilia NOS
No. 68998-3-1/4



hebephilia—sexual attraction to pubescent children. Dr. Saari explained that he

changed the diagnosis because of Meirhofer's refusal to admit he ever had any

sexual interest in or experience with boys younger than age 13. Dr. Saari

estimated Meirhofer was at a 30 percent risk of recidivism over 10 years.

         Meirhofer filed a motion for a new trial in February 2011, asking the

superior court to find probable cause that he was no longer a sexually violent

predator and to order an evidentiary hearing. He claimed that his petition was

supported by Dr. Saari's report and by an expert evaluation he had obtained from

Dr. Luis Rosell. Dr. Rosell expressed the opinion that Meirhofer was not a

sexually violent predator with a mental abnormality; he was merely a person who

had suffered primarily from chemical dependency issues. Dr. Rosell believed

Meirhofer's risk of reoffense was between 18 percent and 29 percent over 10

years.

         The trial court delayed making the probable cause decision until after the

Supreme Court issued its final decision in McCuistion. In the interim, Dr. Saari

performed Meirhofer's 2011 annual review. He reiterated the hebephilia

diagnosis and the 30 percent actuarial risk estimate.

         In October 2011, the trial court entered an order finding no probable cause

for a new trial. The court concluded Dr. Saari's most recent annual review met

the State's prima facie burden of justifying Meirhofer's continued commitment,

and Meirhofer had failed to show that he had suffered any debilitating physical

change or that he had participated in any treatment services. Meirhofer's motion
No. 68998-3-1/5



for discretionary review is now before this court. He has also filed a personal

restraint petition as an alternative means of establishing that grounds for

confining him no longer exist. The motion and petition have been consolidated

for review.



                   ORDER ON PROBABLE CAUSE HEARING

       Meirhofer argues discretionary review is warranted under RAP 2.3(b)(2)

because by denying Meirhofer a new evidentiary hearing, the trial court

committed probable error which substantially limited Meirhofer's freedom to act.

       This court reviews de novo a trial court's legal conclusion as to whether

evidence meets the standard of probable cause required for a sexually violent

predator to obtain a new commitment trial. In re Pet, of Petersen, 145 Wn.2d

789, 799, 42 P.3d 952 (2002). The court must order a full retrial on the person's

civil commitment if the court finds either (1) a deficiency in the State's prima facie

case for continued commitment or (2) sufficiency of proof by the committed

person that he has "so changed" that he no longer meets the criteria for a

sexually violent predator. RCW 71.09.090(2)(c); see Petersen. 145 Wn.2d at

798.

       As to the first issue, we conclude the State's evidence was not deficient.

Dr. Saari's annual review reports for 2010 and 2011 satisfied the State's prima

facie showing of a continuing basis for commitment. Dr. Saari determined that

Meirhofer was still mentally ill and dangerous to the community. Factors that Dr.

Saari considered included: (1) Meirhofer's persistent refusal, over more than 10
No. 68998-3-1/6



years, to participate in any treatment services; (2) his denial that he suffers from

any psychological problems to address in treatment; (3) his claim that his former

drug addictions were the sole cause of his violent sexual crimes against children;

(4) his unwillingness to undergo polygraph testing to assess the range of his

offending; (5) his generally guarded demeanor that suggested a lack of openness

and honesty about current sexual interests and a number of unproved child rape

accusations; (6) his lack of concern over relapsing into alcohol or

methamphetamine addiction upon release; (7) his unwillingness to consider any

supervisory conditional release program short of full release from confinement;

and (8) his generally poor insight into his psychosocial problems and the risk

associated with using substances.

       As to the second issue, we conclude Meirhofer's own evidence was

insufficient to prove that he has "so changed" that confinement is no longer

warranted. Meirhofer made no claim to have undergone any significant

physiological change beyond the mere fact of his advancing age. And he

steadfastly refused to participate in treatment services of any kind. See RCW

71.09.090(4)(b)(i)-(ii). Without prima facie evidence of one of these two specific

types of change, there is "neither a statutory nor a constitutional right to an

evidentiary hearing." McCuistion, 174 Wn.2d at 374.

       The trial court did not commit probable error warranting relief on

discretionary review when it ruled that Meirhofer failed to establish probable

cause warranting a new trial under RCW 71.09.090.
No. 68998-3-1/7



                       PERSONAL RESTRAINT PETITION

       This court will grant relief to an individual who is under unlawful restraint.

RAP 16.4(a). Confinement is a form of restraint. RAP 16.4(b). Restraint is

unlawful if, among other reasons, the restraint violates either the state or federal

constitution or any state law, RAP 16.4(c)(2), or "material facts exist which have

not been previously presented and heard, which in the interest of justice require

vacation" of the order of confinement. RAP 16.4(c)(3). Relief may be granted

under this rule if the new evidence (1) will probably change the result of trial,

(2) was discovered since trial, (3) could not have been discovered before trial by

the exercise of due diligence, (4) is material, and (5) is not merely cumulative or

impeaching. In re Pers. Restraint of Lord, 123 Wn.2d 296, 319-20, 868 P.2d

835, cert, denied, 513 U.S. 849 (1994). The standard applied under this rule is

the same as that applied to motions for new trial made on the same ground.

Lord, 123 Wn.2d at 319; State v. Williams. 96 Wn.2d 215, 223, 634 P.2d 868

(1981). The absence of any one of the five factors is grounds for the denial of a

new trial. Williams, 96 Wn.2d at 223.

       A personal restraint petition is available as a means of collateral attack

upon an initial order of commitment. McCuistion, 174 Wn.2d at 386 n.6.

Meirhofer, however, does not bring this petition as a collateral attack upon his

initial commitment. He brings it as a means of attacking his ongoing

confinement. He contends that even if this court concludes he is not entitled

under RCW 71.09.090 to a full trial on the merits, we should nevertheless grant
No. 68998-3-1/8



him that relief under the standards applicable to a personal restraint petition.

       The uncontroversial premise of Meirhofer's argument is that ongoing

confinement is unconstitutional for an individual who is no longer both mentally ill

and dangerous. Kansas v. Hendricks. 521 U.S. 346, 358, 117 S. Ct. 2072, 138

L Ed. 2d 501 (1997); Foucha v. Louisiana. 504 U.S. 71. 77. 112 S. Ct. 1780, 118

L. Ed. 2d 437 (1992). Meirhofer contends that the reports by Drs. Saari and

Rosell, both of whom found shifts in Meirhofer's mental illness diagnoses and

gave reduced actuarial estimates of his risk of reoffense, amount to newly

discovered evidence that he is no longer both mentally ill and dangerous.

Therefore, he argues, his confinement is unconstitutional unless he is allowed to

show this evidence to a jury in a new commitment trial.

       The current statute preempts the argument that an evidentiary hearing

may be granted based on the kind of "change" Meirhofer asserts he has shown.

Under the 2005 amendment to the statute, he is not entitled to an evidentiary

hearing unless he can show probable cause that he is "so changed" in either of

two ways: through physiological disability or mental change through treatment.

RCW 71.09.090(4). Because Meirhofer's new evidence does not fall into either

category, it is not material to the lawfulness of his confinement. Materiality is one

of five factors required under Lord; if it is not established, his personal restraint

petition fails. Lord, 123 Wn.2d at 319; Williams, 96 Wn.2d at 223.

       Meirhofer appears to be arguing that by filing a personal restraint petition,

he can avoid the limitations of the current statute. In fact, he suggests that



                                              8
No. 68998-3-1/9



McCuistion is authority for his argument. He cites footnote 6 in McCuistion as

holding that the statutory scheme is constitutional only because a personal

restraint petition offers an alternative route to release:

       The Court indicated that the amendments were constitutional
       because a detainee who had evidence the State was continuing to
       confine him in the absence of the constitutional requirements of
       mental illness and dangerousness could file a PRP even if he could
       not obtain relief through the annual review process.

Petition at 6 (emphasis added), citing McCuistion, 174 Wn.2d at 386 n.6.

       This argument does not accurately represent McCuistion. What the court

actually said in the passage immediately before footnote 6 was that if a detainee

possessed evidence that he was not and had never been mentally ill, such

evidence would not support relief through the annual review process because it

was in effect a collateral attack upon the initial order of commitment:

       While Dr. Coleman asserted in his declaration that Mr. McCuistion
       did not meet the criteria for confinement and indeed had never met
       these criteria, his declaration did not account for the discrepancy
       between his conclusion and the jury's initial finding that Mr.
       McCuistion met SVP criteria. Consequently, ordering a new trial on
       the basis of Dr. Coleman's declaration would have required the trial
       court to discredit the jury's initial determination, effectively allowing
       Mr. McCuistion to collaterally attack his commitment.

McCuistion, 174 Wn.2d at 386. Footnote 6 adds, "SVPs are not precluded from

collaterally attacking their initial commitment orders. However, the appropriate

vehicle for a collateral attack is a personal restraint petition." McCuistion, 174

Wn.2d at 386 n.6 (emphasis added).

       McCuistion, in short, does not authorize use of a personal restraint petition

to challenge a detainee's ongoing confinement. McCuistion holds that the
No. 68998-3-1/10



statutory scheme that allows ongoing confinement "comports with substantive

due process" precisely because the annual review process serves to identify

those detainees who are no longer mentally ill and dangerous. McCuistion. 174

Wn.2d at 388. Having failed to show that he has changed in a way that satisfies

the statutory scheme, Meirhofer is not entitled to sidestep the commitment

statute by means of a personal restraint petition.

       The motion for discretionary review is denied. The personal restraint

petition is also denied.



                                                 T^a<^g,
WE CONCUR:




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