Opinion
No. 31967-5-II
Filed: June 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No: 99-2-01241-7. Judgment or order under review. Date filed: 06/01/2004. Judge signing: Hon. F Mark McCauley.
Counsel for Appellant(s), Peter B. Tiller, The Tiller Law Firm, PO Box 58, Centralia, WA 98531-0058.
Counsel for Respondent(s), Malcolm Ross, Attorney General of Washington, 900 4th Ave Ste 2000, Seattle, WA 98164-1012.
Kevin R. Hewson appeals the trial court's order committing him to the Special Commitment Center (SCC) as a sexually violent predator, arguing that he received ineffective assistance of counsel and that the State failed to prove that he had committed a recent overt act. We affirm.
On March 28, 1978, Hewson was convicted in Grays Harbor County of indecent liberties by forcible compulsion against a victim under age 14. He received a suspended sentence and five years of probation. After Hewson absconded from probation, the Grays Harbor Superior Court issued a bench warrant for his arrest, and in 1986, Hewson was cited in California for possessing cocaine. He was returned to Grays Harbor County and ordered to serve 45 days in jail, and his probation was extended for three years.
In September 1986, Hewson was charged in California with three counts of forcible oral copulation and one count of assault with intent to commit a felony (rape). His victim was 14 years old. He was convicted on all counts and remained in a California prison until he was released and extradited to Washington. On February 25, 1991, the Grays Harbor Superior Court revoked his suspended sentence on the indecent liberties conviction and imposed a maximum sentence of up to ten years in prison.
Shortly before his scheduled release from prison, the State filed a petition for commitment of Hewson as a sexually violent predator. The petition alleged that Hewson suffers from a mental abnormality and a personality disorder that render him likely to engage in predatory acts of sexual violence if not confined in a secure facility.
The trial court found probable cause to detain Hewson as a sexually violent predator and ordered his transfer to the SCC. During the subsequent commitment hearing, the State's case-in-chief consisted of the depositions of Dr. Leslie Rawlings, a certified sex offender treatment provider, and Dr. Robert Emerick, a cardiologist who treated Hewson after his 2003 heart attack.
Dr. Emerick testified that Hewson's heart attack and resulting medications did not limit his physical or sexual capabilities. Rawlings testified that Hewson's paraphilia and antisocial personality disorder predisposed him to the commission of criminal sexual acts and rendered him unsafe in the community.
The trial court concluded that because Hewson was confined for a sexually violent offense when the State filed the sexual predator petition, the State was not required to prove that he committed a recent overt act. After concluding that the evidence proved beyond a reasonable doubt that Hewson is a sexually violent predator, the trial court ordered his commitment to the SCC. Hewson now appeals.
Hewson argues initially that he received ineffective assistance of counsel when his attorney failed to present an expert to rebut Dr. Emerick's testimony regarding the effect of his heart attack on his desire and ability to perpetrate sexually violent offenses. Dr. Emerick testified that Hewson had no physical limitations despite the attack and that while high doses of his medication could cause erectile dysfunction, Hewson was on a low dosage for six months that would not be expected to affect his sexual activity.
To establish ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. If counsel's conduct can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance.
State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987); see also In re Det. of Smith, 117 Wn. App. 611, 617, 72 P.3d 186 (2003) (applying test to sexually violent predator proceedings).
State v. Day, 51 Wn. App. 544, 553, 754 P.2d 1021, review denied, 111 Wn.2d 1016 (1988).
Hewson's attorney obtained the court's permission to retain two experts at public expense, but he called neither to testify, choosing instead to rely on nine witnesses who addressed Hewson's exemplary behavior at the SCC. Defense counsel's decision not to call the two experts was tactical and does not support a claim of ineffective assistance. Hewson's claim that defense counsel should have called an expert to rebut Dr. Emerick's deposition testimony also fails. Hewson identifies no one who would have contradicted his cardiologist's conclusions, and speculation about what an expert could have said is not sufficient to establish the prejudice needed to support a claim of ineffective assistance of counsel.
See State v. King, 24 Wn. App. 495, 499, 601 P.2d 982 (1979).
Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997); State v. Stovall, 115 Wn. App. 650, 660, 63 P.3d 192, review denied, 150 Wn.2d 1021 (2003).
Hewson also contends that his attorney failed to ensure that Rawlings was aware of Hewson's heart attack and its potential effect on his status as a sexually violent predator. The record includes a rebuttal deposition in which Rawlings stated that his diagnosis was unchanged after reviewing Hewson's testimony regarding his heart attack. Hewson's claim of ineffective assistance of counsel fails.
Hewson next claims that the State was required to allege and prove that he had committed a recent overt act before he could be committed as a sexually violent predator.
To satisfy due process, the indefinite civil detention of sexually violent predators must be based on findings of current mental illness and present dangerousness. Under RCW 71.09.030(1), the State may file a sexual predator petition when a person who has been convicted of a sexually violent offense is about to be released from total confinement. Where a person has been released from total confinement, current dangerousness may be shown by a `recent overt act,' which is `any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.' The State need not prove a recent overt act occurred between release and subsequent incarceration if that incarceration was `for a sexually violent offense, or for an act that itself would have constituted a recent overt act.' The State does need to prove a recent overt act, however, if the alleged sexually violent predator has been conditionally released into the community and the subsequent incarceration was for conduct that would not qualify as an overt act.
State v. McNutt, 124 Wn. App. 344, 347, 101 P.3d 422 (2004) (citing In re Det. of Albrecht, 147 Wn.2d 1, 7-8, 51 P.3d 73 (2002)).
In re Det. of Henrickson, 140 Wn.2d 686, 697, 2 P.3d 473 (2000).
Albrecht, 147 Wn.2d at 11.
The latter rule was announced in In re Detention of Albrecht. There, the alleged sexually violent predator had been released from total confinement and was again incarcerated for violating community placement conditions when the State filed a sexual predator petition. The Albrecht holding was based on a concern that the State could jail a person for non-sexual, non-overt conduct and then file a sexual predator petition as he or she was about to be released, thereby circumventing the recent overt act requirement. As the court reasoned, `An individual who has recently been free in the community and is subsequently incarcerated for an act that would not in itself qualify as an overt act cannot necessarily be said to be currently dangerous.'
Albrecht, 147 Wn.2d at 4-5.
In re Det. of Paschke, 121 Wn. App. 614, 623-24, 90 P.3d 74 (2004) (citing Albrecht, 147 Wn.2d at 11).
Albrecht, 147 Wn.2d at 11.
Hewson argues that his case is governed by Albrecht and that the dispositive factor on appeal is not the character of his indecent liberties conviction (which he concedes is a sexually violent offense) but the character of the event that triggered the revocation of his suspended sentence and his subsequent incarceration. He contends that the basis for the revocation could have been his failure to report while on probation and/or his cocaine offense, neither of which would qualify as an overt act. He contends further that if the revocation was triggered by his 1986 oral copulation convictions, the record does not support the implication that these offenses were sexually violent or predatory, as the trial court concluded, and that proof of a recent overt act remains to be satisfied.
This argument does not withstand scrutiny. The State filed its petition not while Hewson was serving a short jail term for a nonsexual community placement violation but while he was close to the end of a 10-year prison sentence for a sexually violent offense. The fact that he had been conditionally released to the community several years earlier is immaterial. Periods of temporary release after arrest and before extensive confinement do not modify the directive in RCW 71.09 that the State need not prove a recent overt act when the subject of a sexually violent predator petition is incarcerated for a sexually violent offense or for an act that would itself qualify as a recent overt act.
See Paschke, 121 Wn. App. at 623-24 (where person was reincarcerated on sexually violent offense for 5 years after committing parole violation, recent overt act requirement did not apply).
Henrickson, 140 Wn.2d at 693-95.
To the extent that the event triggering revocation of Hewson's suspended sentence is relevant, proof of a recent overt act still is not required, since the only reasonable conclusion is that the triggering event was his 1986 attack on a high school student and not his prior probation violations. After Hewson absconded from probation and was cited for possessing cocaine, he was returned to Grays Harbor County, jailed for 45 days, and had his term of probation extended by three years. His suspended sentence was not revoked until after he returned to California and committed three acts of oral copulation against a 14 year old in her school bathroom.
The record makes it clear that those three acts were both sexually violent and predatory. Hewson testified that after luring the girl into the bathroom, he struck her to the floor and forced his penis into her mouth three times as she struggled. Hewson claimed that the girl owed him money for cocaine, but she denied knowing Hewson or owing him money. Rawlings reviewed the official criminal history and said that it supported the victim's testimony that she was a stranger to Hewson, thus making the assault predatory. That history also demonstrated the violence of the crime: `he was banging this girl's head against a surface at the time that he was experiencing an erection and forcing his penis into this girl's mouth.'
See RCW 71.09.020(9); Deposition, at 42 (April 24, 2003).
Deposition of Dr. Leslie Rawlings (April 24, 2003) at 41.
Thus, the record shows that Hewson's suspended sentence for a sexually violent offense was revoked after he committed a second set of sexually violent offenses during his release into the community that could qualify as a recent overt act. But, because he was incarcerated for a sexually violent offense when the State filed its sexual predator petition, the State was not required to allege or prove a recent overt act.
See Paschke, 121 Wn. App. at 623 (sexual misconduct that prompted 1989 parole revocation could qualify as overt act for purposes of 1994 sexual predator proceedings).
Finally, Hewson contends that the trial court erred in not allowing evidence of a less restrictive alternative to total confinement at the SCC. Hewson raises this issue only to preserve it, recognizing that the Washington Supreme Court recently held that a trial court cannot consider less restrictive alternatives until a sexually violent predator's first annual post-commitment review.
In re Det. of Thorell, 149 Wn.2d 724, 751-53, 72 P.3d 708 (2003), cert. denied, 541 U.S. 990 (2004).
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG and HUNT, JJ., Concur.