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In re Aqui

September 30, 1996

IN RE THE DETENTION OF: JOSEPH AQUI, APPELLANT.


Appeal from Superior Court of King County. Docket No: 92-2-23217-1. Date filed: 11/01/93. Judge signing: Hon. Larry Jordan.

Order Granting Respondent State of Washington's Motion to Publish Additional Portions of Opinion filed September 30, 1996 and Denying Appellant's Motion for Reconsideration November 14, 1996,

Authored by C. Kenneth Grosse. Concurring: H. Joseph Coleman, Mary K. Becker

The opinion of the court was delivered by: Grosse

GROSSE, J -- Joseph Aqui appeals his civil commitment as a sexually violent predator. Guided by our Supreme Court's decision in In re Young, *fn1 we reject his claims of constitutional violations and trial error. Specifically, while we agree that the trial court should have held a hearing on the issue of probable cause to detain within 72 hours of initial detention, dismissal of the proceeding is not the remedy. Given that Aqui was afforded a full hearing on the issue of commitment and that the absence of the 72-hour hearing did not affect the ultimate outcome of the commitment proceeding, the error was harmless. Additionally, the Legislature's decision to create this civil commitment process for sexually violent predators does not violate the separation of power doctrine because the decision to release a prisoner from custody resulting from his criminal conduct is also one of legislative creation. Aqui's remaining allegations of error are of insufficient merit to warrant reversal. Accordingly, we affirm his civil commitment.

The Indeterminate Sentence Review Board (the ISRB) ordered Aqui's release from prison. Two days before his scheduled release, the State petitioned to commit Aqui under RCW 71.09, alleging that he was a sexually violent predator. Aqui was transferred to the Special Commitment Center (the Center).

The trial court later declared RCW 71.09 unconstitutional. The State appealed to the Supreme Court. On August 9, 1993, the Supreme Court issued In re Young, which upheld RCW 71.09. On the same day, the Supreme Court directed that Aqui's case be remanded for further proceedings consistent with Young.

Aqui sought dismissal based on the failure of the State to provide a probable cause hearing within 72 hours of the Supreme Court's mandate. On September 1 the court denied the motion to dismiss and determined that the petition established probable cause, except for the failure of the State to allege the absence of less restrictive alternatives. The trial court ordered the State to amend the petition within 24 hours, which the State did. Aqui's challenge to the initial finding of probable cause was heard by the trial court on September 7 and 8. After hearing testimony from several witnesses, the court again found cause to detain Aqui.

Aqui claims that he was entitled to a probable cause hearing within 72 hours of receiving the Supreme Court's mandate. We agree.

Aqui's petition was remanded for proceedings consistent with Young. Accordingly, the trial court should have conducted a hearing within 72 hours after the case was mandated. In Young, the Supreme Court held that a person detained under RCW 71.09 must be given an opportunity to appear in person within 72 hours for a determination of whether probable cause exists to believe he or she is a sexually violent predator. *fn2 By denying Aqui's motion to dismiss based on the lack of a 72-hour hearing, the trial court erred.

The question is remedy. Had the trial court acted properly, it would have dismissed the petition and allowed the State to file a new one. Relying on In re Swanson, *fn3 Aqui contends the remedy now is to vacate his confinement order. In Swanson, our Supreme Court observed that dismissal might be proper under the civil commitment statute if there is a failure to establish legal grounds for commitment within 72 hours. Swanson provides little guidance here because in Swanson a hearing occurred within the time limit and the court did not need to dismiss. *fn4 Young, however, squarely reached the question, holding that reversal for failure to hold a probable cause hearing is not required when a party cannot show that such failure affected the ultimate outcome of the trial. *fn5 Aqui makes no showing that the ultimate outcome of his trial was affected. Significantly, Aqui received a jury trial within 45 days of remand and a jury found that he was a sexually violent predator.

Moreover, Aqui cannot complain that he was deprived of due process since the trial court twice provided Aqui with "an opportunity to appear in person to contest probable cause." *fn6 It conducted a hearing to determine whether the petition established probable cause to believe he was a sexually violent predator, and it allowed Aqui to challenge the initial finding of probable cause at an additional hearing. Although the court focused on the question of less restrictive alternatives, it did not limit the scope of this additional hearing. The trial court allowed Aqui to be represented by counsel, to testify, to present witnesses, and to cross-examine the State's witnesses. Sufficient evidence was presented at the hearing to demonstrate probable cause to hold Aqui: Aqui himself estimated that he committed 10 uncharged rapes between 1972 and 1975. The State's expert witness, Dr. Dreiblatt, testified that Aqui suffered from paraphilia disorder, that he was likely to re-offend, and that he was not a suitable candidate for any less restrictive treatment alternative.

In summary, although a 72-hour probable cause hearing should have been held, dismissal of the proceeding is not the remedy. Because Aqui was afforded a trial on the issue of commitment and because the lack of hearing within 72 hours did not affect the ultimate outcome of the commitment proceeding, the error was harmless.

Aqui also contends that the trial court improperly gave the State 24 hours to amend its petition to plead that less restrictive alternatives to total confinement were not possible. In order to demonstrate probable cause the State must make a showing about less restrictive alternatives. *fn7 Although continuances may not be used by the State to evade the requirement to determine probable cause within 72 hours, given our holding that the lack of a 72-hour hearing did not affect the ultimate outcome of this proceeding, by extension neither did the 24-hour continuance.

Aqui claims that RCW 71.09 proceedings violate the separation of power doctrine by encroaching on the ISRB's power to determine sentences. Aqui argues that because the Legislature vested power in the ISRB to release an offender if rehabilitated, and to grant or deny parole, that a ...


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