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In re Detention of Brock

Court of Appeals of Washington, Division 1

September 2, 2014

In the Matter of the Detention of Louis W. Brock, Respondent

Oral Argument February 28, 2014

Reconsideration denied October 21, 2014.

Appeal from Snohomish Superior Court. Docket No: 91-2-01736-9. Judge signing: Honorable Richard T Okrent. Judgment or order under review. Date filed: 04/20/2012.

Mark K. Roe, Prosecuting Attorney, and Seth A. Fine, Deputy, for appellant.

Eric Broman (of Nielsen Broman & Koch PLLC ), for respondent.

Authored by Michael S. Spearman. Concurring: Mary Kay Becker, Linda Lau.

OPINION

Spearman, C.J.

[183 Wn.App. 320] ¶ 1 In this case we consider whether a sexually violent predator (SVP) under chapter 71.09 RCW may waive his or her right to annually petition for unconditional release by written agreement with the State. We conclude that so long as the waiver is shown to be knowing, intelligent, and voluntary, an SVP may agree to waive the right to petition for unconditional release. Accordingly, the agreement at issue in this case is lawful and enforceable. We reverse.

FACTS

¶ 2 In 1991 Louis Brock was committed to the Special Commitment Center (SCC) following a jury determination [183 Wn.App. 321] that he met the definition of an SVP[1] under chapter 71.09 RCW.[2] In November 2007, Brock filed a

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motion for a new trial on whether he should be unconditionally released from the confinement. The trial court granted the motion on February 28, 2008. At Brock's new trial, which began in March 2010, the State offered testimony from Dr. Paul Spizman, an evaluator at the SCC. He testified that because Brock suffered from a mental abnormality and personality disorder which made him likely to engage in predatory acts of sexual violence, he met the definition of an SVP. After hearing Dr. Spizman's testimony and based on the advice of his attorneys, Brock concluded that it was unlikely he would win unconditional release at trial. He also decided a conditional release from confinement would more likely result from negotiating with the State than by a jury trial. Before the second day of testimony resumed, the parties notified the court they were attempting to settle the case. Later that same day, Brock and the State entered into a settlement agreement (" the Agreement" ).

¶ 3 The Agreement required Brock and the State to each use their " best efforts" to explore, develop, and craft an appropriate less restrictive placement alternative that would be acceptable to the SCC. Clerk's Papers (CP) at 234. In exchange, Brock agreed that " he currently continues to meet the criteria for and the definition of a[n SVP]." CP at 233. He also agreed to waive his " statutory and any constitutional right to seek, petition [for,] or accept an unconditional release or removal of his designation as a[n SVP] for a period of four (4) years from the date of [the] Order." CP at 234, ¶ 6 (Paragraph Six). This promise extended to any unconditional release that might be recommended by the SCC. Brock's counsel told the court that she had read the [183 Wn.App. 322] Agreement to Brock word for word with particular emphasis on Paragraph Six. She stated that Brock indicated he understood the agreement and " he specifically agreed to that provision [Paragraph Six] as well." Verbatim Report of Proceedings (Mar. 4, 2010) at 307. The court questioned Brock about his understanding of the Agreement and whether he was entering into it knowingly, intelligently and voluntarily. Brock answered yes to both questions.[3] VRP (Mar. 4, 2010) at 310-11. The court approved the Agreement as in the interest of justice. The parties filed the Agreement, signed by Brock, counsel for both sides, and the court. The jury was dismissed and the trial ended.

¶ 4 Seven months later, Dr. Spizman conducted an annual review of Brock, as required by statute. Based on this evaluation, Dr. Spizman " ha[d] significant uncertainty whether [Brock continued to have] a mental abnormality." CP at 147. He thus concluded Brock no longer met the criteria for continued involuntary ...


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