criminal defendant is acquitted due to insanity, the judge
must then decide what to do with him or her. An acquitted
person who constitutes a substantial danger to others, or who
presents a substantial likelihood of committing criminal acts
jeopardizing public safety or security unless kept under
further control of the court, other persons, or institutions,
"shall" be committed under our state's
involuntary commitment statute. RCW 10.77.110(1). If those
safety concerns disappear, the insanity acquittee must be
released. Either the Department of Social and Health Services
(DSHS) or the insanity acquittee may initiate the process for
obtaining such release.
David Fletcher was found not guilty by reason of insanity of
assault and related crimes in 2013. The judge ordered him
committed. Fletcher then initiated the process for obtaining
release in 2015 by mailing a motion for release directly to
the superior court judge. The court directed Fletcher to file
with DSHS instead, and the Court of Appeals affirmed. We must
now clarify how this self-petition process works.
Specifically, we address (1) whether an insanity acquittee
can petition the court for conditional release directly
instead of applying indirectly through DSHS and (2) whether
the insanity acquittee is entitled to legal counsel when
seeking conditional release. We hold that the insanity
acquittee may petition the court directly for conditional
release. We further hold that he or she is entitled to legal
counsel once a petition for conditional release is filed with
the court or an application for release is submitted to DSHS.
We therefore reverse the Court of Appeals and remand to the
superior court for further proceedings consistent with this
and Procedural History
2013, Fletcher was acquitted by reason of insanity of
assault, attempting to elude a pursuing police officer, and
failing to remain at an accident scene. Clerk's
Papers (CP) at 4-5. The trial court then made findings and
committed him. It set Fletcher's commitment term at the
statutory maximum of 10 years, with 585 days credit for time
served. CP at 5.
years later, Fletcher mailed to the superior court judge a
letter with attached motions for conditional release and
appointment of counsel, which we are treating as motions. In
these motions and his corresponding cover letter, Fletcher
explained that he was seeking early conditional release and
requested appointment of counsel at public expense because he
was indigent. CP at 10-14.
trial judge responded to Fletcher's unfiled motion a few
days later via letter. CP at 6. In that letter, the trial
judge informed Fletcher that under RCW 10.77.150, "the
first step in this process is for the patient to apply to the
Secretary of DSHS (I presume this can be done at [the
commitment hospital]) for a Conditional Release."
Id. The trial judge attached a copy of that statute.
CP at 6-9. The trial judge further explained that
"[o]nce that has happened, the court can consider
whether a hearing is necessary and can consider appointment
of a Public Defender." CP at 6.
of submitting an application for conditional release to DSHS
through the process described in RCW 10.77.150, Fletcher
sought review of the trial judge's letter ruling in the
Court of Appeals. A panel of three Court of Appeals judges
unanimously agreed that Fletcher was required to apply for
conditional release through DSHS first. See State v.
Fletcher, 198 Wn.App. 157, 163, 168-69, 392 P.3d 1161,
review granted, 188 Wn.2d 1015, 396 P.3d 345 (2017).
But the panel split on whether Fletcher's request for
counsel should be granted. Specifically, they disagreed over
the nature of Fletcher's request for appointed counsel.
Two judges interpreted it as a request for assistance with
filing an invalid direct petition to the superior court and
held that Fletcher was not entitled to appointed counsel for
such an invalid direct petition. Id. at 164. The
dissenting judge, in contrast, interpreted Fletcher's
request for appointed counsel as a motion for assistance with
preparing an administrative application to DSHS; he would
have authorized the appointment of counsel for that purpose.
Id. at 174.
petitioned this court for discretionary review, which we
granted. Fletcher, 188 Wn.2d 1015. Given the
confusion surrounding the nature of Fletcher's pro se
filings at the superior court, we address two issues: (1)
whether an insanity acquittee can petition the superior court
directly for conditional release under RCW 10.77.200(5)
instead of applying indirectly through DSHS under RCW
10.77.150(1) and (2) whether the insanity acquittee is
entitled to the assistance of counsel under RCW 10.77.020(1)
for either procedural pathway. The answer to both questions is
yes, but the right to counsel does not attach until either
document is filed.
committing a criminal defendant acquitted by reason of
insanity, the trial court must find that the person is either
a substantial danger to others or presents a substantial
likelihood of committing criminal acts jeopardizing public
safety or security unless kept under further control of the
court, other persons, or institutions. RCW 10.77.110(1). An
examination must be conducted every six months to evaluate
the need for continued commitment. RCW 10.77.140. If the
court determines that the insanity acquitee no longer meets
these prerequisites to involuntary commitment, the insanity
acquittee must be released. State v. Reid, 144 Wn.2d
621, 630, 30 P.3d 465 (2001) (discussing circumstances for
conditional and unconditional release).
parties agree that an insanity acquittee may initiate the
process for conditional release. The parties disagree about
whether that self-petition process is limited by RCW
10.77.15O(1) to administrative applications, or whether the
insanity acquittee may also petition the superior court
directly under RCW 10.77.200(5). The parties further dispute
whether Fletcher is entitled to counsel under RCW
10.77.020(1) during the self-petition process.
Insanity Acquittee Can Choose between Petitioning the Court
Directly for Conditional Release or Applying Indirectly
already stated in a prior case, Reid, that "an
insanity acquittee is not required to first apply to the
secretary for final discharge or conditional release."
144 Wn.2d at 629. Instead, "[h]e may . . . petition the
court directly pursuant to [former] RCW 10.77.200(3)
[(1998)], " now renumbered as RCW 10.77.200(5).
Id; Laws of 2010; ch. 263, § 8.. Because the
availability of a stand-alone, direct self-petition process
was conceded in Reid, we did not engage in statutory
analysis. Suppl. Br. of Resp't, State v. Reid,
No. 70290-0, at 8 (Wash.), reprinted in 10 Briefs
144 Wn.2d (2001) ("Former RCW 10.77.200(3) (1998), under
which Reid sought release, permitted the acquittee to
petition directly to the superior court for final discharge
or conditional release from the institution in which he or
she is committed."). We conduct that analysis now and
affirm that RCW 10.77.200(5) establishes a stand-alone,
direct self-petition process.
the State does not argue that Reid's statement
that RCW 10.77.200(5) establishes a stand-alone, direct
self-petition process was wrong.Indeed, the State concedes
that Reid's statement is consistent with the
plain language of RCW 10.77.200(5),  which says that
"[n]othing contained in this chapter shall prohibit the
patient from petitioning the court for release or
conditional release from the institution in which he
or she is committed." (Emphasis added.)
Reid's interpretation of RCW 10.77.200(5) as a
stand-alone petitioning process that grants insanity
acquittees direct access to the courts is consistent with
what appears to be the legislature's
intent. Prior to 1973, an insanity acquittee
seeking release from involuntary commitment had to obtain
physician certification as a prerequisite for petitioning for
release. Former RCW 10.76.070 (1972). In 1973, the
legislature significantly overhauled the process for
committing insanity acquittees and replaced the statutes with
a new chapter, chapter 10.77 RCW. Laws of 1973, 1st Ex.
Sess., ch. 117. Under this new statutory scheme, physician
certification was no longer a prerequisite to seeking
conditional release. Instead, that prerequisite was replaced
with a different prerequisite: a recommendation from the
secretary of DSHS about whether release is merited.
Id. §§ l5(1)-(2).
legislature limited the applicability of that filing
prerequisite to non-habeas-corpus petitions. According to the
legislature, "Nothing in this chapter shall prohibit a
person committed from exercising a right presently available
to him for obtaining release from confinement, including the
right to petition for a writ of habeas corpus."
Id. § 24. The legislature also included a
second habeas corpus provision specifically related to final
(rather than conditional) discharge. That provision said
"Nothing contained in this chapter shall prohibit the
patient from petitioning by writ of habeas corpus for final
discharge." Id. § 20(3). Thus, a DSHS
letter of recommendation was not expressly required with a
habeas corpus petition but seemed to be required for other
very next year, however, the legislature, at the House
Judiciary committee's behest, amended the statutes
governing release to clarify that it did not intend to bar
direct petitions to the court for conditional release or to
limit court petitions to only habeas corpus petitions. Laws
of 1974, 1st Ex. Sess., ch. 198, § 16(3). ...