IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON In the Matter ofthe Detention of VICTOR CANNON, Petitioner. No. 69731-5-1 (consolidated with 70170-3-1 and 71131-8-1)

In the Matter ofthe Personal Restraint ofVICTOR CANNON, Petitioner. DIVISION ONE rUNPUBLISHED OPINION

- FILED: January 11, 2016

en 

### Becker, J. — Victor Cannon, committed as a sexually violent predator,


### moves fordiscretionary review of his 2012 and 2013 show cause hearing decisions. Because we find no error inthe decisions, we deny review. He also seeks reliefvia a personal restraint petition. Because he has not shown thatthe statutory remedy available to him is inadequate, we dismiss the personal restraint petition. Victor Cannon is currently confined atthe Special Commitment Center as


### a sexually violent predatorpursuantto chapter71.09 RCW. He is entitled by statute to a written annual review by a qualified professional to determine whether he continues to meet the criteria for confinement. RCW 71.09.070. Following the annual review, he has the right to petition the courtfor release. RCW 71.09.090(2)(a). Ifhe petitions for release, the court must hold a show in-No. 69731-5-1/2



### cause hearing to determine ifsufficientgrounds exist to hold a full evidentiary hearing. RCW 71.09.090(2). Atthe show cause hearing, the State bears the burden ofpresenting prima facie evidence to establish that Cannon continues to meetthe definition of a sexually violent predator and that conditional release of 

### Cannon to a less restrictive alternative is inappropriate. RCW 71.09.090(2)(b). Alternatively, Cannon may present prima facie evidence thatthere is probable
cause to believe his condition has "so changed" that release is appropriate. RCW 71.09.090(2)(c)(ii). Ifthe State fails to meet its burden or Cannon succeeds in presenting his "so changed" evidence, the court must hold a full evidentiary hearing. RCW 71.09.090(2)(c). Cannon's annual review in2012 was the basis for a show cause hearing

on December 3, 2012. The superiorcourtfound thatthe State had met its burden to present prima facie evidence establishing that Cannon continued to meetthe definition of a sexually violent predator. Cannon did not present any otherevidence. Cannon appealed the superior court's decision by filing a motion for discretionary review with this court. See In re Pers. Restraint ofPetersen, 138Wn.2d 70, 90, 980 P.2d 1204 (1999) (discretionary review under RAP 2.3(b) is appropriate process for obtaining review ofdecisions in hearings held pursuant to RCW 71.090.090(2)). Cannon argued thatthe State had failed to meet its burden to show that he continued to meetthe definition of a sexually violent predatorbecause the annual report, on which the State exclusively relied, stated that actuarial tools predicted his recidivism rate to be between 31.2 percent and 41.9 percentwithin 10 years. Cannon also filed a personal restraint petitionNo. 69731-5-1/3 

### reiterating the same argument. Cannon filed both the motion fordiscretionary review ofthe 2012 ruling and the personal restraint petition on April 1, 2013. They were consolidated on May 23, 2013. The Statefiled a consolidated opposition to Cannon's motion for discretionary review and his personal restraint petition on July 19, 2013. Cannon's annual review in 2013 was the basis for a show cause hearing
on November 18, 2013. The superior courtagain found thatthe State had met its burden to present prima facie evidence establishing that Cannon continued to meetthe definition of a sexually violent predator. Cannon again appealed the superiorcourt's decision by filing a motion for discretionary review with this court. Inthis motion for discretionary review ofthe 2013 ruling, filed March 20, 2014, Cannon reiterated his argumentfrom the previous year. In addition, he challenged the qualifications ofthe State's expert, Dr. JonathanAllison, and he raised due process and equal protection challenges to the probable cause standard for confinement ofsexually violent predators under RCW 71.09.090. The State opposed Cannon's motion on April 11, 2014. On July 17, 2014, Commissioner Mary Neel consolidated the more recent motion for discretionary review ofthe 2013 ruling with the earlier motion and personal restraint petition pertaining to the 2012 ruling. Commissioner Neel stayed review of Cannon's proceedings pending a decision by the Washington Supreme Court inthe appeal ofInre Pers. Restraint ofMeirhofer, noted at 175 Wn. App. 1049 (2013), affirmed. 182Wn.2d 632, 343 P3d 731 (2015).No. 69731-5-1/4
TheWashington Supreme Court issued the Meirhoferdecision on February 12, 2015. Inre Pers. RestraintofMeirhofer. 182Wn.2d 632, 343 P.3d 

### 731 (2015). Accordingly, Commissioner Neel liftedthe stay on Cannon's 

### consolidated proceedings and directed the parties to filesupplemental briefing regarding the impactof Meirhofer on Cannon's pending cases. Both parties filed supplemental briefing inAugust 2015. MOTIONS FOR DISCRETIONARY REVIEW 

### Cannon seeks discretionary review of his 2012 and 2013 show cause 

### hearing decisions where the superiorcourtfound thatthe State had met its prima facie burden for continued confinement and denied Cannon a full evidentiary hearing. Cannon requests that this court grantdiscretionary review under RAP 2.3(b)(2). Underthis provision, the moving party alleges that "the superiorcourt 

### has committed probable error and the decision ofthe superiorcourt substantially alters the status quo or substantially limits the freedom of a party to act." Cannon's motions do not meetthis test. The trial court did not commit probable error.1



### 1Arguably, RAP 2.3(b)(2) is inapplicable; thetrial court decision neither impacts the parties' rights outsidethe litigation, norchanges the rights of a party or modifies some existing condition. See Stephen J. Dwyer, Leonard J. Feldman, &Hunter Ferguson, The Confusing Standards for Discretionarv Review in Washington and a Proposed Framework for Clarity, 38 Seattle U. L. Rev. 91 (2014). Instead, the applicable rule here appears to be (b)(1), obvious errorthat renders further proceedings useless. Ifthe trial court erred infinding the State met its prima facie burden, then further proceedings are useless because Cannon has been denied the evidentiary hearing to which he is entitled. We reach the same conclusion under either (b)(1) or (b)(2). There was no error, probable or obvious.No. 69731-5-1/5 

### Cannon argues thatthe Statefailed to meet its prima facie burden to establish that Cannon continued to meetthe definition of a sexually violent predator in2012 and 2013. Asexually violent predatoris defined inpart as a person who is "likely to engage inpredatory acts ofsexual violence if not 

### confined in a secure facility." RCW 71.09.020(18). Cannon contends the State did not show he was likely to reoffend because the annual report, on which the State exclusively relied, stated that actuarial tools predicted his recidivism rate to be between 31.2 percent and 41.9 percentwithin 10 years. Meirhoferdemonstrates thatthe trial courtdid not err inrejecting Cannon's argument. Meirhofer held thatthe State can make a prima facie showing that a sexually violent predator is likely to reoffend, even where actuarial tools predict a 

### rate ofreoffense ofless than 50 percent, where the State's expert opines based
on static and dynamic riskfactors and his own clinicaljudgmentthatthere has been no change inthe sexually violent predator. Meirhofer, 182Wn.2d at 645- 46. Inthis case, the State's expert, Dr. Allison, diagnosed Cannon with several disorders and identified additional dynamic risk factors in Cannon's case: sexual drive and preoccupation, deviant sexual interests, substance abuse, dysfunctional thinking style, poordecision-making, emotional deregulation, lack ofanger management skills, and lack ofinsight about his own shortcomings. Dr. Allison's diagnoses and observations are supported by the evidence reviewed in his reports, including a comprehensive account ofCannon's lengthy criminal history and Cannon's actions while incarcerated. Dr.Allison's reports for 2012No. 69731-5-1/6 

### and 2013 emphasizethat Cannon has not participated intreatmentat the Special Commitment Center. The reports state Dr. Allison's professional opinion that 

### Cannon continued to meetthe definition of a sexually violent predator. Following Meirhofer. we conclude Dr. Allison's reports satisfied the State's prima facie burden to showthat in2012 and 2013, Cannon was likelyto reoffend if not confined. 

### Cannon's motion fordiscretionary review of the 2013 showcause hearing decision raises the additional argumentthat Dr. Allison was not qualified as an expertto write thatyear's report. Awitness is qualified as an expertby knowledge, skill, experience, training or education. ER 702. Dr. Allison has 

### earned a doctorate degree in clinical psychology and is a licensed psychologist in Washington State. Bythe time he wrote Cannon's annual reportfor the 2013 show cause hearing, Dr. Allison had been working as a psychologistatthe 

### Special Commitment Centerwriting sexually violent predatorannual reports for approximately eight years. Dr. Allison thus possesses the requisite education and work experience to qualify as an expert. Cannon points out cut-and-paste errors inthe 2013 annual report as evidence of Dr.Allison's lack ofqualifications. While such errors indicate a certain sloppiness on the expert's behalf, they do not go to the heart ofthe expert's qualifications. Cannon cites to selected portions of a deposition of Dr. Allison to argue that Dr.Allison did not know the applicable legal standards for continued sexual violent predator commitment. This deposition was taken inthe
case of another individual, not Cannon. Cannon has submitted only 20 pages ofNo. 69731-5-1/7 

### the deposition, which apparently numbered at least 80 pages total, so we cannot know whetherthe deposition as a whole reflected that Dr.Allison lacked the 

### requisite knowledge ofthe standards forcontinued commitment. The deposition
was also taken approximately two months before Dr. Allison wrote Cannon's 

### 2013 annual report. Thus, itdoes not necessarily reflectwhat he knew atthe 

### time he wrote the report. Forthese reasons, we find no error inthe superior court's acceptance of Dr. Allison as a qualified expert at Cannon's 2013 show
cause hearing. 

### Cannon's motion for discretionary review ofthe superiorcourt's 2013 decision raises another argument: thatthe prima facie standard under RCW 71.09.090 violates the due process clause and the equal protection clause ofthe Fourteenth Amendment. Cannon failed to raise these constitutional issues in the superior court. Even assuming Cannon can move for discretionary review of these issues despite his failure to raise them below, his arguments are unpersuasive. Cannon's equal protection argument asserts thatthere is no rational basis for distinguishing between sexually violent predators committed under chapter71.09 RCW and mentally ill individuals committed under chapter 71.05 RCWwhen itcomes to the standard ofproofrequired incontinuing the individual's commitment. However, our Supreme Court has repeatedly held that there is a rational basis for distinguishing between sexually violent predators and other mentally ill people committed under chapter71.05 RCW. See In re Pet, of Turav, 139 Wn.2d 379, 408-13, 986 P.2d 790 (1999) (The fact that mentally ill persons committed under chapter71.05 RCW receive review hearings every 180No. 69731-5-1/8 

### days and sexually violentpredators onlyreceive annual review hearings did not 

### violate equal protectionclause becausethere is a rationalbasis for distinguishing the two groups), cert, denied. 531 U.S. 1125 (2001): In re Pet, ofThorell. 149 

### Wn.2d 724, 72 P.3d 708 (2003) (The fact that sexuallyviolent predators do not have the same least restrictive alternatives as mentally ill people committed under chapter71.05 RCW does not violate equal protection clause because there is a rational basis for distinguishing the two groups), cert, denied, 541 U.S. 

### 990 (2004). Generally, there is a rational basis fortreating sexually violent predators differently than mentally ill people committed under chapter71.05 RCW because they have a high likelihood ofreoffense, require long-term and specialized treatment, and pose a particularpublic danger. See Turav, 139 Wn.2d at410-11: Thorell. 149 Wn.2d at 749-50. Cannon's equal protection argument is unconvincing. Cannon's due process challenge is to the "probable cause" or "prima facie" standard ofproofatthe show cause hearing. However, our Supreme 

### Court has held thatthe sexually violent predatorcommitment provisions as a whole satisfy both substantive and procedural due process. See State v. McCuistion, 174Wn.2d 369, 389-90, 275 P.3d 1092 (2012), cert denied, 133 S. Ct. 1460 (2013). Cannon's due process argument is thus also unconvincing. Cannon's motions for discretionary review of his 2012 and 2013 show cause hearing decisions are denied. Cannon has moved to supplementthe appendix to his motions for discretionary review with new information about Dr.Allison's qualifications. See

8No. 69731-5-1/9 

### RAP 17.3(b)(8) (each motion fordiscretionary reviewcontains an appendix of relevant parts of the record). Dr. Allison prepared Cannon's 2015 annual report. This report contained cut-and-paste errors and internal inconsistencies. Cannon 

### conducted a lengthy deposition ofDr. Allison in2015. According to the State, this deposition "served to highlight a number ofissues regarding the report and opinion thatwere not apparent on its face—issues the State could not have anticipated." In light ofthese issues, the State moved the trial courtto continue 

### Cannon's 2015 show cause hearing. The Statewanted to have an opportunity "in light ofthe issues now apparent," to consultwith a different expert "so as to
ensure thatthe information the Court considers is thoughtful, defensible, and 

### objective." The State argued that its "hands should not be tied to an opinion that does not meet its quality standards." Cannon contends the State's motion for a continuance amounts to a 

### "concession" that Dr. Allison is unqualified and his 2015 reportwas inadequateto satisfy the State's prima facie burden. He argues thatthis 2015 "concession" is highly relevantto his claims that Dr.Allison was not qualified as an expert at his 2013 hearing and that Dr.Allison's 2012 and 2013 reports were insufficientto satisfy the State's burden. Cannon implies thatthe issue the State is concerned about inthe 2015 annual report shows that Dr. Allison was also unqualified to write the earlier reports and that the earlier reports were also insufficient. The State's motion for a continuance ofthe 2015 hearing is not a "concession" as to the 2015 report. And in any event, the 2015 documents are not relevantto our review ofthe show cause hearing decisions in2012 and 2013.No. 69731-5-1/10 

### The 2012 and 2013 show cause hearing decisions occurred years before the issues withthe 2015 annual report arose. We therefore deny Cannon's motion to supplementthe appendix. PERSONAL RESTRAINT PETITION 

### There are no special rules prohibiting those committed underthe sexually violent predator actfrom filing otherwise meritorious personal restraint petitions. Meirhofer, 182 Wn.2d at 648. However, a personal restraint petition is not a substitute for statutory avenues for review. Meirhofer, 182Wn.2d at 648. Before the merits of a substantive claim in a personal restraint petition will be considered, the petitioner must show that "other remedies which may be available to petitioner are inadequate." RAP 16.4(d); Meirhofer. 182Wn.2d at 648. 

### In this case, chapter71.09 RCW creates an adequate remedy by which a committed individual may seek relief from commitment. Acommitted sexually violent predatorwillbe entitled to an evidentiary hearing ifthe State fails to meet its burden to present prima facie evidence atthe show cause hearing establishing that he still meets the definition of a sexually violent predator. RCW 71.09.090(2). Because Cannon's only argument inthe personal restraint petition is thatthe State did not meet its prima facie burden, Cannon does not showthat the statutory avenue for reliefis inadequate. Meirhofer, 182 Wn.2d at 648. At Cannon's 2012 show cause hearing, the courtdetermined thatthe State did meet its prima facie burden. Cannon presented no countervailing evidence. The mere fact that Cannon was denied an evidentiary hearing does not mean thatthe

10No. 69731-5-1/11



### avenuefor reliefafforded by the statutewas inadequate. Cannon's challenge to the decision denying him an evidentiary hearing in 2012 is being addressed through this court's consideration of his motion fordiscretionary review of that decision, discussed above. The result is controlled byMeirhofer, just as itwould be ifwe considered Cannon's personal restraint petition. Because the opportunityto move for discretionary review is an adequate remedy, Cannon's personal restraint petition must be dismissed. 

### Insummary, Cannon's motions for discretionary review ofthe 2012 and 

### 2013 show cause hearing decisions denying him a full evidentiary hearing are both denied. Cannon's personal restraint petition is dismissed.

WE CONCUR: 

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