### FILED COURT OF I S 

### DIV S oN11 201 JUL f5 , 

### 10 : 14 i STATE OF AASKING'KON

ti IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON.._, Y'

STATE OF WASHINGTON,

v. MARGIE LEE DERENOFF, DIVISION II
Appellant,

Respondent. No. 44314 - 7 -II

PART PUBLISHED OPINION

LEE, J. — 

### In 2010, ajuryfound Margie Lee Derenoffnot guilty ofthird degreeassaultby 

### reason ofinsanity, andthetrial court ordered thatshe be conditionally released. In 2012, thetrial court revoked Derenoff's conditional release because she was noncompliant with her conditions
of release and presented a threat to public safety. Derenoff appeals the trial court's order 

### revoking her conditional release, arguing that (1) she had a right to be restored to competency 

### before attending revocation proceedings, and (2) the trial court erred in relying on hearsay evidence duringthe revocation proceedings. We affirm the revocation order. FACTS In 2009, the State charged Derenoff with third degree assault. Derenoff was restored to 

### competency prior to her trial, and ajury later found her not guilty ofthe assault by reason of insanity. The 

### jury also found, 

### by special verdict, that Derenoff posed a substantial danger toNo. 44314 - 7 -II others without continued judicial oversight but that it was not in Derenoffs or the public' s best interest to have her detained in a state mental hospital. 

### Following Derenoff's trial, the trial court ordered her conditional release from Western State Hospital under a RCW 10.77. 110( 1) least restrictive alternative ( LRA) disposition. As 

### conditions ofher release, the court ordered Derenoffto (1) submitto periodic monitoring by the Department of Corrections ( DOC) staff for five years; ( 

### 2) attend the Clallam County Superior Court Mental Health docket twice a month; ( 3) 

### follow treatment plans, therapy sessions, and activities scheduled 

### by her mental health providers; and ( 4) 

### keep her mental illness " in the 

### current state of remission [with] no significant signs ofdecompensation which affect her ability 

### to complywith herconditional release" from Western State Hospital. Br.ofResp't,App.C. For approximatelytwo years, Derenoffsubstantially complied withtheterms ofher LRA disposition. However, in September 2012, Derenoff twice failed to report to the DOC and, on three occasions, refused to cooperate with her mental health providers. Gerald Brown, the DOC 

### agent supervising Derenoffs release, recommendedthatthe State detain Derenoffso thataRCW 10.77.190 revocation or modification hearing could be " scheduledwith as much expediency as is possible so that [Derenoff] can be placed inthe care ofa mental health facility for evaluation and
stabilization." Clerk' s Papers (CP) at 68.

Police subsequently detained Derenoff and, at her counsel' s request, the trial court ordered Derenoff committed to Western State Hospital for a psychological evaluation under RCW 10.77.060( 1)( a) with directions: to determine whether [Derenoff] is competent or responsible to proceed with the revocation of the least restrictive alternative, whether the defendant is or was insane or suffering from diminished capacity, and for a recommendation
2No. 44314 - 7 -II 

### regarding revocation ofthe least restrictive alternative or disposition ifthe least restrictive alternative is revoked. CP at 51. 

### The State opposed this request, believing " RCW 10.77.060 competency evaluations

are not applicable in proceedings to revoke an 

### insanity acquittee' s conditional release." CP at 30. 

### The State later moved to modify the court's competency evaluation order because " the doctors at Western State Hospital had consulted with the [Attorney General] andtheydon'tthink they have the authority to do a competency evaluation" on an insanity acquittee (as opposed to

someone involved in criminal proceedings). Report of Proceedings ( RP) ( Nov. 2, 2012) at 25. 

### The trial court agreed and modified the temporary commitment order to reflect that Derenoff 

### should be evaluated solely to determine whether revocation of her LRA disposition was warranted on the grounds that Derenoff presented a danger to herself or the public. In addition, over Derenoff's counsel' s objections, the trial court ruled that Derenoff need not be competent 

### forher LRA revocation proceeding to move forward. In December 2012,the court held Derenoff's LRA revocation hearing. Brown testified to Derenoff' s violations of her LRA disposition terms. . 

### Additionally, the State moved to admit Western State .Hospital' s evaluation of Derenoff into evidence in lieu of live testimony. The evaluation recommended that Derenoff's LRA disposition be revoked because she is an imminent risk ofdanger to others and is not able to provide for her own basic needs ofhealth and safety. 

### Derenoff objected to the admission ofthe Western State evaluation on hearsay grounds. 

### Derenoffalso objected tothe proceeding with the revocation hearing because itwas " completely

3No. 44314 - 7 -II

obvious" that Derenoff was not competent to understand the proceeding or assist counsel. RP Dec. 19, 2012) at 95. 

### The trial court ruled that the evaluation had indicia of reliability,that it 

### would be costprohibitive to obtain live testimony underthe circumstances, and that delaying the 

### hearing would result in Derenofflanguishing in acorrectional facility. After hearing argument from both parties, the trial court revoked Derenoffs LRA disposition, entered findings and conclusions, and ordered Derenoff committed to Western State Hospital. Derenoffappeals the revocation ofher LRA disposition. ANALYSIS COMPETENCY 

### Derenoff argues that chapter 10.77 RCW mandates that a person acquitted ofa crime by 

### reason of insanity be competent before the court may revoke his or her LRA disposition. Alternatively, she argues that due process concerns " forbid the revocation of conditions of 

### release ofaperson lacking a rational and factual understanding ofthe proceedings and sufficient ability to consult with her lawyer and assist in preparing 

### her defense." Br. ofAppellant at 8. We 

### disagree because nothing in chapter 10.77 RCW requires a defendantto be competent during a revocation proceeding and because sufficient due process protections exist to prevent erroneous deprivation ofan insanity acquittee' s liberty.

A. STATUTORY SCHEME We review questions of statutory interpretation de novo. 

### State v. Bao Dinh Dang, 178 Wn.2d 868, 874, 312 P.3d 30 (2013). " 

### The purpose ofstatutory interpretation isto determine and carry out the intent of the legislature." State v. Sweat, 180 Wn.2d 156, 159, 322 P.3d 1213 2014). " 

### Statutory interpretation begins with the statute' s plain meaning." Lake v. WoodcreekNo. 44314 - 7 -II Homeowners Ass' n, 169 Wn.2d 516, 526, 243 P.3d 1283 ( 2010). We evaluate the plain meaning
of the statute " 

### from the ordinary meaning ofthe language at issue, the context ofthe statute in
which that provision is found, related provisions, and the statutory scheme as a whole." State v. Engel, 166 Wn.2d 572, 578, 210 P. 3d 1007 (2009). "` Statutes must be interpreted and construed

so that all the language used is given effect, with no portion rendered meaningless or superfluous. ' State v. J. P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) ( internal quotation marks omitted) (quoting Davis v. 

### Dep' t of

### Licensing, 137 Wn.2d 957, 963, 977 P.2d. 554 ( 1999)). We cannot add words or clauses to an unambiguous statute when the legislature has chosen not to include that language." State v. Delgado, 148 Wn.2d 723, 727, 63 P.3d 792 (2003). Moreover, s]tatutes are to be read together, whenever possible, to achieve a ` harmonious total statutory
scheme ... which maintains the 

### integrity of the respective statutes.' State ex rel. Peninsula Neighborhood Ass' n v. Wash. 

### Dep' t of 

### Transp., 142 Wn.2d 328, 342, 12 P. 3d 134 ( 2000) quoting Employco Pers. Servs., Inc. v. 

### City of Seattle, 117 Wn.2d 606, 614, 817 P.2d 1373 1991)).Here, RCW 10. 77.050 states that "[ n]o incompetent person shall be tried, convicted, or
sentenced for the commission of an offense" while incompetent. However, an LRA revocation 

### hearing is not atrial for the commission ofan offense; rather, it is a civil proceeding occurring after a defendant has been acquitted by reason of insanity at the end of a criminal trial. 

### Accordingly, RCW 10.77.050 is inapplicable to LRA revocation hearings.

RCW 10. 77. 190 governs LRA revocation hearings. Under RCW 10. 77. 190(4), a 

### revocation hearing is held to determine "whetherthe conditionally released person did or did not

5No. 44314 - 7 -II adhere to the terms and conditions ofhis or her release, or whether the person presents a threat to public safety." 

### Nothing inthe statute requiresthe insanityacquittee to be competent.

Moreover, RCW 10.77.020( 1) 

### envisions the possibility that certain proceedings, like 

### LRA revocation hearings, may involve a person who is not competent but is represented by
counsel: 

### At any and all stages of the proceedings pursuant to this chapter, any person subject to the provisions of this chapter shall be entitled to the assistance of counsel .... 

### A person may waive his or her right to counsel; but such waiver 

### shall only be effective ifa court makes a specific finding that he or she is orwas competent to so waive. RCW 10. 77.020( 1)' 

### s discussion ofcompetency in specific circumstances would be superfluous 

### ifcompetencywere required in every proceeding underchapter 10.77 RCW. 

### Applying principles of statutory construction, we observe that the legislature expressly requires competency in certain circumstances, such as criminal proceedings, RCW 10.77.050,
and waiver of counsel, RCW 10.77.020( 1). 

### Yetthe legislature does not . require competency for
other circumstances, such as hearings to revoke RCW 10.77. 110( 1) LRA conditional releases. 

### We decline Derenoffs request to read in a competency requirement where the legislature has
chosen to omit such language. We hold, therefore, that chapter 10.77 RCW does not require 

### that a defendant be restored to competency before or during his or her LRA revocation hearing. Derenoffs statutory challenge fails.

B. DUE PROCESS 

### Derenoff next argues that, as in criminal proceedings, an insanity acquittee must be
restored to competency for an LRA revocation 

### hearing because "[ r]evocation of an incompetent person' s 

### liberty is ... de facto unfair" and violates her right to procedural due process. Br. of
6No. 44314 - 7 -II Appellant at 8. 

### We hold that an insanity acquittee's due process rights are sufficiently protected 

### under chapter 10.77 RCW by other safeguards, such as assistance ofcounsel, when he or she is incompetent during LRA revocation proceedings. 

### We reviewquestions oflaw, including constitutional due process guarantees, de novo. In

re Det. ofFair, 167 Wn.2d 357, 362, 219 P. 3d 89 (2009). "[ 

### C]ivil commitment for any purpose constitutes a significant deprivation of

### liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d 323 ( 1979); 

### see also In re Det. ofHarris, 98 Wn.2d 276, 279, 654 P. 2d 109 ( 1982) . ( "[D]ue process guaranties must accompany 

### involuntary commitmentfor mental disorders. "). Procedural due process prohibits the State from depriving an individual of protected liberty interests without appropriate procedural safeguards. 

### In re Pers. Restraint ofBush, 164 Wn.2d 697, 704, 193 P.3d 103 ( 2008). Procedural due process "[ a]t its core is a right to be 

## meaningfully heard, but its minimum requirements depend on what is fair in a particular
context." In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d 86 ( 2007) ( 

### citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976)). To determine what 

### procedural due process requires in aparticular context, appellate courts employthe Mathewstest, 

### balancing three factors:

1) the private interest affected, ( 2) the risk of erroneous deprivation of that 

### interest through existing procedures and the probable value, ifany, ofadditional procedural safeguards, and ( 3) 

### the governmental interest, including costs and administrative burdens of additional procedures.No. 44314 - 7 -II Stout, 159 Wn.2d at 370 (citing Mathews, 424 U.S. at 335). 

### Whether an insanity acquittee must 

### be competent at his or her LRA revocation proceedings to satisfy procedural due process requirements is a matter offirst impression. 

### Here, the first Mathews factor, regarding Derenoff's private interests, clearly weighs in Derenoffs favor because forced hospitalization deprives her of significant liberty interests. Addington, 441 U.S. at 425. The State does not contest this. 

### As for the second Mathews factor, existing procedures sufficiently safeguard against the
erroneous deprivation of Derenoff's 

### liberty interests. RCW 10.77.020( 1) provides that all 

### insanity acquittees subject to LRA revocation are entitled to counsel. Derenoff's rights were vigorously represented 

### by counsel throughout the LRA proceedings here. Also, 

### insanity acquittees are entitled to an immediate mental examination before the revocation 

### hearing. RCW 10. 77. 190(2). 

### This assures that the trial court has expert information concerning the insanity 

### acquittee's mental health before deciding whether to modify or revoke an LRA disposition. Derenoffreceived such an examination before her revocation hearing.

And, 

### revoking Derenoffs LRA disposition does not result in her indefinite civil commitment. Instead, underthe statutory scheme, the State maynot hold an insanity acquittee in 

### a state mental health facility for longerthan the maximum possible penal sentence forthe crime charged.' RCW 10.77.025. Thus, the LRA revocation entitles the State to place Derenoff in a 

### mental health facility for no longerthan the remainder ofher maximum possible penal sentence five years). 

### Even then, persons committed to a mental health facility after an LRA revocation

1 

### Atthe conclusion ofthis period, the Statemay seekto have an insanity acquittee involuntarily committed to a state mental health 

### facility under chapter 71. 05 RCW. This procedure, in turn, involves further due process protections. 8No. 44314 - 7 -II

must be examined 

### by mental health professionals at least once every six months. RCW 10.77. 140. 

### Following such examination,the secretary ofthe Department of Social and Health Services (or his or her designee) orthe examinee, may request conditional release and restoration of his or her LRA disposition. RCW 10. 77. 150. 

### Furthermore, an insanity acquittee may request conditional release every six months. RCW 10.77.150(5).

Thus, 

### although risk of an erroneous deprivation of liberty is a real concern, the 

### procedures currently in place under chapter 10.77 RCW provide significant procedural safeguards for 

### insanity acquittees 

### facing LRA revocations. • Derenoff has failed to explain how . 

### being restored to competency would decrease the likelihood ofan erroneous deprivation ofher 

### liberty interests or why the procedural safeguards in place under chapter 10.77 RCW are insufficientto satisfydue process underthe second Mathews factor.

The third Mathews factor — 

### the governmental interest, including costs and administrative burdens of additional procedures— weighs 

### heavily in favor of the State. The State has a strong interest in detaining " mentally unstable individuals who present a danger to the public." United States v. Salerno, 481 U.S. 739, 748 -49, 107 S. Ct. 2095, 95 L. Ed. 2d 697 ( 1987). And, the 

### LRA revocation/modification proceeding under RCW 10.77. 190 is designed to efficiently determine whether an insanity acquittee has violated the conditions ofher release and presents a danger to herself or others. 

### Requiring that an insanity acquittee be restored to competency before revocation proceedings would nullify any efficiencies without any increase in procedural safeguard benefits. 

### Finally, under the current statutory scheme, trial courts have discretion to modify an 

### insanity acquittee' s conditional release. RCW 10.77. 190(4). 

### Accordingly, ifthe trial 

### court considers it in the best interests of the insanity acquittee and the public to restore an
9No. 44314 - 7 -II 

### insanity acquitteeto competency so that she can resume her LRA disposition,the trial court may order such restoration as a modification of the LRA disposition. 

### Maintaining the trial court's 

### discretion to efficiently address and modify conditions of an acquittee' s release is a significant governmental interest. 

### On balance, the Mathews factors weigh against requiring that an insanity acquittee be
restored to competency before his or her LRA revocation/modification 

### hearing. Chapter 10.77 RCW provides numerous and sufficient procedural due process protections and, under the 

### statutory scheme, there is little riskthat an insanity acquittee would erroneously be deprived of significant 

### liberty interests. We affirm the trial court's revocation of Derenoffs LRA. 

### A majority ofthe panel having determined that onlythe foregoing portion ofthis opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered. REPORT IN LIEU OF LIVE TESTIMONY Derenoff next argues that the trial court violated her due process rights to confront 

### witnesses when it relied exclusively on Dr. Hendrickson's evaluation from Western State Hospital in revoking her LRA disposition. Because the trial court established good cause for 

### relying onthe Western State Hospital evaluation in lieu oflive testimony, the trial court did not err by admitting the evaluation. 

### We reviewquestions oflaw,including constitutional due process guarantees, de novo. In

re Fair, 167 Wn.2d at 362. " When confronted with revocation of a qualified or conditional 

### liberty,the United States Supreme Court has indicated that limited Fourteenth Amendment due
process guaranties apply." 

### Dang, 178 Wn.2d at 883. " These rights include the right to confront
10No. 44314 - 7 -II . and cross-examine witnesses unless there is articulable good cause for 

### disallowing
confrontation." 

### Dang, 178 Wn.2d at 883.

Like parole, sentencing modification, and SSOSA [ special sex offender sentencing 

### alternative] revocation, the trial court's revocation of an insanity acquittee' s conditional release 

### implicates a conditional liberty dependent on the observance of special terms and conditions." Dang, 178 Wn.2d at 883. Thus, " 

### hearsay evidence should be considered only ifthere is good cause to forgo live testimony." State v. Dahl, 139 Wn.2d 678, 686, 990 P.2d 396 ( 1999). " Good 

### cause is defined in terms of `difficulty and expense ofprocuring witnesses in combination with demonstrably reliable or clearly reliable evidence. "' Dahl, 139 Wn.2d at 686 ( internal quotations omitted) (

### quoting State v.Nelson, 103 Wn.2d 760, 764 - 65, 697 P.2d 579 ( 1985)). For instance, in Dahl,the trial court relied on hearsay evidence in a SSOSA revocation 

### hearing that was " neither demonstrably reliable nor necessary, due to the difficulty in procuring live witnesses." 139 Wn.2d at 687. Because the defendant' s SSOSA " revocation appear[ed] to have been based, at least in part, on consideration of the [

### hearsay]," the Supreme Court held that 

### the trial court's failure to establish a good cause basis for relying on the hearsay was not harmless and remanded for a new 

### hearing. Dahl, 139 Wn.2d at 689. 

### Similarly, in State v.AbdRahmaan, 154 Wn.2d 280, 290 - 91, 111 P.3d 1157 ( 2005), the Supreme Court held that a trial 

### court's sentence modification was invalid because it relied on hearsay evidence during the modification proceeding without establishing good cause. Here, unlike in Dahl and Abd-Rahmaan, the trial court did articulate good cause for relying on the Western State Hospital evaluation in lieu of live testimony. In its oral ruling on whetherto admit the evaluation, the trial court stated:
11No. 44314 - 7 -II 

### I do find there is good cause to admitthat [evaluation] in lieu oflive testimony for 

### anumberofreasons. Number 1, the Court isvery,veryfamiliarwith the staff,the processes, the [ evaluations] generated by Western State [ H]ospital [and] we rely on them on almost a 

### daily basis, uh, without the benefit of live testimony. There are] certainly indicia of reliability in these [ evaluations]. As I indicated, the 

### Court has come to rely upon the opinions ofthe experts at Western State Hospital in preciselythese kinds ofsituations.

Second], 

### it is very,very expensive and logistically challenging to get Dr. Hendrickson or one of his colleagues to get [ here] and provide live testimony. I think it's safe to assume that were that to happen, what we' d get is a verbal recitation of what is written in the [ evaluation] and get the same recommendations. Yes, it would be subject to cross[ - ] examination but that would be ofminimal benefit to the Court in these circumstances. 

### Finally, it would consume a great deal more time which means Ms. Derenoffremains injail and that is not something I wantto see happen. IfI were to 

### keep the [ evaluation] out at this point now ... she would continue to languish 

### in acorrection facility ratherthan atreatmentfacility. I think it isto her benefitto have this hearing this morning and get on with this and, uh, for those reasons I will admit the [ evaluations] as a substantive 

### evidence atthis hearing. RP ( Dec. 19, 2012) at 76 - 77. The trial court' s oral ruling set forth good cause: ( 1) it articulated the cost prohibitive
nature of requiring live testimony under the circumstances of the case, ( 2) it explained the reliability of the Western State evaluation, (

### 3) it acknowledged the logistical challenges securing 

### live testimony in this case posed, and (4) it recognized that the delay necessary to secure live testimony would cause Derenoff to languish in a correctional 

### facility. Thus, the trial court did 

### not err in admitting and relying onthe evaluation in lieu oflivetestimony.

12No. 44314 - 7 -II
We affirm the revocation order.

We concur:

13