Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

In re the Detention of:                                          No.  40096-1-II

                                                            PUBLISHED OPINION
GARY EUGENE CHERRY,

                                Appellant.

       Armstrong, J.  --  Gary Eugene Cherry appeals the trial court's refusal to sign an agreed 

order granting him unconditional release from commitment as a sexually violent predator (SVP) 

and the trial court's subsequent refusal to grant him a jury trial on the issue of unconditional 

release.  We reverse and remand for entry of an order granting Cherry unconditional release.

                                            FACTS

       Cherry was civilly committed as an SVP in 1999.  At the beginning of 2003, he was 

conditionally released from the Special Commitment Center (SCC) to a less restrictive alternative 

on McNeil Island and, at the end of 2003, he was conditionally released to his home in Shelton. 

       The trial court granted Cherry additional "step-downs" in his supervision, based on his 

progress in conditional release.  Appellant's Motion  for Discretionary      Review (AMDR), 

Appendix A, at 9.  After evaluating Cherry in 2007, as part of the annual review process, SCC 

psychologist Dr. James Manley concluded that he no longer met the definition of an SVP and was 

entitled to unconditional release. The State retained an evaluator who recommended that Cherry 

stay on conditional release, however, and after a stipulated bench trial, the court found that 

Cherry continued to meet the SVP definition and that conditional release remained in his best 

interest.  Nevertheless, the court reduced Cherry's restrictions and granted him the ability to  

No.  40096-1-II

travel within the state without notifying his community corrections officer.  

       Dr. Manley subsequently completed Cherry's 2008 annual review and again recommended 

his unconditional release.  He made the same recommendation in Cherry's 2009 annual review 

report.  His 2009 report concluded as follows:

       In sum, Mr. Cherry's ongoing and successful management of his individualized 
       dynamic  risk, his persistent adherence to court and therapeutic conditions, and his 
       overall rigorous application of his Relapse Prevention Plan indicate Mr. Cherry has 
       reduced his risk below the "more likely than not" statutory threshold.  Mr. 
       Cherry's endeavors have reduced his risk level to be safely discharged from civil 
       commitment.
       . . . .
       It is the opinion of the undersigned that Mr. Cherry does not currently meet the 
       definition of a sexually violent predator.  Based on his consistent community 
       deportment, continued treatment participation, and continued sobriety, Mr. Cherry 
       has reached treatment readiness to be granted an unconditional release from his 
       present commitment status.

AMDR, Appendix A, at 9.  The psychological staff at the SCC who oversees treatment progress, 

the SCC superintendent, and Cherry's sex offender treatment provider also recommended 

Cherry's unconditional release in 2009 based on his progress in treatment and his successful self-

management in the community for six years.    

       Pursuant to the SCC superintendent's authorization, Cherry petitioned the court for 

unconditional release.  In his petition, he asked the court to set a trial, noting that he had retained 

the expert services of Dr. Richard Wollert.  When the matter proceeded to a hearing, however, 

the parties presented the court with an agreed order dismissing the SVP petition and granting 

Cherry unconditional release.  In that order, the State stipulated that based on the SCC's 2007, 

2008, and 2009 annual reviews, as well as the opinions of Cherry's sex offender treatment 

provider, it could not prove beyond a reasonable doubt that Cherry continues to meet the criteria 

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for commitment as an SVP.  

       The trial court refused to accept the stipulation and denied Cherry's petition for 

unconditional release as well as his request for a jury trial on the matter.  The court did not find 

probable cause to believe that Cherry's condition had so changed that he no longer meets the 

definition of an SVP, concluding instead that Cherry still meets the definition beyond a reasonable 

doubt.  The written findings supporting those conclusions relied heavily on the actuarial test 

results listed in Dr. Manley's 2008 and 2009 reports, which showed Cherry as having a high risk 

to reoffend.  

       We granted the parties'    joint motion for discretionary review and find one issue 

dispositive.    

                                          ANALYSIS

       On appeal, the parties join in arguing that under CR 41, the trial court was obligated to 

grant their stipulated order of dismissal.  The SVP statute, chapter 71.09 RCW, is civil in nature.  

In re Det. of Williams, 147 Wn.2d 476, 488, 55 P.3d 597 (2002).  The civil rules "govern the 

procedure in the superior court in all suits of a civil nature," with exceptions set out in CR 81.  

CR 1; Williams, 147 Wn.2d at 488.  CR 81(a) states that "[e]xcept where inconsistent with rules 

or statutes applicable to special proceedings, these rules shall govern all civil proceedings."  

Proceedings under chapter 71.09 RCW are special proceedings within the meaning of CR 81.  In 

re Det. of Mathers, 100 Wn. App. 336, 340, 998 P.2d 336 (2000).  Accordingly, where 

inconsistencies exist between the civil rule governing court-ordered mental examinations and the 

SVP statutes, the statutes control.  Williams, 147 Wn.2d at 491.  Similarly, civil rule limits on a 

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No.  40096-1-II

court's contempt authority are inconsistent with statutory contempt authority and thus 

inapplicable to SVP proceedings.  In re Det. of Young, 163 Wn.2d 684, 692-93, 185 P.3d 1180 

(2008).  But, because there is no inconsistency between the civil rule governing summary 

judgment and the SVP statutes, we affirmed the pretrial dismissal of a conditional release petition 

in Mathers, 100 Wn. App. at 340-41.

       CR 41(a) governs the timing, circumstances, and conditions of a voluntary dismissal of an 

action before its full adjudication on the merits.  10 David E. Breskin, Washington Practice:  Civil 

Procedure Forms and Commentary § 41.1, at 21 (2000 ed. supp. 2010-11).  CR 41(a)(1)(A) 

states that "any action shall be dismissed" when the parties "so stipulate in writing."1  "Where the 

language of the rule makes clear that the court 'shall' grant the motion for dismissal, the court has 

no discretion under the [r]ule to do otherwise."  10 D. Breskin, supra, § 41.1, at 21; see also 

Spokane County v. Specialty Auto & Truck Painting, 153 Wn.2d 238, 250, 103 P.3d 792 (2004) 

(parties may stipulate to dismissal under CR 41 at any time; trial court has no discretion to deny 

the requested relief) (Sanders, J., concurring and dissenting in part).

       In assessing any inconsistency between CR 41(a)(1)(A) and the SVP statutes, a brief 

overview of the SVP commitment and review process is necessary.  At the initial commitment 

proceeding, the State must prove beyond a reasonable doubt that the individual suffers from a 

mental disorder and is dangerous.  In re Det. of Moore, 167 Wn.2d 113, 124, 216 P.3d 1015 

(2009).  Because SVP commitment is indefinite, the due process requirement that a detainee be 

mentally ill and dangerous is ongoing.  Moore, 167 Wn.2d at 125 n.3; see also In re Det. of 

1 The rule exempts class actions and shareholder derivative actions from this mandate.  CR 
41(a)(1).
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Mitchell, 160 Wn. App. 669, 677, 249 P.3d 662 (2011) (final disposition does not occur until the 

SVP is unconditionally released).  Each year, the Department of Social and Health Services 

(DSHS) must examine SVP detainees to determine whether they continue to meet the standard 

for commitment.  RCW 71.09.070; In re Det. of Ambers, 160 Wn.2d 543, 548, 158 P.3d 1144 

(2007).  The resulting report is served on the trial court that conducted the original commitment 

hearing, the detainee, and the prosecuting attorney.  RCW 71.09.070; Ambers, 160 Wn.2d at 548. 

If the secretary of DSHS or a designee determines that a detainee is no longer mentally ill or 

dangerous, the secretary must authorize him to petition for release.  Ambers, 160 Wn.2d at 548; 

see RCW 71.09.090(1).  Such a petition is filed with the court and served on the prosecuting 

agency responsible for the initial commitment; in this case, the attorney general.  RCW 

71.09.090(1), .020(11); In re Det. of Cherry, 2001 WL 285763 (Wash. Ct. App. 2001).  Upon 

receipt of a DSHS-authorized petition, the court must order a full evidentiary hearing within 45 

days.  RCW 71.09.090(1).  Either party may demand that the hearing be a jury trial.  RCW 

71.09.090(3)(a).  The State may challenge the DSHS recommendation and in doing so must 

prove, beyond a reasonable doubt, that a detainee who seeks unconditional release continues to 

meet the SVP definition.  Ambers, 160 Wn.2d at 548-49; RCW 71.09.090(3)(a), (c).  

       Here, the SCC superintendent authorized Cherry to petition for unconditional release 

under RCW 71.09.090(1).  There is no language addressing the possibility of an agreed dismissal 

in this or the other SVP statutes.  But our commissioner in granting discretionary review raised 

the possibility of an inconsistency between CR 41 and RCW 71.09.090, which contemplates a trial 

even after DSHS has determined that the detainee is eligible for release.  The State responds that 

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there is nothing inconsistent about the statutory procedure for ordering a new trial and a separate 

process by which the prosecuting agency can agree to dismiss an action when there is insufficient 

evidence to proceed.  

       The State's argument is persuasive.  The purpose of the hearing that follows a DSHS-

authorized petition for unconditional release is, presumably, to protect the prosecuting agency's 

ability to challenge that release.  See Ambers, 160 Wn.2d at 548-49.  At such a hearing, the State 

must prove that a detainee continues to satisfy the SVP criteria.  RCW 71.09.090(3)(c).  But if 

the State accepts the DSHS recommendation and concludes that it cannot meet that burden, it is 

fully consistent with RCW 71.09.090 for the State to stipulate to dismissal.  Forcing the State to 

proceed when it cannot prove the case would be inconsistent with other SVP statutes, due 

process, and the prosecutor's ethical obligation to prosecute only cases it can prove.  See RCW 

71.09.060(1) (allowing State to move for dismissal if jury cannot reach unanimous verdict on 

SVP commitment); In re Det. of Young, 122 Wn.2d 1, 27, 857 P.2d 989 (1993) (due process 

allows for involuntary commitment only for those who are both mentally ill and dangerous); RPC 

3.8(a) (prosecutor shall refrain from prosecuting charge known to lack probable cause).  

       We hold that the trial court erred in refusing to accept the agreed order dismissing the 

State's SVP petition and granting Cherry unconditional release.  Because of this holding, we need 

not consider whether the trial court erred in denying Cherry a recommitment trial.  Accordingly, 

we reverse and remand for entry of an order dismissing the civil commitment 

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petition and granting Cherry unconditional release.    

                                                 Armstrong, P.J.
I concur:

Johanson, J.

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       Quinn-Brintnall, J. (dissenting)   --     I disagree with the majority opinion for several 

reasons.  I first object to the majority's decision to reverse on the basis of a court rule that the 

parties never cited or argued below.  Although there is case law allowing us to affirm on any basis 

the record supports, I see none authorizing us to reverse on a ground never presented to the trial 

court.

       More importantly, however, I agree with our commissioner that a summary dismissal of a 

sexually violent predator (SVP) petition under CR 41 is inconsistent with RCW 71.09.090, which 

contemplates a trial even after the Department of Social and Health Services (DSHS) has 

determined that an SVP detainee is eligible for release.2 The statute expressly provides that in 

such an instance, the court "shall within forty-five days order a hearing." RCW 71.09.090(1).

       When the legislature uses the word "shall" in a statute, it imposes a mandatory duty.  State 

v. G.A.H., 133 Wn. App. 567, 577, 137 P.3d 66 (2006) (citing State v. Bartholomew, 104 Wn.2d 

844, 710 P.2d 196 (1985) (Bartholomew III)).  The holding in Bartholomew III is particularly 

instructive here.  The Washington Supreme Court affirmed Bartholomew's aggravated first 

degree murder conviction but invalidated his death sentence because of the unconstitutional 

admission of evidence about his previous criminal activity.  State v. Bartholomew, 98 Wn.2d 173, 

176, 654 P.2d 1170 (1982) (Bartholomew I), vacated, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 

2d 1383 (1983).3   On remand, the prosecutor decided not to seek the death penalty, reasoning 

2 I also note that generally CR 41 motions are intended to apply to pre-adjudication proceedings 
and that Cherry has already been found by a jury to be an SVP and the trial court has previously 
entered valid commitment orders based on that finding.  CR 59 and CR 60 address the vacation 
and modification of judgments, not CR 41. 

3 In State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) (Bartholomew II), the Supreme 
Court affirmed its earlier holding after the United States Supreme Court vacated Bartholomew I
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No.  40096-1-II

that the Supreme Court's holding deprived the State of the evidence needed to rebut the 

mitigating circumstances and that a sentence of life without parole was appropriate.  Bartholomew 

III, 104 Wn.2d at 846.  The trial judge questioned the prosecutor's right to decline to seek the 

death penalty, and the Supreme Court granted review.  Bartholomew III, 104 Wn.2d at 846.  The 

Supreme Court examined statutory language stating that "'a special sentencing proceeding shall 

be held'" once a defendant is convicted of aggravated first degree murder if notice of such a 

proceeding was filed and served, and it also took note of language stating that the trial court 

"'shall impanel a jury'" to decide the proper penalty after a remand on the death penalty 

question.  Bartholomew III, 104 Wn.2d at 847-48 (quoting RCW 10.95.050(1), (4)).  The court 

interpreted the word "shall" as mandatory:  "The general rule is that the word 'shall' is 

presumptively imperative and operates to create a duty rather than conferring discretion."  

Bartholomew  III, 104 Wn.2d at 848.  Consequently, the prosecutor had no discretion to 

determine unilaterally that the lesser penalty should be imposed.  Bartholomew III, 104 Wn.2d at 

848.

       RCW 71.09.090(1) expressly provides that the trial court shall hold a hearing on a DSHS-

authorized unconditional release petition, thus creating an inconsistency between the statute and 

any application of CR 41 that would mandate dismissal of the underlying SVP petition without a 

trial.  In light of this inconsistency, the specific statute governs and requires a hearing on whether 

Gary Cherry is eligible for unconditional release.  See CR 81.  The only error that occurred below 

was the trial court's failure to order such a hearing.  

and remanded.  

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No.  40096-1-II

       The trial court treated the proceeding before it as a show cause hearing and found no 

probable cause to support a full hearing on whether Cherry still meets the SVP definition.  But a 

show cause hearing is required only if a detainee petitions for release without           DSHS 

authorization.  RCW 71.09.090(2)(a); In re Det. of Ambers, 160 Wn.2d 543, 548, 158 P.3d 1144 

(2007); 13 Royce A. Ferguson, Jr., Washington Practice:  Criminal Practice and Procedure, § 

5416 at 572-74 (3d ed. 2004).  At a show cause hearing, the trial court determines whether 

probable cause exists to warrant a full hearing on the issue of unconditional release.  RCW 

71.09.090(2)(a); In re Ambers, 160 Wn.2d at 548.  The State must present prima facie evidence 

establishing that the detainee continues to be an SVP.  RCW 71.09.090(2)(b).  If the State cannot 

or does not prove this prima facie case, there is probable cause to believe continued confinement 

is not warranted and the matter must be set for the full evidentiary hearing described in RCW 

71.09.090(3).  RCW 71.09.090(2)(c); In re Det. of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 

(2002).

       Because DSHS authorized Cherry's petition for unconditional release, there was no 

probable cause issue before the court.  But even if there had been, the State's position that Cherry 

no longer meets the necessary criteria constituted probable cause to believe that continued 

confinement was unwarranted, thus the trial court was required to grant a full hearing on the 

matter.  RCW 71.09.090(3); see In re Det. of Elmore, 162 Wn.2d 27, 37, 168 P.3d 1285 (2007) 

(in determining whether probable cause exists, court may not weigh evidence but must decide 

whether the facts, if believed, establish that the person is no longer an SVP).    

       I would hold that both the law and the evidence required the trial court to grant Cherry's 

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No.  40096-1-II

request for a jury trial on his unconditional release petition.  Although an evaluation of the 

evidence is a matter for the jury, my examination of the record reveals evidence sufficient to 

present an issue of fact on Cherry's continuing status as an SVP.4

       I dissent and would reverse and remand for a jury trial on the issue of whether Cherry is 

entitled to unconditional release from his SVP confinement.

                                            ____________________________________
                                            QUINN-BRINTNALL, J.

4 Most notably, the reports cited by the parties rely on the continuation of the status quo in 
Cherry's life.  The reports repeatedly mention how Cherry's wife and best friend assist him in 
maintaining a life structure sufficient to control his predatory conduct and suggest that as long as 
this assistance continues, Cherry is unlikely to reoffend.  The reports do not suggest that alone, 
Cherry is unlikely to reoffend.  
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