In re the Detention of Albrecht

Owens, J.

(dissenting) — I respectfully dissent. This case falls squarely within the ambit of our holding in In re Detention of Henrickson, 140 Wn.2d 686, 695, 2 P.3d 473 (2000):

When, on the day a sexually violent predator petition is filed, an individual is incarcerated for a sexually violent offense, RCW 71.09.020(6), or for an act that would itself qualify as a recent overt act, RCW 71.09.020(5), due process does not require the State to prove a further overt act occurred between arrest and release from incarceration.

(Emphasis added.) Indisputably, Robin Albrecht was incarcerated on the day the State filed its sexual predator petition. Thus, to meet the plain language of the Henrickson holding and thereby relieve the State of the need to allege and “prove a further overt act,” Albrecht’s incarceration at the time of the petition had to be either “for a sexually violent offense” or “for an act that would itself qualify as a recent overt act.”

The State has argued persuasively that the incarceration would satisfy either of the two alternatives set forth in our Henrickson holding. First, the State maintains that, following Albrecht’s violation of the terms of his community placement, his 120-day incarceration constituted “incarceration] for a sexually violent offense.” The community placement conditions were a part of Albrecht’s 1992 sen*13tence for his second degree child molestation conviction. Because Albrecht would not have been subject to community placement conditions (and the incarceration upon violating those conditions) but for the 1992 conviction for child molestation, his incarceration at the time of the sexual predator petition was “for”—that is, “because of’ or “on account of’—the original sexually violent offense for which he was convicted in 1992. Webster’s Third New International Dictionary 886 (1976).

Support for this view—that the additional jail time was a continuation of Albrecht’s punishment for the 1992 sexually violent offense—is found in State v. Prado, 86 Wn. App. 573, 937 P.2d 636, review denied, 133 Wn.2d 1018 (1997). There, defendant Prado was under community supervision for a second degree theft conviction when he raped a 13-year-old girl. Prado contended that prosecution for the rape violated double jeopardy because the same conduct had given rise to his community supervision hearing. But Division Three of the Court of Appeals held that prosecuting Prado for the rape did not violate double jeopardy because “modifications of sentences due to violations of the conditions of community supervision should be deemed punishment for the original crime.” Id. at 578 (emphasis added); see also State v. Grant, 83 Wn. App. 98, 111, 920 P.2d 609 (1996) (concluding that prosecution for felony violation of postsentence court order did not violate double jeopardy because “the order of confinement. . . for Grant’s violation of the conditions of his sentence was a continuing consequence of Grant’s original conviction”). The Prado court noted that, under Washington law, “parole revocations are consequences of the original prosecution rather than part of a new prosecution.” 86 Wn. App. at 577 (citing State v. Dupard, 93 Wn.2d 268, 276, 609 P.2d 961 (1980); Standlee v. Smith, 83 Wn.2d 405, 407, 518 P.2d 721 (1974)). The court also relied on the Ninth Circuit’s holding that prosecuting a defendant for an act supporting revocation of the defendant’s supervised release did not violate the double jeopardy clause. United States v. Soto-Olivas, 44 F.3d 788, 792 *14(9th Cir.), cert. denied, 515 U.S. 1127 (1995). In Soto-Olivas, the Ninth Circuit surmised that, because the conditions for supervised release may be noncriminal acts and because “a court may return a defendant to jail for noncriminal acts[,] ‘the rationale must be that the punishment is part of the sanction for the original. . . crime.’ ” Prado, 86 Wn. App. at 578 (quoting Soto-Olivas, 44 F.3d at 790 (emphasis added)).

Because I find this reasoning entirely persuasive, I would hold that Albrecht was incarcerated for a sexually violent offense at the time the State filed its sexual predator petition and that, consequently, under our holding in Henrickson, the State was not required to prove that Albrecht had committed “a further overt act.”

I am also convinced that, as the State asserts, the second prong of our Henrickson holding is likewise met. If this court were to reject the foregoing argument that Albrecht’s incarceration at the time of the petition’s filing was for the 1992 offense and were to take the narrower view that the incarceration was for the community placement violation and nothing more, this court would have to explain why Albrecht’s incarceration for the community placement violation was not, as Henrickson requires in the alternative, “incarceration] ... for an act that would itself qualify as a recent overt act.” 140 Wn.2d at 695 (citation omitted).

Albrecht’s violation of his community placement conditions resulted in his being jailed for an act that would meet the requirement of a “recent overt act.” The term “[r]ecent overt act” was defined at the time the State filed its petition as “any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm.”12 Among the conditions of community placement included in Albrecht’s 1992 sentencing order was the direc*15tive, irYou shall not have direct or indirect contact with . . . minor children.” Clerk’s Papers (CP) at 193. Albrecht did not contest the State’s allegation that in Tacoma on August 20,1996, he violated the terms of his community placement by offering two boys $.50 to follow him.13 Because the purpose of the community placement conditions was to protect minor children from Albrecht and because those conditions were imposed in light of Albrecht’s 30-year history of grooming children and sexually assaulting them, the reasonable inference is that his violation of a directive forbidding contact with minor children would constitute a “recent overt act”—an act that would “create Q a reasonable apprehension” that he would commit a sexually violent offense against such children. Consequently, I agree with the State’s argument that Albrecht’s incarceration for the community placement violation satisfied the second option set forth in our Henrickson holding: that a recent overt act need not be alleged if, at the time of the petition’s filing, the defendant “is incarcerated ... for an act that would itself qualify as a recent overt act.” 140 Wn.2d at 695 (citation omitted).

In sum, under our clearly worded holding in Henrickson, based as it was on statutory and due process requirements, Albrecht’s incarceration at the time the State filed its sexual predator petition eliminated any requirement that the State allege in its petition a recent overt act. Where the majority opinion leaves our holding in Henrickson is not at all clear. At the outset, the majority states, “We conclude that after a person has been released into the community, due process would be subverted by failing to require proof of a recent overt act.” Majority at 4. This statement certainly suggests that the majority is overruling Henrickson, since in that case this court concluded that Henrickson, who had been free on bond for three years while his appeal was pending, had not been deprived of due process when the State’s commitment petition went forward without proof of *16a recent overt act. Likewise contradictory is the majority’s statement that it declines “to extend Henrickson to hold that when an offender is released into the community and is later totally incarcerated, no proof of a recent overt act is required.” Id. at 10. Such a holding would be no extension of Henrickson at all. Henrickson was convicted, was free for three years, and was ultimately incarcerated; the commitment petition was filed while Henrickson was incarcerated, and this court concluded that the State was not required to prove a recent overt act. Thus, this court held in Henrickson just what the majority in the present case has mischaracterized as an “extension” of Henrickson and has declined to adopt.

I would adhere to our holding in Henrickson and, therefore, would reverse the Court of Appeals and reinstate the trial court’s order permitting the State to amend its sexual predator petition.

Ireland and Bridge, JJ., concur with Owens, J.

Former RCW 71.09.020(5) (1995). The statute has since been amended to clarify the applicable standard for assessing the reasonableness of the apprehension of harm: “ ‘Recent overt act’ means any act or threat that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm in the mind of an objective person who knows of the history and mental condition of the person engaging in the act.” Former RCW 71.09.020(6) (2001) (emphasis added).

The State’s sexual predator petition alleged that Albrecht had “[o]ffer[ed] a 13 year old boy 50 cents to follow the Respondent and [had] attempted] to grasp the arm of the boy when the boy retreated.” CP at 1.