In re the Personal Restraint of Turay

Sanders, J.

(dissenting) — Richard Turay was imprisoned in 1994 under chapter 71.09 RCW as a sexually violent predator. Turay filed the subject personal restraint petition in 2002 and we must decide whether this challenge to his commitment is untimely under RCW 10.73.090, which imposes a one year limitation on the collateral attack of convictions. The majority finds that the one year limitation applies and the petition is therefore untimely. But obviously RCW 10.73.090 applies only to criminal cases and has no relevance to a personal restraint petition challenging a civil commitment. Moreover the State is required by In re Detention of Albrecht to plead and prove a “recent overt act.” 147 Wn.2d 1, 51 P.3d 73 (2002). But here the State failed to do so and therefore Turay must be released.

The majority argues a one year limit applies to Turay’s petition because of Washington’s habeas corpus law which states in part:

No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody, or discharge *88the party when the term of commitment has not expired, in either of the cases following:
(1) Upon any process issued on any final judgment of a court of competent jurisdiction except where it is alleged in the petition that rights guaranteed the petitioner by the Constitution of the state of Washington or of the United States have been violated and the petition is filed within the time allowed by RCW 10.73.090 and 10.73.100.

RCW 7.36.130 (emphasis added). The majority argues that the one year limitation applies because of the reference to RCW 10.73.090 in RCW 7.36.130(1) (RCW 10.73.100(l)-(6) are merely exceptions to RCW 10.73.090). Majority at 81. This argument goes precisely nowhere because RCW 10.73.090(1) provides only for a one year limitation on collateral attack of criminal convictions:

No petition or motion for collateral attack on a judgment and sentence in a criminal case may be filed more than one year after the judgment becomes final if the judgment and sentence is valid on its face and was rendered by a court of competent jurisdiction.

(Emphasis added.)

Were the language not clear enough for a child to read, legislative history also demonstrates that the intent of the one year limitation was that it apply to criminal cases only, and the majority even concedes this. Majority at 75. Both RCW 10.73.090 and the reference to it in RCW 7.36.130(1) were enacted in the same act. Laws of 1989, ch. 395. The act’s title declared it to be an act “[r] elating to criminal procedure; amending RCW 7.36.130; adding new sections to chapter 10.73 RCW; and creating new sections.” Id. The Final Bill Report on Substitute House Bill 1071 was captioned: “Regarding collateral attacks on convictions.” Final Legislative Report, 51st Leg. at 17 (Wash. 1989). The final bill report summarized the legislature’s intent: “The law governing personal restraint petitions is amended to restrict a convicted person’s right to file personal restraint petitions.” Id. (emphasis added). Both the title and the *89report tell us the legislature intended only to apply the time limit to collateral attacks on convictions.

In addition the majority’s holding cannot be reconciled with our decision in In re Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993). In that seminal case we held that neither double jeopardy nor ex post facto rights were violated by indefinitely confining a sex offender after he served a punitive prison sentence. Id. at 18. We have held the commitment of sexually violent predators under chapter 71.09 RCW passes constitutional muster only because such commitment is deemed civil rather than criminal. Young, 122 Wn.2d at 19. Nonetheless the majority imposes on Turay a time bar that clearly applies to criminal proceedings. Logically the majority cannot have it both ways. If this is a criminal proceeding the whole statute is unconstitutional. If it is civil, the one year time bar for criminal convictions cannot apply. But the majority now arbitrarily chooses to impose a criminal standard on civil commitment.

Because Turay’s personal restraint petition is not subject to RCW 10.73.090, it is not necessary to comment on whether there has been a significant change in the law bringing Turay within a statutory exception to that one year bar. RCW 10.73.100. Nor is it necessary to discuss whether Turay filed a “mixed petition,” as that is also relevant only for petitions subject to RCW 10.73.090. Since Turay’s petition is not time barred, we must now determine whether there is merit to Turay’s substantive argument.

Turay argues that the State was required by In re Detention of Albrecht to prove a “recent overt act.” See Personal Restraint Pet. at 2, In re Pers. Restraint of Turay, No. 48950-0-1 (Wash. Ct. App. May 3, 2002); Albrecht, 147 Wn.2d 1. The State claims Albrecht does not apply. However, it is undisputed that the State neither pleaded nor proved to the jury that Turay had committed a recent overt act. See Clerk’s Papers (CP) at 806 (instruction 3); CP at 440 (In re PRP of Turay, Amended Pet. (No. 02-2-077990-3 SEA)).

*90Even though Turay was committed in 1994 and Albrecht was decided in 2002, retroactivity is not an issue where, as here, this court interpreted the meaning of a preexisting law. “The rule established by this court is that where a statute has been construed by the highest court of the state, the court’s construction is deemed to be what the statute has meant since its enactment.” State v. Moen, 129 Wn.2d 535, 538, 919 P.2d 69 (1996).

Albrecht requires the State to prove a “recent overt act” to commit a person who is incarcerated “where the State files a sexual predator petition on an offender (1) who has been released from confinement (2) but is incarcerated the day the petition is filed (3) on a charge that does not constitute a recent overt act.” 147 Wn.2d at 11 n.ll.

Turay had been released from confinement but was later incarcerated the day the petition was filed because his parole was revoked. CP at 3-4. The parole revocation was based on claims Turay had failed to submit to a polygraph and that he had committed a fourth degree assault. These charges do not necessarily constitute a recent overt act; however, Albrecht held, “[a]n individual who has recently been free in the community and is subsequently incarcerated for an act that would not in itself qualify as an overt act cannot necessarily be said to be currently dangerous.” 147 Wn.2d at 11. This is crucial because due process requires proof of dangerousness to justify commitment. See Young, 122 Wn.2d at 27 (citing Addington v. Texas, 441 U.S. 418, 426, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979); Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992)).

Certainly a fourth degree assault could amount to a recent overt act, but clearly also an act amounting to fourth degree assault need not amount to a recent overt act. Just as a violation of community placement, as discussed in Albrecht, could fall short of being an overt act, so too an assault could fall short of being an overt act. See Albrecht, 147 Wn.2d at 11. Since the State did not allege or prove a “recent overt act” to the jury at trial, there was no showing *91of dangerousness and Albrecht and Young require reversal. Albrecht, 147 Wn.2d at 11 & n.11; Young, 122 Wn.2d at 59-60.

In sum the one year time bar for bringing a personal restraint petition applies only to criminal convictions. Turay challenges a civil commitment and therefore is not procedurally barred from bringing his claim. The State failed to prove Turay committed a “recent overt act” before committing him as a sexually violent predator under chapter 71.09 RCW. Under our holding in Albrecht the State’s failure results in the lack of a necessary element of proof to justify commitment. The commitment must be reversed and Turay must be released.