FILED COURT OF APPEALS DIV I STATE OF WASHINGTON 2018 DEC -3 AM 9:23

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint of No. 77047-1-1

GAIL BRASHEAR, DIVISION ONE

Petitioner. PUBLISHED OPINION

FILED: December 3, 2018

APPELWICK, C.J. — Brashear was convicted of first degree murder, first degree assault, and first degree burglary. At the time of her crimes, she was 15

years old. She was sentenced to 614 months (51.2 years) of confinement. After

serving 20 years of confinement, she petitioned the ISRB for early release

pursuant to RCW 9.94A.730, a 2014 statute governing review of juvenile

sentences. Following a hearing on the matter, the ISRB found that she was not

releasable. We reverse and remand.

FACTS

On May 11, 1996, 15 year old Gail Brashear stopped an adult male in his

pickup truck and asked him for a ride. She then got into his passenger seat and

shot him twice. Her two male companions then joined her and attempted to move

the victim out of the truck. Noticing that the three of them appeared to be having

trouble with the truck, two people stopped to offer help. Brashear and her

companions asked them where the nearest hospital was. After they left, Brashear

fatally stabbed the victim in the neck several times. No. 77047-1-1/2

Brashear pleaded guilty to first degree murder, first degree assault, and first

degree burglary, with a special finding for use of a deadly weapon on all counts.

On May 7, 1997, she was sentenced to a total of 614 months.

In the 20 years between Brashear's sentencing and petition for release, the

United States Supreme Court has held that a mandatory life sentence without

parole for those under the age of 18 at the time of their crime violates the Eighth

Amendment. Miller v. Alabama,

,

,

(2012). In response to that decision, the Washington legislature, in 2014,

enacted RCW 9.94A.730 as a statutory "Miller fix." State v. Scott,

,

(2016), aff'd

,

(2018).

Under the statute, a person convicted of one or more crimes committed prior to

turning 18 may petition the Indeterminate Sentence Review Board (ISRB)for early

release after serving 20 years of confinement.' RCW 9.94A.730(1). Within 180

days of receiving a petition, the Department of Corrections (DOC) must conduct

an examination of the petitioner, "including a prediction of the probability that the

person will engage in future criminal behavior if released on conditions to be set

by the board." RCW 9.94A.730(3).

The statute directs the ISRB as follows in making its release determination:

The board shall order the person released under such affirmative and other conditions as the board determines appropriate, unless the board determines by a preponderance of the evidence that, despite such conditions, it is more likely than not that the person will commit

1 The statute does not apply if a person received a sentence for aggravated first degree murder under RCW 10.95.030 or a sex offense under RCW 9.94A.507. RCW 9.94A.730(1). 2 No. 77047-1-1/3

new criminal law violations if released. The board shall give public safety considerations the highest priority when making all discretionary decisions regarding the ability for release and conditions of release.[2]

(emphasis added). The statute also states that the ISRB "shall provide

opportunities for victims and survivor's of victims of any crimes for which the

offender has been convicted to present statements as set forth in RCW 7.69.032."

RCW 9.94A.730(4).

On April 12,2017,the ISRB held a hearing regarding Brashear's petition for

release pursuant to RCW 9.94A.730. At the hearing, both Brashear and DOG

Classification Counselor (CC) Jessica Poston testified.3 In addition to this

testimony, the ISRB considered the following: 1 [I]nformation provided by the sentencing court/prosecutor; the most recent DOG facility plan; information regarding institutional behavior and programming; any letters of support and/or concerns sent to the Board; the Pre-Sentence Investigation report; and the Psychological Evaluation dated September 21;2016 [sic] by Deborah Wentworth, Ph.D.

2 This statute differs from parolability decisions under RCW 9.95.100. ROW 9.94A.730(3) directs the ISRB to order a person released unless it determines by a preponderance of the evidence that, despite conditions, the person is more likely than not to reoffend. In contrast, when the ISRB makes a parolability decision under RCW 9.95.100, "[t]he board cannot grant parole until it determines the inmate has been rehabilitated and is a fit subject for release." In re Pers. Restrain of Lain,

, ii,

(2013). "An offender is not entitled to parole" under RCW 9.95.100.

. "The decision of whether to parole a prisoner `may be made for a variety of reasons and often involve[s] no more than informed predictions as to what would ,best serve [correctional purposes] or the safety and welfare of the inmate." In re Pers. Restraint of Dyer,

,

(2006)(Dyer 1)(alterations in original)(internal quotation marks omitted)(quoting Meachum v. Fano,

,

,

(1976)). Thus, whereas parole is not presumptive under RCW 9.95.100, early release is presumptive under RCW 9.94A.730(3) unless the ISRB determines that the petitioner is more likely than not to reoffend. 3 This testimony is not in the record before us. In describing the testimony, we cite to the ISRB's summary of the testimony in its decision and reasons. 3 No. 77047-1-1/4

CC Poston stated that Brashear has been a model inmate since making a

turnaround in 2008, when she had her last serious infraction. Before making that

turnaround, she stated that Brashear's infractions were so significant that she was

sent to a program in another state better equipped to handle her "extreme acting

out."

Brashear provided the ISRB with a "disclosure of her index offense" and

context for what was happening in her life at the time of her offenses. She

described having a "shift in her thinking" in 2008, and stated that since that time

she has taken advantage of programming opportunities. The ISRB noted that

Brashear "became quite emotional at times and did appear to be remorseful for

her actions." It also noted that Brashear appeared to have "somewhat limited

insight into her thinking or emotions at the time of the murder and other violent

assault beyond the connection to her codefendant."

In its reasoning, the ISRB first discussed the psychological evaluation Dr.

Wentworth conducted for the DOC. The ISRB acknowledged Brashear's

description of her offense to Dr. Wentworth, the mental health therapy Brashear

has received, and Dr. Wentworth's evaluation of Brashear's stability and risk to

reoffend. Dr. Wentworth stated that Brashear "openly and transparently

describe[d]the instant offense with no distortions or denials about her role in killing

the victim." She further stated that Brashear has previously benefitted from mental

health treatment"to address her history of others abusing her and her criminogenic

behaviors and thoughts," and that she "has been stable and not required mental

4 No. 77047-1-1/5

health treatment since September 2013." Dr. Wentworth concluded that "[o]verall,

the results of this evaluation suggest that Ms. Brashear is at a low risk to reoffend."4

She found that Brashear would benefit from continued therapy "for stress and

anger issues, especially concerning those that may stem from possible

reintegration into the community."

The ISRB next stated that since,her behavior escalated in 2007 and 2008,5

Brashear "appears to have made a complete shift in her behavior and subsequent

programming." It found that she acknowledges her role in her crimes and has

participated in programs to assist her in understanding her behavior. It continued,

However, Ms. Brashear has committed horrible crimes that have left lasting impacts to many of the survivors of her victims. The Board believes it is also important to note that Ms. Brashear has served a relatively small portion of what the minimum sentence is on all counts as well as the SRA [(Sentencing Reform Act of 1981, ch. 9.94A RCW)] minimum/maximum. Additionally, the Board has received a strong recommendation from the Snohomish [County] Prosecutor that requests the Board to not release Ms. Brashear. Snohomish County Prosecutor Mark Roe stated in his letter that "[t]he 20 years

[Brashear] has served is simply nowhere near adequate punishment"for the crime

she committed.

The ISRB denied Brashear's Ipetition for release. It acknowledged

Brashear's "good work" since 2008, stating that it would like to see her "continue

Dr. Wentworth further concluded that records documenting improved functioning and maturation over time, combined with results from the structured assessment of protective factors, suggest that, for Brashear, "the risk level could be viewed as more in the 'very low' range." 5 The ISRB noted that between 1997 and 2008, Brashear's infraction history consisted of 97 serious infractions. Brashear has received six general infractions since that time, the last of which she received in 2014. 5 No. 77047-1-1/6

to demonstrate that her past behaviors are truly in her past" and continue to

participate in programming "that will prepare her for a future step down to lower

levels of custody and eventually release to the community."

Brashear filed this personal restraint petition (PRP), alleging that the ISRB

abused its discretion when it denied her parole.

DISCUSSION

I. Early Release Under RCW 9.94A.730

Brashear argues that the ISRB abused its discretion by citing a reason other

than recidivism as the only supportfor its denial of her release. She asks this court

to reverse the ISRB's decision and remand with instructions to the ISRB ordering

her to be paroled.

To succeed on a PRP challenge of an ISRB decision, a petitioner must

show that she is under unlawful restraint. RAP 16.4; In re Pers. Restraint of Dyer,

,

(2008)(Dyer. II). Brashear argues that the

ISRB's abuse of discretion results in an unlawful restraint.

A petitioner bears the burden to ,prove the ISRB abused its discretion. Id.

at 286. "The ISRB abuses its discretion when it fails to follow its own procedural

rules for parolability hearings or acts without consideration of and in disregard of

the facts." In re Pers. Restraint of Dyer,

,

(2006)

(Dyer I). Disregarding the evidence and supporting its decision with speculation

and conjecture also constitutes an abuse of discretion.

. This court"must

6 No. 77047-1-1/7

find the ISRB acted willfully and unreasonably to support a determination that the

parolability decision is arbitrary and capricious." Dyer II,

.

RCW 9.94A.730(1) permits a person convicted of a crime as a juvenile to

petition the ISRB for early release after serving at least 20 years of confinement.

Early release under conditions the ISRB determines appropriate is presumptive,

unless the ISRB determines by a preponderance of the evidence that, "despite

such conditions, it is more likely than not that the person will commit new criminal

law violations if released." RCW 9.94A.730(3). The statute directs the ISRB to

"give public safety considerations the highest priority when making all discretionary

decisions regarding the ability for release and conditions of release."

Brashear argues that the ISRB's failure to address her risk level in light of

possible parole conditions illuminates the fact that she "was denied parole for non-

statutory reasons." She relies on Dyer I and states that this case is a "near carbon

copy" of that decision.

In Dyer!, the State Supreme Court held that the ISRB abused its discretion

when it gave "no indication that the evidence in [Dyer's] file supported its decision

or that the evidence was used to refute any new evidence presented at the

hearing."

. The ISF213 had considered Dyer for parole under

RCW 9.95.100 and concluded that he was not parolable.

. Despite

a psychological evaluation indicating he was at a low risk to reoffend, the ISRB

rejected the value of the evaluation because of its concern that Dyer had learned

how to take psychological tests.

. The court found that other than

7 No. 77047-1-1/8

conjecture, nothing in the record supported the conclusion that Dyer had learned

how to manipulate tests.

Next, the court found that despite the ISRB's statutory

mandate to consider whether Dyer demonstrated his rehabilitation was complete,

the ISRB dismissed evidence of Dyers rehabilitation "based on the facts of his

underlying crimes."

. Specifically, the ISRB disregarded the fact that

Dyer had participated in offender change programming and assumed his good

behavior in prison was motivated by Manipulation.

The court found that this

conclusion was also unsupported by th7 record.

Here, the ISRB did not explicitly reject the psychological evaluation

conducted by Dr. Wentworth. It acknowledged Dr. Wentworth's finding that

Brashear is at a low risk to reoffend. It also acknowledged that Brashear appeared

to struggle during her first 10 to 11 years in prison, but then made "a complete shift

in her behavior." But, the ISRB did not rely on any direct evidence of Brashear's

likelihood to reoffend. It did not cite evidence refuting Dr. Wentworth's finding that

Brashear is at a low risk to reoffend Or its own acknowledgment that Brashear

made a complete shift in her behavior. Instead, it cited Brashear's role in the

crimes she committed, the lasting impacts those crimes had on others, the

"relatively small portion" of the minimum sentence she has served on each count,

and Prosecutor Roe's letter opposing her release. The ISRB also failed to discuss

any conditions associated with her release and why, despite appropriate

conditions, she would be likely to reoffend.

8 No. 77047-1-1/9

Early release under RCW 9.94A.730(3) is presumptive unless the ISRB

determines that, despite conditions, it is more likely than not that a person will

reoffend. The ISRB stated that during her testimony, Brashear appeared to have

"somewhat limited insight into her thinking or emotions at the time of the murder."

But, Brashear's testimony before the ISRB is not in the record before us. It later

stated that she "acknowledges her role in her crimes." And, Dr. Wentworth

observed that Brashear "openly and transparently describe[d] the instant offense

with no distortions or denials about her role in killing the victim." The ISRB also

recognized Brashear's "complete shift" in behavior after struggling her first 10 to

11 years in prison. It made note of CC Poston's testimony that Brashear has been

a "model inmate" since 2008. This dramatic shift in behavior is probative of change

and is particularly relevant to the purpose of the statute, consideration of whether a juvenile offender has changed.

Rather than focusing on the statutory presumption of release, her

awareness of her crimes, her changed behavior, her assessed low risk to reoffend,

and appropriate release conditions, the ISRB relied on Brashear's underlying

crimes, the impact of those crimes, and the small portion of her sentence served

in denying her petition. These are not factors that guide the ISRB's decision under

RCW 9.94A.730(3).

RCW 9.94A.730(4) provides victims and survivors of victims the opportunity

to present statements to the ISRB. These statements shall be made in accordance

with RCW 7.69.032. RCW 9.94A.730(4). Under RCW 7.69.032, it is the

9 No. 77047-1-1/10

legislature's intent "to ensure that victims, survivors of victims, and witnesses of

crimes are afforded the opportunity to make a statement that will be considered

prior to the granting of postsentence release from confinement." But, the impact

on victims and survivors of victims was a consideration at the time of sentencing

in setting the length of sentence. See RCW 9.94A.500(1). The inclusion of the

opportunity for such statements here is for a different purpose, and its availability

does not change the statutory standard to be applied by the ISRB. The ISRB must

order a person released unless it finds Ithat, despite conditions, he or she is more

likely than not to reoffend. RCW 9.94A.730(3). Therefore,the statements received

pursuant to RCW 9.94A.730(4) are properly considered as to only what community

release conditions are appropriate or Whether the offender is likely to reoffend.

The ISRB did not consider any conditions in reaching its decision. The letters

opposing Brashear's release are not probative of her likelihood to reoffend.

RCW 9.94A.730 applies only where the crimes of the juvenile were very

serious and resulted in very long sentences. Of course Brashear's crimes were

heinous. But, Brashear's crime was not one of a limited number of crimes for which

the legislature declared that no presumption of release is available. RCW

9.94A.730(1). The statute expressly contemplates that the offender will not serve

more than 20 years of their sentence 'unless they are likely to reoffend. RCW

9.94A.730(3). The ISRB's reliance on Brashear's underlying crimes, their impact,

and the portion of her sentence served conflicts with its statutory mandate to

consider whether she is more likely than not to reoffend.

' 10 No. 77047-1-1/11

Brashear's behavioral turn around compared to her first 10 to 11 years in

prison is probative of the maturation of.a juvenile offender that the statute intended

to identify, not probative that Brashear is likely to reoffend. The other direct

evidence in the record that assesses Brashear's likelihood to reoffend is Dr.

Wentworth's psychological evaluation. It suggests her likelihood to reoffend is low

or very low. The ISRB abused its discretion by denying Brashear's release and

not determining appropriate release conditions.

Remedy

At oral argument, the State argued that if this court finds that the ISRB

abused its discretion, the appropriate remedy is to remand the case back to the

ISRB for it to consider what this court felt it ignored. Relying on In re Personal

Restraint of Whitesel,

,

(1988), it argued that it is not

the role of this court to substitute its discretion for that of the ISRB.

In Whitesel, the State Supreme Court reiterated that "the courts are not a

super Indeterminate Sentencing Review Board and will not interfere with a Board

determination in this area unless the ,Board is first shown to have abused its

discretion in setting a prisoner's discretionary minimum term."

. We see

no reason that a different standard should apply to evaluation of the ISRB in the

context of juveniles petitioning under RCW 9.94A.730. But, here, the ISRB was

not exercising its very broad discretion in setting a prisoner's minimum term. An

abuse of discretion in that context will usually require remand for another

opportunity to exercise that discretion. In the context of an early release No. 77047-1-1/12

determination pursuant to RCW 9.94k730, where the record does not establish a

likelihood to reoffend, the statute requires a release on appropriate conditions, not

a second bite at the apple. RCW 9.94A.730(3).

We reverse and remand to the ISRB to order Brashear released and to

determine appropriate release conditions.

WE CONCUR:

9. ' CS2J(A\r-eQQQ.,

12