* Personal Restraint Petition Of: James Christopher Day

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE PERSONAL
RESTRAINT OF:
JAMES DAY,
Petitioner.
No. 85705-3-I
DIVISION ONE
PUBLISHED OPINION
FELDMAN, J. — James Day filed this personal restraint petition (PRP)
challenging a 2023 decision of the Indeterminate Sentence Review Board (ISRB)
concluding he is not releasable under RCW 9.95.420 and extending his minimum
term of confinement. 	We agree with Day that the ISRB failed to meaningfully
consider the statutory presumption of release and whether conditions of release
could reduce his risk to an acceptable level. To remedy this error, we grant Day’s
petition and remand to the ISRB to conduct a new release hearing that complies
with applicable law as set forth in this opinion.
I
In 2010, when Day was 24 years old, he pleaded guilty to two counts of
child 	molestation 	in 	the 	first 	degree 	(counts 	1 	and 	2) 	and 	one 	count 	of
communication with a minor for immoral purposes (count 3). The sentencing court
imposed indeterminate sentences of 89 months to life on counts 1 and 2 and a
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No. 85705-3-I
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determinate sentence of 12 months on count 3, all to be served concurrently with
each other. 	In March 2016, while incarcerated, Day enrolled in the Sex Offense
Treatment and Assessment Program 	(SOTAP). 	During his treatment, Day
revealed that between the ages of 12 and 22 he had committed sex offenses
against an estimated “50-100 un-adjudicated . . . victims,” all of whom were minors.
Additionally, Day divulged that he watched child pornography on nearly a daily
basis during this time period.
For offenders like Day who have received indeterminate sentences under
RCW 9.94A.507, the ISRB must conduct a hearing shortly before the minimum
term expires to determine “whether it is more likely than not that the offender will
engage in sex offenses if released on conditions [of community custody] to be set
by the board.” RCW 9.95.420(3). Following the hearing, the ISRB “shall order the
offender released, under such affirmative and other conditions as the [ISRB]
determines appropriate, unless the [ISRB] determines by a preponderance of the
evidence that, despite such conditions, it is more likely than not that the offender
will commit sex offenses if released.” Id. If the ISRB does not release the offender,
it “shall establish a new minimum term.” Id. The ISRB conducted two such release
hearings for Day in 2017 and 2019, and following each hearing the ISRB issued
decisions declining to release Day and extending his minimum term after finding
he was “more likely than not to commit a sex offense if released on conditions.”
Meanwhile, the End of Sentence Review Committee (ESRC) recommended
that the ISRB refer Day for a forensic psychological evaluation (FPE) “to assess
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No. 85705-3-I
3
whether he meets civil commitment criteria as defined under RCW 71.09.020 prior
to finding the offender eligible for release.”1 In September 2020, the King County
Prosecutor’s Office arranged for a psychologist, Dr. Craig N. Teofilo, to conduct
this evaluation to determine “whether [Day] meets [the] criteria as a Sexually
Violent Predator (SVP) per Chapter 71.09 RCW.” 	Dr. Teofilo interviewed Day,
reviewed records regarding Day’s criminal history and sex offense treatments, and
utilized various actuarial risk assessments to evaluate Day’s risk of recidivism.
In his evaluation, Dr. Teofilo diagnosed Day with pedophilic disorder, non-
exclusive type, and “[o]ther specified personality disorder – with mixed personality
features.” 	Dr. Teofilo observed that the actuarial risk assessments generally
classified Day as an above average risk of sexual reoffending and that these
assessments likely underestimate Day’s risk of reoffending. 	Dr. Teofilo also
expressed concern that Day “has not adequately internalized [sex offender]
treatment.” Ultimately, Dr. Teofilo concluded that “it is my professional opinion that
Mr. Day does meet the criteria as a sexually violent predator as described in
Chapter 71.09 RCW” because he had committed a “crime of sexual violence” and
“by reason of his mental abnormality or personality disorder . . . is likely to engage
in predatory acts of sexual violence if not confined in a secure facility.”
In January 2021, Day appeared for his third release hearing. Following the
hearing, the ISRB issued a decision (the 2021 Decision) declining to release Day
1 RCW 71.09.020(19) defines a “sexually violent predator” as “any person who has been convicted
of or charged with a crime of sexual violence and who suffers from a mental abnormality or
personality disorder which makes the person likely to engage in predatory acts of sexual violence
if not confined in a secure facility.”
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No. 85705-3-I
4
and adding 48 months to his minimum term after finding “by a preponderance of
the evidence that Mr. Day is more likely than not to commit a sex offense if released
on conditions.” The ISRB listed four reasons why Day “is not releasable”: (1) the
“[r]esults of the Forensic Psychological Evaluation . . . indicate that Mr. Day meets
the criteria for consideration of Civil Commitment according to RCW 71.09,” (2)
Day “scored high/moderate on the Static-99R” actuarial risk assessment and was
classified by the ESRC as a level III risk of sexual reoffense in the community
under RCW 72.09.345, (3) according to Dr. Teofilo’s report, “‘Mr. Day uses
distorted and intellectualized thinking to deny the presence of risk factors’” and
“‘[h]is inability to acknowledge even a minor amount of planning suggests a lack of
understanding,’” 	and 	(4) 	“[c]ommunity 	supervision 	conditions 	would 	not 	be
adequate 	to 	mitigate 	his 	risk 	to 	reoffend” 	because 	Day 	has 	a 	“history 	of
overestimating his ability to refrain from offending behaviors” given his prior
inability to stop viewing child pornography.
In January 2023, Day filed a Personal Restraint Petition (PRP) in our court
challenging the 2021 Decision. 	Relevant here, Day argued the ISRB failed to
“actually consider[] release conditions, or the likelihood that Day would follow such
conditions.” In response, the ISRB conceded its decision did not comply with our
Supreme Court’s recent opinion in In re Personal Restraint of Dodge, 198 Wn.2d
826, 844, 502 P.3d 349 (2022), because it “does not make it apparent ‘that the
ISRB meaningfully considered . . . whether any conditions of release would
sufficiently mitigate [Day’s] risk level.’” Because the ISRB had already scheduled
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No. 85705-3-I
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a new release hearing to remedy the error, which would afford Day the relief to
which he was entitled to under Dodge, the ISRB asked our court to dismiss Day’s
petition as moot. 	The acting chief judge accepted the ISRB’s concession and
dismissed Day’s PRP as moot in light of the newly scheduled release hearing. See
Order of Dismissal entered Aug. 28, 2023 under Case No. 84881-0-I.
In June 2023, the ISRB held Day’s fourth release hearing. 	Following this
hearing, the Board issued a decision (the 2023 Decision) declining to release Day
and adding 18 months to his minimum term because “[a]fter considering the
possible conditions of release and the remaining evidence, the Board finds James
Day is more likely than not to commit sex offenses if released, despite such
conditions.” Among the evidence unfavorable to release, the ISRB considered Dr.
Teofilo’s conclusion that Day “meets criteria as a Sexually Violent Predator.”
Regarding 	conditions 	of 	release, 	the 	2023 	Decision 	states 	the 	ISRB 	“has
considered all potential conditions of community custody it may lawfully impose,
including 	all 	potential 	conditions 	identified 	by 	the 	[ESRC], 	[Department 	of
Corrections 	(DOC)] 	psychological 	evaluations, 	and 	RCW 	9.94A.704.” 	The
decision then lists 8 such conditions, including electronic monitoring, geographic
restrictions, mental health treatment compliance, and participation in sex offender
treatment. In explaining why community custody conditions would not sufficiently
reduce Day’s likelihood of committing new sex offenses, the 2023 Decision cites
to the conclusion in Dr. Teofilo’s evaluation that “Day meets criteria as a Sexually
Violent Predator” under chapter 71.09 RCW and, thus, is “likely to engage in
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No. 85705-3-I
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predatory acts of sexual violence if not confined to a secure facility.” 	The ISRB
ultimately concluded Day’s “risk is too great for him to attempt to acquire risk
mitigating tools in treatment while being in the community.”
In response to the 2023 Decision, Day filed a new PRP repeating many of
his prior arguments regarding the 2021 Decision. The acting chief judge has since
determined the PRP is not frivolous and has referred it to a panel of the court for
determination on the merits.
II
Day argues the 2023 Decision “contains flaws just as fatal as those” in the
2021 Decision because “the ISRB did nothing more than repeat the platitude that
it considered ‘all possible conditions.’” We agree.
A
To succeed on a PRP challenge to an ISRB decision, a petitioner must
show they are under unlawful restraint. RAP 16.4; Dodge, 198 Wn.2d at 836. 	We
review 	release 	decisions 	“‘to 	ensure 	the 	ISRB 	exercises 	its 	discretion 	in
accordance with the applicable statutes and rules.’” 	Dodge, 198 Wn.2d at 837
(quoting In re Pers. Restraint of Dyer, 157 Wn.2d 358, 363, 139 P.3d 320 (2006)).
Although the ISRB has broad discretion, it “must comply with state and federal law”
in making release decisions. 	In re Pers. Restraint of Parejo, 5 Wn. App. 2d 558,
571, 428 P.3d 130 (2018). The ISRB abuses its discretion if it “bases its decision
on ‘an erroneous view of the law,’ or when it ‘acts without consideration of and in
disregard of the facts.’” 	Dodge, 198 Wn.2d at 837 (quoting Dyer, 157 Wn.2d at
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No. 85705-3-I
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363). 	The ISRB also abuses its discretion where it “supports its decision with
speculation and conjecture.” Dyer, 157 Wn.2d at 369.
In Dodge, our Supreme Court analyzed a similar situation involving an ISRB
release decision. In that case, Dodge petitioned for early release pursuant to RCW
9.94A.730, which allows persons convicted of crimes committed prior to their
eighteenth birthday to “petition the [ISRB] for early release after serving no less
than twenty years of total confinement.” 	198 Wn.2d at 830-31 (quoting RCW
9.94A.730(1)). The statute further provides that the ISRB “‘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 new
criminal law violations if released.’” Id. at 829 (quoting RCW 9.94A.730(3)).
The ISRB denied Dodge’s petition. Id. at 842. He then filed a PRP arguing
the ISRB abused its discretion by failing to apply the statute’s presumption of
release and address any release conditions that might reduce his risk of reoffense.
Id. 	The Supreme Court agreed with Dodge, observing that the ISRB’s decision
disregarded the statutory presumption of release and “fail[ed] to meaningfully
address any recommended potential conditions of release.” Id. at 842-43. Instead,
the ISRB’s decision stated it “found Dodge more likely than not to reoffend if
released with conditions that are designed to help better prepare him for a
successful re-entry into society.” Id. at 843 (internal quotation marks omitted). The
court held, “Compliance with the statutory presumption of release requires more
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No. 85705-3-I
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than that conclusory statement.” Id. To remedy the deficiency, the court remanded
for a new release hearing. Id. at 845.
Here, as the ISRB has acknowledged, the court’s analysis in Dodge
regarding RCW 9.94A.730 is instructive in interpreting RCW 9.95.420—the statute
governing Day’s releasability—given the similarity of the statutes. 	Both statutes
contain a presumption of release and require the ISRB to release the offender
under 	“appropriate” 	“affirmative 	and 	other 	conditions” 	unless 	it 	finds 	by 	a
preponderance of the evidence that “despite such conditions” the offender is more
likely than not to reoffend. 	RCW 9.94A.730(3); RCW 9.95.420(3). 	Thus, RCW
9.95.420, like RCW 9.94A.730, “place[s] a limit on the ISRB’s discretion” in making
release decisions. 	Dodge, 198 Wn.2d at 844; see also In re Pers. Restraint of
McCarthy, 161 Wn.2d 234, 239-40, 241, 164 P.3d 1283 (2007) (“RCW 9.95.420(3)
creates 	a 	limited 	liberty 	interest 	by 	restricting 	the 	Board’s 	discretion 	and
establishing a presumption that offenders will be released to community custody
upon the expiration of their minimum sentence.”). 	We therefore conclude that
Dodge governs our analysis here and, applying Dodge, determine whether the
ISRB abused its discretion in declining to release Day.
The 2023 Decision does not comply with Dodge because the record does
not reflect that the ISRB “meaningfully consider[ed] appropriate release conditions
that could lower the petitioner’s risk of reoffense to an acceptable level.” 	See id.
at 840. 	The ISRB previously conceded the 2021 Decision did not satisfy this
requirement and asserted it would remedy this deficiency by issuing a new
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No. 85705-3-I
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decision that complied with Dodge. 	But the ISRB’s 2023 Decision does not
materially differ from its flawed predecessor; it similarly states in conclusory
fashion that conditions of release could not sufficiently mitigate Day’s risk level
because “[h]is risk is too great for him to attempt to acquire risk mitigating tools in
treatment while being in the community.” 	Although the new decision lists eight
“potential conditions of community custody [the ISRB] may lawfully impose” if Day
is released, it does not further discuss any of these potential conditions in any
detail before concluding they “would not sufficiently reduce the likelihood of James
Day committing new sex offenses.” In other words, the ISRB did not discuss why
electronic 	monitoring, 	geographic 	restrictions, 	mental 	health 	treatment
compliance, participation in sex offender treatment in a community setting, or other
proposed release conditions could not reduce Day’s risk to an appropriate level.
While the Dodge court clarified that the ISRB is not required “to specifically
list any and all potential conditions it might set,” the court nonetheless held that the
ISRB must develop a record demonstrating it “meaningfully considered the
presumption of release or whether any conditions of release would sufficiently
mitigate [the offender’s] risk level.” 198 Wn.2d at 843-44. Here, despite Day and
his counsel proposing potential release conditions at the 2023 release hearing,2
2 In his opening remarks, Day’s attorney told the ISRB that the purpose of the hearing on remand
from Day’s original PRP was “for the board to be able to use the Dodge criteria for looking at
conditions that would make Mr. Day safe in the community.” And before the hearing, Day submitted
a release plan listing various potential release conditions the ISRB could impose, such as
geographic restrictions, restrictions on internet and social media use, prohibitions on contacting
minors, “ankle monitor[ing],” polygraph testing, participation in sex offender treatment such as
SOTAP’s Aftercare program, and maintaining contact with his therapist and supervising community
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No. 85705-3-I
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the ISRB’s written decision is devoid of any discussion of potential release
conditions apart from a conclusory statement that no combination of the eight listed
conditions “would . . . sufficiently reduce the likelihood of James Day committing
new sex offenses.” 	Dodge requires more than ipse dixit, and this court cannot
simply take the ISRB’s word for it. Because we cannot conclude from this record
that the ISRB meaningfully considered whether any conditions of release would
sufficiently mitigate Day’s risk level, we agree with Day that the 2023 Decision is
no better than the ISRB’s admittedly deficient 2021 Decision.
B
Rather than explain why the identified conditions of release could not
reduce Day’s risk to an acceptable level, the 2023 Decision—like the 2021
Decision—reasons Day is not releasable on any conditions because Dr. Teofilo
opined in his 2020 evaluation that Day meets the legal definition of an SVP under
RCW 71.09.020(19), in that his mental abnormality and personality disorder “made
Mr. Day likely to engage in predatory acts of sexual violence if not confined to a
secure facility.” The ISRB reiterates this position in its appellate briefing, arguing
that “the FPE’s conclusion that Day meets the SVP criteria is a critical piece of
evidence 	that 	weighs 	heavily 	against 	Day’s 	conditional 	release 	because 	it
establishes that no amount, or configuration, of conditions can mitigate his risk to
a level that is acceptable under RCW 9.95.420.”
corrections officer. Day then testified at the hearing that this plan “outlined community custody
conditions that will limit my opportunity to even offend.”
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No. 85705-3-I
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The ISRB’s reliance on Dr. Teofilo’s evaluation is fundamentally flawed for
two reasons. First, the ISRB presumes Day is an SVP even though the State has
not complied with the statutory requirements to make that determination. 	To
involuntarily commit a person under the SVP statute, chapter 71.09 RCW, the
State must first file a petition alleging the person meets the legal definition of an
SVP under RCW 71.09.020(19) in that they are a “person convicted of or charged
with a crime of sexual violence and who suffers from a mental abnormality or
personality disorder which makes the person likely to engage in predatory acts of
sexual violence if not confined in a secure facility.” RCW 71.09.030. If the State
files such a petition, the person “enjoys a panoply of procedural protections,” such
as a judicial determination of whether probable cause exists to believe the person
is an SVP, representation of counsel (including appointed counsel for indigent
persons), an independent expert evaluation “on the person’s behalf” (akin to Dr.
Teofilo’s evaluation of Day), and a speedy trial at which the State bears the burden
of proving the merits of its petition. State v. McCuistion, 174 Wn.2d 369, 379, 275
P.3d 1092 (2012); RCW 71.09.040-.060. At the conclusion of this trial, a judge or
unanimous jury must determine “whether, beyond a reasonable doubt, the person
is a sexually violent predator” as defined in RCW 71.09.020(19). RCW 71.09.060.3
3 In this sense, the procedural guarantees afforded to persons subjected to civil commitment
proceedings under the SVP statute are greater than those afforded to offenders seeking release
under RCW 9.95.420 in that the latter are not entitled to a “formal, adversarial hearing” but, instead,
are merely entitled to an “‘opportunity to be heard’ and an explanation when the Board denies
parole.” See McCarthy, 161 Wn.2d at 241 (quoting Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 16, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979)).
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No. 85705-3-I
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As the ISRB acknowledges, Day has not been adjudicated to be an SVP in
accordance with these procedures. We are unaware if the State has filed a petition
alleging that he is an SVP under RCW 71.09.030, and Day disputes that he is an
SVP. Dr. Teofilo himself even noted in his evaluation that whether Day ultimately
meets the definition of an SVP “is a legal determination made by the trier of fact.”
To the extent the ISRB suggests it can categorically deny release to persons it
suspects would be adjudicated to be an SVP if they were subjected to the civil
commitment process outlined in chapter 71.09 RCW without more would obviate
its obligation under Dodge to “meaningfully consider[] the presumption of release
or whether any conditions of release would sufficiently mitigate [the offender’s] risk
level.” 	198 Wn.2d at 844. 	Dodge recognizes that the ISRB’s consideration of
public safety “‘does not override the presumption of release’” because “[o]therwise,
the presumption of release would have no meaning—because the only way to
absolutely guarantee public safety would be to never release anyone.” Id. at 841-
42 (quoting In re Pers. Restraint of Brooks, 197 Wn.2d 94, 102, 480 P.3d 399
(2021)).
Second, Dr. Teofilo’s evaluation cannot support such a decision here
because it is outdated. 	When Dr. Teofilo evaluated Day in 2020, Day scored 4
points on the Static-99R risk assessment and 5 points on the Static-2002R risk
assessment, both of which indicated Day posed an “Above Average” risk of
reoffense. But due to Day’s increase in age between the 2020 evaluation and the
2023 	release 	hearing, 	his 	score 	on 	the 	Static-99R 	and 	Static-2002R 	risk
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No. 85705-3-I
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assessments decreased to 3 points (indicating a “low/moderate risk”) and 4 points
(indicating an “average risk”), respectively. 	Despite acknowledging that Day’s
score on one of these risk assessments had decreased since he was interviewed
by Dr. Teofilo, the 2023 Decision nonetheless recites both of Day’s previous scores
on the Static-99R and Static-2002R risk assessments from Dr. Teofilo’s evaluation
as “[e]vidence of [Day’s] continuing intent or propensity to engage in sex offenses.”
The decision goes on to recite Dr. Teofilo’s conclusions regarding whether Day
meets the SVP criteria without acknowledging that certain factual data supporting
these conclusions are no longer accurate.
Additionally, at the 2023 hearing, Day addressed Dr. Teofilo’s concern that
he “may not have internalized his sex offender treatment.” 	Day explained that
while he previously denied planning his offenses, “I’ve had to kind of let my ego
take that hit of I did plan these offenses and I’m responsible for the result of them
. . . . [T]hat’s one thing that I’ve absorbed from having that evaluation.” Day also
stated that although he was previously hesitant to identify as a pedophile when
speaking to Dr. Teofilo, “I need to accept that this is my past and my present and
my future, and that comes along with a lifetime of using my interventions. 	And I
am a pedophile, but I’m also a good person who’s making decisions that will limit
hurting other people upon their release.” Dr. Teofilo did not have the opportunity
to reassess Day’s current thinking with an updated evaluation.
The ISRB argues that despite the decrease in Day’s scores on these risk
assessments, it may nonetheless rely on Dr. Teofilo’s 2020 evaluation in making
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No. 85705-3-I
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its release decision under RCW 9.95.420 because “[t]he mere passage of three
years . . . did not render Day’s FPE obsolete.” 	In support of this argument, the
ISRB cites to In re Det. of Meirhofer, 182 Wn.2d 632, 639, 343 P.3d 731 (2015),
for the proposition that “‘passive aging’ does not necessarily change a sex
offender’s recidivism risk.” The State’s reliance on Meirhofer is misplaced because
the court in that case was discussing how the legislature amended RCW 71.09.090
to prevent a person who is civilly committed as an SVP from relying on “‘a mere
advance in age or a change in gender or some other demographic factor after the
time of commitment” to obtain a discharge hearing. Meirhofer, 182 Wn.2d at 638-
39 (quoting L AWS OF 2005, ch. 344, § 1). 	In contrast, Day—who has not been
adjudicated to be an SVP and, thus, is not bound by RCW 71.09.090—is citing his
advance in age to contest the accuracy of Dr. Teofilo’s opinion that he is an SVP
in the first place. Again, the ISRB conflates the criminal release proceedings under
RCW 9.95.420 with the civil commitment proceedings under chapter 71.09 RCW.
See In re Det. of Belcher, 189 Wn.2d 280, 290, 399 P.3d 1179 (2017) (“[C]ivil
commitment is different from criminal incarceration.”).
The ISRB also suggested at oral argument that it may indefinitely rely on
Dr. Teofilo’s 2020 evaluation as a means of denying release to Day under RCW
9.95.420 “[u]ntil there is evidence in the record that substantially contradicts it.”
Wash. Ct. of Appeals oral argument, In re Pers. Restraint of Day, No. 85705-3-I
(June 12, 2025), at 10 min., 55 sec. to 11 min., 5 sec. (on file with court). 	This
argument is factually untenable because, as explained above, there is evidence in
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No. 85705-3-I
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the record substantially contradicting the evaluation’s conclusions. 	And the
argument is legally untenable because our legislature has indicated that SVP
evaluations should be conducted on an annual basis, which also has not happened
here.4 Given that a person who is being formally committed as an SVP must be
reevaluated on an annual basis, it strains credulity for the ISRB to argue that Day—
who has never been adjudicated to be an SVP—is not entitled to be reevaluated
unless and until he sufficiently contradicts Dr. Teofilo’s evaluation.
The ISRB’s argument is especially concerning here because the State
alone determines when Day is subjected to an SVP evaluation and when to file an
SVP petition that would trigger the civil commitment proceedings under chapter
71.09 RCW. As the “agency with jurisdiction” over Day under chapter 71.09 RCW,
the ISRB has “the authority to refer [Day] to the prosecuting attorney or attorney
general for civil commitment as an SVP.” See Parejo, 5 Wn. App. 2d at 574-75.5
Once this referral is made, the State may arrange for a “‘mental health evaluation’
of a prisoner prior to the commencement of SVP commitment proceedings.” In re
Det. 	of 	Strand, 	167 	Wn.2d 	180, 	184, 	217 	P.3d 	1159 	(2009) 	(citing 	RCW
71.09.025(1)(b)(v)). 	This process occurred here following Day’s 2019 release
4 If a person is involuntarily committed as an SVP under chapter 71.09 RCW, the person is entitled
to annual review “to ensure that [the person] continues to meet the criteria for confinement,” and
“[t]he State must provide an evaluation on a yearly basis demonstrating that [the person] continues
to meet the definition of an SVP.” McCuistion, 174 Wn.2d at 379, 386; RCW 71.09.070, .090.
5 RCW 71.09.025(1)(a)(i) states, “[w]hen it appears that a person may meet the criteria of a sexually
violent predator as defined in RCW 71.09.020, the agency with jurisdiction shall refer the person in
writing” to the prosecuting attorney or the attorney general prior to “[t]he anticipated release from
total confinement of a person who has been convicted of a sexually violent offense.” The agency
with jurisdiction is the “agency with the authority to direct the release of a person serving a sentence
or term of confinement.” RCW 71.09.025(3).
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No. 85705-3-I
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hearing; the ISRB “request[ed] a FPE [to] be completed prior to our next hearing
[regarding Day’s release under RCW 9.95.420],” and the King County Prosecuting
Attorney’s Office “referred this case to” Dr. Teofilo for an SVP evaluation. Taking
the State’s argument to its logical conclusion results in a Kafkaesque scenario in
which the State could decline to reevaluate Day once it obtains a report opining
that he is an SVP (such as Dr. Teofilo’s report) and then rely on that report to
indefinitely confine Day as a de facto SVP under RCW 9.95.420 without affording
him an opportunity to contest his SVP designation through the adjudicative process
set forth in chapter 71.09 RCW.6 We cannot condone this approach to releasability
under RCW 9.95.420(3).
To be sure, the ISRB is not prohibited from considering psychological
evaluations in determining whether to release Day under RCW 9.95.420. 	See
Dyer, 157 Wn.2d at 365 (noting the ISRB obtains psychological evaluations and
relies on them in making parole decisions); see also WAC 381-90-050(1)(a), (2)(c),
(4)(e) (stating the ISRB may consider “pertinent information” and must consider
the ESRC’s report, which may include “[p]sychiatric or psychological reports”). But
where the statute governing an offender’s eligibility for release presumes the
6 The record here is also concerning because it indicates the ISRB may be relying on Dr. Teofilo’s
evaluation to indefinitely detain Day even though he meets the release criteria under RCW
9.95.420. At Day’s 2019 release hearing, a board member told Day that the ISRB referred him for
the SVP evaluation because it was “considering the possibility of release” given that Day had “pretty
much so far done everything we’ve asked you to.” But the board member also explained to Day
that “if someone meets in an evaluation as a sexually violent predator, it does make it pretty difficult
for us to get to less likely to commit a sex offense if released on conditions.” A board member also
told Day at this hearing that he could not be released before the evaluation was completed, which
runs counter to our holding in Parejo that a similar parole statute, RCW 9.95.115, “does not prohibit
release unless the person is ‘subject to’ civil commitment as an SVP under the procedures of
chapter 71.09 RCW.” 5 Wn. App. 2d at 575.
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No. 85705-3-I
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offender is releasable on conditions, as does RCW 9.95.420, the ISRB may not
circumvent the requirements of Dodge by relying on a psychologist’s opinion that
the offender meets the legal definition of an SVP under RCW 71.09.020(19) and,
therefore, must be confined to a secure facility to prevent reoffense.7 	Dodge
requires the ISRB to meaningfully consider the presumption of release and
whether any conditions of release would sufficiently mitigate Day’s risk level. 198
Wn.2d at 844. In that respect, the 2023 Decision, like the 2021 Decision before it,
is deficient under Dodge.
III
In sum, the ISRB abused its discretion by failing to meaningfully consider
whether any conditions of release would sufficiently mitigate Day’s risk level as
required by RCW 9.95.420 and Dodge. 	As such, we grant Day’s petition. 	The
remedy for this abuse of discretion is “remand for a new hearing.” 	Dodge, 198
7 Our holding is consistent with In re Pers. Restraint of Mattson, 166 Wn.2d 730, 734, 741-43, 214
P.3d 141 (2009). In that case, DOC had a policy of categorically denying early release under RCW
9.94A.728 to inmates, like Mattson, who an evaluator had concluded met the criteria for an SVP
under RCW 71.09.020(19). Id. at 733. The Supreme Court upheld the DOC’s denial of release to
Mattson because RCW 9.94A.728 did not create a legitimate expectation of release and, instead,
granted the DOC wide discretion to create policies governing which inmates were eligible for
release. Id. at 741-43. But unlike RCW 9.94A.728, which does not contain a presumption of release,
RCW 9.95.420 does create a legitimate expectation of release and does not grant the ISRB
discretion to categorically deny release to offenders based on a forensic evaluator’s opinion that
the offender meets the legal definition of an SVP. See McCarthy, 161 Wn.2d at 241 (presumption
of release in RCW 9.95.420(3) “restrict[s] the Board’s discretion” in making release decisions).
Accordingly, if the State believes Day is an SVP, it may file a petition seeking to have him committed
to a secure facility under the civil commitment process outlined in chapter 71.09 RCW if and when
“it appears that . . . [Day] is about to be released from total confinement” under RCW 9.95.420.
See RCW 71.09.030(1)(a).
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No. 85705-3-I
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Wn.2d at 845. 	In making its new release decision, the ISRB must comply with
applicable law as set forth in this opinion.8
Granted and remanded.
WE CONCUR:
8 Given the Dodge court’s clear directive that remand is the proper remedy here, we reject Day’s
request that we “recognize a new remedy: remand with orders to release him on conditions.” And
because our opinion grants the relief to which Day is entitled under Dodge, we decline to address
the other arguments raised by Day in his PRP and supplemental briefing. See Clark County v. W.
Wash. Growth Mgmt. Hr’gs Review Bd., 177 Wn.2d 136, 146-47, 298 P.3d 704 (2013) (appellate
courts “retain wide discretion in determining which issues must be addressed in order to properly
decide a case on appeal” and “must address only those claims and issues necessary to properly
resolving the case as raised on appeal by interested parties”).
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