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AGLO 1979 No. 11 - February 21, 1979
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF PRISON TERMS AND PAROLES ‑- PRISONERS ‑- PAROLES ‑- AUTHORITY TO FIX MINIMUM TERM OR PAROLE PENDING APPEAL

(1) The Board of Prison Terms and Paroles is both authorized and required by RCW 9.95.040 to fix a minimum duration of confinement in the case of a person admitted to a state correctional facility under RCW 36.63.255 while on appeal from a felony conviction.

(2) In such a case the Parole Board is further authorized by RCW 9.95.110 to release on parole, without the concurrence of the courts, a person admitted to a state correctional facility under RCW 36.63.255 even though that person's appeal is still pending.

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                                                                February 21, 1979

Honorable Diane Oberquell, Chairman
Board of Prison Terms and Paroles
700 Capitol Center Building
410 West 5th
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1979 No. 11

Dear Mrs. Oberquell:

            By letter previously acknowledged you requested our opinion on a question which we divide and paraphrase as follows:

            (1) Is the Board of Prison Terms and Paroles authorized or required by RCW 9.95.040 to fix a minimum duration of confinement in the case of a person admitted to a state correctional facility under RCW 36.63.255 while on appeal from a felony conviction?

             [[Orig. Op. Page 2]]

            (2) Assuming an affirmative answer to question (1), is the Parole Board authorized by RCW 9.95.110 to release on parole, without the concurrence of the courts, a person admitted to a state correctional facility under RCW 36.63.255 while that person's appeal is still pending?

            We answer both questions in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            Your inquiry assumes the case of a person who has been convicted of a felony in superior court but who has then taken an appeal.  Because he or she was either unwilling or unable to post bail on appeal, that person has now been transferred from the county jail to a state correctional facility in accordance with RCW 36.63.255 which reads as follows:

            "Any person imprisoned in a county jail pending the appeal of his conviction of a felony and who has not obtained bail bond pending his appeal shall be transferred after thirty days but within forty days from the date judgment was entered against him to a state institution for felons designated by the director of the department of institutions:  PROVIDED, That when good cause is shown, a superior court judge may order the prisoner detained in the county jail beyond said forty days for an additional period not to exceed ten days."

            Also to be noted in connection with your questions is Superior Court Criminal Rule (CrR) 3.2, as promulgated by the state supreme court.  In essence, this rule entitles any defendant charged with an offense to be released after arraignment upon the least restrictive conditions which will reasonably assure his or her reappearance in court when required.  Subsection (h) of the rule concerns the matter of release after verdict or plea of guilty and reads as follows:

             [[Orig. Op. Page 3]]

            "(h) A defendant (1) who is charged with a capital offense, or (2) who has entered a plea of guilty to a felony, or who has been found guilty of a felony and is either awaiting sentence or has filed an appeal, shall be released pursuant to this rule, unless the court finds that the defendant may flee the state or pose a substantial danger to another or to the community.  If such a risk of flight or danger exists, the defendant may be ordered detained."

            Question (1):

            Your first question involves the interrelationship between RCW 36.63.255,supra, and the statutory responsibilities of the Board of Prison Terms and Paroles under another statute, RCW 9.95.040, which reads, in material part, as follows:

            "Within six months after the admission of a convicted person to the penitentiary, reformatory, or such other state penal institution as may hereafter be established, the board of prison terms and paroles shall fix the duration of his confinement. . . ."

            The issue, simply stated, is whether RCW 9.95.040 applies in the case of a person admitted to a state correctional facility under RCW 36.63.255,supra, while on appeal from a felony conviction.  In order to respond we must, however, also consider the implications of still another statute, RCW 9.95.062, which provides that:

            "An appeal by a defendant in a criminal action shall stay the execution of the judgment of conviction.

            "In case the defendant has been convicted of a felony, and has been unable to furnish a bail bond pending the appeal, the time he has been imprisoned pending the appeal shall be deducted from the term for which he was theretofore sentenced to the penitentiary, if the judgment against him be affirmed."

            It is interesting to note that this last-quoted statute and what is now RCW 36.63.255,supra, originated as §§ 1 and 2, respectively, of the same two legislative acts; namely, chapter 103, Laws of 1969 and chapter 4, Laws of 1969, Ex. Sess.  From  [[Orig. Op. Page 4]] this we would conclude that while the legislature intended on appeal by a defendant in a criminal action to have the effect of staying the execution of the judgment of conviction, it nevertheless further intended to treat such a defendant as a convicted person in the event that he or she is unable to secure release pending appeal because of his or her unwillingness or inability to post bail.1/   Cf.,State v. Perry, 10 Wn.App. 159, 516 P.2d 1104 (1973), wherein the state court of appeals observed as follows:

            ". . . RCW 9.95.062 treats the first judgment of conviction as a completed offense whether or not an appeal is pending.  See Rogers v. United States, 325 F.2d 485, 487 (10th Cir. 1963).  The statute stays only 'the execution' of the judgment of conviction.  It does not stay the operative effect of that judgment for all purposes."2/

             From the foregoing it follows, in our opinion, that while the courts also retain limited jurisdiction over a convicted person pending appeal (see State ex rel. Schock v. Barnett, 42 Wn.2d 929, 932-933, 259 P.2d 404 (1953)), such jurisdiction is not exclusive in the case of one (i.e., a "convicted person") who has been admitted to a state penal institution under RCW 36.63.255 during the pendency of his or her appeal.  Instead, in such a case, jurisdiction is also obtained by the executive branch of state government‑-and, specifically both by the Adult Corrections Division of the Department of Social and Health Services (for the purpose of confinement) and by the Board of Prison Terms and Paroles‑-the latter in accordance with the provisions of RCW 9.95.040, supra, here repeated in material part for ease of reference as follows:

             [[Orig. Op. Page 5]]

            "Within six months after the admission of a convicted person to the penitentiary, reformatory, or such other state penal institution as may hereafter be established, the board of prison terms and paroles shall fix the duration of his confinement. . . ."

            Accordingly, we answer your first question in the affirmative.

            Moreover, we further note that this conclusion is substantially bolstered by an additional, constitutionally related, legal argument.  If a convicted person did not become subject to the jurisdiction of the Parole Board upon being confined in a state penal institution pending appeal the result could very well have an unconstitutional "chilling effect" on the right of appeal itself (see,e.g.,Griffin v. Illinois, 351 U.S. 12, 18, 100 L.Ed. 891, 76 S.Ct. 585, 590 (1955)) because such a person might thereby be induced to forego any appeal from his conviction in order to gain such advantages as flow from the early fixing of a minimum term of confinement.  It is, however, a well-established principle that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former and not the latter is to be adopted.  See,e.g., Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 268, 150 P.2d 839 (1944), and cases cited therein.  Therefore, for that reason as well, it is our opinion that a convicted person such as is described in your first question does, indeed, fall within the class of individuals for whom the Parole Board is both authorized and required by RCW 9.95.040,supra,  to establish discretionary minimum terms of confinement.

            Question (2):

            Your second question assumes the foregoing affirmative answer to question (1) and asks whether the Parole Board is further authorized by RCW 9.95.110 to release such a person on parole, without the concurrence of the courts, while his or her appeal from the underlying felony conviction is still pending.

            As we view it, the reasoning employed in our response to your first question, above, also requires an affirmative answer to this additional inquiry.  Both RCW 9.95.040,supra,  [[Orig. Op. Page 6]] and RCW 9.95.110 vest the Parole Board with jurisdiction over "a convicted person," the latter statute reading, in pertinent part, as follows:

            "The board of prison terms and paroles may permit a convicted person to leave the buildings and enclosures of the penitentiary or the reformatory on parole, after such convicted person has served the period of confinement fixed for him by the board, less time credits for good behavior and diligence in work:  PROVIDED, That in no case shall an inmate be credited with more than one‑third of his sentence as fixed by the board."

            Furthermore, we have the express directive of the second paragraph of RCW 9.95.062,supra, which, repeated for ease of reference, provides that:

            ". . .

            "In case the defendant has been convicted of a felony, and has been unable to furnish a bail bond pending the appeal, the time he has been imprisoned pending the appeal shall be deducted from the term for which he was theretofore sentenced to the penitentiary, if the judgment against him be affirmed."

            The clear implication of this statutory provision is that any time spent in confinement pending appeal by a convicted felon is to be counted‑-in the same manner as though no appeal had been taken‑-in determining when, in point of time, his or her full penal obligation has been served.  In addition, as we have earlier seen, such an interpretation of RCW 9.95.062,supra, is in all probability constitutionally required under theGriffin v. Illinois line of reasoning referred to and relied upon in our answer to your first question.

            Also here to be noted isMonohan v. Burdman, 84 Wn.2d 922, 530 P.2d 334 (1975) in which our state supreme court observed at page 929, that "a promise of parole has been granted"  [[Orig. Op. Page 7]] when a minimum term is fixed‑-signifying, in turn, a tentative parole release date.  Implicit in this premise is that the Parole Board must have the authority then to grant a parole to a person for whom it has set a minimum term for otherwise the promise referred to would be illusory.  Furthermore, there is no indication in the Monohan case that the presence of a pending appeal conditions or restricts the board's authority in this regard.

            It has, nevertheless, been suggested to us that (in the words of your question) ". . . the concurrence of the courts . . ." is necessary in order to permit a convicted felon to be paroled while an appeal is pending because of CrR 3.2,supra, subsection (h) of which provides, as we have earlier seen, that:

            "A defendant (1) who is charged with a capital offense, or (2) who has entered a plea of guilty to a felony, or who has been found guilty of a felony and is either awaiting sentence or has filed an appeal, shall be released pursuant to this rule, unless the court finds that the defendant may flee the state or pose a substantial danger to another or to the community.  If such a risk of flight or danger exists, the defendant may be ordered detained."

            As we understand it, the argument presented is that this rule takes precedence over any conflicting statutes and precludes any convicted felon who has been incarcerated pending appeal from being released from confinement except by order of the court itself.  We do not, however, agree.  The clear import and purpose of CrR 3.2(h), supra, is not to restrict, but to liberalize the release of convicted persons pending appeal by making it possible for a court to do so without requiring the posting of bail.  State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974), supra, at n. 1.  Accordingly, we find no conflict between the rule and the above‑quoted provisions of RCW 9.95.110 as we have heretofore construed those provisions in this opinion.

            Perhaps, in the final analysis, our point may best be made through an analogy.  Suppose the case of a convicted person who received a court ordered maximum sentence of relatively short duration;e.g., a two-year sentence such as is provided for by RCW 69.50.402 or 69.50.403.  Suppose, further, as might be entirely possible, that this person appealed but his or her  [[Orig. Op. Page 8]] appeal was not heard and finally determined until more than two years later.  Clearly, such a person would be entitled to release from confinement at the end of the statutorily prescribed two-year term even though the appeal was still pending‑-and it would not take a court order under CrR 3.2(h), supra, to free that person.  But if that is so, what legitimate difference is there between the case thus posited and the case of a convicted person who, pending appeal, has satisfactorily completed the minimum term of confinement fixed for him or her by the Parole Board (in accordance with our answer to your first question) under the provisions of RCW 9.95.040,supra.  We perceive no valid distinction between the two cases.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

NATE D. MANNAKEE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Or, in the alternative (in view of the subsequent option of CrR 3.2(h), supra), the defendant's inability to obtain release pursuant to court order under that rule.  See,State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974).

2/In the Perry case it was unsuccessfully contended that a conviction which was being appealed could not legally be used to enhance punishment on a second, separate conviction.  The court concluded that for purposes of enhancing punishment for subsequent offenses the defendant was a "convicted person" unless and until the judgment of conviction was set aside by the appellate court.

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