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AGLO 1978 No. 11 - March 21, 1978
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Slade Gorton | 1969-1980 | Attorney General of Washington

CRIMES ‑- PUNISHMENT ‑- PAROLE BOARD ‑- PRISONERS ‑- FIREARMS ‑- MANDATORY MINIMUM TERM OF CONFINEMENT

The Washington State Board of Prison Terms and Paroles is not required to fix a mandatory minimum prison term under RCW 9.95.040 in those cases where a conviction is accompanied only by a special finding, entered pursuant to the provisions of RCW 9.41.025, that the individual in question was armed with a firearm at the time of the commission of his offense; in order for the Board's discretion to be so restricted there must, either in addition or instead, be a special finding entered pursuant to RCW 9.95.015 specifying that the individual was armed with a deadly weapon at the time of commission of the crime.

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                                                                  March 21, 1978

Mrs. Diane Oberquell, Chairman
Board of Prison Terms and Paroles
700 Capitol Center Building
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1978 No. 11

Dear Mrs. Oberquell:

            By letter previously acknowledged you asked for our opinion on the following question:

            "Is the Washington State Board of Prison Terms and Paroles required to fix a mandatory minimum prison term in cases where a conviction is accompanied only by a special finding, entered pursuant to the provisions of RCW 9.41.025, that the individual was armed with a firearm at the time of the commission of the offense?"

            We answer this question in the negative for the reasons set forth in our analysis.

             [[Orig. Op. Page 2]]                       ANALYSIS

            The statute referred to in your question, which is part of the legislature's response to the use of firearms in the commission of crimes, reads as follows:

            "Any person who shall commit or attempt to commit any felony, or any misdemeanor or gross misdemeanor categorized herein as inherently dangerous, while armed with, or in the possession of any firearm, shall upon conviction, in addition to the penalty provided by statute for the crime committed without use or possession of a firearm, be imprisoned as herein provided:

            "(1) For the first offense the offender shall be guilty of a felony and the court shall impose a sentence of not less than five years, which sentence shall not be suspended or deferred;

            "(2) For a second offense, or if, in the case of a first conviction of violation of any provision of this section, the offender shall previously have been convicted of violation of the laws of the United States or of any other state, territory or district relating to the use or possession of a firearm while committing or attempting to commit a crime, the offender shall be guilty of a felony and shall be imprisoned for not less than seven and one‑half years, which sentence shall not be suspended or deferred;

            "(3) For a third or subsequent offense, or if the offender shall previously have been convicted two or more times in the aggregate of any violation of the law of the United States or of any other state, territory or district relating to the use or possession of a firearm while committing or attempting to commit a crime, the offender shall be guilty of a felony and shall be imprisoned for not less than fifteen years, which sentence shall not be suspended or deferred;

            ". . ."

             [[Orig. Op. Page 3]]   This statute is commonly referred to as the "firearms statute," primarily to distinguish it from RCW 9.95.040, known as the "deadly weapons" statute, which provides (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 term of imprisonment so fixed shall not exceed the maximum provided by law for the offense of which he was convicted or the maximum fixed by the court where the law does not provide for a maximum term.

            "The following limitations are placed on the board of prison terms and paroles with regard to fixing the duration of confinement in certain cases, notwithstanding any provisions of law specifying a lesser sentence, to wit:

            "(1) For a person not previously convicted of a felony but armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than five years.

            "(2) For a person previously convicted of a felony either in this state or elsewhere and who was armed with a deadly weapon at the time of the commission of his offense, the duration of confinement shall not be fixed at less than seven and one‑half years.

            ". . ."

            The second of these two statutes, RCW 9.95.040, clearly requires the parole board to fix prison terms of specified minimum lengths for persons found to have committed crimes while armed with a deadly weapon.  Your question asks whether a similar requirement is imposed on the board by RCW 9.41.025.

            The parole board's duty to impose a mandatory term under the provisions of RCW 9.95.040 is invoked upon the board's receipt of a special finding entered pursuant to RCW 9.95.015, which reads as follows:

             [[Orig. Op. Page 4]] "In every criminal case wherein conviction would require the board of prison terms and paroles to determine the duration of confinement and wherein there has been an allegation and evidence establishing that the accused was armed with a deadly weapon at the time of the commission of the crime, the court shall make a finding of fact of whether or not the accused was armed with a deadly weapon, as defined by RCW 9.95.040, at the time of the commission of the crime, or if a jury trial is had, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the defendant was armed with a deadly weapon, as defined in RCW 9.95.040, at the time of the commission of the crime."

            In the case of RCW 9.41.025, on the other hand, the legislature has enacted no comparable implementing statute.  Nevertheless, on constitutional due process grounds, the state supreme court has held that before the aggravated punishment which it requires may be invoked there must similarly be a special finding or verdict in the words of that statute.  See,State v. Frazier, 81 Wn.2d 628, 635, 503 P.2d 1073 (1972).  Moreover, the court there specifically indicated that a finding in the words of the deadly weapon statute, RCW 9.95.040, would not allow invocation of the penalties attendant to RCW 9.41.025.  See also,State v. Cosner, 85 Wn.2d 45, 530 P.2d 317 (1975).  It is thus clear that under the firearms statute (RCW 9.41.025) an allegation and finding will not, per se, also constitute a deadly weapon finding under RCW 9.95.015 and 9.95.040, even though a firearm is, itself, a deadly weapon.  Here, as above stated, your question assumes only a firearms finding.

            The differences between the requirements of the firearms and deadly weapons statutes have long been a source of some confusion and misunderstanding.  In fact, the Court of Appeals has stated:

            "The inconsistencies resulting from the two legislative efforts to deter criminal use of firearms cannot be rationalized. . . ."  State v. Smith, 11 Wn.App. 216, 225, 521 P.2d 1197 (1974).

             [[Orig. Op. Page 5]]   Originally, the firearms statute, then RCW 9.41.020, created a separate offense.  See,State v. Canady, 69 Wn.2d 886, 421 P.2d 347 (1966).  In 1969, however, it was replaced with what is now RCW 9.41.025, supra, and was thereafter interpreted not as creating a new offense but only as fixing additional penalties.  See,State v. Boyer, 4 Wn.App. 74, 480 P.2d 257 (1971), andState v. Frazier,supra.  The question then became that of what additional penalties were required by a firearms finding.  Most of the cases which have discussed that issue have done so only collaterally, in the context of determining other issues ‑ such as what constitutional requirements exist insofar as pleading and proving possession of a deadly weapon or firearm are concerned.  See,e.g.,Frazier, supra; Smith, supra and Miller v. Morris, 10 Wn.App. 694, 519 P.2d 1314 (1974).  However, in bothFrazier and Smith, the following dicta suggested that a firearm finding would require imposition of a mandatory minimum term of confinement as well as sentence:

            ". . .  The result of an adverse determination [i.e., a firearm finding] is to compel incarceration in the penal institutions for certain fixed periods of time. . . ."  Frazier, 81 Wn.2d at 634.

            ". . .  By this allegation, the state sought to subject Smith to the rigors of RCW 9.41.025 which would make him ineligible for a probationary sentence as well as insure that he received a minimum prison term of 5 or 7 1/2 years. . . ."  Smith, 11 Wn.App. at 223.  (Emphasis supplied)

            But later, inState v. Markovich, 17 Wn.App. 809 (1977), the court said, at p. 815, that a firearm finding required the court ". . . to impose a mandatory minimumsentence of 5 years under RCW 9.41.025" (emphasis supplied), thus highlighting a distinction between a mandatory minimum "sentence," to be imposed by the court, and a mandatory minimum "duration of confinement" (as that latter term is used in the deadly weapons statute, RCW 9.95.040,supra) to be set by the parole board.  And earlier the same year, in State v. Edwards, 17 Wn.App. 355 (1977), the same court2/ explained the essential nature of that distinction in a manner which we would here adopt for the purposes of this opinion.

            TheEdwards case is significant because, perhaps more than any other case which has discussed RCW 9.41.025 and 9.95.040, that case was directly concerned with the relationship between the two statutes.  InEdwards, the defendant had been  [[Orig. Op. Page 6]] convicted of second degree assault "with a firearm, RCW 9.41.025, which is a deadly weapon, RCW 9.95.040," 17 Wn.App. at 356.  The defendant contended on appeal that the two statutes allowed the state to seek varying punishments for the same criminal act (use of a pistol) and thereby denied him equal protection, ibid at 359.  The court, however, rejected this contention and in doing it analyzed the difference between the firearms and deadly weapons statutes as follows:

            "A review of the statutes involved reveals a vesting in the prosecutor of charging discretion which, in proper combination, will insure a mandatory minimum term of incarceration for a convicted defendant.  RCW 9.41.025 deprives the trial court of sentencing discretion when the applicable section of that statute is properly alleged and proven.  The court may not suspend or defer sentence, but must order incarceration for the specified statutory period.  In contrast, RCW 9.95.040 deprives the Washington Board of Prison Terms and Paroles of discretion to grant an early parole by again mandating a minimum term.  Limitation of court discretion cannot prevent early release by the board, nor can limitation of board discretion prevent granting of probation or suspension by the court.  The proper allegation and proof upon both statutes will insure mandatory minimum incarceration. . . ."  Ibid at 360.  (emphasis supplied)

            In other words, in enacting RCW 9.41.025, the legislature was speakingonly to the discretion of the court and was not also limiting the discretion of the parole board.3/   See also, to the same effect, State v. Hattori, 19 Wn.App. 74 (1978) wherein Division I of the Court of Appeals likewise said (in an opinion rendered after your submission of this opinion request) at pp. 81-2:

             [[Orig. Op. Page 7]] ". . .  Under RCW 9.95.040, the discretion of the Board of Prison Terms and Paroles is restricted if the trier of fact makes a finding that the defendant committed the felony while armed with a dangerous weapon.  See State v. Coma, 69 Wn.2d 177, 417 P.2d 853 (1966); State v. Smith, 11 Wn.App. 216, 521 P.2d 1197 (1974).  Under RCW 9.41.025, the trial court's discretion to suspend or defer sentence is limited if a special finding is entered by the trier of fact that the defendant was armed with a firearm.  See State v. Thompson, 88 Wn.2d 60, 558 P.2d 245 (1977); State v. Frazier, 81 Wn.2d 628, 503 P.2d 1073 (1972);State v. Butterfield, 12 Wn.App. 745, 529 P.2d 901 (1974).  Although the two statutes limit the discretion of different entities, because of their similar legislative purpose, they should be interpreted consistently whenever possible. . . ."

            This conclusion also finds support in other areas where the legislature has indicated clearly when it intended to limit the parole board's discretion.  Perhaps the best example of this is RCW 9.95.040 itself, by which the legislature has required mandatory minimum terms to be fixed not only where a deadly weapon finding exists but also in cases where there is an habitual criminal finding (see RCW 9.95.040(3)) and in those where an individual is convicted of embezzling funds from an institution of public deposit of which he was an officer or stockholder (RCW 9.95.040(4)).  A similar indication is evidenced in the Uniform Controlled Substances Act, where, in RCW 69.50.410(3), the legislature provided in part that:

            "(3) Any person convicted of a violation of subsection (1) of this section by selling heroin shall receive a mandatory sentence of two years in a correctional facility of the department of social and health services and no judge of any court shall suspend or defer the sentence imposed for such violation.  Any person convicted on a second or subsequent sale of heroin, the sale having transpired after prosecution and conviction on the first cause of the  [[Orig. Op. Page 8]] sale of heroin shall receive a mandatory sentence of ten years in a correctional facility of the department of social and health services and no judge of any court shall suspend or defer the sentence imposed for this second or subsequent violation:  PROVIDED,That the board of prison terms and paroles under RCW 9.95.040 shall not reduce the minimum term imposed for a violation under this subsection."  (Emphasis supplied)

            Likewise, in RCW 9.79.170(2), the legislature provided that:

            ". . .  No person convicted of rape in the first degree shall be granted a deferred or suspended sentence except for the purpose of commitment to an inpatient treatment facility:  PROVIDED, That every person convicted of rape in the first degree shall be confined for a minimum of three years:  PROVIDED FURTHER, That the board of prison terms and paroles shall have authority to set a period of confinement greater than three years but shall never reduce the minimum three‑year period of confinement . . ."

            For the foregoing reasons, then, we answer your question in the negative.  Specifically, it is our opinion that in those cases involving a convicted felon in which the record includes only an RCW 9.41.025 finding that the individual was armed with a firearm ‑ and not, in addition, a further "deadly weapons" finding under RCW 9.95.040 ‑ the parole board's discretion is not limited and the board is therefore not required to fix a mandatory minimum term.4/

             [[Orig. Op. Page 9]]   We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


WILLIAM C. COLLINS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

2/I.e., Division III of the Court of Appeals.

3/As was noted in Edwards,supra, however, the prosecutor, by alleging a violation of the deadly weapons statute as well as the firearms statute, can bring about a limitation of the parole board's discretion.

4/In so concluding, we are aware that on January 25, 1978, by its opinion in State v. Atkinson, 19 Wn.App. 107 (1978), Division II of the Court of Appeals once again confused the question somewhat by pinpointing the parole board's further power to parole an inmate prior to the expiration of his mandatory minimum period of confinement (as set forth in the final paragraph of RCW 9.95.040), rather than the inapplicability of that statute, per se, as its basis for rejecting an argument that RCW 9.41.025 (the firearms statute) is unconstitutional under such cases as Woodson v. North Carolina, 428 U.S. 280, 49 L.Ed. 2d 944, 96 S.Ct. 2978 (1976) (invalidating mandatory death penalty statutes).  This later case is not, however, in conflict with State v. Edwards, supra, since it does not further deal with the critical distinction made inEdwards and Hattori, supra, between the limitation of the firearms statute on the court's discretion and that of the deadly weapons statute on the parole board's discretion.

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