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AGLO 1975 No. 98 - December 26, 1975
AGO Opinion Header Image
Slade Gorton | 1969-1980 | Attorney General of Washington

OFFICES AND OFFICERS ‑- STATE ‑- BOARD OF PRISON TERMS AND PAROLES ‑- CRIMES ‑- HABITUAL CRIMINALS ‑- MINIMUM TERM OF CONFINEMENT

In the case of a person convicted of three counts of armed robbery and found to be an habitual criminal because of previous convictions also involving the use of a fire arm, with the maximum sentences imposed by the court being ordered to run consecutively on two counts and concurrently as to the third, the minimum term of confinement which may be fixed by the board of prison terms and paroles under either RCW 9.41.025 or RCW 9.95.040 is one of fifteen years.

                                                                   - - - - - - - - - - - - -

                                                               December 29, 1975

Honorable Bruce Johnson
Chairman, Board of Prison Terms and Paroles
805 Capitol Center Building
410 West 5th
Olympia, Washington 98504                                                                                                               Cite as:  AGLO 1975 No. 98

Dear Sir:

            By letter previously acknowledged you requested our advice as to the minimum term of confinement which may be fixed by the state board of prison terms and paroles in a particular case now pending before it.  We will describe the relevant facts of that case within the body of our responsive opinion.  For the reasons set forth therein, our direct answer to your question is that theminimum term of confinement which the parole board may assign to the convicted person in question is one of fifteen years.

                                                                     ANALYSIS

            A. Introduction:

            As you have described it, the case with which you are concerned involves an individual who was convicted of three counts of robbery.  The verdict in each instance was accompanied by a special finding that he was armed with a firearm within the meaning of RCW 9.41.025 which prescribes certain nonsuspendable minimum prison terms in the case of:

            "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, . . ."

            The minimum sentences prescribed in such cases are as follows:

            ". . .

            "(1) For the first offense the offender shall be guilty of a felony and the court shall  [[Orig. Op. Page 2]] 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;

            ". . ."

            In this case, subsection (2) of the statute is applicable because the offender in question had previously been convicted of robbery involving the use of a firearm several years earlier as well.

            In addition to the foregoing, the subject individual was also charged with being, and found to be, an habitual criminal in accordance with RCW 9.92.090, which provides in material part as follows:

            "Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life."

             [[Orig. Op. Page 3]]   In dealing with the question which you have posed with regard to this case, it is important, at the outset, to distinguish the respective functions of the court and the parole board following an individual's conviction of a felony.  RCW 9.95.010 describes the role of the court in imposing sentence as follows:

            "When a person is convicted of any felony, except treason, murder in the first degree, or carnal knowledge of a child under ten years, and a new trial is not granted,the court shall sentence such person to the penitentiary, or, if the law allows and the court sees fit to exercise such discretion, to the reformatory,and shall fix the maximum term of such person's sentence only.

            "The maximum term to be fixed by the court shall be the maximum provided by law for the crime of which such person was convicted, if the law provides for a maximum term.  If the law does not provide a maximum term for the crime of which such person was convicted the court shall fix such maximum term, which may be for any number of years up to and including life imprisonment but in any case where the maximum term is fixed by the court it shall be fixed at not less than twenty years."  (Emphasis supplied.)

            Acting pursuant to this statutory mandate the court in this case sentenced the defendant to maximum terms of "life on each count, said terms to be servedconsecutively as to Counts I and II and concurrently as to Count III."  (Emphasis the court's).  Accord, RCW 9.92.080 which reads as follows:

            "From and after August 9, 1971:

            "(1) Whenever a person while under sentence of a felony shall commit another felony and be sentenced to another term of imprisonment, such latter term shall not begin until the expiration of all prior terms:  PROVIDED, That any person granted probation pursuant to the provisions of RCW 9.95.210 and/or 9.92.060 shall not be considered to be under sentence of a felony for the purposes of this subsection.

             [[Orig. Op. Page 4]] "(2) Whenever a person is convicted of two or more offenses which arise from a single act or omission, the sentences imposed therefor shall run concurrently, unless the court, in pronouncing sentence,  expressly orders the service of said sentences to be consecutive.

            "(3) In all other cases, whenever a person is convicted of two or more offenses arising from separate and distinct acts or omissions, and not otherwise governed by the provisions of subsections (1) and (2) of this section, the sentences imposed therefor shall run consecutively, unless the court, in pronouncing the second or other subsequent sentences, expressly orders concurrent service thereof.

            "(4) The sentencing court may require the secretary of the department of social and health services, or his designee, to provide information to the courts concerning the existence of all prior judgments against the defendant, the terms of imprisonment imposed, and the status thereof."

            Conversely, the role of the parole board following the conviction and sentencing of a felon to a term of confinement is that of fixing the actual term of confinement to be served by the convicted person in accordance with RCW 9.95.040 which provides that:

            "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."

            This statute, however, then goes on to prescribe certain limitations upon the discretionary power of the parole board; i.e., insofar as is here material:

            "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:

             [[Orig. Op. Page 5]] "(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.

            ". . .

            "(3) For a person convicted of being an habitual criminal within the meaning of the statute which provides for mandatory life imprisonment for such habitual criminals, the duration of confinement shall not be fixed at less than fifteen years.  The board shall retain jurisdiction over such convicted person throughout his natural life unless the governor by appropriate executive action orders otherwise.

            ". . ."

            Also to be noted in connection, particularly, with subsections (1) and (2) of this last quoted statute is RCW 9.95.015 which provides that:

            "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."

             [[Orig. Op. Page 6]] B. Opinion:

            In our opinion, as above indicated, the minimum term of confinement that may be fixed by the state parole board in this case will be one of not less than fifteen years.

            C. Rationale:

            The foregoing conclusion with respect to your question is based upon at least two, and possibly three, different grounds.

            First, we have already seen that because of the subject's prior conviction of robbery with a pistol some years earlier, RCW 9.41.025(2),supra, is applicable.  Because of this factor, together with the trial court's order that the prison terms imposed by it are to be ". . . served consecutively as to Counts I and II. . .," it follows that under that statute the minimum term to be fixed by the parole board must be one of at least fifteen years; i.e., two consecutive minimum terms of seven and one‑half years each.

            Secondly, this same result would be reached if the above described special findings that the defendant was armed with a firearm in connection with all three robbery counts of which he was convicted could be taken as meeting the requirements of RCW 9.95.015,supra, so as to invoke the limiting provisions of RCW 9.95.040(2); i.e.,

            "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."

            Again, the trial court's order requiring two of the three sentences imposed to be served consecutively would necessitate a "double" seven and one‑half year minimum term if this approach were here applicable.

            There is, unfortunately, a problem with this second line of reasoning in the instant case because of the fact that, according to the court record, only a set of RCW 9.41.025 "firearms" findings ‑ as opposed to "deadly weapons" findings under RCW 9.95.015 ‑ were actually requested or made in this case.  Therefore, arguably, the parole board is not restricted by subsection (2) of RCW 9.95.040, supra, in this instance.  See,State v. Smith, 11 Wn.App. 216, 521 P.2d 1197 (1974), andState v. Frazier, 81 Wn.2d 628, 503 P.2d 1073 (1972).  In view of the identical result reached in any event under RCW 9.41.025,supra, however, this is an issue which need not be conclusively resolved in this opinion.

             [[Orig. Op. Page 7]]   The remaining issue which does have to be answered, of course, involves the trial court's habitual criminal finding under RCW 9.92.090,supra.  The question is whether, by reason of this finding and RCW 9.95.040(3),supra, an even longer minimum term than one of fifteen years is required in this case.  In our considered opinion, while the parole board is most certainly hereempowered to fix a greater minimum term if it sees fit under all of the circumstances involved in this case to do so, such is not legally necessary.

            Again, RCW 9.95.040(3) provides that:

            "For a person convicted of being an habitual criminal within the meaning of the statute which provides for mandatory life imprisonment for such habitual criminals, the duration of confinement shall not be fixed at less than fifteen years.  The board shall retain jurisction [jurisdiction] over such convicted person throughout his natural life unless the governor by appropriate executive action orders otherwise."  (Emphasis supplied.)

            Thus, the minimum term (fifteen years) prescribed by this portion of the statute is exactly equal to that required by RCW 9.41.025(2) (or, if applicable, subsection (2) of RCW 9.95.040 itself) in this case ‑ unless the fact that two of the three sentences imposed by the court were ordered to run consecutively is also relevant with respect to the impact of the habitual criminal finding upon the parole board's discretion.  In our opinion, however, it is not.

            In so concluding we would again draw a distinction between the functions of the court and the parole board ‑ this time in the particular context of an habitual criminal determination.  The court's function in such a case flows from RCW 9.92.090, supra, which requires that an individual found to be an habitual criminalmust be sentenced to a maximum term of life in prison regardless of what sentence might otherwise be called for by the statute defining the substantive crime of which the individual has last been convicted.  See,in Re Lombardi, 13 Wn.2d 1, 123 P.2d 764 (1942) andState v. Miles, 34 Wn.2d 55, 207 P.2d 1209 (1949).  Although those cases speak of the habitual criminal status as calling for an increased punishment for the latest offense of which an accused person has been convicted, however, they do so only in terms of the duty of the court in fixing the prescribed maximum sentence.  NeitherLombardi nor Miles, nor any other Washington case disclosed by our research, attempts to analyze the parole board's duties in this area.

             [[Orig. Op. Page 8]]   Likewise, RCW 9.92.080, supra, which deals with the question of whether sentences for multiple offenses are to run consecutively or concurrently, speaks only to the court's powers with respect to this issue and not directly to those of the parole board ‑ although as indicated above and further explained below, in those instances in which RCW 9.41.025 or RCW 9.95.040(1) or (2),supra, come into play, the "consecutive 'versus' concurrent" ruling made by the court will quite definitely have an impact upon the parole board's function of fixing the minimum term of confinement in the particular case.

            In our judgment, RCW 9.95.040(3), supra, is plain, clear and unambiguous.  That the statute manifests a legislative intent to limit the discretion of the parole board in those cases where an individual coming before it has been found to occupy the status of an habitual criminal;1/ the limit being that the minimum term of confinement to be fixed for such an individual will be one of the fifteen years.  Simply stated, the fact that the penalty flows from a status rather than as a punishment for a specific crime, together with the language of RCW 9.95.040(3),supra, itself, leads us to conclude that insofar as the parole board's duties under that statute alone are concerned, consecutive versus concurrent sentence considerations are irrelevant.

            Conversely, in the case of a firearms or deadly weapons finding under RCW 9.41.025 or RCW 9.95.015,supra, the significance of the finding is different in that it establishes a minimum sentence or term of imprisonment with respect to the related crime itself.  Similarly, see RCW 9.48.030 and RCW 9.95.115 with respect to the crime of first degree murder.  In those instances, it would thus clearly be contrary to legislative intent to conclude that a defendant who has committed several such crimes, each of which carries a mandatory minimum term, would be subject to only a single mandatory period of confinement under RCW 9.95.040, supra, even though the court imposing the sentences has ordered two or more of them to run consecutively.

             [[Orig. Op. Page 9]]   In the instant case, because only two of the three sentences imposed were ordered by the trial court to run consecutively, the firearms findings which were there involved will not enlarge the mandatory minimum term to be served under either RCW 9.41.025(2) or RCW 9.95.040(2) beyond the fifteen-year period required by RCW 9.95.040(3).  Hypothetically, however, a situation could be conceived in which deadly weapon or firearms findings could result in a mandatory minimum term longer than fifteen years.  For example, if a defendant who had been previously convicted of one or more felonies was again convicted on three felony counts each of which involved the possession of a deadly weapon, was sentenced to consecutive terms on each count, and was also found to be an habitual criminal, the parole board's discretion would ultimately be controlled by RCW 9.95.040(2) rather than RCW 9.95.040(3).  The first of these two subsections would then require a minimum term of seven and one‑half years to be imposed for each of the crimes thus mandating a total minimum term of confinement of twenty-two and one‑half years.  For purposes of setting the minimum term in such a case, the habitual criminal finding and RCW 9.95.040(3) would be irrelevant.2/

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

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

WILLIAM COLLINS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/An habitual criminal finding clearly imposes a status upon the individual.   It is not a separate "crime" to be an habitual criminal.  In Re Lombardi,supra; see also In Re Towne, 14 Wn.2d 633, 129 P.2d 230 (1942).

2/State v. Ogle, 3 Wn.App. 549, 475 P.2d 913 (1970), envisioned a similar result, noting that the death penalty would take precedence over a life prison term required by an habitual criminal finding in an appropriate case.

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