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AGO 1979 No. 10 - May 10, 1979
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Slade Gorton | 1969-1980 | Attorney General of Washington

CRIMES ‑- COURTS ‑- SENTENCES ‑- SENTENCING PROCEDURE UPON PLEA OF GUILTY TO FIRST DEGREE OF MURDER UNDER AGGRAVATING CIRCUMSTANCES

The sentencing procedure for murder in the first degree set forth in RCW 9A.32.040(2) does not apply so as to permit a person to be sentenced to life imprisonment without the possibility of parole upon a plea of guilty to first degree murder with an aggravating circumstance.

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                                                                   May 10, 1979

Honorable C. Danny Clem
Prosecuting Attorney
Kitsap County
614 Division Street
Port Orchard, Washington 98366

                                                                                                                 Cite as:  AGO 1979 No. 10

Dear Sir:

            By recent letter you have requested our opinion on the following question:

            Does the sentencing procedure for murder in the first degree set forth in RCW 9A.32.040(2) permit a person to be sentenced to life imprisonment without the possibility of parole upon a plea of guilty to first degree murder with an aggravating circumstance?

            We answer the foregoing question in the negative.

                                                                     ANALYSIS

            RCW 9A.32.030(1) defines the crime of first degree murder as follows:

            "(1) A person is guilty of murder in the first degree when:

            "(a) With a premeditated intent to cause the death of another person, he causes the death of such person or of a third person; or

             [[Orig. Op. Page 2]]

"(b) Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or

            "(c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnaping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision (1)(c) in which the defendant was not the only participant in the underlying crime, if established by the defendant by a preponderance of the evidence, it is a defense that the defendant:

            "(i) Did not commit the homicidal act or in any way solicit, request, command, importune, cause, or aid the commission thereof; and

            "(ii) Was not armed with a deadly weapon, or any instrument, article, or substance readily capable of causing death or serious physical injury; and

            "(iii) Had no reasonable grounds to believe that any other participant was armed with such a weapon, instrument, article, or substance; and

            "(iv) Had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury."

            Subsection (2) of this statute then classifies murder in the first degree as a class A felony.  Ordinarily, this classification would mean that a person convicted of first degree murder would be subject to,

             [[Orig. Op. Page 3]]

            ". . . imprisonment in a state correctional institution for a maximum term fixed by the court of not less than twenty years, or by a fine in an amount fixed by the court of not more than ten thousand dollars, or by both such imprisonment and fine;

            ". . ."

            See, RCW 9A.20.020(1)(a).  With respect to the particular crime, however, a different punishment scheme is applicable because of RCW 9A.32.040, the statute referred to in your letter.  This statute reads, in full, as follows:

            "Notwithstanding RCW 9A.32.030(2), any person convicted of the crime of murder in the first degree shall be sentenced as follows:

            "(1) If, pursuant to a special sentencing proceeding held under RCW 10.94.020, the jury finds that there are one or more aggravating circumstances and that there are not sufficient mitigating circumstances to merit leniency, and makes an affirmative finding on both of the special questions submitted to the jury pursuant to RCW 10.94.020(10), the sentence shall be death;

            "(2) If, pursuant to a special sentencing proceeding held under RCW 10.94.020, the jury finds that there are one or more aggravating circumstances but fails to find that there are not sufficient mitigating circumstances to merit leniency, or the jury answers in the negative either of the special questions submitted pursuant to RCW 10.94.020(10), the sentence shall be life imprisonment without possibility of release or parole.  A person sentenced to life imprisonment under this subsection shall not have that sentence suspended, deferred, or commuted by any judicial officer, and the board of prison terms and paroles shall never parole a prisoner nor reduce the period of confinement.  The  [[Orig. Op. Page 4]] convicted person shall not be released as a result of any type of good time calculation nor shall the department of social and health services permit the convicted person to participate in any temporary release or furlough program; and

            "(3) In all other convictions for first degree murder, the sentence shall be life imprisonment."

            Your question is whether the sentencing procedure for murder in the first degree set forth in subsection (2) of this statute permits a person to be sentenced to life imprisonment without the possibility of parole upon a plea of guilty to first degree murder with an aggravating circumstance.  We must answer in the negative.

            RCW 9A.32.040(2) (like subsection (1) of the same statute) only comes into play when a special sentencing proceeding is held under RCW 10.94.020.  But that statute, in turn, is only triggered by a jury verdict of guilty‑-meaning that the accused has initially pleaded innocent, gone to trial and then been found guilty by the jury.  See, RCW 10.94.020(2) which provides as follows:

            "(2) If the prosecution has filed a request for the death penalty in accordance with RCW 10.94.010, and the trial jury returns a verdict of murder in the first degree under RCW 9A.32.030(1)(a), then, at such time as the verdict is returned, the trial judge shall reconvene the same trial jury to determine in a separate special sentencing proceeding whether there are one or more aggravating circumstances and whether there are mitigating circumstances sufficient to merit leniency, as provided in RCW 9A.32.045 as now or hereafter amended, and to answer special questions pursuant to subsection (10) of this section.  The special sentencing proceeding shall be held as soon as possible following the return of the jury verdict."  (Emphasis supplied)

            On the other hand there is no such provision for the conduct of a special sentencing proceeding in the case of an accused who has been convicted of first degree murder on  [[Orig. Op. Page 5]] the basis of a plea of guilty1/ even though one or more aggravating circumstances may have been alleged.  Therefore, in such a case, the applicable subsection of RCW 9A.32.040, supra, is subsection (3) which (repeated for ease of reference) says that:

            "(3) In all other convictions for first degree murder, the sentence shall be life imprisonment."

            Unlike subsection (2),supra, however, this subsection does not contain the additional language ". . . without possibility of release or parole. . . ."

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

Very truly yours,


SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Cr.R 4.2, without qualification, permits an accused at the time of arraignment to plead not guilty, not guilty by reason of insanity, or guilty.  It is further notable that at the time of arraignment the accused need not yet have been informed of the prosecutor's intent regarding the penalty to be sought if he is found guilty upon trial.  See, RCW 10.94.010.  Yet the filing of a notice of intention to request the death penalty is also a condition to the conduct of special sentencing proceedings under RCW 10.94.020, to which reference is made in RCW 9A.32.040(2),supra.

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